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The United States Court of Appeals
For the Tenth Circuit

Michael Lee Wilson v. Marty Sirmons, Warden

Michael Lee Wilson v. Anita Trammell, Interim Warden

'I feel my whole body burning': Last words of man executed by lethal injection in Oklahoma

• Michael Lee Wilson was put to death by lethal injection in Oklahoma Thursday

• He was convicted in the murder of his co-worker Richard Yost

• Yost, 30, and Wilson both worked at a Tulsa Quiktrip store

• Wilson and three others brutally beat Yost to death and robbed the store in the early hours of February 25, 1995

• After a last meal of stuffed crust pizza and cherry Dr Pepper, Wilson was given the injection at 6:06pm

• His last words were, 'I feel my whole body burning' but showed no sign of physical distress

• Two other men were executed for the crime in 2009 and 2011

• A third is serving a life sentence

By Associated Press - DailyMail.com

January 10, 2014

A man has been executed by lethal injection at the Oklahoma State Penitentiary almost 20 years after orchestrating the brutal assault and robbery of his co-worker at a Tulsa convenience store.

Michael Lee Wilson, 38, was convicted in the killing of Richard Yost, 30, who aspired to one day manage the Quiktrip store. Wilson, who was convicted of first-degree murder, was the third person executed for the February 25, 1995, crime; the fourth defendant is serving a life term.

Prison spokesman Jerry Massie said Wilson's time of death was 6:06 p.m. Wilson gave brief remarks twice - at first saying, 'I love everybody,' then speaking up again after Warden Anita Trammel ordered the execution to begin.

'I love the world,' he said. 'Love my daughters for me. I'm going to miss you always.'

Within 20 seconds of the execution starting, Wilson's final words were, 'I feel my whole body burning.' He showed no physical signs of distress.

Wilson's sister, Staci Wilson, sang a hymn throughout the execution, including the line, 'His soul is resting and it's a blessing.' When he was pronounced dead, she recited Psalm 23.

After the execution, Wilson's mother, Patricia Taylor, stood to capture a final look at her son on the gurney as a curtain began to close, blocking her view. Wilson's fiancee sobbed beside her.

Earlier in the day, he ate his last meal, which consisted of a stuffed-crust pizza with parmesan cheese as a final meal, along with a Cherry Dr Pepper, a pomegranate and cherry mash candy.

Yost's family denied an interview request but issued a statement noting the third of three executions was behind them.

'Closure will be not hearing this on the news and reading about it in the paper,' the family said in a statement issued by Angela Houser-Yost, Yost's widow. 'That is my closure - not to relive his death over and over but to remember the good times.'

Before the crime, the men loitered nearly an hour while waiting for customers to leave. Once they were gone, they struck Yost with an aluminum baseball bat 54 times in 131 seconds. They jostled a safe while removing it, but Wilson posed as Yost when a security company called to check an alarm.

And to dampen suspicions among middle-of-the-night customers, Wilson put on Yost's uniform and worked the cash register as Yost lay dying in a pool of blood, beer and milk behind the cooler doors.

The state Board of Pardon and Parole last month rejected Wilson's clemency request on a four to one vote. Ahead of the hearing, Assistant Attorney General Jennifer Miller told the panel that Wilson knew Yost had to die so he couldn't identify his robbers.

Police trailed Wilson after he didn't show up for work later that day and stopped all four men in a car about 14 hours after the crime. They carried multiple rolls of $5 bills and had pairs of Nike Air tennis shoes with the price tags still attached.

Wilson told officers that the four had planned for two weeks to rob and kill Yost, and a week before the killing even Yost knew something was up: He asked a police officer to increase patrols in the area because he believed Wilson and his friends intended to rob him.

The assault was captured on the store's surveillance system - video of Wilson stuffing money in his pockets and audio of the bat striking Yost as he pleaded for mercy.

'The repeated sounds of the baseball bat striking Mr Yost and Mr Yost's screams will never leave my mind,' Tulsa Assistant District Attorney James D. Dunn wrote to the parole board. Dunn was a bailiff during the defendants' preliminary hearings in 1995.

Yost, 30, had worked at the store three months.

In small talk 14 minutes before the assault began, Wilson asked Yost what kind of future he thought he had with the company. According to a summary of the case by the 10th U.S. Circuit Court of Appeals, Yost told Wilson of his desire to manage the store some day.

Wilson, who was 19 at the time of the killing, laughed at Yost's answer, and then replied, 'For real?'

Darwin Brown, 32, was executed in January 2009, and Billy Don Alverson, 39, was executed in January 2011. The fourth defendant, Richard Harjo, who was 16 at the time of the crime and is now 35, was sentenced to life in prison.

Wilson will be the 192nd person executed by the state of Oklahoma since statehood; 52 will remain on death row after Wilson's death. He is the first to be executed in the state in 2014.

Third defendant in Tulsa QuikTrip clerk's murder is executed

By Ziva Branstetter - TulsaWorld.com

Thursday, January 9, 2014

McALESTER — The last of three men condemned to die for the brutal beating of a Tulsa convenience store clerk 18 years ago was executed Thursday.

Michael Lee Wilson, 38, was put to death for the slaying of Richard Yost, who was beaten to death at a QuikTrip store at 215 N. Garnett Road. The execution occurred at 6 p.m. at the Oklahoma State Penitentiary in McAlester, and Wilson was pronounced dead at 6:06 p.m.

“I love everybody. Free is free,” Wilson said in his last statement. “I am going home; I’m ready to go. I love you, world.”Wilson asked a correctional officer if his microphone was still active and then continued his statement. “Love my daughters for me. I’m going to miss you always.” After a brief silence, Wilson said: “I feel my whole body burning.”

Wilson’s mother and four other family members witnessed the execution, his sister singing a hymn as the execution occurred. The execution was witnessed by Yost’s widow, Angela Yost, and his two grown sons — who were 2 and 8 at the time of the killing — as well as his mother-in-law.

Yost’s family issued a written statement after the execution: “This is the third and last one. Closure will be not hearing this on the news and reading about it in the paper. That is my closure not to relive his death over and over but to remember the good times.”

Wilson worked at the store with Yost, 30, and later told police that he and three other men had planned the crime weeks in advance. The men dragged Yost to the back of the store, handcuffed him and bound his ankles, evidence showed. A security camera captured Wilson smiling and helping customers at the cash register while Yost was beaten to death with a baseball bat in the back of the store.

A customer who entered the store about 6 a.m. Feb. 26, 1995, and saw no attendant found Yost’s body in a walk-in cooler.

The men stole a safe from the store and the videotape from the security camera, both among items later recovered by police.

Wilson, 19 at the time, was arrested later that day with his co-defendants.

Tulsa County District Attorney Tim Harris witnessed the execution along with Tulsa County Sheriff Stanley Glanz. Harris said the crime remains one of the most disturbing in his career as a prosecutor.“He (Wilson) went out and waited on customers while Mr. Yost was being held there. They pre-planned this,” Harris said.

In a filing prepared for Wilson’s clemency hearing, the state Attorney General’s Office said evidence in Yost’s death “shows beyond any doubt that Defendant (Wilson) masterminded the crime; the crime could not have been committed without Defendant due to his status as a store employee.”

During the clemency hearing Dec. 16, Wilson apologized to Yost’s family for the harm he had caused them.

“For that I’m truly sorry,” he said during a teleconference from prison. “I was young, foolish. I’m a different person now.”

The Oklahoma Pardon and Parole Board voted 4-1 to deny clemency for Wilson.

Co-defendant Darwin Demond Brown, 18 at the time of Yost’s murder, was executed in 2009. Billy Don Alverson, who was 24 at the time, was executed in 2011.

The fourth defendant, Richard Harjo, was 16 at the time of the murder. Now 35, he is serving a life prison sentence without the possibility of parole.

In a letter to the Pardon and Parole Board, QuikTrip Corp. Chairman and CEO Chester E. Cadieux III asked that clemency be denied. He said the company conducted counseling sessions for employees “who were all thinking, ‘It could have been me.’ ”

QuikTrip conducted counseling sessions with over 400 people to help them understand the wickedness behind this crime; consoling them and trying to convince them this would never happen again. This murder had a devastating effect on QuikTrip.”

adieux disputed Wilson’s claims of remorse for the crime, noting that Wilson and his co-defendants shopped at a mall after the crime.

“They each bought new tennis shoes with the cash stolen from the register. That’s not what I call remorse. How sad that to Michael Lee Wilson, a life is only worth a new pair of Nikes.”

The Oklahoma Coalition to Abolish the Death Penalty held a silent vigil to protest the execution outside the Governor’s Mansion in Oklahoma City on Thursday evening.

“We are grieved that the state of Oklahoma is choosing to end this life and destroy another family as they prepare for the execution of Michael Lee Wilson,” said Adam Leathers, co-chairman of the coalition, in a statement released before Wilson’s execution.

“We also send our thoughts and prayers to the family of Richard Yost, as well as those who must carry out this execution.”

Execution today for Tulsa store clerk's killer

By Ziva Branstetter - TulsaWorld.com

Thursday, January 9, 2014

The last of three men who were condemned to die for the 1995 fatal beating of a Tulsa convenience store clerk is set to be executed this evening.

Michael Lee Wilson, 38, is scheduled to be put to death for the slaying of Richard Yost, who was beaten to death at a QuikTrip store at 215 N. Garnett Road.

A customer who entered the store about 6 a.m. Feb. 26, 1995, and saw no attendant found Yost's body in a walk-in cooler.

Wilson worked at the store with Yost, 30, and later told police that he and three other men had planned the crime weeks in advance. The men dragged Yost to the back of the store, handcuffed him and bound his ankles, evidence showed.

