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Billy Ray FOX

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Supermarket robbery
Number of victims: 3
Date of murders: July 3, 1985
Date of arrest: Next day
Date of birth:  October 24, 1965
Victims profile: John Barrier, 27, Chumpon Chaowasin, 44, Rick Cast, 33 (employees)
Method of murder: Shooting / Stabbing with knife
Location: Oklahoma County, Oklahoma, USA
Status: Executed by lethal injection in Oklahoma on January 25, 2001
 
 
 
 
 
 

Summary:

Fox was fired from from his job at IGA supermarket, but came back six months later, and herded 3 employees into a back room, where along with accomplice Fowler, they beat, clubbed, stabbed and shot all 3.

Joint trial of Fowler and Fox. Both admitted robbing the supermarket, but each denied committing or participating in the murders.

Citations:
Fox v. State, 779 P.2d 562 (Okl. Cr. 1989).
Fox v. State, 880 P.2d 383 (Okl. Cr. 1994).
Fox v. Ward, 200 F.3d 1286 (10th Cir. 2000).

ClarkProsecutor.org

 
 

Oklahoma Attorney General

October 10, 2000

W.A. Drew Edmondson, Attorney General - Execution Date Requested For Fox/Fowler

Attorney General Drew Edmondson today requested an execution date for the two men convicted of murdering three employees of an Edmond grocery store more than 15 years ago.

Billy Ray Fox and Mark Andrew Fowler were sentenced to die for the July 3, 1985, murders of John Barrier, 27, Chumpon Chaowasin, 44, and Rick Cast, 33, during an early morning robbery of the Wynn's IGA grocery store where the victims worked.

Chaowasin and Cast were murdered execution style, each dying from single gunshot wounds to the head. Barrier was stabbed nine times in the neck, chest, back and side and was bludgeoned on the back of the head with a shotgun.

Fox, who was 19 at the time of the crime, and Fowler, who was 20, took $1,200 in cash and $1,500 in checks from the store. They were tried together in Oklahoma County District Court, convicted of the crime May 15, 1986, and sentenced to death June 20, 1986.

The United States Supreme Court today refused to hear the appeals of Fox, 35, and Fowler, 35, prompting Edmondson to ask the Oklahoma Court of Criminal Appeals to set an execution date.

In his requests, Edmondson asked the court to schedule both executions on the same day. "The execution of a killer is a difficult time for the victim's family and friends because the painful memories of the murder are brought to the surface," said Edmondson. "We have a rare situation where the co-defendants' appeals have run out on the same day, and we hope that setting the executions together will save the victims' families from having to endure this trauma twice."

Edmondson said it is the practice of his office, before an execution date is requested, to examine each case to determine if the testing of DNA evidence should occur. "We have determined, after a thorough review, that DNA testing would be of no value in this case, and would have no relevance as to the actual innocence of Fox or Fowler," said Edmondson. "I see nothing that should stand in the way of these executions being carried out. Although justice has been more than 15 years in coming, today's denial brings the killers closer to receiving the punishment given them by a jury of their peers."

 
 

Death Penalty Institute of Oklahoma

Billy Ray Fox, 35, was executed via lethal injection at Oklahoma State Penitentiary in McAlester. He was pronounced dead at 9:06pm.

Fox, along with his co-defendant Mark Fowler, was sentenced to death for the 1985 murders of John Barrier, 27, Rick Cast, 33, and Chumpon Chaowasin, 44, night employees of Wynn's IGA in Edmond.

Fowler was executed on Tuesday, January 23.

Fox did not request a clemency hearing. (Since the death penalty was reinstated in Oklahoma in 1977, no inmate has ever received a vote in favor of clemency from the Oklahoma Pardon and Parole Board.)

Vigils were held at no less than 15 locations around the state. Thirty-two people took part in the vigil outside the gates of the penitentiary.

 
 

ProDeathPenalty.com

Billy Ray Fox was convicted in 1986 for the 1985 execution-style murders of three Edmond employees of a Wynn's IGA in Oklahoma County. Fox had worked at the store and was fired shortly before the robbery.

He and his accomplice, Mark Andrew Fowler, herded night manager Rick Cast and employees Chumpon Chaowasin and John Barrier into a back room, where they were shot, clubbed and stabbed. Fox and Fowler were tried together, and both received death sentences.

 
 

Billy Ray Fox executed

Associated Press

January 25, 2001

OKLAHOMA - A man who orchestrated a murderous robbery at an Edmond grocery store where he once worked followed his accomplice into the death chamber Thursday night.

Billy Ray Fox, 35, was executed by injection for the July 3, 1985, murders of 3 night employees at Wynn's IGA. He was pronounced dead at 9:06 p.m. Mark Andrew Fowler, who helped carry out the murders, was executed Tuesday night at Oklahoma State Penitentiary.

Acquaintances said that 2 days before the murders, Fox approached Fowler about robbing the grocery store, to which he still had keys to the door, the cash register and a safe.

Armed with shotguns they took from their roommates, the 2 shot to death Chaowasin and Cast. Barrier was stabbed 9 times and bludgeoned with a shotgun. A 16-year-old girl who worked at the store found the bodies of the victims lying side-by-side in a large pool of blood in a back room of the store.

Fox and Fowler got away with $1,200 in cash. The afternoon following the murder, Fowler paid off some debts and threw a party for some friends, serving steaks and food he took from the store. Fox bought clothes and jewelry at an Oklahoma City mall. Both were arrested that night.

Fox spent the hours before his execution visiting with family members through thick glass. Fox went on a weeklong hunger strike earlier this month to protest the death penalty, Corrections Department spokesman Jerry Massie said. 3 of Cast's family members were at the prison to witness the execution, along with Barrier's sister, Linda Barrier, her friend and 3 Edmond police officers.

The same family members watched Fowler die Tuesday. Cast's brother, Frank Cast, called Fowler and Fox "mad dogs" and said their execution was the end of 15 1/2 years of grief and pain. "I request all people of good conscience to pray for the souls of the 3 victims and deceased members of all the families of this tragedy, as well as pray that the souls of these 2 killers be sent directly to Hell," Cast wrote in a statement.

Fox becomes the 6th condemned inmate to be put to death this year in Oklahoma and the 36th overall since the state resumed capital punishmetn in 1990. Fox becomes the 9th condemned inmate to be put to death this year in the USA and the 692nd overall since America resumed executions on January 17, 1977.

 
 

Fox Executed for Murders

By Thomas Mullen - Shawnee Online

McALESTER, Okla. (AP) -- A man who orchestrated a murderous robbery at an Edmond grocery store where he once worked followed his accomplice into the death chamber Thursday night.

Billy Ray Fox, 35, was executed by injection for the July 3, 1985, murders of three night employees at Wynn's IGA. He was pronounced dead at 9:06 p.m. Mark Andrew Fowler, who helped carry out the murders, was executed Tuesday night at Oklahoma State Penitentiary.

When asked if he had last words, Fox said, "No." He smiled, keeping his lips closed. As the execution began, he lifted his head straight up and smiled at relatives. Seconds later, his eyes went glassy and looked to the ceiling and his head slowly fell.

Fox and Fowler were convicted of the murders of Chumpon Chaowasin, 44, Rick Cast, 33, and John Barrier, 27. Although Fowler, 35, claimed to be just a lookout, officials determined one man could not have committed the murders alone.

Fox did not request a clemency hearing and filed no emergency appeals to try to halt his execution. Fox was the sixth inmate executed in Oklahoma this month, with four more scheduled to die in the next six weeks.

It is the fastest execution pace in state history, and has drawn national attention from death penalty opponents. About three dozen people, including the Rev. Jesse Jackson, have been arrested in anti-death penalty demonstrations in Oklahoma in January.

Gordon Wynn, owner of Wynn's IGA, knew Fox and his three victims, each of whom was attending college at the University of Central Oklahoma when they were killed. "They were just great guys, going to college to try to make better lives for themselves," Wynn said of the victims.

Wynn described Cast as a golfer and amateur photographer, while Barrier was an avid bowler. Chaowasin was a Taiwan native working toward a master's degree. Wynn also remembered Fox, a kid from a good family who worked his way up to assistant manager until his work began to slack. He was fired about six months before the robbery. "I don't know what happened, but he started messing up and we had to let him go," Wynn said.

Acquaintances said that two days before the murders, Fox approached Fowler about robbing the grocery store, to which he still had keys to the door, the cash register and a safe.

Armed with shotguns they took from their roommates, the two shot to death Chaowasin and Cast. Barrier was stabbed nine times and bludgeoned with a shotgun. A 16-year-old girl who worked at the store found the bodies of the victims lying side-by-side in a large pool of blood in a back room of the store. Fox and Fowler got away with $1,200 in cash.

The afternoon following the murder, Fowler paid off some debts and threw a party for some friends, serving steaks and food he took from the store. Fox bought clothes and jewelry at an Oklahoma City mall. Both were arrested that night.

Fox spent the hours before his execution visiting with family members through thick glass. Although he at first did not request a special last meal, he changed his mind and was served steak and chicken fajitas at noon. Fox went on a weeklong hunger strike earlier this month to protest the death penalty, Corrections Department spokesman Jerry Massie said.

Three of Cast's family members were at the prison to witness the execution, along with Barrier's sister, Linda Barrier, her friend and three Edmond police officers. The same family members watched Fowler die Tuesday.

Cast's brother, Frank Cast, called Fowler and Fox "mad dogs" and said their execution was the end of 15 1/2 years of grief and pain. "I request all people of good conscience to pray for the souls of the three victims and deceased members of all the families of this tragedy, as well as pray that the souls of these two killers be sent directly to Hell," Cast wrote in a statement.

 
 

Second Of Murder Duo Executed

KKTV News - CBS

Jan. 25, 2001

Oklahoma Puts Billy Ray Fox To Death For 1985 Triple Murder - Partner In Murder-Robbery Was Executed Tuesday - Sixth Execution This Month For Oklahoma

Oklahoma Thursday conducted its second execution this week, putting to death the second member of a crime team convicted in three 1985 murders. Billy Ray Fox, 35, died by lethal injection for the slayings during the robbery of a grocery store.

The victims were shot, clubbed and stabbed. His convicted partner in the crime, Mark Andrew Fowler, 35, was put to death Tuesday. Fox was the sixth inmate put to death by Oklahoma this month.

Prior to Fowler and Fox, Wanda Jean Allen was put to death on Jan. 11 for the 1988 murder of her lesbian lover. Eddie Leroy Trice, convicted of raping, beating to death, and robbing an 84-year-old woman in 1987, died Jan. 9.

Floyd Allen Medlock was executed Jan. 16 for stabbing a 7-year-old to death and dumping her body in a trash bin in 1990. Dion Smallwood went to the death chamber on Jan. 18 for beating a 68-year-old woman with a croquet mallet, then burning her alive, in 1992.

Oklahoma has one more execution planned for January: Loyd Winford Lafevers, 35, is to be executed on January 30 for the 1985 murder of 84-year-old Addie Hawley in Oklahoma City. She was kidnapped from her home, placed in a car trunk and taken to a remote area where she was raped, beaten and burned.

The state originally had eight scheduled in January, which would have set a state record and tied the record held by Texas, which put eight people to death in both May and June of 1997.

 
 

Oklahoma Court of Criminal Appeals

1989 OK CR 51
779 P.2d 562

FOX v. STATE

Case Number: F-86-511

Decided: 08/30/1989

An appeal from the District Court of Oklahoma County; David M. Cook, District Judge.

Billy Ray Fox, appellant, was convicted in Oklahoma County District Court of three counts of Murder in the First Degree, Case No. CRF-85-3343, and was given three sentences of the death penalty. Judgments and sentences are AFFIRMED.

Robert Ravitz, Oklahoma County Public Defender, Opio Toure, Pete Gelvin, Asst. Public Defenders, Oklahoma City, for appellant.

Robert H. Henry, Atty. Gen., Susan Stewart Dickerson, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

BUSSEY, Judge:

[779 P.2d 565]

1 Billy Ray Fox, appellant, was convicted in Oklahoma County District Court of three counts of Murder in the First Degree while in the commission of Robbery with a Dangerous Weapon, pursuant to the felony-murder doctrine codified at 21 O.S. 1981 701.7 [21-701.7](B). He was tried before a jury and punishment was set at death on each count. The trial court sentenced him accordingly.

