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Gary Alan WALKER






A.K.A.: "The Roaming Rapist"
Classification: Spree killer
Characteristics: Rape - Robbery
Number of victims: 6
Date of murders: May 1984
Date of arrest: June 2, 1984
Date of birth: September 25, 1953
Victims profile: Jayne Hilburn, 35 / Janet Dee Jewell, 32 / Valerie Shaw-Hartzell, 25 / Margaret Bell Lydick, 37 / DeRonda Gay Roy, 24 / Eddie O. Cash (male, 63)
Method of murder: Strangulation
Location: Tulsa, Oklahoma, USA
Status: Executed by lethal injection in Oklahoma on January 13, 2000


Serial killer Gary Alan Walker was convicted and sentenced to death for the 1984 murder of 63 year old Eddie Cash of Broken Arrow.

Cash was on his way to visit relatives when he offered a ride on a hot day to the hitchhiking Walker. During their conversation, Walker learned where Cash lived and repaid the kindness by going to his house that evening and robbing Eddie, strangling him with a vacuum cleaner cord and beating him with a brick. The jury rejected the insanity defense.

Walker was also convicted and sentenced to death for the murder of Tulsa radio reporter Valerie Shaw-Hartzell, who was killed after being kidnapped and raped on May 24. This conviction was reversed on appeal, and at a second trial, Walker was sentenced to life without parole plus 500 years imprisonment.

Walker confessed to killing Jayne Hilburn of Vinita, who was strangled and had her car stolen on May 14.

Walker confessed to killing Janet Jewell of Beggs, who was raped and murdered on May 23 in Tulsa.

Walker confessed to killing Margaret Bell Lydick, who was raped, tortured, and murdered in Poteau, Oklahoma.

Walker also stripped and attempted to rape DeRonda Gay Roy, a 24-year-old mother of four, then strangled her with her bra in Rogers County, Oklahoma. Walker was convicted of approximately 35 additional felonies.

The execution of serial killer Gary Alan Walker, sentenced to death for the 5/7/84 murder of 63-year-old Eddie Cash of Broken Arrow, is scheduled for Jan. 13. Eddie was on his way to visit relatives in Collinsville when he offered a ride on a hot day to the hitchhiking Walker.

During their conversation, Walker learned where Eddie lived and repaid the kindness by going to his house that evening and robbing Eddie, strangling him with a vacuum cleaner cord and beating him with a brick. The jury rejected the insanity defense.

He also was handed 6 life sentences plus 700 years for crimes he committed in 1984. Walker also confessed to killing Jayne Hilburn of Vinita, Janet Jewell of Beggs and Margaret Bell Lydick of Poteau.

He raped, tortured and murdered Margaret Ann Bell Lydick in Poteau, Oklahoma. Jane Hilburn, 35, was strangled and her car was stolen in Vinita, Oklahoma on May 14. Valerie Shaw-Hartzell, 25, a Tulsa radio reporter, was killed after being kidnapped and raped on May 24.

His death sentence in this murder was overturned and with a second trial, Walker was sentenced to life without parole. On May 23, he raped and murdered 32-year-old Janet Dee Jewell in Tulsa.

He stripped and attempted to rape DeRonda Gay Roy, a 24-year-old mother of four, then strangled her with her bra in Rogers County, Oklahoma. Walker was convicted of approximately 35 additional felonies.

Thirty people bound by the horrors of Gary Alan Walker's 1984 killing spree planned to witness his scheduled execution early Thursday at the Oklahoma State Penitentiary.

The 5-time killer was scheduled to receive a lethal dose of drugs for the slaying of Broken Arrow rancher Eddie Cash. Walker already had given up the crocheting that filled his days on death row and created afghans and baby booties that he sometimes gave as gifts. "We've gone everywhere we can go. We've done everything we can do," said Walker's lawyer, Gloyd McCoy, who fought for 14 years to win a reprieve.

Walker requested that McCoy not view the execution because he didn't want him traumatized to the point of rejecting future death penalty cases, McCoy said. A dozen members of Cash's family planned to witness the execution from behind the tinted glass in the witness room of the death chamber.

There aren't enough chairs inside the Oklahoma State Penitentiary death chamber to hold all the people who want to see Gary Alan Walker die. Mothers, daughters, sons, grandchildren -- 30 people bound by Walker's 1984 murder spree and the loss of loved ones -- plan to witness the five-time killer's execution.

For 15 years, they've been lumped together -- their loved ones landing on Walker's list of victims apparently because of chance encounters with him. "I'd like to hear him admit that he done wrong. Maybe ask for forgiveness," said Doug Hilburn, who was 18 when his younger sister found their mother strangled in their home near Vinita. "I don't know whether I've forgiven him or not." Mothers, brothers and children of Walker's other victims could watch in an overflow room via closed-circuit TV.

Testimony in Walker's defense told of beatings as a child at the hands of his stepfather and of an incestuous relationship with his mother. But Doug Hilburn said a miserable childhood was no defense for Walker's actions. "I think there's a lot of good people out there that had bad childhoods," said Hilburn, adding that the death of his mother, Jayne, when he was 18 cost him direction in his own young life.

Several family members of victims said before the execution that they wished they could ask Walker why he killed their loved one. They said they had never seen him express remorse. "I'd like to hear him admit that he done wrong. Maybe ask for forgiveness," said Hilburn, whose younger sister found their mother strangled in their home near Vinita. "I don't know whether I've forgiven him or not." Several also were hopeful that viewing the execution would bring them peace. "I'm hoping it will close this long, long chapter of our lives," said Emilie Pearson, Shaw-Hartzell's mother.

Walker's execution ends what has been a long and often halting road to justice for the victims' family members. Pearson said that family members had toured death row. "You know. It didn't affect me," she said. "It was just a long hall with nothing to see." Pearson attended the execution with her husband, James, her daughter and her husband, Valerie's uncle and the family's pastor.

Pearson said that as she got closer to McAlester on Wednesday she began getting nervous that "surely nothing can happen now at this late date."

Edmondson apprised the victims' families of the legal status of Walker's case, he said. He expected no last-minute appeals. Asked about the mood among the other victims' family members as midnight grew nearer, Pearson said: "I think everyone is glad it has finally gotten here. It's taken too long."

She continued: "Everybody's hugging each other. We may not have met, but we know what each other's gone through." For herself, she said, she hopes the execution "will finally put an end to this 16-1/2 years of pain, grief and sadness. We'll never forget Valerie, and this certainly won't bring her back."


Death Penalty Institute of Oklahoma

Gary Walker - Executed January 13, 2000 Gary Alan Walker, 46, was executed by lethal injection at Oklahoma State Penitentiary shortly after midnight on Thursday, January 13, 2000. Walker, a Tulsa County death row inmate, was pronounced dead at 12:21am.

Walker was executed for the May 6, 1984 murder of Broken Arrow resident Eddie O. Cash, 63. Walker was also found guilty in the 1984 murder of Valerie Shaw-Hartzell, 25. In his second trial for Ms. Shaw-Hartzell, a Tulsa radio newswoman, he received a sentence of life without parole plus 500 years for kidnapping her.

Walker also confessed to the 1984 killings of Jane Hilburn of Vinita, Janet Jewell of Beggs, and Margaret Bell Lydick of Poteau. He was serving six life terms plus 700 years for those murders and other crimes.

Approximately 30 relatives of the victims' families watched the execution. Some watched via closed circuit television, while 12 of Cash's relatives were in the viewing area adjacent to the execution chamber.

Walker did not want his attorney, Gloyd McCoy, to witness the execution. He was afraid that it might traumatize McCoy to the point where he would not take other capital cases. Walker had his sister and a cousin as witnesses.

In a 1984 Tulsa World article, it was reported that police records indicate Walker had spent most of the time from 1977 to 1984 being shuttled between prisons and psychiatric facilities in two states.

While at Eastern State Hospital in Vinita, Oklahoma, he was diagnosed as a severe depressive who suffered from schizophrenia and paranoia. Walker also suffered from hallucinations and reported hearing his dead brother speak.

Walker did not seek a clemency hearing with the Oklahoma Pardon and Parole Board. To date, no death row inmate in modern times has received a vote in favor of clemency from the Board. (The Board consists of five members. At least three of these must vote for clemency in order for the Board to recommend clemency to the Governor. Even if the Board recommends clemency, the Governor may reject the recommendation.)

Walker was the 21st man executed by Oklahoma since the death penalty was reinstated in 1977. He was the second person to be executed by the state in 2000. Oklahoma Attorney General Drew Edmondson has predicted that Oklahoma may execute as many as 20 persons in 2000. Prayer vigils and protests were held across the state on the evening of January 12.


Walker's Death Date is January 13

By Chuck Ervin - Tulsa World

November 24, 1999

OKLAHOMA CITY -- Serial killer Gary Alan Walker is scheduled to be executed at the state penitentiary Jan. 13. The Oklahoma Court of Criminal Appeals set the execution date Tuesday after determining that Walker, 46, has exhausted his appeals. Walker murdered five people -- a man and four women -- during a 1984 spree in eastern Oklahoma.

He was convicted and sentenced to death for the murders of Eddie Cash, 63, of Broken Arrow and Tulsa radio reporter Valerie Shaw-Hartzell, 25. The Shaw-Hartzell conviction and sentence were remanded for retrial, which took place in 1991.

In the second trial, Walker received life without parole for killing Shaw-Hartzell and 500 years for kidnapping. He will die for Cash's murder. Walker also confessed to the 1984 murders of Jane Hilburn of Vinita, Janet Jewell of Tulsa and Margaret Bell Lydick of Poteau. He eventually received the death sentence.

Cash was on his way to visit relatives in Collinsville on May 6, 1984, when he gave a ride to Walker, a hitchhiker. Walker learned where Cash lived and went to the man's home that evening. He struck Cash in the head several times with a brick and strangled him with a vacuum cleaner cord.

Attorney General Drew Edmondson asked the court to set an execution date after the U.S. Supreme Court refused to hear Walker's final appeal.


The execution of Gary Alan Walker

By Bill Kelly -

The horrific 19-day spree, which claimed five lives in the Oklahoma area during the summer of 1984, began with the murder of Eddie Cash, a resident of Broken Arrow, near Sand Springs, abutting Tulsa.

It was Eddie’s misfortune to pick up an emotionally disturbed hitchhiker on May 7th, even inviting him into his home. When Eddie came home and found the hitchhiker ransacking his dwelling, there was a scuffle, and the thief opened Eddie’s skull in three places with a chimney brick.

