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Jerald Wayne HARJO





Classification: Murderer
Characteristics: Rape - Robbery
Number of victims: 1
Date of murder: January 16, 1988
Date of birth: March 20, 1961
Victim profile: Ruth Marie Porter (female, 64)
Method of murder: Smothering with a pillow
Location: Seminole County, Oklahoma, USA
Status: Executed by lethal injection in Oklahoma on July 17, 2001


On January 16, 1988, Harjo broke into the home of 64-year-old grandmother Ruth Porter in rural Seminole County.

Harjo broke into Ruth's home to try to find the keys to her van and strangled her in her bed. Investigators believe he also raped her. Ruth's daughter found the body of the elementary school secretary the next morning.

In a confession to police, Harjo said that when Ruth Porter awoke, he put a pillowcase over her face and strangled her with his hands. Porter's car was found at the home of Harjo's brother, and a bicycle ridden by Harjo to the scene was found nearby in a ditch.

At the time, Haro was on a suspended sentence for car theft, and had a prior prison commitment for Burglary.


Killer to Die at OSP

By Doug Russell - McAlester News-Capital & Democrat

July 14, 2001

Teachers and staff who worked at Sasakwa Schools remember Jan. 16, 1988, very well. But they remember the 18th - a Monday - even better. That was the day they took time out of their busy schedules to comfort and console students who learned a beloved school secretary would no longer be there.

Ruth Marie Porter, a secretary at Sasakwa Elementary School for 19 years, was dead at 64; murdered in her Seminole County home. The man who killed her, 40-year-old Jerald Wayne Harjo, is scheduled to die by lethal injection Tuesday.

In a letter to the Oklahoma Pardon and Parole Board, Porter's daughter remembered her mother, the murder and its aftermath. Porter, Mary Branscum wrote "provided many children with a Band-Aid, a pat on the head, a kind word or just a little extra attention when they were needy.

Suddenly she was no longer there to do those things. "Even now young adults who were in elementary school at the time will mention how they missed 'Mrs. Porter' after she died."

"She was like a mother to the students," former superintendent Samuel G. Barnes recalled. "I never knew a person who worked in schools who was better liked and respected than she was."

Another former school employee, whose signature is illegible, wrote "(Porter) was everything to those students - nurse, grandma and friend. Her death left quite an empty spot at Sasakwa Elementary School and the community. "She was one of a kind."

Friends and family members recall Porter as a kind, gentle and loving woman. She had served in the Womens' Army Corp in World War II, had been a treasurer in her church and had cared for her quadriplegic husband since a car accident in 1960 left him paralyzed. "Those in our family of six girls and two boys always considered Ruth to be our family treasure," Porter's sister, Mary K. Smith said. "She was that good of a person."

When Branscum and her husband visited Porter's home the morning of Sunday, Jan. 17, 1988, they found the "family treasure" dead, lying on her back with a pillow over her face. She had suffered scratches to her face, chest, arms and vaginal area.

Police also found Porter's windpipe had been crushed, her lower dentures had been displaced and her pubic hair was singed.

"It was so unreal we didn't know what to do or even feel at that time," Branscum recalled. But she and her husband went through the motions; calling family members and letting them know what had happened. None of the calls were easy, but the hardest telephone call was the one she had to make to her father.

John Porter was in the Veteran's Hospital in Memphis, Tenn., when his wife was killed. "My father didn't have the same light in his eyes and joy in his heart after his wife was murdered," Branscum said.

According to court documents, Porter's Ford Mustang was missing when her body was discovered. Police found the Mustang at the home of Harjo's brother. They also found a bicycle Harjo had been riding in a ditch near Porter's home. After being questioned by police, Harjo confessed to the murder.

According to court documents, he had piled two cinder blocks on top of each other and entered the home through a back window. Once inside, he tore eyeholes in a pillowcase and put it over his head before entering Porter's bedroom. When Porter woke, Harjo put a pillow over her face and strangled her with his hands.

Bill Peterson, the Seminole County District Attorney who prosecuted Harjo, said Harjo showed no visible emotion when he was found guilty and sentenced to death.


Oklahoma Man Executed for 1988 Death

By The Associated Press -

Wednesday, July 18, 2001

McALESTER, Okla. (AP) - A man who strangled a 64-year-old grandmother after breaking into her home in 1988 was put to death by injection Tuesday night. Jerald Wayne Harjo, 40, broke into Ruth Porter's house to try to find the keys to her van and killed her in her bed, authorities said. Investigators believe he also raped her.

Porter's daughter found the body of the elementary school secretary the next morning. A pillow had been forced onto her face, crushing her windpipe.

Authorities said Harjo had been bicycling to his brother's house when it began to rain. He decided to ditch the bicycle and steal Porter's van.

At the time, Harjo was on a suspended sentence for stealing a car.

He confessed to the murder after investigators found his muddy tennis shoe prints on Porter's floor, former Seminole County Sheriff Charles Sisco said.

Harjo was the 14th person executed this year in Oklahoma and the 44th since the state reinstated the death penalty in 1976.