A security camera captured Wilson smiling and helping customers at the cash register while Yost was beaten to death with a baseball bat in the back of the store.

The men stole a safe from the store and the videotape from the security camera, both among items later recovered by police. Wilson, 19 at the time, was arrested later that day with his co-defendants.

Records show that less than six months before Yost's death, Wilson supplied ammunition that was used in a fatal drive-by shooting.

In a filing prepared for Wilson's clemency hearing, the state Attorney General's Office said evidence in Yost's death "shows beyond any doubt that Defendant (Wilson) masterminded the crime; the crime could not have been committed without Defendant due to his status as a store employee."

When Wilson was questioned by police, he said he and his co-defendants "planned on robbing the QuikTrip and that he knew Yost would be killed," court records state. "He said that they had been talking about the robbery for two weeks. The plan was for him to assume the role of sales clerk once Yost was 'taken care of.' "

During the clemency hearing Dec. 16, Wilson apologized to Yost's family and the harm he had caused them.

"For that I'm truly sorry," he said during a teleconference from prison. "I was young, foolish. I'm a different person now."

The Oklahoma Pardon and Parole Board voted 4-1 to deny clemency for Wilson.

Co-defendant Darwin Demond Brown, 18 at the time of Yost's murder, was executed in 2009. Billy Don Alverson, who was 24 at the time, was executed in 2011.

The fourth defendant, Richard Harjo, was 16 at the time of the murder. Now 35, he is serving a life prison sentence without the possibility of parole.

After Alverson's execution, Yost's widow, Angela Yost, released a statement.

"This execution will not bring Richard back, nor will it give me the closure that I am looking for," she wrote. "To be honest I do not know if I will ever have true closure."

Yost was a father of two sons, ages 2 and 8 when he died.

During Wilson's trial, Yost's widow and mother talked about the crime's impact.

Angela Yost said her husband worked nights but would stay up for hours after his shift ended to attend school activities with his boys.

"The most important things in life for Richard and me were to raise the boys the best we could," she testified. "When that was done, then we could do what we wanted. Richard and I put our needs and wants to the side because we thought we had a lifetime together.

"But now I know that one person can change a family's life in a matter of minutes. One day, you will have everything and the next day, you are living in hell for the rest of your life."

Yost's mother, Alma Dorn, testified during Wilson's trial that her son "was a good father, a husband, and son, with a good moral sense of right and wrong. ... I respected him, as well as his opinion. He was my emotional security.

"He told me he would take care of me in my old age and not to worry about anything in the future," she said. "I knew he would always be there for me, and now he's gone."

Wilson's execution, the first of 2014, is set for 6 p.m. at the Oklahoma State Penitentiary in McAlester.

The Oklahoma Coalition to Abolish the Death Penalty plans a silent vigil to protest the execution outside the Governor's Mansion in Oklahoma City. "We are grieved that the state of Oklahoma is choosing to end this life and destroy another family as they prepare for the execution of Michael Lee Wilson," said Adam Leathers, co-chairman of the coalition.

"We also send our thoughts and prayers to the family of Richard Yost, as well as those who must carry out this execution."

United States Court of Appeals
For the Tenth Circuit

No. 11-5031

Michael Lee Wilson, Petitioner-Appellant
v.
Anita Trammell, Interim Warden, Oklahoma State Penitentiary. Respondent/Appellee

Appeal from the United States District Court for the Northern District of Oklahoma (Tulsa County)

Date: 02-12-2013

Judge: Hartz

Plaintiff's Attorney: Dustin B. Rawlin, Tucker Ellis & West LLP, Cleveland, Ohio, (John Q. Lewis, Tucker Ellis & West LLP, and Lanita Henricksen, Henricksen & Henricksen Lawyers, Inc., Oklahoma City, Oklahoma, with him on the briefs), for Petitioner - Appellant.

Defendant's Attorney: Jennifer B. Miller, Assistant Attorney General, (E. Scott Pruitt, Attorney General, with her on the brief) Oklahoma City, Oklahoma, for Respondent - Appellee.

Description: Defendant Micheal Lee Wilson1 was convicted of first-degree murder and robbery with a dangerous weapon in Oklahoma state court and sentenced to death. On direct appeal the Oklahoma Court of Criminal Appeals (OCCA) ordered dismissal of his robbery conviction but affirmed his murder conviction and death sentence. See Wilson v. State, 983 P.2d 448, 463, 473 (Okla. Crim. App. 1998) (Wilson I). Defendant sought a writ of habeas corpus under 28 U.S.C. § 2254 in the United States District Court for the Northern District of Oklahoma, but the district court denied his application. See Wilson v. Sirmons, No. 00-CV- 147CVEFHM, 2006 WL 2289777 (N.D. Okla. Aug. 8, 2006) (Wilson II). We affirmed in part, but vacated and remanded for an evidentiary hearing on Defendant’s claims that he received ineffective assistance of counsel at the sentencing phase of his trial. See Wilson v. Sirmons, 536 F.3d 1064 (10th Cir. 2008) (Wilson III), reinstated sub nom., Wilson v. Workman, 577 F.3d 1284 (10th Cir. 2009) (Wilson IV) (en banc). After holding the evidentiary hearing, the district court ruled that Defendant had failed to establish that his trial counsel had performed deficiently or that counsel’s alleged failures had affected the outcome of the penalty phase, and it again denied the writ. See Wilson v. Workman, No. 00-CV-0147-CVE-FHM, 2011 WL 744661 (N.D. Okla. Feb. 23, 2011) (Wilson V).

The district court granted Defendant a certificate of appealability (COA) on his ineffective-assistance-of-counsel claim, and Defendant appealed. See 28 U.S.C. § 2253(c)(1)(A) (requiring a COA to appeal the denial of a § 2254 application).

We affirm the denial of Defendant’s habeas application. In light of the evidence presented at the hearing before the district court, he has not shown that he was prejudiced by the alleged deficiencies in his counsel’s performance at trial.2

I. BACKGROUND

A. The Murder

In 1995 Defendant worked at a QuikTrip convenience store in Tulsa, Oklahoma. He, along with accomplices Billy Alverson, Darwin Brown, and Richard Harjo, planned to rob the store. In the early morning hours of February 26, 1995 (two days before Defendant’s 20th birthday), the four men entered the QuikTrip, loitering for about an hour while Defendant conversed with the victim, Richard Yost, the employee on duty. In one chilling exchange, Defendant, just 14 minutes before the assault began, asked Yost how long he planned to work at QuikTrip. When Yost answered that he hoped to become store manager someday, Defendant responded “For real?” R., Vol. 3 Tr. Feb. 20, 1997, at 29–30. The conversation and other events in the store were captured on the store’s surveillance-camera recording, obtained by law-enforcement officers from Alverson’s home.

While Yost was cleaning the store’s coolers, the four men attacked him and dragged him into a back room. Alverson and Harjo briefly left the store while Yost screamed for help. The two men returned with a black aluminum baseball bat and went to the back room, where the robbers beat Yost to death with the bat. Yost was handcuffed during the beating: a piece of handcuff later recovered from his skull indicated that he was conscious and attempting to ward off blows for at least part of the fatal attack.

During the beating Defendant left the back room, donned a QuikTrip jacket, and began attempting to remove the store’s safe from its position under the counter. As customers entered the store, Defendant greeted them, rang up their transactions, and wished them a good day. After dislodging the safe, Defendant and his three accomplices fled the store with the safe, the contents of the cash drawer, and the surveillance video. Yost’s body, lying in a pool of blood, milk, and beer, was discovered by a customer within a few hours.

All four culprits were arrested later that day. Under police interrogation Defendant confessed to participating in the crime. He stated that the robbery and Yost’s killing had been planned for two weeks. Corroborating this admission was evidence that the body alarm typically worn by QuikTrip employees on overnight shifts had been found missing from the store the week before the murder. The safe, the surveillance tape, and several other items from the QuikTrip were recovered from Alverson’s home.

B. The Penalty Phase at Trial

Evidence was presented during the guilt phase of Defendant’s trial on February 11, 12, and 13, 1997. He did not present any evidence other than the tape-recorded statement of codefendant Brown. Given the irrefutable evidence of guilt, the penalty phase, which began on February 18, was the true contest.

1. The State’s Case

The State alleged three aggravating factors to justify the death penalty: (1) that the murder was committed for the purpose of avoiding or preventing arrest or prosecution, (2) that the murder was especially heinous, atrocious, or cruel, and (3) that Defendant was a continuing threat to society because of the probability that he would commit future crimes of violence. See Okla. Stat. tit. 21, § 701.12 (2011). The first aggravator—murder to avoid arrest or prosecution—was obvious from the evidence at the guilt stage of trial. For the other aggravators, the State offered additional evidence.

To support the second aggravator, a forensic pathologist testified that in his opinion Yost would have suffered during the attack unless he had been rendered immediately unconscious, and he described Yost’s injuries, including wounds to Yost’s hand and scalp, that indicated his efforts to defend himself. See Willingham v. State, 947 P.2d 1074, 1084 (Okla. Crim. App. 1997) (For a jury to find that the murder was heinous, atrocious, or cruel, “the State must prove conscious serious physical abuse or torture prior to death.”).

To prove the continuing-threat aggravator, the State called police witnesses who testified about two recent offenses. First, Defendant had been convicted as an accessory after the fact to the murder of a woman in September 1994 (five months before the Yost murder). The conviction was based on his taking possession of a gun at the principal’s request, although, as noted by the OCCA, “the facts revealed that he may have been more involved in this drive-by shooting by providing ammunition for the gun on the day of the murder.” Wilson I, 983 P.2d at 466. Second, 10 days before Yost’s murder, police had seized a loaded revolver from Defendant’s car during a traffic stop. Codefendant Brown was also in the car. On cross-examination Defendant’s counsel pointed out that Brown was the one charged with possession of the gun and suggested that Defendant was not aware of the gun’s presence.

