Revilla, then 18, was babysitting the 13 month old baby of his
Revilla claimed he arrived home and found the baby lifeless on the
floor. He tried to revive Gomez by hitting him in the abdomen, and
when that failed, he placed him in the bathtub and ran some water
over him. In a panic, he accidentally turned on the hot water,
causing burns to the child.
He then decided to take the child to the hospital, and while
hurriedly leaving the house he struck the child's head on a door
frame and then tripped and fell on top of the boy on a concrete
Medical experts testified at trial that the baby's injuries could
not have happened the way Revilla described.
An autopsy revealed that the infant had suffered numerous injuries
over a two week period, and was bruised, burned and had cuts on his
thighs and peeling skin on his chest and groin when he died, along
with a swollen and bleeding brain and a severed liver.
The mother, Michelle McElmurry, and two other witnesses testified
that Revilla hated the boy because he was not his child.
She told of
previous abuse, saying Revilla had shut the baby in a kitchen drawer,
folded him in a hide-a-bed, dunked him in cold water and hung him by
his ankles with duct tape. The jury did not believe Revilla.
Three large hamburgers, two orders of fries, an order of jumbo
shrimp, four mini pecan pies and a large cherry cola.
Revilla declined a final statement.
Oklahoma Department of
Inmate: Daniel J. Revilla
Height: 5 ft. 06 in
Weight: 145 pounds
Location: Oklahoma State Penitentiary, Mcalester
Oklahoma Attorney General News
News Release - W.A. Drew Edmondson, Attorney
December 19, 2002
Execution Date Set for Revilla
Execution Date Set for Revilla The Oklahoma Court
of Criminal Appeals today set Jan. 16, 2003, as the execution date
for death row inmate Daniel Juan Revilla. Attorney General Drew
Edmondson requested the date Nov. 12 after the United States Supreme
Court denied Revilla's final appeal.
Revilla, 34, was convicted in Jackson County
District Court of the Jan. 26, 1987, murder of 13-month-old Mark
Gomez in Altus. Gomez was Revilla's girlfriend's son. The child had
numerous wounds including bruises, blisters, burns and lacerations.
An autopsy showed swelling and bleeding of the brain and the
complete severance of the liver.
Assistant Attorney General Jennifer Miller, chief
of the office's criminal appeals section, said a Jan. 2, 2003,
execution date was originally scheduled, but her office asked the
court to reschedule the execution. "When this office requests an
execution date we ask the court, pursuant to statute, to schedule
the execution 60 days from the date the U.S. Supreme Court denied
the inmate's final appeal," said Miller. "After the Jan. 2 execution
was scheduled, we realized our application contained a typographical
error that misstated the date on which Revilla's final appeal was
denied. On Nov. 26 we filed an amended application to inform the
court of our error. We believe the court is correct in moving the
Daniel Revilla was convicted in 1987 for the
Jackson County beating death earlier that year of 13-month-old Mark
Gomez, the child of Revilla's teenage girlfriend. Prosecutors say
Mark was abused for weeks before his death.
A convicted Oklahoma baby killer who once wanted
to die for his crime is now a bit closer to that old wish. The 10th
U.S. Circuit Court of Appeals ruled 3-0 against Daniel Juan Revilla
in his effort to avoid execution for the murder of 13-month-old Mark
Gomez in Altus. The baby, the child of Revilla's teen-age girlfriend,
was beaten to death in 1987.
Revilla was 18 and had abused the baby
repeatedly for at least a month, according to court records. The
child had many wounds including bruises, blisters, burns and
The autopsy of Mark Gomez showed swelling and bleeding
of the brain and a severed liver. Revilla claimed that he had taken
his girlfriend to the clinic for a checkup and left Mark, only 13
months old, at the house alone.
Upon interrogation, Revilla claimed
he arrived home and found the baby lifeless on the floor. He tried
to revive Gomez by hitting him in the abdomen, and when that failed,
he placed him in the bathtub and ran some water over him.
In a panic,
he accidentally turned on the hot water, causing burns to the child.
He then decided to take Gomez to the hospital, and while hurriedly
leaving the house he tripped and fell on a concrete floor. He then
showed up at the county hospital, running through the lobby carrying
Gomez in his arms, screaming that the child was not breathing.
Revilla escaped from the Jackson County Jail in
October of 1987. He apparently had a girlfriend waiting for him, and
the 2 traveled to Mexico. During the spree, Revilla managed to slip
away from law enforcement officials in Wellington, Texas just a few
days after his escape. Mexican authorities captured Revilla in
In February of 1988 Revilla reportedly said he was
glad to be on death row because of the privileges he had there. In
1996, after 10 years on death row, Revilla maintained his innocence
but told a judge in Altus that he wanted to stop his court appeals.
He said he wanted to die within 60 days.
Two years later, however,
Revilla began his current appeal. He claimed that several aspects of
the guilt phase of his trial and the penalty phase violated his
constitutional rights. The federal appeals court disagreed in a 34-page
UPDATE: A man who brutally beat his girlfriend's
baby boy to death 16 years ago died for the crime Thursday. Mark
Gomez of Altus was just 13 months old when he was killed in a
beating so brutal it severed his liver. Daniel Revilla, 34, denied
intentionally harming Mark.
He told authorities he panicked when he
found the boy wasn't breathing and struck and accidentally scalded
the child while trying to revive him. The baby was bruised, burned
and had cuts on his thighs and peeling skin on his chest and groin
when he died. An autopsy showed swelling and bleeding of the brain,
along with a severed liver.
The boy's father and four other family members
came to the prison to see Revilla die. The U.S. Supreme Court
rejected Revilla's last-ditch plea for a stay Thursday afternoon. At
the time of the murder, Revilla was 18 and working on a farm.
boy's mother wasn't at home when Revilla said he found the child had
stopped breathing. Revilla told authorities he was trying to revive
the baby when he struck him in the abdomen and then accidentally
scalded him with hot water. He said he rushed from the bathroom and
struck the boy's head on the door frame. He said he then tripped and
fell on top of the boy.
Mark's mother, Michelle McElmurry, and two
other witnesses testified that Revilla hated the boy because he was
not his child. She told of previous abuse, saying Revilla had shut
the baby in a kitchen drawer, folded him in a hide-a-bed, dunked him
in cold water and hung him by his ankles with duct tape.
father, Juan Gomez, said his son was a playful blue-eyed baby. The
murder took place two days before he was to take custody of him, he
said. "I've got pictures of him from when we were together," he said.
"I look back at those times and I sob. It was a short time, but it
was still a good time." Gomez said he wanted to witness the
execution because he thought it might bring him peace.
Daniel Juan Revilla, a 34-year-old
white male, was executed by lethal injection at
Oklahoma State Penitentiary in McAlester, Oklahoma
on January 16, 2003.
Revilla was found guilty of the
1987 murder of Mark Gomez, a 13-month-old white male.
Revilla, who was 18-years old when he committed the
capital crime, was sentenced to death on December 4,
On January 26, 1987, Revilla took
his girlfriend, Michelle McElmurry, to the Jackson
County Health Department for a checkup. Michelle's
son, Mark Gomez, was left alone at the Altus,
Oklahoma house shared by Revilla and McElmurry.
Approximately 40 minutes later
Revilla ran through the lobby of the county hospital
carrying Gomez in his arms yelling that he had
swallowed his tongue and was not breathing.
Subsequent attempts by hospital medical personnel
were unsuccessful in reviving the unconscious infant.
Hospital personnel noticed
numerous wounds and injuries to Gomez's body
including bruises on his back, blisters on his chest,
peeling skin on his chest and groin area, burns on
his thighs and ear, and lacerations on his thighs
and arms. The autopsy report showed a swelling and
bleeding of the brain and the complete severance of
When confronted Revilla denied
causing Gomez's death and explained that when he
returned home from dropping Michelle off at the
clinic, he saw Gomez lying on the floor. Gomez was
pale and appeared not to be breathing. Revilla
attempted to revive Gomez by striking him in the
abdomen. When Gomez gasped for air Revilla struck
him again. Unable to start him breathing Revilla
stated that he began to panic, grabbed Gomez, pulled
his clothes off, rushed him into the bathroom,
placed him in the tub, and leaned over to turn on
the cold water but accidentally turned on the hot
water, scalding the infant.
