State executes Guthrie man for double murder

By Sean Murphy - Lexington Herald Leader

AP - 3/15/05

McALESTER, Okla. - When Melody Wuertz packed up her belongings in a moving truck and left Indiana for a new job in Oklahoma City, Lyle and Susie Wuertz were a little nervous about their daughter being on her own in a strange city. Their nervousness grew when they learned Melody was involved with Jimmie Ray Slaughter, a man who'd been married three times and was more than 10 years her senior. Their misgivings proved to be well founded.

Slaughter, who fathered a child with Melody Wuertz, was accused and ultimately convicted of shooting, stabbing and mutilating her and fatally shooting their daughter, Jessica, in their Edmond home in 1991.

On Tuesday, the Wuertzes traveled from Montgomery, Ind., to witness Slaughter's execution at the Oklahoma State Penitentiary. He was pronounced dead at 6:19 p.m. after receiving a lethal mixture of drugs. Strapped to a gurney that was positioned parallel to the window separating the death chamber from the witnesses, Slaughter tilted his head so that he could smile at his three grown daughters. "It's OK," he told them as they cried softly.

Slaughter maintained his innocence to the end. "I've been accused of murder and it's not true," Slaughter said as his fiancee, whom he met while on death row, and a death penalty opponent who befriended Slaughter in prison, also looked on. "It was a lie from the beginning. God knows it's true, my children who were with me know it's true and you people will know it's true someday. May God have mercy on your souls." Slaughter had maintained he was in Kansas with his family when the murders occurred. After his final statement, Slaughter exhaled deeply and closed his eyes. As the mixture entered his system through an IV in his left arm, the color left his face. His mouth and eyes were slightly open when he was pronounced dead.

"This is the end of a long nightmare," said Melody's brother Wes Wuertz, of Elizabethtown, Ky. "There's no more waiting for the next appeal. There's no wondering if a technicality will get him off."

The U.S. Supreme Court rejected a request by Slaughter's attorneys for a stay of execution earlier Tuesday. The 10th U.S. Circuit Court of Appeals denied an appeal on Monday and the Oklahoma Court of Criminal Appeals rejected an appeal for Slaughter on Thursday. His attorney, Robert Jackson, had argued recently that new DNA evidence conducted on a hair found on one of the victims didn't connect Slaughter with the crimes, a theory that prosecutors argued during Slaughter's original trial.

Jackson also disputed an analysis of bullets found in the victims that he says were linked to Slaughter through an outdated technology called comparative bullet lead analysis. A neuroscientist testified that Slaughter's brainwave patterns and recollection of the rooms where the bodies of Wuertz and her child were found were not consistent with someone who would have committed the crime.

Former Oklahoma County prosecutor Richard Wintory, who helped prosecute Slaughter at his original trial, discounted as nonsense the brain fingerprinting defense, calling it "snake oil." "This is not a close case on the facts," said Wintory, who traveled from Arizona to attend the execution. "Jimmie Ray Slaughter perpetrated one of the most evil crimes that has ever blotted the peace and dignity of my home state."

For his last meal, Slaughter ate fried chicken, mashed potatoes, cole slaw, biscuits with honey butter, an apple pie, one pint of cherry ice cream and a large cherry limeade, a prison spokeswoman said.

Slaughter v. State, 2005 WL 562759 (Okl.Cr.App 2005) (3rd PCR).

Background: After convictions and death sentences for capital murder were affirmed on direct appeal, 950 P.2d 839, denial of defendant's initial petition for post-conviction relief was affirmed, 969 P.2d 990, and defendant exhausted federal habeas claims, defendant filed second petition for post-conviction relief. The Court of Criminal Appeals, 105 P.3d 832, denied relief. Defendant filed third petition.

Holdings: The Court of Criminal Appeals, Lumpkin, V.P.J., held that:

(1) defendant was not entitled to successive post-conviction review of claim that new evidence of brain fingerprinting would demonstrate actual innocence;
(2) defendant was not entitled to successive post-conviction review of claim that recent DNA testing would demonstrate actual innocence;
(3) defendant was not entitled to post-conviction review of claim that comparative bullet lead analysis methodology was being challenged in relevant scientific community;
(4) defendant was not entitled to post-conviction relief on claims that direct appeal counsel was ineffective for failing to secure DNA testing of "single hair used to convict" him of murder while appeal was pending; and
(5) defendant was not entitled to post-conviction relief on claims that post-conviction statute and criminal appellate rule governing limitations periods were unconstitutional. Denied.

Lumpkin, Judge:

Petitioner Jimmie Ray Slaughter was convicted of two counts of First Degree Murder in the District Court of Oklahoma County, Case Number CF-1992-82. He was sentenced to death. [FN1] Petitioner appealed to this Court in Case No. F-1994-1312. We affirmed his convictions and sentences. Slaughter v. State, 1997 OK CR 78, 950 P.3d 839. Rehearing was denied on February 23, 1998. The United States Supreme Court denied certiorari review on October 5, 1998. Slaughter v. Oklahoma, 525 U.S. 886, 119 S.Ct. 199, 142 L.Ed.2d 163 (1998).