The State also presented victim-impact statements from Yost’s wife and mother, both of whom testified to how their lives had been tragically affected by Yost’s murder.

2. The Defense Mitigation Case

a. The Lay Witnesses

In the mitigation case the defense put on five lay witnesses and one expert. Two of Defendant’s former teachers and two fellow church members offered similar testimony: that they had known Defendant as a polite, respectful, wellbehaved, and intelligent young man and that the murder for which he had been convicted did not represent “the Mike Wilson [they] knew.” R., Vol. 3 Tr. Feb. 19, 1997, at 11. On cross-examination the prosecutor elicited that three of the witnesses had last seen Defendant between two and five years earlier and that his criminal conduct suggested that his behavior and character might have changed in the interim.

The other lay witness was Defendant’s mother, Patricia Taylor. She testified that his father frequently used crack cocaine, was often absent, and was not a positive influence on Defendant’s life; that she had cultivated a loving relationship with Defendant and had attempted to inculcate positive values in him; and that she had visited Defendant in jail almost every week. She also testified that she turned over to police some physical evidence of the murder, including the murder weapon, explaining that she had acted to follow “the rules,” and that she expected that doing so would help her son in the long run. Id. at 99. She further testified that immediately after the murder (but before his apprehension), Defendant had returned home in a disturbed emotional state. He said that a man had been killed in a robbery at the QuikTrip, although he did not know how it happened. They then prayed together about the crime. Ms. Taylor concluded with a plea for her son’s life.

b. Dr. Reynolds

Defendant’s expert witness was Dr. Allan Eugene Reynolds, a clinical psychologist. On direct examination Dr. Reynolds testified to some aspects of his pretrial preparation, stating that he had reviewed information about Defendant’s background, including his school, medical, and criminal records; that he had interviewed Defendant’s mother; and that he had reviewed statements by lay witnesses. In addition, he had met with Defendant on three occasions at the Tulsa County Jail, and had administered several psychological tests to Defendant: the Slossen Intelligence test; two tests designed to screen for organic brain damage, the Bender Gestalt test and the Memory for Designs test; and two personality tests, the MMPI-2 and the MCMI-III. Defendant also completed a psychosocial questionnaire, and Dr. Reynolds observed and interviewed Defendant in addition to the formal testing.

Dr. Reynolds was not asked about a failure in the testing. He had administered the MMPI-2 on February 6, 1997, and sent the responses to be scored by computer. The PhD psychologist who scored the test reported that the test was probably invalid, and Dr. Reynolds informed Defendant’s counsel of the invalidity by February 10, the day before trial testimony commenced. But no retest was administered.

Dr. Reynolds testified to the results of the valid tests. He reported Defendant’s IQ as 126, placing him in the “superior” range of intelligence. Id. at 55. He said that there was no indication of organic brain dysfunction but that the personality tests showed that Defendant suffered from a “severe personality disturbance.” Id. at 57. He explained:

[T]here were responses and there were scores that indicate that [Defendant] has some very unusual, bizarre types of thinking. That would suggest that at times he’s not or has not periodically been in touch with reality. That he basically does not necessarily function at times in a normal state, but that he has a great deal of emotional pathology.

Id. Dr. Reynolds also said that in reviewing the statements of those who knew Defendant and in observing Defendant himself, he found it “remarkable” that no one seemed to have any indication that he would engage in the types of behavior that he did.

And then on the other hand, the psychological tests show that he has that propensity to engage in that type of behavior. And so there’s a big conflict in terms of what people observed of him and maybe what was going on inside of him.

Id. at 58.

When asked if his psychological analysis could explain “the two Michael Wilsons,” Dr. Reynolds spoke of the differences between Defendant’s two parents. Id. at 59. He said:

Well, the social history questionnaire indicates that—and his— his past that he grew up in a family where the father left, who was involved in drugs and alcohol, and pretty much was not involved in Michael’s life.

The mother was very strong, caring, disciplinarian and tried to keep the family together. Michael was involved in church. And then, I believe one of the persons that he identified with very closely, a Sunday school teacher, died of cancer. From my interviews with him, he indicated to me that this was very distressing and very upsetting to him.

There was a lot of gang activity in the neighborhood where he grew up. The mother sent him off to North Carolina for a while with her sister. And Mike did very well out there in a different environment.

So on the one hand, here’s a young man who has an uninvolved father, who’s a role model, was involved in drugs and alcohol, and not particularly caring. And on the other hand, you have a highly structured mother, who provides church and this sort of thing.

So you have the two pictures of Mike. On the one hand, you have the picture of the Sunday school-going child. On the other hand, you have the picture of the gang and uninvolved father, who did not set a particularly good role model.

When he got out of both of those environments and went off to North Carolina, apparently there he did very well. I believe that his sister and his brother-in-law were involved in the Marines, provided a lot of structure for him.

So if we look at the environments to which he was exposed to does explain somewhat of the two type of Michael’s [sic] that you have, depending where he was at as to who he identified with.

Id. at 59–61.

Dr. Reynolds testified about the gang violence to which Defendant had been exposed from a young age. He identified several particularly traumatic experiences: Defendant’s being shot in a drive-by attack when a young adolescent, the torching of his home by rival gang members, and the death of his Sunday-school teacher from cancer.

Dr. Reynolds also suggested that Defendant could be rehabilitated because of his superior intelligence. He explained:

[Defendant’s high level of intelligence] provides him, I think, with

the intelligence to do something with himself, as well as be a contributor to others in terms of understanding his world, understanding what he’s done, what other persons have done. And therefore, with this level of intelligence, he has the ability to make contributions that may be helpful to those who have lesser intelligence.

Id. at 63.

The prosecutor’s cross-examination of Dr. Reynolds elicited a much more disturbing picture of Defendant. It began with the suggestion that Defendant’s personality disturbance was that of a psychopath:

Q: Doctor, in your experience are there psychopathic criminals who have superior intelligence?

A: Yes.

Q: Makes them all the better, doesn’t it?

A: It can.

Q: You referenced a severe personality disturbance and mental disorder, I believe you testified?

A: Yes.

Q: Doesn’t that mean he’s a psychopath?

A: No.

Q: It doesn’t?

A: No.

Q: The sharp contrast he exhibits that you testified to, aren’t those the classic designs of a psychopath? “Yes” or “no”?

A: It can be.

Q: And aren’t psychopaths the most likely to re-offend, based on the studies?

A: Yes.

Id. at 65. Later, Dr. Reynolds agreed that “a 19-year-old with superior intelligence know[s] right from wrong.” Id. at 66. The prosecutor used published studies to attack the validity of the intelligence and personality tests employed by Dr. Reynolds. But he also elicited some of their conclusions. Dr. Reynolds conceded that the MCMI-III interpretive report stated that “[t]he guiding principle of [Defendant] is to outwit others, exerting power over them before they can exploit him,” id. at 69 (internal quotation marks omitted), and that Defendant was “easily provoked” and “may express sudden and unanticipated brutality,” id. at 70 (internal quotation marks omitted). He also acknowledged that Defendant had responded “True” to the following statements on the test questionnaire: “Lately, I have begun to feel like smashing things”; “I often get angry with people who do things slowly”; “I have had to be really rough with some people to keep them in line”; and “I sometimes feel crazy-like or unreal when things start to go badly in my life.” Id. at 70–71 (internal quotation marks omitted).

Later in the cross-examination the prosecutor returned to the psychopath theme, referring to Dr. Reynolds’s prior testimony about the sharp contrast between Defendant’s behavior before family and friends and his violent criminal conduct:

Q: [I]sn’t this consistent with the characteristics of a psychopath?

A: As I stated before, it can be.

Q: Well, aren’t superficial charm and good intelligence, coupled with cunning and manipulative lack of implusivity [sic] behavior characteristics of a psychopath?

A: Yes, they are.

Q: And that’s what Mr. Wilson has, isn’t it?

A: Some of those characteristics, he has.

Q: And you told this jury that psychopaths are the most likely to reoffend based on the studies?

A: Yes.

Id. at 76.

Dr. Reynolds acknowledged that he did not know what mental-health treatment options would be available to Defendant in prison, and he agreed that without treatment, Defendant would represent a continuing threat to others. Dr. Reynolds also conceded that past violent behavior is the best predictor of future violence.

On redirect examination Dr. Reynolds defended his use of the psychological instruments challenged by the prosecutor. He also expanded on the significance of Defendant’s answer on the MCMI-III that he felt “crazy-like”:

Q: What things were you referring to, sir, whenever you told us there were evidences of severe mental disorder in this person?

A: Well, I think probably the most classic example would be in the Noteworthy Responses when [the prosecutor] asked me to read one of the questions, which “Sometimes I feel crazy-like or unreal when things start to go badly in my life,” he answers true.

Id. at 82. Dr. Reynolds went on to note that “[u]sually, unless someone’s pretty disturbed, they’re not going to answer that true, they’re going to answer that false.” Id.

Dr. Reynolds further testified that the tests were mere components of his overall evaluation of Defendant, to be interpreted in light of clinical experience, interviews, observations, and Defendant’s social history. He stated that Defendant’s mental disorders were treatable, reiterated his opinion that Defendant’s high intelligence made him a good prospect for rehabilitation, and agreed that in light of Defendant’s upstanding behavior in school and church, a structured setting such as prison might have a positive influence on Defendant’s conduct and mental state.