Harjo Executed

Man Pays for Strangulation Death of Sasakwa Grandmother

The Shawnee Online

MCALESTER, Okla. (AP) -- A man who strangled a Sasakwa grandmother and smothered her with her pillow 13 years ago paid for the crime with his life Tuesday night. Jerald Wayne Harjo, 40, died at 9:10 p.m. in Oklahoma's death chamber.

Harjo's feet knocked together under the white sheet draped across his body. His eyelids fluttered when he closed them, after telling the warden, "Uh, no," when asked if he had any last words.

Harjo took one deep breath after the lethal drugs began to flow, then snored as the air left his lungs. He was pronounced dead just two minutes after the execution began. Harjo was the 14th person executed this year and the 44th since the state resumed the death penalty in 1976.

Harjo climbed into 64-year-old Ruth Porter's spare bedroom window to look for keys to her van on the stormy night of Jan. 16, 1988. He murdered her in her bed, took the keys and drove to his brother's house in Wewoka.

Porter's daughter found her the next morning with a pillow over her face. Her windpipe was crushed, her face was scratched and bruised and her pubic hair was singed with a lighter. Investigators believe the Sasakwa elementary school secretary was raped.

Her daughter, Mary Branscum, and seven other relatives watched as lethal drugs pumped into Harjo's veins Tuesday night. The first one rendered him unconscious, a second stopped his breathing and the last -- potassium chloride -- arrested his heart.

Harjo asked his family not to attend the execution. "As Christians, we are not here for revenge but to see justice served for Ruth Harris Porter," a statement from Porter's family read. "We know that this execution does not make up for what happened to our mother, aunt and grandmother. But Jerald Harjo made his choice and this is the price he must pay."

In his last hours, he visited with his attorney and a friend and ate his last meal: a cheeseburger, two hamburgers, two orders of fries, a 16-ounce Dr. Pepper and a large vanilla malt.

Harjo had been smoking marijuana and drinking alcohol the night he decided to ride his bicycle to his brother's house in Wewoka, former Seminole County Sheriff Charles Sisco said. A thunderstorm made him ditch the bicycle just north of Sasakwa, next to Porter's rural house.

Harjo tried to hot-wire the woman's van, but couldn't. Investigators believe he climbed through a window by stacking cement blocks outside one of Porter's windows.

A Wewoka police officer who knew Harjo was on a suspended sentence for stealing a car drove by Harjo's brother's home on a hunch and found the woman's van. Harjo eventually confessed to the crime on audiotape after investigators found his muddy tennis shoe prints on Porter's floor, Sisco said.

The jury that recommended the death sentence heard the tape and testimony from a trooper who said he saw Harjo riding down the highway on a bicycle.

Porter's daughter said she hasn't been able to forget the final image of her mother, her nightgown pulled up to her neck and a pillow on her face. Branscum watched Harjo's execution in part for her father, who died in 1993 and asked her to see the process to the end.

Her father was in a Memphis, Tenn., hospital when his wife was murdered because he had been paralyzed in an auto accident years earlier. "Never in his wildest dreams did he believe he would outlive her," Branscum wrote recently in a letter to the state attorney general's office. "My father did not have the same light in his eyes and joy in his heart after his wife was murdered."


Web site 'handicaps' executions

By Gene Collier - PostGazette.vom

Wednesday, July 18, 2001

Jerald Harjo got to death row in Oklahoma along the main atrocity highway; he strangled an 84-year-old woman while robbing her home. Nothing legally remote or narratively circuitous about that, so there's no mystery in the fact that his case attracted little national notice.

It's of no significant concern even in Oklahoma and might more likely be a talking point in Texas, because if Oklahoma put Harjo to death this week as planned (he was scheduled to die late last night), it would mean that Oklahoma has executed 13 people this year to Texas' seven. Whenever Oklahoma goes up a touchdown on Texas, Texans grow concerned.

But if nowhere else, Harjo's case was a hot issue among players of Fantasy Death Row, the Internet game that does for state-sponsored savagery what rotisserie leagues did for baseball, football, etc. Oh, there's nothing we can't geek on.

This means there is somebody at an office coffee machine somewhere saying, "Can you believe Harjo got a stay? Man, I never thought he was worth 5 points. Thought he was a dead man. That's four stays for me this month. Is the kid hot or what?"

When your own culture fosters breezy jocularity about life and death against the dark yammering symphony of protest over China being awarded the 2008 Olympics, you wonder whether a better question than "How, with its horrid human rights record, did China get the Olympics?" might be "How did Atlanta, or Salt Lake City, or Los Angeles ever get them?"

Where but in the good ol' USA, do you suppose, could someone maintain a thriving Web site that lives to handicap executions?

"He's American Indian," Fantasy Death Row says of Harjo, "which, while a source of sympathy in some states, is a liability in Oklahoma. Anti-DP [death penalty] haven't mobilized."

Written with the cadence and animal indifference of a racing form, the site listed Harjo's chances of being killed at 3-1 against. The way you play Fantasy Death Row is by picking three prisoners from among the thousands of condemned men and women nationally, then earning points depending on their fate.

The better the prisoner's fate, the more points you get. I suppose there's a certain humanity in that, but the search could be exhausting.

