Summary:

Thornburg and accomplices Glenn Anderson and Roger Embrey drove to the Grady County home of Marvin Matheson and abducted him.

Next, they drove to James Poteet’s home, where they held Poteet and three other men, Terry Shepard, Keith Smith, and Donnie Scott, at gunpoint. Thornburg gave Matheson a gun and told him to shoot Poteet, or Matheson himself would be killed.

Matheson refused, at which point Thornburg shot Poteet in the side. Thornburg then told Matheson to shoot Scott, again threatening to kill Matheson if he refused.

Matheson complied, shooting Scott in the chest. Thornburg and his accomplices then shot Terry Shepard and Kevin Smith, before setting fire to the house.

Thornburg and his accomplices drove away with Matheson, while Scott, despite his gunshot wound, escaped the burning building and survived.

Anderson was also sentenced to death for the three murders. His appeal is currently pending before the 10th Circuit Court of Appeals. Embry received one life sentence and two sentences of life without parole for his role in the murders.

Citations:

Thornburg v. State, 985 P.2d 1234 (Okla.Crim.App. 1999) (Direct Appeal).
Thornburg v. Mullin 422 F.3d 1113 (10th Cir. 2005) (Habeas).

Final Meal:

Fried chicken, potato wedges, Pepsi and an apple pie.

Final Words:

"I just want to say I'm sorry for all the pain I've caused. I'm truly ashamed of my actions. I wish I could take it back."

ClarkProsecutor.org

Oklahoma Department of Corrections

Inmate: THORNBURG, Richard Allen
ODOC# 254485
Birthdate: 07/02/1965
Race: White
Sex: Male
Height: 6 ft. 04 in.
Weight: 195 pounds
Hair: Brown
Eyes: Brown
County of Conviction: Grady
Date of Conviction: 05/12/1997
Location: Oklahoma State Penitentiary, Mcalester

Oklahoma Attorney General

March 28, 2006

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

Court Sets Execution Date for Thornburg

The Oklahoma Court of Criminal Appeals today set April 18 as the execution date for Grady County death row inmate Richard Alford Thornburg, Jr.

Thornburg, 40, was convicted of the Sept. 28, 1996, murders of James Donald Poteet, 51, Terry Lynn Shepard, 39, and Keith Alan Smith, 24. Thornburg and co-defendants Glenn Anderson and Roger Embry shot the three victims at Poteet’s house in Alex and then set the house on fire.

The defendants held a fourth man, Marvin Matheson, at gunpoint and forced him to shoot a fourth victim, Donald Brent Scott, but Scott survived the shooting.

Anderson was also sentenced to death for the three murders. His appeal is currently pending before the 10th Circuit Court of Appeals. Embry received one life sentence and two sentences of life without parole for his role in the murders.

Attorney General Edmondson yesterday asked the Court of Criminal Appeals to set an execution date for Pottawatomie County death row inmate John Albert Boltz. That request is still pending.

ProDeathPenalty.com

Between 3:00 and 4:00 a.m. on September 28, 1996, Richard Thornburg, along with codefendants Glenn Anderson and Roger Embrey, went to Marvin Matheson's trailer. All three were armed. As they hovered over Matheson, Thornburg accused him of being responsible for shooting Thornburg the month before.

Also suspecting Jim Poteet of a role in the shooting, they drove Matheson to Poteet's house, telling him on the way not to worry about locking his trailer, because he was not coming back.

When the four men arrived at Poteet's house, Thornburg and Embrey went inside while Matheson and Anderson remained in the car. After hearing gun shots from the house, Anderson took Matheson inside.

As Matheson entered he saw Terry Shepard sitting on a chair outside the bathroom door and Poteet sitting on the bed in the back bedroom. Poteet, held at gunpoint by Thornburg, had been shot in the foot and his forehead was bruised and bloody. Matheson saw Thornburg shoot again at Poteet's feet as he attempted to get Poteet to tell him who had shot him.

Anderson then instructed Thornburg to take Matheson to Poteet's rental unit near the house and get Jimmy Scott. Thornburg escorted Matheson to the rental unit with a gun to his back, but he was interrupted when Kevin Smith arrived at Scott's house to retrieve his girlfriend's purse.

Thornburg instructed Smith to knock on Scott's door. The door was answered by Donnie Scott, the brother of Jimmy, who was not home. Thornburg forced Scott, Smith, and Matheson to go to Poteet's house.

Once they were inside Poteet's house, Anderson held the men at gunpoint in the kitchen while Thornburg went to the back bedroom. Matheson could hear Thornburg and Poteet arguing about drugs and money. Then Anderson instructed Embrey to bring everyone back to the bedroom.

The men injected Matheson and Poteet with drugs, as Anderson commented that he intended to "OD" them. Anderson and Thornburg also injected themselves. Thornburg continued arguing with Poteet about whether Poteet shot him.

He told Poteet that he was going to shoot him, but then said "better yet, I ain't gonna shoot you," and instructed Matheson to shoot Poteet. Embrey and Anderson pointed their guns at Matheson, threatening to shoot him if he did not shoot Poteet. When Matheson refused to shoot Poteet, Thornburg shot Poteet in the side.

Thornburg then told Matheson that Matheson was "going to shoot somebody and that it had a lot to do with if [Matheson left] the house or not." Matheson was told to shoot one of the men in the bathroom. He attempted to shoot Scott in the head, but the gun did not have a bullet.

Anderson took the gun into the hallway, presumably to put a bullet in it, and returned, insisting that Matheson shoot Scott or he would kill Matheson. Matheson shot Scott in the chest.

Embrey then gave his gun to Anderson, telling him that he did not want to be involved in shooting anyone, and escorted Matheson back to the car. Matheson heard three or four more shots coming from the house. As Matheson was sitting in the car, Embrey opened the trunk and Matheson could smell gas as if Embrey was siphoning gasoline.

The men removed a sack of "Longneck Budweiser" bottles from the back seat. Then Matheson heard someone throw something through a window and saw that Poteet's bedroom window was broken. After setting the house on fire, the men drove away.

Thornburg dropped Anderson and Embrey off by the side of the road so that they could stash their guns. After driving further, Thornburg told Matheson to get out of the car, hide for a bit, and keep his mouth shut or the others would blame him for killing everyone. Scott, still alive in the burning house, attempted to help Poteet crawl out but was unsuccessful. He made it out himself and lay down in the grass.

A man and his son drove past the burning house shortly after 5 a.m. and saw Scott. They took him to a convenience store and called the police. Scott survived, but Smith, Poteet, and Shepard perished in the fire.

When Matheson heard that officers wanted to arrest him in connection with the murders, he turned himself in. He gave the above account of his activities to officers once he learned that his family was under police protection.

National Coalition to Abolish the Death Penalty

Kenneth Turrentine - Oklahoma Aug. 15, 2005 6:00 PM CST

Richard Thornburg Jr., OK - April 18

Do Not Execute Richard Thornburg Jr!

Richard Alford Thornburg Jr. faces execution on April 18 for the murders of James Poteet, Terry Shepard, and Keith Smith.

In September of 1996 Thornburg and three accomplices drove to the Grady County home of Marvin Matheson and abducted him. Next, they drove to Poteet’s home, where they held Poteet and three other men, Shepard, Smith, and Donnie Scott, at gunpoint.

Thornburg gave Matheson a gun and told him to shoot Poteet, or Matheson himself would be killed. Matheson refused, at which point Thornburg shot Poteet in the side. Thornburg then told Matheson to shoot Scott, again threatening to kill Matheson if he refused. Matheson complied, shooting Scott in the chest.

Thornburg and his accomplices then shot Terry Shepard and Kevin Smith, before setting fire to the house. Thornburg and his accomplices drove away with Matheson, while Scott, despite his gunshot wound, escaped the burning building and survived.

In his appeal to the Oklahoma Court of Criminal Appeals, Thornburg cited several errors in the way the trial was conducted. In testimony, Matheson made reference to a polygraph interview he’d taken, a reference strictly forbidden in Oklahoma court proceedings.

Furthermore, there were instances of hearsay evidence being used, prejudicial and irrelevant victim photographs being introduced, allegations of prosecutorial misconduct, and other things forbidden in a fair trial.

However, because Thornburg’s attorney failed to object to any of this during the trial, the appellate court was all but powerless to grant relief on those grounds.

Thornburg also claimed that his trial counsel had been ineffective. Considering his lawyer’s failure to object in the aforementioned situations, the appellate court agreed that Thornburg’s claim met the first of the two prongs for ineffective assistance of counsel: that his attorney’s performance was deficient. However, the court did not find evidence for the second prong, that Thornburg was unfairly prejudiced by the deficient performance.

Bearing in mind the extreme incompetence of Thornburg’s attorney and the sheer number of errors to which he failed to object, it is not possible to say with certainty that Thornburg was not unfairly prejudiced.

Richard Thornburg did not receive a fair trial. Each time that Thornburg’s lawyer failed to object to impermissible behavior he not only hurt Thornburg’s chances for a fair trial, but for an effective appeal as well. We must not show approval of such a flawed and unjust trial by allowing this execution to go forward.

Please write to Gov. Brad Henry on behalf of Richard Thornburg!

Man Set To Die For Grady County Murders

Channeloklahoma.com

April 18, 2006

McALESTER, Okla. -- A Grady County man convicted in a 1996 triple murder in southwestern Oklahoma is scheduled to die Tuesday by lethal injection at the Oklahoma State Penitentiary.

A jury found Richard Alford Thornburg, Jr., 40, guilty of the Sept. 28, 1996, shooting deaths of James Donald Poteet, 51; Terry Lynn Shepard, 39; and Keith Alan Smith, 24.

Two other men also were convicted of murder in the case. The three killings occurred at Poteet's house in Alex, which was set on fire. The defendants held a fourth man, Marvin Matheson, at gunpoint and forced him to shoot Donald Brent Scott, who survived his wounds, prosecutors said.

Also convicted and sentenced to death for the murders was Glenn Anderson, whose appeal is pending with the 10th U.S. Circuit Court of Appeals. Another defendant, Roger Embry, was convicted and received one life sentence and two sentences of life without parole.

One month before the murders, Thornburg was shot by an unknown suspect and believed Poteet or Matheson may have been responsible, according to court records. Thornburg kidnapped Matheson at gunpoint and drove with Embry and Anderson to Poteet's residence. Prosecutors also alleged Thornburg and Poteet argued over drug money.

While at the house, Poteet, Shepard and Smith all were shot and left to die while the defendants doused the house in gasoline and set it on fire, prosecutors said. Scott, who managed to escape from the home while it burned, testified during the trial that Matheson was forced at gunpoint to shoot him.

Two days after the murders, Thornburg allegedly admitted telling a woman at a bar that he planned to kill more people. During Thornburg's trial, defense attorneys presented testimony that Thornburg had brain damage and was subject to blackouts during bouts of heavy drinking.

In addition to the three murder counts, Thornburg also was convicted of shooting with intent to kill, first-degree arson and two counts of kidnapping.

Messages left with the victims' family members on Monday were not immediately returned. However, in a letter to the clemency board signed by Keith Smith's mother, Ann Smith of Chickasha wrote that she and her husband, Carl Smith, felt robbed by their son's death. "One week before he died, he came by and I hugged him when he left," she wrote. "That was the last time I saw my son, the last time I could see the mischief in his eyes or the confidence that comes from being 24 (years old) and your whole life is ahead of you. "Every year at that time, I am so sad and lost just wishing I could hold him one more time."

Thornburg did not seek clemency and has no appeals pending, said Charlie Price, a spokesman for the attorney general's office.