During closing argument the prosecutor repeatedly referred to the crossexamination of Dr. Reynolds, describing Defendant as a “psychopath” and a “psychopathic killer.” Id., Tr. Feb. 20, 1997, at 46. The defense attorneys had little to counter the argument. They did not discuss Defendant’s mental disorder during closing, except to suggest that the “psychopath” label obscured Defendant’s humanity and positive characteristics. Their main themes in closing were that there was no evidence proving that Defendant personally participated in the beating of Yost, and that Defendant could reform his life and be of benefit to others if allowed to live.

The jury found all three aggravating circumstances beyond a reasonable doubt and sentenced Defendant to death.

C. The § 2254 Evidentiary Hearing

From the time of his original appeal to the OCCA to the present, Defendant has contended that he was denied effective assistance of counsel during the penalty phase of his trial. Adopting the language of a member of this court, Defendant has referred to the cross-examination of Dr. Reynolds as a “‘train wreck.’” E.g., Aplt. Br. at 11 (quoting Wilson III, 536 F.3d at 1076 (McConnell, J.)). He attributes Dr. Reynolds’s poor performance to tardy and inadequate preparation by defense counsel. He emphasizes that counsel did not retain Dr. Reynolds until shortly before trial and failed to arrange for Defendant to retake the MMPI-2 personality test when the initial results turned out to be invalid. He contends that trial counsel also failed to conduct adequate interviews of family members that would have enabled Dr. Reynolds to arrive at a diagnosis that could have changed the jury’s decision to impose the death penalty.

To give Defendant an opportunity to show the inadequacy of his counsel’s performance and what could have been accomplished through the additional steps that he believes counsel should have taken, this court ordered the district court to conduct an evidentiary hearing. See Wilson III, 536 F.3d at 1096. The hearing was held on July 28, 2010. Testifying were Dr. Reynolds; Defendant’s lead trial counsel, Joe Paul Robertson, who was director of the Oklahoma Indigent Defense System at the time of the hearing; and Defendant’s second-chair trial counsel, Kent Hudson. For our purposes, we need focus only on Dr. Reynolds’s testimony.3

1. Dr. Reynolds’s Testimony on Direct

The thrust of Dr. Reynolds’s direct examination was to show that if defense counsel had asked him to do before trial what he did only after the jury had sentenced Defendant to death, he could have arrived at a diagnosis of mental disease that would have explained Defendant’s evil misconduct in a way that would generate sympathy from the jury. Dr. Reynolds was purportedly able to arrive at that diagnosis—schizophrenic paranoid personality disorder or paranoid schizophrenic disorder—because he now had a valid MMPI test and had interviews (of Defendant’s family and girlfriend) establishing the delusions and 3 Mr. Robertson had little specific recollection of his representation of Defendant. He did not recall being told by Dr. Reynolds that more time was needed to test Defendant, or that the results of the MMPI-2 personality test were invalid. He suggested that the late hiring of Dr. Reynolds was due to budgetary constraints and to a desire not to turn over Dr. Reynolds’s raw data to the State until absolutely necessary.

Mr. Hudson testified that he did not recall any coordination of strategy between the lay witnesses (whom he handled) and the expert testimony. He also testified that during his many interactions with Defendant, he had never noticed any signs or symptoms of mental illness. hallucinations necessary for the diagnosis. The new diagnosis would also have enabled him to fend off suggestions by the prosecutor that Defendant is a psychopath.

Defense counsel began by marching Dr. Reynolds through his pretrial preparation and his meetings with Defendant. In answer to a question by the court, he then explained the meaning of the invalidity of the MMPI-2 test: [W]hen the individual takes the test in a manner that shows that there may be a variety of reasons that would not allow the test results to be used simply because he answered and his responses were in such a way, that, let’s say, for example, maybe he had a low reading level, he was confused, or he tried to manipulate the test, or let’s say he was inconsistent with his answers.

R., Vol. 2 at 62. Even though the test was invalid, Dr. Reynolds thought that the results “indicated that there was a severe disturbance,” id. at 63, and he felt that he needed more information to determine what was going on. (The computerscored report on the test said, “Many individuals with this profile are considered to have severe Personality Disorders; however, the possibility of Schizophrenia, Paranoid type, or of a Bipolar Affective Disorder should also be considered.” Id., Vol. 1 pt. 5 at 912. And the report’s section on “Symptomatic Patterns” said that Defendant “endorsed a number of extreme and bizarre thoughts, suggesting the presence of delusions and/or hallucinations.” Id. at 910.) Dr. Reynolds thought that he would have told defense counsel “that the test was invalid, we can’t use this information, but there is further information here that is important and that is not totally supported by the MCMI but there’s a need to really know more.” Id., Vol. 2 at 65.4 He explained:

The MCMI really never reported the auditory hallucinations, okay? But where I began to get a tie between the two was the MCMI talked about the paranoid personality. Then I hear the MMPI, the way he answered those questions, talking about voices, et cetera, et cetera, et cetera, and then that began to give me information that there’s something more here that I need to investigate.

Id. He said that if he had had more time he “would have redone the MMPI again and probably given him instructions in terms of how, if he didn’t understand a question, or if he was unable to comprehend what it was asking, to make a note of it and I would assist him with it so that he would be able to give a more valid result.” Id. at 67. He added that he had now done those things.

Dr. Reynolds then testified about the valid pretrial MCMI-III test. The results indicated “that there was a severe personality disturbance, and that the test gave a variety of diagnoses that could be considered.” Id. at 68. These included narcissistic personality disorder with passive-aggressive personality traits, schizotypal personality features, generalized anxiety disorder, bipolar disorder, posttraumatic stress disorder, and paranoid personality disorder.5

As for the disorder he now diagnosed Defendant as having—schizophrenic paranoid personality disorder—Dr. Reynolds explained that “it would have to have with it auditory hallucinations, and that’s where they’re hearing things, they’re hearing things to be told to do, or they’re hearing things, for example, that they’re a special person, or maybe there’s evil spirits.” Id. at 78–79. He said that people with the disorder “have the paranoid ideas that people are out to get them, that they don’t really trust people, that they’re suspicious of others, and he met that diagnosis.” Id. at 79. But, he added, people with the disorder can function in society:

[E]verybody kind of thinks of schizophrenia as somebody who is dysfunctional, completely can’t talk straight, or anything like that. But on the paranoid—schizophrenic paranoid personality disorder, the person still appears quite able to function, and Mr. Wilson did, so he met that criteria as well. It was the combination of his paranoid ideas, the delusions, and the auditory hallucinations that fit that diagnosis.

Id. (emphasis added).

Explaining how he arrived at his diagnosis, Dr. Reynolds testified that the statements by lay persons were critical:

[W]hat clued me in is when he indicated to me about the voices, but when I then got collaborative [sic] information that verified that from the girlfriend, his brother, and some sense of it from his mother, that somehow solidified my essence that now I felt more on the right track, but that’s not what I had before.

Id. at 71–72.

In response to the court’s question about how the diagnosis would have affected the jury, Dr. Reynolds said that the mental illness could explain Defendant’s motivations:

Well, I don’t know how a jury thinks, but I think it may have helped them understand that the motivation for what he did, once they knew about the delusions, once they knew about the voices, and once they knew about his mental illness, would have helped them know a little bit more that maybe he was influenced by his mental illness as averse to being just a raw, bad guy that’s just out there for the fun of it, but that the mental illness had some impact as opposed to being a normal guy that just goes out there and does something heinous, as he did. So I think it had to do with them and it would depend on what their opinion of mental illness is. So I think just knowing that the motivation may have been driven somewhat by his mental illness as opposed to not having that disorder.

Id. at 72. Defense counsel later pursued the matter further, asking what was “the most crucial information” about Defendant that Dr. Reynolds could have given the jury but did not. Id. at 89. Dr. Reynolds replied, “I think the discussion of his mental disorders,” and went on to assert that this information “was crucial in allowing the jury to know every aspect of Mr. Wilson in this part of the trial, to be able to understand him, possibly understand some of his motivations, understand his behavior, and that his behavior may have had something to do with his mental illness.” Id. Dr. Reynolds said that the schizophrenia diagnosis would have presented “a different picture” of Defendant had it been available at trial. Id. at 109. He explained that “my part of the trial, it was basically his intelligence and that he was disturbed. And the picture that we have now is someone who is very seriously disturbed with a psychiatric diagnostic disorder that is very, very severe.” Id. He stated that the posttrial diagnosis “superseded the antisocial diagnosis,” id. at 96, “simply because of the delusions, the auditory hallucinations, and the test data.” Id.

Dr. Reynolds also testified that he could have corrected the prosecutor’s use of the term psychopath if he had been properly questioned on redirect examination:

Q: Do you believe that Mr. Wilson’s attorney allowed you to explain the term “psychopath”?

A: No, he did not.

Q: Okay. Could you explain the term “psychopath” to the jury had you been asked?

A: Yeah. Yes.

Q: What is the meaning of a psychopath?

A: Well, there is no meaning because it doesn’t exist.

Q: [W]ell, is it outdated, that it used to exist?

A: It’s outdated, yes.

Q: Okay. Whether it doesn’t exist now or is outdated or not, does that term carry a stigma?

A: Probably to the lay persons it does, yes.

Q: And what would that stigma be?

A: Well, I guess I’ll just put it very simply, in that this is a very dangerous, bad person who has no regard for life of others.

Q: Did you feel the jury was left with an inaccurate depiction of Mr. Wilson?

A: Well, I think they got part of Mr. Wilson, but I don’t think they got more of what was there, but I can’t say that it was inaccurate.

[I]f the part maybe you’re referring to is being defined as a psychopath, that was inaccurate. But they did get other parts of him.

Q: Is being depicted as a psychopath harmful?

