Summary:

Bryan Toles, David Flowers and Casey Young walked past the Franceschi home in Lawton and decided to steal a car.

The men were on their way from the Honeymooners Bar to the home of their friend, Herbie Foster, and they were tired of walking. None of them knew how to hot-wire the red Mustang 5.0 in the Franceschi's driveway, so they had to get the keys.

Toles rang the doorbell while Young and Flowers hid around the corner and put bandannas over their faces outlaw-style. Young had already loaded a .22 revolver and given it to Toles.

Toles pushed his way into the home when 15 year old Lonnie Franceschi opened the door. He pointed the pistol at Lonnie and told him to get down and shut up.

Young and Flowers went down the hall toward the bedrooms. Norma Franceschi heard the commotion and met them in the hall. She screamed for her husband and continued toward the front door. Juan Franceschi struggled briefly with Young and Flowers in the hall and joined his wife.

Toles, who had been kicking Lonnie, shot Juan Franceschi in the arm. Toles followed Mr. and Mrs. Franceschi as they retreated toward the bedroom. He aimed at Mr. Franceschi's head, but before he could fire, Mrs. Franceschi grabbed his arm.

Thinking that Mr. Franceschi could identify him, and that he "might as well go ahead and kill him," Toles aimed at Franceschi's chest and shot. Even though he was shot, Franceschi fought with Toles in the hallway.

Toles' pants became soaked with Franseschi's blood during the fight. Mrs. Franceschi escaped to their grown daughter's bedroom, hiding first in the closet, and then in the drawer of a waterbed. She heard someone come into the room and leave.

Meanwhile Lonnie Franceschi was still kneeling on the floor near the front door with his hands behind his back. Toles saw Lonnie on his way out of the house and thought, "damn, there's still him left." Realizing Lonnie could identify him, Toles turned, extended his arm so the barrel of the pistol was about six inches from the back of Lonnie's head, and fired.

Toles confessed to the murders following his arrest. 16 year old accomplice David Flowers was also convicted on murder charges and sentenced to life in prison.

Citations:

Toles v. State, 947 P.2d 180 (Okl.Cr. 1997) (Direct Appeal).

Final Meal:

Four fried chicken breasts, mashed potatoes and gravy, three Bama pecan pies, two foot-long chili cheese dogs, a small order of chili cheese fries and a two liter cream soda.

Final Words:

"I'd like to apologize to the victims' family and ask them for their forgiveness," Toles said. He primarily talked to members of his family and his spiritual adviser, who were witnesses at his execution. "I love all y'all, thanks for coming. Take care of my mother. I'll see y'all later. We're all right. I fixing to pass out, I think."

ClarkProsecutor.org
 

Oklahoma Department of Corrections

Inmate: Bryan Toles
ODOC#: 200599
Birthdate: 09/09/1971
Race: Black
Sex: Male
Height: 5 ft. 08 in
Weight: 152 pounds
Hair: Black
Eyes: Brown
Location: Oklahoma State Penitentiary, Mcalester
 

Man Convicted In Deaths Of Father, Son Executed

Oklahoma.com Channel 5

AP - July 22, 2003

MCALESTER, Okla. -- Bryan Anthony Toles was executed Tuesday for the 1993 shooting deaths of a 39-year-old man and his 15-year-old son.

Toles, 31, was pronounced dead at 6:10 p.m. after receiving an injection of drugs at the Oklahoma State Penitentiary in McAlester. He was the 12th inmate executed in Oklahoma this year.

Toles was convicted of two counts of first-degree murder and sentenced to death for the July 16, 1993, murders of Juan Franceschi and his son, Lonnie Franceschi. As he lay strapped to a gurney, Toles offered his condolences to the Franceschi family. "I'd like to apologize to the victims' family and ask them for their forgiveness," Toles said.

Toles primarily talked to members of his family and his spiritual adviser, who were witnesses at his execution. "I love all y'all thanks for coming. Take care of my mother," he said. "I'll see y'all later. We're all right." Toles' eye lids began to flutter as the injections took effect. "I fixing to pass out, I think," Toles said. Members of his family wept as his eyes twitched. Toles struggled for breath and then his left arm and upper body began to twitch. His feet moved slowly before his body fell limp and he was pronounced dead.

About 15 minutes before his execution, other prisoners on death row began banging their cell doors to acknowledge the execution and give Toles a send-off. The banging could be heard in the death chamber and muffled what Toles said.

Juan and Lonnie Franceschi were shot shortly after midnight when Toles forced his way into their home in Lawton in an attempt to get the keys to the family car, according to Attorney General Drew Edmondson's office. Juan Franceschi, an Army veteran, was shot in the chest as he struggled with Toles. His son was shot in the back of the head as he lay face-down on the floor with his hands behind his back, authorities said. Toles confessed to the murders following his arrest, according to Comanche County District Attorney Robert Shulte, who prosecuted Toles. A co-defendant, David Flowers, was also convicted on murder charges and sentenced to life in prison.

Norma Franceschi, Juan Franceschi's widow and Lonnie Franceschi's mother, attended Tuesday's execution hoping to find closure. "I found closure," she said. "I have forgiven Toles. I came here to put closure in my life." Franceschi, who says she still copes with the deaths and has suffered numerous breakdowns requiring medical attention, appreciated Toles' deathbed apology. "I'm nobody to judge nobody, I'm nobody to judge nobody, I'm just grateful he said 'I'm sorry."' Franceschi said she takes medication for anxiety and occasionally experiences flashbacks of the crime, which cause "uncontrollable trembling and screaming."

Two other executions are scheduled in July: Jackie Lee Willingham on Thursday and Harold Loyd McElmurry III on July 29.
 

Oklahoma Attorney General News Release

News Release - W.A. Drew Edmondson, Attorney General

Execution Dates Set for Toles, Willingham, Date Requested for McElmurry 06/02/2003

The Oklahoma Court of Criminal Appeals today set July execution dates for two death row inmates, and Attorney General Drew Edmondson requested an execution date for a third. Execution dates were scheduled for Bryan Anthony Toles, July 22, and Jackie Lee Willingham, July 24. Edmondson requested the execution dates April 1 and May 19, respectively, after the U.S. Supreme Court denied the inmates' final appeals.

Toles, 31, was sentenced to death in Comanche County District Court for the July 16, 1993, murders of Juan Franceschi, 39, and his son, Lonnie Franceschi, 15. Toles shot both victims shortly after midnight when he forced his way into their Lawton home in an attempt to obtain keys to the Franceschi's car.

Willingham, 33, was sentenced to death in Comanche County District Court after confessing to the Dec. 20, 1994, murder of Jayne Ellen Van Wey, 62. Willingham was working as a traveling salesman when he attempted to sell perfume to Van Wey at her Lawton office. Van Wey refused Willingham's offer and asked him to leave. He then followed her into a bathroom where she was fatally beaten and robbed.

Edmondson is asking family members of Jayne Ellen Van Wey to contact his office. Edmondson said his office attempts to notify victims' family members any time he requests an execution date. Under Oklahoma law, certain victim family members are permitted to witness executions, if they so desire. Family members are asked to contact Allyson Carson at (405) 521-3921.

Edmondson also today asked the Oklahoma Court of Criminal Appeals to set an execution date for McIntosh County death row inmate Harold Loyd McElmurry, III. McElmurry, 33, was sentenced to death for the Aug. 2, 1999, murders of 75-year-old Rosa Vivian Pendley and 80-year-old Robert Pendley in the couple's home west of Eufaula.

McElmurry told authorities he stabbed the victims with scissors and hit them with a piece of pipe and a garden hoe. McElmurry's direct appeal was denied Dec. 2, 2002, and rehearing was denied Feb. 28, 2003. McElmurry, who has indicated his desire to waive further appeals, failed to file a petition for writ of certiorari at the U.S. Supreme Court before the May 29 deadline.

According to statute, Edmondson requested the date be set 30 days from May 29. "It is the practice of this office, before an execution date is requested, to examine each case to determine if the testing of DNA evidence should occur," said Edmondson. "We have determined, after a thorough review of this case, that DNA testing would be of no value and would have no relevance as to actual innocence. I see nothing that should stand in the way of this execution being carried out."
 

ProDeathPenalty.com

The events which culminated in the murder of Juan Franceschi and his fifteen year old son, Lonnie, began shortly after midnight on July 16, 1993.

Bryan Toles, David Flowers and Casey Young walked past the Franceschi home in Lawton and decided to steal a car. The men were on their way from the Honeymooners Bar to the home of their friend, Herbie Foster, and they were tired of walking. None of them knew how to hot-wire the red Mustang 5.0 in the Franceschi's driveway, so they had to get the keys.

Toles rang the doorbell while Young and Flowers hid around the corner and put bandannas over their faces outlaw-style. Young had already loaded a .22 revolver and given it to Toles.

Toles pushed his way into the home when Lonnie opened the door. He pointed the pistol at Lonnie and told him to get down and shut up. Young and Flowers went down the hall toward the bedrooms. Norma Franceschi heard the commotion and met them in the hall.

She screamed for her husband and continued toward the front door. Juan Franceschi struggled briefly with Young and Flowers in the hall and joined his wife. Toles, who had been kicking Lonnie, shot Juan Franceschi in the arm. Toles followed Mr. and Mrs. Franceschi as they retreated toward the bedroom. He aimed at Mr. Franceschi's head, but before he could fire, Mrs. Franceschi grabbed his arm.

Thinking that Mr. Franceschi could identify him, and that he "might as well go ahead and kill him," Toles aimed at Franceschi's chest and shot. Even though he was shot, Franceschi fought with Toles in the hallway. Toles' pants became soaked with Franceschi's blood during the fight.

Mrs. Franceschi escaped to their grown daughter's bedroom, hiding first in the closet, and then in the drawer of a waterbed. She heard someone come into the room and leave. Meanwhile Lonnie Franceschi was still kneeling on the floor near the front door with his hands behind his back. Toles saw Lonnie on his way out of the house and thought, "damn, there's still him left." Realizing Lonnie could identify him, Toles turned, extended his arm so the barrel of the pistol was about six inches from the back of Lonnie's head, and fired.

After Toles, Young and Flowers left, Lonnie went to his bedroom and got in bed. His mother heard him crying and gasping for air. When she tried to call 911 from the back bedroom, she discovered the phone was dead and ran to a neighbor's home to call.

Paramedics arrived shortly and placed Lonnie on life support. Juan Franceschi died while the paramedics worked on him. Later that day Lonnie was declared brain dead, removed from life support and allowed to die. After they left the Franceschi home, Toles, Young and Flowers walked two blocks to the home of a friend who gave them a ride to Herbie Foster's.

Toles gave his bloody clothes to a runaway girl who was staying there and told her to burn them. He called a family friend and told her and her boyfriend that he shot two people. He then spent the night at the home of another friend.

He was arrested later that afternoon while he was talking to his mother on a pay phone at the corner of 17th Street and Gore in Lawton.

Following his arrest, Toles agreed to talk to the police. During his first interview, he admitted entering the Franceschi home with David Flowers and Casey Young, but insisted that Young was actually responsible for the murders.

During three subsequent interviews, all of which were videotaped, Toles admitted carrying the gun into the Franceschi home and shooting Juan and Lonnie Franceschi.
 

Bryan Toles

TheDeathHouse.com

McAlester, Okla. - Shot in the back of the head, 15-year-old Lonnie Franceschi got up from the floor and went to his bed. His mother heard him crying and gasping for air. He was later declared brain dead and removed from life support.

The man who shot Lonnie, Bryan Toles, 31, is scheduled for execution July 22. Not only did Toles shoot Lonnie, but he also shot and killed the boy's father, Juan Franceschi, during a mindless and bloody home invasion. And, it all started because Toles and two other men were tired of walking after a night of drinking and didn't know how to hot wire the car they wanted to steal in the Franceschi driveway.

The murders occurred after midnight on July 16, 1993. Toles, along with David Blowers and Casey Young, had been drinking and walking home from a bar. They decided to steal a car and spotted the red Mustang in the Franceschi driveway. Not knowing how to hot wire the vehicle, Toles reportedly rang the doorbell while Flowers and Young hid.

The duo covered their faces, "outlaw style," with bandannas, court documents stated. Young had a 22. caliber revolver. After pushing their way inside the house when Lonnie opened the door, Toles pointed a gun at the boy and told him to "get down and shut up." Young and Flowers came into the house and headed toward the bedrooms.

Norma Franceschi heard the commotion and screamed for her husband, Juan, who struggled with Young and Flowers. Toles then kicked Lonnie and shot Juan in the arm. During the ensuing struggle, Toles shot Juan in the chest, but the mortally wounded man kept trying to fight the intruders. Lonnie Franceschi, kneeling on the floor near the front door, was shot in the head by Toles as he left the house. Before he shot him, Toles was heard to say, "Damn, there's still him left."

After Toles, Young and Flowers left, Lonnie went to his bedroom and lay in his bed. His mother heard him crying and gasping for air. She tried to call 911 from the back bedroom, but discovered that the phone was dead. She then ran to a neighbor's home to call for help.

Paramedics arrived and placed the mortally wounded boy on life support. Juan Franceschi died while medics worked on him. Later that day, Lonnie was declared brain dead, removed from life support and allowed to die, court documents stated. Toles gave conflicting statements as to what happened.

Court documents stated that Toles first admitted to being present during the murder, but denied shooting anyone. He said Young shot the victims. In a second statement, he admitted he shot the victims. He said in a video-taped statement that he shot Juan and Lonnie Franceschi because they could identify him. James L. Hankins, the Oklahoma lawyer handling Toles' appeals, when contacted by The Death House .com for an update on the case, promised to return a telephone call to a reporter. He did not. Oklahoma Department of Corrections records show that Toles has previous convictions for robbery and burglary.

Oklahoma Coalition to Abolish the Death Penalty

Bryan Toles (OK) - July 22, 2003

The state of Oklahoma is scheduled to execute Bryan Toles, a black man, July 22 for the murders of Juan and Lonnie Franceschi in Lawton. Toles allegedly shot them in their home shortly after midnight on July 16, 1993 in an attempt to steal the red Mustang parked in their driveway. Toles confessed to the shootings the next morning, and received a death sentence in 1994.

Although his crime is certainly inexcusable, Toles is a victim of the economic discrimination inherent in the death penalty system. He did not have the necessary funds to secure the presence of Dr. Jonathan Lipman, a neuropharmacologist, and therefore forfeited what could have been the strongest mitigating factor in his case: voluntary intoxication. Toles could not afford a private attorney, and his court-appointed counsel refused to allocate funding for that defense.

Dr. Lipman, who interviewed Toles, reviewed his videotaped statements, and studied reports prepared by police investigators and social workers, could have given serious credibility to a defense of voluntary intoxication. After reviewing the case, Dr. Lipman reported that Toles had smoked eight rocks of crack cocaine prior to the murders, and had a blood alcohol level of .596. Since Toles could not afford to pay for Dr. Lipman, or private attorneys for that matter, he could not produce an effective defense on these grounds. Unfortunately, his case is not an isolated incident; 95 percent of death row inmates in the United States could not afford to hire private attorneys.