Richard Alford Thornburg, Jr. - Death Row Inmate

By Charles Montaldo - About.com

Thornburg, 40, was convicted of the Sept. 28, 1996, of killing three men. Thornburg and co-defendants Glenn Anderson and Roger Embry shot the three victims and then set the house on fire. The defendants held a fourth man, Marvin Matheson, at gunpoint and forced him to shoot a fourth victim, Donald Scott, but Scott survived the shooting.

Crime Details - US Court of Appeals - Tenth Circuit: On September 28, 1996, Thornburg, along with codefendants Glenn Anderson and Roger Embrey, went to Marvin Matheson's trailer.

All three were armed. As they hovered over Matheson, Thornburg accused him of being responsible for shooting Thornburg the month before. Also suspecting Jim Poteet of a role in the shooting, they drove Matheson to Poteet's house, telling him on the way not to worry about locking his trailer, because he was not coming back.

Poteet Shot In The Foot: When the four men arrived at Poteet's house, Thornburg and Embrey went inside while Matheson and Anderson remained in the car. After hearing gun shots from the house, Anderson took Matheson inside.

As Matheson entered he saw Terry Shepard sitting on a chair outside the bathroom door and Poteet sitting on the bed in the back bedroom. Poteet, held at gunpoint by Thornburg, had been shot in the foot and his forehead was bruised and bloody.

Thornburg Shoots Poteet Again: Matheson saw Thornburg shoot again at Poteet's feet as he attempted to get Poteet to tell him who had shot him. Anderson then instructed Thornburg to take Matheson to Poteet's rental unit near the house and get Jimmy Scott.

Thornburg escorted Matheson to the rental unit with a gun to his back, but he was interrupted when Kevin Smith arrived at Scott's house to retrieve his girlfriend's purse. Thornburg instructed Smith to knock on Scott's door. The door was answered by Donnie Scott, the brother of Jimmy, who was not home. Thornburg forced Scott, Smith, and Matheson to go to Poteet's house.

Victims Injected With an Overdose of Drugs: Once they were inside Poteet's house, Anderson held the men at gunpoint in the kitchen while Thornburg went to the back bedroom. Matheson could hear Thornburg and Poteet arguing about drugs and money.

Then Anderson instructed Embrey to bring everyone back to the bedroom. The men injected Matheson and Poteet with drugs, as Anderson commented that he intended to "OD" them.

Thornburg Tells Matheson to Shoot Poteet: Anderson and Thornburg also injected themselves. Thornburg continued arguing with Poteet about whether Poteet shot him. He told Poteet that he was going to shoot him, but then said "better yet, I ain't gonna shoot you," and instructed Matheson to shoot Poteet.

Thornburg Shoots Poteet a Third Time: Embrey and Anderson pointed their guns at Matheson, threatening to shoot him if he did not shoot Poteet. When Matheson refused to shoot Poteet, Thornburg shot Poteet in the side. Thornburg then told Matheson that Matheson was "going to shoot somebody and that it had a lot to do with if (Matheson left) the house or not."

Matherson Forced at Gun Point to Shoot Victims: Matheson was told to shoot one of the men in the bathroom. He attempted to shoot Scott in the head, but the gun did not have a bullet. Anderson took the gun into the hallway, presumably to put a bullet in it, and returned, insisting that Matheson shoot Scott or he would kill Matheson. Matheson shot Scott in the chest.

Final Shots and Fire Set: Embrey then gave his gun to Anderson, telling him that he did not want to be involved in shooting anyone, and escorted Matheson back to the car. Matheson heard three or four more shots coming from the house.

As Matheson was sitting in the car, Embrey opened the trunk and Matheson could smell gas as if Embrey was siphoning gasoline. The men removed a sack of "Longneck Budweiser" bottles from the back seat.

Then Matheson heard someone throw something through a window and saw that Poteet's bedroom window was broken. After setting the house on fire, the men drove away. Thornburg dropped Anderson and Embrey off by the side of the road so that they could stash their guns.

After driving further, Thornburg told Matheson to get out of the car, hide for a bit, and keep his mouth shut or the others would blame him for killing everyone.

Scott Escapes With His Life: Scott, still alive in the burning house, attempted to help Poteet crawl out but was unsuccessful. He made it out himself and lay down in the grass.

A man and his son drove past the burning house shortly after 5 a.m. and saw Scott. They took him to a convenience store and called the police. Scott survived, but Smith, Poteet, and Shepard perished in the fire.

Matheson Turns Himself In to Police: When Matheson heard that officers wanted to arrest him in connection with the murders, he turned himself in. He gave the above account of his activities to officers once he learned that his family was under police protection.

Oklahoma executes triple killer

USA Today

April 19, 2006

Richard Alford Thornburg Jr. was put to death Tuesday evening at the Oklahoma State Penetentiary for murdering three people in 1996, the AP is reporting. Strapped to a gurney before being given fatal injections of drugs, Thornburg apologized to family members of some of his victims. "I just want to say I'm sorry for all the pain I've caused," he said. "I'm truly ashamed of my actions. I wish I could take it back."

Read details of the case:

Between 3:00 and 4:00 a.m. on September 28, 1996, Glenn Anderson burst into the trailer home of Marvin Matheson brandishing a firearm. Anderson told Matheson that they needed to talk. Shortly thereafter, Appellant and Roger Embrey also entered the trailer. Appellant had been shot prior to this night and the three wanted to question Matheson about the shooting.

All three men were armed and they told Matheson they were going to shoot him if he lied to them. The three men also suspected Jim Poteet in the shooting. They decided to question Matheson and Poteet together so they could figure out whether Matheson or Poteet had shot Appellant.

The three armed men forced Matheson out of his trailer at gun point and drove him to Poteet's residence. Once there, Appellant and Embrey went into the house and Anderson and Matheson stayed in the car. When Anderson and Matheson heard gun shots come from the house they went into the house to see what had happened.

They saw Terry Shepard sitting in a chair by the bathroom door and Poteet sitting on the bed in the back bedroom. Appellant was holding Poteet at gun point. Poteet had been shot in the foot and was bleeding between the eyes.

The armed men decided that Appellant would take Matheson and go get any people present from Poteet's rental house which was located about seventy yards from Poteet's residence.

While walking over to the rental house, Appellant and Matheson saw Keith Smith walking up the driveway. Appellant forced Smith to knock on the door of the rental house and when he did, Donnie Scott opened the door. Appellant then forced Scott, Smith and Matheson to walk back to Poteet's residence.

Once back at Poteet's house, Appellant went back into the bedroom with Poteet. Soon, Embrey took Matheson to the back bedroom. In the bedroom, Appellant gave Matheson a gun and told him to shoot Poteet while Appellant, Anderson and Embrey all pointed their guns at Matheson.

Matheson refused to pull the trigger. A gunshot was fired from behind Matheson and Poteet was shot in the side. The only person standing behind Matheson at this time was Appellant. Appellant then told Matheson to shoot another person or he would shoot Matheson. Matheson shot at Scott but the gun did not fire. Appellant made him fire again.

This time Matheson shot Scott in the chest. Embrey took Matheson outside to the car. While they were at the car, Matheson heard more shots come from the house. The house was burned and Appellant, Anderson, Embrey and Matheson left the area in Appellant's car. They stopped to hide the guns and let Matheson out of the car.

Shortly after 5:00 a.m. Loyd Keagans and his son, who were driving by, noticed the burning house. As they drove up to the house, they saw an injured man outside. This man was Donnie Scott, who had been shot in the chest. The Keagans' took Scott to a convenience store and called the police. Scott survived the shooting but the bodies of Jim Poteet, Keith Smith and Terry Shepard were found in the burned house. Each of them had been shot and had either died from gunshot wounds or a combination of gunshot wounds and fire related injuries.

When Scott was able, he gave a statement to the police telling what had happened. Matheson also told the authorities what had happened. Appellant, Embrey and Anderson were subsequently arrested.

Oklahoma executes man for triple slaying

By Sean Murphy

McALESTER, Okla. (AP) - With a glance toward the family members of some of his victims, Richard Alford Thornburg, Jr., apologized for murdering three people shortly before he was executed Tuesday at the Oklahoma State Penetentiary. "I just want to say I'm sorry for all the pain I've caused," said Thornburg, who was strapped to a gurney. "I'm truly ashamed of my actions. "I wish I could take it back." Some of the victims' family members witnessed the execution from behind one-way glass to a room overlooking the death chamber.

A lethal cocktail of drugs started to flow into Thornburg's arm at 6:16 p.m., causing him to exhale deeply before his breath hitched one time. His eyes remained open as a doctor declared him dead at 6:20 p.m.

Five people, including Thornburg's sister, wife and two brothers-in-law also witnessed his execution, but prison officials did not release their names. The two women cried quietly as they watched Thornburg strain to lift his head and look at them.

Earlier Tuesday, Thornburg was served his last meal _ a chicken dinner, potato wedges, apple pie and a Pepsi from Kentucky Fried Chicken.

Thornburg was convicted of the Sept. 28, 1996, shooting deaths of James Donald Poteet, 51; Terry Lynn Shepard, 39; and Keith Alan Smith, 24. Two other men also were convicted of murder in the case.

The three killings occurred at Poteet's house in Alex, which was set on fire. The defendants held a fourth man, Marvin Matheson, at gunpoint and forced him to shoot Donald Brent Scott, who survived his wounds, prosecutors said.

"Although he was shot in the chest, fortunately for us, Donald Scott managed to crawl out of the burning home and survived," said Grady County Assistant District Attorney Bret Burns, who prosecuted Thornburg. "If he hadn't survived, nobody would have believed this story." Scott lived next door to Poteet, and Burns said the defendants kidnapped Scott, Shepard and Smith from Scott's house so there would be no eyewitnesses to the crime.

Glenn Anderson also was convicted of first-degree murder in the case and sentenced to death. His appeal is pending with the 10th U.S. Circuit Court of Appeals. Co-defendant Roger Embry was convicted and received one life sentence and two sentences of life without the possibility of parole.

During Thornburg's trial, defense attorneys presented testimony that Thornburg had brain damage and was subject to blackouts during bouts of heavy drinking. Besides three murder counts, Thornburg also was convicted of shooting with intent to kill, first-degree arson and two counts of kidnapping.

Family members of the victims did not speak to the media. However, in a letter to the clemency board signed by Keith Smith's mother, Ann Smith of Chickasha wrote that she and her husband, Carl Smith, felt robbed by their son's death. "One week before he died, he came by and I hugged him when he left," she wrote. "That was the last time I saw my son, the last time I could see the mischief in his eyes or the confidence that comes from being 24 (years old) and your whole life is ahead of you. "Every year at that time, I am so sad and lost just wishing I could hold him one more time."

Oklahoma has executed 159 men and three women at the Oklahoma State Penitentiary since 1915. There are currently 90 men and one woman awaiting death sentences in Oklahoma.

The last execution took place on Aug. 11, 2005, when Kenneth Eugene Turrentine was put to death for a 1994 murder in Tulsa. John Boltz, 74, is scheduled to die June 1 for the 1984 murder of his stepson, Doug Kirby, 23, in Pottawatomie County.

As his mother looked on, killer executed for murdering girlfriend

By Kelly Kurt - McAlester News

Friday, August 12, 2005

The woman leaned forward Tuesday evening, her head resting against a family member’s chest. “Oh my God. He can’t be dead.” But he was. The time was 6:20 p.m.

Four minutes earlier he apologized to the families of the three men he was convicted of killing. Asked if he had any last words, death row inmate Richard Alford Thornburg Jr. raised his head slightly from the gurney to which he was strapped and glanced toward the witness room in the state’s execution chamber.

His eyes lingered on the woman with short blonde hair and four others present at his request, wandered to the one-way glass behind which sat members of his victims’ families and then returned to the ceiling above him. “I just want to say I’m sorry for all the pain I’ve caused,” he said. “I’m truly ashamed of my actions. I wish it could’ve been me. “I’m sorry. “I wish I could take it back.”