Turning the water off Revilla
wrapped Gomez in a blanket and in his rush out of
the bathroom, struck the infant's head on the door
frame and on exiting the house, tripped and fell on
top of Gomez onto a concrete cellar. Revilla then
claimed that he got up and rushed Gomez to the
At trial there was testimony that
Revilla had once tried to fold Gomez up in a hide-a-bed
couch; that he once put him in a kitchen drawer and
closed the drawer; and that he taunted Gomez by not
letting him go to his mother, go to sleep, or play
with his toys.
Evidence also showed that Gomez
was afraid of Revilla and would cry and refuse to
leave with him; that Revilla had said that he hated
Gomez because he was not his child; that Revilla had
slapped Gomez and thrown him on the floor; that on
one occasion Revilla wrapped duct tape around
Gomez's shoulders, threw him in a bathtub of cold
water then hung him up by his heels; and on another
occasion that Revilla wrapped his belt around Gomez
and squeezed him.
A Jackson County District Court
jury found Revilla, who had no prior criminal
record, guilty of first-degree child abuse murder
and recommended death as punishment. The judge
formally imposed the death penalty on Revilla in
absentia as he escaped from county jail shortly
after trial. Captured in Acupulco, Mexico, Revilla
was extradited back to the United States. On the day
of execution the Supreme Court of the United States
denied a stay.
Daniel Juan Revilla (OK) - Jan. 16, 2003
National Coalition to Abolish
the Death Penalty
The state of Oklahoma is scheduled to execute
Daniel Juan Revilla, a white man, for the 1987 murder of Mark Gomez,
a 13-month-old baby, in Atlus. Revilla maintained his innocence
throughout his trial and years of appeals, claiming he tried to save
a dying baby. According to a recent article in Tulsa World, he still
stands by his story. In 1996, he requested to drop his appeals and
die within 60 days, but he eventually changed his mind and continued
fighting his sentence in the courts.
Revilla took his girlfriend and co-habitant,
Michelle McElmurry, to the Jackson County Health Department for a
checkup on Jan. 26, 1987. During this short trip, the couple left
Gomez, McElmurry’s 13-month-old son, at the house alone.
Approximately 40 minutes later, Revilla ran through the lobby of the
county hospital carrying Gomez in his arms, screaming that the child
was not breathing.
Upon interrogation, Revilla claimed he arrived
home and found the baby lifeless on the floor. He tried to revive
Gomez by hitting him in the abdomen, and when that failed, he placed
him in the bathtub and ran some water over him. In a panic, he
accidentally turned on the hot water, causing burns to the child. He
then decided to take Gomez to the hospital, and while hurriedly
leaving the house he tripped and fell on a concrete floor.
The state ignored his version of the story, and
quickly concluded that he tortured, burned, and beat the child to
death. Prosecutors also asserted that the murder was merely the
final chapter of a month-long pattern of violent physical abuse.
A jury convicted Revilla of Murder in the First Degree, and, despite
his young age and impeccable prior record, sentenced him to death.
Over the years, he has raised numerous arguments concerning his
jury’s failure to balance out aggravating and mitigating
circumstances, but these challenges have made little headway in the
He also filed an appeal challenging the
effectiveness of his counsel, specifically in his attorney’s failure
to request a psychiatric expert to rebut the state’s argument
concerning future dangerousness. The courts denied this as well, and
Revilla, just 18 years old at the time of his crime, is now
dangerously close to his execution date.
Regardless of the actual events that occurred on
Jan. 26, 1987, the circumstances surrounding this tragedy have
caused enough suffering already. Another act of senseless violence
will not rectify the situation, but will only continue the violence.
Please write the state of Oklahoma and request clemency for Daniel
Man Executed for Child's Beating Death
Kelly Hurt - Daily Oklahoman
January 17, 2003
MCALESTER, Okla. - A man who brutally beat his
girlfriend's son to death 16 years ago died for the crime Thursday.
Daniel Juan Revilla was pronounced dead at 6:12 p.m. at the Oklahoma
State Penitentiary, minutes after executioners delivered a mix of
drugs to stop his breathing and then his heart.
Mark Gomez of Altus was just 13 months old when
he was killed in a beating so brutal it severed his liver. Revilla,
34, denied intentionally harming Mark. He told authorities he
panicked when he found the boy wasn't breathing and struck and
accidentally scalded the child while trying to revive him.
was bruised, burned and had cuts on his thighs and peeling skin on
his chest and groin when he died. An autopsy showed swelling and
bleeding of the brain, along with a severed liver.
The boy's father and four other family members
came to the prison to see Revilla die. "I feel that justice has
finally been served -- not for me but for my son Mark," Juan Gomez
said afterward. Revilla, his face turned away from witnesses, shook
his head "no" when asked if he had a final statement. As the
execution began, he turned his head and looked to the ceiling,
closed his eyes and puffed out a last breath. The U.S. Supreme Court
rejected Revilla's last-ditch plea for a stay Thursday afternoon.
Revilla spent his final hours visiting with his
brother and godmother. He ate his requested final meal -- three
large hamburgers, two orders of fries, an order of jumbo shrimp,
four mini pecan pies and a large cherry Coke, prison officials said.
At the time of the murder, Revilla was 18 and
working on a farm. The boy's mother wasn't at home when Revilla said
he found the child had stopped breathing. Revilla told authorities
he was trying to revive the baby when he struck him in the abdomen
and then accidentally scalded him with hot water. He said he rushed
from the bathroom and struck the boy's head on the door frame. He
said he then tripped and fell on top of the boy.
Michelle McElmurry, and two other witnesses testified that Revilla
hated the boy because he was not his child. She told of previous
abuse, saying Revilla had shut the baby in a kitchen drawer, folded
him in a hide-a-bed, dunked him in cold water and hung him by his
ankles with duct tape.
Gomez said his son was a playful blue- eyed baby.
The murder took place two days before he was to take custody of him,
he said. "I've got pictures of him from when we were together," he
said. "I look back at those times and I sob. It was a short time,
but it was still a good time." Gomez said he wanted to witness the
execution because he thought it might bring him peace. "I do forgive
Mr. Revilla," he said. "He was young at the time and I don't think
he realized what he did until it was too late. And I feel very sorry
for his family for the loss of their son."
State Executes Child Killer; Revilla Sentenced
For 1987 Murder
KOCO Channel 5
January 17, 2003
MCALESTER, Okla. -- The man who killed Juan
Gomez's baby son did not ask him for forgiveness in Oklahoma's death
chamber. But he died with it anyway. Daniel Juan Revilla, 34, kept
his face turned away and shook his head "no" when asked in view of
his 13-month-old victim's father Thursday if he had a final
statement. He died minutes later at 6:12 p.m. from an injection of
"I do forgive Mr. Revilla," Gomez said afterward.
"He was young at the time and I don't think he realized what he did
until it was too late."
Revilla was 18 years old and living in Altus when
he beat Mark Gomez, his girlfriend's son, to death in 1987. The
child had bruises, burns and cuts on his body, his brain showed
bleeding and swelling and his liver had been severed in two.
Revilla denied intentionally harming the boy. "Mark was a wonderful,
cheerful son," said Gomez, who had separated from the boy's mother
at the time of the murder. "I miss him and carry him in my heart
every day." Gomez said he felt sorry for Revilla's family because
they had lost their son.
As the execution began and a chaplain read
scripture, Revilla turned his head to the ceiling, closed his eyes
and puffed out a last breath. The U.S. Supreme Court had rejected
his plea for a stay hours earlier.
Jackson County District Attorney John Wampler
said the baby had been abused possibly for weeks before the fatal
beating. Revilla told authorities that Mark had stopped breathing,
and he was trying to revive the baby when he struck him in the
abdomen. He said he then accidentally scalded the boy with hot water
and then struck the child's head on a door frame as he rushed from
He said he then tripped and fell on top of the baby.
Mark's mother, Michelle McElmurry, and two other witnesses testified
that Revilla hated the boy because he was not his child.
Members of Gomez's family had tears in their eyes
after witnessing the execution. Gomez said he had wanted to see
Revilla put to death because he thought it might bring him peace
after years of depression. "I feel that justice has finally been
served," he said. "Not for me but for my son Mark."