Toles also challenged the admission of his confessions at trial, which he made the morning after the murder. He claimed he did not knowingly and intelligently waive his constitutional rights as required by Miranda v. Arizona (1966). Police officers and Toles agree that he asked to speak to an attorney numerous times, but the state contends that after those requests, he changed his mind and decided to confess.

Most defendants convicted of murder in the United States do not receive death sentences. A small number do, and sadly, they are disproportionately African American and overwhelmingly poor. Please contact Gov. Brad Henry to protest the pending execution of Bryan Toles, as well as the racial and socio-economic discrimination in Oklahoma’s death penalty system.

Killer Slated For Execution

By Doug Russell - McAlester News-Capital & Democrat

July 21, 2003

Fifteen-year-old Lonnie Franceschi staggered to his room and collapsed on his bed, crying and bleeding from a .22 caliber bullet wound in the back of his head. Lonnie's father, Army Sgt. 1st Class Juan Franceschi, lay in a heap in another part of the house, shot in the arm and chest. His mother ran screaming to a neighbor for help after finding the telephone wasn't working, but help came too late. The father and son died as a result of their wounds.

Ten years and six days later, the man who pulled the trigger in the early morning hours of July 16, 1993, is scheduled to walk the final steps to the state's execution chamber.

Bryan Anthony Toles, 31, has requested a last meal of four fried chicken breasts, mashed potatoes and gravy, three Bama pecan pies, two foot-long chili cheese dogs, a small order of chili cheese fries and a two liter cream soda. The meal is to be served at noon Tuesday. Toles is scheduled to die six hours later.

Comanche County District Attorney Robert Schulte remembers the case very well. Toles and two other men, David Flowers and Casey Young, had been out for a night of drinking before the shootings occurred. "There had been a bar fight so the three of them left," Schulte recalled. "It was a long walk home from where they were, so they thought they'd get a car and save the walking."

According to court documents, the three men spotted a Ford Mustang outside of the Franceschi home and decided to steal it, but since none of them knew how to hot-wire a car they decided to get the keys. Toles carried a .22-caliber revolver as he climbed up the front steps to the Franceschi home and rang the bell.

When Lonnie Franceschi opened the door, the three men pushed their way into the home. Toles pointed the pistol at the 15-year-old and told him to get down. "He actually had him laying down in the foyer with his hands behind his back like he was waiting to be cuffed," Schulte said.

Hearing the noise, Norma Franceschi awoke and went to see what was wrong. When she spotted the intruders, she yelled for her husband, who came out of his bedroom and began struggling with Flowers and Young.

Toles shot Juan Franceschi in the arm, then shot him again in the chest as the two struggled, according to court documents. Norma Franceschi was a daintily-built Oriental woman, Schulte recalled. "When she saw what was happening, she ran into the bedroom and hid in a small drawer that pulled out from under the bed," he said. "She could hear Toles walking around looking for her, but since the drawer was so small he didn't think to look in it. "She heard another shot and she knew her son was hurt - she heard him crying - but she waited a few minutes to make sure no one was there before she got out."

The telephone in the bedroom wasn't working, so Norma Franceschi ran to a neighbor for help. Juan Franceschi died at the scene as emergency medical responders worked on him. Lonnie Franceschi was later declared brain dead at a Lawton hospital and was removed from life support.

Last week Enid attorney Jim Hankins filed an appeal with the United States Supreme Court in an effort to stop Toles' execution. The state attorney general's office has filed a response to the appeal and "we fully expect to prevail," said spokesman Charlie Price.

Convicted Murderer Executed in Oklahoma

By Tim Talley - McAlester News-Capital & Democrat

AP - July 22, 2003

McALESTER, Okla. - A man convicted of murder in the shooting deaths of a 39-year-old man and his teenage son was executed by injection Tuesday. As Bryan Toles lay strapped to a gurney, he offered condolences to the family of Juan Franceschi and his son, Lonnie Franceschi. "I'd like to apologize to the victims' family and ask them for their forgiveness," said Toles, 31, who was executed at the Oklahoma State Penitentiary in McAlester.

Toles was convicted of two counts of first-degree murder and sentenced to death for the slayings in 1993. Toles mostly talked to members of his family and his spiritual adviser, who were witnesses at the execution. "I love all y'all. Thanks for coming. Take care of my mother," he said. Toles' eyelids began to flutter as the injection took effect. "I fixing to pass out, I think," he said shortly before his body stopped moving and he was pronounced dead.

Juan and Lonnie Franceschi were shot after Toles forced his way into their home in an attempt to get the keys to the family car, prosecutors said. Toles confessed to the murders, according to prosecutors. A co-defendant was also convicted on murder charges and sentenced to life in prison.

"I have forgiven Toles," Norma Franceschi, Juan Franceschi's widow and Lonnie Franceschi's mother, who attended the execution. "I'm nobody to judge nobody. I'm just grateful he said 'I'm sorry.'"

Littlest Angels

Lawton, OK -- The events which culminated in the murder of Juan Franceschi and his fifteen year old son, Lonnie, began shortly after midnight on July 16, 1993.

Bryan Anthony Toles, David Flowers and Casey Young walked past the Franceschi home in Lawton and decided to steal a car. The men were on their way from the Honeymooners Bar to the home of their friend, Herbie Foster, and they were tired of walking. None of them knew how to hot-wire the red Mustang 5.0 in the Franceschi's driveway, so they had to get the keys.

Toles rang the doorbell while Young and Flowers hid around the corner and put bandannas over their faces outlaw-style. Young had already loaded a .22 revolver and given it to Toles. Toles pushed his way into the home when Lonnie opened the door. He pointed the pistol at Lonnie and told him to get down and shut up. Young and Flowers went down the hall toward the bedrooms.

Norma Franceschi heard the commotion and met them in the hall. She screamed for her husband and continued toward the front door. Juan Franceschi struggled briefly with Young and Flowers in the hall and joined his wife. Toles, who had been kicking Lonnie, shot Juan Franceschi in the arm.

Toles followed Mr. and Mrs. Franceschi as they retreated toward the bedroom. He aimed at Mr. Franceschi's head, but before he could fire, Mrs. Franceschi grabbed his arm. Thinking that Mr. Franceschi could identify him, and that he "might as well go ahead and kill him," Toles aimed at Franceschi's chest and shot. Even though he was shot, Franceschi fought with Toles in the hallway. Toles' pants became soaked with Franceschi's blood during the fight. Mrs. Franceschi escaped to their grown daughter's bedroom, hiding first in the closet, and then in the drawer of a waterbed. She heard someone come into the room and leave.

Meanwhile Lonnie Franceschi was still kneeling on the floor near the front door with his hands behind his back. Toles saw Lonnie on his way out of the house and thought, "damn, there's still him left." Realizing Lonnie could identify him, Toles turned, extended his arm so the barrel of the pistol was about six inches from the back of Lonnie's head, and fired.

After Toles, Young and Flowers left, Lonnie went to his bedroom and got in bed. His mother heard him crying and gasping for air. When she tried to call 911 from the back bedroom, she discovered the phone was dead and ran to a neighbor's home to call. Paramedics arrived shortly and placed Lonnie on life support. Juan Franceschi died while the paramedics worked on him. Later that day Lonnie was declared brain dead, removed from life support and allowed to die.

After they left the Franceschi home, Toles, Young and Flowers walked two blocks to the home of a friend who gave them a ride to Herbie Foster's. Toles gave his bloody clothes to a runaway girl who was staying there and told her to burn them. He called a family friend and told her and her boyfriend that he shot two people. He then spent the night at the home of another friend. He was arrested later that afternoon while he was talking to his mother on a pay phone at the corner of 17th Street and Gore in Lawton.

UPDATE - August 29, 2000 -- A federal court denied the habeas appeal of Bryan Toles. Toles, a Comanche County death row inmate, was sentenced to death for the 1993 shooting deaths of Sgt.1st Class Juan Franceschi and his 15-year-old son, Lonnie, during a robbery attempt. David Flowers, a codefendant who was 16 at the time, received two life sentences for the murders. A third suspect was tried as a juvenile.

Toles v. State, 947 P.2d 180 (Okl.Cr. 1997) (Direct Appeal).

1997 OK CR 45
947 P.2d 180

BRYAN ANTHONY TOLES, Appellant
vs
STATE OF OKLAHOMA, Appellee

Case Number: F-94-1145

Oklahoma Court of Criminal Appeals

Decided: 08/22/1997

Defendant was convicted in the District Court, Comanche County, Mark R. Smith, J., of first-degree murder, conspiracy to commit robbery after former conviction of a felony, and possession of a weapon after former conviction of a felony, and was sentenced to death. He appealed. The Court of Criminal Appeals, Lane, J., held that: (1) information using term "premeditated design" was sufficient to charge malice murder; (2) one venireman was subject to removal for cause; (3) trial court's erroneous failure to remove one venireman for cause did not warrant relief; (4) defendant's custodial statements were properly admitted; (5) defendant was not denied effective assistance of counsel; (6) evidence supported aggravating circumstances; (7) alleged prosecutorial misconduct did not warrant relief; and (8) victim impact evidence did not create influence of passion, prejudice, or any other factor in sentencing decision. Affirmed. Lumpkin, J., concurred in results and filed opinion.

LANE, Judge:

OPINION

¶1 Bryan Anthony Toles, Appellant, was tried by jury for the crimes of Murder in the First Degree (Counts I and II) (21 O.S. 1991, § 701.7(A)); Conspiracy to Commit Robbery After Former Conviction of a Felony (Count V) (21 O.S. 1991, § 421); Attempted Robbery with Firearm (Count VI) ( 21 O.S. 1991, § 797); and Possession of a Weapon After Former Conviction of a Felony (Count VII) (21 O.S. 1991, § 1283) in Comanche County District Court Case No. CRF-93-241. The jury acquitted Toles of Count VI and returned guilty verdicts on each of the other counts.

¶2 The jury found four aggravating circumstances: 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 existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. 21 O.S. 1991, § 701.12 (2), (4), (5), (7). The jury then recommended a [947 P.2d 184] sentence of death on each of the murder counts, twenty years imprisonment for the conspiracy, and ten years imprisonment for the possession of a weapon after former conviction of a felony. The trial court imposed each of the recommended sentences. Mr. Toles has perfected his original appeal to this Court, and we affirm judgment and sentence.

FACTS

¶3 The events which culminated in the murder of Juan Franceschi and his fifteen year old son, Lonnie, began shortly after midnight on July 16, 1993. Bryan Toles, David Flowers and Casey Young walked past the Franceschi home in Lawton and decided to steal a car. The men were on their way from the Honeymooners Bar to the home of their friend, Herbie Foster, and they were tired of walking. None of them knew how to hot-wire the red Mustang 5.0 in the Franceschi's driveway, so they had to get the keys.

¶4 Toles rang the doorbell while Young and Flowers hid around the corner and put bandannas over their faces outlaw-style. Young had already loaded a .22 revolver and given it to Toles.

¶5 Toles pushed his way into the home when Lonnie opened the door. He pointed the pistol at Lonnie and told him to get down and shut up. Young and Flowers went down the hall toward the bedrooms. Norma Franceschi heard the commotion and met them in the hall. She screamed for her husband and continued toward the front door. Juan Franceschi struggled briefly with Young and Flowers in the hall and joined his wife. Toles, who had been kicking Lonnie, shot Juan Franceschi in the arm.

¶6 Toles followed Mr. and Mrs. Franceschi as they retreated toward the bedroom. He aimed at Mr. Franceschi's head, but before he could fire, Mrs. Franceschi grabbed his arm. Thinking that Mr. Franceschi could identify him, and that he "might as well go ahead and kill him," Toles aimed at Franceschi's chest and shot. Even though he was shot, Franceschi fought with Toles in the hallway. Toles' pants became soaked with Franseschi's blood during the fight. Mrs. Franceschi escaped to their grown daughter's bedroom, hiding first in the closet, and then in the drawer of a waterbed. She heard someone come into the room and leave.

¶7 Meanwhile Lonnie Franceschi was still kneeling on the floor near the front door with his hands behind his back. Toles saw Lonnie on his way out of the house and thought, "damn, there's still him left." Realizing Lonnie could identify him, Toles turned, extended his arm so the barrel of the pistol was about six inches from the back of Lonnie's head, and fired.

¶8 After Toles, Young and Flowers left, Lonnie went to his bedroom and got in bed. His mother heard him crying and gasping for air. When she tried to call 911 from the back bedroom, she discovered the phone was dead and ran to a neighbor's home to call. Paramedics arrived shortly and placed Lonnie on life support. Juan Franceschi died while the paramedics worked on him. Later that day Lonnie was declared brain dead, removed from life support and allowed to die.

¶9 After they left the Franceschi home, Toles, Young and Flowers walked two blocks to the home of a friend who gave them a ride to Herbie Foster's. Toles gave his bloody clothes to a runaway girl who was staying there and told her to burn them. He called a family friend and told her and her boyfriend that he shot two people. He then spent the night at the home of another friend. He was arrested later that afternoon while he was talking to his mother on a pay phone at the corner of 17th Street and Gore in Lawton.

SUFFICIENCY OF THE INFORMATION

¶10 Toles was charged with first degree, malice aforethought murder by Information which used the term "premeditated design." He asserts in his first proposition of error the Information is fatally defective for the term "malice aforethought" must be used to charge malice murder. Toles argues his case is controlled by Pickens v. State, 885 P.2d 678, 683-84 (Okl.Cr. 1994), overruled on other grounds by Parker v. State, 917 P.2d 980 (Okl.Cr.1996). In that case the charging paragraph contained the language "premeditated design" as well as language associated with felony murder. As a result the [947 P.2d 185] charging paragraph did not clearly charge either felony murder or malice aforethought murder. This defect was fatal.

¶11 Careful reading of Pickens makes clear the term "premeditated design" does not, in itself, create a defect. The Pickens defect was the irreconcilable confusion as to what crime was charged. No confusion as to the crime charged exists in the Information filed in Mr. Toles' case. The meaning of the charging paragraph is clear--it charges Toles with malice aforethought murder. There is no error here.

JURY SELECTION

¶12 Toles raises two issues concerning the removal of veniremen for cause in his fifth proposition of error. He claims the trial court erred by removing venireman Pacheo, and by not removing venireman Pyles.

¶13 Removal for cause is proper when a venireman is unable to perform the duties of a juror in accordance with the court's instructions and the jurors' oath. Knighton v. State, 912 P.2d 878, 885 (Okl.Cr.1996); See Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985). Venireman Pacheo told the court, "...I don't think that--I don't want the responsibility of having to decide whether someone lives or dies." The trial judge asked whether it was "too awesome of a responsibility" for him, and he replied, "For me, personally." The prosecutor asked, "Are there any circumstances under which you would give the death penalty in a murder first case?", and he replied, "I don't know. It's just a decision that I really do not want to have to make...." The prosecutor asked whether he could agree to a verdict imposing the death penalty without doing violence to his conscience, and he replied, "No." The trial court then removed him for cause.