A: Certainly, yes.

Id. at 91–92.

2. Cross-Examination of Dr. Reynolds

The prosecutor’s cross-examination of Dr. Reynolds at the evidentiary hearing was, if anything, more devastating to Defendant’s case than the trial cross-examination of Dr. Reynolds had been. Rather than reporting the crossexamination in chronological order, we organize it by subject matter.

a. Use of the Term Psychopath

The prosecutor began by pointing out that the term psychopath was not as clinically inappropriate or outdated as Dr. Reynolds had suggested. He noted that the American Psychiatric Association’s widely used and authoritative Diagnostic and Statistical Manual of Mental Disorders (4th ed. Text Revision 2000) (DSM-IV-TR), itself says that the term has been used as another name for antisocial personality disorder. Indeed, Dr. Reynolds himself had used the term shortly after the trial. The affidavit that he drafted for Defendant’s state-court appeal stated that “psychopath is a term associated with antisocial personality disorder.” Id., Vol. 1 pt. 5 at 1011. (The statement was deleted from the affidavit filed with the OCCA.) Dr. Reynolds responded that it would nevertheless be incorrect to use the term because “it’s not a DSM-IV diagnosis any longer,” id., Vol. 2 at 114, and, in any event, as his affidavit quoted the DSM-IV, “‘Antisocial behavior that occurs exclusively during the course of schizophrenia or a manic episode should not be diagnosed as antisocial personality disorder’ or psychopathic personality.” Id., Vol. 1 pt. 5 at 1011.

b. Effect of Mental Disorder on Defendant’s Participation in the Murder

The prosecutor challenged whether Dr. Reynolds’s diagnosis of Defendant, even if correct, could help explain his behavior at the QuikTrip:

Q: Doctor, I believe you mentioned on direct examination that you believe your diagnosis of paranoid schizophrenia may have helped the jury understand Mr. Wilson’s motivation for what he did. Is that what you testified to?

A: Something to that effect.

Q: And, Doctor, you’ve reviewed the surveillance tape from the Quik Trip depicting Mr. Wilson’s actions during the commission of the murder; correct?

A: I have.

Q: All right. And will you agree, sir, that that videotape depicts a number of logical, goal-oriented behaviors on Mr. Wilson’s behalf?

A: Yes.

Q: So there’s no question that when he goes from the cooler, after Mr. Yost has been herded in there by Mr. Wilson and his accomplices, Mr. Wilson goes to the front checkout stand and assumes the role of clerk; right?

A: Yes.

Q: Logical, goal-oriented behavior?

A: Yes.

Q: Okay. And when Mr. Wilson is conversing with the individuals, the various customers who came into the Quik Trip store that early morning time period, did he seem to have any trouble conversing with them, sir?

A: No.

Q: The tape you had had the audio portion of it; right?

A: Yes.

Q: He’s able to strike up conversations; right?

A: Yes.

Q: He’s able to help these individuals find whatever it was they supposedly were looking for; right?

A: Yes.

Q: Okay. And he was able to help move them along and get them on out; right?

A: Yes.

Q: And that’s logical, goal-oriented behavior under the circumstances; would you agree?

A: Yes.

Q: And the same is true with Mr. Wilson removing the safe from the cabinet; right?

A: Yes.

Q: And I could go on and on. Doctor, that’s a pretty good indication, is it not, of what Mr. Wilson was motivated to do there; right?

A: Yes.

Id., Vol. 2 at 127–29.

c. Consistency of Dr. Reynolds’s Diagnosis with the Test Results

The prosecutor also challenged Dr. Reynolds’s posttrial diagnosis. He first questioned whether it was consistent with the pretrial MCMI-III, which was valid:

Q: [I]sn’t it true the MCMI-III has several clinical scales that measures for the sort of thought disorders and delusional disorders that would be relevant to a diagnosis of schizophrenia?

A: Yes.

Q: [D]espite that, the MCMI-III did not suggest, as a likely diagnosis, paranoid schizophrenia, did it?

A: That’s correct.

Q: A diagnosis of paranoid personality disorder suggests the absence of paranoid schizophrenia; is that correct?

A: Well, it would be only the absence of the hallucinations and delusions.

Id. at 123.

The prosecutor then asked about the consistency of the diagnosis with the valid posttrial MMPI-2:

Q: [U]nder “Diagnostic Considerations,” where the report states, “Individuals with this MMPI-2 clinical profile are usually diagnosed as having a personality disorder, antisocial type.”

A: Uh-huh.

Q: Okay. And it goes on to say a lot of other things; right?

A: Correct.

Q: Basically bolstering the antisocial features of Mr. Wilson’s personality; is that fair to say?

A: Well, again, you have to understand that this is a hypothesis that you then correlate with collateral data. So the collateral data then supported the bizarre, unusual thinking, things—and it said that I need to take those into consideration, which I did, and therefore, as a clinician, I felt the diagnosis was more clearly of the paranoid schizophrenic than it was the antisocial. As I explained before, there are antisocial characteristics here, for sure.

Id. at 126–127 (emphasis added). (The record shows that the computer-scored report of the initial but invalid MMPI-2 had actually been more supportive of Dr. Reynolds’s ultimate diagnosis. Its first sentence under “Diagnostic Considerations” stated: “Many individuals with this profile are considered to have severe Personality Disorders; however, the possibility of Schizophrenia, Paranoid type, or of a Bipolar Affective Disorder should also be considered.” Id., Vol. 1 pt. 5 at 912. The same section in the report of the valid test did not suggest consideration of schizophrenia, paranoid type.)

More dramatically, the prosecutor pointed out that the posttrial MMPI-2 emphatically supported a picture of Defendant that correlated closely with the psychopath image elicited at trial. He asked about a section of the interpretive report for the test that described Defendant as posing a continuing threat to society:

Q: MMPI-2, the second that you administered here, the valid one, sir, refers to the Megargee scale; right?

A: Yes.

Q: All right. And it classified Mr. Wilson as a type C offender; correct?

A: Yes.

Q: What does type C offender mean? [Discussion of where to find the section of the report]

A: It indicates that these are difficult and criminal offenders.

Q: It also goes on to say that, in fact, type C inmates typically have difficulty adjusting to prison life; right?

A: Yes.

Q: It may be necessary to segregate them from weaker or more vulnerable inmates; correct?

A: Yes.

Q: And when it refers to treatment considerations in the last paragraph on the page, the MMPI-2, the second one, the valid one that you generated, it says that, in fact, Mr. Wilson—or individuals with this profile type tend not to be very successful with treatment or rehabilitation programs; is that correct?

A: Yes.

Q: And it says it’s because they usually do not seek treatment on their own and have little motivation to alter their behavior. Okay. Well, could that extend to the taking of medication?

A: You mean whether they’ll take medication or not?

Q: Correct.

A: Well, medication is treatment, so it could. . . . .

THE COURT: And it says . . . “Their suspicious attitudes and deep-seated hostility toward others make them a difficult case for rehabilitation.” That would be counterproductive to a strategy of having an intelligent human being that could do well in a prison environment and be rehabilitated; correct?

THE WITNESS: Correct.

THE COURT: It’s inconsistent?

THE WITNESS: Yes.

Id., Vol. 2 at 129–131 (emphasis added).6

d. Factual Support for Dr. Reynolds’s Diagnosis

As previously discussed, the basis of Dr. Reynolds’s rejection of the diagnosis of “personality disorder, antisocial type” (which was suggested by the valid posttrial MMPI-2 report) in favor of his diagnosis of paranoid schizophrenic disorder was his finding that Defendant suffered from delusions and auditory hallucinations. On cross-examination of Dr. Reynolds the prosecutor took aim at that finding. The finding relied in large part on statements by Defendant’s family and girlfriend.

First, the prosecutor asked whether Dr. Reynolds had spoken with any of the witnesses other than Defendant’s mother. Although Dr. Reynolds had testified on direct examination that he had conducted interviews with at least two others, he retreated from that assertion on cross-examination, saying that he may have just relied on their affidavits. The exchange continued:

Q: Okay. And would it have been important to you to have sat down and spoken with these family members who signed these affidavits? A: I felt like the information that I got with them on an affidavit under oath was adequate . . . and that it was valuable.

Q: Okay. And who—

THE COURT: How do you know whether that information is true or not?

THE WITNESS: I don’t. . . . It’s not my job to investigate. I take them for what they tell me. But what I saw was consistency across the board, which gave me some sense that there was truthfulness to it.

THE COURT: Unless someone drafts the affidavits for them?

THE WITNESS: True.

Id. at 118.

Later the prosecutor asked about the specifics of the statements by the various witnesses. He began by questioning Dr. Reynolds about his reliance on three statements by Defendant’s girlfriend, Tonya Holt. The first was her statement that he had told her that his father was dead: Q: Okay. And one of the instances from the affidavits that you refer to to support your diagnosis of paranoid schizophrenia is Tonya Holt’s affidavit, her statement that the defendant told her that his father was dead; right?

A: Yes.

Q: Do you remember that? Well, Doctor, do you recall what kind of a relationship Mr. Wilson had with his father?

A: It was rather distant and difficult.

Q: Okay. Basically a non-entity in his life?

A: Yes. Pretty much so.

Q: Do you recall, was his father, you know—was he a homeless person? Did he have a house? Do you recall what his social status was in life?

A: I believe that he had an issue with drugs and alcohol.

Q: Okay. So is it possible, sir, that Mr. Wilson told Tonya Holt that—

[Defense counsel]: Objection, Your Honor.

THE COURT: Let him ask the question first.

Q: Is it possible, sir, that Mr. Wilson told Ms. Holt that his father was dead because he was embarrassed by his father?