Man Who Beat Baby to Death Executed in
McALESTER, Okla. - A man convicted of beating to
death the 13 month old child of his girlfriend was executed by
lethal injection Thursday night, becoming the first man put to death
in the state in 2003.
Daniel Revilla, 34 and on death row for 15 years,
was led to the death house after 6 p.m. and receivd the lethal drugs
after the U.S. Supreme Court denied his last ditch appeal. He was
pronounced dead at 6:12 p.m.
Revilla was convicted of the murder of Mark Gomez.
Prosecutors said there were bruises, blisters, burns and lacerations
on the child's body. In addition, an autopsy showed swelling and
bleeding of the brain and the complete severance of the liver,
prosecutors said. The boy died on Jan. 26, 1987.
Revilla, a farmhand by trade, had denied
intentionally hurting the child. He told investigators that he had
panicked when he found Mark unconscious. Revilla had said that as he
was rushing the boy to the hospital, the child head struck a door
fram. He also claimed he had punched the child in the stomach and "accidently"
scalded him in an attempt to revive him.
But at his trial, Revilla's then girlfriend,
Michelle McElmurry, testified that Revilla had hated the boy because
he wasn't his biological offspring. She and other witnesses told of
Revilla previously abusing the child, including dunking the helpless
boy in cold water and hanging him by his ankles.
Oklahoma Baby Killer Executed
By Doug Russell - Washington Times
UPI - January 16, 2003
MCALESTER, Okla. - Almost 16 years after brutally
killing his teenage girlfriend's 13-month-old child, Daniel Juan
Revilla was executed Thursday at the Oklahoma State Penitentiary.
Revilla, 34, was pronounced dead at 6:12 p.m. from a lethal mixture
of intravenous drugs.
Court documents indicate Revilla rushed into the
Jackson County Hospital in Altus carrying Mark Gomez on the morning
of Jan. 26, 1987. Hospital personnel were unable to revive the
unconscious infant, who apparently had swallowed his tongue. Workers
noticed the baby had numerous injuries, including blisters on his
chest, peeling skin on the chest and groin areas, bruises on his
back, burns and lacerations.
An autopsy of the child's body revealed swelling
of the brain and a complete dissection of the liver. Revilla told
investigators he had found the boy unconscious and not breathing
after dropping his girlfriend off for a physical, according to court
records. He said he hit the child in the abdomen in an effort to
revive him, then rushed the child into the bathroom to put water on
him. In his haste, Revilla said, he accidentally turned on the hot
water, scalding the boy, and also bumped the child's head on a door
frame as he rushed to the hospital.
Medical experts testified at trial that the
baby's injuries could not have happened the way Revilla described.
One doctor testified Gomez "certainly is a battered child" who was "literally
beaten to a pulp," according to court records. Trial witnesses said
Revilla had abused the boy during his entire month-long relationship
with Michelle McElmurry, Mark Gomez's mother. Witnesses said Revilla
did not like the child because he wasn't the child's father and that
Revilla had shut the infant in a kitchen drawer, folded him in a
hide-a-bed, and hanged him by his ankles with duct tape.
Four members of Gomez's family traveled to
McAlester from Huntsville, Texas, to witness the execution. Reading
a prepared statement, Juan Gomez, the boy's father, said, "I feel
that justice has finally been served -- not for me but for my son
Mark." He said the boy was killed just two days before he was have
taken custody of his son.
There were no witnesses for Revilla, who lay with
his eyes closed and his head turned from the witness room in the
death chamber. He shook his head "no" when asked if he had a final
statement. Four minutes later he was pronounced dead. Revilla
visited with his brother and grandmother and ate a last meal of
three large hamburgers, two orders of fries, an order of jumbo
shrimp, four mini pecan pies and a large cherry cola in the hours
leading up to his execution. Revilla was the first convicted killer
executed this year in Oklahoma.
Canadian Coalition to Abolish
the Death Penalty
Dan's Way O Thinkin
I believe in a death penalty... What ? You want
honesty, don't you ? Well, this is it. I believe in a death penalty...
Some reporter just wrote that sentence down,
giddy with excitement. Tomorrow in his small community, in his local
newspaper, the headline will read, "Death Row Inmate Believes in
Death Penalty." His article will begin with that one sentence, but
you'll see none of the rest of this composition in his/her article.
In the three columns following that one sentence, they'll provide
their own personal rhetoric to sensationalize that sentence. To hell
with what else I write; that one sentence is "good news."
Which is why I loathe, and abhor the media almost,
if not equal to, my dislike of attorneys. For the rest of you, who
intend to keep reading...I believe in a deth penalty. And wouldn't
you? There are those who kill and will continue to kill. Those who,
even though on death row, pose a mortal threat to guards, and other
inmates. Who are a waste of skin. Who have no interest in
rehabilitation. They look for any opportunity to inflict their evils
on those around them.
I don't want them around my loved ones ! You
don't want them around you, or your loved ones. They'll never
contribute anything to free society or prison society, other than
misery. The death penalty was conceived to protect us all from such
Though I believe in "a" death penalty, I do not
believe in "the" death penalty. Oh, ho-ho ! I've now thrown you a
curve...To the public, our present death penalty seems just. And
anyone on death row, has to be abominable. We (death row inmates)
are all the psychopathic monsters I described earlier. Since most of
the public has a blind faith in politicians and their government...you
will answer, yes. But the truth is, only a very small percent of
those on death row are the stereotypical, bloodthirsty killer. Out
of the nations entire death row population, maybe one percent
represents that which the death penalty was conceived for.
language employed in determining a person eligible for death was
worded in such a fashion as to make death exclusively for those who
are societies most malevolent. But, regardless to how effective you
word a law or a punishment, you inevitably put it in the hands of
other men. And, we all know there isn't an unbiased one among us.
Prejudice, passion, self promotion, and an endless list of motives
and emotions accompany our decisions.
In the case of the death penalty, the language,
though in spirit, is meant to apply only to the worst criminal, is
so vague, that it can be appied extensively to any homicide. This
vague language is then put at the discretion of your local
prosecutor. And based on his / her prides, , prejudices, passions...etc,
you may or may not receive a death sentence. For example : The
county i was prosecuted in, has an outstanding record for seeking
first degree murder, and the death sentence for blacks, hispanics,
or poor, uneducated whites.
If you are white, and of means, you could kill
the president and receive probation for reckless self defense. You'd
never see a murder charge. But, God forbid, you had the unfortunate
luck of being born poor, or a minority ! All over the country it is
this way. Your life pivots on whether your prosecutor is a closet
grand wizard ofthe Klan, looking to use you to get re-elected,
thinks the poor are a plague, and should be exterminated, just likes
During man's existence, he has conceived of some
very good ideas, plumbing, electricity, weekends...But, man has also
contrived and implemented things as a "quick fix" because he doesn't
know what else to do. Man doesn't know how to bring about peace in
the world, so he contrived war to protect his patch of earth. He
doesn't know how to stop crime, so he contrived a death penalty.
Much like war, it doesn't work...but damned if we aren't gonna
defend and practice it !
So a few innocent, undeserving people are
slaughtered here and there. We justify that by saying those who
inadvertently die gave their lives for the greater good. And thats
always easy to say, for those never touched by the monster they
create. But, those forced to live with the monster that has touched
their lives, cannot agree so easily. Regular prison population has
more inmates convicted of horrific murders, than all death row
combined. Their crimes surpass (in terms of atrociousness) most of
the crimes for which death row inmates are convicted of. This is
overwhelming proof that the death sentence isn't applied by means of
rigourous elimination processes, to ensure only those most eligible
will receive it. To the contrary, working my "JuJu", pulling a name
from a hopper, drawing straws, would constitute a more exact method
of elimination, than whatever is presently practiced.
The death penalty is unequivocally imposed
arbitrarily. If you can't afford justice, you'll receive just as
much justice as you can buy. In the case ofthe poor, that equals :
none. There are those on death row, right now, with witnesses,
evidence, DNA proof...etc, who can prove their innocence, if only
they could afford it. Sadly, they can't. Nor can they fight the
Goliath system that oppresses them...They will die... The indigent,
since they cannot afford to hire competent legal representation, are
forced to capitulate.
They abdicate their lives to the states 'indigent
defense system.' An unimpressive, underfunded, jerkwater
organization; implemented and appointed by the state, to facilitate
the state's desire to escort you through the formalities and into
the execution chamber.