¶14 Toles seizes the "violence to the conscience" language to argue venireman Pacheo was removed under an unconstitutionally low standard for mere conscientious objections to the death penalty. See Mayes v. State, 887 P.2d 1288, 1297 (Okl.Cr.1994), cert. denied, 513 U.S. 1194, 115 S.Ct. 1260, 131 L.Ed.2d 140 (1995); See Witt, 469 U.S. at 420-421, 105 S.Ct. at 850. The persuasive force of this argument is dissipated by the facts of the case. Pacheo did not communicate a mere conscientious objection to the death penalty, he communicated a strong aversion to being placed in a position to decide, and he communicated the inability to impose the death penalty. Removal for cause of this venireman who could not follow the instructions of the court was proper. Witt, U.S. at 424, 105 S.Ct. at 852.

¶15 Venireman Pyles was not removed for cause despite the fact her husband left her the day before, and she had lost her job two weeks earlier. She said she could not pay attention to the trial. When defense counsel asked her whether she would like someone in her frame of mind sitting on the jury if she were the defendant, she replied, "No." The trial court then asked Pyles if she could follow the court's instructions. When she replied she could, the trial judge denied the defense challenge for cause.

¶16 One is hard pressed to imagine circumstances more compelling for removal for cause. Pyles' promise to follow the court's instructions hardly cures the fundamental problem here; she could not keep her mind on the case given the chaos of her own life. Pyles should have been removed for cause, for in her present mental state she was not competent to serve as a juror.

¶17 Toles argues that because he was forced to remove Pyles with his last peremptory challenge, reversal is necessary for the jury panel was tainted with another unsatisfactory juror. Prior to challenging Pyles, defense counsel argued an additional "unsatisfactory juror" was also on the panel. Counsel did not name the juror or state why the juror was unsatisfactory. Our review of the record reveals nothing to suggest any seated juror was not competent. If the seated jury panel is competent, the fact the defendant had to use his peremptory challenge to achieve this result is irrelevant to a determination of constitutional error. Tibbs v. State, 819 P.2d 1372, 1378-79 (Okl.Cr.1991); Ross v. Oklahoma, 487 U.S. 81, 88, [947 P.2d 186] 108 S.Ct. 2273, 2278, 101 L.Ed.2d 80 (1988). There is no error here.

ISSUES FROM THE GUILT/INNOCENCE STAGE OF TRIAL

A. Denial of Suppression of Custodial Statements

¶18 Toles asserts in his fourth proposition that suppression of his custodial statements was improperly denied by the trial court. In response to the motion to suppress, the trial court properly held a Jackson v. Denno¹ hearing to determine whether Toles' custodial statements were voluntary. In that hearing uncontroverted evidence established the following sequence of events: 1) Toles asked for an attorney when he was arrested and placed in a squad car; 2) he received the Miranda warnings and again asked for his attorney when he arrived at the police station; 3) questioning was not begun, and he was told he would still have to be booked; 4) he stated he had changed his mind and he would talk to the police without counsel present; and 5) questioning was begun after this affirmative waiver.

¶19 Toles argues his waiver was not valid, for all police contact should have stopped when he asked for an attorney upon his initial contact with the police. He claims the subsequent Miranda warning violated his Fifth and Sixth Amendment right to counsel.

¶20 Under some circumstances the differences between the Fifth and Sixth Amendment right to counsel are of critical importance to a case. The Fifth Amendment right to counsel must be asserted by the accused and it covers interrogation concerning any offense, past or present, charged or uncharged. See Valdez v. State, 900 P.2d 363, 373 (Okl.Cr.), cert. denied, ___U.S.___, 116 S.Ct. 425, 133 L.Ed.2d 341 (1995). The Sixth Amendment right is offense-specific and attaches at the time judicial proceedings have been initiated against the accused. Id. at 374. These distinctions are not dispositive in the case before us, for the focus of our inquiry is on waiver.

¶21 Once the right to counsel has been asserted under the Fifth Amendment, or has attached under the Sixth Amendment, a valid waiver of that right cannot be established by showing only that the accused responded to further police-initiated custodial interrogation even if the accused has been advised of his rights. Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1884-85, 68 L.Ed.2d 378 (1981)(Fifth Amendment); Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424 (1977)(Sixth Amendment). An accused may change his mind, however, and affirmatively waive the right to counsel secured by either Amendment. Edwards, 451 U.S. at 484, 101 S.Ct. at 1885; Brewer, 430 U.S. at 405, 101 S.Ct. at 1243. Police interrogation following an affirmative waiver does not run afoul of the constitution.

¶22 Toles asserted his right to counsel twice--first as he got into the squad car when he was arrested, and again following the administration of the Miranda warnings at the police station.² The record is clear that as soon as Toles asserted the right to counsel at the station, the police communication turned immediately to administrative matters and Toles was advised he would have to be booked into jail. It was not until Toles told the police he would talk to them without counsel that police questioning began. Toles waived his right to counsel with this affirmative statement.

¶23 Toles also argues the police coerced his confession with offers of leniency. At the Jackson v. Denno hearing the interrogating officers expressly denied making any offers to Toles. Relevant evidence on this question introduced at the hearing included three video-taped statements by Toles. One statement was taped the day of the murder; two statements were taped the day after the murder.

¶24 In the first statement Toles admitted being present during the murders but denied shooting anyone. In the second statement [947 P.2d 187] he admitted he shot the victims. In the third he more fully explained his motives and the details of the crime. The interrogator asked Toles during the second taped interview why he admitted the shootings he had earlier denied. Toles replied he had talked with his mother who asked him how he would feel if his father and brother had been murdered.

¶25 To defeat a motion to supress, the State bears the burden to prove by a preponderance of the evidence the accused's statements were voluntary. Crawford v. State, 840 P.2d 627, 635 (Okl.Cr.1992), appeal after remand, 881 P.2d 88 (1994). The video-taped statement in which Toles explains the reason for his change of heart carries the State's burden. The trial court properly denied Toles' motion to suppress.

B. Denial of Funds to Secure Presence of Expert Witness at Trial

¶26 The denial of funds to secure the presence of Dr. Jonathan Lipman, a neuropharmacologist from Illinois, is addressed in the second and third propositions of error. Toles argues he was denied both his defense by the executive director of the Oklahoma Indigent Defense System who refused to allocate funds to secure the presence of this expert witness, and effective assistance of counsel because counsel did not adequately challenge the executive director's action or present other evidence of voluntary intoxication. Toles has filed a motion for evidentiary hearing on this issue. We find the record is sufficient for our resolution, and the motion for evidentiary hearing is denied. Illinois pharmacologist, Dr. Jonathan Lipman, was retained by the defense team to investigate and develop the defense of voluntary intoxication. Dr. Lipman interviewed Toles, reviewed his video-taped statements, and reviewed reports prepared by the police and a forensic social worker. The defense filed Dr. Lipman's report with the trial court. Dr. Lipman reported Toles had smoked eight rocks of crack cocaine prior to the murders, and had drunk beer in sufficient quantities to achieve a blood alcohol level of .596. He concluded Toles was "freefalling... through a maelstrom of brain chemistry" and was unable to make rational decisions at the time of the killings. In his offer of proof at trial, counsel stated Dr. Lipman would testify to Toles' blood alcohol level of .596.

¶27 Dr. Lipman's conclusion that Toles was unable to make rational decisions is controverted sharply by Toles' own statements taken six hours after the murders in which he revealed minute details of the invasion of the Franceschi home. The only details he did not reveal were those indicating his very direct involvement. The next day, after Toles spoke with his mother, Toles again clearly and rationally described the incident in minute detail, including his own thoughts about getting rid of the male witnesses, and his belief "the woman" was "too hysterical to worry about." Two days after the murders Toles stated he had not used any cocaine or "chemical" other than alcohol.

¶28 Toles was not denied access to an expert witness in the classic Ake sense. See Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). Toles obtained an expert who rendered an opinion. While it is true the executive director denied funding to secure the expert's presence at trial, no allegation has been made at trial or on appeal that but for inadequate financial resources this witness would have testified at trial.

¶29 The executive director of the Oklahoma Indigent Defense System has the statutory duty to guarantee effective representation for the indigent criminal defendant, and to serve in an advisory capacity to attorneys employed by the Oklahoma Indigent Defense System. 22 O.S. 1991, § 1355.4(C)(6), (17). By statute the executive director is a member of the defense team, and the Court recognizes the fact that members of a defense team do not always agree on strategy. The executive director has the final say regarding issues which ultimately are decided fiscally, for he has the power to approve or deny requests for the expenditure of funds. See 22 O.S. 1991, § 1355.4(F).

¶30 The record indicates the executive director's decision not to secure this witness for trial was based on trial strategy. The question therefore becomes one of effective assistance of counsel and is two-fold. Did the executive director deny Toles effective [947 P.2d 188] assistance of counsel by deciding Dr. Lipman would not testify at trial, and if so, was trial counsel ineffective for not pressing the issue at trial?

¶31 The familiar standard of review for questions of effective assistance of counsel was set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To carry his burden to prove ineffective assistance, Toles must show the executive director's denial of funds was not reasonable considering all the circumstances, and this error prejudiced his defense. Id. at 687-88, 104 S.Ct. at 2064-65. Under the Strickland analysis we begin with the strong presumption that the decision not to present this witness was reasonable trial strategy. Id. at 689, 104 S.Ct. at 2065. If we find the executive director's decision was reasonable under the circumstances, our analysis ends there. If we find the decision was not reasonable under the circumstances, we must then determine whether there is a reasonable probability that but for the decision not to present Dr. Lipman, the result of trial would have been different. Id. at 694, 104 S.Ct. at 2068.

¶32 The contradiction between Dr. Lipman's report of debilitating intoxication and Tole's articulate, rational and thorough recounting of the facts in the video-taped interview taken just six hours after the murders, together with the very complete detail he recounted in subsequent interviews, is striking and irreconcilable. Toles' rational behavior was memorialized for the jury to see and hear. Dr. Lipman's report was based, in part, on subsequent interviews with Toles. The conclusions of the report are so thoroughly controverted and discredited by the video-taped interviews, that the jury could not believe both.

¶33 It appears the executive director decided the testimony of Dr. Lipman would not be helpful to the defense. This decision is rational and based on the facts and circumstances of this case. The decision not to call Dr. Lipman appears to be sound trial strategy, and the record contains nothing to overcome this presumption. Having found this decision reasonable, we need not analyze the question further.

¶34 In the third proposition of error Toles argues his trial counsel was ineffective for failing to challenge the executive director's decision more vigorously, and for not presenting any evidence of intoxication in the first stage of trial. No one who saw Toles' video-taped statements and heard Toles describe the events surrounding the murders and his reasons for killing would believe he was too intoxicated to form the intent to kill. No defense attorney has a duty to present a defense wholly discredited by the facts. Given these circumstances, we find trial counsel was not ineffective for failing to more vigorously challenge the executive director's decision, or for deciding not to present evidence on the question of intoxication.

SENTENCING ISSUES

A. Victim Impact Evidence

¶35 Norma Franceschi, wife and mother of the victims, and her daughter, Wendy, presented victim impact testimony in the second stage of trial. They responded to questions posed by the prosecutor to explain the financial, emotional, psychological and physical effects of the murders on them. They also told the jury about Juan and Lonnie as people. Toles raises three challenges in the seventh proposition of error to the admission of this evidence: 1) it was admitted without statutory authority; 2) it served as a unconstitutionally vague and overbroad "superaggravator;" and 3) it injected an arbitrary factor into the sentencing process, for the jury was not instructed as to its use.

¶36 We first address the general challenge that victim impact evidence operates as a "superaggravator" which is unconstitutionally vague and overbroad. We addressed this issue in Cargle v. State, 909 P.2d 806, 826 (1995), cert. denied, ___U.S.___, 117 S.Ct. 100, 136 L.Ed.2d 54 (1996). Victim impact evidence which is limited by the rules of evidence and the requirements of the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment does not become a vague and overbroad "superaggravator."

[947 P.2d 189]

¶37 Appellant also suggests the victim impact evidence in a capital case is not to be presented to the jury, but to the judge at sentencing. This interpretation is defeated by Cooper v. State, 894 P.2d 420, 422 (Okl.Cr.1995), which held 21 O.S. Supp.1992, § 701.10(C) "clearly" allows a second stage sentencing proceeding in a capital case at which victim impact evidence may be presented to the jury.

¶38 In a capital murder trial, sworn victim impact evidence is admissible in the punishment stage. 21 O.S. Supp.1992, § 701.10(C). This evidence shall be "about the victim and about the impact of the murder on the family of the victim." Id. The admissibility of this second-stage evidence is limited by the state and federal constitutions, and the Oklahoma Evidence Code. See Cargle, 909 P.2d at 828; Cooper, 894 P.2d at 422.³

¶39 In Cargle this Court invited the trial bench to consider whether a question-answer format for victim impact evidence would be desirable. We answer that question today and hold victim impact evidence in the second stage of a capital trial is limited by all of the appropriate rules of evidence and criminal trial procedure, and may be presented as a narrative or in a question-answer format. In either case the declarant shall testify and be subject to cross-examination.

¶40 The testimony of Norma and Wendy Franceschi was within the relevant statutory, evidentiary and constitutional boundaries, and was properly admitted. Appellant also argues the jury was not instructed as to how to use this evidence, and as a result was misled as to its role and responsibility in determining the appropriate sentence. The State does not respond to this argument.

¶41 In Cargle this Court set forth an instruction to be used prospectively when victim impact evidence is introduced in the second stage of a capital murder trial. That instruction stresses the fact victim impact evidence is "not the same as" an aggravating circumstance and that it does not relieve the State of the burden to prove at least one aggravating circumstance beyond a reasonable doubt before a death sentence may be recommended. 909 P.2d at 828-29. The Court held the guidelines to admission of victim impact evidence and this new instruction, together with the Court's power to modify or remand under mandatory sentence review, is sufficient to assure the jury's verdict of death is a "reasoned moral response ... based on reason and reliable evidence." Id. at 829 (citing Payne v. Tennessee, 501 U.S. 808, 836, 111 S.Ct. 2597, 2614, 115 L.Ed.2d 720 (1991)).

¶42 Having found the need to add this instruction, we cannot say the standard capital instructions alone were adequate to fully protect the appellant's due process rights to fair sentencing. Therefore, we examine the sufficiency of the evidence supporting each of the aggravating circumstances to determine whether misuse of the victim impact evidence could have had an effect on the sentence imposed by the jury.

B. Sufficiency of the Evidence

¶43 Four aggravating circumstances were found by the jury: 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 [947 P.2d 190] preventing a lawful arrest or prosecution; and 4) the existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. 21 O.S. 1991, § 701.12 (2), (4), (5), (7). In his ninth proposition of error Toles challenges the sufficiency of the evidence as to each of these, except great risk of death to more than one person. We address the sufficiency of the evidence as to each of the aggravators, for we must determine whether the evidence is sufficient absent the victim impact evidence.

¶44 The "great risk of death to more than one person" aggravator is proven beyond a reasonable doubt by the fact Toles shot and killed two people. The victim impact evidence could not have been misused here.