If your death row inmate gets pardoned, you get 50 points.

Clemency earns you 25, a stay 5, and 1 point if the doomed beseech God's mercy in their final words. If your pick is executed, you lose 10 points, and if he or she is executed and later determined to be innocent, you lose 50. That last one's your Final Fantasy Death Row Nightmare, I guess, and all it cost was the life of an innocent.

China may have killed more people in the past three months than the rest of the world's nations have in the past three years, as Amnesty International has pointed out, but given the disproportions of population, the folks at the Fantasy Death Row site have figured out that a person is still more likely to be executed by Texas.

Working it as a naked long-division problem, Fantasy Death Row scientists say the chances that a person in China will be executed by his or her government are 1 in 155,904, while the chances a Texan will get a night in the death chamber are 1 in 147,885. That doesn't even allow for the harsher math facing blacks, the poor, the mentally impaired or those afflicted by feckless counsel.

But let's not pick on Texas; we've got plenty of states all outfitted not only for capital punishment, but also for capital punishment of the mentally retarded, even capital punishment for juveniles if we get around to it.

Human rights issues are everywhere the Olympic spotlight never sweeps. You don't have to look past Steve Twedt's current and exquisitely compelling series on how Pennsylvania has forced its juvenile justice system to warehouse mentally ill children for a chilling example.

America has a half-million more prisoners than China with only one-quarter of its population.

All that having been said, it probably shouldn't preclude either country from hosting the Olympics. It's not, after all, the honor it used to be. China being the host is actually a good thing. Since its athletes are consistently among the world's most chemically endowed, keeping them at home should hold the gross metric tonnage of performance-enhancing drugs crossing international borders to a modern minimum.

Jerald Wayne Harjo was convicted in the Jan. 16, 1988, murder of 64-year-old grandmother Ruth Porter in her rural Seminole County home.

Harjo broke into Ruth's home to try to find the keys to her van and killed her in her bed, authorities said. Investigators believe he also raped her.

Ruth's daughter found the body of the elementary school secretary the next morning. A pillow had been forced onto her face, crushing her windpipe.

Authorities said Harjo had been bicycling to his brother's house when it began to rain. He decided to ditch the bicycle and steal Ruth's van. At the time, Harjo was on a suspended sentence for stealing a car.

He confessed to the murder after investigators found his muddy tennis shoe prints on Ruth's floor and her van at his brother's house, former Seminole County Sheriff Charles Sisco said. Harjo's final appeal was denied May 14 by the U.S. Supreme Court.


Death Penalty Institute of Oklahoma

Jerald Wayne Harjo, 40, was pronounced dead at 9:10pm on Tuesday, July 17. He was killed via lethal injection at Oklahoma State Penitentiary in McAlester. He became the 14th person executed by Oklahoma this year.

Only Texas, with a population six times greater than ours, has executed more people in a single year. Harjo was put to death for the 1988 murder of Ruth Porter, 64.

The US Supreme Court had denied Harjo's most recent appeal in May. Vigils and protests were held at numerous locations around the state. As always, a vigil was held outside the gates of Oklahoma State Penitentiary in McAlester.


Remember Jerald Harjo


Jerald Wayne Harjo was convicted of first degree murder in Seminole County, Oklahoma. Harjo, who is Native American, was attempting to steal the car of Ruth Porter, a sixty-four-year-old resident with whom Harjo was acquainted, on the night of January 16, 1988.

Mrs. Porter awoke as Mr. Harjo entered the bedroom in search of the keys, and startled by her sudden consciousness, Mr. Harjo struggled with and killed Mrs. Porter. Mr. Harjo was drunk at the time of the robbery and murder.

Harjo eventually confessed to his crimes after long deliberation with police, and, during his trial, wrote a letter of remorse to the jury. Yet the court did not allow the statement under the State's hearsay objection, since Harjo, who has a low IQ and could not verbalize his feelings, asked his counsel to read the letter.

Jerald Wayne Harjo was sentenced to death under Oklahoma's "heinous, atrocious, and cruel" aggravator. On appeal, a majority of the Oklahoma Court of Appeals ruled that the struggle that ensued upon Mrs. Porter's awakening consciousness constituted "torture and serious physical abuse".

Judge Lane, in a dissenting opinion joined by Judge Chapel, held: "Before a jury may find a murder is 'especially heinous, atrocious, or cruel', the evidence must allow it to find the murder was preceded by torture or serious physical abuse...I believe the majority's holding...liberalizes death qualification to include any murder by suffocation or strangulation."

Moreover, there was considerable proof that "torture" was not in keeping with Mr. Harjo's personality. Harjo and his counsel argued that a great deal of mitigating evidence was not admitted to trial and, as such, could not provide jurors with a better perspective on Mr. Harjo's character and history.

Prior to the conviction, he was "generally a good employee, had served one year with honorable discharge in the National Guard, and had been an excellent prisoner in the county jail." Harjo's attorneys believed that if that mitigating evidence had been admitted, he would not have received a death sentence.


