Summary:

Twenty-five year old Kent Dodd worked as the night auditor for the Central Plaza Hotel located in Oklahoma City.

Dodd registered a hotel guest at approximately 3:15 a.m. September 17, 1994. Shortly thereafter he was attacked by an assailant who stabbed him repeatedly, beat him with hedge shears and a paint can, and poured muriatic acid on him and down his throat.

He was discovered two and a half hours later, still moaning, by a motel housekeeper.

His responses to police were mostly unintelligible, but did understand him say his attacker was a black man who wore gray pants.

Dodd died later that day at the hospital from blunt force trauma to his head.

All of the evidence against George Miller was circumstantial but substantial. Miller's sandals could have left the bloody footprints found at the scene, but could not be exclusively identified. A microscopic drop of blood found on Miller's sandal was consistent with Dodd's blood, but also could not be exclusively identified.

Miller told police he was home with his wife at the time of the murder. The Millers were divorced by the time of trial, and she testified he was not home; he had taken her car keys from the place where she hid them under the mattress and left.

The evening before the murder, Miller was broke and tried unsuccessfully to borrow money from several different friends including one who lived at the Central Plaza Hotel.

The morning after the murder, Miller gave his wife one hundred and twenty dollars. When questioned by police about this, he claimed he had cashed a paycheck. When they reminded him he was not working at the time, Miller denied he gave his wife the money. One hundred twenty-two dollars was missing from the motel cash drawer.

Miller had worked as a maintenance man at the Central Plaza Hotel for two weeks about a month before the murder.

Dodd knew Miller, but knew him under an alias, Jay Elkins. Photographs of the crime scene revealed what appears to be finger-writing in the blood on the floor and wall which could be the word, "Jay."

Citations:

Miller v. State, 977 P.2d 1099 (Okl.Cr.App 1998) (Direct Appeal).
Miller v. Mullin, 354 F.3d 1288 (10th Cir. 2004) (Habeas)

Final Meal:

Sliced beef brisket, pork spareribs and a Coke.

Final Words:

"I love you."

Oklahoma Department of Corrections

Inmate: GEORGE J MILLER JR
ODOC# 168725
OSBI#: 168725
Birthdate: 09/09/1967
Race: Black
Sex: Male
Height: 5 ft. 08 in.
Weight: 200 pounds
Hair: Black
Eyes: Brown
County of Conviction: Oklahoma
Location: Oklahoma State Penitentiary, Mcalester

Oklahoma Attorney General

March 7, 2005

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

Miller Execution Date Set

Court Sets Execution Dates

The Oklahoma Court of Criminal Appeals today set execution dates for two men convicted of separate Oklahoma County murders.

George James Miller, 39, is scheduled to be executed May 12. Miller was convicted of the Sept. 17, 1994, murder of Gary Kent Dodd, 25. Dodd was working as the night auditor for Central Plaza Hotel, I-40 and Martin Luther King Dr., when Miller stabbed him repeatedly, beat him with hedge shears and a paint can and poured muriatic acid down his throat.

Garry Thomas Allen, 49, is scheduled to be executed May 19. Allen was convicted of the Nov. 21, 1986, murder of Lawanna Gail Titsworth, 42. Titsworth was the mother of Allen’s sons, Antonio, 6, and Adrian, 2. Allen was convicted of shooting Titworth as she attempted to pick up her sons at Beaulah’s Day Care Center in Oklahoma City.

Attorney General Drew Edmondson requested the execution dates for both men Feb. 22 after the United States Supreme Court denied their final appeals.

ProDeathPenalty.com

Twenty-five year old Kent Dodd worked as the night auditor for the Central Plaza Hotel located in Oklahoma City. Dodd registered a hotel guest at approximately 3:15 a.m. September 17, 1994. Shortly thereafter he was attacked by an assailant who stabbed him repeatedly, beat him with hedge shears and a paint can, and poured muriatic acid on him and down his throat.

Two and a half hours later, a housekeeper arrived for the morning shift. She called out for Dodd when she saw he was not at the front desk. In response, she heard "animal moans" from the unused restaurant area of the hotel. She ran to an open restaurant nearby and had the police summoned. Dodd was still alive when the police found him. Dodd was able to respond to police questioning, but most of his responses were unintelligible, perhaps due to the acid burns in his mouth and throat. The police were able to understand him say his attacker was a black man who wore gray pants. Dodd died later that day at the hospital from blunt force trauma to his head.

All of the evidence against George Miller is circumstantial but substantial. Miller's sandals could have left the bloody footprints found at the scene, but could not be exclusively identified. A microscopic drop of blood found on Miller's sandal was consistent with Dodd's blood, but also could not be exclusively identified. Miller told police he was home with his wife at the time of the murder.

The Millers were divorced by the time of trial, and she testified he was not home; he had taken her car keys from the place where she hid them under the mattress and left. The next day she found sand in the car. She also testified she did the family laundry and after the murder, a pair of Miller's khaki shorts and a silk shirt disappeared. She identified two buttons found at the crime scene as consistent with buttons on the missing shirt.