[Defense counsel]: Objection, Your Honor; there’s no—

THE COURT: Calls for speculation?

[Defense counsel]: Exactly.

THE COURT: Sustained.

Q: Is there a possible nonpsychotic explanation for Mr. Wilson’s statement to Ms. Holt that his father was dead?

A: None that I have.

Q: None that you have that you received from the sources you read, or none that you’ve come up with?

A: I have no information to indicate that there was a different reason that he might make that statement.

Id. at 131–32.7 Dr. Reynolds apparently had forgotten what Holt had said in her statement: “Micheal never explained to me why he said his father was dead. I thought Micheal meant his father Oscar was not being a father.” Id., Vol. 1 pt. 5 at 854.

The second Holt statement about which the prosecutor questioned Dr. Reynolds was her statement that Defendant had said his name was Tom, not Micheal:

Q: You cite the fact that Mr. Wilson—and this is according to Ms. Holt’s affidavit—Mr. Wilson denied his name was Michael and introduced himself as Tom. You cite that as a basis to support your diagnosis of paranoid schizophrenia; correct?

A: That’s one of the delusions that I cited, yes.

Q: Okay. And you’ve reviewed the recording of Mr. Wilson’s statement to the police; correct?

A: Yes.

Q: He gives a confession?

A: Gave a confession, yes.

Q: Right?

And do you recall in that audio statement he tells the police, in response to questioning, that he used the name Tommy when he identified himself to the newspaper man who came into the store? Do you recall that?

A: I don’t. I don’t recall that.

Id., Vol. 2 at 132–33. The prosecutor did not refer to Holt’s statement in her affidavit that when Defendant used the name “Tom,” she thought “he was just playing.” Id., Vol. 1 pt. 5 at 855.

Third, the prosecutor asked Dr. Reynolds about Holt’s suggestion that Defendant had auditory hallucinations:

Q: All right. Well, you cite Mr. Wilson’s statement to Tonya Holt that he hears voices and you have to fight them away and pray them away as an example of psychotic behavior supporting your paranoid schizophrenia diagnosis; correct?

A: Correct.

Q: Okay. And in this situation, Mr. Wilson basically states that he can control the voices; is that right?

A: I believe that he tries to control the voices through prayer.

Q: Okay. Because he states you can pray them away if you just pray hard enough, fight hard enough; is that right?

A: Well, no, that’s not what he said. I don’t think he said that you can pray them away or if you pray hard enough, but that was an attempt which is very common for people with this disorder to make these voice [sic] goes away. They usually try to do whatever they can, and in this case he used religion to attempt to make the voices go away because they told him to do things.

Id., Vol. 2 at 133–34. Dr. Reynolds’s recollection was faulty. The affidavit of Holt in the record states that Defendant told her: “I hear voices & its OK. You just have to fight them, you just have to pray them away and they will go away.”8

Id., Vol. 1, pt. 5 at 856.

Next, the prosecutor asked Dr. Reynolds whether his diagnosis was supported by the statement of Defendant’s sister that he had told school officials that his mother was white. Dr. Reynolds said that he did not recall how old Defendant was when he made the statements. The prosecutor reminded Dr. Reynolds that the sister said that it was when they were in school together. (The sister’s affidavit states that Defendant was “just a kid” at the time. Id. at 864.) He then continued:

Q: Okay. Sir, would it be unusual for paranoid schizophrenia to onset in a young child?

A: The onset usually begi- —it’s not unusual. I mean, it does occur, it’s not common, but the onset is usually the late teens to the early forties, but it is not uncommon for it to occur in children.

Q: Okay. And Doctor, you’ve reviewed medical records from Children’s Medical Center in preparation for your trial testimony; is that correct?

A: That is correct.

Id., Vol. 2 at 134–35. Dr. Reynolds could not recall when Defendant had been seen at the center, but he was given records showing that Defendant was 16. Dr. Reynolds then acknowledged that the doctors at the center had found no indication of psychotic behavior, specifically reporting the absence of delusions or hallucinations.

Similarly, the prosecutor suggested that another supposed delusion cited by Dr. Reynolds was not indicative of mental illness:

Q: Okay. You cite Mr. Wilson’s belief, firm belief that he will be released from prison as an example of unusual behavior supporting your diagnosis of paranoid schizophrenia; is that right?

A: I believe that it was along the lines of not the diagnosis but that was a delusional comment.

Q: Okay. Well, Doctor, have you had any experience with inmates in the correctional system in the course of your career as a psychologist?

A: Yes.

Q: And are there a lot of inmates who, in fact, may have an irrational belief that they’re going to be released no matter how strong the evidence is against them?

A: I think your word was correct, irrational.

Q: Are they all psychotic?

A: Of course not.

[Defense counsel]: Objection, Your Honor; irrelevant.

THE COURT: Sustained.

Id., at 136.9

The prosecutor also challenged Dr. Reynolds’s statement in his affidavit that Defendant may have been out of touch with reality at the time of trial. Dr. Reynolds admitted that he had not interviewed the trial attorneys on the matter.

Later the prosecutor inquired whether Defendant’s alleged paranoia might be rational, rather than delusional:

Q: All right. In your report, you cite the fact that the defendant believes he’s being plotted against as evidence supporting a diagnosis of paranoid schizophrenia; correct?

A: Yes.

Q: Is it your understanding, sir, that Mr. Wilson was involved in gang life?

A: Yes.

Q: Both before—well, at least before he went to jail; right?

A: Yes.

Q: And do you recall, sir, that, in fact, he was having gang trouble even in jail?

A: I understand there was some fights in jail. I didn’t know if it was gang-related or not but I know there were some altercations.

Q: All right. I mean, gang life, the sort of gang life Mr. Wilson had, is that a possible nonpsychotic explanation for his belief that he was being plotted against?

A: Well, it would certainly fit into gang life, that is correct. And so, therefore, that would be consistent with the development of a paranoid disorder, whether how accurate it was that he was being plotted against or not, but he would probably have, most likely with this disorder, an exaggerated view of how he is out to be gotten or killed. But there had some relative—there was some relevance to the idea that he was definitely being plotted against, yes.

Q: I mean, you recall the situation where his mother’s house was burned down; right?

A: Yes.

Id. at 138–39.

We also note a matter not explored during the hearing. Present in the record submitted to the district court was a telling discrepancy between Defendant’s responses on the pretrial invalid MMPI-2 and the posttrial valid MMPI-2. In the pretrial MMPI-2, under the “Critical Items” section for “Mental Confusion,” the interpretive report indicated that Defendant had answered “True” when asked to respond to the statement “I often hear voices without knowing where they come from.” Id., Vol. 1 pt. 5 at 922. (Dr. Reynolds’s handwritten notes on the pretrial report reflect that Defendant told him that when he was in jail he heard two voices telling him to hang himself. Dr. Reynolds did not recall when he wrote the notes.) But on the posttrial MMPI-2 under the same Critical Items section, no such response is noted, meaning that Defendant apparently did not answer this item “True” during the re-test. When administering the re-test, Dr. Reynolds had instructed Defendant to ask for clarification or assistance if he had difficulty understanding any of the questions.10

This discrepancy may partly account for the fact that while the invalid MMPI-2 suggested that “Schizophrenia, Paranoid type” should be considered as a possible diagnosis, id. at 912, the valid MMPI-2 stated that “[i]ndividuals with this MMPI-2 clinical profile are usually diagnosed as having a Personality Disorder, Antisocial type,” id. at 1017, and did not mention a possible diagnosis of schizophrenia. Dr. Reynolds testified that it was collateral data from the other witnesses’ affidavits and the additional records furnished him by appellate counsel that enabled him to arrive at the schizophrenia diagnosis.

3. Redirect Examination of Dr. Reynolds

On redirect examination Dr. Reynolds reiterated his belief that he reasonably relied on the witness affidavits in forming his clinical opinion, and that he had not needed to interview the witnesses to obtain adequate information. He clarified that although the valid MMPI-2 had contained indications of antisocial behavior, he thought that those patterns were “part of a paranoid schizophrenic process.” Id., Vol. 2 at 146. He testified that the actions of Type C offenders can be controlled in a prison. And he stated that the absence of delusions and hallucinations reported in Defendant’s medical records from age 16 did not negate the schizophrenia diagnosis, because the onset of the disorder is typically later in life.

II. DISCUSSION

A. Standard of Review Generally, when an applicant seeks relief from a state court conviction or sentence under 28 U.S.C. § 2254, we must apply the deferential standard of review established by the Antiterrorism and Effective Death Penalty Act (AEDPA). If the state court adjudicated the federal claim that the applicant now presses on the merits,

we may only grant federal habeas relief if the habeas petitioner can establish that the state court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”

Saiz v. Ortiz, 392 F.3d 1166, 1175 (10th Cir. 2004) (quoting 28 U.S.C. § 2254(d)(1)).

On direct appeal from his conviction and sentence, Defendant pressed his ineffective-assistance claim before the OCCA, supported by affidavits from Dr. Reynolds and his family and girlfriend. Defendant requested an evidentiary hearing on the claim under Rule 3.11, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (1995). The OCCA denied relief on the claim and Defendant’s request for an evidentiary hearing. See Wilson I, 983 P.2d at 471–72. Although noting Defendant’s “attempt to supplement the record with material not found in the record,” id. at 472, the OCCA held that on the basis of its “review of the trial record,” Defendant had failed to demonstrate either deficient performance or prejudice on the mental-health issue, id.