United States Court of Appeals
For the Tenth Circuit

No. 99-7041

JERALD WAYNE HARJO, Petitioner-Appellant,
GARY GIBSON, Warden, Oklahoma State Penitentiary; DREW EDMONDSON, Attorney General of the State of Oklahoma, Respondents-Appellees.

Filed June 21, 2000


Before TACHA, BRORBY, and MURPHY, Circuit Judges.

Petitioner was convicted of first degree murder.(1) The jury found two aggravating circumstances­the murder was heinous, atrocious, or cruel and the murder was committed to avoid arrest or prosecution­and fixed punishment at death. The Oklahoma Court of Criminal Appeals affirmed. See Harjo v. State, 882 P.2d 1067 (Okla. Crim. App. 1994) (per curiam), cert. denied, 514 U.S. 1131 (1995). That court also denied post-conviction relief. See Harjo v. State, No. 96-966 (Okla. Crim. App. Jan. 9, 1997) (unpublished). The federal district court denied habeas corpus relief, and we affirm.


On the evening of Saturday, January 16, 1988, petitioner, who had been drinking, rode his nephew's bicycle to the home of the victim, sixty-four year old Ruth Porter. Petitioner abandoned the bicycle at the side of the road.

A van and a Ford Mustang were parked in Mrs. Porter's driveway. Petitioner took a screwdriver from the van. He piled two cinder blocks under a back bedroom window and, using the screwdriver, removed the screen from the window and entered the home.

Petitioner found a pillowcase, tore two eye holes in it, and placed it over his head. Then, he entered Mrs. Porter's bedroom, where she was asleep. When she awakened, petitioner got scared and put a pillow over her face. He also strangled her with his hands and burned her pubic hair with a cigarette lighter.

After killing Mrs. Porter, petitioner took the keys to the Mustang and drove it to his brother's home. On Sunday, Mrs. Porter's son-in-law found her body and reported the murder. That afternoon, Wewoka Police Officer Blankenship saw the Mustang, which the police had been looking for, parked at petitioner's brother's home.

Officer Blankenship questioned petitioner after giving him Miranda(2) warnings. Petitioner denied taking the car and provided another officer with the names of two others who allegedly took the car. A roadblock was set up but these two were never located. Sheriff Sisco took petitioner to the sheriff's office for questioning. The sheriff read petitioner Miranda warnings, and petitioner signed a waiver of rights. After over two hours of questioning, and petitioner changing his story, he confessed to the crimes.


Because petitioner filed his habeas petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996, it applies to this appeal. See Williams v. Taylor, 120 S. Ct. 1479, 1486 (2000). Petitioner will not be entitled to habeas relief unless he can establish that a habeas claim adjudicated by the state courts "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established" Supreme Court precedent, or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1), (2).

Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.

Williams v. Taylor, 120 S. Ct. 1495, 1523 (2000). This court will presume the correctness of state court findings of fact, unless petitioner is able to rebut that presumption by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).

"If[, however, a] claim was not heard on the merits by the state courts, and the federal district court made its own determination in the first instance, we review the district court's conclusions of law de novo and its findings of fact, if any, for clear error." LaFevers v. Gibson, 182 F.3d 705, 711 (10th Cir. 1999).



Petitioner argues the evidence was insufficient to support the heinous, atrocious, or cruel aggravator because the evidence did not show Mrs. Porter consciously suffered torture or serious physical abuse. The Oklahoma Court of Criminal Appeals determined sufficient evidence existed to support this aggravator: "[petitioner] strangled and suffocated Mrs. Porter with his bare hands. She sustained scratches and bruises on her face, chest, arms and vaginal area. Her lower denture was displaced; her windpipe crushed. Her pubic hair was singed. Mrs. Porter struggled prior to her death." Harjo, 882 P.2d at 1078.

"Under Oklahoma law, the torture or serious physical abuse required by the properly narrowed [heinous, atrocious, or cruel] aggravator may include infliction of great physical anguish or extreme mental cruelty." Jones v. Gibson, 206 F.3d 946, 952 (10th Cir. 2000). "Conscious physical suffering of the victim must occur before death and any extreme mental distress must result from the petitioner's intentional acts." Id. at 952-53.

Conscious physical suffering before death may be proved by statements of the petitioner or any other evidence showing the victim remained alive and conscious during the attack. See Powell v. State, 906 P.2d 765, 782 (Okla. Crim. App. 1995). Mental torture must produce mental anguish in addition to what accompanies the underlying killing. See Jones, 206 F.3d at 953.

Analysis focuses on the petitioner's acts and the level of tension created by those acts. See id. Although Oklahoma law does not clearly establish the length of time a victim must be terrorized before there is mental torture, factors such as anticipation of harm and lack of provocation can establish mental torture. See id. at 953-54.

Reviewing all of the evidence in the light most favorable to the State, we conclude a rational factfinder could have found the existence of this aggravator beyond a reasonable doubt. See Lewis v. Jeffers, 497 U.S. 764, 780-82 (1990). Although the record does not expressly establish when Mrs. Porter lost consciousness, petitioner stated in his confession that she struggled. This shows that she was conscious during the attack and anticipated harm and that death was not instantaneous. See Jones, 206 F.3d at 954. We therefore conclude the Oklahoma Court of Criminal Appeals' determination was reasonable.