As the combination of three drugs began flowing into his body, Thornburg blinked several times and exhaled deeply. His lower abdomen hitched one time and he lay still, eyes and mouth open. Seven people, including Thornburg’s sister, wife, brother, two brother-in-laws and a spiritual advisor had been scheduled to witness the execution on his behalf. Five did; two men and three women. Prison officials declined to release their names.

As the women sobbed softly in the front line of witness chairs, there was no sound from behind the one-way glass. The family members of 51-year-old James Donald Poteet, 39-year-old Terry Lynn Shepard and 24-year-old Keith Alan Smith were silent, both during and after the execution.

Thornburg, 40, had been convicted of shooting the three men at Poteet’s home on Sept. 28, 1996, then setting the house on fire. All three died as a combination of gunshots and fire injuries, according to a medical examiner’s testimony.

Two other men were also convicted of the crime, which began when they forced Marvin Matheson at gunpoint to accompany them from his home to Poteet’s. Thornburg forced Matheson to shoot a fourth victim, Donald Brent Scott, by threatening to kill Matheson if he didn’t. Scott survived the gunshot to his chest and was able to crawl outside the home, where he was rescued by two passersby.

“Although he was shot in the chest, fortunately for us, Donald Scott managed to crawl out of the burning home and survived,” said Grady County Assistant District Attorney Bret Burns, who prosecuted Thornburg. “If he hadn’t survived, nobody would have believed this story.” Burns said the defendants kidnapped Scott, Shepard and Smith from Scott’s house next door to Poteet’s so there would be no eyewitnesses to the crime.

Also convicted of first-degree murder and sentenced to death, Glenn Anderson’s appeal is pending with the 10th U.S. Circuit Court of Appeals. Co-defendant Roger Embry was convicted and received one life sentence and two sentences of life without the possibility of parole.

During Thornburg’s trial, defense attorneys argued that Thornburg had brain damage and was prone to blackouts during bouts of heavy drinking. Thornburg did not request a clemency hearing, but the Attorney General’s Office had prepared for the hearing anyway. That preparation includes getting letters from the family members of victims and others involved in the case, which were shared with members of the media on request.

Ann Smith, mother of murder victim Keith Smith, wrote that she and her husband felt robbed by his death. “We were robbed of so much hope for our future,” she wrote. “… Our legacy, our inheritance was stolen, murdered along with Keith. … One week before he died, he came by and I hugged him and he left. This was the last time I saw my son, the last time I could see the mischief in his eyes or the confidence that comes from being 24 and your whole life ahead of you.” Thornburg spent his last day visiting with family members and friends. His last meal, fried chicken, potato wedges, Pepsi and apple pie, was served at noon.

Thornburg was the first inmate executed in Oklahoma this year and the 163rd since 1915. Ironically, his death was on the 22nd anniversary of the death of Doug Kirby, whose killer is scheduled to be executed June 1. John Albert Boltz stabbed his stepson 11 times, including one cut that almost decapitated the 24-year-old Kirby.

Thornburg v. State, 985 P.2d 1234 (Okla.Crim.App. 1999) (Direct Appeal).

Defendant was convicted in the District Court of Grady County, James R. Winchester, J., of three counts of first-degree murder, shooting with intent to kill, first-degree arson, and two counts of kidnapping, and, upon finding of four aggravating circumstances as to each count of first-degree murder, was sentenced to death on each count of first-degree murder, and received consecutive sentences of life imprisonment, 35 years' imprisonment, and two terms of 10 years' imprisonment on remaining counts. Defendant appealed.

The Court of Criminal Appeals, Strubhar, P.J., held that: (1) evidence of defendant's intoxication did not warrant instructions on lesser included offense of first-degree manslaughter or defense of voluntary intoxication; (2) trial court's removal of juror on less than clear and convincing evidence of misconduct did not prejudice defendant; (3) prosecutorial comments were not so egregious as to rise to level of plain error; (4) defense counsel was not ineffective; (5) state's inadequate notice of its intent to produce victim impact testimony was harmless error; (6) avoidance of lawful arrest or prosecution aggravator was inapplicable with respect to murder for which there was no predicate crime; (7) evidence was sufficient to support all other aggravators; and (8) sentences of death were both appropriate and factually substantiated. Affirmed. Lumpkin, J., concurred in result with separate opinion.

STRUBHAR, Presiding Judge.

Appellant, Richard Alford Thornburg, Jr., was convicted of First Degree Murder (Counts I, II and III), Shooting With Intent to Kill (Count IV), First Degree Arson (Count V), and Kidnapping (Counts VI and VII), in the District Court of Grady County, Case No. CF-96-240, after a jury trial held before the Honorable James R. Winchester.

As to the three counts of First Degree Murder, the State filed a Bill of Particulars alleging four aggravating circumstances: (1) that Appellant knowingly created a great risk of death to more than one person; [FN1] (2) that the murders were especially heinous, atrocious or cruel; [FN2] (3) that the murders were committed for the purpose of avoiding or preventing a lawful arrest or prosecution; [FN3] and, (4) the existence of a probability that Appellant would commit criminal acts of violence that would constitute a continuing threat to society. [FN4]

The jury found the existence of each alleged aggravating circumstance as to each count of First Degree Murder and assessed punishment at death on each of the three counts of First Degree Murder.

The jury also assessed punishment at life imprisonment for Shooting With Intent to Kill, thirty-five years imprisonment for First Degree Arson, and ten years imprisonment for each count of Kidnapping. The trial court sentenced Appellant accordingly, ordering the sentences be served consecutively. From this Judgment and Sentence Appellant has perfected his appeal.

Appellant's Petition-in-Error was filed in this Court on November 7, 1997. His Brief-in-Chief was filed on August 24, 1998, and the State's Response Brief was filed on December 23, 1998. The case was submitted to this Court on January 19, 1999, and oral argument was heard on April 13, 1999.

FACTS

Between 3:00 and 4:00 a.m. on September 28, 1996, Glenn Anderson burst into the trailer home of Marvin Matheson brandishing a firearm. Anderson told Matheson that they needed to talk. Shortly thereafter, Appellant and Roger Embrey also entered the trailer. Appellant had been shot prior to this night and the three wanted to question Matheson about the shooting.

All three men were armed and they told Matheson they were going to shoot him if he lied to them. The three men also suspected Jim Poteet in the shooting. They decided to question Matheson and Poteet together so they could figure out whether Matheson or Poteet had shot Appellant.

The three armed men forced Matheson out of his trailer at gun point and drove him to Poteet's residence. Once there, Appellant and Embrey went into the house and Anderson and Matheson stayed in the car. When Anderson and Matheson heard gun shots come from the house they went into the house to see what had happened.

They saw Terry Shepard sitting in a chair by the bathroom door and Poteet sitting on the bed in the back bedroom. Appellant was holding Poteet at gun point. Poteet had been shot in the foot and was bleeding between the eyes.

The armed men decided that Appellant would take Matheson and go get any people present from Poteet's rental house which was located about seventy yards from Poteet's residence. While walking over to the rental house, Appellant and Matheson saw Keith Smith walking up the driveway.

Appellant forced Smith to knock on the door of the rental house and when he did, Donnie Scott opened the door. Appellant then forced Scott, Smith and Matheson to walk back to Poteet's residence.

Once back at Poteet's house, Appellant went back into the bedroom with Poteet. Soon, Embrey took Matheson to the back bedroom. In the bedroom, Appellant gave Matheson a gun and told him to shoot Poteet while Appellant, Anderson and Embrey all pointed their guns at Matheson. Matheson refused to pull the trigger. A gunshot was fired from behind Matheson and Poteet was shot in the side. The only person standing behind Matheson at this time was Appellant.

Appellant then told Matheson to shoot another person or he would shoot Matheson. Matheson shot at Scott but the gun did not fire. Appellant made him fire again. This time Matheson shot Scott in the chest. Embrey took Matheson outside to the car.

While they were at the car, Matheson heard more shots come from the house. The house was burned and Appellant, Anderson, Embrey and Matheson left the area in Appellant's car. They stopped to hide the guns and let Matheson out of the car.

Shortly after 5:00 a.m. Loyd Keagans and his son, who were driving by, noticed the burning house. As they drove up to the house, they saw an injured man outside. This man was Donnie Scott, who had been shot in the chest. The Keagans' took Scott to a convenience store and called the police.

Scott survived the shooting but the bodies of Jim Poteet, Keith Smith and Terry Shepard were found in the burned house. Each of them had been shot and had either died from gunshot wounds or a combination of gunshot wounds and fire related injuries.

When Scott was able, he gave a statement to the police telling what had happened. Matheson also told the authorities what had happened. Appellant, Embrey and Anderson were subsequently arrested.

FIRST STAGE ISSUES

During defense counsel's cross-examination of State's witness Matheson, defense counsel asked Matheson how long he stayed in jail after he was arrested following the homicides in this case.

Matheson responded: Like four or five days and I gave a statement to them like when they arrested me in Alex they told me they'd give me a polygraph and if I was telling the truth that they would let me out on an OR bond. And I sat in jail five days or longer, I don't know, or less, I don't know, and I passed the polygraph and I come [sic] in front of the Judge here and got an OR bond. (TR. III.146)

Appellant correctly advises that this Court has held the results of polygraph tests are not admissible for any purpose. See Matthews v. State, 1998 OKCR 3, ¶ 18, 953 P.2d 336, 343; Paxton v. State, 1993 OKCR 59, ¶ 42, 867 P.2d 1309, 1323, cert. denied, 513 U.S. 886, 115 S.Ct. 227, 130 L.Ed.2d 153 (1994).

The Tenth Circuit Court of Appeals has also held that evidence that a witness has taken a polygraph test is inadmissible. See U.S. v. Soundingsides, 820 F.2d 1232, 1241-42 (10th Cir.1987).

Accordingly, it is clear that the jury should not have heard testimony indicating that Matheson had taken and passed a polygraph test.

The only real issue to be decided is whether this error requires relief. It is significant that defense counsel did not object to Matheson's testimony regarding the polygraph test and request that the trial court admonish the jury to disregard the improper testimony.

Had defense counsel promptly objected and requested an admonishment, the error caused by this testimony may have been cured. See Sims v. State, 1987 OKCR 2, ¶ 16, 731 P.2d 1368, 1371. In the absence of such an objection this Court can grant relief only upon a finding of plain error. Ochoa v. State, 1998 OKCR 41, ¶ 31, 963 P.2d 583, 596.

We find that Matheson's reference to the polygraph test was a single, isolated response which was not solicited by defense counsel's question.

Although Matheson's response was potentially prejudicial because he not only stated that he took the test but also that he passed the test, this improper testimony was not unduly prejudicial under the facts and circumstances of this particular case. This is because Matheson was not the only witness who testified about the events which are the subject of this case.

Significant portions of Matheson's testimony were corroborated by Donnie Scott who also was witness to the events which occurred at Poteet's house. Given the evidence presented against Appellant at trial, we do not find that the improper mention of the polygraph examination rose to the level of plain error in this case.

* * *

In his tenth proposition, Appellant argues that the evidence was insufficient to prove beyond a reasonable doubt the existence of a probability that he would commit criminal acts of violence that would constitute a continuing threat to society. "When the sufficiency of the evidence of an aggravating circumstance is challenged on appeal, the proper test is whether there was any competent evidence to support the State's charge that the aggravating circumstance existed.