Petitioner filed his first post-conviction application, but we denied relief. Slaughter v. State, 1998 OK CR 63, 969 P.2d 990. The Federal District Court and 10th Circuit Court of Appeals denied habeas relief, and the U.S. Supreme Court denied certiorari. Slaughter v. Mullin, 541 U.S. 947, 124, S.Ct. 1681, 158 L.Ed.2d 374 (2004).

In March of 2004, Petitioner filed his second application for post-conviction relief. We denied relief in January of 2005. Slaughter v. State, 2005 OK CR 2, 105 P.3d 832. [FN2] Petitioner then filed this, his third application for post-conviction relief, on January 27, 2005, raising essentially the same issues raised in his second application for post-conviction relief.

* * * *

After carefully reviewing Petitioner's third application for post-conviction relief, motion for evidentiary hearing, motion for discovery, and motion for stay of execution, we find relief is not warranted, and therefore said application and motions are HEREBY DENIED.

Slaughter v. State, 105 P.2d 832 (Okl.Cr.App. 2005) (2nd PCR).

Background: Petitioner was convicted in the District Court, Oklahoma County, Thomas C. Smith, Jr., J., of first-degree murder of former girlfriend and their child and was sentenced to death. Petitioner appealed. The Court of Criminal Appeals, Lumpkin, V.P.J., 950 P.2d 839, affirmed. Petitioner filed a second petition for post-conviction relief.

Holdings: The Court of Criminal Appeals, Lumpkin, V.P.J., held that:

(1) affidavit and evidentiary materials based on "Brain Fingerprinting" did not warrant evidentiary hearing and were procedurally barred;
(2) claims relating to DNA testing were barred from review by failure to submit any supporting DNA evidence with original or second post-conviction applications; and
(3) request to supplement post-conviction application with an entirely new claim and supporting documentation to challenge bullet composition analysis was untimely. Denied.

LUMPKIN, Vice-Presiding Judge.

Petitioner Jimmie Ray Slaughter was convicted of two counts of First Degree Murder in the District Court of Oklahoma County, Case Number CF-1992-82, and sentenced to death. [FN1] He appealed his conviction to this Court in Case No. F-1994-1312. We affirmed his convictions and sentences. Slaughter v. State, 1997 OK CR 78, 950 P.2d 839. Rehearing was denied on February 3, 1998. The U.S. Supreme Court denied certiorari review on October 5, 1998. Slaughter v. Oklahoma, 525 U.S. 886, 119 S.Ct. 199, 142 L.Ed.2d 163 (1998).

FN1. Petitioner was also convicted of five counts of perjury in this case and sentenced to consecutive terms of two, four, five, three, and one years imprisonment.

Petitioner filed his first application for post-conviction relief on April 3, 1998. We denied relief. Slaughter v. State, 1998 OK CR 63, 969 P.2d 990. Thereafter, the Federal District Court and Tenth Circuit Court of Appeals denied habeas corpus relief, and the United States Supreme Court denied certiorari. See Slaughter v. Mullin, --- U.S. ----, 124 S.Ct. 1681, 158 L.Ed.2d 374, 2004 WL 194344 (U.S. March 22, 2004).

On March 19, 2004, Petitioner filed this, his second application for post-conviction relief, along with a motion for evidentiary hearing. The State filed its response to the second application for post-conviction relief on April 16, 2004.

* * *

Attached to the post-conviction application, Petitioner has presented Dr. Farwell's affidavit, indicating Dr. Farwell conducted Brain Fingerprinting testing on Petitioner on February 9-10, 2004. At that time, Dr. Farwell allegedly asked numerous details concerning "salient details of the crime scene that, according to [Petitioner's] attorneys and the records in the case, ... the perpetrator experienced in the course of committing the crime for which Mr. Slaughter was convicted." [FN3]

According to Dr. Farwell, Petitioner's brain response to that information indicated "information absent." To Dr. Farwell, this reading indicates Petitioner does not have knowledge of these "salient features of the crime scene." Dr. Farwell indicates the statistical "confidence" of the Brain Fingerprinting test result is not less than 99%. He further indicates it is not possible to fake the results of the testing.

FN3. We have been provided no information, however, as to what those salient details may be, how or by whom they were formulated, or how they were communicated.

In his March 2004 affidavit, Dr. Farwell indicated he was preparing a comprehensive report detailing the nature of the test, the manner in which it was administered, and the results, which would be made available in the next few weeks. Six months have now passed, however, and this Court has received no such report.