Petitioner argues that he was denied his right to present mitigating evidence of remorse. Petitioner had composed a letter to the jury expressing his remorse for Mrs. Porter's death and for the pain suffered by her family. Lacking ability to verbalize his feelings, he had asked counsel to read the letter. The trial court denied permission based upon the State's hearsay objection. The Oklahoma appellate court held the trial court did not deny petitioner his constitutional right to be heard, but rather disallowed him to avoid cross-examination. See Harjo, 882 P.2d at 1080 (distinguishing Green v. Georgia, 442 U.S. 95 (1979) (per curiam)).

The Oklahoma appellate court correctly distinguished Green. In Green, a co-defendant had confided to a friend that he had killed the victim. The trial court disallowed the friend's testimony under state hearsay rules. The Supreme Court held that, regardless of whether the proffered testimony was hearsay, exclusion violated due process because the testimony was relevant to punishment, there was ample evidence to corroborate the confession, and the evidence was reliable. See Green, 442 U.S. at 97; see also Paxton v. Ward, 199 F.3d 1197, 1214 (10th Cir. 1999) (concluding that, like in Green, excluded evidence was highly relevant to punishment and State had considered it sufficiently reliable to warrant dismissal of earlier charges).

Here, however, petitioner's own statement, and not a co-defendant's confession, was at issue. In Green, the excluded confession tended to show the defendant's innocence. In this case, the statement tended to show remorse, which petitioner had expressed in his confession, which was presented to the jury, when he stated he did not expect the victim to die and he performed CPR in an attempt to save her. Also, the statement here did not have the same reliability as the confession in Green. It was not spontaneous and was not against petitioner's interest.

We agree with other courts that Green should not be extended to require a state to admit a defendant's own out-of-court words. See McGinnis v. Johnson, 181 F.3d 686, 693 (5th Cir. 1999), cert. denied, 120 S. Ct. 955 (2000); Gacy v. Welborn, 994 F.2d 305, 316 (7th Cir. 1993); see also Harvey v. Shillinger, 76 F.3d 1528, 1534 (10th Cir. 1996) (recognizing right to allocution is not constitutionally protected); United States v. Barnette, 211 F.3d 803, 820 (4th Cir. 2000) (deciding criminal defendant has no constitutional right to make unsworn statement of remorse to jury which is not subject to cross examination). Accordingly, we conclude the Oklahoma appellate court's determination was not unreasonable.


Petitioner argues the murder to avoid lawful arrest or prosecution aggravator is unconstitutional because it applies to any person accused of murdering a potential witness to a prior felony if there is any evidence of an attempt by the accused to conceal his identity. Additionally, petitioner argues the evidence was insufficient to support this aggravator, because Mrs. Porter did not know about the other crimes at the time he killed her and she did not identify him.

The Oklahoma appellate court recognized it has consistently found this aggravator does not create a risk of arbitrary and capricious imposition of the death penalty. See Harjo, 882 P.2d at 1080-81. It also determined the evidence was sufficient to support this aggravator. See id. at 1078.

Instructing the jury according to the statutory language of the aggravator, as the trial court did, meets constitutional standards. See Boyd v. Ward, 179 F.3d 904, 922-23 (10th Cir. 1999), cert. denied, 120 S. Ct. 1188 (2000); see also Davis v. Executive Dir. of Dep't of Corrections, 100 F.3d 750, 769-70 (10th Cir. 1996) (determining similar Colorado aggravating circumstance was constitutional). Thus, further narrowing was not necessary, and the Oklahoma appellate court's determination was not unreasonable.

Oklahoma law requires that the predicate crime for this aggravator be separate and distinct from, rather than significantly contributing to, the murder. See Barnett v. State, 853 P.2d 226, 233-34 (Okla. Crim. App. 1993). "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." Fox v. Ward, 200 F.3d 1286, 1301 (10th Cir. 2000).

Reviewing pursuant to the rational factfinder standard, see Lewis, 497 U.S. at 780-82, we conclude the Oklahoma appellate court's determination that there was sufficient evidence to support this aggravator was not unreasonable. Petitioner murdered Mrs. Porter after burglarizing her home and van. He wore a pillow case over his head. He and Mrs. Porter knew each other. He confessed that after she awakened and started struggling he got scared and kept smashing the pillow into her face. Thus, as the Oklahoma appellate court determined, the jury could have reasonably inferred petitioner feared Mrs. Porter would identify him if he did not kill her. See Harjo, 882 P.2d at 1078.


Petitioner alleges five instances of ineffective assistance of trial counsel: (1) counsel failed to adequately investigate and present additional mitigating evidence; (2) counsel failed to request additional expert assistance; (3) counsel failed to object to improper prosecutorial comments; (4) counsel failed to object to the removal for cause of six prospective jurors; and (5) counsel failed by the cumulative effect of these errors.

In order to obtain habeas relief, Strickland v. Washington, 466 U.S. 668, 687 (1984), which the Oklahoma Court of Criminal Appeals applied, requires petitioner to establish both that his attorney's representation was deficient and that he was prejudiced by counsel's deficient performance. This court need not address both components if petitioner failed to make the requisite showing for one. See, e.g., Cooks v. Ward, 165 F.3d 1283, 1292-93 (10th Cir. 1998), cert. denied, 120 S. Ct. 94 (1999).