The evening before the murder, Miller was broke and tried unsuccessfully to borrow money from several different friends including one who lived at the Central Plaza Hotel. The morning after the murder, Miller gave his wife one hundred and twenty dollars. When questioned by police about this, he claimed he had cashed a paycheck. When they reminded him he was not working at the time, Miller denied he gave his wife the money.

The hotel cash drawer was open and empty when the police investigated the crime scene. Hotel policy requires each shift to begin with two hundred and fifty dollars in the drawer. At the end of the shift, the desk clerk places any amount in excess of this in a deposit envelope and drops it into the hotel safe. Only desk clerks knew the amount of cash in the drawer. Kent Dodd was an exemplary employee who followed the accounting procedures carefully, and whose money count was always correct.

After the murder, the hotel manager tried to determine whether any money had been taken. She discovered a deposit envelope containing one hundred dollars hidden behind registration forms in a separate drawer. One hundred twenty-two dollars was missing from the motel cash drawer. The next day Miller told a friend that robbery could not have been the motive for the killing, because only one hundred fifty dollars was kept in the cash drawer. Miller had worked as a maintenance man at the Central Plaza Hotel for two weeks about a month before the murder. Dodd knew Miller, but knew him under an alias, Jay Elkins.

Photographs of the crime scene revealed what appears to be finger writing in the blood on the floor and wall which could be the letter "J" and the word, "Jay." Miller and his wife split up shortly after the murder, and he went to stay with his mother in Sherman, Texas. When police questioned him about the Dodd murder, he cried and he made it clear to the police he was not grieving the victim.

National Coalition to Abolish the Death Penalty

George James Miller - Oklahoma May 12, 2005 6:00 p.m. CST

The state of Oklahoma is scheduled to execute George James Miller, a black man, via lethal injection for the Sept. 1994 murder of Kent Dodd in Oklahoma County.

On Sept. 17, 1994, Dodd, a hotel employee, was viciously attacked by a perpetrator. Police arriving to the scene of the crime found Dodd clinging to life. He had been stabbed multiple times, severely beaten, and burned with acid. Before he died, Dodd managed to inform the officers that his assailant was “a black man in grey pants.” Although Dodd knew Miller, albeit by the alias of Jay Elkins, Dodd never mentioned any variation of the name Jay Elkins while communicating with the officers.

While the death penalty is never an acceptable form of punishment, its potential use in this case is particularly alarming because of Miller’s strong claim of innocence. The case built against him was entirely based on relatively weak circumstantial evidence and an improbable theory about blood smears found near Dodd’s body.

At trial, the “strongest” evidence of Miller’s guilt offered by the prosecution was a bloody footprint found at the scene of the crime and a microscopic drop of blood found on a sandal that belonged to Miller. A forensic scientist called by the State was only able to conclude that Miller’s sandals could have produced the print. And while the blood found on Miller’s sandal did possess a resemblance to Dodd’s blood, the state was unable to definitively conclude that it belonged to Dodd. The State’s expert testified that “it could have come from 1 in 19 Caucasians, 1 in 16 African-Americans or 1 in 55 Hispanics.”

Due to the weak circumstantial evidence relied upon by the prosecution, it is possible that the conviction was secured during the prosecution’s closing argument, in which the absurd contention was made that Dodd had attempted to identify Miller as his assailant by using blood to smear the word “Jay” on a nearby door. Because the prosecution presented this theory in its closing argument, the defense was unable to offer a rebuttal. Had they been able to rebut the theory, the defense could have shown the jury that the blood smears in question were half way up the door, and, therefore, it was highly improbable that an immobilized Dodd produced them. The defense could have also shown that no traces of blood were found on Dodd’s fingers or under his fingernails.

Miller’s claims of innocence should not go ignored. To date, 9 men have been exonerated from Oklahoma’s death row and a total of 119 men have been exonerated from death rows nationwide since 1973.

Faced with strong doubt regarding Miller’s guilt, the state of Oklahoma should not impose upon him an irreversible punishment like the death penalty. There is simply no just remedy for a wrongful execution.

Please contact Gov. Brad Henry and urge him to err on the side of caution by halting the execution of this potentially innocent man.

Miller executed for killing Oklahoma City motel clerk

NewsOK.com

May 12, 2005

McALESTER (AP) - A man convicted of beating and stabbing an Oklahoma City motel clerk and pouring acid down his throat was put to death on Thursday. George James Miller Jr., 37, received a lethal injection of drugs and was pronounced dead at 6:24 p.m. at the Oklahoma State Penitentiary.

Miller was convicted of killing Kent Dodd, 25, a night auditor for the Central Plaza Hotel in Oklahoma City, during a Sept. 17, 1994 robbery. Dodd was stabbed repeatedly, beaten with hedge shears and a paint can, and had muriatic acid poured on his face and down his throat, authorities said.

Strapped to a gurney inside the death chamber, Miller nodded to his mother and other family members who witnessed the execution. "I love you," were his final words.

Miller's breath hitched once, and he exhaled deeply as the lethal combination of drugs entered his system. Miller's breathing slowed and then, after several minutes, stopped. "He's resting now," his mother said softly, her eyes full of tears.

Miller's attorney, Robert Jackson, also attended the execution, but neither he nor Miller's family addressed the media. Miller and Jackson both had maintained his innocence.