¶45 In order to prove the "heinous, atrocious or cruel" aggravator, the State had to prove beyond a reasonable doubt the death of the victim was preceded by torture or serious physical abuse. Smallwood v. State, 907 P.2d 217, 234 (Okl.Cr.1995), cert. denied, ___U.S.___, 117 S.Ct. 431, 136 L.Ed.2d 330 (1996); Ravilla v. State, 877 P.2d 1143, 1155 (Okl.Cr.1994), cert. denied, 513 U.S. 1096, 115 S.Ct. 764, 130 L.Ed.2d 661 (1995); Stouffer v. State, 742 P.2d 562, 563 (Okl.Cr.1987), cert. denied, 484 U.S. 1036, 108 S.Ct. 763, 98 L.Ed.2d 779 (1988). A slow, painful death satisfies this condition precedent. See McCracken v. State, 887 P.2d 323, 332 (Okl.Cr.1994), cert. denied, ___ U.S. ___, 116 S.Ct. 166, 133 L.Ed.2d 108 (1995); Romano v. State, 847 P.2d 368, 386-87 (Okl.Cr.) cert. granted in part by 510 U.S. 943, 114 S.Ct. 380, 126 L.Ed.2d 330 (1993); Woodruff v. State, 846 P.2d 1124, 1147 (Okl.Cr.), cert. denied, 510 U.S. 934, 114 S.Ct. 349, 126 L.Ed.2d 313 (1993); Duvall v. State, 825 P.2d 621, 634 (Ok.Cr.1991), cert. denied, 506 U.S. 878, 113 S.Ct. 224, 121 L.Ed.2d 161 (1992).

¶46 When Toles shot Juan Franceschi in the chest, the .22 caliber bullet pierced his lung and lodged in his back. Franceschi died as a result of two pints of blood leaking into his chest cavity and suffocating him. The medical examiner testified the wound did not cause immediate loss of consciousness, and the record shows Franceschi did not die until the paramedics arrived. This slow, lingering death is sufficient to prove serious physical abuse. See Romano, 847 P.2d at 386-87; Woodruff, 846 P.2d. at 1147; Duvall, 825 P.2d at 634.

¶47 Toles shot Lonnie Franceschi in the back of the head. After Toles ran out of the house, Lonnie managed to get to his room where his mother heard him crying and gasping for air. The medical examiner testified this injury would have been extremely painful. We do not know exactly when Lonnie lost consciousness, but we know he did not lose consciousness immediately. Again, the slow, painful sinking into unconsciousness is sufficient to prove serious physical abuse.

¶48 Toles told detectives during his video-taped statements that he shot Juan and Lonnie Franceschi because they could identify him. He said he did not shoot Norma Franceschi, because he thought she was too hysterical to identify him. The aggravating circumstance that the murders were committed to avoid or prevent lawful arrest or prosecution was thus proven by the defendant's own words.⁴

¶49 The final aggravating circumstance found by the jury is the existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. Evidence supporting this aggravator was admitted through three second-stage witnesses who testified to prior crimes Toles committed. Before we determine sufficiency of this evidence we must address the sixth proposition of error in which Toles argues this testimony was inadmissible for the State did not give the defense proper notice these witnesses would be called in the second-stage. In response the State argues there is no statutory requirement to list witnesses according to trial stage, and its verbal notice and disclosure of the file is sufficient notice.

¶50 The State filed notice of twenty-seven witnesses and a summary of their testimony. [947 P.2d 191] Norma Franceschi was the first listed witness. The summary of her testimony stated she "will also" testify in the second stage. Wendy Franceschi was the twenty-third witness, and her summary stated she would testify in the second stage. The remaining six witnesses were not designated as second-stage witnesses, but the summary of their testimony made clear they would testify to prior crimes committed by the defendant. At trial, defense counsel objected to their testimony on the grounds he lacked notice of their second-stage appearance. The prosecutor argued he had filed a list of witnesses and summary testimony; he had told defense counsel who the second-stage witnesses would be;⁵ and he showed his entire file to defense counsel. The trial court overruled the objection and five of the seven witnesses testified.

¶51 Notice by the prosecution to the defense of the evidence to be introduced in support of the aggravating circumstances is required by statute. 21 O.S. 1991, § 701.10(C); Walker v. State, 887 P.2d 301, 316-17 (Okl.Cr.1994), cert. denied ___U.S.___, 116 S.Ct. 166, 133 L.Ed.2d 108 (1995). The question before us now is whether the State's notice was sufficient.⁶ Pivotal to the resolution of this issue is the fact the summary of testimony provided by the State was accurate and complete. No witness testified to matters not revealed to the defense. Additionally, it would be plain to any attorney qualified to try a death case that the testimony of the last seven witnesses would only be admissible in the second stage of trial in support of the "continuing threat" aggravator. In truth, there was no surprise in this testimony. Given these facts, we do not find the omission of designating stages in which the testimony would be offered violated Toles' right to due process.

¶52 We now examine this evidence to determine whether the "continuing threat" aggravating circumstance was proven beyond a reasonable doubt. Evidence relevant to the proof of this aggravating circumstance includes prior convictions, prior unadjudicated crimes and other acts which show a pattern of conduct that would indicate a propensity toward violence that likely would continue in the future. Johnson v. State, 928 P.2d 309, 317-18 (Okl.Cr.1996); Perry v. State, 893 P.2d 521, 536 (Okl.Cr.1995); Malone v. State, 876 P.2d 707, 717 (Okl.Cr.1994). Three second-stage witnesses testified in support of this aggravating circumstance with evidence of unadjudicated crimes.

¶53 Newton Onco testified that on March 7, 1992 he accompanied a woman who was driving around Anadarko looking for her boyfriend. They pulled over when the driver behind them flashed his headlights. Toles came up to the passenger side of the car and hit Onco twice in the face, knocking out a tooth. He kicked Onco when Onco got out of the car. Onco and the woman sped away when Toles told someone in the car to get his gun. Onco did not know Toles and did not know why Toles attacked him.

¶54 Jimmy Dorsey testified to a separate incident which occurred on April 28, 1992. Dorsey and Charles Hugar left Dorsey's home to go to the store when Toles approached them and accused Hugar of trying to beat up his brother a few days earlier. Hugar denied knowing anything about this. Dorsey and Hugar went back inside. About twenty minutes later Toles came to the house with an unspecified number of friends and someone kicked in the front door, broke a window, threw the television antenna into the house and hit Dorsey with part of the window molding when he tried to leave his home. On cross-examination Dorsey admitted he did not know whether Toles himself did the damage to the home and threw the molding at him.

¶55 Teta Johnson and her daughter, Amy Gooday, testified Toles broke into their home during the night of September 13, 1991 and [947 P.2d 192] tried to steal their television. Ms. Gooday grabbed the cord as Toles crawled out of the window. Toles then dropped the television and fled.

¶56 Other relevant evidence to prove continuing threat comes from the murders themselves. Toles armed himself in preparation for the home burglary, and he shot Juan and Lonnie Franceschi in cold blood.

¶57 These incidents show a pattern of escalating violence. Two years before the murders Toles burglarized a home unarmed, and when he was confronted, he fled. The night of the murders Toles armed himself before going into the home, and when confronted, shot two men in cold blood. Four months before the murders Toles attacked a man with his bare hands and then called for his gun. Three months before the murders Toles initiated another unprovoked attack. This pattern establishes the probability Toles would commit acts of violence in the future which would constitute a continuing threat to society. Each of the aggravating circumstances found by the jury is supported by the evidence, and none of the aggravating circumstances were proven using victim impact evidence. Therefore, the absence of a limiting instruction does not require modification or reversal of sentence.

C. Constitutionality of the Aggravating Circumstances

¶58 Toles challenges each of the aggravating circumstances found by the jury in this case on the ground it is unconstitutionally vague and overbroad. As this challenge is raised in almost every capital appeal, the jurisprudence of this State is very well developed in this area.

¶59 The "great risk of death to more than one person" aggravator has been analyzed thoroughly and found to withstand constitutional challenge. See Malone 876 at 716 (Okl.Cr.1994); Trice v. State, 853 P.2d 203, 220 (Okl.Cr.), cert. denied, 510 U.S. 1025, 114 S.Ct. 638, 126 L.Ed.2d 597 (1993).

¶60 The "heinous, atrocious or cruel" aggravator likewise has been analyzed thoroughly and, when properly limited by the conditions precedent of torture or serious physical abuse, found to be consistent with the mandates of the Eighth and Fourteenth Amendments. See Valdez 900 P.2d at 381; Mayes, 887 P.2d at 1319; Bryson v. State, 876 P.2d 240, 259 (Okl.Cr.1994), cert. denied, 513 U.S. 1090, 115 S.Ct. 752, 130 L.Ed.2d 651 (1995); Fisher v. State, 845 P.2d 1272, 1274-75 (Okl.Cr.1992), cert. denied, 509 U.S. 911, 113 S.Ct. 3014, 125 L.Ed.2d 704 (1993).

¶61 The aggravating circumstance, "that the murder was committed to avoid lawful arrest or prosecution" likewise has been found to be neither vague nor overbroad. Castro v. State, 844 P.2d 159, 175 (Okl.Cr.1992), cert. denied, 510 U.S. 844, 114 S.Ct. 135, 126 L.Ed.2d 98 (1993); Fox v. State, 779 P.2d 562, 575 (Okl.Cr.1989), cert. denied, 494 U.S. 1060, 110 S.Ct. 1538, 108 L.Ed.2d 777 (1990); Munson v. State, 758 P.2d 324, 335 (Okl.Cr.1988), cert. denied, 488 U.S. 1019, 109 S.Ct. 820, 102 L.Ed.2d 809 (1989).

¶62 The "continuing threat" aggravator also is neither vague nor overbroad. Malone, 876 P.2d at 715-16; Snow v. State, 876 P.2d 291, 298 (Okl.Cr.1994), cert. denied, 513 U.S. 1179, 115 S.Ct. 1165, 130 L.Ed.2d 1120 (1995); Sellers v. State, 809 P.2d 676, 690 (Okl.Cr.), cert. denied, 502 U.S. 912, 112 S.Ct. 310, 116 L.Ed.2d 252 (1991).

D. Prosecutorial Misconduct

¶63 Toles raises five instances of alleged prosecutorial misconduct in his eighth proposition of error. The first instance is the prosecutor's statement that Amy Gooday, a second-stage witness, would testify that Toles fondled her breasts when he burglarized her home. She did not so testify. Appellant relies on Martin v. State, 487 P.2d 1179 (Okl.Cr.1971), overruled on other grounds by Harris v. State, 773 P.2d 1273, 1275 (Okl.Cr.1989), to argue it is improper for the prosecutor to state he will present evidence which he knows will not get to the jury. Martin is not on point. In that case this Court reversed because the prosecutor mentioned in opening argument, and presented to the jury, evidence which at the time was inadmissible--the defendant's refusal to take a blood alcohol test.

[947 P.2d 193]

¶64 It is error for the prosecutor to refer to evidence that is not presented at trial. However, this irrelevant, collateral issue which was disproved by Gooday's testimony could have had no effect on the jury and does not warrant relief.

¶65 In the next two instances of alleged misconduct Toles complains that the prosecutor commented on facts not in evidence, and appealed to societal alarm. We have reviewed the comments and find the prosecutor was well within the bounds of proper argument. The next two allegations were not raised at trial and are thus waived for all but plain error. Carter v. State, 879 P.2d 1234, 1253 (Okl.Cr.1994), cert. denied, 513 U.S. 1172, 115 S.Ct. 1149, 130 L.Ed.2d 1107 (1995). Appellant claims the prosecutor expressed his personal opinion of the death penalty and tried to keep the jury from considering mitigating evidence. The record does not support these arguments. The prosecutor did not give his personal opinion of the death penalty; he argued why the death penalty was appropriate in this case. As to the mitigation evidence, the prosecutor did not argue the jury should disregard it, he properly argued his position on its relative strength. There is no error here.

E. Jury Instructions

¶66 Toles raises four challenges to the jury instructions in his tenth proposition of error. Each of these challenges has been clearly resolved against him in an unbroken line of case law.

¶67 Toles first argues the trial court improperly instructed the jury on the procedure for weighing aggravating circumstances against mitigating evidence. The trial court properly instructed the jury using standard instruction OUJI-CR 440:

If you unanimously find that one or more of the aggravating circumstances existed beyond a reasonable doubt, unless you also unanimously find that any such aggravating circumstance or circumstances outweigh the finding of one or more mitigating circumstances, the death penalty shall not be imposed.

¶68 There is no error here. See Neill v. State, 896 P.2d 537, 557 (Okl.Cr.1994), cert. denied, ___ U.S. ___, 116 S.Ct. 791, 133 L.Ed.2d 740 (1996); Rogers, 890 P.2d at 977. We consistently hold the trial court is under no obligation to instruct the jury it has the option to return a life sentence regardless of the weight of aggravating circumstances. We find no reason to revisit this issue. See Valdez, 900 P.2d at 385; LaFevers v. State, 897 P.2d 292, 308 (Okl.Cr.1995), cert. denied, ___ U.S. ___, 116 S.Ct. 820, 133 L.Ed.2d 763 (1996); Neill, 896 P.2d at 557.

¶69 Toles next claims the jury should have been instructed its findings of mitigating circumstances did not have to be unanimous, and the instructions as a whole imply unanimity is required. We have considered the standard jury instructions given in this case and found no additional instruction on this issue is necessary. See LaFevers, 897 P.2d at 309-10; Scott v. State, 891 P.2d 1283, 1297 (Okl.Cr.1995), cert. denied, ___ U.S. ___, 116 S.Ct. 784, 133 L.Ed.2d 735 (1996).

¶70 In his final challenge to the jury instructions Toles argues the standard instructions allowed the jury to ignore mitigating evidence and diminished the effect of mitigating evidence in this case. The language of the standard instructions has been considered thoroughly by this Court, and we find it properly instructs the jury on the use of mitigating evidence. See Rogers, 890 P.2d at 978; Harjo , 882 P.2d at 1079.

F. Accumulated Error

¶71 In his final proposition of error the Toles argues the accumulation of error in his case warrants reversal. Error in this case consists of the failure to excuse venireman Pyles for cause, and the absence of an instruction to the jury on the use of victim impact evidence. We found the defense removal of venireman Pyles by peremptory challenge cured the first error, and the second error was harmless, for the remaining evidence proved each of the four aggravating circumstances beyond a reasonable doubt. When considered in aggregate, these errors do not gain significance.

[947 P.2d 194]

MANDATORY SENTENCE REVIEW

¶72 This Court must determine in every capital case 1) whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor; and 2) whether the evidence supports the jury's findings of aggravating circumstances as enumerated in 21 O.S.1991, § 701.12. 21 O.S.1991, § 701.13(C).

¶73 We have determined in the course of appellate review that each of the four aggravating circumstances found in this case was supported by the evidence. Toles admitted he shot the victims because he thought they could identify him. He killed more than one person. The slow, lingering deaths of both Juan and Lonnie Franceschi satisfy the finding their deaths were preceded by serious physical abuse. Toles' evolution from committing an unarmed burglary to committing an armed burglary, his unprovoked bare-hand attack of Newton Onco, his unprovoked confrontation with Charles Hugar, and his shooting of Juan and Lonnie Franceschi in cold blood during a burglary create a pattern of behavior which proves the existence of a probability that he would commit criminal acts of violence that would constitute a continuing threat to society.

¶74 Because victim impact evidence was presented without a limiting instruction, we must determine whether this evidence created an influence of passion, prejudice or any other factor in the sentencing decision.