To make sure, the crazed man took an electric cord from a vacuum cleaner, and closed the garrote around his throat. Eddie made a last bleating sound and was silent. When a curious neighbor didn’t see Eddie around anymore, she called the police.

Arriving officers found Eddie’s motionless corpse at the scene of blood and chaos. The neighbor said Eddie’s 1976 Dodge van was missing from its usual place in the driveway of his single-story house.

A systematic alert went out over the airwaves for Eddie’s vehicle. Subsequent police canvass would uncover people in the neighborhood who saw and heard strange things that night, but failed to report them.

Investigators immediately telephoned every person listed in Eddie’s personal directory he kept by the phone. But no one contacted by the homicide men had the slightest idea who would want to kill Eddie.

That night, shocked residents of Broken Arrow watched the late-night news on television that mentioned the brutal killing of this gentle humanitarian. Alarmists began calling police headquarters in droves. They wanted to know if a warped killer lived among them.

Meanwhile, Eddie’s killer drove his van to Heavner, keeping to all the back roads to avoid detection. He sold the van to a salvage yard. With a lump of money in his pocket, the killer hit the nearest highway and stuck out his thumb.

He was given a ride to Poteau by an incredibly lucky do-gooder. It was a long, lonely ride along Highway 24, twixt Benton and Vienna, and the motorist, unaware that his passenger was a raving lunatic, dropped him off at a roach-trap motel in Poteau.

That night, he freshened up and decided to spend a little of the money he got for selling Eddie’s van.

His first stop was Henry’s Bar, where he made the acquaintance of 36-year-old Margaret Bell. The pixyish young-looking beauty was dressed fetchingly in tight slacks that looked as though they had been put on with a spray gun.

At closing time, she offered him a ride home in her Cadillac. Once inside the car he pulled a long-bladed knife and forced her to drive him out of the vicinity. Before leaving the Paducah area, he raped her on the outskirts of Sharp and again in McCracken.

At knife point, the terrified girl was forced to drive him to Arkansas, then on to Tennessee, and finally to Kentucky.

In the crullest manner, he raped and sodomized her more times than they stopped for gas and snacks with her credit card. Margaret never returned to her job, and she never returned to her pleasant home in the suburb of Poteau, where she lived with her family.

Before the sun had come into complete view on the morning of May 8th, the news bulletin filled the airwaves and a frantic search for the enticing brunette was on. The County Sheriff’s Department trucked in bloodhounds to provide a comprehensive ground search.

In the beginning, police had been inclined to think Margaret had run off with the stranger who picked her up at the bar, but as the search gained momentum and no lead came to fruition, police were sure she had been abducted.

There had been vague rumors that Margaret would disappear for days at a time, then suddenly show up giving little or no explanation as to where she was or who she was with. How much of that was true, and how much was utter balderdash, no one had the foggiest. Police didn’t know it then, but the killer kept Margaret’s body in the Cadillac for nearly a week before he hid it in a hay stack.

The stench of the rotting corpse was nauseating, but he didn’t seem to mind. On the outskirts of Branson, the Cadillac breathed its last. It hissed and coughed and stopped dead at the side of the road. The killer struck his thumb out and got a ride back to Oklahoma, leaving Margaret’s Cadillac to be found by a cruising Missouri State Trooper.

At this point, the police had no reason to connect the crimes. There were reports of several attempted abductions by a man in a white Cadillac. A check was made with the National Crime Center in Washington, D.C., with a request for a review of the files for any similar crime or an abduction in which a white Cadillac had been used.

They received a negative answer. The next stop on the killer’s zigzag, cross-country sex-and-murder spree was Vinita, just off Route 44, betwixt the towns of Claremore and Miami.

Little did 35-year-old Jayne Hilburn suspect when she arose on the morning of May 14th, that she was about to become the latest statistic in what detectives would later call an "epidemic of homicide," a statistic following the pattern --- gullible people and trusting women who still believed in the old adage: Kindness, when it begins to take root, is a plant of rapid growth.

The stranger noticed a "For Sale" sign on Jayne’s handsomely manicured lawn on a peaceful cul-de-sac, and approached her while she was working in her flower-ringed garden.

Posing as a potential buyer, he struck up a conversation with her, explaining that he recently was transferred into the area by his company, and her house would be a perfect spot for him to settle. The anxious seller readily agreed to give the stranger a tour of the house.

Inside the house, the killer’s eight-day nightmare odyssey further unleashed. Jayne became victim number three. He unloaded a savage attack on the unsuspecting woman. He ripped off her clothes and dragged her to the bedroom where the striking red head was beaten and raped repeatedly. He strangled her until her sweetly expressive face turned blue.

With his pathetic victim dead on the floor, the killer rummaged through her house taking anything of value he could carry. He loaded the stolen goods into her shiny 1987 black Camero and barreled down Route 44, passing through Claremore and the tiny town of Catoosa on his way to Tulsa.

All that could genuinely be said at this point was that no one was positive of anything. There was no reason to link the crimes. Everything happened in different parts of the country.

Police continued to work on the homicides even as they coped with dissimilar homicides. In each case, they checked out suspects -- men suspected in a specific rape, and general suspects, reasonably balanced men who may have been involved in a burglary or car theft.

Investigators labored to match suspects with the crimes at hand in their separate communities, and to produce information on any one of three thousand lawbreakers whose names appeared even remotely as a possible suspect in each separate case.

Police were hoping against hope that the right man would be seized for a crime, a tipster would call in, an admission made, that would uncover a body. Each case had a favorite suspect. But none of them panned out.

The killer’s next victim miraculously survived. She was eighteen and beautiful enough to jump into the world of fashion modeling if she had lived in Hollywood instead of the remote town of Oakhurst, a cowberg of Tulsa. She left her Oakhurst country home on May 15th to go swimming, when a man in a black Camero pulled up to the curb and offered her a ride. She accepted.

The bushy-haired driver introduced himself as "Gary Edwards" and asked her if she ever thought about a modeling career. Most girls would jump at an opportunity to venture into the world of modeling, no matter how small a scale, but the Oakhurst girl became nervous. When she asked to be let out of the car, the soft-spoken driver pulled a knife and told her to mind her p’s and q’s if she wanted to live.

He drove her to the Keystone ramp, and ordered her to strip naked. When the newsboy delivered the morning papers in Oakhurst, breakfasting readers were not told the victim’s name, only that she had luckily escaped the clutches of a would-be rapist by jumping out of his car and stumbling to the road to summon help. Otherwise, she would have been his fourth victim.

On May 20, only five days after the girl escaped her would-be rapist on the Keystone ramp, the killer picked up a young boy and a girl hitchhiking in the oil field section of Hominy, a one horse town jointly connected by Route 20 and Interstate 99. He told the boy to consider himself lucky when he put him out in the boondocks far from civilization.

He warned the 17-year-old girl to cooperate or he would kill her. The last time the boy saw his girlfriend she was being driven towards Skiatook by an unshaven, bushy-haired man in a black Camero.

When the boy reported the incident, the scene in Hominy was like one from a suspense movie. County patrol cars and Oklahoma State Trooper vehicles probed the countryside with its vastly-strewn oil-wells, even as dusk gave way to darkness. Powerful searchlights from whirlybirds above probed the flatlands hoping to spot a black Camero heading toward Skiatook at high speed.

In Skiatook, the Camero became the object of a desperate search in which manhunters feared time was running out for the abducted Hominy resident. Members of the mammoth modern-day posse were fully aware that the welfare of the abducted teenage girl depended on quick police action.

For two days they pressed the massive search, each man filled with gut-fear and dread. Their search began at sunrise and when darkness fell, flashlight beams lit up the wilderness that engulfed Skiatook like hundreds of enormous fireflies.

FBI officers, as well as officers from nearby towns, knew that every minute counted, that, at the very least, the attractive hostage faced a terrifying ordeal and, in all likelihood, a barbarous death. While this was going on, the hostage was driven to a secluded spot on an Osage County oil property and ordered to take off her brassiere and panties.

He raped her repeatedly and forced her to give him oral sex at knife point. When he fell asleep she managed to flee the car and escape under the canopy of darkness. She made it to the highway and flagged down a trucker. The charitable trucker quickly covered the gravely mistreated girl with a blanket and took her to the sheriff’s office in the heart of the city.

Since the girl had escaped, the killer became well aware that the Camero would be on every "hot sheet" in Oklahoma, and might possibly be traced back to Jayne Hilburn, the strangled Vinita resident. He knew that every lawman in Oklahoma would be clambering to bring him in. So he left the Camero in the oil field and went looking for fresh wheels.

The tag on the Camero had been switched previously. He had swiped it from a car parked in Okmulgee County near US 75 and SH 16. Ironically, his next victim would be brutally murdered adjacent US 75 and SH 16.

Frustrated and in a nasty mood, the killer was walking down Fourth Street, at the corner of Peoria, on May 23, 1984, the day after the Camero was found, impounded, and examined for fingerprints. He noticed a stranded woman looking under the hood of her Dodge Dart. He offered to help and immediately recognized that the car was out of gas.

When he returned with a can of gas, they struck up a friendly conversation. Unaware that she was talking to a maniac, the woman explained in a matter-of-fact question-and-answer discussion that her name was Janet Jewell and she lived in Beggs. She was in Tulsa searching for a job. A divorcee, she had three children who were being watched by her boyfriend at his apartment in Tulsa while she went job hunting.

Janet was a pretty 32-year-old dish-water blonde who was bubbling over with energy. She was planning to be married in August, and was hoping to find work before then. Once the gas was in the car, the stranger told Janet to "start ‘er up." As she did so, he managed to slide beside her in the driver’s seat. Suddenly, the 30-year-old fugitive pulled a long-bladed knife and kidnapped her in broad daylight in downtown Tulsa.

In a later confession, the killer said he drove Janet through Bristow to SH 16. They stopped at a Git-in-Go where he forced her to purchase potato chips and drinks with what little money she had. Leaving there, with Janet at the wheel, they drove over by Slick where he tied her hands with a coax cord and raped her several times.

They were both asleep when an oil pumper happened by and told them they would have to leave the area because it was private property. The oil pumper later told police they were both naked and passed out. He couldn’t see that her hands were tied behind her back because the man was on top of her.