Miller Executed For 1994 Murder

Death Row Inmate Convicted Of Brutally Killing Hotel Worker

ChannelOklahoma.com

May 12, 2005

OKLAHOMA CITY -- A man convicted of beating and stabbing an Oklahoma City motel clerk and pouring acid down his throat was put to death on Thursday. George James Miller Jr., 37, received a lethal injection of drugs and was pronounced dead at 6:24 p.m. at the Oklahoma State Penitentiary.

Miller was convicted of killing Kent Dodd, 25, a night auditor for the Central Plaza Hotel in Oklahoma City, during a Sept. 17, 1994 robbery. Dodd was stabbed repeatedly, beaten with hedge shears and a paint can, and had muriatic acid poured on his face and down his throat, authorities said.

Strapped to a gurney inside the death chamber, Miller nodded to his mother and other family members who witnessed the execution. "I love you," were his final words.

Miller's breath hitched once, and he exhaled deeply as the lethal combination of drugs entered his system. Miller's breathing slowed and then, after several minutes, stopped. "He's resting now," his mother said softly, her eyes full of tears.

Miller's attorney, Robert Jackson, also attended the execution, but neither he nor Miller's family addressed the media. Miller and Jackson both had maintained his innocence.

Miller v. State, 977 P.2d 1099 (Okl.Cr.App 1998) (Direct Appeal).

Defendant was convicted in the District Court, Oklahoma County, Charles L. Owens, J., of first degree murder and was sentenced to death. Defendant appealed. The Court of Criminal Appeals, Lane, J., held that: (1) defendant was not prejudiced by late filing of bill of particulars; (2) jury selection process was proper; (3) trial court's failure to conduct a Daubert/Taylor hearing was harmless error; (4) results of Polymerase Chain Reaction (PCR) Deoxyribonucleic (DNA) testing were admissible; (5) trial court's failure to recognize prosecutor's discovery violation was harmless error; (7) photographs of victim and crime scene were admissible; (8) trial court committed harmless error by admitting evidence of defendant's prior felony conviction; (9)trial court committed harmless error in jury instruction; (10) evidence supported jury findings as to aggravating circumstances; (11) trial court committed harmless error in permitting testimony of victim's mother; (12) defendant was not denied effective assistance of counsel; (13) harmless errors by trial court did not constitute a cumulative error; and (14) death sentence was not influenced by passion, prejudice, or any arbitrary factor. Affirmed. Lumpkin, J., concurred in the results and filed an opinion.

LANE, Judge:

¶ 1 George James Miller was tried by jury and convicted of First Degree Murder (21 O.S.1991, § 701.10) in Oklahoma County District Court Case No. CF-94-8859 before the Honorable Charles L. Owens, District Judge. The jury sentenced Miller to death after finding four aggravating circumstances. Miller is before the Court on original appeal from this Judgment and Sentence. We AFFIRM.

FACTS

¶ 2 Twenty-five year old Kent Dodd worked as the night auditor for the Central Plaza Hotel located at the intersection of I-40 and Martin Luther King Drive in Oklahoma City. Dodd registered a guest at approximately 3:15 a.m. September 17, 1994. Shortly thereafter he was attacked by an assailant who stabbed him repeatedly, beat him with hedge shears and a paint can, and poured muriatic acid on him and down his throat. Two and a half hours later a housekeeper arrived for the morning shift. She called for Dodd when she saw he was not at the front desk. In response, she heard "animal moans" from the unused restaurant area of the hotel. She ran to a nearby restaurant and had the police summoned. Dodd was still alive when the police found him.

¶ 3 Dodd was able to respond to police questioning, but most of his responses were unintelligible, perhaps due to the acid burns in his mouth and throat. The police were able to understand him say his attacker was a black man who wore gray pants. Dodd died later that day at the hospital from blunt force trauma to his head.

¶ 4 All of the evidence against George Miller is circumstantial. Miller's sandals could have left the bloody footprints found at the scene, but could not be exclusively identified. A microscopic drop of blood found on Miller's sandal was consistent with Dodd's blood, but also could not be exclusively identified. Miller told police he was home with his wife at the time of the murder. The Millers were divorced by the time of trial, and she testified he was not home; he had taken her car keys from the place where she hid them under the mattress and left. The next day she found sand in the car. She also testified she did the family laundry, and after the murder a pair of Miller's khaki shorts and a silk shirt disappeared. She identified two buttons found at the crime scene as consistent with buttons on the missing shirt.

¶ 5 The evening before the murder Miller was broke and tried unsuccessfully to borrow money from several different friends including one who lived at the Central Plaza Hotel. The morning after the murder Miller gave his wife one hundred and twenty dollars. When questioned by police about this, he claimed he had cashed a paycheck. When they reminded him he was not working at the time, Miller denied he gave his wife the money.

¶ 6 The hotel cash drawer was open and empty when the police investigated the crime scene. Hotel policy requires each shift to begin with two hundred and fifty dollars in the drawer. At the end of the shift the desk clerk places any amount in excess of this in a deposit envelope and drops it into the hotel safe. Only desk clerks knew the amount of cash in the drawer.