Dr. Farwell makes certain claims about the Brain Fingerprinting test that are not supported by anything other than his *835 bare affidavit. He claims the technique has been extensively tested, has been presented and analyzed in numerous peer-review articles in recognized scientific publications, has a very low rate of error, has objective standards to control its operation, and is generally accepted within the "relevant scientific community."

These bare claims, however, without any form of corroboration, are unconvincing and, more importantly, legally insufficient to establish Petitioner's post-conviction request for relief. Petitioner cites to one published opinion, Harrington v. State, 659 N.W.2d 509 (Iowa 2003), in which a brain fingerprinting test result was raised as error and discussed by the Iowa Supreme Court ("a novel computer-based brain testing"). However, while the lower court in Iowa appears to have admitted the evidence under non-Daubert circumstances, the test did not ultimately factor into the Iowa Supreme Court's published decision in any way.

Pursuant to Rule 9.7(D)(1)(a), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2004), affidavits and evidentiary materials filed in support of a post-conviction application are not part of the trial record but are only part of the capital post-conviction record. As such, those affidavits and evidentiary materials are not reviewed on their merits but are reviewed: [T]o determine if a threshold showing is met to require a review on the merits. If this Court determines that the requirements of Section 1089(D) of Title 22 have been met and issues of fact must be resolved by the District Court, it shall issue an order remanding to the District Court for a hearing on the merits of the claim raised in the application.

Furthermore, post-conviction petitioners seeking a review of their post-conviction affidavits are required to file an application for evidentiary hearing. Rule 9.7(D)(5), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2002). The application for evidentiary hearing and affidavits "must contain sufficient information to show this Court by clear and convincing evidence the materials sought to be introduced have or are likely to have support in law and fact to be relevant to an allegation raised in the application for post-conviction relief." Id. If this Court determines "the requirements of Section 1089(D) of Title 22 have been met and issues of fact must be resolved by the District Court, it shall issue an order remanding to the District Court for an evidentiary hearing." Rule 9.7(D)(6), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2002).

Here, we find these affidavits and evidentiary materials do not contain sufficient information to show this Court by clear and convincing evidence that the materials sought to be introduced have or are likely to have support in law and fact to be relevant to his claim of factual innocence. What we have are some interesting, indeed startling, claims that are not backed up with enough information for us to act on them.

First and foremost, we have been provided no concrete evidence of Petitioner's Brain Fingerprinting claim. No written report has been submitted to this Court. None of the testing details or results have been provided.

Secondly, beyond Dr. Farwell's affidavit, we have no real evidence that Brain Fingerprinting has been extensively tested, has been presented and analyzed in numerous peer-review articles in recognized scientific publications, has a very low rate of error, has objective standards to control its operation, and/or is generally accepted within the "relevant scientific community." The failure to provide such evidence to support the claims raised can lead to no other conclusion, for post-conviction purposes, but that such evidence does not exist.

Third, the post-conviction record actually refutes some of Petitioner's claims. While Petitioner claims Brain Fingerprinting was not available to anyone in the world before July 1, 1999, the State's exhibits and indeed some of Dr. Farwell's own published articles indicate the science has been around for many years, at least since 1995 and probably for more than a decade before that. [FN4] Furthermore, an October 2001 report from the United States General Accounting Office to U.S. Senator Charles E. Grassley, reveals Dr. Farwell's acknowledgement that "MERMER has not undergone independent peer review testing and is not well accepted in the scientific community."

FN4. The so-called "P-300" component of Brain Fingerprinting has apparently been recognized by the scientific community for many years, but Dr. Farwell's test also measures the "MERMER" effect.

Fourth, we find some merit in the State's argument that the "salient" facts of the crime were introduced at Petitioner's trial through a technical investigator and crime scene reconstruction expert. Petitioner, who was present during this testimony, and his alleged negative response to such information during Brain Fingerprinting testing is, at the very least, curious.

Therefore, based upon the evidence presented, we find the Brain Fingerprinting evidence is procedurally barred under the Act and our prior cases, as it could have been raised in Petitioner's direct appeal and, indeed, in his first application for post-conviction relief. We further find a lack of sufficient evidence that would support a conclusion that Petitioner is factually innocent or that Brain Fingerprinting, based solely upon the MERMER effect, would survive a Daubert analysis.

* * *

After carefully reviewing Petitioner's Application for post-conviction relief, motion for evidentiary hearing, and other filings we find Petitioner's Second Application for Post-Conviction Relief, Motion for Evidentiary Hearing, Motion to Hold Post-Conviction Case in Abeyance, and Requests to Supplement are DENIED.

Slaughter v. State, 969 P.2d 990 (Okl.Cr. 1998) (PCR).