A. Failure to Investigate or Present Additional Mitigating Evidence

Petitioner argues counsel should have presented additional mitigating evidence at the sentencing stage, after reasonable investigation and preparation. Because counsel allegedly did not ask petitioner or anyone in his family about potential mitigation witnesses and did not try to interview possible mitigation witnesses, petitioner contends counsel never learned he was generally a good employee, had served for one year with honorable discharge in the National Guard, and had been an excellent prisoner in the county jail. Petitioner believes that if this mitigating evidence had been presented, he would not have received the death penalty.

The Oklahoma Court of Criminal Appeals concluded petitioner failed to meet his burden of proving ineffectiveness. See Harjo, 882 P.2d at 1078. We conclude this determination was not unreasonable.

Without deciding whether counsel's performance was deficient, we conclude petitioner has failed to show prejudice. None of the evidence petitioner points to would have been particularly helpful. Although petitioner had been a quiet, reliable employee who never caused problems and appeared to get along well with coworkers and supervisors, he had been unemployed for six years. During his twelve months of National Guard service, he had nine unexcused absences. Evidence of a successful incarceration typically is used to show a petitioner would not be a danger to the community if he was incarcerated for life. See Boyde v. California, 494 U.S. 370, 382 n.5 (1990); Skipper v. South Carolina, 476 U.S. 1, 4, 5 (1986).

Whether petitioner would be a possible danger is not at issue in this case, however. If all of this mitigating evidence had been presented, it would have been insufficient to offset, explain, or justify the murder of Mrs. Porter. See Nguyen v. Reynolds, 131 F.3d 1340, 1349 (10th Cir. 1997). There is not a reasonable probability that if the jury had considered this evidence it would have concluded the balance of aggravating and mitigating circumstances did not warrant death. See Strickland, 466 U.S. at 695.

B. Expert Assistance

Petitioner contends his counsel was ineffective for failing to request additional expert assistance. The trial court granted a request for a psychiatric expert and authorized counsel to spend up to $750, the usual statutory maximum amount. Petitioner maintains he needed additional expert assistance because his mental capacity and sanity were at issue.

On post-conviction review, the Oklahoma appellate court decided the record did not support this argument. The federal district court determined petitioner failed to show prejudice, because petitioner was not entitled to further expert assistance.

Nothing in the record suggests that a reasonable attorney would have believed petitioner's mental state or sanity could have been a significant factor at either stage of trial. See Ake v. Oklahoma, 470 U.S. 68, 74 (1985); Mayes v. Gibson, 210 F.3d 1284, 1289 n.3 (10th Cir. 2000); Smith v. Gibson, 197 F.3d 454, 463 (10th Cir. 1999), petition for cert. filed, (U.S. May 19, 2000) (No. 99-9652). Considering the totality of the evidence, there is no reasonable probability the jury would have determined petitioner was not guilty of murder. See Boyd, 179 F.3d at 914. Petitioner has failed to prove additional expert testimony would have changed the outcome at sentencing. See Moore v. Reynolds, 153 F.3d 1086, 1098 (10th Cir. 1998), cert. denied, 526 U.S. 1025 (1999).

Accordingly, petitioner cannot show he was prejudiced because counsel failed to request additional expert assistance. Cf. Trice v. Ward, 196 F.3d 1151, 1160 (10th Cir. 1999) (determining funding for expert in excess of $750 would not have altered outcome of either phase of trial because there was no evidence petitioner was insane at time of crimes or incompetent at trial and later evidence of psychological problems would not have been sufficient to overcome three aggravating factors), petition for cert. filed, (U.S. May 10, 2000) (No. 99-9518). The state appellate court's decision therefore was not unreasonable.

C. Improper Prosecutorial Comments

Petitioner argues counsel should have objected to prosecutorial comments improperly defining reasonable doubt during voir dire, stating a personal opinion, evoking sympathy for the victim and her family, misstating the evidence, and denigrating the mitigating evidence. Generally, a prosecutor's improper remark will require reversal of a state conviction only where the remark sufficiently infected the trial so as to make it fundamentally unfair, and, therefore, a denial of due process. See Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974).

In assessing fundamental fairness, the comment must be reviewed in the context in which it was made and in light of the entire record. See Greer v. Miller, 483 U.S. 756, 765-66 (1987); Donnelly, 416 U.S. at 643. If the alleged prosecutorial misconduct denied a petitioner a specific constitutional right, a habeas claim may be established without requiring proof the entire trial was rendered fundamentally unfair by the remark. See Paxton, 199 F.3d at 1217.

1. Voir Dire

Possibly implicating a constitutional right, petitioner argues counsel should have objected to the prosecutor's comment that "the Court has told you our burden is to prove our case beyond a reasonable doubt. The Court told you that doesn't mean beyond a shadow of doubt or beyond all doubt or one hundred percent certain just said beyond a reasonable doubt." Tr. vol. I at 82. On direct criminal appeal, the Oklahoma appellate court concluded the prosecutor repeated the trial court's explanation of reasonable doubt. See Harjo, 882 P.2d at 1075. This determination was not unreasonable. Thus, counsel's failure to object was not prejudicial.