¶ 7 Kent Dodd was an exemplary employee who followed the accounting procedures carefully, and whose money count was always correct. After the murder the hotel manager tried to determine whether any money had been taken. She discovered a deposit envelope containing one hundred dollars hidden behind registration forms in a separate drawer. The next day Miller told a friend that robbery could not have been the motive for the killing, because only one hundred fifty dollars was kept in the cash drawer.

¶ 8 Miller had worked as a maintenance man at the Central Plaza Hotel for two weeks about a month before the murder. Dodd knew Miller, but knew him under an alias, Jay Elkins. Photographs of the crime scene revealed what appears to be finger writing in the blood on the floor and wall which could be the letter "J" and the word, "Jay."

¶ 9 Miller and his wife split up shortly after the murder, and he went to stay with his mother in Sherman, Texas. When police questioned him about the Dodd murder, he cried.

¶ 10 Miller was serving a federal sentence at Leavenworth, Kansas at the time charges were filed against him in Oklahoma for the murder of Kent Dodd. Consequently he was brought to Oklahoma pursuant to the Interstate Agreement on Detainers Act (IADA).

* * *

¶ 54 The State alleged four aggravating circumstances, including, "The defendant was previously convicted of a felony involving the use or threat of violence to the person." 21 O.S.1991, § 701.12(1). In support of that aggravator the State presented witnesses as well as Judgments and Sentences to prove Miller was convicted of First Degree Burglary in 1988 and Pointing a Firearm in 1992. The State also presented evidence of two convictions for crimes which occurred after the Dodd murder, escape and facilitating escape.

* * *

MANDATORY SENTENCE REVIEW

¶ 82 In every capital murder case this Court conducts a final analysis to determine whether the evidence supports the jury's finding of aggravating factors, and whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor. 21 O.S.1991, § 701.13(C). We now conduct this mandatory sentence review.

¶ 83 The jury found four aggravating circumstances: 1) at the time of the crime the defendant was previously convicted of a felony involving the use or threat of violence to the person; 2) the murder was especially heinous, atrocious, or cruel; 3) the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution; and, 4) at the present time there exists a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.

¶ 84 In support of the first aggravator, the State introduced testimony and the Judgment and Sentence to prove prior convictions for first degree burglary and robbery which each involved the use and threat of violence to a person. The second aggravating circumstance was proven beyond a reasonable doubt by the fact Miller poured acid on the face of the living victim and down his throat and inflicted a serious physical beating and the fact that the victim lived for sometime while enduring serious pain and suffering. This is gratuitous violence sufficient to establish Miller subjected the victim to serious physical abuse. The evidence established that Miller took money from Kent Dodd, and that Kent Dodd knew and could identify Miller. This evidence proves beyond a reasonable doubt the purpose of avoiding or preventing lawful arrest or prosecution. The "continuing threat" aggravating circumstance was proven by the introduction of evidence of a conviction for first degree burglary, robbery, escape, conspiracy to escape, and felon in possession of a firearm. The State also proved three unadjudicated robberies. This evidence is sufficient to prove the "continuing threat" aggravator.

¶ 85 The only error which possibly injected passion or prejudice into the trial was the testimony of the victim's mother in which she recounted two dreams in which her dead son appeared to her. However, in the emotionally wrenching but fair context of the parents' testimony regarding their anguish caused by the murder of their son, this testimony could not have had any improper influence on the jury. We find the aggravating factors are supported by the evidence, and the sentence of death is not influenced by passion, prejudice, or any arbitrary factor.

The Judgment and Sentence of the trial court is AFFIRMED.

Miller v. Mullin, 354 F.3d 1288 (10th Cir. 2004) (Habeas)

Background: Following affirmance of first-degree murder conviction and death sentence, 977 P.2d 1099, petitioner sought writ of habeas corpus. The United States District Court for the Western District of Oklahoma, Ralph G. Thompson, J., denied relief, and petitioner appealed.

Holdings: The Court of Appeals held that:
(1) determination that allowing prosecutor to use transparencies and argue new theory in closing that victim wrote petitioner's alias in blood was not unreasonable application of federal law;
(2) trial counsel was not ineffective in cross-examining state's chemist or in failing to investigate negotiation of check; and
(3) omission of word from instruction on heinous, atrocious, or cruel aggravating circumstance did not render instruction unconstitutionally vague; and
(4) determination that harmless errors did not rise to level of cumulative error was not contrary to, or unreasonable application of, federal law. Affirmed.

PER CURIAM.

George James Miller, a state prisoner, appeals the district court's decision denying him habeas relief from his Oklahoma first-degree malice aforethought murder convictions for the September 17, 1994 death of Kent Dodd. On appeal, Mr. Miller contends that (1) the prosecution engaged in prosecutorial misconduct when it concealed until final closing its theory that Mr. Dodd identified his killer by writing the letters "JAy" in smeared blood; (2) his trial and appellate counsel were ineffective; (3) the Oklahoma Court of Criminal Appeals' application of the heinous, atrocious, or cruel aggravating factor was vague and overbroad; and (4) cumulative error entitles Mr. Miller to relief. We affirm the denial of habeas relief under 28 U.S.C. § 2254.