2 Between 3:15 a.m. and 3:53 a.m. on the morning of July 3, 1985, three employees of the Wynn's I.G.A. grocery store in Edmond, Oklahoma, were murdered while on duty. Cash in the amount of $1,200.00 and checks totalling $1,500.00 were taken from the store. The three employees were killed in the back room of the store. Two of them, Rick Cast and Chumpon Chaowasin, died from single gunshot wounds to their heads. The third, John Barrier, died from being stabbed numerous times in the neck, chest, back and side, as well as from being bludgeoned on the back of his head with a shotgun.

3 At approximately 2:30 a.m. on July 3, 1985, Fox and his codefendant, Mark Fowler, had gone to the bedrooms of Fox's two roommates and asked to borrow a shotgun from each. When Fox returned home later that morning, he confessed to one room-mate that he had killed some people. Afterwards, as a news broadcast of the killings appeared on the television, Fox admitted that that was what he had done.

4 Both defendants were arrested on the evening of July 3. Appellant was arrested as he approached his pickup, the same vehicle in which he had traveled to and from the grocery store. When two police officers appeared, appellant handed a companion a wad of cash. In the bed of the truck, the police found bloody splinters from the broken stock of a shotgun, together with the gun's forestock and two shell casings. The following morning, Fox made a statement to police detectives and led them to a white purse which contained some checks that had been taken from the IGA during the robbery. He also told the officers where in his home they could find a knife that he had hidden. The knife later proved to be consistent with the cause of Barrier's wounds. The barrel of the shotgun was found in some debris in Fox's yard.

5 Both Fox and Fowler admitted to police officers that they had gone to the grocery store to commit the robbery, but each denied committing or participating in the homicides.

[779 P.2d 566]

I

6 Appellant's first assignment of error is that he was denied a fair trial through the systematic exclusion of "minorities" from the jury. He summarizes this contention by asserting "[t]he trial court committed reversible error by refusing to allow appellant an opportunity to produce the `records' of the jury panel, the number of minorities in the panel on May 5, 1986." To the motion, appellant's counsel attached the affidavit of another attorney practicing in Oklahoma County stating that while "minorities" constituted seventeen percent of the population of the county, he believed that they represented only five percent of those called for jury duty. Defense counsel requested that the jury clerk be ordered to count the number of people who appeared for jury duty who physically appeared to represent a minority. The trial court denied the request. For the following reasons, we do not agree that appellant was denied a fair trial by the systematic exclusion of minorities or that the trial court erred by not requiring a count of apparent minorities.

7 The United States Supreme Court held in Hernandez v. Texas, 347 U.S. 475, 477, 74 S.Ct. 667, 670, 98 L.Ed. 866 (1954), that "it is a denial of the equal protection of the laws to try a defendant of a particular race or color under an indictment issued by a grand jury. . . . from which all persons of his race or color have, solely because of that race or color, been excluded by the State. . . ." When a defendant asserts this form of denial of equal protection, he must show that the procedures used to call his jury "resulted in substantial underrepresentation of his race or of the identifiable group to which he belongs. The first step is to establish that the group is one that is a recognizable, distinct class, singled out for different treatment under the laws, as written or applied." Castaneda v. Partida, 430 U.S. 482, 494, 97 S.Ct. 1272, 1280, 51 L.Ed.2d 498 (1977) (citing Hernandez).

8 "Minorities" is not a recognizable, distinct class. Appellant does assert that he is half Asian, his mother being Polynesian/Hawaiian. However, we cannot say that even this group is a recognizable, distinct class which could be singled out for different treatment in Oklahoma County. According to the 1980 U.S. Census, Asians constituted .99 percent of its population. The group to which appellant belongs is not sufficiently numerous to form a distinct class. Because the appellant failed to reach the first step in establishing systematic exclusion of his group, the trial court was under no obligation to provide appellant the "records" of the jury panel.

9 At the hearing on appellant's pretrial motion, the Oklahoma County Election Secretary was called to testify as to the procedures utilized in registering voters in the county. The local jury clerk also described how names of all registered voters in the county were entered into a computer and then randomly withdrawn for petit juries. It was clear that the procedure set forth in the Oklahoma Statutes for calling jurors, 38 O.S.Supp. 1985 18 [38-18], was followed and that it was racially neutral and not susceptible to abuse. The method qualified any registered voter to be called as a grand or petit juror. Thus, had appellant made a prima facie case of discriminatory purpose by showing substantial underrepresentation of his group, the State would have easily rebutted it. Castaneda, 430 U.S. at 494, 97 S.Ct. at 1280. Accordingly, this assignment of error is without merit.

II

10 Appellant's second assignment of error is that he was denied a jury representing a fair cross section of the community because 38 O.S. 1981 28 [38-28](A), allows jurors seventy years of age or above to opt out of jury service. We have previously discussed this issue and are unpersuaded to change our holding that this exemption from jury service does not exclude a sufficiently numerous and distinct group. Moore v. State, 736 P.2d 161, 165 (Okla. Crim. App. 1987), cert. denied, ___ U.S. ___, 108 S.Ct. 212, 98 L.Ed.2d 163 (1987). Appellant did not demonstrate that representation of this group in venires is not fair and reasonable in relation to the number of such people in the community. Id. [779 P.2d 567] Furthermore, we find the exemption to be reasonable in light of the increasing rate of physical infirmities incurred by senior citizens and the resulting hardships if lengthy jury service is required. The Supreme Court held in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), that the fair cross section principle must offer much leeway and allow for relevant qualifications for jurors as well as reasonable exemptions.1

III

11Appellant urged in a pretrial motion for change of venue that he could not receive a fair trial in Oklahoma County due to extensive pretrial publicity. He contends that the voir dire examination at trial showed that it was impossible for a truly fair and impartial jury to be seated in his case. We disagree with this conclusion.

12 While it is true that most of the venire had read or heard media accounts of the robbery/homicides, none of those serving on appellant's jury had formulated an opinion of his guilt or innocence. In fact, during voir dire, the one individual that had formed an opinion was excused for cause. Another had heard in the media that each codefendant had placed the blame for the homicides on the other, and was also excused for cause.

13 The trial judge voir dired at the bench and out of hearing of the others, each venireman who had learned of the case from the media. Thus, he carefully prevented the venire from being contaminated by information others had acquired from the media while at the same time allowing each venireman to disclose his or her own knowledge and opinion. We are satisfied that this procedure adequately allowed thorough inquiry into the veniremen's knowledge and opinions acquired from media accounts and ensured that those who sat on the jury could impartially and fairly judge appellant on the evidence presented at trial. See Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); Walker v. State, 723 P.2d 273, 278 (Okla. Crim. App. 1986); Moore v. State, 672 P.2d 1175, 1177 (Okla. Crim. App. 1983).

14 We cannot say on the record before this Court that the jury that tried the appellant was unfairly prejudiced against him because of the media coverage of his case or that there was a deep pattern of prejudice throughout the community. Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975). This assignment is without merit.

IV

15 Appellant next asserts that the trial court committed reversible error in not severing his trial from his codefendant's trial because of their mutually antagonistic defenses. He claims that their defenses pitted them against one another because each sought to blame the homicides on the other.

16 In statements made to the police, each defendant acknowledged planning and participating in the robbery, but stated that he had no part in and never envisioned violence toward the victims. However, neither defendant testified at trial and the only portions of their redacted statements introduced at trial were their admissions of going to the grocery store and robbing it. Therefore, the issue before us is not whether there are disagreements between the defendants concerning the facts, but whether the defenses are antagonistic in that each defendant is attempting to exculpate himself and inculpate his co-defendant.

17 During closing argument, accusatory remarks were made in attempts to show that Fox should bear greater responsibility for the murders than Fowler. However, the defendants were charged with first degree murder under the felony-murder statute because the victims died as a result of acts committed to further the commission of a felony, to-wit, robbery. An examination of the statements shows that both defendants [779 P.2d 568] inculpated themselves of felony-murder and whomever bears the greater responsibility is immaterial to the issue of guilt.

18 Thus, appellant has not demonstrated antagonistic defenses nor prejudice resulting from being tried with codefendant Fowler. See Vowell v. State, 728 P.2d 854, 857 (Okla. Crim. App. 1986); VanWoundenberg v. State, 720 P.2d 328, 331 (Okla. Crim. App. 1986) cert. denied, 479 U.S. 956, 107 S.Ct. 447, 93 L.Ed.2d 395 (1986); Master v. State, 702 P.2d 375, 378 (Okla. Crim. App. 1985). The trial court did not abuse its discretion in denying appellant's motion for severance.

V

19 Relying on this Court's holding in Master v. State, 702 P.2d 375, 379 (Okla. Crim. App. 1985), the trial court found that the codefendants did not have inconsistent defenses which would prevent them from being required to join in exercising their nine peremptory challenges according to 22 O.S. 1981 655 [22-655]. Appellant contends that since their defenses were antagonistic, his motion for additional peremptory challenges should have been granted and that he was denied a number of constitutional rights as a result.

20 In the previous assignment, we found that the codefendants did not present antagonistic defenses. For that reason, we cannot say that the trial court erred in refusing to grant additional challenges. Furthermore, we find Master to be controlling on this issue. Indeed, as the trial court noted, the language of the statute specifying the number of peremptory challenges is mandatory. Title 22 O.S. 1981 655 [22-655], states that "if two or more defendants are tried jointly they shall join in their challenges. . . ." (emphasis added). As appellant points out in his brief, peremptory challenges are not constitutionally guaranteed and are subject to limitations in their exercise. See Stilson v. United States, 250 U.S. 583, 40 S.Ct. 28, 63 L.Ed. 1154 (1919). The Court held in Stilson that the government may permissibly regulate the number of peremptory challenges available and may require codefendants to be treated as one defendant in exercising the allotted challenges.

21 As we have found no substantial inconsistencies, we find no violation of the statute in question nor of appellant's constitutional rights in requiring the codefendants to join in their peremptory challenges.

VI

22 Appellant next asserts that the trial court erred in not allowing individual voir dire of each juror, out of the hearing of the others, as to their views on capital punishment. We have previously addressed the trial court's discretion in considering such a request on several occasions and are unpersuaded of its usefulness in appellant's case. See Vowell v. State, 728 P.2d 854, 857 (Okla. Crim. App. 1986); Foster v. State, 714 P.2d 1031, 1037 (Okla. Crim. App. 1986) cert. denied, 479 U.S. 873, 107 S.Ct. 249, 93 L.Ed.2d 173 (1986). We have no reason to believe from the record that voir dire was unduly hampered. We note that of those questioned, three veniremen were excused for cause because of their opposition to the death penalty, and one was excused for cause due to being irrevocably committed to the death penalty.

VII

23 Appellant claims the trial court erred in excusing for cause two veniremen, Stutzman and Porter, because of their concern about the death penalty. When asked the following question, each answered, "No":

If you find beyond a reasonable doubt that these defendants are guilty of murder in the first degree can you consider both legal punishments, life or death?

Further questioning by the trial judge elicited negative answers. Defense counsel requested and was granted the opportunity to further voir dire one venireman but was denied the opportunity on the other. Appellant claims that excusal of the veniremen violated his rights and that he was entitled to further voir dire. We disagree with both charges.

[779 P.2d 569]

24 It was clear from the trial court's inquiries that the views of these two veniremen would have prevented or substantially impaired the performance of their duties as jurors in this case. This is sufficient ground to excuse a potential juror for cause in a capital case. Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). We have previously held that there is no right for counsel of either party to rehabilitate a venireman and have noted that protracted inquiry about capital punishment may tend to confuse the issue. See Banks v. State, 701 P.2d 418, 423 (Okla. Crim. App. 1985). We find no abuse of discretion.

25 Appellant also mentions in this assignment, without citation of authority, that the trial court erred in not allowing defense counsel to voir dire the veniremen about what circumstances they might view as mitigating. We do not consider this to be an abuse of the trial court's discretion in directing the manner and extent of voir dire. See McFatridge v. State, 632 P.2d 1226, 1229 (Okla. Crim. App. 1981).