Those who comprise your representation in
this indigent system, are burnouts, and fresh from law school -
graduates. The burnouts are there to continue to draw a paycheck,
but only practice third rate defense law. Sort of a "slow down,
preretirement job." The fresh out of school lawyers need a place to
practice, and gain experience, before any real law firm will hire
them. So, just as med-students practice on cadavers, these fresh
from school "attorneys" practice on death row inmates. The logic is
this : We're dead already (much like the cadaver) so they can't do
any harm. And they might actually get lucky and fumble upon helping
you. So, we begin the appeals process represented by blistering,
incompetence. Of course, once your direct appeal is severely flawed,
due to your incompetent representation, every following appeal is
flawed and summarily denied. For the next decade, in every court
following, from every judge over those courts, you'll receive a
standard response : " The issues of error should have been brought
up in direct appeal. They are without merit in this court and denied."
In an oxymoronic statement, the judge says your lawyer was competent
and provided adequete representation, you can't claim 'ineffective
assistance of counsel,' but in that same breath, the judge will deny
you any relief, bolstering the fact your attorney was indeed
incompetent and made fundamental errors in not introducing or
arguing evidence in your direct appeal. At which time you know for
certain there is a special place in hell for attorneys. Judges, DA's,
defense attorneys...they're all lawyers.
I could go on and on in regard to the innumerable
inequities of the legal system; Lord knows i've only scratched a
minute fraction of the tip of this iceberg, but I don't have time or
space. My point is this : I believe in a death penalty, only as
extreme protection from those who will never cease from inflicting
their evils upon free society. But, i do not support, or believe in
the death penalty because it'll always be severely flawed in the
hands of man. It will never function as extreme protection, it'll
always consume the innocent, undeserving. It'll always be a tool to
gain election, always be the tool of some individuals racism, pride,
prejudice - a means to exact revenge on what that individual
And that is, Dan's way o thinkin' ...
Dangerous Dan the Preacher
As far as writing anyone goes; I'm not really
interested... With maybe one exception: You're an unattached female
who's happened upon my webpage, and decidedly fallen in love with
me. And if I refuse to reciprocate your affections, you'll forever
be crushed... Well...then...I guess, I'd consider writing. Ha Ha !
But being that this is the real world (and not
one of my pleasant pipe-dreams), I'm really not interested in
corresponding with anyone. I won't say unequivocally that, "I won't
write anyone." Someone out there, by some miracle of persuasion,
might pique my interest. Therefore, there exists the slightest
possibility I may write you.
Though I don't wish to write anyone (and this'll
seem selfish, I know) I invite you to write me and comment on my
webpage. I don't mind if you compliment or criticize. Please, feel
free to express yourself. Based on your input, you'll no doubt
influence future installments to my commentary/opinion, menu-selection.
If you think you have a good joke, fell free to tell it to me. If I
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283 F.3d 1203
Gary GIBSON, Warden, Oklahoma State Penitentiary, Respondent-Appellee.
United States Court of Appeals,
March 13, 2002.
Before SEYMOUR, BALDOCK, and
MURPHY, Circuit Judges.
MURPHY, Circuit Judge.
In 1987, an Oklahoma jury
found Daniel Juan Revilla guilty of first degree child abuse
murder, Okla. Stat. tit. 21, § 701.7(C) (Supp.1982). The jury
also found two aggravating circumstances: "especially heinous,
atrocious or cruel" conduct and "a probability that the
defendant would commit criminal acts of violence that would
constitute a continuing threat to society." The jury imposed
death as punishment. The state trial court formally imposed
judgment on Revilla in absentia, due to his escape from
county jail shortly after trial.
Following his return to
custody, Revilla unsuccessfully challenged his conviction and
sentence on direct appeal and through state collateral review.
See Revilla v. State, 877 P.2d 1143 (Okla.Crim.App.1994);
Revilla v. State, 946 P.2d 262 (Okla.Crim.App.1997).
Thereafter, in January 1998, he commenced this habeas corpus
proceeding pursuant to 28 U.S.C. § 2254.
The district court ultimately
denied his petition, and Revilla appealed. Upon a thorough
review of the record in light of the arguments presented, we
conclude Revilla is not entitled to habeas relief. Accordingly,
as to all matters for which a certificate of appealability (COA)
has been granted, we affirm the judgment of the district court;
in all other respects, this appeal is dismissed pursuant to 28
U.S.C. § 2253(c).
A. Factual Background
In its opinion resolving
Revilla's direct appeal, the Oklahoma Court of Criminal Appeals
(OCCA) summarized the basic facts immediately surrounding the
death of the young victim, as well as the defense theory of how
that death innocently occurred, as follows:
Appellant was convicted of the
child abuse murder of thirteen (13) month old Mark Gomez. On
January 26, 1987, Appellant took his girlfriend, Michelle
McElmurry, to the Jackson County Health Department for a checkup.
The decedent, Michelle's son, was left alone at the house shared
by Appellant and McElmurry.
Approximately 40 minutes later,
Appellant ran through the lobby of the county hospital carrying
the decedent in his arms, yelling that he had swallowed his
tongue and was not breathing. Subsequent attempts by hospital
medical personnel were unsuccessful in reviving the unconscious
Hospital personnel noticed
numerous wounds and injuries to the decedent's body, including
bruises on his back, blisters on his chest, peeling skin on his
chest and groin area, burns on his thighs and ear, and
lacerations on his thighs and arms. The autopsy report showed a
swelling and bleeding of the brain and the complete severance of
The Appellant denied causing
the decedent's death and explained that when he returned home
from dropping Michelle off at the clinic, he saw the decedent
laying on the floor. The decedent was pale and appeared not to
be breathing. Appellant attempted to revive the decedent by
striking him in the abdomen.
When decedent gasped for air,
Appellant struck him again. Unable to start him breathing,
Appellant stated that he began to panic, grabbed the decedent,
pulled his clothes off, rushed him into the bathroom, placed him
in the tub, leaned over to turn on the cold water but accidently
turned on the hot water, scalding the infant.
Turning the water off, he
wrapped the decedent in a blanket, and in his rush out of the
bathroom, struck the infant's head on the door frame. Exiting
the house in a hurry, he tripped and fell on top of the decedent
onto a concrete cellar. Appellant got up and rushed the decedent
to the hospital.
Revilla, 877 P.2d at
1147. Contrary to Revilla's theory of defense, the OCCA
specifically held the evidence "showed that [the victim's]
injuries could not have occurred by accident, but were
intentionally inflicted." Id. at 1155.
In reviewing Revilla's
sentence, the OCCA again cited the victim's many injuries, and
then recounted Revilla's repeated abusiveness toward the victim
during the month leading up to the fatal incident, which it
aptly characterized as "a time of terror, torture and abuse for
the young decedent":
In addition to testimony that
Appellant tried to fold decedent up in a hide-a-bed couch; that
he put him in a kitchen drawer and closed the drawer; and that
he taunted the 13 month old decedent by not letting him go to
his mother, go to sleep or play with his toys, evidence also
showed that the decedent was afraid of the Appellant and would
cry and refuse to leave with him; that Appellant had said that
he hated the decedent because he was not his child; that
Appellant had slapped the decedent and thrown him on the floor;
that on one occasion Appellant wrapped duct tape around the
decedent's shoulders, threw him in a bathtub of cold water then
hung him up by his heels; and on another occasion that Appellant
wrapped his belt around the decedent and squeezed him.
Id. The OCCA
accordingly "f[ou]nd the aggravator of `especially heinous,
atrocious or cruel' supported by sufficient evidence." Id.
Further, the OCCA noted that Revilla had at one time been in "possession
of a sawed-off shotgun and two machetes," and, more importantly,
"had written [letters] from jail threatening Michelle McElmurry;
the District Attorney; Juan Gomez, the decedent's father; and
Richard Taylor, McElmurry's then roommate, with physical harm
and even death," and concluded that "[t]his evidence of [his]
violent nature, together with the callous nature in which [he]
killed Mark Gomez, support the jury's finding of the continuing
threat aggravating circumstance." Id. at 1156. The OCCA
therefore deemed "the sentence of death factually substantiated
and appropriate." Id. "[F]inding no error warranting
reversal or modification," the OCCA upheld Revilla's conviction
and death sentence for first degree murder. Id.