¶75 Each of the four aggravating circumstances found in this case was supported by strong evidence. The victim impact evidence addressed only those issues determined to be appropriate by the legislature: the financial, psychological, physical and emotional impact of the murders on Norma and Wendy Franceschi. The victim impact evidence was properly limited and did not invite vengeance or rage, passion or prejudice. Given the strength of the evidence supporting four aggravating circumstances, the fact the victim impact evidence was not relevant to proving any of them, and the proper content of the victim impact evidence, we find beyond a reasonable doubt the victim impact evidence did not influence the death sentences imposed in this case. The sentences of death are supported by the facts and were not imposed under the influence of passion, prejudice or any other arbitrary factor.

¶76 Judgment and Sentence is affirmed for the crimes of Murder in the First Degree (two counts), Conspiracy to Commit Robbery, and Possession of a Weapon After Former Conviction of a Felony.

AN APPEAL FROM THE DISTRICT COURT OF COMANCHE COUNTY
BEFORE THE HONORABLE MARK R. SMITH, DISTRICT JUDGE

Bryan Anthony Toles, Appellant, was tried by jury for the crimes of First Degree Murder (two counts), Conspiracy to Commit Robbery After Former Conviction of a Felony, and Possession of a Weapon After Former Conviction of a Felony in Case No. CRF-93-241 in the District Court of Comanche County before the Honorable Mark R. Smith, District Judge. Appellant was sentenced to death on each of the murder counts, twenty years imprisonment for the conspiracy to commit robbery, and ten years imprisonment for the possession of a weapon after former conviction of a felony. Appellant has perfected this appeal. Judgment and Sentence is AFFIRMED.

OPINION BY J.LANE:
CHAPEL, .P.J.: CONCURS
STRUHBAR,J.: CONCURS
LUMPKIN, J.: CONCURS IN RESULTS
JOHNSON, J.: CONCURS

*****

FOOTNOTES

¹378 U.S. 368, 84 S.Ct. 1174, 12 L.Ed.2d 908 (1964).

²The record indicates an Information had been filed before Toles was picked up, so the Sixth Amendment right to counsel had also attached.

³ I have been concerned for some time that the admission of victim impact evidence will allow reversible error to creep into trial. See Charm v. State, 924 P.2d 754 (Okl.Cr.1996), J. Lane dissenting); Cargle v. State, 909 P.2d 806 (Okl.Cr.1996)(J.Lane concurring specially); Ledbetter v. State, 933 P.2d 880, (Okl.Cr.1997)(J.Lane concurring in result); Conover v. State, 933 P.2d 904, (Okl.Cr.1997)(J.Lane concurring in results). As I stated in my separate opinions in Ledbetter and Conover, I believe the Court has misinterpreted the statutory authority and has failed to distinguish properly the different form, content and use of victim impact evidence authorized by Title 21 O.S.Supp.1992, § 701, and victim impact statements authorized by Title 22 O.S.Supp.1992, §§ 984, 984.1 and 991a. I accept the fact the Court, for the time being, has made its pronouncement on this issue. I do not rely on Ledbetter or Conover to decide this appeal, for neither one of these cases is on point. Those cases attempt to justify the admission of victim impact statements to the jury. In this case the district attorney followed the explicit mandates of Section 701.10 and properly introduced victim impact evidence to the jury in the second stage of trial.

⁴ The requirement of the underlying felony is satisfied by the burglary of the home.

⁵ Defense counsel denied being told this information.

⁶ The state constitutional requirement that in a capital case the accused shall be furnished at least two days before trial with a list of witnesses that will be called in chief does not apply to second-stage witnesses Ellis v. State, 867 P.2d 1289 (Okl.Cr.1992), cert. denied, 513 U.S. 863, 115 S.Ct. 178, 130 L.Ed.2d 113 (1994); Okla. Const. art. II, §. 20.

*****

LUMPKIN, JUDGE: CONCUR IN RESULTS

¶1 Because I find the judgment and sentence in this case should be affirmed, I agree with the outcome here. Because I do not find part of the analysis, including the victim impact evidence discussion, is at all correct, I concur only in result. In addition, while I compliment my colleague for the work put into his analysis of the statutory framework allowing victim impact evidence set out in his Concur In Results in Ledbetter v. State, 933 P.2d 880 (Okl.Cr.1997), and Conover v. State, 933 P.2d 904 (Okl.Cr.1997), I take this opportunity to set out a more complete review of the statutes authorizing victim impact evidence.

I.

¶2 Before we deal with the victim impact evidence, there is one point which must be addressed, because it is simply wrong. The opinion (page 13) states "[v]ictim impact evidence which is limited by the rules of evidence and the requirements of the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment does not become a vague and overbroad 'superaggravator.'" (emphasis added).

¶3 The whole point of Payne was that victim impact evidence was not governed by the Eighth Amendment. See Cargle v. State, 909 P.2d 806, 826 (Okl.Cr.1995), cert. denied, ____ U.S. ____, 117 S.Ct. 100, 136 L.Ed.2d 54 (199 ) ("We must be cognizant of the fact that, although it does not violate the Eighth Amendment, evidence may be introduced 'that is so unduly prejudicial that it renders [947 P.2d 195] the trial fundamentally unfair,' thus implicating the Due Process Clause of the Fourteenth Amendment. Payne v. Tennessee, 501 U.S. 808, 825, 111 S.Ct. 2597, 2608, 115 L.Ed.2d 720 (1991)."). Therefore, any language here which deals with the Eighth Amendment is incorrect.

II.

¶4 Concerning the use of victim impact evidence, the flaw in my colleague's discussions in Ledbetter, Conover, and now footnote 3 of this opinion lies in his inability to reconcile the semantics of 21 O.S.Supp.1992, § 701.10(C), which specifically reads that " the state may introduce evidence about the victim and about the impact of the murder on the family of the victim," and the provisions of 22 O.S.Supp.1993, §§ 984-984.2, which utilizes "victim impact statement" versus "evidence". Regrettably, in the capital murder statute itself, the Legislature gave the courts no guidance as to what the scope of that evidence is.

¶5 Instead of turning to the provisions of 22 O.S.Supp.1993, § 984(1) to determine the scope and manner of presentation of victim impact evidence, my colleague previously proposed to allow only evidence about the victim and the impact of the murder on the family of the victim at the sentencing stage of the trial itself, then allow introduction of a statement (analogous to the defendant's right of allocution) at the actual, formal sentencing proceeding. There are two main flaws in this analysis.

A.

¶6 First, I see nothing in the Evidence Code prohibiting the introduction of a statement, any more than I see a requirement that all evidence be introduced in a question-and-answer format. The Court's opinion in this case has recognized and adopted that position. The validity of that determination is more than merely a pronouncement by this Court. If one subscribes to the generally accepted precept of what "evidence" is -- that which tends to show that a fact of consequence to the resolution of a controversy either exists or does not exist -- it seems obvious that, from a strictly evidentiary point, a statement which otherwise meets constitutional requirements is admissible, subject to the demands of relevancy. See 12 O.S.1991, §§ 2401-2403.¹ This would be the case whether the evidence is presented in a question-and-answer format (certainly allowable, see Cargle, 909 at 828., or in a statement form. Id. ²

B.

¶7 Nor do I agree with the proposed rationale that a statement would be allowed only in the [947 P.2d 196] formal sentencing stage, after the factfinder has rendered its punishment. A cursory look at what transpires during formal sentencing shows the absurdity of this theory.

(1) If the jury did not recommend the death penalty, the defendant has been "acquitted" of it, and all the written statements in the world will not change the result in the formal sentencing hearing.

(2) If the jury did recommend the death penalty in second stage, the introduction of a statement by victim's survivors would have no influence whatsoever during formal sentencing, as the death penalty has already been given, and it would take a very brave judge indeed to countermand the jury's recommendation.³

In either case, the introduction of the statement in the formal sentencing hearing serves no purpose, and the Legislature has committed a vain act. The substantive effect of the proposed analysis is the Legislature intended to merely toss the victims of crime a legal placebo to placate them for a political purpose. I cannot ascribe to that cynical of a view regarding the legislative process.

¶8 Regardless of the personal feelings of the judges of this Court, the Legislature has indicated that victim impact evidence has a proper place in a capital murder trial. This Court's job is to review that evidence, along [947 P.2d 197] with all other evidence presented, to determine whether its introduction presents error -- and if so, whether that error rises to the level of a Due Process violation requiring reversal. To do more is to legislate from the bench, an action we all should agree is inappropriate and not a function of the judicial branch of government.

III.

¶9 One other thing warrants comment. I am puzzled and disturbed by a statement in the opinion (page 15, the last paragraph before subsection "B") where it notes a particular instruction was inadequate to fully protect the appellant's due process rights to a fair sentencing. The opinion then says: "Therefore, we examine the sufficiency of the evidence supporting each of the aggravating circumstances to determine whether misuse of the victim impact evidence could have had an effect on the sentence imposed by the jury." If I read this paragraph correctly, the opinion is stating an error in instructions occurred, then it conducts a harmless error analysis using sufficiency of the evidence as the method of analyzing the error. Those are two different questions. It appears the opinion is omitting the evidence caused by the error, then re-weighing the evidence to determine whether it is sufficient to warrant the death penalty, instead of determining whether the evidence was harmless. It appears this Court is mixing apples (harmless error analysis) and oranges (sufficiency of the evidence).

¶10 Additionally, the opinion states it intends to "determine whether the evidence is sufficient absent the victim impact evidence." (Page 16). However, the opinion also states "the testimony of Norma and Wendy Franceschi was within the relevant statutory, evidentiary and constitutional boundaries, and was properly admitted." Page 14 - 15. These are inconsistent comments, for they make the victim impact evidence sound suspiciously like a "superaggravator,", even though the opinion says it is not, which the opinion then omits and "reweighs" to determine if the "remaining" aggravators outweigh mitigating evidence presented.⁴ This cannot be the intent of the opinion, for it rejects the very premise stated earlier, based on an earlier rejection in Cargle. In addition, this Court did not find an error in instructing the jury in Cargle, but promulgated an instruction to be used in future cases. In fact, there was not an instruction on victim impact evidence in Cargle and this Court found any error in the scope of the evidence presented was harmless beyond a reasonable doubt. It was the amount and type of victim impact evidence presented in Cargle which was error, not the lack of an instruction. In this case, there was no error in the type and amount of evidence presented. The sufficiency of the evidence analysis in this opinion is mislabled and should be considered as a part of our mandatory sentence review.

¶11 In regard to Proposition V, appellant alleges the Court erred in failing to remove venireman Pyles for cause. While it would have been extremely difficult for Mrs. Pyles to have fulfilled her role as a juror, the record is void of any evidence showing her to be "not competent to serve as a juror". Page 6. However, I agree with the Court's decision there was no error.

¶12 In addressing the issue of ineffective assistance of counsel in Proposition IV, the Court relies on Strickland v. Washington, [947 P.2d 198] 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Page 11. Based on the legal evolution of the Strickland standard, the correct standard of review is whether counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable, not merely if the result of trial would have been different. See Lockhart v. Fretwell, 506 U.S. 364, 369, 113 S.Ct. 838, 842-43, 122 L.Ed.2d 180, 189 (1993). Applying that correct standard, I agree with the Court that counsel was not ineffective.

¶13 For all these reasons, I concur in results.

FOOTNOTES

¹A statement under these conditions meets constitutional requirements. The witness who reads the statement is first put under oath, and is subject to cross-examination as to the validity of the comments contained in the statement.

I am not persuaded by any argument that a statement containing comments by more than one victim survivor, presented by only one victim survivor, constitutes a hearsay problem simply because the comment is advanced in a statement instead of a question-and-answer format. The same problem of hearsay would be contained in a question-and-answer format as it is in a statement format. A defendant who objected to hearsay statements could find the strategy backfire, as the prosecutor would argue that to circumvent the hearsay problem, he/she should be allowed to call each and every victim survivor to give his/her own evidence as to the impact of the victim's death on the witness. Surely that is not the purpose of allowing victim impact evidence.

²I agree with the opinion (page 14, n. 3) that the improper admission of victim impact evidence could allow reversible error to "creep into trial." Granted, the introduction of victim impact evidence presents a risk of error, because it is presented at a very critical phase in a capital murder case. However, that is no reason in and of itself to prohibit the use of such evidence. Indeed, the introduction of any improper evidence, whether victim impact evidence or not, into a critical phase of a trial could allow reversible error not only to "creep into trial," but practically gallop in. Following this previously proposed reasoning to its illogical conclusion, this Court should prohibit the introduction of any evidence at a critical phase of a trial to avoid that danger. Obviously, that is untenable, as it would prohibit not only victim impact evidence, but any evidence related to an aggravating circumstance which the prosecution is seeking to prove. Rather, the solution is to treat the evidence in a fashion similar to the way in which a court treats introduction of aggravating circumstances: very carefully, with appropriate notice requirements, instructions and -- in the case of victim impact evidence -- an in-camera hearing before the evidence is presented. That was addressed in Cargle, 909 P.2d at 828-29.

³And that is assuming the judge could legally do so. Section 926 of Title 22 reads:

In all cases of a verdict of conviction for any offense against any of the laws of the State of Oklahoma, the jury may, and shall upon the request of the defendant, assess and declare the punishment in their verdict within the limitations fixed by law, and the court shall render a judgment according to such verdict, except as hereinafter provided.

(emphasis added). By the plain language of the statute, once the jury has assessed the death penalty for first degree murder (an offense against a law of this state), the court shall render the judgment according to the verdict (the exceptions, found at Sections 927 and 928, do not apply here).

This interpretation is re-enforced by language in other statutes as well. Section 991a of Title 22 reads:

A. Except as otherwise provided [in an act not at issue here], when a defendant is convicted of a crime and no death sentence is imposed, the court shall either:

1. Suspend the execution of sentence in whole or in part, with or without probation....

D. When sentencing a person convicted of a crime, the judge shall consider any victim impact statements if submitted to the jury, or the judge in the event a jury is waived.. . . . (emphasis added)

This makes it clear that suspension of a sentence is not applicable or permissible when the sentence of death is imposed; therefore, a judge would be without authority to modify a death sentence (although he could certainly state any recommendations in the trial judge's report, see 21 O.S.1991, § 701.13(A); 22 O.S.Supp.1995, Ch. 18, App. Rules of the Court of Criminal Appeals, Form 13.12, at Section (E)(12)). Admittedly, it appears the statute which took effect on July 1, 1996, changed the language in subsection (D). That section reads: "When sentencing a person convicted of a crime, the court shall consider any victim impact statement if submitted to the court." However, a review of the Session Laws convinces me this was a scrivener's error. The Session Laws clearly show the language quoted in the newest version of the statute is in reality language which existed in the statute before the Legislature widened the scope in which victim impact evidence could be made. See Laws 1994, c. 1, § 1 ("When sentencing a person convicted of a crime, the court judge shall consider any victim impact statement statements if submitted to the court jury, or the judge in the event a jury is waived."). The title to the bill in this chapter clearly shows the Legislature's intent to modify this section (". . . ; modifying the submission of certain impact statements; . . ."). This new language remained unchanged in further modifications to the statute in the 44th Session of the Legislature. See Laws 1994, c. 308, § 1; Laws 1994, c. 188, § 1. At first glance, the changes noted above would appear to have reverted back to the original language of the statute. See Laws 1994, c. 40, § 1. However, there are no additions or deletions to the language, the widely accepted method by which the Legislature in the Session Laws shows its intent to change existing law. Furthermore, a reading of the Title to this amendment clearly shows the Legislature was focused on the modifications relating to the taking of DNA samples from a person convicted of an offense. Indeed, there is no mention in the title evincing an intent by the Legislature to revert to the old language it had amended in the very same session. From this, I can gather no conclusion other than the reversion to the old language dealing solely with the court, and not the jury, is simply a scrivener's error.