I. BACKGROUND

We reiterate the facts of this tragic homicide, drawing largely from the Oklahoma Court of Criminal Appeals' summary in Miller v. State, 977 P.2d 1099, 1103-04 (Okla.Crim.App.1999).

Kent Dodd, a twenty-five year old night auditor at the Central Plaza Hotel, which is located at the intersection of I-40 and Martin Luther King Drive in Oklahoma City, registered, as he typically did, as a guest at 3:15 a.m. on September 17, 1994. Shortly thereafter an assailant attacked Mr. Dodd, stabbed him repeatedly, beat him with hedge shears and a paint can, and poured muriatic acid on him and down his throat.

Two and a half hours later, a hotel housekeeper arrived for her morning shift. She called for Mr. Dodd when she saw he was not at the front desk. In response she heard moans from the restaurant area of the hotel. She ran to a nearby restaurant and had the police called. When the officers arrived, Mr. Dodd was still alive. There were several blood trails and signs of struggle in various parts of the hotel.

Mr. Dodd was able to respond to police questioning, but his responses were mostly unintelligible. The police understood him to say his attacker was an African-American man who wore grey trousers. Mr. Dodd died later that day from blunt force trauma to his head.

The hotel cash drawer was open and empty when the police investigated the crime scene. Hotel policy requires each shift to begin with $250 in the drawer. At the end of the shift, the desk clerk places any amount in excess of the deposit in an envelope and drops it into the hotel safe. Only desk clerks knew the amount of cash in the drawer.

Mr. Dodd was known to be an exemplary employee who carefully followed the accounting procedures and whose money count was always correct. After the murder, the hotel manager discovered a deposit envelope containing $100 hidden behind registration forms in a separate drawer.

All of the evidence presented against Mr. Miller at the trial for Mr. Dodd's murder was circumstantial. Mr. Miller had worked as a maintenance man at the Central Plaza Hotel for two weeks about a month before the murder. Mr. Dodd knew Mr. Miller, but knew him under another name, Jay Elkins.

Apparently, the night before the murder, Mr. Miller was broke and tried unsuccessfully to borrow money from several different friends. According to Mr. Miller, he, accompanied by Chris Carriger and Jeremy Collman, went to the Central Plaza on September 16, 1994, at approximately 10:00 p.m. Mr. Miller attempted to cash a check written by Mr. Carriger to Mr. Miller; the visit lasted about five minutes.

Mr. Miller indicated to authorities that he was then taken back to his apartment where he remained until mid-morning the following day. After trying to cash the check at other locations, Mr. Carriger returned home and asked his wife, Stephanie Carriger, to write a check to Mr. Miller for $75, and she complied. Mr. Carriger and Mr. Collman gave similar renditions of these events to Mr. Miller's counsel.

Mr. Miller told police he was home with his wife at the time of the murder. Mr. Miller and his wife separated shortly after the murder, and he went to stay with his mother in Sherman, Texas. Mr. Miller's ex-wife, whom he divorced prior to trial, testified he was not at home at the time of the murder and that he had taken her car keys from where she hid them and left.

She testified that on the day following the murder, when Mr. Miller returned in her car, he attempted to give her $120. She testified that she found sand in the car and that after the murder, she noticed that a pair of Mr. Miller's khaki shorts and a silk shirt had disappeared. She identified two buttons found at the crime scene to be similar to buttons on the missing shirt.

When police questioned Mr. Miller about the $120 he gave to his wife, he claimed he had cashed a paycheck. When the police reminded Mr. Miller that he was not working at the time, he then denied giving his wife the money. See Miller, 977 P.2d at 1104.

There is little physical evidence connecting Mr. Miller to the crime scene. According to testimony of the State's forensic scientist, Mr. Miller's sandals could have made the footprints found at the scene, but she could not exclusively identify the sandals. A microscopic drop of blood on Mr. Miller's sandal was "consistent" with Mr. Dodd's blood, but this too could not be exclusively identified. The sample revealed a positive DNA reading, indicating the blood on the shoe was the same type as the blood type of the victim.

II. DISCUSSION

A jury found Mr. Miller guilty of first degree murder. At the capital sentencing proceeding, the jury then found four aggravating factors: (1) Mr. Miller had a prior violent felony conviction; (2) this murder was especially heinous, atrocious, or cruel; (3) Mr. Miller had killed the night clerk to avoid arrest or prosecution for the robbery; and (4) Mr. Miller was a continuing threat to society. After considering the mitigating evidence, the jury sentenced Mr. Miller to death.

The Oklahoma Court of Criminal Appeals affirmed Mr. Miller's conviction on direct appeal and also denied him post-conviction relief. The federal district court denied Mr. Miller habeas relief on eight claims, but granted Mr. Miller a certificate of appealability (COA) on three of those claims: (1) whether the prosecutor engaged in misconduct through its calculated concealment, until the closing argument, of its theory that the victim wrote "JAy," Mr. Miller's alias, in blood at the crime scene; (2) ineffective assistance of trial and appellate counsel; and (3) cumulative error. We granted review of these three claims, and we also granted a COA on the issue of whether the Oklahoma Court of Criminal Appeals' application of the heinous, atrocious, or cruel aggravating factor has eroded to a vague unconstitutional standard. We affirm the district court's denial of habeas relief as to each claim.