VIII

26 As his eighth assignment of error, appellant contends that the trial court should not have allowed into evidence a statement made to police officers which had been elicited by improper custodial interrogation. Following his arrest on July 3, 1985, Fox was interrogated by Edmond police officers. He subsequently requested counsel on July 4, 1985, and all questioning ceased at that time. Later during the day of July 4, two homicide detectives went by to leave their business cards with appellant. He was brought out of his cell to a nearby interview room and the officers gave him their cards in case he or his attorney desired to contact the police. They advised him that they were not there to discuss his case. As the officers started to leave, Fox advised them that his case was not getting any better and that he wanted to talk to them. He made an incriminating statement which was tape recorded and thereafter led the detectives to a purse containing checks stolen during the robbery. Appellant also told them where to locate a knife used in the robbery and executed a search waiver. During an in camera hearing to determine the voluntariness of his statements, Fox testified that he did these things only after one of the detectives had assaulted him.

27 Appellant cites the case of Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), as authority for the assertion that the officers' giving of their business cards amounted to an interrogation after he had requested counsel, thereby violating his Fifth Amendment rights. See also Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). However, we find the holding in Innis to support the opposite position. In that case, the defendant led the arresting police officers to the location of a murder weapon after overhearing a conversation between two of the officers expressing their concerns that handicapped children in the vicinity might find the weapon and hurt themselves with it. The court held therein that "interrogation" was not limited to express questioning, but included words and actions by police which the police should know are reasonably likely to elicit an incriminating response. 446 U.S. at 300-301, 100 S.Ct. at 1689. "The case thus boils down to whether, in the context of a brief conversation, the officers should have known that the respondent would suddenly be moved to make a self-incriminating response." Id. at 303, 100 S.Ct. at 1691. After a review of the record, we cannot say that appellant's statements and actions were the product of evocative conduct on the part of the officers.

IX

28 After the trial had begun, appellant's counsel advised the trial court that they had received several telephone calls from an individual who claimed to be an informant on drug deals and who worked with certain law enforcement officers. The individual advised that on July 3, 1985, he had heard Mark Fowler claim that he, not Fox, had killed the victims during the robbery. This individual would not identify [779 P.2d 570] himself but said he worked with an Officer Hill and an Officer Beck. Officer Hill was an endorsed witness at trial called by the State. No one knew for sure who Beck was because the only officer named Beck who worked for the Oklahoma City Police Department was a helicopter pilot, and was not assigned to narcotics.

29 At trial, Fox's attorney requested that Officer Hill be required to disclose the names and addresses of all his informants so that they might be called and asked if they were the one who had heard Fowler make this claim. The trial court did not require this because of the doubtful credibility of an anonymous caller, the danger to the informants working with Officer Hill, and because the District Attorney's office and Officer Hill did everything they could in helping defense counsel to identify the individual. Officer Hill called several informants and located only one who might have made the calls. Hill gave defense counsel the name and telephone number of this person, but after speaking with him, defense counsel did not believe he was the same person who had called earlier. Officer Hill also contacted an Officer Beck with the Drug Enforcement Administration to determine if he could identify the caller. Officer Beck could not. He knew of no informant that was acquainted with Fox or Fowler.

30 Appellant charges that the trial court should have granted a continuance of trial immediately before closing arguments began and ordered the police department to provide the names and addresses of all its informants to the court. The police department is privileged from disclosing the identity of confidential informants. 12 O.S. 1981 2510 [12-2510](A). Appellant's request is more far-fetched than requesting the name of a specific informant. He not only demanded the name of someone who never gave to the police the information he wanted, but he wanted the names of all their confidential informants involved with narcotics. The request was unfounded as far as legal authority is concerned and could have endangered the lives and welfare of a number of people. This assignment is without merit.

X

31 Appellant next complains that the three photographs and a video tape which depicted the murder scene were unduly gruesome and that their prejudicial value outweighed their probative value. We disagree. The photographs were in black and white except for the one introduced during the blood splatter expert's testimony. That photograph showed the pattern of blood splattering and explained and corroborated the expert's testimony of the order and method of killing.

32 The other photograph was black and white and simply showed Barrier's body lying face down in a pool of blood. The third photograph complained of was of the doors leading to the back room of the store. On one door was a red spot which might have been blood.

33 The pictures and videotape were not unnecessarily descriptive of the details of the victims' injuries nor were they particularly gruesome. In fact, very little of the footage of the videotape was devoted to the scene of the victims' deaths. Most footage was taken in the front of the store. Those which did show the victim Barrier were properly admitted to corroborate expert testimony and to prove corpus delicti. See Castro v. State, 745 P.2d 394, 402 (Okla. Crim. App. 1987); DeVooght v. State, 722 P.2d 705, 713 (Okla. Crim. App. 1986); and, Thompson v. State, 711 P.2d 936, 937 (Okla. Crim. App. 1985). There is no error.

XI

34 In his next assignment appellant contends that three individuals who testified as expert witnesses at trial should not have been allowed to do so.

A

35 The first witness of which appellant complains is Ned Stuart. Stuart was qualified by the trial court as an expert and testified of tests he conducted on the codefendants' clothing worn during the homicide and on the immediate area [779 P.2d 571] surrounding the death scene. Luminal tests were performed to detect the presence of blood on these surfaces. This process is used when blood is suspected as being present but is not visibly discernible. It simply involves a chemical reaction to the blood which causes the blood to luminesce. Positive results were obtained on most of the surfaces tested.

36 This Court has never approved or disapproved of expert testimony concerning Luminal testing. "If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify in the form of an opinion or otherwise." 12 O.S. 1981 2702 [12-2702]. In this case, the trial judge properly informed himself of the reliability of the tests used2 and the expert's qualifications3 and his precision in using the tests and decided that the testimony would assist the trier of fact. Kennedy v. State, 640 P.2d 971, 977 (Okla. Crim. App. 1982). We find no abuse of the trial court's discretion in admitting Ned Stuart's testimony.

B

37 The appellant contends that the testimony of Sergeant Tom Bevel, who qualified as a blood splatter expert, should not have been admitted because he based his conclusions partially on the luminal test results of Ned Stuart. This assignment is unmerited since we have found that Mr. Stuart was properly qualified to testify of the results of the luminal tests. Sergeant Bevel was properly qualified as a blood splatter expert, Farris v. State, 670 P.2d 995, 997 (Okla. Crim. App. 1983), and was also present when Mr. Stuart performed the luminal tests.

C

38 As his final contention within this assignment, Fox claims that Joyce Gilchrist should not have been allowed to testify of her conclusion that, based upon the presence of hairs found on the victim Barrier, which were consistent with scalp hairs of Fox and Fowler, both defendants were in contact with the victim Barrier. Title 12 O.S. 1981 2704 [12-2704] provides that in regard to experts, "[t]estimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." Relying on this section of the evidence code, the trial judge allowed the testimony. Ms. Gilchrist was asked by the prosecutor whether she had an opinion with regard to her findings in the case and that is when she offered her aforementioned conclusion.

39 Ms. Gilchrist admitted that an individual could not be positively identified by hair evidence. However, she went on to testify that, "[in] her opinion . . . Mark Fowler and Bill Fox were in contact with John Barrier prior to death." (Tr. 1581). The lack of scientific weight of such a conclusion is apparent on reflection by those dealing with similar evidence on a regular basis. But to a lay jury, usually ill-equipped to assimilate hair analysis findings on their own, such an opinion may appear too substantial. Cf. McCarty v. State, 765 P.2d 1215, 1219 (Okla. Crim. App. 1988), wherein a majority of this Court held that expert opinion that a defendant was in fact present when violence was done to the victim was improper.

40 While opinion testimony of an expert is properly admissible, such a witness should not be encouraged by the prosecution or the defense to give imprecise [779 P.2d 572] conclusions. Had the imprecision of this conclusion not been exposed on cross-examination and by the testimony of the defense's expert, Samuel Palenik, error may have resulted.

41 This case is also much different from the expert testimony approved by this Court in Kennedy v. State, 640 P.2d 971 (Okla. Crim. App. 1982). Kennedy was a case of first impression, wherein bite-mark evidence had been introduced at trial to identify Kennedy as the assailant of a woman who, before being strangled to death, had had her nipples gnawed from her breasts. The techniques used and details of the analysis made were extensively explained and visually demonstrated to the jury. Even at that, the experts identified Kennedy as the perpetrator only "within reasonable medical probability." The doctors readily explained the limitations of their ability to make identifications from bite-mark evidence and did not try to state their conclusions as absolutes. Although it is not feasible for experts on every occasion to be so comprehensive in their testimony, the accuracy demonstrated in Kennedy should be exemplified by all experts.

XII

42 During the sentencing stage of trial, appellant presented fifty-four witnesses who testified that his life had meaning to them and who felt that he should be sentenced to life imprisonment rather than being given the death penalty. He also offered the affidavits to the same effect of five more people who were unable to be present to testify at his trial. The court held that there was no exception to the hearsay rule which would allow their admission. Fox contends that the trial court erred in refusing to admit this mitigating evidence.

43 While it is true that the hearsay rule should not be applied in a mechanistic fashion which would defeat the ends of justice, Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979), the rules of evidence should, nonetheless, regulate the course of proceedings in the sentencing stage of a capital case. Chaney v. State, 612 P.2d 269 (Okla. Crim. App. 1980), modified on other grounds sub nom., Chaney v. Brown, 730 F.2d 1334 (10th Cir. 1984).

44 We find that the affidavits were cumulative of the tremendous quantity of evidence introduced of appellant's good character and meaningfulness. Prohibiting the needless presentation of cumulative evidence is proper. 12 O.S. 1981 2403 [12-2403]. The mitigating evidence herein was not exclusive to the particular affiants as was the testimony offered by certain witnesses which was held to have been improperly excluded in Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986), Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), and Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979). Its exclusion was not error.

XIII

45 Appellant next contends the trial court erred in allowing rebuttal evidence to be introduced that he had stabbed another student while attending John Marshall High School. During the sentencing stage of trial, appellant's brother, Sam Fox, Jr., testified that he knew appellant could not be guilty of the crimes in question because he was never violent even when he argued with others. The trial judge then ruled that the State could introduce testimony on rebuttal of the stabbing incident. The evidence was that while he was attending high school, appellant had a conflict of a racial nature with some other boys. He searched for a knife and then stabbed one of them. Title 12 O.S. 1981 2404 [12-2404](A) provides:

Evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except

1. Evidence of a pertinent trait of his character offered by an accused or by the prosecution to rebut the same; . . . .

See Brodbent v. State, 700 P.2d 1021, 1022 (Okla. Crim. App. 1985). Appellant's contention that this evidence caused him to receive the death penalty by ambush is meritless. Prior to trial he made a motion in [779 P.2d 573] limine to exclude evidence of the prior assault. He was well aware of the evidence and the risk that it might be introduced against him.

XIV

46 Appellant asserts that the jury could not give him particularized consideration in assessing the death penalty because he was tried jointly with codefendant Fowler at the sentencing stage. This is especially so, he argues, since Fowler had prior convictions for a violent felony. The constitutional requirement for particularized consideration of an individual's character and circumstances before the death penalty may be meted out does not necessitate a separate sentencing hearing for codefendants. See Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976). Indeed, the jury was instructed to consider each defendant individually.

47 Besides being instructed of the basic definition of "mitigating circumstances," the jury was given a list of some thirty specific factors which could be considered in mitigation of Fox's guilt. Fowler's list of mitigating factors was separate and much briefer than appellant's. We have no reason to believe that the jury did not sentence appellant on an individual basis.

XV

48 In his fifteenth assignment, appellant contends that his constitutional rights were violated because the trial court's instructions concerning sentencing were inadequate in several facets. Only one consideration is supported by authority.

49 The one issue which appellant supports with authority is that the jury was not advised they could give him a life sentence even if they found the mitigating circumstances were outweighed by aggravating factors. The authority he offers is from other jurisdictions and is unpersuasive to overrule this Court's prior holding denying the same contentions. In Walker v. State, 723 P.2d 273, 284 (Okla. Crim. App. 1986) cert. denied, 479 U.S. 995, 107 S.Ct. 599, 93 L.Ed.2d 600 (1987), we held:

`Jury nullification' is the jury's exercise of its inherent `power to bring in a verdict [of acquittal], in the teeth of both law and facts.' Horning v. District of Columbia, 254 U.S. 135, 138, 41 S.Ct. 53, 54, 65 L.Ed. 185 (1920). In capital cases, an instruction on this issue would inform the jury of its right to return a sentence of life no matter how great the weight of evidence supporting the circumstances. However, the courts have almost uniformly held that a criminal defendant is not entitled to such an instruction. See, e.g., United States v. Wiley, 503 F.2d 106, 107 n. 4 (8th Cir. 1974). But see Washington v. Watkins, 655 F.2d 1346, 1374 n. 54 (5th Cir. 1981). The rationale for this majority view is eloquently explained in United States v. Dougherty, 473 F.2d 1113, 1130-37 (D.C. Cir. 1972). Although a trial judge may, in the exercise of his sound discretion, give such an instruction, it is not error for him to refuse the request.