In making this determination, this Court should view the evidence in the light most favorable to the State." Hain v. State, 1996 OKCR 26, ¶ 62, 919 P.2d 1130, 1146, cert. denied, 519 U.S. 1031, 117 S.Ct. 588, 136 L.Ed.2d 517 (1996). When the continuing threat aggravating circumstance is alleged, the State is required to present proof that the defendant's behavior presents a threat to society and that the threat will continue in the future. Perry, 1995 OKCR 20, at ¶ 61, 893 P.2d at 536. "The aggravator is not established unless the evidence at trial supports a finding that the defendant will continue to present a threat to society after sentencing." Malone v. State, 1994 OKCR 43, ¶ 38, 876 P.2d 707, 717.

The State introduced evidence that Appellant had been known to engage in barroom brawls before the events of this case occurred. There was also evidence that after the victims in this case had been killed, Appellant was overheard saying, "three died last night and three more will die tomorrow." [FN6]

After he was incarcerated, Appellant menaced other inmates and assaulted a jailer. Finally, we find the callous nature of the crime also supports this aggravating circumstance. See Pennington v. State, 1995 OKCR 79, ¶ 70, 913 P.2d 1356, 1371, cert. denied, 519 U.S. 841, 117 S.Ct. 121, 136 L.Ed.2d 72 (1996). As we find the evidence was sufficient to support the finding that Appellant poses a continuing threat to society, this proposition must fail.

The jury found Appellant had murdered each victim to avoid lawful arrest or prosecution. Appellant argues in his eleventh proposition that the evidence was insufficient to support the jury's finding of this aggravating circumstance. "The focus of the aggravating circumstance that the murder was committed to avoid lawful arrest or prosecution is the state of mind of the murderer; it is he who must have the purpose of avoiding or preventing lawful arrest or prosecution." Gilbert v. State, 1997 OKCR 71, ¶ 104, 951 P.2d 98, 122, cert. denied, 525 U.S. 890, 119 S.Ct. 207, 142 L.Ed.2d 170 (1998). Further, this aggravator requires a predicate crime, separate from the murder, for which the appellant seeks to avoid arrest or prosecution. Id. See also Barnett v. State, 1993 OKCR 26, ¶ 30, 853 P.2d 226, 233.

Appellant first argues that this aggravating circumstance must fail as to Count I, the murder of Jim Poteet, because there was no predicate crime to Poteet's murder. Appellant did not kill Poteet to avoid arrest or prosecution for another crime. The State concedes that this aggravating circumstance must fail as to Count I, Poteet's murder, and we agree.

Appellant also asserts that this aggravating circumstance must fail as to Counts II and III, the murders of Keith Smith and Terry Shepard.

Appellant argues that because it is not possible to tell from the evidence whether Poteet died before Smith or Shepard, the evidence does not support a finding that Smith and Shepard were killed to prevent Appellant from being arrested or prosecuted for Poteet's murder. It does not matter that Poteet may actually have died after Smith and/or Shepard.

The record clearly supports a finding that Poteet was assaulted and then shot before Smith and Shepard were shot. Equally untenable is Appellant's argument that the three deaths were part of one continuing transaction and as such, one cannot be used to support this aggravator for the other two.

This Court has applied no such restriction on the application of this aggravator. See Hooper v. State, 1997 OKCR 64, ¶ 42, 947 P.2d 1090, 1106-1107, cert. denied, 524 U.S. 943, 118 S.Ct. 2353, 141 L.Ed.2d 722 (1998) (Evidence supported a finding that Hooper shot Tonya because he sought to avoid arrest or prosecution for Cindy's murder. Cindy's murder, although contemporaneous in time and place, provided a sufficient predicate crime.).

Finally, Appellant argues that there was no evidence to establish beyond a reasonable doubt that he intended for Smith and Shepard to be killed to prevent his arrest or prosecution for Poteet's murder.

The Appellant's intent regarding this aggravating circumstance can be inferred from circumstantial evidence. Mollett v. State, 1997 OKCR 28, ¶ 49, 939 P.2d 1, 13, cert. denied, 522 U.S. 1079, 118 S.Ct. 859, 139 L.Ed.2d 758 (1998).

There was sufficient circumstantial evidence from which the jury could find beyond a reasonable doubt that Appellant intended that Smith and Shepard be killed in order to prevent his arrest and prosecution for the murder of Poteet.

In aggravation of each of Counts I, II and III, the jury found that Appellant knowingly created a great risk of death to more than one person. Appellant, in his twelfth proposition, argues that the evidence does not support the jury's finding regarding this aggravating circumstance.

This Court has held that this aggravating circumstance is proved by acts of a defendant which create a great risk of death to another "in close proximity, in terms of time, location, and intent" to the killing. Le, 1997 OKCR 55, at ¶ 33, 947 P.2d at 549. "It may be appropriate where only one person is killed, where more than one person is killed, or where more than one person is killed but the murders are not contemporaneous." Id.

The evidence in the present case showed that Appellant and his codefendants killed three people and shot another. Appellant assumed a leadership position in these events. He shot Poteet and encouraged the shooting of the other victims.

This evidence of Appellant's participation is sufficient to support the jury's finding that he knowingly created a great risk of death to more than one person on each of the three counts of First Degree Murder.

Appellant also argues that as applied to him, this aggravating circumstance is vague and overbroad. We have rejected claims that this aggravating circumstance is vague and overbroad. See Douglas, 1997 OKCR 79, at ¶ 98, 951 P.2d at 677; Valdez, 1995 OKCR 18, at ¶ 68, 900 P.2d at 382. We are not persuaded by Appellant's argument to the contrary in this case.

In his thirteenth proposition Appellant argues that there was insufficient evidence to prove that the deaths of Terry Shepard and Keith Smith were "heinous, atrocious or cruel."

To sustain this aggravator, the State must present sufficient evidence to prove beyond a reasonable doubt that death was preceded by conscious serious physical abuse or torture or mental torture. "The heinous, atrocious or cruel aggravating circumstance is restricted to those murders in which torture or serious physical abuse is present." Jackson v. State, 1998 OKCR 39, ¶ 81, 964 P.2d 875, 894, cert. denied, 526 U.S. 1008, 119 S.Ct. 1150, 143 L.Ed.2d 217 (1999). See also Nuckols v. State, 1991 OKCR 10, ¶ 6, 805 P.2d 672, 674, cert. denied, 500 U.S. 960, 111 S.Ct. 2276, 114 L.Ed.2d 727 (1991). Appellant argues that the deaths of Shepard and Smith were not preceded by torture or serious physical abuse.

The evidence supported a finding that Shepard and Scott were kidnapped and held at gunpoint while they heard Poteet being beaten and shot. Both Shepard and Smith were subsequently shot in the chest region and died as a result of the gunshot wounds.

The medical examiner opined that Shepard was alive at the time that he received burns from the fire, but he could not determine whether Smith was alive at the time that he was burned.

The medical examiner also stated that there was no reason to assume that the men were rendered immediately unconscious and unaware of their surroundings. This evidence supported the jury's conclusion that the deaths of Shepard and Smith were especially heinous, atrocious or cruel.

Appellant further argues that even if the deaths of these two victims were especially heinous, atrocious or cruel, the evidence did not establish that he was the one who caused this. In support of his argument, Appellant cites to this Court's rulings in Barnett v. State, 1993 OKCR 26, 853 P.2d 226 and Hawkins v. State, 1994 OKCR 83, 891 P.2d 586.

It is notable that in both of these cases the acts of the codefendants which provided the basis of the especially heinous, atrocious or cruel aggravating circumstance, were committed by the codefendants completely independent of the defendant.

In the present case, although the codefendants may have committed some of the acts which rendered the killings especially heinous, atrocious or cruel, the record supports a finding that Appellant actively encouraged the shooting of the victims and, at the very least, acquiesced to the setting of the fire.

We find Appellant's participation in the murders of Shepard and Smith to have been significant and sufficient to support the especially heinous, atrocious or cruel aggravating circumstance.

Appellant argues in his fourteenth proposition that the trial court improperly instructed the jury that that the "especially heinous, atrocious or cruel" aggravating circumstance is directed toward crimes where the death of the victim is proceeded by torture of the victim or "serious abuse" rather than "serious physical abuse" as is proper under Oklahoma law. See OUJI-CR2d 4-73.

Appellant argues that this instruction did not channel the jury's discretion limiting its consideration to torture or "serious physical abuse." Appellant is correct in his assertion that this instruction was given in error. See Turrentine v. State, 1998 OKCR 33, ¶ 67, 965 P.2d 955, 975, cert. denied, 525 U.S. 1057, 119 S.Ct. 624, 142 L.Ed.2d 562 (1998).

However, we have also found this error to be harmless as the incorrect instruction does not lessen the standard of proof and thus could not have impacted the sentencing decision. Id. We hold no differently now.

In his fifteenth proposition, Appellant challenges the constitutionality of three of the aggravating circumstances found to exist in the present case. He recognizes that this Court has in the past addressed the constitutionality of each of these aggravating circumstances.

This Court has in fact consistently upheld the constitutionality of the "continuing threat" aggravating circumstance. See Cannon v. State, 1998 OKCR 28, ¶ 73, 961 P.2d 838, 855. See also Bryan v. State, 1997 OKCR 15, ¶ 55, 935 P.2d 338, 365, cert. denied, 522 U.S. 957, 118 S.Ct. 383, 139 L.Ed.2d 299 (1997).

This Court has also reaffirmed the constitutionality of the "great risk of death" aggravating circumstance. See Wood v. State, 1998 OKCR 19, ¶ 57, 959 P.2d 1, 15. See also Douglas, 1997 OKCR 79, at ¶ 98, 951 P.2d at 677.

Finally, this Court has consistently rejected challenges to the "especially heinous, atrocious or cruel" aggravating circumstance. Willingham v. State, 1997 OKCR 62, ¶ 68, 947 P.2d 1074, 1087, cert. denied, 524 U.S. 930, 118 S.Ct. 2329, 141 L.Ed.2d 702 (1998).

Although Appellant urges this Court to reconsider our prior holdings regarding the constitutionality of these three aggravating circumstances, we do not choose to hold differently now.

Appellant argues in his sixteenth proposition that the trial court erred in failing to instruct the jury to consider his intoxication at the time of the offense and his brain damage resulting from chronic alcoholism as mitigating circumstances. It is significant to note that before issuing the jury instructions, the trial court allowed defense counsel to review proposed Instruction No. 11 which listed mitigating circumstances.

The trial court told defense counsel, "I'll let you review those and add anything you wish." [FN7] Defense counsel replied that the instructions were appropriate and he had no requested instructions.

As defense counsel did not request an instruction covering Appellant's history of alcoholism and intoxication at the time of the offense, he has waived all but plain error. See Wood, 1998 OKCR 19, at ¶ 45, 959 P.2d at 12.

A review of Instruction No. 11 on mitigation reveals that the jury was instructed that they should consider as mitigating Appellant's diminished capacity and that he was under the influence of mental/emotional disturbance.

They were also informed that they could consider other mitigating circumstances. In light of these instructions, we do not find that the absence of specific instructions on Appellant's brain damage and his intoxication at the time of the offense was plain error.

In his seventeenth proposition Appellant argues that the trial court erred in failing to give second stage instructions that would focus the jury's attention on Appellant's individual culpability prior to imposing the death sentence upon him.

Specifically, he states that the trial court should have given an Enmund/Tison [FN8] instruction. However, in recent cases this Court has held that "an Enmund/Tison instruction is not required in the second stage of a malice murder case where the jury has been instructed properly during the first stage of trial on aiding and abetting and the elements of first degree malice murder." Ochoa, 1998 OKCR 41, at ¶ 68, 963 P.2d at 604. See also Cannon v. State, 1995 OKCR 45, ¶¶ 39-40, 904 P.2d 89, 104-105, cert. denied, 516 U.S. 1176, 116 S.Ct. 1272, 134 L.Ed.2d 219 (1996).