The point is this: the Legislature, by its changes (or non-changes) to portions of the criminal procedure statutes relating to the presentation of victim impact evidence clearly shows (at least in capital cases, the only issue which is before us) a legislative intent to allow presentation of that evidence to the jury, and not simply the judge at a hearing where presentation of the evidence would be rendered moot.

⁴I do not by these comments intend to convey the impression that reweighing is not proper when an aggravating circumstance is found to be infirm. In a "weighing" state (such as Oklahoma), after a jury has found a defendant guilty of capital murder and found the existence of at least one statutory aggravating factor, it must weigh the aggravating factor or factors against the mitigating evidence to determine whether the death penalty is appropriate. In a weighing State, where the process is infected with an invalid aggravating factor which might require invalidation of the death sentence, "a state appellate court [can] reweigh the aggravating and mitigating circumstances or undertake harmless-error analysis." Stringer v. Black, 503 U.S. 222, 230, 112 S.Ct. 1130, 1136, 117 L.Ed.2d 367 (1992) (emphasis added) (discussing Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990)). My point is that it is a grave error to treat victim impact evidence like another aggravator, which the Court can omit and "reweigh" the "remaining" aggravators against the mitigating evidence. Rather, the proper course is to determine, in the mandatory sentence review, whether effect of the improper evidence (or here, improperly used evidence) was harmless.

269 F.3d 1167

Bryan Anthony Toles, Petitioner-appellant,
v.
Gary Gibson, Warden, Oklahoma State Penitentiary, Respondent-appellee

UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

October 26, 2001

Appeal from United States District Court for the Western District of Oklahoma

(D.C. No. CIV-98-1378-C)

Before EBEL, HENRY, and BRISCOE, Circuit Judges.

BRISCOE, Circuit Judge

Petitioner Bryan Anthony Toles, an Oklahoma state prisoner convicted of four felony counts, including two counts of first degree malice aforethought murder for which he received two death sentences, appeals the district court's denial of his 28 U.S.C. 2254 petition for writ of habeas corpus. We exercise jurisdiction pursuant to 28 U.S.C. 1291 and affirm.

The facts of Toles' crimes were summarized by the Oklahoma Court of Criminal Appeals (OCCA) in disposing of Toles' direct appeal:

The events which culminated in the murder of Juan Franceschi and his fifteen year old son, Lonnie, began shortly after midnight on July 16, 1993. Bryan Toles, David Flowers and Casey Young walked past the Franceschi home in Lawton and decided to steal a car. The men were on their way from the Honeymooners Bar to the home of their friend, Herbie Foster, and they were tired of walking. None of them knew how to hot-wire the red Mustang 5.0 in the Franceschi's driveway, so they had to get the keys.

Toles rang the doorbell while Young and Flowers hid around the corner and put bandannas over their faces outlaw-style. Young had already loaded a .22 revolver and given it to Toles.

Toles pushed his way into the home when Lonnie opened the door. He pointed the pistol at Lonnie and told him to get down and shut up. Young and Flowers went down the hall toward the bedrooms. Norma Franceschi heard the commotion and met them in the hall. She screamed for her husband and continued toward the front door. Juan Franceschi struggled briefly with Young and Flowers in the hall and joined his wife. Toles, who had been kicking Lonnie, shot Juan Franceschi in the arm.

Toles followed Mr. and Mrs. Franceschi as they retreated toward the bedroom. He aimed at Mr. Franceschi's head, but before he could fire, Mrs. Franceschi grabbed his arm. Thinking that Mr. Franceschi could identify him, and that he "might as well go ahead and kill him," Toles aimed at Franceschi's chest and shot. Even though he was shot, Franceschi fought with Toles in the hallway. Toles' pants became soaked with Franceschi's blood during the fight. Mrs. Franceschi escaped to their grown daughter's bedroom, hiding first in the closet, and then in the drawer of a waterbed. She heard someone come into the room and leave.

Meanwhile Lonnie Franceschi was still kneeling on the floor near the front door with his hands behind his back. Toles saw Lonnie on his way out of the house and thought, "damn, there's still him left." Realizing Lonnie could identify him, Toles turned, extended his arm so the barrel of the pistol was about six inches from the back of Lonnie's head, and fired.

After Toles, Young and Flowers left, Lonnie went to his bedroom and got in bed. His mother heard him crying and gasping for air. When she tried to call 911 from the back bedroom, she discovered the phone was dead and ran to a neighbor's home to call. Paramedics arrived shortly and placed Lonnie on life support. Juan Franceschi died while the paramedics worked on him. Later that day Lonnie was declared brain dead, removed from life support and allowed to die.

After they left the Franceschi home, Toles, Young and Flowers walked two blocks to the home of a friend who gave them a ride to Herbie Foster's. Toles gave his bloody clothes to a runaway girl who was staying there and told her to burn them. He called a family friend and told her and her boyfriend that he shot two people. He then spent the night at the home of another friend. He was arrested later that afternoon while he was talking to his mother on a pay phone at the corner of 17th Street and Gore in Lawton.

Toles v. State, 947 P.2d 180, 184 (Okla. Crim. App. 1997) (Toles I). Following his arrest, Toles agreed to talk to the police. During his first interview, he admitted entering the Franceschi home with David Flowers and Casey Young, but insisted that Young was actually responsible for the murders. During three subsequent interviews, all of which were videotaped, Toles admitted carrying the gun into the Franceschi home and shooting Juan and Lonnie Franceschi.

Toles was charged in the District Court of Comanche County, Oklahoma, with five felony counts. Counts I and II charged him with first degree malice aforethought murder in the deaths of Juan and Lonnie Franceschi. Count V charged Toles with conspiracy to commit robbery in the first degree after former conviction of a felony. Count VI charged Toles with attempted robbery in the first degree after former conviction of a felony. Count VII charged Toles with feloniously carrying a firearm. The state also filed a bill of particulars alleging the existence of four aggravating circumstances: (1) that Toles knowingly created a great risk of death to more than one person; (2) the murders were especially heinous, atrocious or cruel; (3) the murders were committed for the purpose of avoiding or preventing a lawful arrest or prosecution; and (4) the existence of a probability that Toles would commit criminal acts of violence that would constitute a continuing threat to society.

The case proceeded to trial in September 1994. At the conclusion of the first-stage proceedings, the jury found Toles guilty of the two murder counts, conspiracy to commit robbery in the first degree after former conviction of a felony, and feloniously carrying a firearm. The jury found Toles not guilty of attempted robbery in the first degree after former conviction of a felony.1 At the conclusion of the second-stage proceedings, the jury found the existence of all four of the aggravating circumstances alleged by the prosecution. Based upon the existence of those factors, the jury recommended sentences of death on each of the two murder counts, twenty years on the conspiracy charge, and ten years on the firearm charge. The trial court imposed the recommended sentences on October 27, 1994.

The OCCA affirmed Toles' convictions and sentences on direct appeal. Toles I, 947 P.2d at 184, 194. Toles filed a petition for rehearing, which the OCCA denied. Toles subsequently filed a petition for writ of certiorari, which was denied by the United States Supreme Court. Toles v. Oklahoma, 524 U.S. 958 (1998). Toles filed an application for post-conviction relief with the OCCA in September 1997. That application was denied by the OCCA, and there is no indication in the record that Toles attempted to file a petition for writ of certiorari with the United States Supreme Court.

On October 2, 1998, Toles sought post-conviction relief in federal district court by filing a pro se motion for appointment of counsel and a request to proceed in forma pauperis. Toles' motions were granted by the district court and, on April 15, 1999, Toles' appointed counsel filed a petition for writ of habeas corpus asserting eight grounds for relief. On August 29, 2000, the district court denied Toles' petition. The district court granted Toles a certificate of appealability (COA) with respect to four of the eight issues raised in his habeas petition. Toles, however, has chosen to pursue only three of those four issues on appeal.

Because Toles' federal habeas petition was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), it is governed by the provisions of the AEDPA. Wallace v. Ward, 191 F.3d 1235, 1240 (10th Cir. 1999), cert. denied, 530 U.S. 1216 (2000). Under the AEDPA, the appropriate standard of review for a particular claim hinges on the treatment of that claim by the state courts. If a claim was not decided on the merits by the state courts (and is not otherwise procedurally barred), we may exercise our independent judgment in deciding the claim. See LaFevers v. Gibson, 182 F.3d 705, 711 (10th Cir. 1999). In doing so, we review the federal district court's conclusions of law de novo and its findings of fact, if any, for clear error. Id. If a claim was adjudicated on its merits by the state courts, the petitioner will be entitled to federal habeas relief only if he can establish that the state court decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Id. 2254(d)(2).

Denial of funding for neuropharmacologist

Toles, citing Ake v. Oklahoma, 470 U.S. 68 (1985), contends his due process rights were violated because he was denied funding to present expert testimony at trial in support of his voluntary intoxication defense.

During preparation for trial, Toles' defense counsel retained Dr. Jonathan Lipman, a neuropharmacologist based in Illinois, to assist in the preparation of a voluntary intoxication defense. Lipman interviewed Toles, examined the available evidence (e.g., the videotaped statements Toles gave to the police, interviews with other witnesses), and prepared a written report that he provided to defense counsel. In his report, Lipman stated that, during his interview with Toles, he "learned that [Toles] consumed - smoked - eight 'rocks' of crack cocaine in the four hours preceding the killing[s]." Lipman Memo at 1. The report further opined that Toles "had a blood alcohol concentration of about 590 mg/dl at the time of the crime." Id. The report concluded by stating:

My opinion of the neuropharmacological influences acting upon [Bryan] Toles during the conduct that led to the killings of Lonnie and Juan Franceschi is that he was so massively intoxicated under the combined influence of cocaine and alcohol that his ability to think rationally and to conform his behavior to the requirements of the law was lost. The psychotoxic condition in which he found himself was validly describable as an Organic Brain Disorder.

Id. at 3.

Prior to trial, defense counsel submitted an intra-agency request for additional funding to allow Lipman to travel from Illinois to Oklahoma to testify. The request was denied by Robert Ganstine, executive director of the Oklahoma Indigent Defense System (OIDS). During the first stage of trial, defense counsel made the following offer of proof regarding Lipman's testimony if the funding request had been granted:

At this time, Judge, I want to make an offer of proof as to Dr. Lipman.

If Dr. Lipman could be here I believe his testimony would be substantially show that Bryan Toles, based upon his investigation, the in talking with various witnesses that were with Bryan the night of the incident, his testimony would be substantially that Bryan that it was his opinion professional opinion that he was under the influence of alcohol and that he had a BA of I think .53.

I will also state that the reason he is not being called is that the funding for his travel to and from Illinois has been withdrawn by my Executive Director, Robert Ganstine, and that is the reason the witness has not been called.

Tr. at 794. After making the statement, defense counsel rested without presenting any evidence on Toles' behalf.

On direct appeal, Toles asserted that the denial of funding for Lipman's travel and trial testimony violated his Fourteenth Amendment due process rights. The OCCA rejected this argument:

Illinois pharmacologist, Dr. Jonathan Lipman, was retained by the defense team to investigate and develop the defense of voluntary intoxication. Dr. Lipman interviewed Toles, reviewed his video-taped statements, and reviewed reports prepared by the police and a forensic social worker. The defense filed Dr. Lipman's report with the trial court. Dr. Lipman reported Toles had smoked eight rocks of crack cocaine prior to the murders, and had drunk beer in sufficient quantities to achieve a blood alcohol level of .596. He concluded Toles was "freefalling . . . through a maelstrom of brain chemistry" and was unable to make rational decisions at the time of the killings. In his offer of proof at trial, counsel stated Dr. Lipman would testify to Toles' blood alcohol level of .596.

Dr. Lipman's conclusion that Toles was unable to make rational decisions is controverted sharply by Toles' own statements taken six hours after the murders in which he revealed minute details of the invasion of the Franceschi home. The only details he did not reveal were those indicating his very direct involvement. The next day, after Toles spoke with his mother, Toles again clearly and rationally described the incident in minute detail, including his own thoughts about getting rid of the male witnesses, and his belief "the woman" was "too hysterical to worry about." Two days after the murders Toles stated he had not used any cocaine or "chemical" other than alcohol.

Toles was not denied access to an expert witness in the classic Ake sense. See Ake v. Oklahoma, [470 U.S. 68 (1985)]. Toles obtained an expert who rendered an opinion. While it is true the executive director denied funding to secure the expert's presence at trial, no allegation has been made at trial or on appeal that but for inadequate financial resources this witness would have testified at trial.

The executive director of the Oklahoma Indigent Defense System has the statutory duty to guarantee effective representation for the indigent criminal defendant, and to serve in an advisory capacity to attorneys employed by the Oklahoma Indigent Defense System. 22 O.S.1991, 1355.4(C)(6), (17). By statute the executive director is a member of the defense team, and the Court recognizes the fact that members of a defense team do not always agree on strategy. The executive director has the final say regarding issues which ultimately are decided fiscally, for he has the power to approve or deny requests for the expenditure of funds. See 22 O.S.1991, 1355.4(F).

The record indicates the executive director's decision not to secure this witness for trial was based on trial strategy. The question therefore becomes one of effective assistance of counsel and is two-fold. Did the executive director deny Toles effective assistance of counsel by deciding Dr. Lipman would not testify at trial, and if so, was trial counsel ineffective for not pressing the issue at trial?

The familiar standard of review for questions of effective assistance of counsel was set forth in Strickland v. Washington, [466 U.S. 668 (1984)]. To carry his burden to prove ineffective assistance, Toles must show the executive director's denial of funds was not reasonable considering all the circumstances, and this error prejudiced his defense. Id. [at 687-88, 104 S. Ct. 2052]. Under the Strickland analysis we begin with the strong presumption that the decision not to present this witness was reasonable trial strategy. Id. [at 689, 104 S. Ct. 2052]. If we find the executive director's decision was reasonable under the circumstances, our analysis ends there. If we find the decision was not reasonable under the circumstances, we must then determine whether there is a reasonable probability that but for the decision not to present Dr. Lipman, the result of trial would have been different. Id. [at 694, 104 S. Ct. 2052].

The contradiction between Dr. Lipman's report of debilitating intoxication and [Toles'] articulate, rational and thorough recounting of the facts in the video-taped interview taken just six hours after the murders, together with the very complete detail he recounted in subsequent interviews, is striking and irreconcilable. Toles' rational behavior was memorialized for the jury to see and hear. Dr. Lipman's report was based, in part, on subsequent interviews with Toles. The conclusions of the report are so thoroughly controverted and discredited by the video-taped interviews, that the jury could not believe both.