After his conviction of first-degree murder and death sentence were affirmed on direct appeal by the Court of Criminal Appeals, 950 P.2d 839, petitioner filed application for postconviction relief. The Court of Criminal Appeals, Lumpkin, J., held that: (1) most claims were either waived by failure to raise them on direct review of barred by res judicata to extent they were raised; (2) ineffective assistance of counsel claims were either waived, barred or meritless, notwithstanding fact that petitioner had same counsel for trial and appeal; and (3) petitioner was not entitled to additional discovery. Application denied. Chapel, P.J., and Strubhar, V.P.J., concurred in results.

LUMPKIN, Judge:

Petitioner Jimmie Ray Slaughter was convicted of two (2) counts of First Degree Murder (21 O.S.1991, § 701.7) and five (5) counts of Perjury (21 O.S.1991, § 491), Case No. CF-92-82, in the District Court of Oklahoma County. The jury found the existence of one aggravating circumstance in Count 1 and two aggravating circumstances in Count 2 and recommended the punishment of death. In Counts 3-7, the perjury counts, Petitioner received sentences of two (2), four (4), five (5), three (3), and one (1) years imprisonment respectively. This Court affirmed the judgments and sentences in Slaughter v. State, 950 P.2d 839 (Okl.Cr.1997). Petitioner filed his Original Application for Post-Conviction Relief in this Court on December 1, 1997, in accordance with 22 O.S.Supp.1995, § 1089.

* * *

In Proposition II, Petitioner contends that law enforcement and the prosecution failed to disclose certain crucial evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) . Specifically, Petitioner alleges the following:

1. the original crime scene log was lost by the Edmond Police Department and a reconstructed log given to defense counsel;
2. the multi-page "Dill Report" was lost and an OSBI report (the "Rickey Report") was substituted;
3. a letter and its contents written by Detective Dill to Edmond Police Chief Vetter was concealed;
4. a tape recorded interview of Detective Dill by Prosecutor Richard Wintory was concealed;
5. also concealed was information that a neighbor of Melody Wuertz identified a vehicle similar to that driven by Rick Gulloto outside the Wuertz home in the early morning hours of July 2, 1991 and that Gullotto had no alibi for the early morning hours of July 2, 1991.

As in Proposition I, this claim is based upon the argument that the above information did not come to light until Detective Dill's civil trial, therefore it could not have been raised on direct appeal.

* * *

After carefully reviewing Petitioner's Application for post-conviction relief, we *1000 conclude: (1) there exists no controverted, previously unresolved factual issues material to the legality of Petitioner's confinement; (2) Petitioner could have previously raised collaterally asserted grounds for review; (3) grounds for review which are properly presented have no merit; and (4) the current post-conviction statutes warrant no relief. 22 O.S.Supp.1995, § 1089(D)(4)(a)(1), (2) & (3). Accordingly, Petitioner's Application for Post-Conviction Relief is DENIED.

Slaughter v. State, 950 P.2d 839 (Okl.Cr. 1997) (Direct Appeal).

Defendant was convicted in the District Court of Oklahoma County, Thomas C. Smith, Jr., J., of two counts of first degree murder for killing former girlfriend and their child, and was sentenced to death. Defendant appealed. The Court of Criminal Appeals, Lumpkin, J., held that: (1) filing bill of particulars six months before trial constituted a "reasonable time" and gave defendant notice of what State would use to seek death penalty; (2) evidence of occult was relevant as there was admissible evidence to indicate murder was ritualistic slaying; (3)testimony concerning telephone conversation by defendant's girlfriend following discovery that she was named as cooperating with authorities in newspaper article was admissible as excited utterance; (4) finding aggravating circumstance of causing great risk of death of more than one person on each murder count did not violate double jeopardy and was supported by evidence; (5) finding that murder of girlfriend was especially heinous, atrocious, or cruel was supported by evidence that defendant shot her, leaving her paralyzed, and then killed child in front of her; (6) death penalty statutes do not violate state Constitution; (7) introduction of improper evidence against witness and improper comments, uninvited and invited, by prosecution were harmless error; and (8) statutory aggravating circumstances coupled with trial evidence sufficiently outweighed mitigating evidence and supported death sentences. Affirmed. Chapel, P.J., concurred in result and filed an opinion in which Lane, J., joined and concurred in result. Strubhar, V.P.J., concurred in result.

LUMPKIN, Judge.

Appellant Jimmie Ray Slaughter was tried by a jury in the District Court of Oklahoma County, Case No. CF-92-82, and convicted of two counts of Murder in the First Degree (21 O.S.1991, § 701.7(A)). [FN1] Trial commenced on May 16, 1994 and continued until October 7, 1994, when the jury returned its verdict on punishment. [FN2] The prosecution sought the death penalty, alleging in each count that (1) the murder was especially heinous, atrocious, or cruel (21 O.S.1991, § 701.12(4); (2) there existed a probability the defendant would commit criminal acts of violence that would constitute a continuing threat to society (21 O.S.1991, § 701.12(7)); and (3) the defendant knowingly created a great risk of death to more than one person (21 O.S.1991, § 701.12(2)).