The trial court in the present case properly instructed the jury on the elements of first degree malice murder and on aiding and abetting. As Appellant has failed to persuade us otherwise, we decline to depart from established precedent at this time and we find that the trial court did not err by not giving an Enmund/Tison instruction in the second stage of Appellant's trial.

FN8. See Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982); Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987).

In his eighteenth proposition of error, Appellant argues that if none of the errors are sufficient for reversal on their own, then the combined effect of the errors deprived him of a fair trial and the cumulative error requires reversal. This Court has held that where there is no error present, there can be no accumulation of error.

However, when there have been numerous irregularities during the course of the trial that tend to prejudice the rights of the defendant, reversal will be required if the cumulative effect of all the errors was to deny the defendant a fair trial. Smith v. State, 1996 OKCR 50, ¶ 62, 932 P.2d 521, 538, cert. denied, 521 U.S. 1124, 117 S.Ct. 2522, 138 L.Ed.2d 1023 (1997) (citations omitted).

While it can be found in the present case that there were some irregularities during the course of the trial, even taken together, these cannot be found to have been so great as to have denied Appellant a fair trial. Accordingly, relief is not warranted.

MANDATORY SENTENCE REVIEW

In accordance with 21 O.S.1991, § 701.13(C), we must determine whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor, and whether the evidence supports the jury's finding of aggravating circumstances.

Upon review of the record, we cannot say the sentence of death was imposed because the jury was influenced by passion, prejudice, or any other arbitrary factor contrary to 21 O.S.1991, § 701.13(C).

As to each of the three counts of First Degree Murder, the jury found the existence of four aggravating circumstances: (1) that Appellant knowingly created a great risk of death to more than one person; (2) that the murders were especially heinous, atrocious or cruel; (3) that the murders were committed for the purpose of avoiding or preventing a lawful arrest or prosecution; and (4) the existence of a probability that Appellant would commit criminal acts of violence that would constitute a continuing threat to society. As to Count I, the murder of Jim Poteet, we found the evidence insufficient to support the jury's finding that Appellant killed Poteet to avoid or prevent a lawful arrest or prosecution.

We found the evidence sufficient to support this aggravating circumstance for Counts II and III. We also found the evidence sufficient to support the other alleged aggravating circumstances as to each of the three counts of First Degree Murder.

This Court reweighed the remaining aggravating circumstances against the mitigating evidence and determined that the sentences of death are both appropriate and factually substantiated. JOHNSON, J., CHAPEL, J., and LILE, J., concur. LUMPKIN, V.P.J., concurs in results.

Thornburg v. Mullin 422 F.3d 1113 (10th Cir. 2005) (Habeas).

Background: Following affirmance of his convictions of three counts of first-degree murder and his death sentence on direct appeal, 985 P.2d 1234, petitioner sought writ of habeas corpus.

The United States District Court for the Western District of Oklahoma, Tim Leonard, J., denied petition, and petitioner appealed.

Holdings: The Court of Appeals, Hartz, Circuit Judge, held that:
(1) state appellate court's rejection of claim based on admission of polygraph evidence was not unreasonable;
(2) state rejection of claim based on failure to sua sponte give voluntary intoxication instruction was not unreasonable;
(3) state-of-mind exception to hearsay rule applied to codefendant's statements regarding his intent;
(4) codefendant statements when used to show that defendant had notice of his intent were not hearsay;
(5) state appellate court did not act contrary or unreasonably apply federal law in admitting gruesome photographs of murder victims;
(6) state court determination that alleged prosecutorial misconduct did not render defendant's conviction or death sentence fundamentally unfair was not unreasonable application of federal cumulative error doctrine;
(7) state appellate court's rejection of ineffective assistance of counsel claims was not contrary to or unreasonable application of federal law; and
(8) appellate counsel was not ineffective in failing to raise structural error claims arising from presence of slogan on courtroom wall, so as to provide cause for procedural default. Affirmed.

HARTZ, Circuit Judge.

Applicant Richard Allen Thornburg was convicted in Oklahoma state court on three counts of first-degree murder and sentenced to death.

After the Oklahoma Court of Criminal Appeals (OCCA) affirmed his convictions on direct appeal and denied his application for state postconviction relief, he filed in the United States District Court for the Western District of Oklahoma an application for writ of habeas corpus under 28 U.S.C. § 2254. The district court rejected his application.

The district court and a member of this court have each granted certificates of appealability (COA), see 28 U.S.C. § 2253(c)(1) (requiring a COA to appeal), permitting Mr. Thornburg to raise challenges to his conviction and sentence based on the following alleged errors: (1) the admission of testimony by a witness that he had passed a polygraph examination; (2) the failure of the trial court to give voluntary-intoxication and lesser-included-offense instructions; (3) the admission of hearsay testimony; (4) the admission of photographs of the deceased; (5) prosecutorial misconduct; (6) ineffective assistance of trial counsel; (7) ineffective assistance of appellate counsel; (8) the presence of a carving behind the judge's bench that contained eye-for-an-eye language; and (9) the denial of his request for an evidentiary hearing. We affirm.

I. BACKGROUND

A. The Crime

Between 3:00 and 4:00 a.m. on September 28, 1996, Thornburg, along with codefendants Glenn Anderson and Roger Embrey, went to Marvin Matheson's trailer. All three were armed. As they hovered over Matheson, Thornburg accused him of being responsible for shooting Thornburg the month before.

Also suspecting Jim Poteet of a role in the shooting, they drove Matheson to Poteet's house, telling him on the way not to worry about locking his trailer, because he was not coming back.

When the four men arrived at Poteet's house, Thornburg and Embrey went inside while Matheson and Anderson remained in the car. After hearing gun shots from the house, Anderson took Matheson inside. As Matheson entered he saw Terry Shepard sitting on a chair outside the bathroom door and Poteet sitting on the bed in the back bedroom.

Poteet, held at gunpoint by Thornburg, had been shot in the foot and his forehead was bruised and bloody. Matheson saw Thornburg shoot again at Poteet's feet as he attempted to get Poteet to tell him who had shot him.

Anderson then instructed Thornburg to take Matheson to Poteet's rental unit near the house and get Jimmy Scott. Thornburg escorted Matheson to the rental unit with a gun to his back, but he was interrupted when Kevin Smith arrived at Scott's house to retrieve his girlfriend's purse.

Thornburg instructed Smith to knock on Scott's door. The door was answered by Donnie Scott, the brother of Jimmy, who was not home. Thornburg forced Scott, Smith, and Matheson to go to Poteet's house.

Once they were inside Poteet's house, Anderson held the men at gunpoint in the kitchen while Thornburg went to the back bedroom. Matheson could hear Thornburg and Poteet arguing about drugs and money. Then Anderson instructed Embrey to bring everyone back to the bedroom. The men injected Matheson and Poteet with drugs, as Anderson commented that he intended to “OD” them. Tr. III at 94.

Anderson and Thornburg also injected themselves. Thornburg continued arguing with Poteet about whether Poteet shot him. He told Poteet that he was going to shoot him, but then said “better yet, I ain't gonna shoot you,” and instructed Matheson to shoot Poteet. Tr. III at 97. Embrey and Anderson pointed their guns at Matheson, threatening to shoot him if he did not shoot Poteet. When Matheson refused to shoot Poteet, Thornburg shot Poteet in the side.

Thornburg then told Matheson that Matheson was “going to shoot somebody and that it had a lot to do with if [Matheson left] the house or not.” Tr. III at 100. Matheson was told to shoot one of the men in the bathroom. He attempted to shoot Scott in the head, but the gun did not have a bullet.

Anderson took the gun into the hallway, presumably to put a bullet in it, and returned, insisting that Matheson shoot Scott or he would kill Matheson. Matheson shot Scott in the chest. Embrey then gave his gun to Anderson, telling him that he did not want to be involved in shooting anyone, and escorted Matheson back to the car.

Matheson heard three or four more shots coming from the house. As Matheson was sitting in the car, Embrey opened the trunk and Matheson could smell gas as if Embrey was siphoning gasoline.

The men removed a sack of “Longneck Budweiser” bottles from the back seat. Id. at 107. Then Matheson heard someone throw something through a window and saw that Poteet's bedroom window was broken. After setting the house on fire, the men drove away.

Thornburg dropped Anderson and Embrey off by the side of the road so that they could stash their guns. After driving further, Thornburg told Matheson to get out of the car, hide for a bit, and keep his mouth shut or the others would blame him for killing everyone. Scott, still alive in the burning house, attempted to help Poteet crawl out but was unsuccessful. He made it out himself and lay down in the grass.

A man and his son drove past the burning house shortly after 5 a.m. and saw Scott. They took him to a convenience store and called the police. Scott survived, but Smith, Poteet, and Shepard perished in the fire.

When Matheson heard that officers wanted to arrest him in connection with the murders, he turned himself in. He gave the above account of his activities to officers once he learned that his family was under police protection.

B. Court Proceedings

During the guilt phase of Mr. Thornburg's trial, the prosecution presented the above account through the testimony of Marvin Matheson and Donnie Scott. The prosecution also called several other witnesses. Richard Goss, a Deputy Inspector with the Oklahoma State Bureau of Investigation (OSBI), testified that Scott had identified Thornburg in a photographic line-up on September 28th, the day of the murders, as the “one that was giving the orders.” Tr. III at 208.

To place the three perpetrators-Thornburg, Anderson, and Embrey-together at the time of the murders, and to confirm the time, the state provided four witnesses. Eric Huber was living with Anderson, who was his boss at a trailer manufacturing company.

Huber testified that he, Anderson's wife, and Anderson's son joined Anderson, Thornburg, and Embrey at a bar until it closed about 2 a.m. the morning of the 28th. They then went to the house of Dana Nath, but left there by 3 a.m. Thornburg, Anderson, and Embrey left in Thornburg's car, while Huber, Mrs. Anderson, and the Andersons' son returned home.

About 6 a.m. Huber was awakened when Thornburg dropped Anderson off at the home. Huber also testified that Anderson moved to a hotel “right after the homicides,” Tr. II. at 231, and that while living at the Andersons' he discovered a box with newspaper clippings about the murders.

In addition, he testified that at the Andersons' instructions he had originally told the police that Anderson went home with his family and Huber after they all went to the bar. He said that he had not told the truth to authorities until two days before his testimony.

Dana Nath agreed with Huber that the group came to her house after 2 a.m. the morning of the 28th, and stayed about half an hour. She thought Thornburg, Anderson, and Embrey left together between 2:30 and 2:45 a.m.

Roy Scott, the uncle of Donnie and Jimmy Scott, testified that he drove past the Poteet residence as he was on his way to his nephews' house about 4:30 a.m. on the 28th to pick up Jimmy to go to Oklahoma City. He noticed a light-colored car pulling into Poteet's drive (Thornburg's car was gold). At the time of his testimony, Roy Scott was in jail on a charge of possessing a stolen vehicle.

Jatone Kennedy, victim Smith's girlfriend at the time, testified that she and Jimmy Scott had been out drinking on the 27th. She passed out at the Scott residence. Smith, angry because she had not come home, woke her around 2:00 a.m. on the 28th, and they fought as they walked back to their house.

Once they reconciled, she told him that she had left her purse with his marijuana in it at Scott's house. About 4 a.m. he left to go to the Scott residence to get the purse. He never returned. Kennedy was on probation at the time of her testimony.

The state also called Loyd Keagans, one of the passers-by who rescued Scott. Keagans testified that he and his son left home at 5:05 a.m. on the 28th to see a football game in College Station, Texas. Shortly before 5:30 a.m. they passed by Poteet's house fully ablaze. They stopped to help. While Mr. Keagans approached the burning house, his son went to the neighboring house to use the telephone. On the way, the son discovered Scott, who insisted they take him to a hospital.