2. Sympathy

Petitioner complains the prosecutor improperly asked for sympathy for the victim and her family during first stage closing argument. The Oklahoma Court of Criminal Appeals decided the prosecutor merely reiterated uncontroverted facts that Mrs. Porter was sixty-four years old when she was killed, she struggled for her life, and she was found by her son-in-law who kept his wife from seeing her mother. See id. at 1075-76.

This determination was reasonable. Further, the evidence makes it probable the nature of the crime, strangling and suffocating an elderly lady, produced sympathy before the prosecution made any closing remarks. See Duvall v. Reynolds, 139 F.3d 768, 795 (10th Cir. 1998). Because the prosecutor's remarks did not render the trial fundamentally unfair, counsel's failure to object was not prejudicial.

3. Personal Opinion

Petitioner believes the prosecutor improperly expressed his opinion on petitioner's guilt and deserving the death penalty. The Oklahoma Court of Criminal Appeals agreed that the prosecutor exceeded his bounds and engaged in "improper and reprehensible" conduct when he expressed his personal opinion. Harjo, 882 P.2d at 1076. Nonetheless, the court determined the comments were harmless because, in light of its acquittal verdict on the rape charge, the jury did not follow the comments. See id. (citing Chapman v. California, 386 U.S. 18 (1967)).

Accordingly, the court concluded petitioner could not show prejudice due to counsel's failure to object to the remarks. See id. at 1077. Petitioner has failed to show the Oklahoma Court of Criminal Appeals unreasonably applied Chapman, see Pickens v. Gibson, 206 F.3d 988, 996 (10th Cir. 2000), and unreasonably determined petitioner was not prejudiced by counsel's failure to object.

4. Misrepresentation of the Evidence

Petitioner believes the prosecutor, during first stage closing argument, invaded the province of the jury and made improper representations concerning the forensic evidence by indicating a positive identification could be made from hair comparisons and saliva samples. The Oklahoma Court of Criminal Appeals determined "[t]he record plainly shows the prosecutor argued inferences from the evidence and did not misstate it." Harjo, 882 P.2d at 1076.

This determination was not unreasonable. The prosecutor is given reasonable latitude in drawing inferences from the evidence during closing arguments. See Duvall, 139 F.3d at 795. Because the prosecutor's representations did not cause the trial to be fundamentally unfair, counsel's failure to object was not prejudicial.

5. Negating Mitigating Evidence

Without further explanation, petitioner argues the prosecutor attempted to destroy his right to have the jury consider mitigating evidence and denigrated the mitigating circumstances set forth in the jury's instructions. The Oklahoma Court of Criminal Appeals held the prosecutor's argument went to the weight of the evidence and did not limit the evidence the jury could consider. See Harjo, 882 P.2d at 1079. A prosecutor is permitted to comment on the weight to be afforded mitigating evidence. See Fox, 200 F.3d at 1299-1300. The state appellate court's denial of relief therefore was not unreasonable, and counsel's failure to object to the prosecutor's remark was not prejudicial.

D. Removal of Jurors

Petitioner argues trial counsel failed to object to the removal of six jurors for cause and did not attempt to rehabilitate these jurors. The Oklahoma Court of Criminal Appeals rejected this argument on direct appeal:

The record could not be clearer in this regard: each of the excused veniremen had been thoroughly questioned by the trial judge who made clear throughout the record that mere reservation about the death penalty did not disqualify one from service, and each stated explicitly that under no circumstance could he or she impose the death penalty. These veniremen were properly removed under Witherspoon [v. Illinois, 391 U.S. 510 (1968)]. Defense counsel did not fall below the standard of reasonable effectiveness by failing to question them further after each emphatically stated unwavering opposition to the death penalty.

Harjo, 882 P.2d at 1077. This determination was not unreasonable.

E. Cumulative Effect

Petitioner argues the cumulative effect of counsel's deficient performance created a risk the death sentence was arbitrary and capricious. Finding no instance of ineffective assistance of counsel, the district court concluded there was no cumulative error. We agree. "Cumulative error analysis applies where there are two or more actual errors; it does not apply to the cumulative effect of non-errors." Moore, 153 F.3d at 1113


Petitioner argues (1) Oklahoma's $750 maximum payment for experts violates Ake, 470 U.S. 68, and (2) the federal district court erred in finding that petitioner failed to make a sufficient threshold showing that his sanity or mental capacity would be an issue at trial or sentencing. In light of our resolution of petitioner's argument that his trial counsel was ineffective for failing to request additional expert assistance, we conclude petitioner is not entitled to relief on this argument.


Petitioner argues the trial court effectively prohibited the jury from considering mitigating evidence when it instructed the jury not to consider sympathy at the second stage. On direct appeal, the Oklahoma appellate court found the argument unsupported by the record. See Harjo, 882 P.2d at 1079.