Before the jury began second-stage deliberations, the prosecution dismissed the allegation that the murder charged in Count I was especially heinous, atrocious. As to Count 1, the jury found only that Appellant knowingly created a great risk of death to more than one person; it did not find that Appellant would be a continuing threat to society. As to Count 2, the jury found that the murder was especially heinous, atrocious, or cruel and that Appellant knowingly created a great risk of death to more than one person; the jury did not find continuing threat. The trial court followed the jury's recommendations and sentenced Appellant to death on each count. We affirm. [FN3]

FN1. Appellant was also convicted of Count 3, Perjury (21 O.S.1991, § 491) (two years); Count 4, Perjury (21 O.S.1991, § 491) (four years); Count 5, Perjury (21 O.S.1991, § 491) (five years); Count 6, Perjury (21 O.S.1991, § 491) (three years); Count 7, Perjury (21 O.S.1991, § 491) (one year). The jury found Appellant not guilty on an eighth count of perjury. It appears Appellant does not contest these judgments and sentences on appeal.

FN2. I agree with my colleagues this is a long opinion. However, it reviews an exceptionally long trial. The parties have a right to know this Court has thoroughly reviewed the voluminous record presented on appeal, adjudicated the propositions of error based on the totality of the record, and is enunciating a clear decision on each of those issues supported by the law and facts. Through this process, we ensure confidence that our decisions are based on the rule of law and are not merely result oriented.

FN3. Appellant's Petition in Error was filed in this Court on June 9, 1995. Appellant's brief was filed July 1, 1996, and the State's brief was filed October 29, 1996. The case was submitted to the Court October 30, 1996. Oral argument was held August 12, 1997.

At "right around noon" on July 2, 1991, Ginger Neal noticed that her pitbull dog, Ozie, was barking and acting strangely in the back yard. Ozie was somewhat skittish, more so around adults than with children. The dog was in such a hurry to get into the house that he practically ran over a child on his way to his place of refuge in the house. Ms. Neal was sufficiently concerned to glance out in the back yard to see if an intruder were present; she saw nothing. A few minutes later, she heard a noise, as if a car were backfiring or a firecracker had exploded.

As Independence Day was only two days away, she thought nothing of the noise. Rhonda Moss, who lived in the same house as Ms. Neal, also heard the noise. At least one other neighbor also heard the backfiring noise. Neither Ms. Moss nor Ms. Neal *845 thought much about it until the bodies of Melody Wuertz and her 11- month-old daughter, Jessica, were found early that same evening in the house next door.

Melody was found on the floor in her bedroom. She had been shot once in the cervical spine and once in the head. In addition, she had been stabbed in the chest and in her genitalia; and there were carvings on her abdomen and breasts which authorities interpreted as symbols of some kind. A comb filled with Negroid hairs, some underwear containing Negroid head hairs, some unused condoms and some gloves were found near Melody's body. No seminal fluid was found in or on Melody.

In the bathroom, Melody's curling iron was still plugged in. Baby Jessica was found in the hallway; just days shy of her first birthday, she had been shot twice in the head. The medical examiners who examined the bodies estimated time of death to be approximately between 9:30 a.m. and 12:15 p.m. on July 2.

The prosecution's theory was that Melody was surprised while in the bathroom as she was preparing for work (the evening shift at the Oklahoma City Veterans Administration Hospital); was then paralyzed (but not rendered unconscious) by the shot to the cervical spine; was forced to lie paralyzed and conscious as her child was killed; then was dragged to the bedroom, where she was killed by the shot to her head. The killer then planted the evidence in an attempt to throw investigators off the trail.

Appellant (a nurse at the VA Hospital) was a suspect from the very beginning. He and Melody had had a sexual relationship, the result of which Melody became pregnant. Appellant signed an affidavit acknowledging paternity on July 17, 1990, ten days after Jessica was born. Despite this acknowledgment, Appellant's support of the child was meager, a fact Melody mentioned more than once. Melody's insistence on getting Appellant to provide monetary support for her child irritated him.

He once remarked to a co-worker at the hospital that Melody was getting "pushy," and if she continued to act that way, he would have to kill her. To another, he said Melody was causing him problems at work, and one day he would have to kill both Melody and Jessica. Appellant was concerned a paternity action by Melody could jeopardize his status as a reserve officer in the Army; additionally, Appellant was married, and his wife did not know about the affairs with Melody and other women.

In the fall of 1990, Appellant was called to active duty during the Desert Storm military operation, and was stationed at Ft. Riley, Kansas. He remained on active duty there until mid-July, 1991. During this period, what scant payments Appellant had made to Melody stopped. This forced Melody to seek child support through the Department of Human Services, an action which enraged Appellant. Before her death, Melody expressed to several people her fear that Appellant would take action against her because she had initiated child support proceedings against him.