50 We note that besides giving the jury the Uniform Jury Instructions concerning sentencing, the trial judge additionally advised them that: "If you do unanimously find one or more of these aggravating circumstances existed beyond a reasonable doubt and fail to find anything in mitigation, you may impose a sentence of death or life imprisonment." (O.R. 201).

51 Appellant also claims that the trial court's instructions were deficient in directing the jury "to consider all factors, not just aggravating factors." He also asserts that the instructions failed to place the burden on the State to prove that the mitigating factors did not outweigh the aggravating circumstances and failed to explain that standard of proof.

52 We disagree with appellant's contentions. While it is true that the State must prove the existence of at least one aggravating circumstances beyond a reasonable doubt before the jury is authorized to consider the death penalty, 21 O.S. 1981 701.11 [21-701.11], there is no specific standard constitutionally required for weighing mitigating against aggravating circumstances. See Zant v. Stephens, 462 U.S. 862, 103 [779 P.2d 574] S.Ct. 2733, 77 L.Ed.2d 235 (1983); Brogie v. State, 695 P.2d 538, 543 (Okla. Crim. App. 1985). We have previously rejected a standard which would require the State to prove beyond a reasonable doubt that aggravating circumstances outweigh mitigating circumstances. Johnson v. State, 731 P.2d 993, 1004 (Okla. Crim. App. 1987). The jury herein was properly instructed of the State's burden of proof and of their duty to weigh the countervailing circumstances and to determine the appropriate sentence. This assignment is without merit.

XVI

53 Title 21 O.S. 1981 701.11 [21-701.11], provides that in case the jury cannot reach a unanimous decision concerning punishment in a capital case within a reasonable time, the judge shall impose a life sentence. Appellant requests this Court to reconsider its prior holding that the jury does not need to be instructed concerning this rule of law. E.g., Johnson v. State, 731 P.2d 993, 1005 (Okla. Crim. App. 1987). However, we remain convinced that the jury should not be concerned with the trial court's supervisory role. Such an instruction could improperly distract the jury from performing its duty of assessing the sentence.

XVII

54 Appellant asserts that the trial court committed fundamental error by not instructing the jury that there exists a "`presumption of life' which guarantees a person convicted of murder the right to live incarcerated for life unless the prosecution demonstrates beyond a reasonable doubt that death is the only appropriate penalty for the defendant." Appellant neither requested this specific instruction, Childs v. State, 744 P.2d 567, 568 (Okla. Crim. App. 1987), nor now cites relevant authority in support of it. The cases he offers are those recognizing the presumption of innocence until proven guilty beyond a reasonable doubt. Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981); Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976); and In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). He did submit an instruction concerning a "presumption of mitigation" which the trial judge noted to have been given in substance. The instructions given concerning sentencing and legally recognized presumptions adequately advised the jury of the appropriate law. There is no error.

XVIII

55 The jury was advised during the guilt stage of trial to not let sympathy, sentiment or prejudice play a part in their deliberations. They were instructed:

. . . From all the facts and circumstances appearing in evidence and coming to your observation during the trial, aided by the knowledge which you each possess in common with other persons, you will reach your conclusions. You should not let sympathy, sentiment or prejudice enter into your deliberations, but should discharge your duties as jurors impartially, conscientiously and faithfully under your oaths and return such verdict as the evidence warrants when measured by these instructions. (OUJI-CR 907).

During the sentencing stage, the trial court further instructed the jury that the first stage instructions applied where appropriate and were to be considered together with the supplemental instructions. Appellant contends that admonishing the jury against letting sympathy play a part in their deliberations prevented them from considering the full range of possible mitigating factors in violation of the Eighth and Fourteenth Amendments.

56 We do not believe that a reasonable juror could have understood the charge to mean that they could not consider all relevant mitigating circumstances, a constitutional failure expounded in Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) and Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (plurality opinion). The jury was also instructed that:

Mitigating circumstances are those which, in fairness and mercy, may be considered as extenuating or reducing the degree of moral culpability or blame.

[779 P.2d 575]

The determination of what are mitigating circumstances is for you as jurors to resolve under the facts and circumstances of this case. (OUJI-CR 438).

Thirty potentially mitigating factors were listed by the court for the jury. Many encompassed aspects of appellant's personality or life that could not have been appreciated unless an element of sympathy was allowed. For example, the jury was instructed that evidence that appellant had been abandoned by his natural mother and that he had helped his sister by taking the blame for some of her actions could have been considered as mitigating circumstances by them.

57 What was prohibited by the instruction, and what would be understood by a reasonable juror as being prohibited were "emotional responses not rooted in the aggravating and mitigating evidence introduced during the penalty phase." California v. Brown, 479 U.S. 538, 542, 107 S.Ct. 837, 840, 93 L.Ed.2d 934, 940 (1987). Such a limitation promotes rather than offends the purpose in the Eighth Amendment to eliminate arbitrary and capricious action in sentencing. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). In Johnson v. State, 731 P.2d 993, 1004 (Okla. Crim. App. 1987), we noted that if juries were allowed to be guided by sympathy in their deliberations in capital cases, it is a consideration likely to work to the disadvantage of the criminal defendants.

58 We also find the instruction given in this case to be distinguishable from the antisympathy instruction given in Parks v. Brown, 860 F.2d 1545 (10th Cir. 1988). In Parks, the instruction provided in pertinent part: "You must avoid any influence of sympathy, sentiment, passion, prejudice or other arbitrary factor when imposing sentence." (emphasis added) The Court felt that the instruction carried with it the danger of leading the jury to ignore sympathy that is based on mitigating evidence. Id. at 1553.

59 Initially, it is obvious that Oklahoma Uniform Jury Instruction (Criminal) 907 does not contain the qualifier "any." Secondly, the phrase "or other arbitrary factor," which was present in the instruction in Parks, is not present in this instruction. We therefore find the Supreme Court's well-reasoned opinion in Brown, supra, to be controlling. In Brown, the Court stressed, "reading the instruction as a whole, as we must, it is no more than a catalog of the kind of factors that could improperly influence a juror's decision to vote for or against the death penalty. The doctrine of noscitur a sociis is based on common sense, and a rational juror could hardly hear this instruction without concluding that it was meant to confine the jury's deliberations to considerations arising from the evidence presented, both aggravating and mitigating." See also Byrne v. Butler, 847 F.2d 1135 (5th Cir. 1988). We also find no substantial possibility that a reasonable juror might have rested his or her verdict on an improper interpretation of the instruction. Cf. Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988). Finally, when reviewed as a whole, we find that the entire instructions delivered a correct interpretation of the law.

XIX

60 Fox next urges that the trial court committed fundamental error in not defining the elements of the aggravating circumstance that the murders were committed for the purpose of avoiding or preventing a lawful arrest or prosecution. However, the instruction as given applied language commonly used and was easily understandable. No further definition was required. See Liles v. State, 702 P.2d 1025, 1031 (Okla. Crim. App. 1985), cert. denied, 476 U.S. 1164, 106 S.Ct. 2291, 90 L.Ed.2d 732 (1986). Moreover, appellant failed to request or submit an instruction such as he now claims to be required and cannot be heard to complain on appeal of its absence. Liles, 702 P.2d at 1031. Nuckols v. State, 690 P.2d 463, 471 (Okla. Crim. App. 1984), cert. denied, 471 U.S. 1030, 105 S.Ct. 2050, 85 L.Ed.2d 323 (1985).

61 We disagree with appellant when he claims that the evidence presented at trial was insufficient to support a finding [779 P.2d 576] of this aggravating circumstance's existence. The evidence was that he went to the store where he had been formerly employed intending to rob it. He had worked with one of the victims. The codefendants made no attempts to conceal their identities. One of the three victims was resting in an upstairs break room and was brought down to the store's back room where he was killed with the others. The robbery and homicides were executed in the early morning hours when no other customers were in the store or likely to arrive. The parts of the broken shotgun and the checks taken in the robbery were hidden in various locations. The codefendants rinsed their blood splattered clothes before returning to their homes. These factors taken together were sufficient circumstantial evidence that appellant killed with the intent of preventing a lawful arrest or prosecution. Stouffer v. State, 738 P.2d 1349, 1362 (Okla. Crim. App. 1987), cert. denied, ___ U.S. ___, 108 S.Ct. 763, 98 L.Ed.2d 779 (1988) and Moore v. State, 736 P.2d 161, 165 (Okla. Crim. App. 1987), cert. denied, ___ U.S. ___, 108 S.Ct. 212, 98 L.Ed.2d 163 (1987). This assignment is without merit.

XX

62 Appellant next reurges his fifteenth assignment of error that the jury should have been required to find beyond a reasonable doubt that the aggravating circumstances outweighed the mitigating factors before a sentence of death could be imposed. Having fully answered this proposition above, we decline to address it again.

XXI

63 Appellant claims that the aggravating circumstance that a murder is "especially heinous, atrocious, or cruel" is being applied in an arbitrary, and, therefore, unconstitutional manner. See Cartwright v. Maynard, 822 F.2d 1477 (10th Cir. 1987); Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988). In Stouffer v. State, 742 P.2d 562, 563 (Okla. Crim. App. 1987) (Opinion on Rehearing), cert. denied, ___ U.S. ___, 108 S.Ct. 763, 98 L.Ed.2d 779 (1988), this Court specifically limited application of this aggravating circumstance to those murders which are preceded by torture or serious physical abuse. We find that this sufficiently narrowed the class of murders to which the circumstance could be applied. Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980).

64 The jury in appellant's case was properly instructed on this point. We find that the evidence supports their finding of this aggravating circumstance as to the death of John Barrier. While two of the victims, Rick Cast and Chumpon Chaswasin, died from single gunshot wounds to the head, John Barrier was stabbed a number of times which, together with blunt force trauma to the head, caused his death. The shotgun used to shoot the others was used to bludgeon Barrier's head. So much force was used that the stock splintered and fell into a number of pieces and the barrel was bent. The evidence indicates that Barrier fought for his life because the stab wounds were located over various parts of his upper body, including defensive wounds on his hand. Furthermore, Fowler told officers that he heard Barrier cry out in pain and beg for his life. We find this to be adequate evidence that Barrier suffered serious physical abuse.

XXII

65 Appellant contends that the aggravating circumstance set forth in 21 O.S. 1981 701.12 [21-701.12](7) and found by the jury to be present in his case, that, "The existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society," is being applied in an unconstitutional manner and is not supported by the evidence. We have previously addressed the constitutionality of the application of this aggravating factor and held that it is not constitutionally infirm. VanWoundenberg v. State, 720 P.2d 328, 336 (Okla. Crim. App. 1986), cert. denied, 479 U.S. 956, 107 S.Ct. 447, 93 L.Ed.2d 395 (1986), and Liles v. State, 702 P.2d 1025, 1031 (Okla. Crim. App. 1985), cert. denied, 476 U.S. 1164, 106 S.Ct. 2291, 90 L.Ed.2d 732. See also Castro v. [779 P.2d 577] State, 745 P.2d 394, 407 (Okla. Crim. App. 1987) and Walker v. State, 723 P.2d 273, 285 (Okla. Crim. App. 1986), cert. denied, 479 U.S. 995, 107 S.Ct. 599, 93 L.Ed.2d 600 (1986). We are unpersuaded by appellant's argument to the contrary.