B. Procedural Background
and Motion to Expand COA
After the denial of state
post-conviction relief, Revilla filed the instant petition
raising many claims, not all of which have been pursued in this
appeal. The district court denied the petition but granted a COA
on four claims: (1) Revilla lacked the necessary culpability for
capital punishment recognized in Enmund v. Florida, 458
U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), and Tison
v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127
(1987); (2) trial counsel provided ineffective assistance by
failing to request a psychiatric expert to rebut the State's
case on the continuing threat aggravator; (3) the heinous,
atrocious, or cruel aggravator was not supported by the evidence
and thus was unconstitutionally applied; and (4) the heinous,
atrocious, or cruel aggravator merely duplicated elements of the
offense and consequently failed to narrow the class of offenders
eligible for the death penalty, as required by the Eighth
This court conducted a case
management conference at the outset of the appeal. After the
conference, the COA was expanded to include two additional
issues: (5) the pertinent evidence was insufficient to support
the continuing threat aggravator; and (6) the trial court
admitted improper expert testimony of personal opinion and
statistical probabilities regarding the ultimate issue of guilt.
A. Standard of Review
Revilla filed this habeas
proceeding after the April 24, 1996 effective date of the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).
Consequently, as the district court recognized, federal review
of the petition is governed by the standards set out in 28 U.S.C.
§ 2254(d) and (e),
as amended by AEDPA. Williams v. Taylor, 529 U.S. 362,
402, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). The Supreme Court
construed the language of § 2254(d)(1) in Williams, which
this court has summarized as follows:
AEDPA allows a federal court
to grant habeas relief under § 2254(d)(1) only if the relevant
state-court decision was either "contrary to" or "an
unreasonable application of" established Supreme Court precedent.
As for § 2254(d)(1)'s "contrary to" clause, [the Court] noted
that a state-court decision would be contrary to the Court's
clearly established precedent in two circumstances: (1) the
state court applies a rule that contradicts the governing law
set forth in the Court's cases; or (2) the state court confronts
a set of facts that are materially indistinguishable from a
decision of the Court and nevertheless arrives at a result
different from the result reached by the Supreme Court.
Under the "unreasonable
application" clause, on the other hand, a federal habeas court
may grant the writ only if the state court identifies the
correct governing legal principle from the Court's decisions but
unreasonably applies the principle to the facts of the
prisoner's case. To be clear, under § 2254(d)(1)'s unreasonable
application clause, a federal habeas court may not issue the
writ simply because that court concludes in its independent
judgment that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly. Rather, that
application must also be unreasonable.
Thomas v. Gibson, 218
F.3d 1213, 1219-20 (10th Cir.2000) (citations, quotations, and
associated alterations omitted).
These AEDPA principles require
a state decision on the merits to which the federal courts can
defer. See 28 U.S.C. § 2254(d) (limits on review in
subsections (1) and (2) apply "with respect to any claim that
was adjudicated on the merits in the State court proceedings");
§ 2254(e)(1) (presumption of correctness attaches to "a
determination of a factual issue made by a State court"). "To
the extent that the state court has not addressed the merits of
a claim and the federal district court made its own
determination in the first instance, this court reviews the
district court's conclusions of law de novo and its findings of
fact, if any, for clear error." Cannon v. Gibson, 259
F.3d 1253, 1260 (10th Cir.2001) (quotations omitted).
B. Guilt Phase Issues
1. Enmund/Tison Claim
The Eighth Amendment prohibits
"imposition of the death penalty on one ... who aids and abets a
felony in the course of which a murder is committed by others
but who does not himself kill, attempt to kill, or intend that a
killing take place or that lethal force will be employed."
Enmund, 458 U.S. at 797, 102 S.Ct. 3368; see Tison,
481 U.S. at 158, 107 S.Ct. 1676 (clarifying that death penalty
may be imposed on felony murder defendant who was not actual
killer and who had no specific intent to kill, if evidence shows
"major participation in the felony committed, combined with
reckless indifference to human life"). Revilla contends that
this principle bars imposition of the death penalty for his
child abuse murder conviction, because "the State was not
required to prove the element of intent to kill [or even
reckless indifference], but was required [only] to prove that
[he] `willfully' or `maliciously' injured, tortured, maimed or
used unreasonable force upon the victim." Revilla, 877
P.2d at 1148.
This claim implicates some
thorny procedural issues. The State insists it was procedurally
defaulted. Actually, owing to the complicated and uncertain
relationship this claim bears to other objections Revilla has
advanced, it is not clear the claim was exhausted, much less
raised and defaulted, in state court.
In contrast to its procedural
complications, however, the claim may be disposed of in
straightforward fashion on substantive grounds. We therefore
invoke our discretion to bypass complex issues of exhaustion,
see 28 U.S.C. § 2254(b), and procedural bar, see Romero
v. Furlong, 215 F.3d 1107, 1111 (10th Cir.), cert. denied,
531 U.S. 982, 121 S.Ct. 434, 148 L.Ed.2d 441 (2000), to reject
the claim on the merits, which is also the course the district
court followed. We review its decision de novo. Cannon,
259 F.3d at 1260.
It is essential, in applying
Enmund, to appreciate a basic distinction the Supreme
Court has drawn regarding the focus of its Eighth Amendment
analysis. "Enmund does not concern the guilt or innocence
of the defendant—it establishes no new elements of the crime of
murder that must be found by the jury." Cabana v. Bullock,
474 U.S. 376, 385, 106 S.Ct. 689, 88 L.Ed.2d 704 (1986). Rather,
Enmund holds only that
the principles of proportionality embodied in the Eighth
Amendment bar imposition of the death penalty upon a class of
persons who may nonetheless be guilty of the crime of capital
murder as defined by state law: that is, the class of murderers
who did not themselves kill, attempt to kill, or intend to kill.
when a federal habeas court
reviews [an Enmund claim], the court's inquiry cannot be
limited to an examination of jury instructions. Rather, the
court must examine the entire course of the state-court
proceedings ... to determine whether, at some point in the
process, the requisite factual finding as to the defendant's
culpability has been made.
Id. at 387, 106 S.Ct.
689. A state trial or appellate court may make the necessary
intent finding, which is presumed correct under § 2254(e), "and
unless the habeas petitioner can bear the heavy burden of
overcoming the presumption, the [federal] court is obliged to
hold that the Eighth Amendment as interpreted in Enmund
is not offended by the death sentence." Id. at 388, 106
The OCCA made the requisite
finding of intent, albeit in a different legal context. While
addressing the availability of lesser included offense
instructions requested by the defense, the OCCA expressly found
that the "evidence presented by the State showed that the
decedent's death was the result of injuries intentionally
inflicted by the Appellant in a premeditated design to effect
death." Revilla, 877 P.2d at 1149 (emphasis added).
The emphasized language
certainly encompasses a culpability sufficient to satisfy the
Eighth Amendment prescriptions of Enmund and Tison,
and Revilla has not cited clear and convincing evidence to rebut
this presumptively correct finding. See 28 U.S.C. §
2254(e)(1). Further, we see no reason why the mere fact that the
finding was made in the context of a different issue should
dilute its otherwise dispositive effect under Cabana.
2. Admission of Expert
Revilla contends the state
trial court improperly admitted certain testimony from two
experts which was damaging to the defense. When, as in this
case, no particular constitutional guarantees are implicated,
such evidentiary objections merely raise questions of state law
and, therefore, are cognizable on habeas only if the alleged
error was "so grossly prejudicial [that it] fatally infected the
trial and denied the fundamental fairness that is the essence of
due process." Fox v. Ward, 200 F.3d 1286, 1296 (10th
Cir.) (quotation omitted), cert. denied, 531 U.S. 938,
121 S.Ct. 329, 148 L.Ed.2d 264 (2000). With this federal
standard in mind, we conclude that the state courts' resolution
of Revilla's evidentiary objections was not unreasonable and,
hence, those objections provide no basis for relief under §
2254(d)(1). See Thomas, 218 F.3d at 1225.