It appears the executive director decided the testimony of Dr. Lipman would not be helpful to the defense. This decision is rational and based on the facts and circumstances of this case. The decision not to call Dr. Lipman appears to be sound trial strategy, and the record contains nothing to overcome this presumption. Having found this decision reasonable, we need not analyze the question further.

Toles I, 947 P.2d at 187-88.

The threshold question we must address is what standard of review to apply in deciding Toles' claim. When Toles first raised the denial of funding issue on direct appeal, he requested an evidentiary hearing "to determine the circumstances for the denial of the requested funds." Toles' Direct Appeal Br. at i. Although the OCCA rejected Toles' request for an evidentiary hearing, it nevertheless made a critical, and what now appears to be a clearly erroneous, finding of fact, i.e., that Ganstine denied Toles' funding request for strategic reasons. See 28 U.S.C. 2254(d)(2). Based upon that finding of fact, the OCCA concluded that Ake was inapplicable, and instead considered whether Ganstine's decision was reasonable under Strickland v. Washington, 466 U.S. 668 (1984). When the Ake issue was reasserted in Toles' application for post-conviction relief with the OCCA, the court held the issue was barred by res judicata.

In light of the evidence submitted by Toles in connection with his application for post-conviction relief, it is clear that Ganstine's decision was not a strategic one. According to the evidence, Ganstine's "role was to decide if the agency [OIDS] had the funds to cover the costs of the tools attorneys needed to do their jobs," and he "was never in a participatory or advisory role." Affidavit of Terri L. Marroquin at 8 (see Appendix to Toles' Application for Post-Conviction Relief). Thus, Ganstine was "never told the specifics of [a] case or the name of the client" when he was deciding whether to allocate funds. Id. at 17. Indeed, the record contains an affidavit from Ganstine, submitted in support of Toles' application for post-conviction relief, in which he states that "[i]n denying the request [for funding] in Mr. Toles' case, [he] did not make a strategic decision as a member of Mr. Toles' defense team nor was [his] denial of the request based on any evaluation of the merits of the proposed defense." Affidavit of Robert Ganstine at 1. Instead, Ganstine indicates, "[i]t was [his] position as administrator to be concerned about the fiscal welfare of the agency and to insure that the attorneys adhered to agency policy." Id. In short, contrary to the findings of the OCCA, the uncontroverted evidence indicates that Ganstine's decision was a purely fiscal one.2 See 28 U.S.C. 2254(d)(2), and (e)(1).

Because the OCCA's misperception of Ganstine's role led it not to address the merits of Toles' Ake claim, we proceed to do so, applying a de novo standard of review. See Gonzales v. McKune, 247 F.3d 1066, 1072 (10th Cir. 2001) ("If a state court did not hear the petitioner's claims on the merits, . . . we review the district court's legal conclusions de novo."). In doing so, we note, as did the OCCA and the district court below, that Toles "was not denied access to an expert witness in the classic Ake sense." Toles I, 947 P.2d at 187. Indeed, we remain uncertain whether the Ake framework applies to circumstances such as those here, where funding decisions impacting a capital defendant are made not by the trial court but by the head of a state-funded indigent defense system. However, because we conclude there is no merit to Toles' claim, we assume, without deciding, that Ake applies in these circumstances.

In Ake, the Supreme Court noted that "when a State brings its judicial power to bear on an indigent defendant in a criminal proceeding, it must take steps to assure that the defendant has a fair opportunity to present his defense." 470 U.S. at 76. Without going so far as holding "that a State must purchase for the indigent defendant all the assistance that his wealthier counterpart might buy," the Court explained that indigent defendants must have "access to the raw materials integral to the building of an effective defense." Id. at 77, 105 S. Cct. 1087. Applying these principles to the facts before it, the Court held that when an indigent defendant demonstrates that sanity at the time of the offense will be a significant factor at trial, the defendant must be provided access to a "competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense." Id. at 83, 105 S. Ct. 1087.

The question here is whether, under the particular circumstances of the case, Lipman's testimony could legitimately be characterized as "integral to the building of an effective defense," i.e., one of the "basic tools of an adequate defense." Id. at 77, 105 S. Ct. 1087. Under Tenth Circuit precedent, three factors are generally considered in deciding this question: (1) the effect on Toles' private interest in the accuracy of the trial if the requested service is not provided; (2) the burden on the government's interest if the service is provided; and (3) the probable value of the additional service and the risk of error in the proceedings if such assistance is not offered. Rojem v. Gibson, 245 F.3d 1130, 1139 (10th Cir. 2001). Because the first two factors are typically satisfied in favor of an indigent capital defendant, the third factor is the "critical" one in deciding "whether a particular expert is a required 'basic tool' of an adequate defense." Johnson v. Gibson, 169 F.3d 1239, 1246-47 (10th Cir. 1999).

Toles goes to great lengths to outline why Lipman's testimony was critical to his voluntary intoxication defense. In particular, Toles contends that "only Dr. Lipman could have provided the expert testimony needed to describe the physiological and psychological effects of the combination of alcohol and drugs, and lay witnesses certainly could neither conduct neuropsychological or neuropharmacological tests nor present the results of such tests to the jury." Toles' Opening Br. at 37. Toles further contends that the risk of error in the trial proceedings without Lipman's testimony was substantial because he was essentially deprived of "any meaningful first stage defense" to the state's assertion that he acted with malice aforethought in killing the two victims. Id. at 41.

We assume, without deciding, that Toles can establish that Lipman's testimony was one of the "basic tools of an adequate defense" and that the denial of funding for Lipman's trial testimony therefore resulted in a violation of his due process rights. The question then becomes whether the error was harmless. The denial of expert assistance in violation of Ake is trial error subject to harmless error analysis under the standard set forth in Kotteakos v. United States, 328 U.S. 750, 776 (1946) (asking whether the error "had substantial and injurious effect or influence in determining the jury's verdict").3 See Brewer v. Reynolds, 51 F.3d 1519, 1529 (10th Cir. 1995). Under this standard, we can grant relief only if we believe the error substantially influenced the jury's decision, or if we are in grave doubt as to the harmlessness of the error. See O'Neal v. McAninch, 513 U.S. 432, 436 (1995).

In deciding the harmless error question, we turn first to Oklahoma law on the defense of voluntary intoxication. Under Oklahoma law, "voluntary intoxication has long been recognized as a defense to the crime of First Degree Malice Murder." Taylor v. State, 998 P.2d 1225, 1230 (Okla. Crim. App. 2000). "If voluntary intoxication is to be relied upon as an affirmative defense, the defendant must introduce sufficient evidence to raise a reasonable doubt as to his ability to form the requisite criminal intent." Id. More specifically, "[a] defense of voluntary intoxication requires that a defendant, first, be intoxicated and, second, be so utterly intoxicated, that his mental powers are overcome, rendering it impossible for a defendant to form the specific criminal intent or special mental element of the crime." Jackson v. State, 964 P.2d 875, 892 (Okla. Crim. App. 1998). Notably, the OCCA has held that a defendant's "detailed account of the circumstances surrounding [a] murder defeats [a] claim to a voluntary intoxication defense." Bland v. State, 4 P.3d 702, 718 (Okla. Crim. App. 2000); Taylor, 998 P.2d at 1230 (same); Turrentine v. State, 965 P.2d 955, 969 (Okla. Crim. App. 1998) (same).

Reviewing the record in light of these principles, it is clear that the first-stage evidence fell far short of meeting the required standards for establishing a voluntary intoxication defense. Toles gave four videotaped statements to the police, all of which were introduced by the prosecution during the first stage of trial. In the first statement, given approximately seventeen hours after the murders, Toles admitted participating in the burglary of the Franceschi home, but maintained that Young was responsible for shooting the two victims. In the second statement, given a day later, Toles acknowledged that he had lied during the first interview about the extent of his participation. Further, Toles admitted he was responsible for the murders and outlined in detail what transpired during the invasion of the Franceschi home. In the third statement, given the same day as the second statement, Toles again admitted to shooting the two victims and described the crime in detail, including the events preceding the decision to burglarize the Franceschi home, how the Franceschi home was selected, what type of gun was utilized during the crime, what actions he, his co-conspirators and the victims took after the home was invaded,4 and his reasons for shooting the two victims.5 In the fourth statement, taken two days after the murders, Toles was asked the following questions and gave the following responses:

Detective: Okay. Also, I need to ask you about your physical condition that night. Had you been drinking?

Toles: Yes, I had.

Detective: But when you did this did you know what you were doing in your state of mind?

Toles: I was aware of everything that was happening.

Detective: Were you on any type of drug?

Toles: Not chemical drugs, no. Alcohol.

Detective: Just alcohol. I'm talking about like cocaine or something.

Toles: No.

Detective: You were completely aware of what was going on, is that right?

Toles: Yes, sir.

Tr. of Interview #4, at 2.

Toles' videotaped statements were bolstered by testimony from two of the state's other first-stage witnesses. Co-conspirator Casey Young testified that Toles had been drinking alcohol on the evening of the murders, but he expressly denied that Toles ingested cocaine or other illicit drugs prior to the murders. Tr. at 571 ("No drugs besides alcohol."). Young further testified that, based upon what he observed from Toles' behavior, it appeared that Toles understood what he was doing. Another witness, Joseph Vicks, testified that he spoke with Toles immediately following the murders and spent the next four hours with Toles, during which time Toles talked at length about the crime. According to Vicks, Toles was not slurring his words or stuttering and did not otherwise appear to be drunk. None of the witnesses at trial (either first-stage or second-stage) testified about Toles ingesting crack cocaine or any other illicit drugs prior to the murders.

In sum, none of the first-stage evidence substantiated Toles' voluntary intoxication theory. Although the evidence indicated that Toles had consumed alcohol prior to the murders,6 there was no evidence indicating that Toles consumed any illicit drugs. Further, the evidence indicated that Toles was able to provide acquaintances and police with repeated, detailed accounts of the crime. Thus, although Toles may have been able to establish that he was under the influence of alcohol at the time of the murders, we are convinced he could not have demonstrated, as required by Oklahoma law, that his mental powers were overcome by the effects of alcohol, rendering it impossible for him to form malice aforethought.

For these reasons, we are firmly convinced that the denial of funding for Lipman's trial testimony did not have a substantial injurious impact on the jury's first-stage verdicts. Had Lipman appeared at trial, he would have testified, in part, that Toles reported smoking eight rocks of crack cocaine in the four hours preceding the murders. Obviously, this testimony would have been directly contradictory to all of the other first stage evidence, including Toles' videotaped, post-arrest statements to the police. Given the great weight of the evidence indicating that Toles did not ingest any illicit drugs prior to the murders, we conclude the jury would have rejected this portion of Lipman's testimony. In turn, it seems certain the jury would have given little, if any, weight to Lipman's related conclusion that Toles "was so massively intoxicated under the combined influence of cocaine and alcohol that his ability to think rationally and to conform his behavior to the requirements of the law was lost."7 Thus, any constitutional error arising out of the denial of funding for Lipman's trial testimony was harmless.

Finally, we note that Toles' appellate brief contains passing references to the effect Lipman's testimony may have had on the outcome of the second-stage proceedings. See Toles' Br. at 26 ("Absent the expert testimony of Dr. Lipman, Toles . . . was denied powerful mitigation evidence."), at 45 (noting that the affidavit of one of the jurors indicated "Lipman's testimony would have affected his decision to impose the death penalty"). If Toles is asserting an Ake claim regarding the effect of Lipman's testimony on the second-stage proceedings, we will not address it because it was not adequately presented to the district court,8 and has not been presented to and decided by the OCCA. Indeed, because the OCCA would now conclude the claim is procedurally barred, see McCracken v. State, 946 P.2d 672, 674 (Okla. Crim. App. 1997) (noting the OCCA will not consider an issue which could have been raised on direct appeal), it is considered "procedurally defaulted for purposes of federal habeas relief," Thomas v. Gibson, 218 F.3d 1213, 1221 (10th Cir. 2000), and Toles does not assert that the procedural default is overcome by cause and prejudice or that application of the procedural bar will result in a fundamental miscarriage of justice.

Admission of Toles' videotaped statements to police

Toles contends that the four videotaped statements he gave to police following his arrest, all of which contained inculpatory statements, were improperly admitted at trial. According to Toles, the statements were obtained in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments because he did not knowingly and intelligently waive his constitutional rights as required by Miranda v. Arizona, 384 U.S. 436 (1966).

Toles first raised this issue at trial. The trial court conducted a hearing pursuant to Jackson v. Denno, 378 U.S. 368, 376-77 (1964), during which Toles and Larry Mahamed, the lead detective on the case, testified. According to Toles, he was arrested by an Officer Puccino on July 16, 1993. At the time of his arrest, Toles testified, he asked Puccino if he could speak to an attorney. Puccino allegedly did not respond to Toles' request, and instead placed him in a patrol car, transported him to the city jail, and placed him in a conference room. Toles and Mahamed both testified that Mahamed escorted Toles from the conference room to Mahamed's office, where Mahamed advised Toles of his rights and advised Toles of why he was under arrest. According to Mahamed, he never saw Officer Puccino and was unaware that Toles had asked to speak to an attorney. Mahamed testified that Toles stated, after being advised of his rights, that he had an Oklahoma City attorney he wanted to call. Mahamed allegedly said "Fine," and began escorting Toles to the county jail. Tr. at 675. Mahamed testified that as he was taking Toles to the jail, Toles said "Stop. Just a minute. I'll talk." Id. at 676. Mahamed then escorted Toles to an interview room where he again advised Toles of his Miranda rights, Toles agreed to waive his rights, and Toles proceeded to give the first of his four videotaped statements. Mahamed testified that at no time during that interview or any of the subsequent interviews did Toles indicate he wanted to speak to an attorney. Toles testified that after the first interview Mahamed told him that if he did not cooperate he would more than likely receive a death sentence. Toles further testified that Mahamed told him that if he cooperated fully Mahamed would talk to the district attorney about getting Toles a life sentence. According to Toles, Mahamed's offer to speak to the district attorney is what prompted him to contact detectives and give his second and third videotaped statements the following day. Mahamed admitted that he told Toles he could possibly receive a death sentence, but he testified he did so after Toles' third videotaped statement, and in response to questions posed by Toles. Mahamed denied ever offering to speak to the district attorney. At the conclusion of the hearing, the trial court found that Toles' statements were freely and voluntarily given after a knowing and intelligent waiver of his Miranda rights and allowed all of the videotaped statements to be admitted at trial.

Toles challenged the admissibility of the statements on direct appeal. The OCCA rejected Toles' arguments and concluded the videotaped statements were properly admitted:

Toles asserts . . . that suppression of his custodial statements was improperly denied by the trial court. In response to the motion to suppress, the trial court properly held a Jackson v. Denno hearing to determine whether Toles' custodial statements were voluntary. In that hearing uncontroverted evidence established the following sequence of events: 1) Toles asked for an attorney when he was arrested and placed in a squad car; 2) he received the Miranda warnings and again asked for his attorney when he arrived at the police station; 3) questioning was not begun, and he was told he would still have to be booked; 4) he stated he had changed his mind and he would talk to the police without counsel present; and 5) questioning was begun after this affirmative waiver.