They left Slick and the terrified woman was forced to drive to several rural locations in Creek and Okmulgee county where her passenger was suddenly gripped by a fierce compulsion to have sex with her. His perverse lust satisfied, he tied her hands to the steering wheel and they both fell asleep. At dawn, in a fit of lunacy, he repeatedly raped and sodomized her.

Reasoning that her attacker might want to rape her again, Janet pleaded: "I’ll do whatever you want -- only don’t kill me for the sake of my three children. " In the next instance, he killed her calculatedly and in cold blood. He took a piece of the cord and wrapped it around her neck, cutting off her air supply.

He drove his fourth victim down the highway and exited at a dirt road that led to a small, trickling Okmulgee County creek 1.8 miles east of Beggs. He tossed her limp body into the creek, then ate the remainder of the potato chips as he watch her body sink into its watery grave.

The enigma surrounding the missing Beggs woman’s disappearance thickened as days went by. The rationale was that she had been intercepted on her way home from job hunting. It was obvious that she was a captive of foul play and that her abductor had an excellent head start on his pursuers. Lawmen had to wrestle with the possibility that Janet Jewell was already dead. Which she was.

With every law enforcement agency in Oklahoma looking for Jewell’s Dodge, her killer, unnerved by the whole business, evaded pursuit by steering clear of police blockades.

On May 24th he eased the pilfered Dodge into a parking lot of Tulsa’s Towne West Shopping Center. Ironically, he parked in front of a sign warning potential car thieves that they were being watched. He sat for hours, looking for the right victim to emerge from a grocery store.

It may have been one of those supreme ironies of history that cost KRAV radio news reporter Valarie Shaw-Hartzell her life. One of Tulsa’s favorite newscasters, she had already done her shopping for the week, but she had forgotten diapers for her baby. Had she not forgotten to add diapers to her grocery list, she might be alive today. It was just that, an innocent, ill-fated error that cost her life.

Emerging from the grocery store with diapers in her hand, Valarie was completely unaware that she was being watched by a brutal psychopath. She was alone, and pitifully vulnerable. No sackers accompanied her. So he decided on her as his fifth victim.

Valarie saw him as she approached her pickup truck, but she was unconcerned for her safety because he was fumbling with keys to unlock the truck of his car. When she unlocked the door of her pickup and opened it, she felt a knife in her back. He warned her not to make a sound or she would never see her baby again. He forced her into her vehicle and slipped in beside her.

They drove right by two Tulsa prowl cars parked directly opposite from where she was abducted. The knife-wielding kidnapper chuckled and made a remark about them being the Keystone Cops of the old Max Sennett movies. When Valarie failed to return home with the diapers, police were notified and the hunt was on. Lawmen hoped by showing her face on television that it would lead to a speedy conclusion. They were wrong however.

The family photograph of Valarie resulted in several phone calls from people who saw her at two different drive-up banks in the company of a gruffly-looking man. It looked as though she was trying to cash a personal check. Later inquires proved she was unsuccessful in her first attempt to withdraw $500. At the second bank she withdrew $500 -- and vanished.

The macadam was slick from a downpour of rain, so they stayed overnight on a rural road on the outskirts of Kelleyville, off Route 11, east of Newport. About a hundred feet off the road, there, in the pitch darkness, with torrents of rain beating down on Valarie’s pickup, he raped and sodomized her.

The following morning, under a charcoal grey sky, he laid her in the back of the pickup and raped her twice more, while she brokenly begged to be taken home to her children. After an exhausting night, he forced her to write a $650 check on her account. Praying to herself that her abductor would not kill her, Valarie drove him to a Tulsa drive-thru bank in an attempt to cash the check.

The first teller refused to cash the check because it was above the drive-thru limit of $500. Undeterred, the kidnapper compelled her to drive to another bank where the $650 check was accepted. Now $650 richer, Valarie’s kidnapper made her drive him to Claremore. They arrived on May 25th.

Officers who swept over the area quizzing people at Tulsa’s Towne West Shopping Center, learned that there had been several sightings of a man who abandoned his car in the shopping center and left with a woman in a tan pickup. Two witnesses said the woman appeared to be in an emotional state.

One witness said they appeared to be headed east, in the direction of Chandlers Mills. The search was concentrated in that country in addition to Newport, with teams of sheriff’s deputies and detectives staked out in various homes of Valarie’s relatives, in case they received a ransom call from her abductor.

Nobody had to tell residents of Kelleyville to keep their doors locked and take precautions to protect themselves should the bearded, long-haired suspect try to get into their dwellings. All Kelleyville cowed behind bolted doors.

Probably because the victim was a well-known celebrity of sort, law officers and horsebackers regrouped in the morning to search the rock-strewn, plant-thorny territory too rugged for motor vehicles. Resuming their plodding across barren wastelands, under a heat that was almost unbearable, they searched well into darkness for a man who was intent on evading the posse, and his horrified captive.

In a later confession, the killer said he heard sounds of the intensifying search. He had to act fast to stay one jump ahead of his pursuers. The sun poked through the clouds just in time to spotlight Valerie’s last seconds on earth. He cut strips of a towel into stringy pieces and closed his garrote around her throat. Valarie realized his intent and before the last pull of the thong, she reminded him that she had three children and for God’s sake think of them...

But like all unholy serial killers Valerie’s rapist would not allow himself to be preoccupied by stimulated mouthings or maudlin empathy. He tossed his garrote about her skinny neck and choked off a final gurgling plea for mercy.

As darkness descended, the fugitive decided to go on a drinking spree. Still driving Valerie’s pickup truck, he frequented bars from Claremore to Tulsa. The more he drank the more he became a time-bomb of lust and smoldering violence set ready to explode in murder.

Unfortunately for the killer, he drove the pickup to Vinita, the area of Jayne Hilburn’s abduction and murder. He kidnapped a young woman and held her hostage for a couple of days, raping her at will.

The kidnapper later said the girl was nice to him, even after he sodomized her and treachedly raped her. So he drove her back to her own neighborhood on May 27, kissed her good-bye, and set her free.

After being released by her rapist, the girl telephoned the police and reported the incident. The sleuths realized the gravity of the situation when the description of the rapist’s pickup truck matched the description of the missing radio newscaster’s vehicle.

Police had already issued local, state and nationwide bulletins, putting a "stop" on Valerie Shaw-Hartzell’s pickup and its occupants.

The vehicle was hotter than firecrackers, so he drove down Route 50 through Lost Mountain until he got to Heavner. There, he met a fellow in a bar who was willing to trade him a Western-style .22-caliber handgun for the pickup. He thumbed a ride to Van Buren, Arkansas, where he used the gun to hold up a grocery clerk. But the female clerk panicked and ran out the door screaming.

The gunman ran the other way, empty-handed. He went back to his motel where he was registered under the unlikely name of "Dana Boy Ray." Instead of going to his room, he forced two employees into the female’s car and told her to drive. Away from the motel, he made her stop so he could drive. Seizing an opportunity that may have saved their lives, both the male and the female fled as he was sliding behind the wheel.

He drove the car into a field and abandoned it. He walked across a field to a mobile home. No one was about, so he broke in. Two women came home unexpectedly and caught him burglarizing the place. At gunpoint, he forced them outside and into their car. The younger woman pleaded not to go because she was five-months pregnant. He promised not to harm them if they behaved themselves.

They stopped at a restaurant near Claremore because they were all hungry. None of them had any money so he pawned the gun. After a hearty lunch he gave the women some money and dropped them off in Tulsa. They promised to give him a one-hour head start before calling the police. Thankful that he spared their lives, they complied. "He kissed us on the cheek, and said good-bye," the women said.

Had the carnage stopped? A break in the case came on May 28, when agents of the Oklahoma State Bureau of Investigation announced at a press conference that fingerprints lifted by expert technicians recovered from Jayne Hilburn’s abandoned Camero belonged to an ex-con named Gary Alan Walker. With further probing, a clearer picture emerged of the individual sought.

Prior to setting out on a spree that would compile an album of raped and strangled lovelies, Walker managed to run up a record of convictions over a span of fifteen years. He was imprisoned for housebreaking, carjacking, narcotics abuse and carrying a concealed weapon. He hadn’t spent a full year away from confinement since he was seventeen years old.

While housed in the Oklahoma state prison system, between 1977 and 1980, Walker was detained at the state hospital at Vinita for the mentally unbalanced on three separate occasions. His life was a tanglement of therapy, stimulants, and electric shock treatments. Imprisoned in 1984 on charges of prison escape and attacking a fellow inmate, he spent the final six months of his prison term at the Federal Medical Facility in Springfield, Missouri.

A psychiatric report diagnosed him as being paranoid and schizophrenic. A danger to society. Regardless, he was paroled. This is the man police now suspected of a string of murders and rapes across the state. On May 29th, prison mug shots of Walker were shown to the surviving victims from Oakhurst, Vinita and Skiatook. It was him, they said, and the dragnet was on.

On May 30th, two young girls were abducted in Van Buren, Arkansas, an area of friendly people where murders were nil and rape a virtual stranger. They were watching television when a madman wielding a knife crashed through the door and forced them outside and into their car.

He told the girl at the wheel to find a deserted road, that he intended to have sex with them both. When she stopped the car, they broke loose and flagged down a passing farmer. Walker floorboarded the car and vanished in a cloud of dust. Taken to police headquarters, the girls identified their abductor as Gary Alan Walker from a photo display.

The streets were quiet in Van Buren when Walker crashed through the front door of another home threatening to kill the occupants if they didn’t hand over the keys to their car. At police headquarters they identified the car thief as Walker from mug shots. Shortly after that, in Tulsa, investigator’s traced Walker to a run-down mobile home and he was captured as he was drinking beer with two neighborhood men.

At police headquarters, his great weakness was his braggadocio. He obligingly directed investigators to the bodies of the missing victims. Janet Jewell’s skeletonized corpse was unearthed near Beggs, Valerie Shaw-Hartzell’s decomposing corpse was uncovered near Claremore. Margaret Bell’s disturbingly rotted cadaver was found in an abandoned barn beneath a haystack, near Princeton, Kentucky.

On November 14, 1984, a jury numb with shock convicted Walker of killing Broken Arrow resident Eddie Cash. The same jury sentenced him to die.

At 12:20 a.m, Thursday, January 13, 2000, four minutes after receiving an injection of fatal chemicals, Walker died at McAlester Prison. His parting words to his victim’s relatives were: "I’m sorry for what I’ve done. I hope when I go the hate you have, and it’s natural for you to hate me, that you would let it go with me."