66 We also find that there is sufficient evidence to support the jury's finding of this factor. As appellant notes in his brief, this Court has held that evidence of the murder itself will support a finding of this aggravating circumstance. Liles, supra (and cases cited therein). Robison v. State, 677 P.2d 1080, 1088 (Okla. Crim. App. 1984), cert. denied, 467 U.S. 1246, 104 S.Ct. 3524, 82 L.Ed.2d 831 (1984); Stafford v. State, 665 P.2d 1205, 1217 (Okla. Crim. App. 1983), vacated, 467 U.S. 1212, 104 S.Ct. 2651, 81 L.Ed.2d 359 (1984), affirmed on remand, 700 P.2d 223 (Okla. Crim. App. 1985), cert. denied, 474 U.S. 865, 106 S.Ct. 188, 88 L.Ed.2d 157; Ake v. State, 663 P.2d 1, 11 (Okla. Crim. App. 1983), reversed on other grounds sub. nom., Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). These cases addressed the characteristic of callousness as reflected by a defendant's actions. Here too, there was evidence of callousness where appellant planned the robbery at least four days in advance. Weapons were specially obtained to carry out the crime. The three employees on duty were collected and moved to the backroom of the store where they were killed execution style, one brutally with numerous stabs to the body and blows to the head. After the codefendants secreted evidence and washed blood from their clothes, appellant went shopping and purchased clothing, earrings and drug paraphernalia.

67 As mentioned earlier, appellant had sought a knife and stabbed another student while attending high school. Although appellant did not have a history of arrests for violent assaults, such is not a prerequisite to a finding of this aggravating circumstance. This assignment lacks merit.

XXIII

68 Appellant asserts that under the decisions of this Court, if one of the four aggravating circumstances found by the jury is not supported by the evidence his sentence must be modified to life. However, he relies upon the authority of cases previously reversed by this Court in Stouffer v. State, 742 P.2d 562, 563 (Okla. Crim. App. 1987) (Opinion on Rehearing), cert. denied, ___ U.S. ___, 108 S.Ct. 763, 98 L.Ed.2d 779 (1988). See also Castro v. State, 749 P.2d 1146, 1148 (Okla. Crim. App. 1987) (Opinion on Rehearing). Moreover, having found the circumstances properly supported by the evidence (see Proposition XXVI), this assignment is moot.

XXIV

69 Appellant cites a number of comments made by the prosecutors during closing arguments and claims that he was denied a fair trial due to their interjection. The prosecutor stated during argument in the first stage that Fox began thinking about the robbery as early as February 15, 1985. We find this to be a reasonable inference from the evidence, since one witness testified that on that date Fox told him that he would get even with Wynn's I.G.A. for having fired him. See Wacoche v. State, 644 P.2d 568, 573 (Okla. Crim. App. 1982).

70 The next eleven comments of which appellant complains were made during the sentencing stage of trial. When objected to at trial, the trial judge overruled the defense. A review of the record reveals that some of the comments were unwarranted and not condoned by this Court. However, in light of the overwhelming evidence of appellant's guilt, we cannot say that the comments constitute fundamental error. See Newbury v. State, 695 P.2d 531, 537 (Okla. Crim. App. 1985) and Moore v. State, 736 P.2d 161, 167 (Okla. Crim. App. 1987).

XXV

71 Finally, appellant contends that 21 O.S.Supp. 1987 701.13 [21-701.13](E)(2), which allows the trial court to resentence a defendant in a capital case if this Court finds error in the sentencing stage is unconstitutional. This [779 P.2d 578] statute has no application to appellant's case because we have not found reversible error in his trial. Therefore, we find it unnecessary to discuss the constitutionality of the statute.

XXVI

72 We further find, and the jury was so instructed,4 that individualized consideration of appellant's culpability supports the jury's verdict of death. See Hatch v. State, 701 P.2d 1039, 1040 (Okla. Crim. App. 1985). We cannot say that appellant had no intention to kill or never contemplated that life would be taken, because he took the shotgun and shells from his roommate before going to the store. Cf. Enmund v. Florida, 458 U.S. 782, 801, 102 S.Ct. 3368, 3378, 73 L.Ed.2d 1140, 1154 (1982).

XXVII

73 Pursuant to 21 O.S.Supp. 1987 701.13 [21-701.13], we have reviewed the evidence and verdicts and have determined that: (1) the sentences of death were not imposed under the influence of passion, prejudice, or any other arbitrary factor; and, (2) the evidence supports the jury's findings of the four aggravating circumstances charged, which were:

1) The defendant knowingly created a great risk of death to more than one person;

2) The murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution;

3) The existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and,

4) The murder of John Barrier was especially heinous, atrocious, or cruel.

74 Finding no error warranting reversal or modification, judgments and sentences are AFFIRMED.

PARKS, P.J., reserves vote.

LANE, V.P.J., and BRETT, J., concur.

LUMPKIN, J., specially concurs.

Footnotes:

1 In Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), the Supreme Court compared a statutory exemption from jury service of "women" with that of "persons over the age of 65" and expressed no concern with the latter as it affected the fair cross section principle.

2 Gaensslen, R.E., Sourcebook in Forensic Serology, Immunology, and Biochemistry (U.S. Govt. Printing Office Aug., 1983). The trial judge referred to the cited source and several others in informing himself of the reliability of the luminal tests.

3 Ned Stuart testified that he had been director of the regional crime lab in Coeur d' Alene, Idaho, for thirteen years at that time and coordinator of the School of Law Enforcement at North Idaho College for fifteen years. By education, training and experience, Mr. Stuart testified that he was a chemist and physicist and had twenty-eight hours of postgraduate study in police science. He also had 750 to 1000 hours of police science study in seminars.

4 The jury was instructed: "You must give separate consideration to the case of each individual defendant. Each defendant is entitled to have his case decided on the basis of the evidence and the law which is applicable to him." (O.R. 180).

*****

LUMPKIN, Judge, specially concurring:

1 I concur in the majority opinion and I write for the purpose of making additional comments regarding Appellant's Proposition of Error XVIII concerning the court's instruction to the jury that "sympathy, sentiment or prejudice" should not play a part in their deliberations.

2 This proposition of error is predicated upon the decision in Parks v. Brown, 860 F.2d 1545 (10th Cir. 1988). The majority accurately determines that the United States Supreme Court decision in California v. Brown, 479 U.S. 538, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987), is controlling on this issue. Judge Anderson, in his dissent in Parks to the majority's holding on the sympathy instruction, accurately and poignantly stated:

The majority opinion proceeds on the premise that the jury focused on the word `any' in the sentence about passions, ignoring the words and sense of the sentence as a whole. Upon that very slight and hypertechnical premise the majority constructs large conclusions: that the instruction is unconstitutional on its face because it commands the jurors to denigrate mitigating circumstances evidence; that this general instruction overrides or otherwise nullifies the specific instructions on mitigating circumstances, as well as other specific instructions; and that California v. Brown, 479 U.S. 538, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987), does not apply since the instruction there used the word `mere' preceding the enumerated emotions.

The majority misconcieves the sense of the instruction: A reasonable juror would not stop part way through the sentence and question (at `any . . . sympathy') as the majority presumes. The sentence by its express terms refers to [779 P.2d 579] arbitrary factors (`any influence of sympathy, sentiment, passion, prejudice, or other arbitrary factor'). Thus, it sensibly cautions the jury against imposing sentence simply on the basis of arbitrary emotions. That is not qualitatively different from the meaning imparted by the instructions in Brown. In Brown the jury was directed not to divorce its considerations from the evidence and render an essentially whimsical decision based on mere sympathy. Here, the same directive is couched in terms of any arbitrary sympathy.

The context in which the sentence appears makes that clear. The next sentence in the instruction stresses impartiality. The preceding sentences state flatly that the jurors alone are the judges of the facts and that `the importance and worth of the evidence is for you to determine.'

860 F.2d at 1566.

3 The very foundation of our judicial system is that jurors should return a verdict based solely upon the evidence presented during the trial and the law given to them through the instructions as apply to that particular case, and that they not be influenced by outside knowledge, belief or emotion. In this case the jurors were instructed during the guilt phase of the trial that they should not allow their decision to be based upon any emotion or other arbitrary factor. During the penalty phase of the trial the jurors were specifically instructed to weigh aggravating and mitigating circumstances in determining the appropriate punishment. I concur with Judge Anderson in his analysis in Parks that the instructions must be viewed as a whole in light of what a reasonable juror would perceive. It is not proper to focus on an isolated word and apply it in a very exaggerated and hypertechnical manner.

*****

PARKS, Presiding Judge, concurring in part, dissenting in part:

1 I concur in the affirmance of appellant's conviction; however, with regard to the improper "expert" opinion given by Ms. Joyce Gilchrist, I continue to adhere to the views expressed in my opinion in McCarty v. State, 765 P.2d 1215, 1219 (Okla. Crim. App. 1988). I cannot join the majority opinion to the extent it seems to place the burden upon the defendant to impeach improper expert opinions by State witnesses through the use of expert witnesses for the defense. Majority, at 570. Nonetheless, on this record, I agree that McCarty is distinguishable and that no reversible error occurred.

2 Furthermore, where, as here, the defendant has offered evidence of mitigating circumstances, it is unnecessary and confusing to the jury to give the so-called "anti-sympathy" instruction during the second stage as evidenced by the recent split of authority between the Tenth Circuit in Parks v. Brown, 860 F.2d 1545, 1552-59 (10th Cir. 1988), and the Fifth Circuit in Byrne v. Butler, 847 F.2d 1135, 1139-40 (5th Cir. 1988). While I agree it is improper to focus on the use of the words "any" or "mere" I find that the use of an "anti-sympathy" instruction in the second stage, where mitigating evidence has been introduced, improperly undermines the jury's consideration of mitigating evidence in violation of the Eighth Amendment. See Parks, 860 F.2d at 1553. I also continue to adhere to the views expressed in my special concurrence in Foster v. State, 779 P.2d 591 (Okla. Crim. App. 1989), regarding the validity of the heinous, atrocious or cruel aggravating circumstance; however, I yield to the majority view as a matter of stare decisis.

3 Therefore, because I find the "anti-sympathy" instruction improper in the second stage, I would vacate the death sentence and remand for resentencing under the majority view enunciated in Cartwright v. State, 778 P.2d 479 (Okla. Crim. App. 1989).

 
 

Background

In the early morning hours of July 3, 1985, three employees of the Wynn's IGA in Edmond, Oklahoma, were murdered during a robbery planned and executed by Petitioner-Appellant, Billy Ray Fox ("Mr. Fox") and co-defendant Mark Andrew Fowler ("Mr. Fowler"). They were arrested on July 4, 1985. Both admitted to involvement in the robbery, but each accused the other of committing the murders. Following a jointly held jury trial in the Oklahoma County District Court, both were convicted of three counts of first degree felony murder. Okla Stat. Ann. tit. 21 701.7(B). Both were thereafter sentenced to death.

The Oklahoma Court of Criminal Appeals ("OCCA") affirmed both Mr. Fox's murder convictions and death sentence. See Fox v. State, 779 P.2d 562 (Okla. Crim. App. 1989). Mr. Fox's application for post-conviction relief was denied by the OCCA in 1994. See Fox v. Oklahoma, 880 P.2d 383 (Okla. Crim. App. 1994). On June 16, 1995, Mr. Fox filed a petition for habeas corpus in the federal district court for the Western District of Oklahoma pursuant to 28 U.S.C. 2254, asserting fifteen grounds for relief from his state convictions and sentences. On July 6, 1998, the district court denied Mr. Fox's habeas petition but granted a certificate of probable cause for all issues in this appeal. See 28 U.S.C. 2253 (pre-AEDPA); Foster v. Ward, 182 F.3d 1177, 1183 (10th Cir. 1999).

Petitioner asserts the following twelve grounds for relief: (1) the trial court refused to sever Mr. Fox and Mr. Fowler's trial, resulting in the violation of Mr. Fox's right to due process; (2) petitioner's trial counsel was constitutionally ineffective in violation of the Sixth Amendment; (3) the trial court admitted misleading testimony of three state expert witnesses, violating due process; (4) the trial court admitted Mr. Fox's pretrial statements to the police in violation of the Fifth and Fourteenth Amendments; (5) the "especially heinous, atrocious, or cruel" aggravating circumstance was applied in Mr. Fox's case in violation of the Eighth and Fourteenth Amendments; (6) during his closing argument, the prosecutor violated Mr. Fox's constitutional rights by instructing the jury to ignore mitigating evidence, in violation of the Eighth Amendment; (7) the trial court erroneously failed to instruct the jury that it had the option of returning a life sentence even if the aggravating factors outweighed the mitigating factors; (8) the trial court erroneously restricted Mr. Fox's cross-examination of one of the government's expert witnesses, resulting in a violation of the Sixth Amendment right of confrontation; (9) the trial court and the Oklahoma Court of Criminal Appeals applied and interpreted the "avoid arrest or prosecution" aggravating circumstance in an unconstitutionally vague and overbroad manner in violation of the Eighth Amendment; (10) the "continuing threat" aggravating circumstance as applied in Mr. Fox's case violates the Eighth Amendment; (11) the trial court failed to instruct the jury that mitigating factors need not be found unanimously, thus violating the Eighth Amendment; (12) the state and federal district courts denied Mr. Fox an evidentiary hearing on his claim that the jury was permitted to consider misleading evidence, and his ineffective assistance of counsel claim, violating his constitutional right to due process. Our jurisdiction arises under 28 U.S.C. 1291, and we affirm.