*****

1. Prosecutorial misconduct

Mr. Miller maintains that he was unduly prejudiced by the prosecutor's overly suggestive and previously unannounced use of illustrative devices during the final closing argument. During final closing, the prosecutor presented a transparency marked with the letters "JAy" and posited that these letters matched blood smears on the double doors and floor of the murder scene. Mr. Miller's counsel did not contemporaneously object to the prosecutor's statements. Tr. trans. vol. X, at 250-53. Indeed, counsel did not object to the statements until seventy-eight minutes after the statement had been made and the jury had retired to deliberate. Id. at 256-57. The Oklahoma Court of Criminal Appeals reviewed the contention for plain error.

a. Standard of review

We apply AEDPA's deferential standard of review to a claim of prosecutorial misconduct. See Le v. Mullin, 311 F.3d 1002, 1013 (10th Cir.2002). "Generally, a prosecutor's improper remarks require reversal of a state conviction only if the remarks 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.' " Id. (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). "Alternatively, if the alleged prosecutorial misconduct denied the petitioner a specific constitutional right (rather than the general due process right to a fair trial), a valid habeas corpus claim may be established without proof that the entire trial was rendered fundamentally unfair." Id.

b. Evidence presented and the closing argument

During the trial, the State presented evidence and testimony concerning the blood found at the crime scene. Specifically, the State presented testimony from Detective Sgt. Ed Bradway, the crime scene investigator who processed the crime scene and collected the evidence. Sgt. Harville assisted Det. Bradway and took photographs of the crime scene, and in particular the photographs of the double kitchen doors where most of the blood was found. Mr. Miller notes that the State did not present evidence from a blood spatter expert or a handwriting expert, although both were consulted by the State.

At trial, Det. Bradway testified regarding Exhibits 54-57, which are color photos of the double doors and the floor in front of them. Det. Bradway noted what appeared to be high velocity blood spatter on the right door and smears that looked like "transfer blood" off somebody's hands. See Tr. trans. vol. V, at 63-64. Det. Bradway testified that the right-hand spatter appeared red and unsmeared, and postulated that this blood must have been on the door before the transfer blood, in that it had time to dry. Det. Bradway testified that he was unable to obtain prints from any of the smears or wipes.

During the final closing argument [FN1], the prosecutor showed the jury State Exhibit 55 and told the jury that the most important evidence had almost been overlooked, for they could see the victim "went into his own blood ... and wrote his killer's name." Tr. trans. vol. X, at 251. The prosecutor then produced a transparency overlay with the name "JAy" written on it. He placed the overlay atop Exhibit 55 and matched up the written "JAy" with the blood smear on the wall. He also concluded that Mr. Dodd did not write the name Jay just once: "He wanted to make sure that you saw it, you people.... Folks, he wrote the letter J in the lower left-hand corner of that picture. J, which, of course, [ ]usually stands for the word Jay." Id. at 252.

FN1. Oklahoma procedure allows the state to make two closing arguments. It makes its first argument and, after the defense closing argument, it is permitted a second. See Okla. Stat. Ann. tit. 22, § 831 ("Thereupon, unless the case is submitted to the jury without argument, the counsel for the state shall commence, and the defendant or his counsel shall follow, then the counsel for the state shall conclude the argument to the jury. During the argument the attorneys shall be permitted to read and comment upon the instructions as applied to the evidence given, but shall not argue to the jury the correctness or incorrectness of the propositions of law therein contained."). The second argument is not limited to rebuttal.

In denying relief on this claim, the Oklahoma Court of Appeals stated: Contrary to Miller's argument, State's Exhibit No. 55 is not evidence. It was not introduced into evidence and it was not taken into deliberations by the jury. Rather, it demonstrated a reasonable inference from evidence properly disclosed to the defense and properly admitted at trial. In this regard the transparency is akin to counsel writing with chalk on a blackboard. Counsel for both the defense and State are granted wide latitude to draw reasonable inferences from the evidence. Miller, 977 P.2d at 1110.

The district court noted that the Oklahoma Court of Criminal Appeals' statement that Exhibit 55, was "not evidence" and "was not introduced into evidence and it was not taken into deliberations by the jury" was incorrect. In fact, Exhibit 55 had been admitted and, as well, disclosed to the defense months before trial. But that is not the focus of the argument, and the misstatement does not change the analysis that the trial court did not commit plain error in allowing the argument and the use of the transparencies.

Mr. Miller argues that he was unduly prejudiced because the prosecutor knew before trial that he intended to suggest that Mr. Dodd was identifying his killer in the blood smear during final closing. The presentation of this "undisclosed bombshell" theory at the final closing left no opportunity for rebuttal or cross-examination. Aplt's Br. at 21. The State does not deny that it planned this strategy of attack. In his opening, the prosecutor told the jury that Mr. Dodd "certainly wanted to live as the evidence from the scene would indicate, and he wanted Jay captured as you will see." Tr. trans. vol. IV, at 90.