Appellant presented an alibi defense. He presented evidence purporting to show he was with his family shopping in Topeka, Kansas, at the time of the murders. Other facts will be presented as they become relevant.

* * *

We find that these statutory aggravating circumstances, coupled with all the evidence from both stages of trial, sufficiently outweigh the mitigating evidence presented by Appellant at trial. We examined the errors contained in the trial above, and find the sentence of death was not imposed under the influence of passion, prejudice or any other arbitrary factor.

Slaughter v. Mullin, 68 Fed.Appx. 141, Slip Copy, 2003 WL 21300287 (10th Cir. 2003) (Habeas).

State inmate, convicted on two counts of first-degree malice murder and sentenced to death, petitioned for writ of habeas corpus. The United States District Court for the Western District of Oklahoma denied the petition, and inmate appealed. The Court of Appeals, Murphy, Circuit Judge, held that: (1) inmate exhausted his state court remedies; (2) state procedural bar did not preclude federal habeas review; (3) trial counsel's representation was not deficient; (4) appellate counsel was not ineffective in failing to assert ineffective-trial-counsel claim; and (5) evidence was sufficient to support finding that victim's death was especially heinous, atrocious or cruel, as warranted imposition of two death sentences. Affirmed.

MURPHY, Circuit Judge.

Petitioner-appellant Jimmie Ray Slaughter, a state prisoner, appeals the district court's decision denying him habeas relief from his two Oklahoma first-degree malice murder convictions and death sentences. A jury convicted Slaughter of shooting, stabbing and mutilating his former girlfriend, Melody Wuertz (Wuertz), and shooting to death their eleven-month old-daughter, Jessica. [FN1] On appeal, Slaughter contends both that his trial attorneys' first-phase representation was constitutionally deficient because counsel did not try to implicate a different, alternate suspect and that there was insufficient evidence to support the jury's second-phase finding that his killing Wuertz was especially heinous, atrocious or cruel. This court affirms the denial of habeas relief under 28 U.S.C. § 2254.

FN1. The jury also convicted Slaughter on five counts of perjury, based on testimony he gave before the grand jury investigating these deaths. Slaughter does not challenge these perjury convictions in this proceeding.

I. FACTS

On July 2, 1991, Melody and Jessica Wuertz were each shot twice and killed. The killer also stabbed Wuertz and mutilated her body. Suspicion immediately centered on Slaughter, Jessica's father, who was at that time embroiled in a contentious paternity and child-support dispute with Wuertz.

Slaughter worked as a nurse at the Veterans' Administration (VA) Hospital in Oklahoma City. In approximately July 1989, Slaughter, who was married, began an extramarital affair with Wuertz, who also worked at the VA hospital. Slaughter, however, apparently never told Wuertz he was married. In July 1990, Wuertz gave birth to Jessica. Soon thereafter, Slaughter, who was an Army reservist, volunteered for active duty during the Gulf War.

He was stationed at Fort Riley, Kansas, about a four-and-a-half-hour drive from Wuertz's home in Edmond, Oklahoma. Before leaving for active duty, Slaughter remarked to a co-worker that "he was actually glad to be leaving ... and that he was especially glad to get away from Melody because she was getting pushy, and if she kept pushing [him], [he'd] have to kill her." Trial tr., July 19, 1994, at 81. Slaughter further asserted that he could kill Wuertz without getting caught; "they would know who did it but they would never be able to prove it," id., July 21, 1994, at 122.

In late October 1990, Wuertz discovered Slaughter was married. In fact, she called Slaughter's wife to tell her about Slaughter's infidelity. Slaughter was furious with Wuertz for this, but managed to explain to his wife that this must have been a prank call, probably made by one of his former wives. Slaughter later told a co-worker in Kansas that "his wife did not know about" Jessica and "he would do anything to keep [her] from finding out." Id., Sept. 12, 1994, at 87.

Although Wuertz had previously considered filing a paternity suit against Slaughter, she had not yet done so because she feared that this would drive him away and they would never marry, as she had hoped. Aware now that Slaughter was already married to someone else, Wuertz sought the Oklahoma Department of Human Services' (DHS) help in collecting child support from him. Slaughter, however, had previously told Wuertz that if she ever pursued such a child-support proceeding, he would kill both Wuertz and the baby. Numerous witnesses testified to Slaughter's rage stemming from Wuertz's commencing those proceedings. On at least one occasion, Slaughter told his then girlfriend in Kansas that he wished Wuertz were dead.