At the pronouncement of his death, clapping came from the chamber where family members of his victim’s witnessed his demise. With Walker’s death, the curtain came down on the battle between good and evil -- good’s triumphant over evil finally 15 years after the most horrifying murder spree to ever chill the bones of Oklahomans.


Oklahoma execution

Tulsa World

January 13, 2000

Gary Alan Walker, whose 1984 killing spree left 5 victims' families grappling with more than 15 years of grief and unrest, paid the ultimate price with his own life shortly after midnight Thursday. Walker was given lethal injections at the Oklahoma State Penitentiary for the May 6, 1984, death of Eddie O. Cash, 63, of Broken Arrow.

The Cash family, consisting of 2 sons, their wives, 1 daughter and her husband, and 4 grandsons and 2 of their wives watched through a large window in a room adjacent to the execution chamber. The room seats only 12 people.

Family members of the other 4 victims' -- Tulsa newswoman Valerie Shaw-Hartzell, 25; Margaret Bell Lydick, 37, of Poteau; Jane Hilburn, 35, of Vinita; and Janet Jewell, 32, of Beggs -- watched on closed- circuit television as Walker, strapped to a gurney, was given the injections. Witnessing on Walker's behalf were a cousin who raised him and a sister, according to Oklahoma Attorney General Drew Edmondson.

Walker was found guilty Nov. 14, 1984, of killing Cash by striking him several times in the head with a brick before strangling him with a vacuum cleaner cord. Cash had given Walker, who was hitchhiking, a ride to Owasso earlier in the day while he was on his way to Collinsville. Walker later went to Cash's Broken Arrow home with the intent of burglarizing it.

Walker's execution ends what has been a long and often halting road to justice for the victims' family members. Emilie Pearson, Shaw-Hartzell's mother, said before the execution that family members had toured death row. "You know. It didn't affect me," she said. "It was just a long hall with nothing to see." Pearson attended the execution with her husband, James, her daughter and her husband, Valerie's uncle and the family's pastor.

Pearson said that as she got closer to McAlester on Wednesday she began getting nervous that "surely nothing can happen now at this late date." Edmondson apprised the victims' families of the legal status of Walker's case, he said. He expected no last-minute appeals.

Asked about the mood among the other victims' family members as midnight grew nearer, Pearson said: "I think everyone is glad it has finally gotten here. It's taken too long." She continued: "Everybody's hugging each other. We may not have met, but we know what each other's gone through." For herself, she said, she hopes the execution "will finally put an end to this 16-1/2 years of pain, grief and sadness. We'll never forget Valerie, and this certainly won't bring her back." Eileen Stephens, Shaw-Hartzell's cousin, defined the execution as "the end to the ultimate battle of good and evil -- good triumphant over evil finally 15 years later."

"The death penalty is the ultimate protection for the-law abiding citizens of our society from murderous and violent criminals," Stephens said. She suggested that instead of protesting the death penalty, "we need to use our energies to prevent child neglect and abuse and promote better mental health care for all our citizens." Cash's family members also expressed their feelings about death penalty protesters. Dorna Cash, the wife of Eddie Cash's grandson, Lewis Cash, said, "The protesters of the Walker execution should be given the chance to be scared to death and tortured and bought near to death by strangulation, then right before death be allowed to live. Then see if they still feel the same way." James Crane, another of Cash's grandsons, said, "I don't know if killing Walker is right or wrong, justice or vengeance. All I know is that he will never kill anyone ever again."

Tulsa County Sheriff Stanley Glanz, who also attended the execution, said Walker "admitted to killing all 5 people on the Saturday evening he was arrested." He remembered a sleep-deprived Walker being almost relieved to talk about the crimes, he said. Glanz, chief detective for the Tulsa Police Department at the time, said that on the day after Walker's arrest Walker led Glanz and other officers to Shaw-Hartzell's and Jewell's bodies. Aside from the death penalty, Walker ultimately received 5 life terms and 530 years in prison for other crimes committed in 1984.

The death sentence Walker received June 1, 1985, for the strangulation death of Shaw-Hartzell was overturned on appeal. Walker pleaded guilty in a subsequent retrial and received life without parole and 500 years for kidnapping.

But Edmondson said the death penalty is more than appropriate for this case. The fact that 31 family members attended the execution "symbolizes the devastation" Walker's killing spree brought to this state that cost the lives of 5 people," he said. Walker continues to pose a threat to society, Edmondson said, a fact that's substantiated "through his own words and confessions."

Walker said during the retrial for Shaw-Hartzell's death that if he were free he would kill again. Shaw-Hartzell's sister, Vicki Chiavetta, said it's taken far too long for justice to be served. She said she didn't know if justice or Walker's death will "bring any peace to my heart, but I hope it does."

Edmondson said that while the families of Walker's 5 murder victims have endured a "15-year- search for justice," a 1995 change in the law to expedite the appeals process will possibly cut the appeals time for new death penalty cases to approximately 7 years. However, it will have little to no affect on cases filed prior to the change.

Walker becomes the 2nd condemned inmate to be put to death this year in Oklahoma and the 21st overall since the state resumed executions in 1990. Walker also becomes the 5th condemned inmate to be put to death this year in the USA and the 603rd overal since America resumed capital punishment on Jan. 17, 1977.


The Wacky World of Murder

"I'm sorry I killed five people, okay?"

Before acquiring a taste for rape and murder Gary Walker had a record with the police spanning fifteen years. He had been in trouble for almost everything.

He had also been a regular patient in mental institutions. While in a nut house on one occasion a doctor wrote that he believed that Walker was trying "to hide from law enforcement officers." In 1984 Walker was diagnosed as paranoid and schizophrenic. He believed that his dead brother was 'speaking to him'.

Despite this he was given parole on February 7, 1984.

On May 7, 1984, Eddie Cash, 63, was found dead at his home. He had been beaten to death with a brick and also had an electrical cord from his vacuum cleaner wrapped around his neck. His van was also stolen.

The next day Margaret Bell, 36, was reported missing. Her car was also missing, but police had no reason to connect the two cases at that time.

One week later on May 14, Jayne Hilburn, 35, was found strangled in her house.

Her car had also been stolen. It was a black Camaro. The next day a young woman was picked up by a man calling himself "Gary Edwards". He pulled out a knife and attempted to rape the woman, but luckily for her she got away unharmed. The police now had a description.

Five days later a 17-year-old was abducted by a similar man. This girl wasn't quite as lucky though. She was rather violently raped at knife point, but somehow managed to escape to give police another description. On May 22 the Camaro was found abandoned.

On May 23 Janet Jewell, 32, disappeared after leaving her home job hunting.

The next day a local radio newscaster, Valerie Shaw-Hartzell went missing. She was seen twice on May 25, both times attempting to cash personal checks. She was accompanied by an unidentified man. She wasn't seen again, but her car seemed to came in handy.

On May 26 another young woman was kidnapped at knife point. She was released later in the day, but not before she'd been raped. She gave a description of the driver and car, and it was traced to a local motel where the suspect was booked in as "Dana Ray". Luckily for Walker he had left before police arrived.

But Walkers luck ran out on May 28 when his fingerprints turned up at crime scenes and his mug shot had been picked out by two of the survivors. The next day Walker went bezerk. He invaded a home and abducted two girls at knife point, taking them on a twenty minute 'joy ride' in yet another new car. Again Walker let the kids escape, and before he had a chance to rape them no less.

They identified Walker as there abductor.

On June 2 Walker barged into another home, holding the tenants at gunpoint before taking their car. He left them unharmed and within hours they had identified Walker as their attacker. At 10:45pm that night Walker was finally arrested. Oddly he was with two other men, and they seemed ready to attack yet another home.

It didn't take long for Gary Walker to confess to his crimes. He even tried to get sympathy from his interrogators. Over the next six days Walker led the police to the missing victims bodies.

In 1985 Walker was convicted of 5 counts of murder and was sentenced to a minimum of 25 years.


"I haven't spent a full year out of jail since I was seventeen years old."

You almost feel sorry for the cry-baby don't you?

In 1986 a woman was found murdered in Oklahoma. She was found nude except for the stockings and bra that were wrapped tight around her throat. The last person seen with the victim was Marshall Cummings jr., one of the men with Walker when he was arrested. He eventually pled guilty to second degree murder and was sentenced to 25 years.


Walker, Gary Alan

Prior to embarkation on a spree of rape and murder, Gary Walker managed to compile a record of convictions spanning fifteen years, with charges that included auto theft, burglary, narcotics abuse and firearms violations. 

As Walker described his own life, "I haven't spent a full year out of jail since I was seventeen years old." Nor was he any stranger to mental institutions. While confined in the Oklahoma state prison, between 1977 and 1980, Walker was sent to the state hospital at Vinita on three occasions.

One psychiatric report indicates that he sometimes entered mental health facilities "to hide from law enforcement officers." Along the way, Walker had sampled therapy, drugs, and electric shock treatments. Released from a federal lockup on February 7, 1984, on charges of prison escape and firearms violations, Gary had spent the final months of his term at the Federal Medical Facility in Springfield, Missouri. According to the staff, Walker's dead brother had been "speaking" to him; diagnosed as paranoid and schizophrenic, he was still eligible for parole.

On May 7, 1984, Eddie Cash, age 63, was found dead at his home in Broken Arrow, Oklahoma, a suburb of Tulsa. His van was missing when the body was discovered, bludgeoned with a brick, the electric cord from a vacuum cleaner wrapped around his neck. 

That evening, 36-year-old Margaret Bell vanished, with her car, from a Porteau, Oklahoma, tavern. She was reported missing on May 8, but police had no reason to connect the crimes, so far. On May 14, Jayne Hilburn, 35, was strangled in her home at Vinita, forty-five miles Northeast of Tulsa; her classic black Camaro was reported stolen from the scene. Next day, a young woman in Oakhurst -- a Tulsa suburb -- accepted a ride from the bushy-haired driver of a black Camaro. He introduced himself as "Gary Edwards" before pulling a knife and demanding that she shed her pants. 

The woman managed to escape unharmed, and told her story to police. Five days later, in Skiatook, another Tulsa suburb, the same man abducted a 17-year-old girl, raping her at knifepoint before she scrambled free of his Camaro. The car was found abandoned on May 22, indicating that the killer rapist might be searching for another set of wheels. 