In his first closing argument, the prosecution continued building up this yet undisclosed theory, telling the jury that Mr. Miller "left the only witness bleeding out on the ground, the witness who in fact did know who killed him, that Jay had killed him. And I will tell you exactly how the evidence demonstrates that in the second closing." Tr. trans. vol. X, at 159. The State argues it was under no duty to disclose its theory of the case, which involved only inculpatory materials, asserting that "[t]he State is not required to inform the defense as to what significance the State assigns to each exhibit." Aple's Br. at 17.

c. Analysis

First, as to the review for plain error, Mr. Miller's counsel waited over an hour to object to what the defendant now characterizes as an "undisclosed bombshell." Aplt's Br. at 21. Unlike the situation in Lambert v. Midwest City Mem'l Hosp. Auth., 671 F.2d 372 (10th Cir.1982), where counsel lodged his objection "[i]mmediately after [opposition] counsel had completed his closing argument," id. at 374, here we have no reasoned excuse for delay until after the jury began deliberations. The Oklahoma Court of Criminal Appeals appropriately considered whether the trial court had committed plain error when it considered Mr. Miller's belated objection.

Second, we acknowledge that the decision to allow the use of visual aids, including pedagogical devices, rests squarely with the trial court. Collins v. State, 561 P.2d 1373, 1380 (Okla.Crim.App.1977) ( " 'Argument by means of illustration, such as exhibiting to the jury models, tools, weapons, implements, etc., is a matter of every day practice .... [D]iscretion is vested in the trial court to prevent an abuse of the use of such illustrations, and unless there has been such an abuse, this court will not interfere.' ") (quoting Peoples v. Commonwealth, 147 Va. 692, 137 S.E. 603, 607 (1927)). "Reversible error is committed when counsel's closing argument to the jury introduces extraneous matter which has a reasonable probability of influencing the verdict." Lambert, 671 F.2d at 375-76 (setting aside judgment where counsel's remarks were "improper and prejudicial").

The use of a transparency, which is a pedagogical device, is "more akin to argument than evidence.... Quite often [one is] used on summation." United States v. Bray, 139 F.3d 1104, 1111 (6th Cir.1998) (internal quotation marks omitted). "Generally, such a summary is, and should be, accompanied by a limiting instruction which informs the jury of the summary's purpose and that it does not itself constitute evidence." Id. (citing United States v. Wood, 943 F.2d 1048, 1053-54 (9th Cir.1991) and United States v. Sawyer, 85 F.3d 713, 740 (1st Cir.1996)).

Mr. Miller does not suggest a limiting instruction was requested. Indeed, that option may have been forfeited by delay in making an objection until the jury was deliberating. That delay also foreclosed any opportunity for the trial judge to permit defense counsel to address the jury a second time to rebut the "JAy" argument.

The unsupervised use of pedagogical aids during closing arguments greatly heightens the risk of reversible error. An inherent risk in the use of pedagogical devices is that they may "unfairly emphasize part of the proponent's proof or create the impression that disputed facts have been conclusively established or that inferences have been directly proved." United States v. Drougas, 748 F.2d 8, 25 (1st Cir.1984) (citing J. Weinstein and M. Berger, Weinstein's Evidence § 1006[07] (1983)).

In United States v. Crockett, 49 F.3d 1357 (8th Cir.1995), the district court permitted the use of overhead transparencies that summarized the testimony presented. The transparencies were challenged on the grounds that they provided argumentative characterizations of defense testimony. In rejecting this challenge, the district court concluded that the visual devices contained only statements that would be considered fair closing arguments. Id. at 1361-62.

In Crockett, as here, the prosecutor did not give defense counsel advance notice of his planned use of the transparencies during closing argument. However, the district court in Crockett did instruct the jury to rely on its own recollection, forbade the use of the transparencies in the prosecutor's rebuttal argument, and permitted the defense a chance to counter the argumentative summaries in its closing. As to the failure to give advance notice, the Eighth Circuit noted that

That did not concern [the district court judge] and probably would not concern most trial judges. But some might limit use of visual aids in closing argument to those approved by the court well in advance, as suggested in 5 Weinstein & Berger, Weinstein's Evidence ¶ 1006[07], at p. 1006-24 (1994). Again, discretionary rulings of this nature will seldom if ever be overturned on appeal. Id. at 1362. We agree that the ability of an appellate court to overturn discretionary rulings on direct review is severely constrained. It is even more attenuated on habeas review.

Our review under AEDPA is deferential, but it is even further simplified by counsel's delayed objection to the transparencies. Although the transparencies may have unfairly emphasized or even exaggerated the significance of the blood spatters, and may have potentially injected a new theory into the case, we cannot say that the Oklahoma Court of Criminal Appeals unreasonably applied federal law when it determined that the trial court's allowing this use was not plain error. See also United States v. Downen, 496 F.2d 314, 320 (10th Cir.1974) (holding that blackboard chart prepared by government, summarizing its theory of case, in courtroom and jury room during deliberation, "in light of the careful and detailed cautionary instructions given by the Trial Court" was not shown to have been an abuse of discretion or prejudicial to defendants); cf. United States v. Reyes, 157 F.3d 949, 955 (2d Cir.1998) (holding that district court did not abuse its discretion in allowing prosecution to use blown-up map of New York State, which had not been admitted into evidence, during its summation in murder and conspiracy trial to show the distances that gang members traveled to visit defendant when he was in prison); United States v. Tai, 994 F.2d 1204, 1211 (7th Cir.1993) (holding error was harmless where prosecution presented firearms during closing argument, as the firearms had no relevance to extortion charge and there was no testimony regarding defendant's firearm and there was no opportunity for further testimony).