On Defendant’s prior appeal we held that AEDPA deference was not required because the OCCA’s denial of Defendant’s request for an evidentiary hearing was not an adjudication “on the merits” within the meaning of 28 U.S.C. § 2254(d). We noted (1) the OCCA’s apparent failure to consider Defendant’s nonrecord evidence in denying his request for an evidentiary hearing, and (2) the higher threshold for triggering an evidentiary hearing under the OCCA’s Rule 3.11 than permitted under the federal standard stated in Strickland v. Washington, 466 U.S. 668 (1984). See Wilson IV, 577 F.3d at 1290–1300.

The State argues that we should “restore” AEDPA deference to the OCCA’s decision in Wilson I, because the later decision of the OCCA in Simpson v. State, 230 P.3d 888, 905–06 (Okla. Crim. App. 2010), shows that we misinterpreted Oklahoma’s threshold for an evidentiary hearing. Recently, this court has adopted the State’s view. See Lott v. Trammell, No. 11-6096, slip op. at 79–83 (10th Cir. Jan. 14, 2013). But we need not decide whether the OCCA’s decision on the record before it requires that we affirm under AEDPA, because we deny relief based on the evidence that Defendant asks us to consider.

In evaluating Defendant’s claim that his Sixth Amendment rights were violated by ineffective assistance of counsel at the sentencing proceedings, we apply the standard laid out in Strickland, 466 U.S. at 687:

A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

In conducting this two-part inquiry, we need not address the performance and prejudice prongs in that order. See id. at 697 (Because defendants must establish both components to prevail, “a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.”). Here, we need address only prejudice.

“An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Id. at 691. In a challenge to a capital sentence, “the question is whether there is a reasonable probability that, absent the errors, the sentencer . . . would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Id. at 695. We “must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.” Id. at 696.

To resolve whether there was prejudice, we do not consider omitted mitigation evidence in a vacuum. In Wong v. Belmontes, 130 S. Ct. 383 (2009), the defendant was sentenced to death after his counsel presented evidence of his difficult family background during the sentencing hearing but declined to introduce certain additional mitigating evidence (including expert testimony to explain his behavior, see id. at 388–89, and evidence of a serious illness that caused “emotional instability, impulsivity, and impairment of the neurophysiological mechanisms for planning and reasoning,” id. at 389 (internal quotation marks omitted)) out of concern that it would open the door for the prosecution to introduce evidence of a prior murder committed by the defendant, see id. at 385–86. Counsel’s concern that this extremely harmful evidence would be admitted if he introduced certain mitigating evidence was supported by the trial court’s warning that it would allow the prosecution to put on the evidence if the defense presented substantial evidence of the defendant’s nonviolent character. See id. at 386. Rejecting the defendant’s ineffective-assistance-ofcounsel claim for failure to demonstrate prejudice, the Supreme Court held that in assessing prejudice a reviewing court must “consider all the relevant evidence that the jury would have had before it if [the defendant] had pursued the different path—not just the mitigation evidence [the defendant] could have presented, but also the [evidence of the other murder] that almost certainly would have come in with it.” Id. Although some of the omitted mitigation evidence might have helped the defendant, “the worst kind of bad evidence would have come in with the good.” Id. at 390. Hence, the defendant had failed to show prejudice. Following the holding of Belmontes, we must consider not just the mitigation evidence that Defendant claims was wrongfully omitted, but also what the prosecution’s response to that evidence would have been.

In reviewing the district court’s conclusion that Defendant was not prejudiced by his counsel’s alleged deficiencies, “we accept the district court’s underlying factual findings unless clearly erroneous, and we review de novo . . . whether any deficiencies prejudiced the defendant.” United States v. Rodriguez- Rivera, 518 F.3d 1208, 1216 (10th Cir. 2008) (internal quotation marks omitted).

The court ruled that introduction of the additional mental-health evidence submitted by Defendant at the court’s hearing on remand might well have been a double-edged sword, “support[ing] the prosecution’s portrayal of [Defendant] as a dangerous and continuing threat to society.” Wilson V, 2011 WL 744661, at *26. Because of the “distinct possibility that additional mental health evidence might have been counterproductive and harmed Defendant’s mitigation case,” the district court could not “conclude that additional evidence of [Defendant’s] mental health problems would have affected the jury’s imposition of the death penalty.” Id. We agree with the district court that Defendant has not shown that trial counsel’s alleged deficiencies prejudiced him.

1. The Failure to Call Additional Family Witnesses

We first address Defendant’s argument that the witnesses who provided affidavits for his appeal, including his sister, brother, and girlfriend, should have been called during the mitigation case and that their testimony may have convinced jurors to vote against death.

We look to the posttrial affidavits as proffers of how these witnesses would have testified. These affidavits assert that Defendant was affected by gang violence from his youth, stating that he sustained a gunshot injury in a drive-by shooting; that he was frequently targeted by rival gang members, who shot at him, vandalized his car, and burned the house he shared with his mother; and that he was attacked by gang members, including members of his own gang, while incarcerated. But the jury heard about the drive-by shooting and arson incident during Dr. Reynolds’s testimony on Defendant’s social history. Although Dr. Reynolds did not speak from first-hand knowledge about either incident, neither, so far as the record shows, could any of the omitted witnesses. The additional matter would not have qualitatively altered the picture of Defendant’s exposure to violence and could have merely emphasized his gang involvement.

The omitted witnesses might also have testified to some of Defendant’s unusual behaviors and thought processes, which Dr. Reynolds thought indicative of a mental disorder. The value of this evidence, however, depends on the value of Dr. Reynolds’s use of it, a matter we address in the next section of this opinion. Suffice it to say now that Defendant gives no reason to suppose that the evidence would have been more effective if presented by the witnesses in person (and subject to cross-examination), rather than through Dr. Reynolds’s testimony.

2. Deficiencies in Dr. Reynolds’s Trial Preparation and Testimony

Defendant’s chief argument regarding prejudice relates to Dr. Reynolds’s testimony. According to Defendant, had Dr. Reynolds been given sufficient time and information to conduct all necessary interviews and psychological tests properly, he would have arrived at his diagnosis of schizophrenic paranoid personality disorder before trial and, if properly prepared by counsel, could have presented that diagnosis to the jury and explained how Defendant’s background contributed to his mental illness, demonstrated that Defendant’s mental illness affected his behavior and caused him to have difficulty conforming his conduct to the law, and helped the jury understand the motivation for Defendant’s actions, thereby calling into question Defendant’s moral culpability. Defendant contends that conveying this information would have caused at least one juror to believe that Defendant was not deserving of capital punishment. And he asserts that had counsel performed properly, the prosecutor would not have been able to elicit testimony from Dr. Reynolds that supported the prosecutor’s repeated characterizations of Defendant as a psychopath.

In evaluating these claims of prejudice, we look to the testimony at the evidentiary hearing, together with the exhibits offered in evidence at that hearing, to see what likely would been presented at trial if Defendant’s counsel had done what he contends they should have. Our review indicates that Defendant would have been no better off with the evidence presented at the hearing, and in significant ways would have been worse off.

We start with the MMPI-2. Since his direct appeal, Defendant has laid great stress upon the failure to obtain a valid MMPI-2 before trial. Dr. Reynolds’s affidavit submitted to the OCCA in support of an evidentiary hearing states: “There was some evidence for a diagnosis of schizophrenia but because his first MMPI-2 was invalid, I needed additional testing, and further collateral data to support this diagnosis. Unfortunately, there wasn’t enough time to obtain this information before the trial.” R., Vol. 1 pt. 5 at 845.

But the evidence from the hearing demonstrates that having Defendant retake the test did not help his case. The valid test contradicted more than it supported Dr. Reynolds’s transition to a diagnosis of paranoid schizophrenic disorder. The interpretive report for the invalid test stated: “Many individuals with this profile are considered to have severe Personality Disorders; however, the possibility of Schizophrenia, Paranoid type, or of a Bipolar Affective Disorder should also be considered.” Id. at 912 (emphasis added). But the valid test’s interpretive report said: “Individuals with this MMPI-2 clinical profile are usually diagnosed as having a Personality Disorder, Antisocial type.” Id. at 1017.

It did not suggest that schizophrenia be considered as a possible diagnosis.

Worse for Defendant, the interpretive report of the valid MMPI-2 emphatically bolstered the prosecution’s position that Defendant was a continuing threat to society. The invalid test’s interpretive report said that Defendant “fits equally well into more than one classification according to the Megargee classification,” which was described as a “system for classifying male criminal offenders.” Id. at 912. The report did not say which classifications Defendant fit within, nor did it describe the characteristics of those classifications. The valid test’s interpretive report, however, painted Defendant as being the most despicable type of criminal. It said:

[Defendant’s] profile matches those of Type C offenders in the Megargee typology. Individuals matching this profile type are among the most difficult criminal offenders. They are often viewed as distrustful, cold, irresponsible, and unstable. They tend to have antisocial, aggressive, and hostile attitudes toward others. They engage in violent crimes against other people and usually have an extensive criminal record. They tend to come from deviant and stressful home environments and typically have a great deal of difficulty adjusting to society. They are viewed by others as alienated, bitter, rigid, and dogmatic. Their interpersonal relationships are quite disruptive; their suspicious attitudes and deep-seated hostility toward others make them a difficult case for rehabilitation. Research has supported the view that Type C inmates typically have difficulty adjusting to prison life. It may be necessary to segregate them from weaker or more vulnerable inmates during incarceration.

Id. at 1017 (emphasis added). This is a roadmap for one seeking to portray Defendant as a dangerous criminal who could not safely be allowed to live. When confronted at the evidentiary hearing with these statements contradicting his diagnosis of Defendant, Dr. Reynolds stated that the test’s suggested diagnoses merely provided “a hypothesis that you then correlate with collateral data.” Id., Vol. 2 at 126. But the value of the collateral data on which he relied—the statements by members of Defendant’s family and his girlfriend that Dr. Reynolds found to be evidence of Defendant’s delusions and hallucinations—was undermined by the cross-examination of Dr. Reynolds at the § 2254 evidentiary hearing. Indeed, Dr. Reynolds’s insistence that the statements provided clear support for the diagnosis suggested sloppy analysis and bias, raising serious question about his credibility.