Toles argues his waiver was not valid, for all police contact should have stopped when he asked for an attorney upon his initial contact with the police. He claims the subsequent Miranda warning violated his Fifth and Sixth Amendment right to counsel.

Under some circumstances the differences between the Fifth and Sixth Amendment right to counsel are of critical importance to a case. The Fifth Amendment right to counsel must be asserted by the accused and it covers interrogation concerning any offense, past or present, charged or uncharged. The Sixth Amendment right is offense-specific and attaches at the time judicial proceedings have been initiated against the accused. These distinctions are not dispositive in the case before us, for the focus of our inquiry is on waiver.

Once the right to counsel has been asserted under the Fifth Amendment, or has attached under the Sixth Amendment, a valid waiver of that right cannot be established by showing only that the accused responded to further police-initiated custodial interrogation even if the accused has been advised of his rights. An accused may change his mind, however, and affirmatively waive the right to counsel secured by either Amendment. Police interrogation following an affirmative waiver does not run afoul of the constitution.

Toles asserted his right to counsel twice--first as he got into the squad car when he was arrested, and again following the administration of the Miranda warnings at the police station. The record is clear that as soon as Toles asserted the right to counsel at the station, the police communication turned immediately to administrative matters and Toles was advised he would have to be booked into jail. It was not until Toles told the police he would talk to them without counsel that police questioning began. Toles waived his right to counsel with this affirmative statement.

Toles also argues the police coerced his confession with offers of leniency. At the Jackson v. Denno hearing the interrogating officers expressly denied making any offers to Toles. Relevant evidence on this question introduced at the hearing included three video-taped statements by Toles. One statement was taped the day of the murder; two statements were taped the day after the murder.

In the first statement Toles admitted being present during the murders but denied shooting anyone. In the second statement he admitted he shot the victims. In the third he more fully explained his motives and the details of the crime. The interrogator asked Toles during the second taped interview why he admitted the shootings he had earlier denied. Toles replied he had talked with his mother who asked him how he would feel if his father and brother had been murdered.

To defeat a motion to suppress, the State bears the burden to prove by a preponderance of the evidence the accused's statements were voluntary. The video-taped statement in which Toles explains the reason for his change of heart carries the State's burden. The trial court properly denied Toles' motion to suppress.

Toles I, 947 P.2d at 186-87 (internal citations and footnotes omitted).

Much as he did in state court, Toles asserts two general arguments in this federal habeas proceeding. First, he asserts that his "initial statement should have been suppressed because it was taken in violation of [his] Fifth and Sixth Amendment rights to counsel." Toles' Opening Br. at 68. "The remaining three statements," he argues, "are also suppressible because they were obtained as a direct result of the violation of the right to counsel which occurred prior to the first interview." Id. Second, Toles asserts that his "second and subsequent statements were suppressible because they were induced by promises of lenience." Id.

In Edwards v. Arizona, 451 U.S. 477, 484-85 (1981), the Supreme Court held that "an accused, . . . having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." The Edwards rule is violated "[i]f police initiate subsequent contact without the presence of counsel," and any statements made by the accused in that situation "will be presumed involuntary, even where his statements would otherwise be deemed voluntary under traditional standards." Pickens v. Gibson, 206 F.3d 988, 994 (10th Cir. 2000). If, however, the accused initiates further communication with the police, the Edwards rule is not violated, and the question then becomes simply whether the accused knowingly and intelligently waived his rights to counsel and to silence. Oregon v. Bradshaw, 462 U.S. 1039, 1045-46 (1983).

Here, the OCCA reasonably concluded that Detective Mahamed did not violate Toles' constitutional rights in obtaining the initial videotaped statement. It was uncontroverted that Toles invoked his right to counsel immediately following his arrest by Officer Puccino. Thus, it is clear that Toles was thereafter protected by the Edwards rule. Whether Mahamed violated the Edwards rule by escorting Toles from a conference room to his office and then advising Toles of his Miranda rights is irrelevant because the Oklahoma courts found, as a matter of historical fact, that Toles responded to Mahamed's actions by again invoking his right to counsel. The Oklahoma courts further found that Mahamed complied with Toles' request and began escorting him to the jail for booking. Finally, and most importantly, the Oklahoma courts found that it was Toles who ultimately initiated the critical communications with Mahamed by saying: "Stop. Just a minute. I'll talk." Tr. at 676. Because these factual findings by the Oklahoma courts are presumed to be correct under 28 U.S.C. 2254(e)(1), and Toles has failed to come forward with evidence sufficient to overcome that presumption, it is clear that the first videotaped statement was not obtained in violation of the Edwards rule. Thus, the only remaining question is whether Toles knowingly and intelligently waived his rights by agreeing to provide Mahamed with the initial videotaped statement. See Bradshaw, 462 U.S. at 1046. On this point, the evidence was uncontroverted. Toles conceded at the Jackson v. Denno hearing that Mahamed advised him of his rights and that he agreed to waive them prior to responding to further questioning from Mahamed. The first videotaped statement confirms this because it begins with Mahamed advising Toles of his rights and Toles agreeing to waive those rights. Thus, Toles knowingly and intelligently waived his rights prior to providing Mahamed with the first statement.

The OCCA also reasonably concluded that Toles' final three videotaped statements were voluntarily given. Although Toles asserted the three statements were coerced by offers of leniency from Mahamed, the OCCA found otherwise. More specifically, the OCCA found, after reviewing the final three videotaped statements, that Toles decided to contact Mahamed and confess to the crimes after speaking with his mother, "who asked him how he would feel if his father and brother had been murdered." Toles I, 947 P.2d at 187. This finding of historical fact is entitled to a presumption of correctness, and Toles is unable to overcome the presumption with clear and convincing evidence.9 28 U.S.C. 2254(e)(1). In turn, Toles is unable to establish that the OCCA erred in concluding that the final three videotaped statements were the product of his free and deliberate choice.

Sufficiency of evidence to support HAC aggravator

Toles contends his death sentences are unconstitutional because the evidence presented at trial was insufficient to establish the existence of the "heinous, atrocious or cruel" (HAC) aggravator. According to Toles, "the facts indicate the shootings of both Juan and Lonnie Franceschi occurred quickly and were not designed to cause great suffering." Toles' Opening Br. at 86. "As a result," Toles contends, "the record can not be read rationally to support [the HAC] aggravator beyond a reasonable doubt." Id.

Toles first raised this issue on direct appeal. The OCCA rejected Toles' arguments, concluding the evidence was sufficient to support the HAC aggravator:

In order to prove the "heinous, atrocious or cruel" aggravator, the State had to prove beyond a reasonable doubt the death of the victim was preceded by torture or serious physical abuse. A slow, painful death satisfies this condition precedent.

When Toles shot Juan Franceschi in the chest, the .22 caliber bullet pierced his lung and lodged in his back. Franceschi died as a result of two pints of blood leaking into his chest cavity and suffocating him. The medical examiner testified the wound did not cause immediate loss of consciousness, and the record shows Franceschi did not die until the paramedics arrived. This slow, lingering death is sufficient to prove serious physical abuse.

Toles shot Lonnie Franceschi in the back of the head. After Toles ran out of the house, Lonnie managed to get to his room where his mother heard him crying and gasping for air. The medical examiner testified this injury would have been extremely painful. We do not know exactly when Lonnie lost consciousness, but we know he did not lose consciousness immediately. Again, the slow, painful sinking into unconsciousness is sufficient to prove serious physical abuse.

Toles I, 947 P.2d at 190 (internal citations omitted).

Because Toles' challenge to the HAC aggravator is an evidentiary one, the "rational factfinder" standard announced in Jackson v. Virginia, 443 U.S. 307 (1979), governs our review. See Romano v. Gibson, 239 F.3d 1156, 1176 (10th Cir. 2001). The issue thus presented is whether there was sufficient evidence to satisfy Oklahoma's constitutionally narrowed standards for establishing the HAC aggravator. Id. "A murder is especially heinous, atrocious or cruel under Oklahoma law if it is preceded by torture or serious physical abuse. Torture includes the infliction of either great physical anguish or extreme mental cruelty, while physical abuse requires evidence of conscious physical suffering." Id. (internal quotations omitted).

A careful review of the trial transcript indicates that the evidence was more than sufficient to establish that both victims endured conscious physical suffering prior to their deaths. The forensic pathologist who performed autopsies on the victims testified that the chest wound incurred by Juan Franceschi could have been extremely painful (it caused bleeding into the chest cavity, which in turn compressed Juan's lung), but would not have caused Juan to lose consciousness immediately. The pathologist's testimony on this point was supported by the testimony of other witnesses who testified that Juan remained conscious after being shot by Toles in the arm and the chest, and indeed continued to physically struggle with Toles after the wounds were inflicted. As for Lonnie Franceschi, the pathologist testified that the gunshot wound to his head, though likely painful and ultimately fatal, would not necessarily have caused Lonnie to lose consciousness immediately. The pathologist's testimony regarding Lonnie was again bolstered by testimony from other witnesses. It was uncontroverted that Toles shot Lonnie in the living room of the Franceschi home, yet Lonnie was found by paramedics in his bedroom. Further, Norma Franceschi, the only surviving victim of the crimes, testified that as she lay hiding under her daughter's bed, she heard a final gunshot, followed by the sounds of Lonnie crying and gasping for air. In sum, it is clear that a rational factfinder, viewing the evidence in the light most favorable to the prosecution, could have found that both victims endured conscious physical suffering prior to their deaths, and in turn would have found the existence of the HAC aggravator.

Accordingly, we conclude the OCCA's decision is neither contrary to nor an unreasonable application of clearly established federal law, and Toles is not entitled to federal habeas relief on this issue.

The judgment of the district court is AFFIRMED.

*****

EBEL, Circuit Judge, Concurring:

I join the majority's opinion in its entirety, with the following qualification. In my view, de novo review of the petitioner's Ake claim is appropriate because the Oklahoma Court of Criminal Appeals unreasonably applied Ake, rather than because that court did not reach the merits of the Ake claim.

*****

HENRY, Circuit Judge, Concurring:

I, like Judge Ebel, join Judge Briscoe's opinion in its entirety, with the following qualification. In light of Aycox v. Lytle, 196 F.3d 1174, 1177-78 (10th Cir. 1999) ("We conclude. . . that we owe deference to the state court's result, even if its reasoning is not expressly stated."), I think we must conclude that the OCCA did adjudicate the Ake issue, despite the short shrift given to that issue. Nevertheless, I agree with both Judges Briscoe and Ebel that pre-AEDPA standards of review apply. Pre-AEDPA standards of review (and thus de novo review of Mr. Toles' claim under Ake) apply because either: 1) the OCCA unreasonably applied Ake, as argued by Judge Ebel; or 2) the OCCA's determination that Mr. Ganstine's refusal to fund Dr. Lipman's travel amounted to "trial strategy" itself amounted to an "unreasonable determination of the facts" under 28 U.S.C. 2254(d)(2), cf. Op. at ---(essentially reaching the same conclusion: "[The OCCA] made a critical, and what now appears to be a clearly erroneous, finding of fact, i.e. that [Mr.] Ganstine denied [Mr.] Toles' funding request for strategic reasons. . . . In short, contrary to the findings of the OCCA, the uncontroverted evidence indicates that [Mr.] Ganstine's decision was a purely fiscal one."). It was this unreasonable determination that led the OCCA to conclude that, because Mr. Toles, through his 'counsel' Mr. Ganstine, had himself chosen to forego Dr. Lipman's testimony, the balance of the analysis should proceed under Strickland rather than Ake. See Toles v. State, 947 P.2d 180, 187 (Okla. Crim. App. 1997) (effectively concluding its 'Ake analysis' by reasoning: "The record indicates [Mr. Ganstine's] decision not to secure [Dr. Lipman] for trial was based on trial strategy. The question therefore becomes one of effective assistance of counsel. . .").

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1

The robbery charge was based on the fact that, after the murders were committed, Mrs. Franceschi was unable to locate a checkbook and a compact disc case that allegedly contained $200 in cash and two airline tickets. The state's evidence on the robbery charge, however, was fairly weak. Only one witness testified to seeing Toles with cash immediately after the murders. No witnesses observed Toles or his co-conspirators with the CD case, the checkbook, or the airline tickets.

2

There is some evidence in the record on appeal that Dr. Lipman had been involved in an earlier criminal case arising in Oklahoma County. According to Dr. Lipman, there was a dispute in that case concerning who would pay his fees, i.e., either the Oklahoma County Public Defender's Office or the OIDS. Dr. Lipman suggests this earlier dispute may have had some impact on Ganstine's decision not to approve funding for Lipman to travel to Oklahoma to testify in Toles' case.

3

Although Toles suggests the denial of funding resulted in structural error, he is clearly mistaken. In Brewer v. Reynolds, we held "that 'a right to which a defendant is not entitled absent some threshold showing [cannot] fairly be defined as basic to the structure of a constitutional trial.'" 51 F.3d 1519, 1529 (10th Cir. 1995) (quoting Starr v. Lockhart, 23 F.3d 1280, 1291 (8th Cir. 1994)).

4

For example, Toles testified that Juan Franceschi was "still fighting" and "coming towards" Toles when Toles shot him "in this side of his chest . . . [o]ver by the heart." Tr. of Interview #3 at 7. Toles continued: "And then [Juan Franceschi] staggered back almost into the hallway and I followed him back there and I shot him once again." Id.

5

Toles was asked what "was going through [his] mind when [he] shot [Juan] the second time." Tr. of Interview #3 at 8. Toles responded: "After I shot him the first time, to tell you the truth, I was thinking, I said, hell, I shot him so I might as well just go ahead and kill him then." Id. Likewise, Toles was asked why he shot Lonnie Franceschi in the head at close range as he was leaving the Franceschi home. Toles responded: "[H]e was raising up and he just had some shorts on. I didn't know if he had a weapon or not or anything and as I was running out of the house I said, damn, there's still him left was going through my mind. Since I shot the other one so I just shot at him." Id. at 12.

6

During the second and third statements, Toles indicated to the police that he was "drunk" or "intoxicated" at the time of the crimes. Tr. of Interview #2 at 8 ("I was intoxicated at the time and, as far as I told the detective yesterday at first, I mean, I didn't have no remorse say about it at first none at all."); Tr. of Interview #3 at 8 ("I didn't . . . you know, I mean, I was drunk, I wasn't thinking all that clear.").

7

Lipman's conclusions regarding Toles' blood alcohol level at the time of the murders also seem highly questionable. Although some of the witnesses presented by the defense during the second-stage proceedings testified that Toles consumed a large amount of alcohol in the hours preceding the crimes, that evidence was controverted by the prosecution's evidence which, as previously indicated, suggested that Toles was not so intoxicated that he was unable to form the necessary criminal intent.

8

The only arguable reference to the claim in Toles' federal habeas petition is found on page 42 where Toles refers to the post-trial statements of one of the jurors indicating "that Dr. Lipman's testimony would have affected his decision to impose the death penalty." In our view, this single sentence was insufficient to give the district court adequate notice of the claim.

9

The OCCA's finding on this point is supported not only by the videotaped statements, but also by Detective Mahamed's testimony at the Jackson v. Denno hearing, during which he denied making any offers of leniency to Toles after the first videotaped statement.