In crediting the plain error analysis of the Oklahoma Court of Criminal Appeals we note the closing made by Mr. Miller's trial counsel. Counsel emphasized that Mr. Dodd, when found by the police, did not inform them Jay Elkins was his attacker. Instead, the defense argued, Mr. Dodd, with great difficulty, told the police, "a black man in gray pants" was responsible. [FN3] Tr. trans. vol. X, at 199. From that version of the facts the defense suggested that Mr. Dodd did not know his attacker and therefore it could not have been Jay Elkins, who was well known to Mr. Dodd. The prosecutor may have intended to spring the transparency surprise in any event, but, in fact, its use directly and dramatically countered a defense argument.

FN3. The State has a different version of Mr. Dodd's dying words. See Tr. trans. vol. X, at 238, suggesting that Mr. Dodd stated "Jay" rather than "gray."

Nevertheless our precedent suggests caution in pushing the prosecutorial envelope. Given the lack of notice of the use of the transparencies, we note that their dramatic presentation during final closing and the potentially inflammatory nature of the prosecutor's comments raise concern. Further, as the Eighth Circuit has warned:

[W]e do not encourage the use of such devices in the future.... Moreover, in a criminal case, the prosecution runs a tangible risk of creating reversible error when it seeks to augment the impact of its oral argument with pedagogic devices. .... Because the very purpose of a visual aid of this type is to heighten the persuasive impact of oral argument, we will necessarily be more inclined to reverse in a close case if the testimony has been unfairly summarized or the summary comes wrapped in improper argument. Crockett, 49 F.3d at 1362 (emphasis added); see also Ellis v. State, 651 P.2d 1057, 1063 (Okla.Crim.App.1982) (condemning prosecutor's recreation of the image of deceased through the use of decedent's trousers and shoes, noting the "illustration used by the prosecutor served no useful or explanatory purpose but rather only served to inflame the jury's emotions," but determining the error not to be reversible).

The government has a great duty to prosecute crimes, especially terrible crimes such as this one. But as this court and the Oklahoma Court of Criminal Appeals have consistently warned, we also expect not just marginal but heightened courtroom ethics on the part of counsel, the government and the defense alike. With respect to government conduct, see Le, 311 F.3d at 1018 ("There is little question that Mr. Macy's comments on this point were, as the Court of Criminal Appeals noted, improper and irrelevant. It is difficult to tell from the record whether the comments were intended to encourage the jury to ignore the court's instructions regarding mitigating character evidence or simply to insert his opinion as to the evidence provided by defense counsel.") (per curiam); Paxton v. Ward, 199 F.3d 1197, 1218 (10th Cir.1999) (noting that prosecutor's "conduct crossed the line between a hard blow and a foul one, consequently giving rise to a valid constitutional claim"); Le v. State, 947 P.2d 535, 556 (Okla.Crim.App.1997) ("This Court remains continually astounded that experienced prosecutors jeopardize cases, in which the evidence is overwhelming, with borderline argument.") (internal quotation marks omitted); Brewer v. State, 650 P.2d 54, 58 (Okla.Crim.App.1982) (reversing for new trial and admonishing the prosecutor, noting that "[t]he prosecutor's conduct of not allowing defense counsel an opportunity to be heard on his objections, coupled with the needless ridicule demonstrate a lack of respect for the appellant's constitutional right to a fair trial which this Court shall neither tolerate nor condone").

Prosecutors, as well as defense counsel, would do well to avoid theatrics of questionable or even marginal fairness. Not only do such actions threaten otherwise valid cases, they have the potential to diminish the ethical standing of a noble profession.

* * *

Here, the Oklahoma Court of Criminal Appeals found five errors and determined their individual and aggregate effects to be harmless: 1) the trial judge did not hold a hearing to determine the admissibility of the DNA evidence; 2) an evidentiary harpoon informed the jury [Mr.] Miller had been physically abusive to his wife; 3) the State presented two crimes not shown to involve the use or threat of force against a person to support the "prior violent felony conviction" aggravator; 4) the trial court omitted the word "physical" from the definition of "heinous, atrocious or cruel" as directed at those crimes which involve "torture or serious physical abuse"; and, 5) the victim impact statement made by Mrs. Dodd contained inadmissible references to her dead son appearing to her in dreams. Miller, 977 P.2d at 1114.

We have found no additional errors, and thus we only review the Oklahoma Court of Criminal Appeals' decision under our deferential AEDPA standard. See Cargle, 317 F.3d at 1206. Given this level of deference, we cannot determine that the Oklahoma Court of Criminal Appeals' evaluation of the impact of the trial court errors was contrary to or an unreasonable application of clearly established federal law.

III. CONCLUSION

For the reasons stated above, we AFFIRM the district court's denial of a writ of habeas corpus.