On May 23, 32-year-old Janet Jewell disappeared near Beggs, Oklahoma, en route to a job-hunting expedition in Tulsa. The next afternoon, Valerie Shaw-Hartzell, newscaster for a Tulsa radio station, vanished -- along with her pickup truck -- in the midst of her weekly shopping. 

On May 25, she was sighted at two different drive-up banks, in the company of an unidentified man, as she tried to cash personal checks. Unsuccessful in her first attempt, she obtained $500 at the second stop -- and then vanished. 

On May 26, a young woman was kidnapped at knifepoint from a bar in Vinita, the scene of Jayne Hilburn's murder. After being raped, she was released by her abductor and reported the crime to police. Her description of the rapist's pickup matched the missing radio announcer's vehicle, and its new driver was belatedly traced to a local motel, where he had registered as "Dana Ray." 

The case "broke" on May 28, when agents of the Oklahoma State Bureau of Investigation announced that fingerprints recovered from Jayne Hilburn's Camaro had been positively identified. They belonged to ex-convict Gary Walker, now suspected in a string of violent crimes around the state. 

On May 29, surviving victims from Oakhurst, Skiatook, and Vinita chimed in with identifications of Walker's prison mug shots, and the hunt was on. The next day, in Van Buren, Arkansas, a knife-wielding "madman" invaded a home and abducted two girls, taking them on a wild twenty-minute ride in their own car. He talked incessantly about the urgent need of finding "a deserted road," but the hostages escaped before he found a likely killing ground. 

On May 31, the girls identified Gary Walker as their abductor. On the morning of June 2, Walker barged into another Van Buren home, threatening the female tenants with a pistol and escaping in their car. By noon, they had identified his photograph, and new alerts were issued in the Tulsa area, as homicide investigators braced themselves for Walker's possible return. That evening, a tip led officers to stake out a shabby mobile home, and Walker was captured at 10:45 p.m., approaching the trailer with two other men. 

In custody, the transient slayer launched his marathon confession with a feeble plea for sympathy: "I'm sorry I killed five people, okay?" Over the next six days, Walker directed police to the bodies of missing victims Janet Jewell (near Beggs), Valerie Shaw-Hartzell (near Claremore, east of Tulsa), and Margaret Bell (in an old barn near Princeton, Kentucky). 

In 1985, Walker was convicted on five counts of murder and sentenced to die. (An eerie reminder of Walker's case returned to haunt Oklahoma lawmen in 1986. 

On June 6, the lifeless body of Deronda Roy, age 24, was recovered from a rainswept forest between Claremore and Tulsa. Nude, except for stockings and the bra that had been used as a garrote, her corpse was bruised and marked with burns inflicted by a cigarette. 

The victim's last known companion had been Marshall Cummings, Jr., an ex-convict and one of the men arrested with Gary Walker on June 2, 1984. In early 1987, Cummings pled guilty to second-degree murder and was sentenced to 25 years in prison.)

Michael Newton - An Encyclopedia of Modern Serial Killers - Hunting Humans



Walker v. State, 723 P.2d 273 (Okl.Cr. 1986) (Direct Appeal-Cash).

The appellant, Gary Alan Walker, a/k/a Gary Alan Edwards, was charged in the District Court of Tulsa County, Case No. CRF-84-2088, with the offense of Murder in the First Degree. He was convicted by a jury, and punishment was assessed at death by lethal drug injection. Judgment and sentence was imposed in accordance with the jury's verdict. We affirm.

On May 8, 1984, Pricilla Crane discovered the body of her father, Eddie Cash, dead on the livingroom floor of his Broken Arrow home. A crime scene investigation revealed several lacerations on Mr. Cash's head, and the cord to a vacuum cleaner tied tightly around his neck. A brick covered with blood was found on a coffee table near the body. An autopsy revealed that Mr. Cash died from multiple blunt force injuries to the head, and ligature strangulation. The head injuries were consistent with those which might be inflicted with a brick.

Police investigation of the crime resulted in the arrest of the appellant. Following his arrest, the appellant gave a detailed confession to the police. He stated that he had met Mr. Cash on May 6, 1984, when Mr. Cash gave him a ride to Owasso.

During the trip to Owasso, the appellant decided to go to Mr. Cash's home and burglarize it. Mr. Cash had informed the appellant that he lived in Broken Arrow. After obtaining Mr. Cash's address by calling directory assistance, the appellant went to the residence. As the appellant stood on the front porch and knocked on the door to make sure no one was home, Mr. Cash pulled into his driveway. Appellant ran, fearing that Mr. Cash would call the police.

Appellant discovered a brick at the side of the residence, and returned to the front door. He knocked on the door, gained entry to the house, and killed Mr. Cash with the brick and vacuum cleaner cord. Appellant took several items from Mr. Cash's residence, including the victim's van and shoes. The van was later recovered by the Oklahoma State Bureau of Investigation. Appellant told Detective James L.R. Brown of the Tulsa Police Department that "I knew what I was doing, but I don't know why ... I know right from wrong. I don't know why I did it, but I know I did do it."

Appellant raised the insanity defense. He produced the testimony of several witnesses alleging abuse he suffered at the hands of his step-father, Otis Walker, psychological trauma resulting from the recent death of his brother, his various prior convictions, and his past record of mental illness. Dr. Thomas Goodman, a psychiatrist, concluded that, although the appellant had the ability to know right from wrong at the time of the killing, the appellant believed Mr. Cash to be his step-father, and that it was not wrong to kill him.

At the second stage of trial, the State alleged the existence of two aggravating circumstances in support of the death sentence, to wit: (1) that the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution, and (2) the existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. 21 O.S.1981, § 701.12(5) and (7). The State produced evidence that, at the time of this homicide, the appellant had committed three other murders. It also produced a statement by the appellant that he would kill again. The jury found only the second aggravating circumstance, but assessed the death penalty.


Walker v. State, 795 P.2d 1064 (Okl.Cr. 1990) (Direct Appeal-Hartzell).

Appellant, Gary Alan Walker, was found guilty of Murder in the First Degree (Count I) in violation of 21 O.S.Supp.1982 § 701.7 and Kidnapping (Count II) in violation of 21 O.S.1981, § 745 after Former Conviction of a Felony, in Rogers County District Court, Case No. CRF-84-108. The jury found appellant guilty on both counts. Upon the jury's finding that aggravating circumstances existed, appellant was sentenced to death on Count I. He was sentenced to one hundred and ten (110) years imprisonment on Count II. From this judgement and sentence the appellant has perfected his appeal to this Court. The jury found that two aggravating circumstances existed: 1) The murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution, and 2) the defendant presented a continuing threat to society.

On the evening of May 24, 1984, Valerie Shaw-Hartzell was accosted by appellant in a shopping center parking lot. Her body was later found in a rural area near Claremore in Rogers County.

Appellant was subsequently arrested in Tulsa County by Tulsa municipal police at about 11:00 p.m. on June 2, 1984. His first interrogation occurred from about 1:00--1:50 a.m. on June 3, 1984. Prior to this interrogation, appellant was read his Miranda rights. He specifically indicated that he did not want a lawyer. During this interrogation, he confessed to having abducted and killed Ms. Hartzell. He also told the Tulsa County authorities that he would talk to them again the next morning and take them to the location of Ms. Hartzell's body.

The following morning at 9:00 a.m., appellant was checked out of the Tulsa County Jail for further interrogation. Once again, he was advised of his Miranda rights and he declined to request an attorney. As agreed, appellant proceeded to take the Tulsa police to the body. Because the body was near Claremore in Rogers County, authorities from Rogers County accompanied them to the location. Appellant was subsequently returned to the Tulsa County Jail.

On June 6, 1984, a Tulsa County Public Defender, Pete Silva, was appointed to represent the appellant. He counseled the appellant for approximately an hour and a half on June 6 and for two hours on June 7. Mr. Silva testified that he informed the appellant that he would be present at any future interviews with the authorities and that the appellant would be warned of any attempts to move him. Mr. Silva also testified that he had made an agreement with Mr. Gillard, the Assistant District Attorney in Tulsa County, to the effect that appellant would have counsel present before any further questioning. On June 7, Mr. Silva represented appellant in an arraignment in Tulsa County on an information alleging three counts of First Degree Murder. One of these was for the murder of Ms. Hartzell.

Shortly after the arraignment, after he had been taken back to the Tulsa County Jail, appellant was informed by the authorities that he was going to be moved to Rogers County. At that time, appellant asked to see his attorney. An attempt was made to call Mr. Silva, but he could not be located. Appellant was then moved to Rogers County without having been afforded the opportunity to speak with his attorney.

On the morning of June 8, 1984, appellant was taken into the Rogers County Sheriff's office where video equipment was already set up. He was advised of his Miranda rights and did not request that his lawyer be present. He signed a waiver to that effect. Appellant was then asked questions concerning the murder of Ms. Hartzell. He responded by giving a full confession. This confession was recorded on video tape and was subsequently shown to the jury.


167 F.3d 1339

Gary Alan Walker, Petitioner-Appellant,
Attorney General for the State of Oklahoma; Ron Ward, Respondents-Appellees.

Docket number: 97-5244

Federal Circuits, 10th Cir.

February 22, 1999

Before SEYMOUR, Chief Judge, LUCERO and MURPHY, Circuit Judges.

SEYMOUR, Chief Judge.

Gary Alan Walker was convicted of first degree murder in Tulsa County, Oklahoma, and sentenced to death. After exhausting his state court remedies, he filed this petition for federal habeas corpus relief pursuant to 28 U.S.C. 2254, alleging that his conviction and death sentence are constitutionally infirm in several respects. The district court denied relief and Mr. Walker appeals, asserting that: (1) his state court competency proceedings were unconstitutional; (2) he was denied due process and equal protection when the state refused to provide funds for neurological testing; (3) he was denied a fair trial because the trial judge refused to instruct on lesser included offenses; and (4) the "continuing threat" aggravating circumstance, which is the only one supporting his death sentence, is unconstitutional on its face and as applied. We grant Mr. Walker's motion for a certificate of probable cause and affirm.1

The facts underlying Mr. Walker's conviction are undisputed. The body of the victim, Eddie Cash, was discovered on the floor of his home. He had been beaten on the head with a brick and strangled with a vacuum cleaner cord. Mr. Walker was arrested for the crime and gave a detailed confession.