While still in Kansas, Slaughter was able to keep tabs on Wuertz's progress with the paternity proceedings through another of his paramours, Cecilia Johnson. Johnson was also a nurse at the Oklahoma City VA hospital, and Wuertz's apparent friend. Although having signed an affidavit soon after Jessica's birth admitting he was the child's father, Slaughter, in response to the paternity proceedings, denied paternity and submitted to blood tests. Those test results established that there was a 99.39% likelihood Slaughter was Jessica's father. Wuertz received those test results on June 19, 1990. Although DHS mailed those results to Slaughter at Fort Riley, via certified mail, and attempted to have the results served on Slaughter through the fort's Provost Marshal's office, Slaughter never officially received those test results.

Nevertheless, Wuertz did share the test results with her co-workers. Slaughter testified that Cecilia Johnson, having heard the test results from Wuertz, probably did inform him of those results. Slaughter's grand jury testimony, Jan. 3, 1992, at 36 (played at trial, see Trial tr., Aug. 29, 1994, at 6).

Slaughter called Wuertz during the early morning hours of Sunday, June 30, 1991, telling her there was no way that the baby was his, nor was there any way he was going to pay Wuertz anything. Minutes later, Johnson called Slaughter and they talked for over three and one-half hours. Wuertz was afraid to go home that night because she feared Slaughter would be there. The State theorized that Slaughter wanted to kill Wuertz and Jessica while he was still stationed in Kansas, so he could use that as an alibi. If so, he would soon run out of time to do so. Slaughter would be discharged from active duty within a week, and Wuertz and Jessica were to fly to her parents' home on July 3 for a two-week visit.

Wuertz and her daughter were killed July 2, 1991. The two medical examiners performing autopsies on the victims estimated they died somewhere between 10:00 a.m. and 2:00 p.m., and most likely around noon that day. Several of Wuertz's neighbors reported hearing what may have been gunshots sometime between 11:30 a.m. and 12:45 p.m. Additionally, neighbors living in the house right next door to Wuertz testified that, at around noon, their dog "went into chaos" and "went ballistic and [was] barking tremendously and was very scared." Trial tr., Aug. 2, 1994, at 118, 120. This was just before the neighbors heard what may have been a gunshot. The State theorized that the killer had hopped the fence to Wuertz's backyard, startling the neighbors' dog.

Wuertz's neighbors testified at trial that they had not seen any vehicles other than Wuertz's car at her home that morning. At 12:37 p.m., however, several young teenage boys walking down a street near the victims' home noticed a man fairly matching Slaughter's description, in a car parked away from the other houses, next to an open field. The boy walking closest to that car positively identified Slaughter as the man he saw, both in a photo lineup conducted soon after the murders and at Slaughter's trial, three years later. Further, a second boy also positively identified Slaughter at trial as the man he saw in the car.

Additionally, these two boys described the car they had seen as a bluish-gray, four-door vehicle which also generally matched Slaughter's car's description. And, although the second boy specifically identified the car he had seen as a Nissan, and Slaughter's car was, instead, a Dodge, both boys did pick Slaughter's car out of a photo lineup soon after the murders. Donald Stoltz, who had spent time with Slaughter in jail, corroborated the boys' identification, testifying Slaughter had told him that the kids who saw him, the day the murders occurred, mistakenly identified his car as a Japanese-made vehicle. According to Stoltz, Slaughter said he did not know why he had left his car window down; and that, if he had kept his tinted window raised, no one would have ever seen him.

The State's experts testified that the killer most likely entered Wuertz's home, using a key, and killed the victims in a "blitz-style attack." There was no sign of forced entry, yet Wuertz was very security conscious and always kept her house locked, even when she was inside. The confrontation between Wuertz and the killer appeared to have occurred solely in the hallway, rather than near the front door. Although Slaughter denied having a key to Wuertz's house, investigators found those keys in Slaughter's car the day after the murders.

Both victims had been shot twice with Eley brand .22 caliber long-rifle, subsonic, hollow-point bullets that had not been copper washed. This imported ammunition was quite rare, representing only one tenth of one percent of the total .22 caliber ammunition sold in the United States during 1990 and 1991. It could generally not be purchased in American gun shops, but instead had to be special ordered.

Police found this same rare ammunition in Slaughter's gun safe in his Oklahoma home. Metallurgical tests indicated that the Eley ammunition in Slaughter's safe was elementally identical to the bullets that had killed the victims. According to the State's expert, this indicated that Slaughter's ammunition had been manufactured from the same piece of lead that produced the bullets that had killed the victims. Based on this information, the State argued the bullets that killed the victims had to come from the very same box of Eley ammunition found in Slaughter's gun safe.

Police could not use the bullets that had killed the victims to identify the murder weapon because those bullets were so badly damaged. According to the State's ballistics expert, this is a common phenomenon with .22 caliber ammunition. Slaughter, who collected guns, did own several .22 caliber weapons.

In addition to shooting each victim twice, the killer stabbed Wuertz once in the heart; deeply slashed both her breasts multiple times; scratched and cut her abdomen, including apparently inscribing a variation on the letter R; and inflicted a deep, nine-inch cut running from her vagina through her anal canal and lower back. The medical examiner testified that the killer had used a single-edged knife, at least six inches long and one-inch wide. Slaughter had a large collection of knives.