On direct appeal and in the
district court, Revilla challenged the testimony of three
medical doctors, all of whom agreed that the nature and severity
of the victim's injuries indicated they were not accidental. He
does not now object to the testimony of Dr. John Steumky, which
was the most damaging. Dr. Steumky stated that the injuries here
were the type "we only see in beatings"; that the victim "certainly
is a battered child"; that the victim "was literally beaten to a
pulp and was killed"; that "[i]t absolutely defies the
imagination to characterize these injuries [as] possible C.P.R.";
and that, as to the head injury, there was "no way" it could
have been inflicted in the accidental manner explained by
Revilla. Trial Tr. for Sept. 16, 1987, at 94-96, 104.
Given this testimony, it is
difficult to see how the other doctors' cumulative and far less
forceful opinions, even if erroneously admitted, could possibly
have been "so grossly prejudicial" as to have rendered Revilla's
trial fundamentally unfair. Fox, 200 F.3d at 1296.
In any event, the OCCA held
the opinions related by Dr. William Newland and Dr. Larry
Balding were properly admitted, and Revilla has not shown that
holding to be inconsistent with controlling evidentiary
principles. Dr. Newland had assisted in emergency room attempts
to revive the victim. He indicated that, based on information
received from others regarding Revilla's account of events and
his own observation of the victim, the victim's injuries were
caused by "non-accidental trauma." See Trial Tr. for
Sept. 14, 1987, at 94-101, 103-08. The OCCA concluded:
We find no error in the
admission of Dr. Newland's testimony as that of an expert
witness. Due to his education and experience, as set forth in
the record, he was qualified to give an expert opinion as to the
cause of the injuries. While he testified that he did not
remember the exact people who gave him the background
information on the decedent, Dr. Newland stated that his
conclusions were based upon his clinical observations of the
severity of the injuries, plus any available history of the
victim. This testimony was properly admitted under 12 O.S.1981,
Revilla, 877 P.2d at
Revilla does not cite any
contrary authority, but objects in conclusory fashion that the
OCCA approved "baseless speculation" constituting an "extremely
prejudicial personal expression of [his] guilt and an opinion on
the ultimate issue of the validity of [his] theory of defense."
Br. of Appellant, at 31. His objection to the foundation for Dr.
Newland's opinion is plainly belied by the record and the quoted
passage from the OCCA's decision.
His objection that the opinion
expressed a direct, conclusive position on the ultimate issue of
guilt is undercut by Dr. Newland's specific clarification that
by "non-accidental trauma" he meant only that the victim's
injuries "would have had to have been inflicted and not the
child doing it to himself." Trial Tr. for Sept. 14, 1987, at
103. Revilla's defense that he accidentally killed the victim is
not necessarily opposed, much less definitively contradicted, by
Dr. Balding related the
findings of a correlational study done at Michigan State
University, to the effect that "[i]f you have a severe head
injury especially with death of the child that in the vast
majority of cases, ... maybe ninety five percent I think was one
figure[,] ... this represented some form of child abuse." Trial
Tr. for Sept. 15, 1987, at 112. He also said he "share[ed] that
Revilla contends this
testimony constituted "an unmistakable expert opinion of [his]
guilt, stating a 95% probability that Mark was fatally injured
in the course of child abuse," which "relieved the jury from
deciding [his] guilt on the facts of this case." Br. of
Appellant, at 31-32. The OCCA rejected this objection, noting
that Dr. Balding's testimony "was an opinion on the cause of the
decedent's injuries, not on [Revilla's] guilt"; that "[n]o undue
emphasis was placed on the statistical figures"; and that Dr.
Balding "was thoroughly cross-examined by [defense counsel]."
Revilla, 877 P.2d at 1150-51 (also noting OCCA had
previously "approved of testimony regarding professional studies
of which an expert is aware").
We agree that the broad
statistical finding related by Dr. Balding did not translate
into a statement of Revilla's probable guilt. As Dr. Balding
described it, the study was concerned with distinguishing "accident
versus inflicted type injuries," and, in keeping with
that limited focus, its conclusion was "basically that severe
head injury in children does not result from what we call
everyday falls, from running, from falling off a bed, from
falling off a couch." Trial Tr. for Sept. 15, 1987, at 112 (emphasis
Again, Revilla's defense at
trial did not involve denying he had caused injury; indeed, he
specifically admitted bumping the victim's head into a door
frame and landing on top of him as the two fell onto a concrete
Thus, Revilla's own account
indicated the victim's head injury fell into the "inflicted"
category, rendering the study effectively superfluous on the
point and at the same time providing an explanation which, if
believed, contradicted the inference of guilt he now asserts
that categorization necessarily compelled. For both these
reasons, he cannot now claim the study obviated or overwhelmed
the jury's particularized assessment of his guilt on the
C. Penalty Phase Issues
1. Duplication Between
Heinous, Atrocious, or Cruel Aggravator and Elements of Child
Revilla contends the heinous,
atrocious, or cruel aggravator merely duplicated elements of
child abuse murder and thus failed to narrow the class of
offenders subject to capital punishment, as required by the
Eighth Amendment. See generally Lowenfield v. Phelps, 484
U.S. 231, 244, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988) (holding
capital sentencing scheme must "genuinely narrow the class of
persons eligible for the death penalty and ... reasonably
justify the imposition of a more severe sentence on the
defendant compared to others found guilty of murder") (further
On direct appeal, he
challenged the constitutionality and application of the
aggravator in several respects but not on the basis of
duplication. When he did raise the latter objection on post-conviction,
the OCCA declined to reach it, noting that "[i]nsofar as [the]
current claim is the same as was raised on direct appeal, it is
res judicata," and that "[a]ny difference in the claims
renders the post-conviction claim waived." Revilla, 946
P.2d at 266. Accordingly, the State insists the claim is
procedurally barred. Once again, however, we elect to avoid
complex procedural-bar issues and resolve the matter "more
easily and succinctly" on the merits.
Romero, 215 F.3d at 1111.
The district court held the
duplication claim could not succeed because (1) the heinous,
atrocious, or cruel aggravator did not duplicate the elements of
child abuse murder, and (2) even assuming it did, Revilla's
death sentence could be upheld based on the jury's finding of an
additional aggravator, i.e., that Revilla was a "continuing
threat to society." While the second rationale reflects a
misapplication of controlling law,
the first appears borne out by a comparison of Revilla's offense
and the heinous, atrocious, or cruel aggravator.
The district court noted two
distinctions between the offense and the aggravator. First,
regarding the nature of the defendant's actions, the aggravator
requires conduct that is "extremely wicked," "shockingly evil,"
"outrageously wicked and vile," "pitiless," "designed to inflict
a high degree of pain" or involves "indifference to, or
enjoyment of, the suffering of others." Alverson v. State,
983 P.2d 498, 516 (quotation omitted). Nothing in the offense
replicates these extreme formulations. Second, regarding the
violence done to the victim, the aggravator requires "torture"
or "serious physical abuse" resulting in "conscious physical
suffering." Id. at 515-16. The offense requires only "unreasonable
force" or an "act which caused injury," provided death results.
Fairchild v. State, 998 P.2d 611, 622 (Okla.Crim.App.1999).
Revilla's assertion that,
because the abuse required for the offense must be fatal,
it must as a practical matter satisfy the aggravator, is
meritless. The victim's death, which for the offense need not be
intended, does not necessarily establish the requisite
callousness of the defendant or suffering of the victim. See
Malicoat v. State, 992 P.2d 383, 399-400 (Okla.Crim.App.2000)
(rejecting similar claim of duplication between child abuse
murder and heinous, atrocious, or cruel aggravator).
In any event, we discern a
much more basic deficiency in Revilla's duplication claim. In
Lowenfield, the Supreme Court clarified the constitutional
requirement that a capital sentencing scheme "genuinely narrow
the class of persons eligible for the death penalty," by
the narrowing function
required for a regime of capital punishment may be provided in
either of these two ways: The legislature may itself narrow the
definition of capital offenses ... so that the jury finding of
guilt responds to this concern, or the legislature may more
broadly define capital offenses and provide for narrowing by
jury findings of aggravating circumstances at the penalty phase.
484 U.S. at 244, 246, 108 S.Ct.
546 (quotation omitted). In short, "[t]he use of `aggravating
circumstances' is not an end in itself, but a means of genuinely
narrowing the class of death eligible persons," and there is "no
reason why this narrowing function may not be performed by jury
findings at ... the guilt phase." Id. at 244-45, 108 S.Ct.