He stated to police that he met Mr. Cash when he was hitchhiking and Mr. Cash gave him a ride. During the trip, Mr. Walker decided to burglarize Mr. Cash's home and learned that he lived in Broken Arrow, Oklahoma. Mr. Walker subsequently obtained Mr. Cash's address and went to the residence. As Mr. Walker stood on the front porch and knocked on the door to make sure no one was home, Mr. Cash pulled into his driveway. Fearing Mr. Cash would call the police, Mr. Walker ran around to the side of the home and picked up a brick. He returned to the front door, knocked, went inside, and killed Mr. Cash. Mr. Walker then took several items from the residence, including Mr. Cash's shoes and his van.

Mr. Walker did not deny the above events at trial, instead presenting evidence in support of an insanity defense. The state court record reveals that Mr. Walker suffered severe physical and sexual abuse as a child. He was repeatedly beaten by his step-father and at one point was threatened by him with a rifle. His mother had a succession of men in the home, and when Mr. Walker was ten to twelve years old she engaged in sexual relations with him, as well as with his friends. He did poorly in school, and at age thirteen the school referred him to Children's Medical Hospital. Mr. Walker stayed there three months and was thoroughly evaluated. He was diagnosed at that time with a personality disorder, and with poor control over his behavior, impulses, and emotions.

Although the Hospital recommended that Mr. Walker be placed outside the home, his parents refused. At age fourteen he was convicted for the first time in the juvenile justice system for car theft, and at age nineteen he was hospitalized at Eastern State Mental Hospital. In the following years, Mr. Walker was hospitalized there eight times for lengthy periods and was diagnosed as having a severe psychiatric disorder of a schizophrenic type. He was given anti-psychotic medications and a course of twenty electroconvulsive shock treatments. During this period, Mr. Walker was also convicted of several non-violent offenses and was hospitalized while in prison at least four times for mental problems. He was ultimately rediagnosed with bipolar disorder and treated with lithium.

Prior to trial, Mr. Walker's attorney made a request for a competency determination and Mr. Walker was examined by Samuel J. Sherman, Ph.D., who determined that Mr. Walker was competent at the time of examination. Dr. Sherman cautioned that he had not been provided with the records of Mr. Walker's prior hospitalizations, that Mr. Walker's refusal to continue his lithium treatment could affect his future competency, and that Mr. Walker should be given a complete evaluation. Nonetheless, no post-evaluation competency hearing was conducted before trial as required by then-applicable state law. See Okla. Stat. tit. 22, § 1175.4 (1981).2

Dr. Thomas Goodman, a psychiatrist, testified at trial in support of Mr. Walker's insanity defense. In addition to reviewing Mr. Walker's medical records, Dr. Goodman had conducted a series of examinations of Mr. Walker in five one-hour sessions, and in one two-hour session while Mr. Walker was under the influence of sodium amytal. Dr. Goodman expressed the opinion that although at the time of the killing Mr. Walker probably knew right from wrong, his perception of the person he was killing was so distorted that he believed the victim was his step-father. Dr. Goodman further testified that in his opinion Mr. Walker did not believe killing his step-father was wrong. The jury rejected Mr. Walker's insanity defense, convicted him of first degree murder, and sentenced him to death.



Although the issues of Mr. Walker's competency to stand trial and the failure to hold a pre-trial competency hearing were not raised on direct appeal, Mr. Walker subsequently raised the matters in an application for state post-conviction relief. The state district court determined that a retrospective post-evaluation competency hearing was feasible, and held a hearing in 1988 at which the court found that Mr. Walker was competent at the time of his trial in 1984. In making this determination, the court held that Mr. Walker had failed to overcome the presumption of competency by clear and convincing evidence.

The state district court denied Mr. Walker's petition for state post-conviction relief and Mr. Walker appealed, contending inter alia that the retrospective competency hearing was inadequate both constitutionally and as a matter of state law to cure the failure to hold a hearing pretrial. Mr. Walker also asserted the evidence was insufficient to show either that a retrospective competency determination was feasible or that he was in fact competent at the time of trial. The Oklahoma Court of Criminal Appeals rejected these arguments. In considering Mr. Walker's assertion that the evidence was insufficient to show his competency, the Court ruled that he had failed to meet the burden of proof set out by Okla. Stat. tit. 22, § 1175.4(B) (1981), which required a defendant to establish incompetency by clear and convincing evidence. See Walker v. State, 826 P.2d 1002, 1005 (Okla.Crim.App.1992).

Mr. Walker argues that the competency proceedings held in state court were constitutionally defective in two regards. He contends the state trial court used the wrong burden of proof in its retrospective competency determination, and the retrospective hearing was an inadequate substitute for a pretrial hearing on the issue in any event. As discussed below, we conclude that neither claim entitles Mr. Walker to federal habeas relief.

A. Burden of Proof

Mr. Walker first contends he is entitled to federal habeas relief because the state court used an unconstitutional burden of proof at his competency hearing. In 1996, the Supreme Court struck down the "clear and convincing evidence" standard applied by the state courts here, holding that "[b]ecause Oklahoma's procedural rule allows the State to put to trial a defendant who is more likely than not incompetent, the rule is incompatible with the dictates of due process." Cooper v. Oklahoma, 517 U.S. 348 , 369, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996). The Court pointed out that "the State's power to regulate procedural burdens was subject to proscription under the Due Process Clause if it 'offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,' " and that "[t]his case involves such a rule." Id. at 367, 116 S.Ct. 1373 (quoting Patterson v. New York, 432 U.S. 197, 201-202, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977)).

Before the Supreme Court handed down its decision in Cooper, Mr. Walker filed the present petition for writ of habeas corpus. After Cooper was decided, he supplemented his federal habeas petition to add a claim based on that case. The federal district court stayed action on the petition to permit Mr. Walker to exhaust his state remedies by filing an application for post-conviction relief with the Oklahoma Court of Criminal Appeals. See Walker v. Ward, 934 F.Supp. 1286, 1294 (N.D.Okla.1996). The state court ruled the claim procedurally barred for failure to raise it on direct appeal or in Mr. Walker's first post conviction proceeding under amendments to the state's statutory post-conviction procedures enacted subsequently in 1995. See Walker v. State, 940 P.2d 509, 510 (Okla.Crim.App.1997).

The federal district court thereafter ruled that the claim was procedurally barred. In so doing, the court concluded that the issue involved a matter of procedural rather than substantive due process and was therefore waivable. The court rejected Mr. Walker's contention that the relevant procedural default rule is the one in place at the time the alleged procedural default actually occurred. Although we disagree with the district court's ruling that this claim is procedurally barred, for the following reasons we conclude it does not provide grounds for habeas relief.

1. Applicable Legal Standards

A defendant is competent to stand trial if he "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding [and if] he has a rational as well as a factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960); see also Lafferty v. Cook, 949 F.2d 1546, 1550 (10th Cir.1991). Courts have held that competency claims can raise issues of both substantive and procedural due process.

A petitioner may make a procedural competency claim by alleging that the trial court failed to hold a competency hearing after the defendant's mental competency was put in issue. To prevail on the procedural claim, "a petitioner must establish that the state trial judge ignored facts raising a 'bona fide doubt' regarding the petitioner's competency to stand trial."

Medina v. Singletary, 59 F.3d 1095, 1106 (11th Cir.1995) (citing Pate v. Robinson, 383 U.S. 375, 385, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966) and quoting James v. Singletary, 957 F.2d 1562, 1572 n. 15 (11th Cir.1992)); see also Carter v. Johnson, 110 F.3d 1098, 1105 n. 7 (5th Cir.1997). On the other hand,

[a] petitioner may make a substantive competency claim by alleging that he was, in fact, tried and convicted while mentally incompetent. In contrast to a procedural competency claim, however, "a petitioner raising a substantive claim of incompetency is entitled to no presumption of incompetency and must demonstrate his or her incompetency by a preponderance of the evidence." A petitioner who presents "clear and convincing evidence" creating a "real, substantial and legitimate doubt" as to his competence to stand trial is entitled to a hearing on his substantive incompetency claim.

Medina, 59 F.3d at 1106 (quoting James, 957 F.2d at 1572-73); see also Carter, 110 F.3d at 1105-06 & n. 7.

The distinction between substantive and procedural claims is significant because courts have evaluated these claims under differing evidentiary standards. In addition, we have held that a procedural competency claim is subject to waiver while a substantive competency claim is not. See Nguyen v. Reynolds, 131 F.3d 1340, 1346 & n. 2 (10th Cir.1997); but cf. United States v. Williams, 113 F.3d 1155,1160 (10th Cir.1997) (holding in direct appeal that neither substantive nor procedural due process competency rights can be waived).

However, our cases have on occasion blurred the distinctions between the two claims, particularly when both claims are raised together. See, e.g., Castro v. Ward, 138 F.3d 810, 817-18 (10th Cir.1998) (applying both procedural and substantive competency standards to claims defaulted in state court); Sena v. New Mexico State Prison, 109 F.3d 652 (10th Cir.1997) (applying procedural standard to substantive claim defaulted in state court). We need not attempt to reconcile any inconsistencies in our cases because we conclude that if the claim here is characterized as procedural and is therefore subject to waiver, it was not waived in this case. We further conclude that Mr. Walker has failed to establish the right to habeas relief under the standards applied either to procedural or to substantive competency claims.

2. Procedural Default

Mr. Walker's argument on appeal may be construed as asserting that the state courts' use of the "clear and convincing evidence" standard rendered the procedure used to evaluate his competency inadequate to ensure he was competent to stand trial. Viewed in this light, the claim asserts a denial of procedural due process, a claim that we held in Nguyen is subject to waiver.

The state court held the claim procedurally barred both because the claim should have been raised on direct appeal and because it was not raised in Mr. Walker's first application for state post-conviction relief. See Walker, 940 P.2d at 510. In holding the claim barred by Mr. Walker's failure to raise it on direct appeal, the court applied the 1995 amendments to the state's post-conviction procedures, under which a petitioner who has not raised the issue on direct appeal must show that the legal basis for the claim was unavailable. The court further held that the challenge to the evidentiary standard could have been made in Mr. Walker's direct appeal. Id.