They drove him to a nearby convenience store, where they called the Sheriff's Department. Although Scott's condition worsened while he was waiting for assistance at the convenience store, he was able to tell them that three white men were responsible, one “big” and one with “sandy hair,” Tr. II at 112, and that there were three other people in the burning house who had been shot.

Jeff Franklin, Chief of the Alex Police Department, testified that when he arrived at the convenience store, Scott told him that three or four people he did not know had shot him; one was tall, and one was a “heavy-set guy with long hair.” Id. at 192.

The state also provided expert witnesses to describe the crime scene. Elvin Barnhill, an investigator with the State Fire Marshal's office, described what he saw on the morning of the 28th. Shepard was found in the northeast bedroom, Poteet in the hallway leading to the two bedrooms, and Smith on the bed in the southeast bedroom.

Barnhill detected evidence of the use of accelerants (flammable substances) to promote the fire in four spots in the northeast bedroom, and he discovered burn patterns indicating a flammable substance near Smith and between his legs.

Although the laboratory detected no accelerants in the material samples from the bedroom, Barnhill explained that it was not uncommon for such substances to “leach[ ] out” during a fire. Tr. II at 72.

He also testified that the charring of the victims' bodies and their surroundings indicated an intense heat, suggesting that accelerants were used in both bedrooms. The pattern of charring indicated that the fire started in the bedrooms and headed west down the hallway.

Barnhill further explained how one could start a fire by breaking a bottle containing gasoline and a lit wick. Finally, Barnhill testified that the fire was likely set intentionally between 4:45 and 5:15 a.m. on the 28th.

Fred Jordan, Oklahoma's Chief Medical Examiner, testified that each victim had been shot and some showed signs of burning while still alive. He said that Poteet's fatal gunshot wound would not have caused instantaneous death, but he would have died from loss of blood and collapsing of the lungs.

Likewise, the gunshots wounds to Shepard and Smith would not likely have caused instantaneous death. Jordan also testified about various wounds present on the bodies, such as a gunshot wound on Poteet's left great toe.

Susan Hart, a physical-evidence specialist and fingerprint examiner for the OSBI, testified that in Thornburg's car she found ammunition, a gallon jug, carburetor cleaner, a lighter, and Embrey's fingerprints. And Darwin Horman, a crime-scene investigator for the OSBI, testified that a Budweiser bottle was found in Poteet's driveway.

Julie Maxon, a long-time friend of Thornburg, testified that he had attempted to borrow her police scanner the night of the 27th, some six hours before the murders, and that he was unusually high that evening. She also testified to a prior incident in which Thornburg had been shot. The shooting occurred a few minutes after Thornburg had asked Jimmy Scott to pay him back $60 that he owed.

Thornburg had told her that he thought Poteet had something to do with the shooting. Terry Alexander, a deputy sheriff who had investigated the September 23 shooting of Thornburg, testified that when asked about the shooting, Thornburg had told him “not to worry about it, he'd take care of it.” Tr. III at 200.

A particularly unusual witness was Teresa Burgess, one of five patrons at the bar where Thornburg was arrested in the early morning of September 29. She was new in town and had never before seen Thornburg, but was sitting next to him. She overheard him say to himself, “[T]hree died last night and three more will die tomorrow.” Tr. III at 218. After Thornburg was arrested, officers interviewed all the patrons, and Burgess told them what she had heard.

Mr. Thornburg's sole defense was alibi. He testified that he had been out drinking with Embrey, became extremely intoxicated, blacked out, and woke up the morning of the murders in the back seat of his car at Embrey's house. He also testified that he had no recollection of making the remark overheard by Burgess.

On cross-examination he maintained that he had no recollection of the early morning hours of the 28th, although he conceded that if witnesses said he was up and about at the Naths' house, then he probably was. When asked why Matheson and Scott would say he was at the crime scene, Thornburg replied, “I have no idea,” continuing to maintain that he was not a participant in the murders. Tr. IV at 73.

The defense called three witnesses to support the alibi. Embrey's girlfriend, Ruby Davis, testified that when Embrey came home intoxicated at about 3 a.m., he told her that Thornburg was in his car asleep.

When she left the house some four hours later, she saw Thornburg asleep in the car. Roy Thornburg, Mr. Thornburg's brother, and Terry Mainka, a friend of his brother, both testified that they were all at the bar drinking the night prior to the murders, and that they put Thornburg in the passenger side of a car at the end of the evening because he was incapacitated.

Finally, Patricia Evans, who had known Thornburg for 22 years, testified that as she passed the Poteet residence about 5 a.m. the morning of the murders, she saw two vehicles on the left-hand side of the road, and a man walking across the highway. She did not recognize the man as Mr. Thornburg, nor did she see his car.

The state called two rebuttal witnesses. OSBI Deputy Inspector Richard Goss impeached Ruby Davis. He testified that when he first interviewed her on October 2, 1996, she told him that Thornburg was not at her house the morning of September 28th. Then on October 9th she told him that she had not seen Thornburg at her house but had seen his car in her driveway.

Goss also testified about a statement by Thornburg as he was arrested for the murders on the early morning of the 29th. When Goss informed Thornburg that he was being charged with three counts of first-degree murder, Thornburg replied: “[G]ood. Prove it, mother fucker. You couldn't get your keys if they were-you couldn't find your keys if they were stuck up your ass.” Tr. IV at 78.

The final witness was Teresa Embrey, Roger Embrey's sister-in-law and neighbor. She had never been interviewed but called the OSBI the morning of her testimony because she “just th[ought] the truth need[ed] to come out.” Tr. IV at 88. She testified that she was up at 5 a.m. the morning of the murders to say good-bye to her husband, who was going to work. When she looked across the road at Roger Embrey's house, Thornburg's car was not there.

The only cars were Roger's and Ruby Davis's. When she looked again shortly before 8 a.m., Thornburg's car was there. The jury convicted Mr. Thornburg on three counts of first-degree malice-aforethought murder, one count of first-degree arson, one count of shooting with intent to kill, and two counts of kidnapping.

At the penalty stage the prosecutor argued four aggravating factors in support of the death penalty: (1) the defendant knowingly created a great risk of death to more than one person; (2) the murder was especially heinous, atrocious, or cruel; (3) the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution; and (4) the defendant was a continuing threat to society.

In mitigation Mr. Thornburg presented the testimony of his wife and a medical expert who testified that he had organic brain damage and was subject to blacking out whenever he drank in excess. The jury found all four aggravating factors on each murder count and returned a death sentence. The entire trial, including jury selection and the penalty phase, took four days.

On direct appeal to the OCCA Mr. Thornburg was represented by new counsel. The OCCA affirmed his conviction and sentence. See Thornburg v. State, 985 P.2d 1234 (Okla.Crim.App.1999). Meanwhile, represented by his present counsel, he had filed a state postconviction application. It, too, was denied by the OCCA.

After the United States Supreme Court denied certiorari with respect to his direct appeal on May 15, 2000, he filed his federal application under 28 U.S.C. § 2254, setting forth 14 grounds for relief. The district court rejected his request for an evidentiary hearing and denied relief. He appeals.

* * *

Mr. Thornburg relies on United States v. Scheffer, 523 U.S. 303, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998), to contend that the introduction of the polygraph evidence is a per se violation of his constitutional right to a fundamentally fair trial. But his reliance on Scheffer is misguided.

Scheffer held that the per se exclusion of polygraph evidence was not a constitutional violation because of the inherent unreliability of polygraph evidence. Id. at 312. Scheffer does not stand for the proposition that the introduction of polygraph evidence necessarily constitutes constitutional error.

* * *

F. Prosecutorial Misconduct

Mr. Thornburg contends that a multitude of the prosecutor's statements during the guilt and sentencing phases of trial were improper and had the cumulative effect of rendering his trial fundamentally unfair and his sentence unreliable. His trial counsel made no objection to any prosecutorial comment, and the OCCA reviewed the contested comments for plain error.

Without enumerating each specifically contested comment, the OCCA concluded: “We find that many of the comments complained of fell within the prosecutors' wide range of permissible argument. We also find that those comments which were inappropriate were not so egregious as to rise to the level of plain error.” Thornburg, 985 P.2d at 1244-45.

Mr. Thornburg concedes in his appellate brief that, viewed in isolation, the comments would not have risen to constitutional error. Instead, he asserts that their cumulative effect rendered the trial fundamentally unfair.

We therefore do not address each comment to determine whether it alone rendered the trial unfair. Our course will be to analyze each comment to determine the risk of unfair prejudice and then decide whether the cumulative impact of any errors rendered the trial unfair.

We begin by distinguishing the challenged comments that were proper from those that may have been improper and should be included in the cumulative-error analysis. Because the OCCA did not identify the comments it thought improper, we conduct our own independent review of the record and federal law.

1. Comments Not Improper

a. Discussing Reasonable Doubt

During voir dire the prosecutor made the following comments: In a criminal case we have to prove the defendant guilty beyond a reasonable doubt. In a civil case it's beyond a preponderance of evidence. Do you understand the distinctions? ··· And we can't tell you what reasonable doubt means. We can't define it for you. Defense can't define what beyond a reasonable doubt means. And the Court can't define it. The instructions won't say beyond a shadow of a doubt or all doubt. The Instructions say beyond a reasonable doubt. Tr. I at 121 (emphasis added) (similar comments at 125).

Although Oklahoma law does not permit jury instructions on the meaning of “reasonable doubt,” Al-Mosawi v. State, 929 P.2d 270, 279 (Okla.Crim.App.1996), and an instruction defining reasonable doubt may deny due process if it misleads the jury about the burden the state carries, see Cage v. Louisiana, 498 U.S. 39, 41, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990) (instructions equating “reasonable doubt” with “grave uncertainty” and “actual substantial doubt” violate due process), overruled on other grounds by Estelle v. McGuire, 502 U.S. 62, 73 n. 4, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (clarifying that standard of review for erroneous jury instructions is whether they had a “reasonable likelihood” of misleading the jury), not all definitions of reasonable doubt are misleading.

The Supreme Court held in Victor v. Nebraska, 511 U.S. 1, 17, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994), that a jury instruction stating that a reasonable doubt “ is not a mere possible doubt ” did not likely mislead the jury “because a reasonable doubt, at a minimum, is one based upon reason. A fanciful doubt is not a reasonable doubt.” (internal citation and quotation marks omitted). Similarly, to state that “beyond a reasonable doubt” does not mean beyond “a shadow of a doubt or all doubt” was not a constitutional violation.

b. Eliciting Evidence of Codefendant's Attempt to Influence Witness Huber

Mr. Thornburg contends that the prosecutors improperly elicited testimony from state witness Eric Huber that codefendant Anderson and his wife had attempted to get him to provide a false statement to the police. Huber testified that Anderson, Embrey, and Thornburg left the Nath house together at 3:00 a.m. on the 28th and that Anderson was dropped off at his house about 6 a.m. by a gold car resembling Thornburg's.

Huber, however, had made a contrary statement to police officers when he was first interviewed. Such a prior inconsistent statement is often used by opposing counsel for impeachment. And to reduce the impact of the impeachment, counsel may elicit the prior statement on direct examination and allow the witness to explain. That is what happened here:

Q. [Prosecutor]. Sir, did you give a different statement than what you've told this jury and law enforcement when you were interviewed? A. [Huber]: Yes, sir. I did. Q. That was back in October 3rd of 1996? A. Yes, sir. Q. What statement did you give them? A. I stated in that report that Glenn-Mr. Anderson rode home with me, his wife and his son and that I drove, and that was a lie. Q. So basically you gave an alibi at that time. A. Yes, sir. I did. Q. Who told you, sir, to tell OSBI that statement-that story? A. Mr. and Mrs. Anderson. Tr. II at 230-31.