Discussion

The Antiterrorism and Effective Death Penalty Act ("AEDPA") does not apply to this appeal, because Mr. Fox filed his habeas petition on June 16, 1995, before the law's enactment. See Lindh v. Murphy, 521 U.S. 320, 322-323 (1997). Therefore, we refer to pre-AEDPA law for guidance as to the appropriate standards of review. Our review is limited insofar as we can grant relief only if state court error "deprived [petitioner] of fundamental rights guaranteed by the Constitution of the United States." See Brown v. Shanks, 185 F.3d 1122, 1124 (10th Cir. 1999) (quoting Jackson v. Shanks, 143 F.3d 1313, 1317 (10th Cir. 1998)). We review legal issues de novo, "affording deference to the state court's construction of state law." Id. We review the federal district court's factual findings for clear error, while presuming that the findings of fact made by the state court are correct unless they are not fairly supported by the record. See id.; 28 U.S.C. 2254 (pre-amendment).

I. Erroneous Failure to Sever

Mr. Fox asserts that the trial court erroneously joined his trial with co-defendant Mr. Fowler's, resulting in unconstitutionally unfair proceedings. As this court articulated in Cummings v. Evans, 161 F.3d 610 (10th Cir. 1998), "whether the trial court erred in denying severance is generally a question of state law that is not cognizable on federal habeas appeal. . .a criminal defendant has no constitutional right to severance unless there is a strong showing of prejudice caused by the joint trial." Id. at 619; see also, Arbuckle v. Dorsey, 198 F.3d 477 (10th Cir. 1999).

Mr. Fox argues, citing Zafiro v. United States, 506 U.S. 534 (1993), that two specific trial rights were compromised by the trial court's denial of severance. He first claims that his constitutional right of Confrontation was violated by virtue of the limitation on his cross-examination of a witness regarding his co-defendant's redacted confession. Secondly, Mr. Fox argues that it amounts to constitutional error that he was required to share peremptory strikes with his co-defendant. Mr. Fox concludes that as a result of these errors, the jury was left with the misimpression that he actually committed the murders rather than his co-defendant, Mr. Fowler.

a. Bruton violation

Mr. Fox contends that he was deprived of his rights guaranteed by the Confrontation Clause when the trial court refused to permit Mr. Fox's attorney to elicit additional portions of Mr. Fowler's confession. The statement, admitted through the testimony of the interviewing detective, essentially established that co-defendant Fowler was present at the Wynn's IGA on the night of the murder, watching for people entering and leaving. Mr. Fox's counsel sought to establish that Mr. Fowler was in the storeroom at the time of the murders. However, the trial judge sustained Mr. Fowler's objection to this cross-examination on the grounds that it would open the door for the prosecutor to elicit the full admission of Mr. Fowler, which included the statement that he saw Mr. Fox committing the murders in the back storeroom. Mr. Fox asserts on appeal that this limitation on cross-examination constitutes a Bruton violation.

Mr. Fox misconstrues Bruton. Mr. Fox is neither explicitly nor implicitly implicated by the admitted portion of Mr. Fowler's confession - the hallmark of a Bruton violation. See Richardson v. Marsh, 481 U.S. 200, 201-02 (1987) ("In Bruton v. United States, 391 U.S. 123 (1968), we held that a defendant is deprived of his rights under the Confrontation Clause when his nontestifying co-defendant's confession naming him as a participant in the crime is introduced at their joint trial, even if the jury is instructed to consider that confession only against the co-defendant.").

Thus, Bruton is not implicated by the trial court's restriction on Mr. Fox's cross-examination of the detective. On the contrary, as we discuss below, the trial court's restriction of Mr. Fox's cross-examination was integral to the court's compliance with the mandates of Bruton. Moreover, to permit Mr. Fox to elicit the additional portions of the Fowler admission while omitting Mr. Fowler's statement that he witnessed Mr. Fox killing the victims would have been tantamount to permitting a deliberate act of deception, totally recasting the nature of the admission.

A trial court may not sit idly on the sidelines and permit counsel to deliberately distort the evidence or mislead the jury. Admission of a redacted version of a defendant's post-arrest statement is impermissible if it unfairly distorts the original, or excludes substantially exculpatory information. See United States v. Mussaleen, 35 F.3d 692, 696 (2d Cir. 1994); United States v. Zamudio, 141 F.3d 1186 (10th Cir. 1998); United States v. Kaminski, 692 F.2d 505, 522 (8th Cir. 1982)

Mr. Fox's objection is more properly characterized as a challenge to an evidentiary ruling by the trial court. This court held in Sellers v. Ward, 135 F.3d 1333 (10th Cir. 1998), that "[h]abeas relief is not available on this ground unless the petitioner can show his whole trial was rendered fundamentally unfair by the limitation of the cross-examination." 135 F.3d at 1342. Mr. Fox has not satisfied this standard. Mr. Fox was not prejudiced in any way by the trial court's limitation on his cross-examination of the detective.

Moreover, there was ample evidence before the jury, based on testimony of the state's forensic experts, that Mr. Fowler was in the storeroom at the time of the murders. Whatever "exculpatory" benefit Mr. Fox sought to elicit from Mr. Fowler's admission was provided by this forensic evidence. Additionally, it bears noting that neither Mr. Fowler's admission nor the forensic evidence exculpated Mr. Fox, but rather merely inculpated Mr. Fowler. Despite Mr. Fox's assertions to the contrary, in view of the evidence presented at trial, these are not equivalent.

Establishing that Mr. Fowler was present at the site of the murders does not render Mr. Fox's participation in the murders impossible or even unlikely. There was ample evidence to suggest that Mr. Fox and Mr. Fowler were both involved in the actual murders. In sum, Mr. Fox has failed to demonstrate any prejudice by the trial court's limit on his cross-examination of the detective who interviewed Mr. Fowler. Thus, Mr. Fox's Confrontation Clause argument fails.

b. Sharing Peremptory Strikes

Mr. Fox next argues that he was unconstitutionally prejudiced because he was required to share peremptory challenges with his co-defendant. Mr. Fox claims that because their defenses were inconsistent, he was entitled to his own nine peremptory challenges, rather than having to share nine with his co-defendant. See Okla. Stat. Ann. tit. 22 655 (1981).

Mr. Fox has not challenged the impartiality of the jury. Thus, he is objecting only to the number of peremptory challenges. This is a question of state law, not of constitutional dimension. See Cummings, 161 F.3d at 619 (citing Ross v. Oklahoma, 487 U.S. 81, 88 (1988)). We may not review this claim as a result. Id.

Moreover, to the extent that Mr. Fox implies that severance was warranted because his defense was mutually antagonistic with that of his co-defendant, his argument is unpersuasive. "Mutually antagonistic defenses are not prejudicial per se." Zafiro, 506 U.S. at 538. In order to prevail on such a theory for severance, the defendant must show real prejudice, rather than merely note that each defendant is trying to exculpate himself while inculpating the other. See United States v. Dirden, 38 F.3d 1131, 1140-41 (10th Cir. 1994); Arbuckle, 189 F.3d 477; United States v. Briseno-Mendez, 153 F.3d 728 (10th Cir. 1998). Such actual prejudice is shown if the defenses are truly mutually exclusive, such that "the jury could not believe the core of one defense without discounting entirely the core of the other." Dirden, 38 F.3d at 1141. Mr. Fox has not shown this type of prejudice in either the guilt phase or the sentencing phase of trial.

c. Severance at Guilt Phase

Mr. Fox argues that he was prejudiced during the guilt phase of his trial, because his defense was mutually antagonistic with that of his co-defendant. Namely, each defendant admitted to involvement in the felony, but tried to exculpate himself by inculpating the other in the actual commission of the murders. Mr. Fox overlooks the fact that during the guilt phase of the instant case, the relative culpability of the defendants was irrelevant, given that they were charged with first degree felony murder, which only requires that a murder result during the commission of a robbery with a dangerous weapon. Okla. Stat. Ann. tit. 21 701.7 (B). The evidence at trial amply established both Mr. Fox and Mr. Fowler's participation in the underlying robbery. Thus, Mr. Fox has not sufficiently demonstrated that he was prejudiced during the guilt phase by joinder with Mr. Fowler.

d. Severance at the Penalty Phase

Mr. Fox argues that the prejudice he suffered from the denial of severance was especially acute in the penalty phase of his trial. Beyond his above claims of Confrontation clause and peremptory challenge violations, he does not develop or support his argument beyond simply claiming that "who actually committed the murders would have made a substantial difference to the jury when they considered punishment." The failure to develop this aspect of his legal argument, supported by relevant authority, effects a forfeiture of the claim. See United States v. Callwood, 66 F.3d 1110, 1115 n.6 (10th Cir. 1995). Mr. Fox does not challenge the constitutionality of the Oklahoma statute requiring the same jury to sit for both guilt and penalty phases. See Okla. Stat. Ann. tit. 21 701.10. Nor does he discuss (with reference to the relevant facts and authority) why it was impossible for the jury to believe the core of Mr. Fowler's defense without discounting entirely the core of his own. Dirden, 28 F.3d at 1141.

The relevance of who specifically committed the murders in the penalty phase is not automatically apparent, given that Enmund v. Florida, 458 U.S. 782, 797 (1982), and Tison v. Arizona, 481 U.S. 137, 157 (1987), require only that the petitioner "himself kill[ed the victim], attempt[ed] to kill [the victim], or intend[ed] that a killing [of the victim] take place or that lethal force will be employed." Enmund, 458 U.S. at 797. (Emphasis added).

Moreover, "major participation in the felony committed, combined with reckless indifference to human life is sufficient to satisfy the Enmund culpability requirement." Tison, 481 U.S. at 158. Ample evidence, including Mr. Fox's own confession, demonstrated that Mr. Fox intended that lethal force might be employed. Mr. Fox acquired firearms in preparation for the robbery of the Wynn's IGA, immediately prior to the murders, and admitted the killing to his roommate.

II. Ineffective Assistance of Counsel

Mr. Fox next claims that he was deprived of effective assistance of trial counsel. Specifically, he argues that trial counsel was deficient because he (i) implicated Mr. Fox during voir dire in such a way as to unfairly poison the jury against him; and (ii) failed to sufficiently inculpate the co-defendant, in order to exculpate Mr. Fox. Ineffective assistance claims are mixed questions of law and fact reviewed by this court de novo. See Moore v. Reynolds, 153 F.3d 1086, 1096 (10th Cir. 1998).

a. Ineffective Assistance during Voir Dire

Mr. Fox relies upon the following incidents to support his claim of ineffective assistance of counsel during voir dire. Trial counsel asked several times whether the venire could be open minded about the imposition of life imprisonment rather than the death penalty, should his client be convicted. One member of the venire1 formed an opinion as to Mr. Fox's guilt based on the voir dire. This person was subsequently dismissed for cause. Moreover, the trial court expressed the opinion that Mr. Fox's counsel had gone too far in this line of questioning, to the detriment of his client.

To prevail on his ineffective assistance of counsel claim, Mr. Fox must demonstrate that (i) counsel's performance was objectively deficient and (ii) counsel's deficiency prejudiced the defense, depriving petitioner of a fair trial with a reliable result. See Strickland v. Washington, 466 U.S. 668, 687 (1984). To demonstrate constitutional deficiency, Mr. Fox must show that counsel's performance was completely unreasonable, not simply wrong. See Hoxsie v. Kerby, 108 F.3d 1239, 1246 (10th Cir. 1997).

Similarly, to show unconstitutional prejudice, Mr. Fox must demonstrate that but for counsel's errors, there is a reasonable probability that the result of the proceedings would have been different. See Strickland, 466 U.S. at 694. Mr. Fox bears a heavy burden in that he must overcome the presumption that his counsel's actions were sound trial strategy, in the context of his case. See id. at 689. Moreover, counsel's actions during voir dire are presumed to be matters of trial strategy. See Nguyen v. Reynolds, 131 F.3d 1340, 1349 (10th Cir. 1997).