From these premises, the Court
concluded that so long as "the `narrowing function' was
performed by the jury at the guilt phase when it found defendant
guilty of [multiple] murder[,] ... the fact that the aggravating
circumstance [found at the penalty phase] duplicated [that]
element of the crime does not make [a capital] sentence
constitutionally infirm." Id. at 246, 108 S.Ct. 546.
This court has followed the
same reasoning to hold that if an offense element adequately
performs the necessary narrowing function, the Eighth Amendment
is satisfied and it is immaterial whether that element happens
to be duplicated by a specified aggravator. See United States
v. Chanthadara, 230 F.3d 1237, 1261 (10th Cir.2000);
United States v. McCullah, 76 F.3d 1087, 1109 (10th Cir.),
reh'g denied, 87 F.3d 1136, 1138 (1996) (en banc).
Thus, the very premise of
Revilla's duplication argument—that child abuse murder is so
reprehensible that it effectively entails the material
requirements of the heinous, atrocious, or cruel aggravator-logically
forecloses his conclusion that the constitutional narrowing
function was not properly effectuated in his case.
2. Insufficient Proof of
Heinous, Atrocious, or Cruel Aggravator
Revilla argues that the State
failed to adduce sufficient proof of the heinous, atrocious, or
cruel aggravator and that its consequent application to his case
was unconstitutional. This claim was raised and rejected in his
direct appeal. See Revilla, 877 P.2d at 1155. The
controlling standard is whether any rational trier of fact could
have found the aggravator beyond a reasonable doubt. Hale v.
Gibson, 227 F.3d 1298, 1334-35 (10th Cir.2000), cert.
denied, 533 U.S. 957, 121 S.Ct. 2608, 150 L.Ed.2d 764
The victim's death was
undoubtedly preceded by serious physical abuse. The testimony,
records, and physical evidence presented at trial clearly
support the litany of injuries recited by the OCCA, which
included burns to the [victim's]
cheek, ear, and upper thighs [and chest, from which the skin was
actually peeling off when the victim arrived at the hospital];
lacerations on his arms; bruises on his back; head injuries,
including a subdural hemorrhage which resulted in swelling of
the brain; and
a complete transection of his liver.
Revilla, 877 P.2d at
The only issue concerns the
requirement of conscious physical suffering. The medical
evidence showed that the severe injuries inflicted on the
morning the victim died, i.e., the transected liver, the head
trauma, and the chest and leg burns, all occurred at or about
the time of death, but no particular order was established.
Further, the medical witnesses
indicated that death or unconsciousness could have resulted
immediately from either the liver or the head injury, and none
of the witnesses offered an opinion whether the victim remained
Thus, the crucial question "is
whether Oklahoma adduced sufficient evidence from which a
reasonable fact finder could have concluded beyond a reasonable
doubt that [the victim] was conscious during some part of the
[abuse]." Thomas, 218 F.3d at 1227 (footnote omitted).
The OCCA noted the uncertainties, but nevertheless concluded "that
numerous severe injuries were inflicted upon the decedent prior
to his death and that the decedent suffered pain before his
death." Revilla, 877 P.2d at 1155.
The first half of that
statement, regarding the infliction of serious multiple injuries
prior to the victim's death, is certainly a reasonable
conclusion on the evidence recited. But injury before death does
not constitute conscious suffering, particularly in a case such
as this, when one or more of the victim's injuries could have
caused the immediate loss of consciousness and there is no
evidence suggesting the order in which the injuries were
We need not definitively
accept or reject any purported inferential link between multiple
injuries and conscious suffering here, because there is an
independent basis in the OCCA opinion for its finding of
conscious suffering. Specifically, the OCCA cited the month-long
period of torture and physical abuse preceding the fatal
incident as "[f]urther evidence supporting this [heinous,
atrocious, or cruel] aggravator." Id. The possibility of
relying on abuse temporally removed from the immediate
circumstances causing the victim's death raises several
questions primarily involving state law.
The initial question is
whether evidence of such abuse is even admissible to prove
conscious suffering for purposes of the heinous, atrocious, or
cruel aggravator. Since its opinion in Revilla, the OCCA
has held that evidence of prior child abuse inflicted up to
nineteen days before thevictim's death is admissible to prove
serious physical abuse and torture for purposes of the heinous,
atrocious, or cruel aggravator, provided the abuse was part of
"a continuing course of conduct."
Malicoat, 992 P.2d at 399.
The next question is whether
Revilla's pre-murder abuse of the victim falls under this
continuing-course-of-conduct principle. We think it does. The
multiple incidents involved here occurred over a fairly short
span of time, which the OCCA itself characterized as "a time of
terror, torture and abuse for the young decedent," Revilla,
877 P.2d at 1155. These events are certainly comparable in this
respect to the continuing course of conduct the OCCA recognized
The more difficult question is
whether such abuse is alone sufficient to satisfy the conscious-suffering
requirement of the heinous, atrocious, or cruel aggravator. The
OCCA did not have to decide this question in Malicoat, in
which the aggravator was supported by expert testimony
describing the victim's likely suffering at the time of death
and the defendant's own admission that the victim had screamed
in pain as he hit her.
See Malicoat, 992 P.2d at 398-99.
If such abuse is admissible
to show the conscious suffering required for the aggravator,
however, it must necessarily be probative on the issue;
and, if sufficiently probative, it need not be combined with
other evidence of conscious suffering contemporaneous with or
immediately preceding death. Thus, Malicoat's rationale,
if not its specific holding, necessarily establishes that pre-murder
abuse, which is not contemporaneous with death, can alone be
sufficient to establish the conscious suffering element of the
heinous, atrocious, or cruel aggravator.
With that legal premise
established, we have no difficulty concluding that, as a factual
matter, the month-long course of "terror, torture, and abuse"
Revilla inflicted on the victim in this case,
see Revilla, 877 P.2d at 1155, satisfies the conscious-suffering
requirement. Indeed, while the particular facts pertinent to the
aggravator are unavoidably unique to each case, see Phillips
v. State, 989 P.2d 1017, 1039 (Okla.Crim.App.1999), the
abuse in question here was comparable in severity to that
supporting the heinous, atrocious, or cruel aggravator in
numerous other cases, where the injuries were inflicted
immediately before the victim died or lost consciousness.
Cf., e.g., Medlock v. Ward, 200 F.3d 1314, 1317 (10th
Cir.), cert. denied, 531 U.S. 882, 121 S.Ct. 197, 148
L.Ed.2d 137 (2000); Hooks v. Ward, 184 F.3d 1206, 1240
(10th Cir.1999); Fairchild, 998 P.2d at 628;
Willingham v. State, 947 P.2d 1074, 1085 (Okla.Crim.App.1997);
Smith v. State, 932 P.2d 521, 535 (Okla.Crim.App.1996).
Our inquiry, however, must
proceed beyond mere analysis of Oklahoma law to resolve whether
the heinous, atrocious, or cruel aggravator, under the
circumstances of this case, continues to adequately narrow the
class of persons eligible for the death penalty consistent with
the Eighth Amendment. See Tuilaepa v. California, 512
U.S. 967, 972, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994) (explaining
aggravating circumstance "may not apply to every defendant
convicted of a murder; it must apply only to a subclass of [such]
defendants"). To resolve that inquiry, we compare the scope of
the statutory offense with that of the aggravator.
The child abuse murder statute
applies to any defendant who willfully "used unreasonable force
upon a minor child" or "committed any act which caused injury to
a minor child," whenever such force or act "resulted in the
death of that child." Fairchild, 998 P.2d at 622. The
heinous, atrocious, or cruel aggravator narrows this broad class
of offenders by requiring (1) that the victim consciously suffer
serious abuse or torture and (2) that the offender's conduct
reflect wickedness, pitilessness, or deliberate infliction of,
indifference to, or enjoyment of suffering. Alverson, 983
P.2d at 516.
Even if the conduct considered
under these constraints is expanded to include physical abuse
not contemporaneous with death but part of a continuing course
of conduct culminating in the fatal abusive incident, the
aggravator would still significantly narrow the class of
defendants eligible for the death penalty by excluding those who
have caused the death of a child through a single or isolated
incident of violence. This narrowing continues to reasonably
justify the more severe punishment of those who qualify.