We begin by assessing the effect we are to give the state court's application of the 1995 amendments to an alleged default that occurred before those amendments were enacted. When a federal habeas petitioner has defaulted his federal claims in state court pursuant to an adequate and independent state procedural rule, federal habeas review of the claims is barred absent a showing of cause and prejudice or of a fundamental miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722 , 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). "The Supreme Court of the United States has made it clear that a state's procedural rule used to bar consideration of a claim 'must have been "firmly established and regularly followed" by the time as of which it is to be applied.' " Fields v. Calderon, 125 F.3d 757, 760 (9th Cir.1997) (quoting Ford v. Georgia, 498 U.S. 411, 424, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991)), cert. denied, --- U.S. ----, 118 S.Ct. 1826, 140 L.Ed.2d 962 (1998).

We agree with the Ninth Circuit that "the proper time for determining whether a procedural rule was firmly established and regularly followed is 'the time of [the] purported procedural default.' " Id. at 760 (quoting Calderon v. United States Dist. Court for E.D.Cal., 96 F.3d 1126, 1130 (9th Cir.1996)) (alteration in original). A defendant cannot be expected to comply with a procedural rule that does not exist at the time, and should not be deprived of a claim for failing to comply with a rule that only comes into being after the time for compliance has passed. See id. (citing NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 457, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958), and Ford, 498 U.S. at 424, 111 S.Ct. 850).

We point out that no competency hearing had even been held at the time of Mr. Walker's direct appeal, and that consequently no basis existed then for challenging the burden of proof. Moreover, when Mr. Walker raised the failure to be given a contemporaneous hearing for the first time in his first application for post-conviction relief, the Court of Criminal Appeals considered the merits of this claim despite the failure to raise it on direct appeal. See Walker, 826 P.2d at 1005. Accordingly, we conclude that Mr. Walker is not barred by his failure to challenge the "clear and convincing evidence" standard on direct appeal.

The Oklahoma Court of Criminal Appeals alternatively held that Mr. Walker's Cooper challenge to the burden of proof was procedurally barred by his failure to raise it in his first petition for post-conviction relief when he challenged the failure to hold a competency hearing. Prior to the 1995 amendments to the state post-conviction procedures, however, it was settled law in Oklahoma that an intervening change in the law constituted sufficient reason for a petitioner's failure to raise an issue on direct appeal or in a prior application for post-conviction relief. See Walker, 934 F.Supp. at 1293 (citing cases).

Moreover, Oklahoma had held that a decision qualified as an intervening change in the law even if it was based on previously announced principles so long as it constituted the Supreme Court's definitive resolution of the matter. See id. at 1293-94 (quoting Stafford v. State, 815 P.2d 685, 687 (Okla.Crim.App.1991)). The Court of Criminal Appeals specifically noted in Valdez v. State, 933 P.2d 931 (Okla.Crim.App.1997), that a Cooper claim would have constituted an intervening change in the law under prior capital post-convictions statutes, id. at 933 n. 7. Under these circumstances, we hold that Mr. Walker is not procedurally barred from seeking habeas relief on his Cooper claim by his failure to raise it in his first state post-conviction petition, and we turn to the merits of that claim.

3. Procedural Competency Claim

A habeas petitioner who makes a procedural competency claim by alleging that state procedures were inadequate to ensure he was competent to stand trial is entitled to habeas relief if the state trial court ignored evidence that, viewed objectively, raised a bona fide doubt as to the petitioner's competency to stand trial. See Drope v. Missouri, 420 U.S. 162, 180-81, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); Carter, 110 F.3d at 1105 n. 7; Medina, 59 F.3d at 1106.

This standard is usually applied to a claim arising when a petitioner asserts that no competency hearing was held despite the existence of evidence creating a bona fide doubt regarding his competency to stand trial or to continue in a trial already begun. In the present case, although a hearing was ultimately held, Mr. Walker's competency was determined under a constitutionally impermissible standard of proof. Such a determination is not entitled to a presumption of correctness. See Lafferty, 949 F.2d at 1551 & n. 4.

Indeed, in view of the Supreme Court's statement in Cooper that the clear and convincing evidence requirement "allows the State to put to trial a defendant who is more likely than not incompetent," 517 U.S. at 369, 116 S.Ct. 1373, the situation here is arguably analogous to that in which no hearing has taken place. Mr. Walker is therefore entitled to some form of relief if the record evidence is sufficient to raise a bona fide doubt as to his competency at the time of his trial.3

"[E]vidence of a defendant's irrational behavior, his demeanor at trial, and any prior medical opinion on competence to stand trial are all relevant" to the bona fide doubt inquiry. Drope, 420 U.S. at 180, 95 S.Ct. 896; Castro, 138 F.3d at 818. The evidence produced at the 1988 competency hearing consisted of the written report of Dr. Sherman in 1984 determining Mr. Walker to be competent, and the testimony of the psychiatrist, Dr. Goodman, as well as testimony from an attorney who represented Mr. Walker in another murder prosecution during approximately the same time period, the district attorney who prosecuted Mr. Walker for the Eddie Cash murder, the police officer who interviewed Mr. Walker upon his arrest, Mr. Walker's trial attorney, and an investigator for the district attorney's office who observed Mr. Walker during his trial.

Although Dr. Sherman had determined that Mr. Walker was competent, he had qualified his opinion with concerns that it might be altered by an examination of Mr. Walker's medical records, by the results of recommended diagnostic tests or psychological and psychiatric evaluations, and by Mr. Walker's failure to continue on his lithium program. However, Dr. Goodman had subsequently interviewed Mr. Walker extensively and had reviewed his medical record. He stated at the competency hearing that: "My opinion at [the time of trial] and my opinion now ... is that ... he was at that time competent to stand trial under the Oklahoma Statutes." Transcript of Competency Hearing, Nov. 29, 1988, at 101; see also Okla. Stat. tit. 22, § 1175.3(E) (1981) (setting forth factors doctors must consider in determining competency). Dr. Goodman also answered "no" when asked if, during his interviews, Mr. Walker often appeared confused about what was happening in the court proceedings. Id. at 109.

Dr. Goodman had also prepared a pretrial written psychiatric evaluation of Mr. Walker for his attorney purportedly directed to both his mental state at the time of the crime and his capacity to stand trial, in which Dr. Goodman had stated that the evaluation could reach a higher degree of certainty if further tests and evaluations could be performed on Mr. Walker. This report in fact dealt only with Mr. Walker's mental state at the time of the crime and with the elements of an insanity defense. Dr. Goodman expressed no opinion in that report on Mr. Walker's competency to stand trial nor did he indicate at the competency hearing that his opinion on Mr. Walker's competency was qualified by the lack of that testing.

Mr. Walker's trial counsel also testified at the competency hearing. He stated that he had represented thousands of criminal defendants and had in other cases objected to going forward with a trial based on his belief that the defendant might not be competent. Although he further testified that Mr. Walker's moods varied and that at times he felt Mr. Walker did not understand clearly what was going on, he admitted he had not raised Mr. Walker's competency at trial. Indeed, he put Mr. Walker on the stand. The attorney who represented Mr. Walker in the other, contemporaneous criminal proceeding testified that he too experienced times during his representation of Mr. Walker when Mr. Walker did not appear to comprehend what was going on.

Nonetheless, that attorney did not ask for a jury trial on Mr. Walker's competence or file an objection to going to trial based on that basis. The attorney also testified that it would have been his obligation to bring to the attention of the court any information indicating Mr. Walker was not competent to stand trial, and that he believed the issue in his trial to be insanity rather than competence. Finally, the judge observed that he had tried the case and that he had noticed nothing at the time to raise a concern about Mr. Walker's competency.

We have carefully reviewed the evidence pertaining to Mr. Walker's competency at the time of his trial, including the transcript of his trial testimony. This record sets out a lamentable and grievous life history. It is undisputed that Mr. Walker was brutalized physically, emotionally, and sexually by his parents. His medical records reveal a history of serious mental disease that was apparently difficult to diagnose and to treat effectively. Nonetheless, the experts who examined the evidence determined that Mr. Walker was competent to stand trial and we have found nothing in the record to the contrary. The evidence, deplorable as it is, simply does not raise a bona fide doubt as to Mr. Walker's competency at the time of his trial. Accordingly, he cannot prevail on his procedural competency claim.

4. Substantive Competency Claim

Mr. Walker's failure to establish his procedural competency claim is also dispositive of his substantive claim. As discussed above, to succeed in stating a substantive incompetency claim, a petitioner must present evidence that creates a " 'real, substantial and legitimate doubt' as to his competency to stand trial." Medina, 59 F.3d at 1106 (quoting James, 957 F.2d at 1573). The evidence here, which does not satisfy the "bona fide doubt" standard for a procedural claim, also does not satisfy the more demanding standard for a substantive claim. We therefore reject Mr. Walker's argument that he was tried while incompetent.

B. Retrospective Hearing

We turn to Mr. Walker's argument that the failure to provide him a contemporaneous competency hearing resulted in a denial of due process, and that the retrospective hearing held four years after his trial was an improper remedy. This argument is based on Mr. Walker's assertion that a contemporaneous hearing was mandated both by evidence tending to cast doubt on his competency and by the state statutes then in effect. Neither ground provides a basis for federal habeas corpus relief.

First, as discussed above, Mr. Walker's evidentiary showing failed to meet the standards for either a procedural or a substantive competency claim. His due process right not to be tried while incompetent was therefore not violated.4 Second, the state appellate court in this case made clear that such a hearing was not a per se violation of the state statutes then in effect and did not therefore implicate a liberty interest created by state law. See Walker, 826 P.2d at 1005. We thus find no merit in Mr. Walker's claim that his failure to be given a contemporaneous hearing violated his constitutional rights.



Mr. Walker asserts he was denied due process and equal protection by the state courts' failure to provide funds for neurological testing. Although Dr. Sherman, a psychologist, determined Mr. Walker was competent to stand trial, he also recommended that Mr. Walker be given a further complete psychological and psychiatric evaluation. Dr. Goodman, the psychiatrist consulting at the time of trial on the insanity defense, also strongly urged that further neurological testing be conducted because Mr. Walker presented the profile of an individual who often suffers from minimal organic brain disease, which Dr. Goodman stated could be relevant as either a cause or factor in Mr. Walker's mental illness. Mr. Walker was clinically examined by Dr. John Hastings, a neurologist, to evaluate the possibility of minimal brain damage.

Dr. Hastings recommended that an electroencephalogram be repeated to rule out a seizure disorder, and that Mr. Walker be given a CT scan to rule out physical brain abnormalities. Although Mr. Walker's attorney unsuccessfully requested a trial continuance so that additional evaluation of Mr. Walker's mental state could be conducted, the record contains no evidence that Mr. Walker's attorney requested funds to pay for further neurological testing.