Mr. Fox cannot overcome this burden. Like the counsel in Nguyen, Mr. Fox's attorney chose, as a strategic matter, to focus on whether potential jurors could give his client a fair trial. Id. Mr. Fox's attorney commented to this effect, in response to the judge's disapproval of his line of questioning:

First of all, Your Honor, it is over our objection that we have the same jury determine guilt or innocence and punishment. We believe that even if we get past guilt or innocence we have to have some idea as to how these people will behave, if you will, on punishment. We have to ask certain questions so that we exercise our peremptory challenges and whether they could consider life imprisonment...

Tr. 340-341. Thus it is clear that Mr. Fox's counsel, properly recognizing that Oklahoma law requires the same jury to sit for both guilt and penalty phases of a trial for first degree murder, Okla. Stat. Ann. tit. 21 701.10, chose to focus on whether the jurors could be fair during the sentencing phase. This was neither unreasonable nor prejudicial, Nguyen, 131 F.3d at 1349, especially in view of the evidence that counsel undoubtedly was aware would later be admitted. It was an entirely understandable strategic decision. We reject Mr. Fox's claim of ineffective assistance of counsel based on questions posed during voir dire.

b. Counsel's Failure to Inculpate Co-Defendant

Mr. Fox next argues that counsel was ineffective in that he failed to inculpate the co-defendant, on the theory that had he done so, it would have proven that Mr. Fox "did not kill, attempt to kill or intend to kill any of the victims" Aplt. Br. at 16. Citing Enmund, Mr. Fox implies that had his counsel demonstrated that it was Mr. Fowler who committed the actual murders, Mr. Fox would have been exonerated from the first degree felony murder charge.

In this vein, Mr. Fox argues counsel was ineffective for not refuting the state's blood spatter expert, who testified that two people were involved in the murders; for not making an opening statement; for failing to rebut Mr. Fowler's comments inculpating Mr. Fox during the guilt phase closing argument; and for failing to inculpate Mr. Fowler during the penalty phase closing argument.

An ineffective assistance claim may be resolved on either performance or prejudice grounds alone. See Hatch v. Oklahoma, 58 F.3d 1447, 1457 (10th Cir. 1995). This is true in the instant case regarding Mr. Fox's arguments about counsel's failure to inculpate Mr. Fowler in the guilt phase of trial. Because Mr. Fox was charged with first degree felony murder, he would not have been exculpated by inculpating defendant Mr. Fowler in the murders themselves, since Mr. Fox concedes that he participated in the underlying robbery. Okla Stat. Ann. tit. 21 701.7(B).

Moreover, the state's blood spatter expert was cross-examined by Mr. Fowler's counsel, who elicited the expert's concession that it was possible, albeit improbable, that one person committed the murders. Thus, Mr. Fox has not demonstrated any prejudice resulting from his counsel's failure to orally contest the expert's conclusion that two people committed the murders.

Additionally, Mr. Fox has not shown that his counsel was constitutionally deficient. That is, he has not overcome the presumption of trial strategy regarding his counsel's waiver of opening statement in the guilt phase, the failure to rebut Mr. Fowler's closing argument inculpating Mr. Fox in the guilt phase, and the failure to inculpate Mr. Fowler in the penalty phase. For counsel's actions to rise to the level of constitutional ineffectiveness, his strategic decisions must have been "'completely unreasonable, not merely wrong, so that [they] bear no relationship to a possible defense strategy.'" Hatch, 58 F.3d at 1459 (quoting United States v. Ortiz Oliveras, 717 F.2d 1, 4 (1st Cir. 1983)).

While opening and closing statements are not to be lightly waived in a capital case, it is well-settled that the decision to waive an opening or closing statement is a commonly adopted strategy, and without more, does not constitute ineffective assistance of counsel. See Nguyen, 131 F.3d at 1350; see also United States v. Haddock, 12 F.3d 950, 955 (10th Cir. 1993); United States v. Miller, 907 F.2d 994, 1000 (10th Cir. 1990).

The record indicates Mr. Fox's counsel chose to waive closing argument during the guilt phase as a strategic matter as well. Mr. Fox's counsel initially believed that waiving closing argument in the guilt phase would preclude the State from presenting rebuttal argument aimed at Mr. Fox. When the judge made it clear that this was not an accurate understanding of the trial procedures, Mr. Fox's counsel stated that he nevertheless thought that if he made a closing argument rebutting Mr. Fowler's arguments inculpating Mr. Fox, he would waive his objections to those arguments on Eighth Amendment grounds.

Finally, Mr. Fox's counsel's failure to argue that Mr. Fox was innocent during the penalty phase was a reasonable strategy, especially in light of the overwhelming evidence militating in favor of Mr. Fox's guilt. Instead, Mr. Fox's counsel understandably shifted the focus from Mr. Fox's innocence (or Mr. Fowler's guilt) to the humanity of his client. It was a reasonable strategy to do so, both to maintain credibility with the jury, and to try to emphasize the mitigating factors presented. Thus, following Hatch, we find that counsel's decisions amounted to a reasonable trial strategy, and as such, do not rise to the level of unconstitutional deficiency.

III. Admission of Misleading Testimony

Mr. Fox next claims that the state court permitted the jury to consider misleading evidence, thus violating his right to due process. Specifically, he alleges that the trial court impermissibly admitted the testimony of the state's forensic experts on blood, blood spatter, and hair evidence. Additionally, he asserts that the trial court impermissibly admitted forensic evidence regarding an article of clothing discovered with blood on it.

Mr. Fox's claims are properly characterized as a due process challenge to the state evidentiary rulings. On habeas review, we will not disturb the state court's evidentiary rulings unless the appellant demonstrates that the court's error was "so grossly prejudicial that it fatally infected the trial and denied the fundamental fairness that is the essence of due process." Williamson v. Ward, 110 F.3d 1508, 1522 (10th Cir. 1997). Mr. Fox has not demonstrated any error in the admission of this evidence, much less that the admission of the above evidence rendered the proceeding fundamentally unfair. Mr. Fox simply disagrees with the testimony.

As for the testimony of the various forensic experts, they were all adequately qualified to testify, See Saathoff v. Hesse, 72 F.3d 138 (10th Cir. 1995), and were subject to rigorous cross-examination. Weaknesses in the testimony of each of the state's forensic experts were sufficiently pursued and developed on cross-examination. First, the state's forensic blood expert witness admitted on cross-examination that the blood tests performed were presumptive and not conclusive. That is, he openly stated that he was unable to determine conclusively whether the stains were of animal or human origin. Next, the "blood spatter" expert who recreated the murder scene for the jury admitted on cross-examination that his account was not the only possible description. Rather, he conceded that it was possible, though not plausible, that one person could have committed the homicides.

Moreover, this forensic expert stated clearly that he relied on data produced from the aforementioned "presumptive" blood testing, the validity of which was discussed and tested at length. Finally, the state forensic hair expert's opinions were thoroughly tested on cross-examination, and a defense expert with a differing view was presented during the trial to rebut her claims. The state's hair expert candidly admitted that she was rushed in completing her testing. The credibility of these witnesses was a question exclusively for the jury.

Furthermore, the admission of evidence regarding blood found on an article of clothing, a white polo shirt, was not error and in any event, did not render the entire trial fundamentally unfair. The record reflects that the evidence bearing on what Mr. Fox wore the night of the murder was conflicting; the shirt was discovered behind the front seat of the vehicle driven by Mr. Fox the night of the murders. It was certainly relevant for the State to introduce evidence from forensic experts that there was blood on the shirt, most likely wiped off from the knife used in the murder. It seems that Mr. Fox is actually objecting to the weight accorded to the evidence admitted by the state trial court; this is not of constitutional dimension, and fails to satisfy our standard of review of state evidentiary rulings on habeas.

IV. Admission of Pre-trial Statements to Police

Next, Mr. Fox claims that the trial court failed to suppress pre-trial custodial statements to the police in violation of his Fifth and Fourteenth Amendment rights. After his arrest, and while in custody, two police officers approached Mr. Fox in the absence of his attorney, removed him from his cell, and gave him their business cards. The officers were aware that Mr. Fox had elected to remain silent, and that he had requested his attorney be present during any interrogation. The record reflects that as the officers were leaving, Mr. Fox indicated to them that he wanted to talk to them. The officers advised Mr. Fox of his right to counsel, and asked him if he wanted to waive it. Mr. Fox responded that while he preferred his counsel be present, he was nevertheless willing to talk with them2.

The statements taken during this interrogation were not admitted at trial. However, evidence was recovered as a result of information thus gathered. Mr. Fox argues that the officers' actions constitute interrogation in violation of his Fifth Amendment and Fourteenth Amendment rights. Moreover, Mr. Fox asserts, citing Minnick v. Mississippi, that he was legally incapable of waiving his right to counsel, once invoked, without his counsel present.

We find his claims unpersuasive. The officers' initial conduct did not constitute "interrogation" under controlling standards. Under Rhode Island v. Innis, interrogation extends only to words or actions that the officers should have known were reasonably likely to elicit an incriminating response. 446 U.S. 291, 301 (1980); see also United States v. Roman-Zarate, 115 F.3d 778, 782 (10th Cir. 1997). In the instant case, the officers merely introduced themselves to Mr. Fox and left him their business cards. The fact that Mr. Fox was in custody does not automatically render this exchange an interrogation. See Innis, 446 U.S. at 299. Such interaction between Mr. Fox and the police constituted conduct "normally attendant to arrest and custody," and was not the "functional equivalent" of interrogation. See id. at 301. Thus, we agree with the Oklahoma Court of Criminal Appeals in its conclusion that the officers' actions were not evocative within the meaning of Innis. See Fox v. State, 779 P.2d 562, 569 (Okla. Crim. App. 1989).

It is certainly true that once an individual has expressed his desire only to deal with police through counsel, all interrogation absent counsel will be deemed involuntary. See Edwards v. Arizona, 451 U.S. 477, 484-85 (1981); United States v. Giles, 967 F.2d 382, 385 (10th Cir. 1992). However, if the individual voluntarily initiates further communication with law enforcement officials, he can effectively waive his previously invoked right to counsel. See Oregon v. Bradshaw, 462 U.S. 1039, 1045-46 (1983); Cooks v. Ward, 165 F.3d 1283, 1288 (10th Cir. 1998). In the instant case, the facts presented at trial make it clear that Mr. Fox reinitiated contact with the officers as they were leaving. Reviewing his waiver de novo, Miller v. Fenton, 474 U.S. 104, 112 (1985), we agree with the district court's finding that Mr. Fox's waiver was voluntary.

The evidence demonstrates that Mr. Fox's waiver "was a product of free and deliberate choice...and was made in full awareness of the nature of the right being waived and the consequences of waiving." Cooks, 165 F.3d at 1288. Like the defendant in Cooks, Mr. Fox was fully appraised of his rights, he had previously exercised his right to remain silent absent his counsel (demonstrating his understanding of the right), and there is no evidence of coercion or compulsion on the part of the officers. Id.

Mr. Fox argues that it is legally impossible for an individual to waive his right to counsel, once invoked, absent counsel's presence. This badly misconstrues Minnick v. Mississippi, 498 U.S. 146 (1990). Minnick stands for the proposition that once counsel is requested, interrogation must cease, and law enforcement officials may not reinitiate interrogation without counsel present, regardless of whether the accused has conferred with his attorney. See id. at 153. Minnick does not bear on the instant situation, namely, where the accused voluntarily reinitiates contact with law enforcement officials. Because Mr. Fox voluntarily reinitiated contact with law enforcement officials, and validly waived his right to counsel, his instant claim does not warrant relief.

V. "Heinous, Atrocious, or Cruel" Aggravator

Mr. Fox argues next that the jury instruction given by the state trial court regarding the "heinous, atrocious, or cruel" aggravator is unconstitutional. Moreover, he argues that there was insufficient evidence to support the jury's finding of the above aggravator.

This identical challenge has been considered and rejected by this court on several occasions, see Cooks, 165 F.3d at 1289-90; see also Hatch, 58 F.3d at 1468-69; Duvall v. Reynolds, 139 F.3d 768, 792-93 (10th Cir. 1998), and binds this panel in the instant case. See Cooks, 165 F.3d at 1289 (citing United States v. Foster, 104 F.3d 1228, 1229 (10th Cir. 1997).