Although the killer planted evidence and arranged the crime scene to look like a sexual assault, police could find no physical evidence that a sexual assault had occurred. Nor did robbery appear to be a motive for the killings, as police found cash in plain sight near the bodies, and Wuertz's purse, with $140, had been left untouched. An FBI behavioral scientist testified that the manner in which the killer had carried out these murders suggested, instead, a domestic violence crime, carried out in a very controlled manner.

Evidence that the killer left at the crime scene included a comb, on which Negroid hairs had been bunched, and a pair of men's underwear. The comb was a type that was not generally available but sold for institutional use in such places as the Oklahoma City VA hospital and Fort Riley. Another Negroid hair was found on Wuertz's body.

Cecilia Johnson admitted having collected these hairs, as well as the underwear, from a transient black man who had been a patient at the VA hospital the month before the murders. Johnson told a co-worker that she had collected these items at Slaughter's request and mailed them to him in Kansas. According to Johnson's co-worker, Slaughter "felt that he could confuse them at the scene" with these items. Trial tr., Aug. 16, 1994, at 74.

There was evidence corroborating that Johnson had, in fact, mailed Slaughter a small package in early June 1991. After the murders, Slaughter, who disliked African-Americans, suggested to police and his co-workers that perhaps a black man or a black transient had killed the victims.

At different times, Slaughter also suggested to police both that there had been a black man seen jumping fences in Wuertz's neighborhood and that Wuertz preferred to date African-American men. There was, however, no evidence to support either contention. Cecilia Johnson later suggested to a black co-worker, J.C. Sanders, that the planted evidence was actually meant to implicate Sanders in the murders.

On Wuertz's body, police also found a heavily-treated head hair, microscopically consistent with one of Slaughter's black co-workers at Ft. Riley. This co-worker, however, had never been to Oklahoma. Finally, two inmates, Dennis Hull and Lloyd Hunter, both testified that, while they were in jail with Slaughter, he confessed to them that he had killed the victims.

At trial, Slaughter propounded an alibi defense through his former wife, Nicki Bonner. Bonner, who was married to Slaughter at the time the murders occurred, testified that Slaughter had been in Kansas all day July 2, spending time with her and their two daughters, who were visiting him for the Fourth-of-July holiday. According to Bonner, on that day, Slaughter slept until 10:00 or 10:30 a.m. The family then ate lunch at the Country Kitchen restaurant, arriving between 12:30 and 1:00 p.m.

The waitress there did recognize Bonner and her two daughters, and further testified that there was a man with them that day who looked similar to Slaughter. The waitress, however, never got a good enough look at the man's face to identify him. According to jailhouse informant Stoltz, Slaughter told him that maybe the waitress could not identify him because he was not at the restaurant that day. Rather, "it could have been a friend" eating with his family. Id. Aug. 4, 1994, at 79.

According to Bonner, the family drove around a nearby lake after lunch and then travelled an hour to Topeka to shop. A Walmart store clerk in Topeka remembered Slaughter buying his daughter a watch one afternoon, but could not pinpoint the exact date this had occurred. The sales clerk did remember that Slaughter had paid with a fifty dollar bill. Although Slaughter did not have the receipt for this purchase, the store's register tapes indicated that there was a sale of that particular type of watch at 3:26 p.m. on July 2, and that the customer had paid with a fifty-dollar bill. The defense argued that this must have been Slaughter's purchase.

The family also bought several other items at Walmart. The separate receipt for those items indicated that this second purchase occurred at 4:16 p.m. on July 2. The cashier who conducted this sale recognized Bonner and her older daughter, and she remembered there was a younger girl, too.

The clerk, however, did not remember seeing a man with them that afternoon. Several other Kansas merchants, located in a mall near the Walmart, did remember seeing Slaughter later that afternoon, beginning just after 5:00 p.m. This, however, does not lend any further support to Slaughter's alibi. According to the parties' stipulation as to the mileage between the victims' home and this mall, if Slaughter had left Edmond soon after 12:30 p.m., he would have been able to drive from Edmond to the mall by 5:00 p.m.

At trial, Slaughter's attorneys supplemented his alibi defense by also arguing that it might have been Cecilia Johnson, acting on her own, who killed Wuertz and her baby. The trial court, nevertheless, instructed jurors that they could convict Slaughter of first-degree murder if they found that he had actually killed the victims or, alternatively, if they found, instead, that he had aided and abetted Cecilia Johnson in doing so. Jurors, then, convicted Slaughter of two counts of first-degree, malice-aforethought murder.

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For these reasons, we, therefore, AFFIRM the district court's decision denying Slaughter federal habeas relief.

  

Jimmie Ray Slaughter