Finally, consideration of
conduct which is not contemporaneous with the murder is not
generally prohibited under the Eighth Amendment. For example,
Oklahoma's "prior violent felony" and "continuing threat"
aggravators have supported numerous death penalty verdicts
without constitutional difficulty. See Trice v. Ward, 196
F.3d 1151, 1172-73 (10th Cir.1999); Boyd v. Ward, 179
F.3d 904, 922 (10th Cir.1999). See generally Tuilaepa,
512 U.S. at 977, 114 S.Ct. 2630 ("Both a backward-looking and a
forward-looking inquiry are a permissible part of the [capital]
sentencing process, ... and the States have considerable
latitude in determining how to guide the sentencer's decision in
In sum, Revilla's continuing
course of pre-murder abuse of the victim was admissible to show
the conscious suffering required for the heinous, atrocious, or
cruel aggravator; this evidence was sufficient to satisfy the
State's burden and the OCCA's application of the aggravator on
the facts of record was consistent with governing constitutional
principles. We therefore reject Revilla's claim that the heinous,
atrocious, or cruel aggravator was impermissibly applied to his
3. Insufficient Proof of
Continuing Threat Aggravator
This claim was raised and
rejected on the merits in Revilla's direct appeal. See
Revilla, 877 P.2d at 1155-56. Again, the controlling
standard is whether any rational trier of fact could have found
the aggravator beyond a reasonable doubt, Hale, 227 F.3d
at 1334-35 (10th Cir.2000), and, under AEDPA, we ask only "whether
the OCCA's decision was reasonable." McCracken, 268 F.3d
The OCCA affirmed the jury's
finding of a continuing threat on the basis of the callousness
reflected in Revilla's abusive conduct toward the victim, the
implication of violence in his possession of two machetes and a
sawed-off shotgun, and, most importantly, the express threats of
violence and death he made regarding the victim's mother and her
roommate, the victim's father, and the district attorney. See
id. at 1156. The district court concluded that this evidence
was sufficient, under the controlling habeas standards, to
support the finding upheld by the OCCA, and we agree.
Revilla contends, however,
that the OCCA's decision is inconsistent with Ochoa v. State,
963 P.2d 583 (Okla.Crim.App.1998), which invalidated a
continuing threat finding because "the State [had failed to]
present sufficient evidence concerning prior convictions or
unadjudicated crimes to show a pattern of criminal conduct that
will likely continue in the future." Id. at 603 (quotation
omitted). Revilla reads too much into Ochoa, which held
only that the particular evidence of prior criminal conduct in
that case was insufficient to establish the continuing threat
aggravator. "Contrary to [Revilla's] contention, a pattern of
criminal activity is not required to prove this
aggravator." James v. Gibson, 211 F.3d 543, 559 (10th
Cir.2000) (noting other types of evidence which may support
aggravator) (emphasis added), cert. denied, 531 U.S.
1128, 121 S.Ct. 886, 148 L.Ed.2d 794 (2001). Revilla also
insists there is no principled factual distinction between
Ochoa and this case, because "like [his] case, the State
proved simply that Ochoa engaged in a single act of violence."
Br. of Appellant, at 39.
This argument is plainly
belied by the distinctive facts here, including Revilla's
pattern of child abuse and his threats of violence after the
murder. Indeed, the latter seem uniquely probative on the
question of future violence and, indeed, the OCCA has relied on
such threats to support the aggravator on numerous occasions.
See Torres v. State, 962 P.2d 3, 23 n. 98 (Okla.Crim.App.1998)
(citing several cases expressly relying on threats of harm or
death); see also James, 211 F.3d at 559 (noting "threats
against others are among the factors which may be considered in
determining if there was sufficient evidence to support the
continuing threat aggravator").
Assistance of Counsel (Failure to Request Ake Expert)
Revilla contends that he was
entitled to a psychiatric expert to rebut the State's case on
the continuing threat aggravator, see Ake v. Oklahoma,
470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), and that
trial counsel's failure to request an expert constituted
ineffective assistance under Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
He did not, however, raise
this issue until his post-conviction proceeding, at which time
he claimed both that trial counsel was ineffective for failing
to request an expert and that appellate counsel was ineffective
for failing to raise trial counsel's omission. The OCCA held the
trial ineffectiveness claim was defaulted, because it "relie[d]
on facts which [could have been] discerned from a review of the
record and upon facts within Petitioner's own personal knowledge."
Revilla, 946 P.2d at 265 (also holding default not
excused by appellate ineffectiveness claim, which court rejected
on merits). As Revilla was represented by new counsel on direct
appeal, the OCCA's ruling might, at first blush, appear to
provide an adequate basis for procedural bar under English v.
Cody, 146 F.3d 1257, 1264 (10th Cir.1998).
However, Revilla's trial
ineffectiveness claim relies on a psychiatric report and
affidavits which were not a part of the record on direct appeal.
In such circumstances, we have held "[t]he State's procedural
bar ... is inadequate to preclude federal habeas review [under
English]." Romano, 239 F.3d at 1180. We therefore
proceed to the merits. Under the circumstances, we do not have a
state court disposition of the trial ineffectiveness claim for
purposes of AEDPA.
Revilla's claim is not
that he was denied an expert, but that counsel was ineffective
for failing to request one. The latter claim does not turn on
whether the law and evidence mustered in this habeas proceeding
establish Revilla's right to an expert, but on whether counsel
acted below professional standards in failing to request an
expert on the basis of the law and facts available to him in
1987. See, e.g., Moore v. Marr, 254 F.3d 1235, 1243 (10th
Cir.2001); Stouffer v. Reynolds, 168 F.3d 1155, 1162
The state of the law in 1987
clearly undercuts the ineffective assistance claim. Ake
held only that an indigent capital defendant must, upon request,
be provided an expert for the penalty phase "when the State
presents psychiatric evidence of the defendant's future
470 U.S. at 83, 105 S.Ct. 1087. Strictly applying Ake,
Oklahoma courts initially recognized this right only when the
State presented its own penalty-phase expert, which it did not
do here. See Brewer v. State, 718 P.2d 354, 363-64 (Okla.Crim.
This circuit later extended
Ake to require an expert if the State puts on any
evidence, psychiatric or otherwise, of future dangerousness, so
long as the defendant's mental condition would likely have been
a significant mitigating factor. See Liles v. Saffle, 945
F.2d 333, 341 (10th Cir.1991); Rogers v. Gibson, 173 F.3d
1278, 1285 (10th Cir.1999). Oklahoma ultimately adopted this
broader view in Fitzgerald v. State, 972 P.2d 1157, 1169
(Okla. Crim.App.1998). Against this legal backdrop, we cannot
say counsel's failure to request an expert was professionally
unreasonable in 1987, at a time when Ake itself did not
establish the validity of such a request, state case law
rejected it, and even this circuit's extension of Ake
would not take place for several years.
The known and knowable facts
in 1987 also undercut the ineffective assistance claim. The
pertinent sentencing facts known to trial counsel and shown by
were that Revilla's parents were divorced, that Revilla's father
was an irresponsible drinker, and that Revilla had essentially
made his own way in life since his early teens. These matters
may have been helpful by way of general mitigation and, indeed,
were mentioned in this regard at trial.
They do not, however,
establish that counsel should have recognized "a mental status
exam would produce mitigating evidence," which is the factual
prerequisite for the ineffective assistance claim Revilla now
asserts. Romano, 239 F.3d at 1182 (rejecting claim that
trial counsel was ineffective for failing to pursue psychiatric
evaluation); see also Mayes v. Gibson, 210 F.3d 1284,
1289 n. 3 (10th Cir.) (same), cert. denied, 531 U.S.
1020, 121 S.Ct. 586, 148 L.Ed.2d 501 (2000).
In sum, the parties' focus on
Strickland prejudice, and their associated mistaken
reliance on current facts and legal authorities not available to
counsel in 1987, has diverted attention from a proper contextual
assessment of Revilla's ineffective assistance claim. Pursuant
to such an assessment, we reject the claim based on Revilla's
failure to demonstrate constitutionally deficient performance by
For the reasons set forth
above, this court concludes that none of the grounds asserted
herein warrant habeas relief. With respect to the objection
regarding instruction on lesser included offenses, Revilla has
failed to make the threshold "substantial showing of the denial
of a constitutional right," and is, therefore, DENIED a
certificate of appealability under § 2253. As to all other
issues before the court, the judgment of the district court is