Next we consider whether given the evidence presented, viewed in the light most favorable to the prosecution, any rational trier of fact could have found the aggravating circumstance beyond a reasonable doubt. See LaFevers v. Gibson, 182 F.3d 705, 723 (10th Cir. 1999) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). This is a question of law which we review de novo. See, e.g., Romero v. Tansy, 46 F.3d 1024, 1032 (10th Cir. 1995).

John Barrier's murder was "especially heinous, atrocious, or cruel." It was marked by torture and serious physical abuse, evidenced by proof of conscious physical suffering. Sufficient evidence was presented to support this conclusion. The State's forensic expert testified that Mr. Barrier had defensive wounds on his hands, consistent with those one suffers in a fight for his life. Tr. 1677. Additionally, the detective who interviewed co-defendant Mr. Fowler testified that Mr. Fowler heard Mr. Barrier cry out and beg for his life. Tr. 1877. This is strong evidence of conscious physical suffering. Thus, Mr. Fox's claim for relief on this ground fails.

VI. Prosecutorial Misconduct

Mr. Fox next argues that he was subjected to unconstitutional prosecutorial misconduct. Specifically, he takes issue with the prosecutor's comments in two ways. First, he objects to the prosecutor's comments regarding the weight that should be accorded to the mitigating evidence presented. Second, he objects to the prosecutor's comments regarding the procedural and discretionary hurdles that are required before seeking the death penalty. Finally, Mr. Fox argues that he is entitled to a rehearing because the state and district courts applied the incorrect standard in reviewing his claim of prosecutorial misconduct.

Prosecutorial misconduct claims present mixed issues of law and fact and are reviewed by this court de novo. See Fero v. Kerby, 39 F.3d 1462, 1473 (10th Cir. 1994). Mr. Fox will be entitled to habeas relief only if he can establish that the prosecutor's misconduct or improper remarks infected the trial to such an extent that it resulted in a fundamentally unfair trial. See Donnelly v. DeChristoforo, 416 U.S. 637, 645 (1974).

The prosecutor in the instant case made several comments that Mr. Fox regards as tantamount to instructing the jury that it should ignore mitigating evidence. Namely, the prosecutor said:

I tell you today that what these two were prior to 1985 is irrelevant. Tr. 2345.

Why these defendants are what they are may be a good field of research, but it's no mitigation or justification for what they did. It doesn't change them back and it doesn't mitigate what they did. Tr. 2348.

Is it adequate punishment just to lock them up on a clean bed with clean clothes and three meals a day? Is that adequate punishment for taking three lives? Tr. 2358.

Mr. Fox argues that these comments violate the dictates of Hitchcock v. Dugger, 481 U.S. 393 (1987), which reversed a death sentence because the advisory jury was instructed not to consider, and the sentencing judge refused to consider, evidence of nonstatutory mitigating circumstances.

The facts of Mr. Fox's case are distinguishable. Only the court instructs the jury. The prosecutor merely argues to the jury. In this case, the prosecutor's comments bore on the weight to be accorded to the mitigating evidence. The comments did not contradict the court's instructions and did not preclude the jury from considering this evidence. The court is permitted to shape and structure the jury's consideration of mitigating evidence, provided that it does not preclude the jury from giving effect to the mitigating evidence. See Buchanan v. Angelone, 118 S.Ct. 757, 761 (1998).

In the instant case, the prosecutor merely commented on the weight that should be accorded to the mitigating factors. He did not suggest that the jury was not permitted to consider the factors. It is well-settled that the prosecutor may comment on "information about the defendant, his character, and the circumstances of his offense made known to the jury throughout the bifurcated trial." Coleman v. Brown, 802 F.2d 1227, 1239 (10th Cir. 1986).

The trial court clearly instructed the jury that "the determination of what are mitigating circumstances is for you as jurors to resolve under the facts and circumstances of this case." O.R. at 202. Also, after listing thirty factors that Mr. Fox offered in mitigation, the trial court further instructed the jury that "whether these circumstances existed, and whether these circumstances are mitigating, must be decided by you." O.R. at 204. The prosecutor's remarks did not constitute misconduct that prejudiced Mr. Fox so as to deny him a fair trial consistent with due process.

Mr. Fox further claims that the following comments made by the prosecutor diminished the jury's sense of responsibility in violation of the rule set forth in Caldwell v. Mississippi, 472 U.S. 320 (1985):

I had to make the decision to seek the death penalty. Before I could do that, the Edmond police department and the Oklahoma City police department had to bring the evidence to me upon which I could justify such a decision. And all of you, you, the jury and my staff and the police departments and their experts did what we did because it's our responsibility and duty.

Tr. at 2350. Mr. Fox misconstrues Caldwell. In that case, the court held that the prosecutor could not suggest to the jury that it was not the final arbiter of the defendant's fate, given that there was an appeals process in which their determination was reviewable. See Caldwell, 472 U.S. at 328-329. In this case, the prosecutor told the jury that he did not undertake the decision to seek the death penalty lightly, and pointed to the different elements that went into making his decision. This is a permissible line of commentary. See Moore v. Gibson, 195 F.3d 1152 (10th Cir. 1999) (holding that it was not a violation of Caldwell for the prosecutor to note "a number of things have to happen" before a death sentence is sought); see also Sellers v. Ward, 135 F.3d 1333, 1343 (10th Cir. 1998) (prosecutor's suggestion that he personally approved of death penalty and statements that "many hurdles had to be jumped before a capital murder trial could ever occur" were insufficient to suggest that anyone other than the jury had the burden to make ultimate sentencing decision). Thus, we reject Mr. Fox's claims based on a Caldwell violation.

The district court reviewed the merits of Mr. Fox's claim of prosecutorial misconduct, and properly applied the Donnelly standard in reaching its determination. Mr. Fox is not entitled to re-sentencing on these grounds.

VII. Jury Instructions Regarding Option of Life Sentence

Mr. Fox next argues that he is entitled to relief because the jury instructions given did not explicitly inform the jury that they were not required to give a sentence of death, even if they made a determination that the aggravating factors outweighed the mitigating factors. Mr. Fox properly recognizes that we have rejected this very claim in Duvall v. Reynolds, 139 F.3d 768, 789-91 (10th Cir. 1998).

He urges that we nevertheless depart from our earlier holding given that the court there failed to consider the relevance of Oklahoma's revision of its uniform jury instructions in 1994, to include the instruction he sought at trial. This argument is likewise unavailing; the court squarely passed on this contention in Bryson v. Ward, 187 F.3d 1193, 1207 (10th Cir. 1999). In Bryson, we held that while the revised jury instruction clearly sets forth the settled law, the failure to give such an instruction is not constitutional error. Id. As stated previously, this resolution binds this panel in the instant case.

VIII. Restriction of Cross-Examination

Mr. Fox argues that he is entitled to relief because the state trial court unconstitutionally restricted his cross-examination of the state's forensic expert regarding hair evidence. Mr. Fox sought to elicit from her, in cross-examination that there was a delay in her analysis due to her large caseload. The court sustained the state's objection to this question, and held that while the inquiry was relevant, any probative value was outweighed by the prejudice that the defendant would suffer by implying that there was an unusually high rate of crime in the county where the murders took place.

As stated previously, Mr. Fox faces a demanding burden in raising a challenge to the trial court's evidentiary ruling on habeas review. That is, relief is not available on this ground unless Mr. Fox shows that the entire proceeding was rendered fundamentally unfair by the trial court's limit on cross-examination. See Sellers, 135 F.3d at 1342. The inquiry focuses on the materiality of the excluded evidence to the presentation of Mr. Fox's defense, and ultimately turns on whether or not the trial court deprived Mr. Fox of an opportunity for effective cross examination. Id.

Mr. Fox has not satisfied this burden. We are not persuaded that the entire trial was rendered fundamentally unfair by the trial court's restriction on Mr. Fox's cross-examination. Mr. Fox's counsel was permitted to elicit that the state's forensic expert had been under pressure to complete her analysis, and as such, her work was hurried. Additionally, the state's expert was thoroughly cross-examined concerning her conclusions.

Moreover, Mr. Fox's co-defendant presented his own expert testimony directly challenging the state expert's opinions. In light of the foregoing, prohibiting Mr. Fox's inquiry into the delay in the forensic expert's analysis did not have the effect of rendering the entire proceeding fundamentally unfair. Thus, Mr. Fox's claim for relief on this ground fails.

IX. "Avoid Arrest or Prosecution" Aggravator

Mr. Fox next seeks relief on the grounds that the state trial court applied the "avoid arrest or prosecution" aggravating circumstance in an unconstitutionally vague and overbroad manner. However, the arguments Mr. Fox advances in support of this proposition are more accurately characterized as a challenge to the sufficiency of the evidence supporting the finding of this aggravating circumstance. That is, Mr. Fox merely argues that there is nothing in the record to support this aggravating circumstance.

To support the finding of this aggravating circumstance, the focus is on the defendant's intent, whether proved by the defendant's own statement or through circumstantial evidence. See Boyd v. Ward, 179 F.3d 904, 923 (10th Cir. 1999). In the instant case, there was ample evidence from which a rational fact finder could conclude that the aggravating circumstance was present. Neither Mr. Fox nor Mr. Fowler attempted to conceal their identities.

Mr. Fox had worked at the Wynn's IGA previously, and it is thus reasonable to infer that he knew one or more of the victims and that they could have identified him. Moreover, as the federal district court observed, Mr. Fox and Mr. Fowler committed these crimes in the early morning hours, when it was unlikely that other customers would be present. The robbery was planned for a time when there would be a minimal number of employees present. All of the foregoing is persuasive circumstantial evidence supporting a finding of the aggravating circumstance in question. Mr. Fox's claim for relief on this ground fails.

X. "Continuing Threat" Aggravator

Mr. Fox next argues that the "continuing threat" aggravating circumstance, as used in Oklahoma is constitutionally deficient, insofar as it would apply to every defendant convicted of murder. Mr. Fox properly recognizes that this court has upheld the constitutionality of this aggravating factor in Nguyen v. Reynolds, 131 F.3d 1340, 1353 (10th Cir. 1997). He nevertheless asks that we revisit the issue and grant relief. Even if we were so inclined, we are unable to do so, given that the determination of the Nguyen panel binds this panel.

XI. Jury Instruction Regarding Unanimity Requirement for Mitigating Factors Determination

Mr. Fox next argues that the trial court's failure to instruct the jurors that they need not be unanimous in their findings of mitigating evidence was error of constitutional magnitude warranting relief on habeas. This court has squarely addressed and rejected this claim in LaFevers v. Gibson, 182 F.3d 705 (10th Cir. 1999), in which we held that "a trial court need not, however, expressly instruct a capital sentencing jury that unanimity is not required before each juror can consider a particular mitigating circumstance." Id. at 719. This resolution is binding on this panel.

XII. Evidentiary Hearing

Finally, Mr. Fox claims that he is entitled to an evidentiary hearing to develop his claims that the jury was permitted to consider misleading evidence and ineffective assistance of counsel. To establish entitlement to an evidentiary hearing under pre-AEDPA standards, Mr. Fox must "make allegations which, if proved, would entitle him to relief." See Stouffer v. Reynolds, 168 F.3d 1155, 1168 (10th Cir. 1999). If Mr. Fox has made these requisite allegations, he is entitled to a hearing only if there is a factual dispute, and he did not receive a full and fair evidentiary hearing in a state court. See Miller v. Champion, 161 F.3d 1249, 1252 (10th Cir. 1998). Following our own independent review, we agree with the district court that the issues here raised by Mr. Fox were properly resolved on the basis of the record and the law, and as such, an evidentiary hearing is not required. See Castro v. Ward, 138 F.3d 810, 832 (10th Cir. 1998).

AFFIRMED.

*****

Notes:

1

In his brief, Mr. Fox refers improperly to this individual as a "juror."

2

Mr. Fox stated: "My case is not getting any better. It is getting worse, I mean. I would like it if the lawyer was on his way. While I am talking to you now, I mean, I don't mind him not being here, you know, but I am ready to talk to you all now." State's exhibit 108(A) at 2 (admitted only for purposes of in camera hearing).

 

 

 
 
 
 
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