The trial court instructed the jury at the first stage not to allow sympathy, sentiment, or prejudice to influence its deliberations. At the second stage, the trial court directed the jury to consider the first stage instructions where appropriate. Also, the court instructed the jury regarding several mitigating circumstances, and directed the jury to consider whether the circumstances existed and whether they were mitigating. Further, the court informed the jury the

[m]itigating circumstances are those which, in fairness and mercy, may be considered as extenuating or reducing the degree of moral culpability or blame. 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 102.

Viewing the instructions as a whole, see Cupp v. Naughten, 414 U.S. 141, 146-47 (1973), we conclude there was not a reasonable likelihood the jury applied the anti-sympathy instruction in a way that prevented consideration of the mitigating evidence, see Boyde, 494 U.S. at 380, 381, 386. The Oklahoma Court of Criminal Appeals' decision therefore was not unreasonable.


Petitioner argues the trial court effectively instructed the jury it was required to find mitigating circumstances unanimously. This argument, as petitioner concedes, is foreclosed by Duvall, 139 F.3d at 791-92.


Petitioner argues he did not knowingly, intelligently, and voluntarily waive his right to counsel before confessing to the murder of Mrs. Porter. Rather, he maintains the totality of the circumstances show the confession was a result of his mental limitations, his state of intoxication, his past chronic abuse of alcohol, his lack of sleep or food before his confession, the coercive nature of the interview, and the illegal seizure of his tennis shoes without being informed of his right to withhold consent.

On direct appeal, the Oklahoma Court of Criminal Appeals concluded petitioner's confession was knowing despite his consumption of alcohol and low intelligence. See Harjo, 882 P.2d at 1071. In so concluding, the court found that (1) he had been given Miranda warnings twice; (2) he understood the questions asked; and (3) he understood the importance of his answers. See id.

The court also determined the confession was voluntary, finding no evidence of exploitation or overreaching by law enforcement. See id. at 1071-72 (citing, e.g., Colorado v. Connelly, 479 U.S. 157 (1986)). The court noted petitioner's initial elaborate fabrication that another committed the murder indicated he was well aware of the consequences of talking to law enforcement and the totality of the circumstances showed his waiver of the right to remain silent was not invalid due to his consumption of alcohol or his low intelligence. See id. at 1072 (citing Moran v. Burbine, 475 U.S. 412 (1986)).

A defendant may waive his rights if, considering the totality of the circumstances, the waiver is voluntary, knowing, and intelligent. See Moran, 475 U.S. at 421. The waiver must be "voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception." Id. A waiver is knowing and intelligent if it was "made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." Id.

The record is devoid of evidence of overreaching by the sheriff or other officers. See Connelly, 479 U.S. at 170. Further, there is no real question of petitioner's comprehension of the Miranda rights and of the potential consequences of waiving them. See Moran, 475 U.S. at 422. Thus, the state appellate court's determination that petitioner's waiver of his Miranda rights was voluntary, knowing, and intelligent was not contrary to or an unreasonable application of clearly established Supreme Court precedent.


Petitioner argues the State failed to provide him with a full and adequate opportunity to litigate whether his Fourth Amendment rights were violated by the seizure of his tennis shoes prior to his confession. Petitioner believes the state courts failed to conduct a hearing to determine whether exigent circumstances existed justifying immediate seizure of the tennis shoes.

The trial court ruled there was probable cause to believe petitioner was involved in the murder and therefore it was proper to seize the shoes. On direct appeal, the Oklahoma Court of Criminal Appeals first determined petitioner did not consent to the seizure of the tennis shoes. See Harjo, 882 P.2d at 1073.

The court decided probable cause existed to believe the shoes were evidence of the murder and immediate seizure was reasonable due to exigent circumstances: (1) tennis shoe footprints were the only ones found at the crime scene; (2) petitioner admitted being at Mrs. Porter's home; (3) petitioner stated the alleged murderer wore boots; and (4) petitioner could have destroyed the shoes or their tread. See id. 1073-74 (citing Cupp v. Murphy, 412 U.S. 291 (1973); Brinegar v. United States, 338 U.S. 160 (1949)).

Concluding the claim was fully and fairly considered at the state court level, the federal district court declined, pursuant to Stone v. Powell, 428 U.S. 465 (1976), to address the merits of the claim that there were no exigent circumstances justifying warrantless seizure of the shoes during interrogation.

"[W]here the State has provided an opportunity for a full and fair litigation of [the] Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at this trial." See Stone, 428 U.S. at 494 (footnote omitted); cf. Locks v. Sumner, 703 F.2d 403, 408 (9th Cir. 1983) (full and fair hearing even though state appellate court considered evidence not offered at suppression hearing).

The transcript from the evidentiary hearing, which lasted more than two days, confirms that petitioner had a full and fair opportunity to litigate his Fourth Amendment claims. The federal district court therefore properly declined to address the merits of this claim.

The judgment of the United States District Court for the Eastern District of Oklahoma is AFFIRMED.


*. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

1. He was also convicted of first degree burglary, burglary of an automobile, and larceny of an automobile. The jury, however, found petitioner not guilty of first degree rape.

2. Miranda v. Arizona, 384 U.S. 436 (1966).



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