We note, however, that funds for such tests were denied Mr. Walker in the contemporaneous criminal proceeding in which Dr. Goodman also assisted him. It is clear that due either to lack of time or lack of funds, Mr. Walker was denied the opportunity to conduct the additional neurological testing recommended by the experts who examined him before trial. We must therefore assess whether he is entitled to federal habeas corpus relief on that ground.

Mr. Walker contends the lack of additional testing is relevant both to his competency claims and to his insanity defense. In Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), the Supreme Court held that due process requires a defendant be provided with court-appointed psychiatric assistance at trial and during sentencing if he demonstrates his mental state will be a significant factor in those proceedings. Id. at 1091-92. Although Ake was decided in 1985 after Mr. Walker's trial, we have held it nevertheless applies to cases such as this which were pending on direct appeal at the time. See Liles v. Saffle, 945 F.2d 333, 335 n. 2 (10th Cir.1991).

Under these circumstances, the question is whether, upon review of the entire record, the petitioner could have made a threshold showing of need, which requires substantive supporting facts. Id. at 336. Although general allegations of need without substantive supporting facts and undeveloped assertions that assistance would be beneficial will not suffice, id., we have construed Ake broadly, see Brewer v. Reynolds, 51 F.3d 1519, 1529 (10th Cir.1995).

We held in Brewer that even when the State did not present expert testimony, the Ake requirements apply if the State presented evidence at the sentencing phase concerning the defendant's future dangerousness and the defendant showed that his mental condition could have been a significant mitigating factor. Id. The inquiry is whether evidence was presented to the trial court suggesting that his mental condition was likely to be a significant factor. Castro v. Oklahoma, 71 F.3d 1502, 1513-14 (10th Cir.1995). We believe the evidence described above presented through the mental health experts was sufficient to trigger the application of Ake, and the State therefore should have provided Mr. Walker with the opportunity for the neurological testing those experts recommended.

That conclusion does not end our inquiry, however. The denial of psychiatric assistance in violation of Ake is trial error subject to harmless error analysis under the standard set forth in Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946); see Brewer, 51 F.3d at 1529. We must therefore decide whether the error "had substantial and injurious effect or influence in determining the jury's verdict." Kotteakos, 328 U.S. at 776, 66 S.Ct. 1239. Under this standard, we will grant relief if we believe the error substantially influenced the jury's decision, or if we are in grave doubt as to the harmlessness of the error. See O'Neal v. McAninch, 513 U.S. 432, 436, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995).

Our review of the record convinces us that the lack of the additional recommended testing had no substantial injurious impact on the jury's decision. Dr. Goodman testified extensively at trial in support of Mr. Walker's insanity defense. Although Dr. Goodman stated that Mr. Walker had not been given a CT scan or an electroencephalogram and that he would have been more comfortable with his opinion if Mr. Walker had been given those tests, Dr. Goodman responded affirmatively when he was asked whether he was comfortable in giving his opinion based on the information he had at that time.

We have reviewed Dr. Goodman's testimony and we are not convinced the lack of these tests was significant. The focus by both the prosecution and the defense in their extensive examination of Dr. Goodman was on the nature of Mr. Walker's mental illness and the effect his illness had upon his behavior rather than on its cause. Moreover, Dr. Goodman's testimony indicated to the jury that he and other experts who had examined Mr. Walker believed that his illness did in fact have an organic component.

We likewise conclude that the lack of neurological testing did not have an injurious impact on Mr. Walker's competency proceedings. Dr. Goodman stated unequivocally his opinion that Mr. Walker was competent to stand trial. Although Dr. Goodman reiterated that a higher degree of certainty would have existed if the additional testing had been done, he did not qualify his opinion on Mr. Walker's competency. As with the question of insanity, the issue for determination in the competency proceedings was not the cause of Mr. Walker's mental illness but its effect on his ability to understand the charges against him and to aid in his defense. Accordingly, the lack of neurological testing is not grounds for federal habeas relief.



Mr. Walker argues that his constitutional right to a fair trial was violated when the trial court refused to instruct the jury on the lesser included offenses of second degree murder and first degree manslaughter. A capital defendant is constitutionally entitled to instructions on offenses that state law recognizes as lesser included offenses of the charged crime, see Beck v. Alabama, 447 U.S. 625, 627, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), but only when such instructions are supported by the evidence, see Hopper v. Evans, 456 U.S. 605, 610, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982); see also Hopkins v. Reeves, 524 U.S. 88, 118 S.Ct. 1895, 1900, 141 L.Ed.2d 76 (1998); Hatch v. Oklahoma, 58 F.3d 1447 1453-54 (10th Cir.1995).

Mr. Walker was convicted of committing first degree murder by causing the death of another with malice aforethought in violation of Okla. Stat. tit. 21, § 701.7(A). He asserts the jury should have been allowed to consider a conviction for second degree murder under a state statute defining second degree murder as that committed while engaged in the commission of, inter alia, second degree burglary. See id. § 701.8(2). Second degree burglary, in turn, is defined as that committed by breaking into a building with the intent to steal property. See id. § 1435. It differs from first degree burglary in that first degree burglary is committed by breaking into a dwelling that contains a person. See id. § 1431.

Mr. Walker contends that in his trial, the State argued and the evidence showed that his actions constituted an attempted second degree burglary. He presented this argument in his direct criminal appeal and the Oklahoma Court of Criminal Appeals disagreed, holding that although Mr. Walker had been attempting a second degree burglary when the victim arrived home, Mr. Walker abandoned that attempt when he saw the victim, fled to the side of the house and waited until Mr. Cash had entered the home to gain admittance. See Walker v. State, 723 P.2d 273, 283 (Okla.Crim.App.1986). The state court's conclusion that the undisputed facts established at trial amounted to abandonment of second degree burglary is a construction of state law to which this court must defer.

Mr. Walker's argument that he was entitled to an instruction on first degree manslaughter is similarly without merit. Oklahoma law defines this crime as a homicide perpetrated without a design to effect death. See Okla. Stat. tit. 21, § 711(2). We have carefully reviewed the trial record and have found no evidence to support the giving of this instruction. Dr. Goodman's testimony in support of Mr. Walker's insanity defense clearly indicates that although Mr. Walker may have acted in a rage, he did intend to kill his victim. There is simply no evidence to support a contrary finding. The trial court did not err in denying this instruction.



Finally, Mr. Walker argues that the continuing threat aggravating circumstance is unconstitutional on its face and as applied. In so doing, he recognizes we have rejected his argument in Nguyen v. Reynolds, 131 F.3d 1340 (10th Cir.1997), but presents the argument nonetheless to preserve the issue in hopes that the Supreme Court may intervene.



Having carefully considered Mr. Walker's claims, we are not persuaded that constitutional errors infected his state court trial. We AFFIRM the judgment of the district court denying Mr. Walker's petition for a writ of habeas corpus.


1 Because Mr. Walker's petition was filed before the enactment of the Antiterrorism and Effective Death Penalty Act and Oklahoma has not qualified for retroactive application of the Act's new death penalty provisions, the Act does not apply. See Duvall v. Reynolds, 131 F.3d 907, 915-16 (10th Cir.1997)

2 Mr. Walker's trial was held in 1984. At that time, the relevant statute provided that after a competency determination had been made, "a hearing on the competency of the person shall be held." Okla. Stat. tit. 22, § 1175.4(A) (1981). The provision was amended effective September 1, 1991, to provide that a competency hearing shall be held "only upon application of the defendant or the state or upon the formal setting of a competency hearing by the court." Okla. Stat. tit. 22, § 1175.4(A) (1991)

3 The state asserts that if Mr. Walker were to establish a bona fide doubt as to his competency in 1984, the appropriate remedy would be a reweighing of the evidence presented in the retrospective competency hearing under the preponderance of the evidence standard, rather than a new competency hearing. Given our determination that Mr. Walker does not meet the standard for obtaining a new competency hearing, we need not decide this issue

4 This is not a case like Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), where the Supreme Court raised concerns about a retrospective competency hearing because "[t]he jury would not be able to observe the subject of their inquiry and expert witnesses would have to testify solely from information contained in the printed record," id. at 386, 86 S.Ct. 836. Here, the trial judge who observed Mr. Walker in the criminal trial and heard him testify was the same judge who decided the competency issue at the retrospective hearing. Mr. Walker's defense attorney for this crime, the prosecuting attorney, and an attorney who represented Mr. Walker in another case during 1984-85, all testified. Moreover, the psychiatrist who was Mr. Walker's expert witness on his insanity defense at trial testified at the retrospective hearing as to Mr. Walker's competence at the time of trial, and the court had before it

Dr. Sherman's report. In these circumstances, we are not persuaded Mr. Walker was deprived of due process by the retrospective competency hearing. See Reynolds v. Norris, 86 F.3d 796, 802 (8th Cir.1996) (holding that "a post-conviction competency hearing is proper so long as a meaningful hearing remains possible"); Galowski v. Berge, 78 F.3d 1176, 1181 (7th Cir.1996) (noting that the Seventh Circuit allows retrospective competency hearings); Cremeans v. Chapleau, 62 F.3d 167, 170 (6th Cir.1995) (finding adequate a retrospective competency hearing where the evidence presented included "contemporaneous medical reports; the testimony of the presiding trial judge and the defendant's attorney; and the transcript of the penalty hearing held before the jury including the testimony of the petitioner"); Moran v. Godinez, 57 F.3d 690, 696 (9th Cir.1994) (upholding finding of competency at retrospective hearing where the judge had also presided at trial and evidence included two contemporaneous psychiatric reports); United States v. Mason, 52 F.3d 1286, 1293 (4th Cir.1995) (allowing a retrospective competency hearing if enough contemporaneous evidence exists to make such a determination); Miller v. Dugger, 838 F.2d 1530, 1544 (11th Cir.1988) ("The determination of whether a district court can hold a meaningful retrospective competency hearing is necessarily a case-by-case one."); Wheat v. Thigpen, 793 F.2d 621, 630 (5th Cir.1986) (allowing retrospective competency hearings when there is "sufficient data available to guarantee reliability"); Crail v. United States, 430 F.2d 459 (10th Cir.1970) (upholding retrospective competency hearing where two physicians who examined the defendant at the time of trial testified).


Gary Alan Walker



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