There is, of course, always the possibility that defense counsel would not have tried to impeach Huber with the prior statement, in which case the misconduct of the Andersons should have been inadmissible. But if defense counsel wished to adopt that course, he needed to object to the direct examination concerning the prior statement. We see no impropriety in the prosecutor's anticipation of likely impeachment, absent something in the record indicating that defense counsel would forego the impeachment.

c. Prosecutorial Speculation and Inference

Mr. Thornburg also contends that the prosecutor speculated and argued facts not in evidence when he claimed that accelerants were used in starting the fire, that other jugs of gasoline may have been present in Mr. Thornburg's car that night, and that but for the two passers-by who discovered Scott, there would have been four, not three, deaths.

A prosecutor may comment on and draw reasonable inferences from evidence presented at trial. See Hooper v. Mullin, 314 F.3d 1162, 1172 (10th Cir.2002), cert. denied,540 U.S. 838, 124 S.Ct. 97, 157 L.Ed.2d 70 (2003).

Undisputedly, the house was set on fire. The fire inspector testified that he detected four spots in the debris showing evidence of accelerants, and a photograph admitted into evidence showed a plastic jug in the back seat of the gold car driven by Mr. Thornburg. It is not beyond the pale to infer from this evidence that accelerants had been used to start the fire and that other containers of flammable substances had been present in the car that night.

It was also reasonable for the prosecutor to imply that Scott, who was left seriously wounded in a burning house, may not have survived if he had not been rescued by the passers-by. These comments were not improper.

d. Demeaning Mitigation

Mr. Thornburg also argues that the prosecutor improperly demeaned his mitigation evidence as “excuses.” Tr. IV at 199-202. We disagree. The prosecutor used the word excuse on two occasions.

The first time, the prosecutor was merely incorporating the word excuse as employed by defense counsel in his closing argument moments before: “Not saying the alcohol isn't a defense in the sense of an excuse. There is no excuse. We're asking you for mercy····” Id. at 199.

In response the prosecutor said, “The State and defense counsel have one thing in common. Defense counsel just said there are no excuses. Folks, there's not. There cannot be excuses for what these three men suffered.” Id. at 199-200.

Further along in his argument, the prosecutor again referred to the mitigation evidence as excuses but this comment was equally proper because the prosecutor was commenting on the express language of the jury instructions.

The mitigation instructions specified that the jury could consider evidence produced by Mr. Thornburg that he “acted under circumstances which tended to justify, excuse or reduce the crime.” St. Ct. Rec. at 503.

The prosecutor said, “What facts have you heard that justify, excuse or reduce this crime? Any? Any of the excuses?” Tr. IV at 201. This characterization of the mitigation evidence, invited as it was by the jury instructions and defense counsel, falls easily within the wide latitude of argument allowed to prosecutors.

2. Possibly Improper Comments

Mr. Thornburg complains of other prosecutorial comments that are at least arguably improper. We will address them individually before considering whether their cumulative impact demands reversal.

a. Improper Witness Vouching

Mr. Thornburg contends that in final argument the prosecutor (1) improperly vouched for state witnesses by claiming that Donnie Scott, Teresa Burgess, and Teresa Embrey (codefendant Embrey's sister-in-law) had “no reason to lie,” Tr. IV at 105-107; and (2) accused Ruby Davis of perjury when he said: Let's talk about the Embreys and Ruby Davis. What motive does she have to get up here and lie to you? When she first talks to OSBI she never sees Richard Thornburg out there. Never at all.

She sticks to the story about Mr. Embrey coming home and falling off the couch. Second interview she never sees Mr. Thornburg there···· Second interview she throws in he was a big boy. I told him to stay away from those people. What is she not saying in that statement? Yet, she comes in here in front of you and testifies, commits perjury on the stand, lies to you and says she never said those things. She said she was never asked. What motive does she have to testify? Her boyfriend, Roger Embrey, her friend Richard Thornburg. Id. at 107-08 (emphasis added).

“Argument or evidence is impermissible vouching only if the jury could reasonably believe that the prosecutor is indicating a personal belief in the witness' credibility, either through explicit personal assurances of the witness' veracity or by implicitly indicating that information not presented to the jury supports the witness' testimony.” United States v. Magallanez, 408 F.3d 672, 680 (10th Cir.2005) (internal quotation marks omitted).

Likewise, an attack on a witness's veracity is improper only in similar circumstances. Thus, it is not improper for a prosecutor to direct the jury's attention to evidence that tends to enhance or diminish a witness's credibility.

Here, the prosecutor's statements appeared to be based on the evidence. Nothing at trial suggested any reason why Scott, Teresa Embrey, or Burgess would want to injure Mr. Thornburg. Also, the attack on Ms. Davis was explicitly based on her prior inconsistent statements to police officers.

Moreover, the prosecutor never indicated to the jury that he knew something more about the witness's credibility than could be deduced from the evidence at trial. Hence, this does not appear to be a case of improper vouching. Even if, in an (over)abundance of caution, we might say that the prosecutor stepped over the line, see United States v. Broomfield, 201 F.3d 1270, 1276 (10th Cir.2000) (assuming prosecutor's characterization of case as “case about perjury,” defense witness's testimony as “lies,” and argument that state witness “[had] no reason to lie” was improper vouching but deciding that any error was harmless), we would still be hard-pressed to find any substantial unfair prejudice.

b. Commenting on and Eliciting Evidence of Codefendant's Attempt to Influence Witnesses

Mr. Thornburg contends that the prosecutor improperly elicited testimony that the Andersons tried to influence the testimony of Jatone Kennedy, victim Smith's girlfriend. Kennedy testified that Smith went to get her purse from Scott's house about 4 a.m. on the 28th and that she never saw him again.

On direct examination the prosecutor asked: Q. Ma'am, has anybody approached you in this case about your testimony? A. No. Q. Nobody has? A. I think in the beginning there were some people that tried to convince me to say things differently than-I mean, nobody- Q. Nobody twisted your arm. A. Right Q. Who approached you, ma'am, about this case? A. Corky [Mrs.] Anderson. Tr. II at 216.

In contrast to Huber, Kennedy had uttered no prior inconsistent statement. Mr. Thornburg further complains that the prosecutor stated in closing: “[Mr. Huber] also told you Corky Anderson tries to influence his testimony, Corky and Glenn. And first she lied and gave a story that Glenn went home with them···· Why are you creating alibis? Why do you have to create a situation if you haven't done anything wrong?” Tr. IV at 103.

We agree with Mr. Thornburg that it may have been improper for the prosecutor to elicit Mrs. Anderson's attempt to influence Kennedy or to argue that Anderson's attempt to create an alibi was evidence of Mr. Thornburg's guilt. The state makes no real attempt to justify the conduct.

Nevertheless, the real damage to Mr. Thornburg's alibi defense came from the testimony of government witnesses regarding the events at the time of the murder, not evidence regarding the Andersons' apparently feeble attempts to influence witnesses.

c. Appeal to Moral and Civic Duty of Jury

Mr. Thornburg also complains that during the guilt phase the prosecutor argued that the jury had a moral and civic duty to convict: Justice is in your hands. Your decision here affects the lives of not only this defendant but other people in the community. We've shown you overwhelming evidence of why Mr. Thornburg would want to kill Mr. Poteet, why maybe he would want to kill Jimmy Scott, his motive, waited the night before, the next morning, his statements to Richard Goss when he was arrested.

Does that sound like meek, little, mild statements the testimony you heard from Mr. Thornburg up here? I will suggest to you that was the true Mr. Thornburg. With all the cuss words you can't prove it. He didn't say I'm innocent. What are you talking about? He said, you can't prove it. Folks, we have proven it. It's right here in front of you right now. We talked about it in voir dire.

We asked the question about passing judgment on somebody else. And that's a hard thing to do. Each of you in voir dire told us you could pass judgment. We've proven our case to you. We've shown it to you. We've woven it together.

Every little piece has fallen right in line. We've shown our case to you, said this is what we've got, this is the evidence. One of you just got through reading a book before you came on here, When Justice Prevailed. Folks, justice must prevail in this case. Like I said, you're the ones that decide it. You are the justice in Grady County right now. You're the ones that make the legal decisions.

Justice must run in this case for three victims, for Donnie Scott. Mr. Thornburg has got to be told what he did was wrong. Not only was it wrong, this was terrible, folks. One of you said about mass murder.

One of the problems in our society is mass murder, violence, drugs, guns. This is a mass murder. This is three helpless people who were gunned down, kidnapped tortured, burned alive and left dead in a house. Tr. IV at 112-113 (emphasis added).

It is improper for a prosecutor to suggest that a jury has a civic duty to convict. See Spears v. Mullin, 343 F.3d 1215, 1247 (10th Cir.2003), cert. denied,541 U.S. 909, 124 S.Ct. 1615, 158 L.Ed.2d 255 (2004). In a decision handed down during World War II, the Supreme Court warned that the prosecutor's references to the war constituted “an appeal wholly irrelevant to any facts or issues in the case,” and could have jeopardized the verdict had the Court not reversed on another ground. Viereck v. United States, 318 U.S. 236, 247-48, 63 S.Ct. 561, 87 L.Ed. 734 (1943).

But here the prosecutor's comments were firmly rooted in the facts of the case. We see little, if any, impropriety. See Spears, 343 F.3d at 1247 (statement that “justice cries out for [conviction]” did not render trial fundamentally unfair); Le v. Mullin, 311 F.3d 1002, 1022 (10th Cir.2002) (prosecutor's comment that jury “could only do justice···by bringing in a verdict of death” did not render trial fundamentally unfair), cert. denied,540 U.S. 833, 124 S.Ct. 80, 157 L.Ed.2d 60 (2003).

d. Misstatement of the Evidence

Mr. Thornburg complains of prosecution comments about the defense's punishment-phase expert, Dr. Philip Murphy, a clinical psychologist. Dr. Murphy testified that excessive drinking and other injuries caused Mr. Thornburg's organic brain damage that led to blackouts during which he would lose consciousness. Dr. Murphy performed 11 tests and a clinical interview to assess Mr. Thornburg.

In his closing argument at the sentencing phase of the trial, the prosecutor said: (1) “You heard Dr. Murphy. He spent 15 minutes looking at him and he said he's brain damaged?” Tr. IV at 200; and (2) “Dr. Murphy says that Richard Thornburg, as long as he's not drinking and in these blackouts, he's not a dangerous man. This is, of course, from his 15 minutes upstairs in jail.” Tr. IV at 203-04. But nowhere in the record is there evidence about the amount of time Dr. Murphy spent with Mr. Thornburg.

A prosecutor is allowed to comment on the evidence and draw inferences therefrom, but he may not speculate or refer to evidence never presented to the jury. See Le v. Mullin, 311 F.3d at 1020-21 (criticizing prosecutor for mischaracterizing evidence and suggesting that defendant had committed other murders when such facts were not in evidence). The prosecutor's 15-minute comments were improper.

On the other hand, defense counsel never objected to these statements. Also, the judge instructed the jury that it should consider only the evidence introduced at trial, that the attorneys' statements and arguments are not evidence, and that the jury bore the responsibility of determining the credibility of each witness. Such instructions may minimize the impact of a prosecutor's misstatements.

See Darden v. Wainwright, 477 U.S. 168, 182, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (jury instructions that “their decision was to be made on the basis of the evidence alone, and that the arguments of counsel were not evidence” helped remedy prosecutor's improper closing argument).

e. Comments on the Appropriate Sentence

Mr. Thornburg contends that the sentencing stage of his trial was fundamentally unfair because in his sentencing-stage closing the prosecutor (1) injected his personal opinion on the appropriate sentence and (2) misled the jury about sentencing alternatives.

The prosecutor said: And you must give independent consideration to each and every one of the murder convictions because every one of those individuals in there was a separate life, and that is they never deserved to die in the manner in which they died. And we can't change that.

But I can and you can give them at least individual consideration with the understanding that the man who murdered them, the man who led, the man who created this and the man who was out seeking for revenge that night, that he receive the punishment that is just under the statutes, under the law and most important in this case, as we discussed at the very beginning. ··· And we told you what the law is. That's merely the charges we file against somebody. But that's not easy.

There's nothing easy about it. You know, we all try to be moral people, we think about trying to do good for our community, our society. When we file a piece of paper, we're asking you to sentence this person to death. We're asking you to return a verdict allowing the State to execute Mr. Thornburg.

So basically we're asking you the State for the authority to do that. There's nothing easy about that. We're talking about life and death. Nothing easy at all. ··· Justice, folks, cries for the death penalty in this case like no other case. Justice cries for the death penalty.

There is no other reasonable verdict, nothing. Nothing can come close. Talk about the sword of mercy. It's above Judge Winchester. The sword there. You live by the sword, you die by the sword, folks. We're asking you to return a verdict now of guilty which you already have.

The maximum punishment is on everything. If you really don't want Mr. Thornburg back on your streets ever again, then the only proper punishment is death. We're asking you to sentence Mr. Thornburg to that. It should not be a difficult decision. I know it is. We're talking about killing somebody. You're authorizing the State to kill somebody. But there is no other just verdict. This is justice. Tr. IV at 195-96, 201-02, 205-06.

Mr. Thornburg contends that these comments imposed the prosecutor's personal views upon the jury. It is improper for a prosecutor to inject his personal opinion on the propriety of the death sentence.

It is also impermissible for a prosecutor to suggest that he “or some other authority, not the jury, [is] the final or true arbiter of ··· punishment.” Sellers v. Ward, 135 F.3d 1333, 1343 (10th Cir.1998) (internal quotation marks omitted). As stated in Caldwell v. Mississippi, 472 U.S. 320, 333, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), “[T]he uncorrected suggestion that the responsibility for any ultimate determination of death will rest with others presents an intolerable danger that the jury will in fact choose to minimize the importance of its role.”

But a prosecutor is entitled to argue that under the facts and law, capital punishment is appropriate. See United States v. Ainesworth, 716 F.2d 769, 771 (10th Cir.1983) (distinguishing improper argument that prosecutor believes accused is guilty of crime or stating facts not in evidence from proper commentary that “on the basis of the evidence in the case, it is his belief that the defendant is guilty”).

Here, the prosecutor did not suggest the existence of facts not in evidence, nor did he suggest that anyone other than the jury was responsible for fixing the appropriate sentence. On the other hand, his comments on the appropriateness of the death penalty could be taken as his personal view. We will assume that the comments crossed the line.

More troubling is the prosecutor's comment that did cross the line. In the last quoted paragraph he said, “If you really don't want Mr. Thornburg back on your streets ever again, then the only proper punishment is death.” Tr. IV at 205.

This statement could mislead the jury about possible punishment alternatives, suggesting that he could be released from jail at some point if not sentenced to death. “The State may not create a false dilemma by advancing generalized arguments regarding the defendant's future dangerousness while, at the same time, preventing the jury from learning that the defendant never will be released” if given a sentence other than death. Simmons v. South Carolina, 512 U.S. 154, 171, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994) (jury should have been instructed on possibility of life without parole); see also Kelly v. South Carolina, 534 U.S. 246, 122 S.Ct. 726, 151 L.Ed.2d 670 (2002) (requiring Simmons instruction when prosecution presented evidence showing defendant's probability of future dangerousness).

Nevertheless, the trial judge remedied this error when he instructed the jury: “Even if you find that the aggravating circumstance outweigh(s) the mitigating circumstance, you may impose a sentence of imprisonment for life or imprisonment for life without parole.” Instr. 12 St. Ct. Rec. Vol. 3 at 504. Thus, the jury knew that it could keep Mr. Thornburg off the streets without imposing the death penalty. See Kelly, 534 U.S. at 257 n. 8, 122 S.Ct. 726 (jury instruction on parole ineligibility could cure problem raised by prosecutor's argument).

f. Invoking Sympathy for the Victims

Most troubling is Mr. Thornburg's contention that the prosecutor invoked sympathy for the victims during the guilt-phase closing argument: Look at Donnie Scott. He's got a good job now. He's obviously off drugs. Who's to say he can't lead a very, very productive life? Who's to say Mr. Poteet, Mr. Shepard couldn't have done the exact same thing? You know, is Mr. Thornburg today in Court, there's no question about that.

Our legal system says this is his day in Court. But this is also our three victims' day in Court. This is Mr. Shepard's, Mr. Poteet and Mr. Smith. ···· Folks, we have three victims here who are not here today. Mr. Shepard, Mr. Smith and Mr. Poteet, they can't get up here and tell you on the witness stand how Mr. Thornburg slaughtered them.

Shot them and left them to burn alive in the house. They can't get up here to tell us that. They're never going to be here. They're never going to testify. They're never going to be with their families for holidays, Christmases. And you've got families here. This is also their day in Court, too, not just this defendant. Tr. IV at 111-12.

The prosecutor's comments that the victims may have led productive lives, could not testify at trial, and would never be with their families on holidays were irrelevant to proving Mr. Thornburg guilty of their murders. See Duckett v. Mullin, 306 F.3d 982, 991 (10th Cir.2002) (victim-impact statements improper in guilt stage).

Notwithstanding their clear irrelevance to Mr. Thornburg's guilt, however, the prosecutor's appeal was already implicit in the evidence. The jury knew that there were three men murdered, that they were shot and left in a burning house, and that they could not appear in court to testify.

And because the evidence had shown all three victims to be drug and alcohol abusers, the prosecutor's speculation on their possible “productive” lives was most likely an attempt to avoid any jury nullification based on the victims' own reprehensibility. While condemning such comments during the guilt phase, we can doubt their inflammatory impact.

* * *

H. The Eye-for-an-Eye Carving

Behind the judge's bench in the courtroom in which Mr. Thornburg was tried was a wooden carving on which appears the phrase, “An Eye for an Eye & A Tooth for A Tooth.” Mr. Thornburg contends that the presence of this carving in the courtroom was structural error automatically requiring reversal.

The phrase “an eye for an eye and a tooth for a tooth,” according to Mr. Thornburg, is widely invoked by proponents of the death penalty and has the potential to sway a jury to impose a death sentence, not as a result of the individualized judgment that our constitutional law requires, see Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), but because of religious commandment. He also contends that his trial counsel was ineffective for not raising the issue at trial and his appellate counsel was ineffective for failure to raise the issue (both on the merits and as a ground of ineffective assistance of trial counsel) on appeal.

Mr. Thornburg's merits claim and his claim of ineffective assistance of trial counsel, however, face the hurdle of procedural bar. Mr. Thornburg failed to advance either claim in state court until his petition to the OCCA for postconviction relief.

The OCCA refused to review the claims, applying a state procedural bar for failing to raise an issue that could have been raised on direct appeal. See Thornburg v. State, No. PC-99-490, at (Okla.Crim.App. Nov. 9, 1999). In a § 2254 proceeding a state court's prior “adequate and independent finding of procedural default will bar federal habeas review of the federal claim.” Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989).

We have had several occasions to express concern about whether Oklahoma's procedural bar is “adequate and independent,” particularly with respect to ineffective-assistance claims, see, e.g., Cannon v. Mullin, 383 F.3d 1152, 1172-74 (10th Cir.2004) (for state rule of procedural bar to be adequate to bar claim of ineffective trial counsel because of failure to raise claim on direct appeal, state must provide procedural mechanisms permitting defendant to develop factual basis of claim on appeal), cert. denied,--- U.S. ----, 125 S.Ct. 1664, 161 L.Ed.2d 491 (2005); but Mr. Thornburg, who had new counsel for the direct appeal of his conviction, does not challenge independence and adequacy here. See Hooks v. Ward, 184 F.3d 1206, 1217 (10th Cir.1999) (defendant bears burden of contesting independence and adequacy of state procedural bar once state has asserted the affirmative defense).

An adequate and independent finding of procedural default can be overcome only if the party claiming error can establish cause for failure to raise the issue when required and show that the failure produced actual prejudice. Engle v. Isaac, 456 U.S. 107, 129, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). “While the nature of a constitutional claim may affect the calculation of cause and actual prejudice, it does not alter the need to make that threshold showing.” Id.

Thus, even structural errors are subject to state procedural bars. See McCracken v. Gibson, 268 F.3d 970, 976 (10th Cir.2001) (state procedural bar applied to allegation of structural error, although court alternatively addresses the merits and holds that error was not structural).

As cause for the failure to raise the issue on direct appeal, Mr. Thornburg claims ineffectiveness of his appellate counsel. The OCCA rejected this ineffective-assistance-of-appellate-counsel claim in Mr. Thornburg's postconviction proceedings: “The brief filed in [Mr. Thornburg's] direct appeal reflects that appellate counsel raised eighteen non-frivolous claims at least equally meritorious to that which was omitted and is at issue here. We cannot find that appellate counsel's failure to investigate and litigate the ··· issue as fully as [Mr. Thornburg] claims he should have rendered counsel's performance unreasonable under prevailing professional norms.” Thornburg v. State, No. PC-99-490, at .

Regardless of the merits of the OCCA's analysis, we agree that Mr. Thornburg's appellate counsel was not ineffective for failure to raise the biblical-reference issue. Appellate counsel is not ineffective for failing to raise an argument based on facts that he could not reasonably be expected to know. Not only was the presence of the biblical reference in the courtroom not obvious from the trial record, it was completely absent.

For appellate counsel even to be aware of the issue, he would have had to assume a duty to visit the courtroom in which Mr. Thornburg was tried. Appellate attorneys work from a trial record, and we will not impose on them a duty to inspect courtrooms.

Mr. Thornburg's trial counsel did not object to the carving; that may have been poor judgment, but it left the record devoid of anything that could have directed appellate counsel's attention to the eye-for-an-eye language.

The prosecutor did make a reference to the sword in closing argument: “Talk about the sword of mercy. It's above Judge Winchester. The sword there. You live by the sword, you die by the sword, folks.” Tr. IV at 205. But he did not mention the phrase engraved on the sword.

Mr. Thornburg even candidly admits as much in his brief to this court: The error of the ever-present adage “An Eye for an Eye, A Tooth for a Tooth,” should have been objected to by trial counsel, and should have been asserted on direct appeal by appeal counsel. To be sure, the error is not apparent from the record. There is nothing in the paper record of Mr. Thornburg's trial to indicate that the artwork containing the Leviticus passage was in front of the jury. Trial counsel failed to make that record.

Direct appeal counsel would not have known of the error, even investigating the case, as a reasonable investigation would not normally take the direct appeal lawyer into the courtroom in which the trial was conducted. Aplt. Br. at 49.

Accordingly, we reject on the merits Mr. Thornburg's claim of ineffective appellate counsel. As a consequence, Mr. Thornburg is procedurally barred from raising the biblical-reference issue or the related claim of ineffective trial counsel.

I. Denial of an Evidentiary Hearing

Finally, Mr. Thornburg appeals the district court's denial of his request for an evidentiary hearing on his Sixth Amendment issues. Mr. Thornburg has shown no reason to conduct an evidentiary hearing.

He does not state what he wishes to prove at such a hearing and he argues no issues on appeal for which further evidence would be relevant. The district court did not err in denying his evidentiary-hearing request.

III. CONCLUSION

We AFFIRM the district court's denial of relief under 28 U.S.C. § 2254.

  

Richard Thornburg