We note a few examples. First, as evidence of Defendant’s delusions, Dr. Reynolds referred to the statement by Defendant’s sister that years earlier, when she and Defendant had attended the same school, Defendant had told school officials that the two of them had different mothers and that his mother was -48- white. But the statement was made when Defendant was “just a kid,” id., Vol. 1 pt. 5 at 864, and a later mental-health evaluation of Defendant administered by Children’s Medical Center when he was 16 reported no delusions or hallucinations. After being confronted by this information on cross-examination, Dr. Reynolds tried to explain away the mental-health evaluation during his redirect examination by noting that “usually the onset [of paranoid schizophrenia] is late teens to the early forties.” Id., Vol. 2 at 146. The explanation, however, merely emphasizes the irrelevance of the “white mother” incident during Defendant’s childhood.

Second, Dr. Reynolds said that the presence of delusions and hallucinations was supported by the untrue statement of Defendant to his girlfriend, Tonya Holt, that his father was dead. Dr. Reynolds testified on cross-examination that he had no “possible nonpsychotic explanation” for Defendant’s statement, id. at 132, even after he had conceded that Defendant’s father was a man with drug and alcohol issues who was “pretty much” a non-entity in Defendant’s life, id. at 131, and the prosecutor had suggested that Defendant was simply embarrassed by his father. Most remarkably, the very statement by Holt relied on by Dr. Reynolds continued: “[Defendant] never explained to me why he said his father was dead. I thought [Defendant] meant his father Oscar was not being a father.” Id., Vol. 1 pt. 5 at 854

Third, another statement from the Holt affidavit that Dr. Reynolds cited in support of the presence of delusions and hallucinations described Defendant’s habit of sometimes introducing himself by a false name, Thomas, and adopting different mannerisms. The prosecutor pointed out that Defendant had told police (in his murder confession) that he had used the name “Tommy” during the robbery in order to conceal his identity. Id., Vol. 2 at 133. Dr. Reynolds did not recall this information. He also apparently ignored Holt’s statement that “[she] always thought it was strange [that Defendant used the name “Tom”], but [she] also thought that he was just playing.” Id., Vol. 1 pt. 5 at 855.

The best of this evidence of hallucinations was Holt’s statement that Defendant had told her that he heard voices. But even on this point Dr. Reynolds misremembered facts that may have been relevant to his diagnosis. At the evidentiary hearing the prosecutor asked whether “[Defendant] state[d] you can pray [the voices] away if you just pray hard enough, fight hard enough.” Id., Vol. 2 at 133. Dr. Reynolds responded: “Well, no, that’s not what he said. I don’t think he said that you can pray them away or if you pray hard enough, but that was an attempt which is very common for people with this disorder to make these voice goes [sic] away.” Id. at 133–34. The prosecutor was not wrong. According to Holt, “[Defendant] told me, ‘I’ve heard them too, I hear voices & its OK. You just have to fight them, you just have to pray them away and they will go away.’” Id., Vol. 1 pt. 5 at 856.

Another point on which Dr. Reynolds looked foolish was his finding that Defendant suffered from paranoia. He said in his affidavit: “[Defendant’s] delusions appear to be of a grandiose and paranoid type. He believes . . . that he is being plotted against.” Id. at 848. But Defendant was a gang member, and a rival gang had shot him and set his mother’s home ablaze. Dr. Reynolds’s struggle to construct a finding of delusional paranoia can be illustrated by the statement in his affidavit that Defendant’s sister “described him as very suspicious and paranoid,” id. at 847, when her full statement was: I am familiar with the gang environment that [Defendant] grew up in and I know it is no exaggeration to say that he was shot at on a daily basis. I believe [Defendant] was being pulled into the gang scene by at least his ninth grade year of high school. I remember [Defendant] got real suspicious and paranoid after he joined the gang. He knew it was a game of survival and he was always checking to see if someone was in the house or near the car.

Id. at 865 (emphasis added).

In sum, Defendant has utterly failed to show that additional testing and interviews would have produced a plausible diagnosis of paranoid schizophrenic disorder. Nor has Defendant shown that better preparation of Dr. Reynolds could have eliminated or weakened the prosecutor’s success at trial in characterizing Defendant as a psychopath. The term is used in the DSM-IV. It was even used by Dr. Reynolds in his draft affidavit for use in the appeal to the OCCA, before it was deleted in the editing process. And little would have been gained by prohibiting use of the term because the description in the valid MMPI-2 of the Defendant’s profile—a Type C offender in the Megargee typology—explicitly describes the vision of evil evoked by the word psychopath.

Defendant’s evidence from the hearing also failed to establish any connection between Dr. Reynolds’s diagnosis of Defendant and his commission of the murder. Although Dr. Reynolds testified that knowing that Defendant suffered from schizophrenic paranoid personality disorder might help a jury understand Defendant’s “motivation” for committing the crime, id., Vol. 2 at 72, there was no credible evidence that Defendant acted as a result of delusions or hallucinations. Dr. Reynolds suggested in his affidavit: “It is possible that [Defendant] could have been delusional at the time of the crime; for example, he went to his own place of employment knowing he would be observed by his coworker, and customers. His thinking must have been delusional to believe that he would not be easily identified.” Id., Vol. 1 pt. 5 at 848. But this ignores the planning for the crime, the efforts to allay any suspicion by customers who entered before the perpetrators could remove the safe, and the murder of the one witness who had known Defendant previously.

Finally, insofar as Defendant contends that his counsel were ineffective in not even presenting adequately what Dr. Reynolds had determined from the information obtained before his trial testimony, Defendant has not satisfied his burden of showing what more Dr. Reynolds could usefully have said. He argues that the jury should have been presented “a complete picture of [Defendant’s] mental health,” Aplt. Br. at 40; but he does not describe what that picture was. At most, from what we can tell from the record, Dr. Reynolds had several possible diagnoses stated in the interpretive report on the valid MCMI-III test; but we have no way of assessing how that would have played out at trial, particularly when Dr. Reynolds has never stated that he had adopted one of those diagnoses at the time of his trial testimony. Defendant also states that Dr. Reynolds could have testified at trial that those with mental disease “have less capability of controlling their behavior in regards to the law.” Id. at 38 (quoting R. Vol. 2 at 88). Such a vague, generalized statement, however, is not the sort of mental-health evidence that courts rely on to show prejudice; indeed, this statement seems as probative of future dangerousness as of diminished moral culpability.

We are not denigrating the value of mental-health evidence to support mitigation in a capital case, nor are we departing from our precedent addressing such evidence. We do not dispute that mental retardation and organic brain damage are well-recognized grounds for mitigation. See Hooks v. Workman, 689 F.3d 1148, 1205 (10th Cir. 2012) (organic brain damage); Anderson v. Sirmons, 476 F.3d 1131, 1144 (10th Cir. 2007) (brain damage) Smith v. Mullin, 379 F.3d 919, 941–42 (10th Cir. 2004) (mental retardation and brain damage); see also Atkins v. Virginia, 536 U.S. 304, 306 (2002) (prohibiting execution of the mentally retarded, partly because they “do not act with the level of moral culpability that characterizes the most serious adult criminal conduct”). And if

(1) the record had supported a plausible diagnosis of paranoid schizophrenia and

(2) Defendant’s behavior during the crime could have been tied to that disorder, this would be a different case.

We conclude that Defendant has not satisfied his burden of showing that the jury’s sentence of death “would reasonably likely have been different absent the errors” of his counsel. Strickland, 466 U.S. at 696. Accordingly, we must deny relief.

Outcome: We AFFIRM the district court’s denial of Defendant’s claims under § 2254.

Oklahoma Court of Criminal Appeals

1998 OK CR 73
983 P.2d 448
70 OBJ 148

Wilson v. State

Case Number: F 97-491

Decided: 12/31/1998

LANE, JUDGE

¶1 Appellant, Michael Lee Wilson, was charged conjointly with three codefendants1 with the crimes of, count one, first degree malice murder and, in the alternative, first degree felony murder, 21 O.S.1991, § 701.7(A & B) and, count two, robbery with a dangerous weapon, 21 O.S.1991, § 801 in Tulsa County District Court, Case No. CF-95-1024. The State filed a Bill of Particulars alleging three aggravating circumstances. A jury trial was held before the Honorable E. R. "Ned" Turnbull, District Judge. The jury found Wilson guilty of first degree murder and robbery with a dangerous weapon. After the punishment stage, the jury found the existence of all three aggravating circumstances: the murder was especially heinous, atrocious or cruel, the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution, and the existence of a probability that the defendant would commit criminal acts of violence that [983 P.2d 455] would constitute a continuing threat to society. 21 O.S.1991, § 701.12 (4),(5) & (7).

I. FACTS

¶2 Michael Wilson and Richard Yost were employees at the QuikTrip convenience store located at 215 North Garnett Road in Tulsa, Oklahoma. Wilson and his friends planned to rob the convenience store at least two weeks before this crime actually occurred. The plan commenced on February 25, 1995. Wilson had completed his shift at 11:00 p.m. with Yost beginning his shift at that time. Wilson and his three friends came into the store during the early morning hours of February 26 and waited for the most opportune time to accost Yost. The QuikTrip surveillance camera captured the events as they unfolded. The video of the events is quite telling.

¶3 Yost was cleaning the windows on the coolers with Wilson and the codefendants surrounding him. As Yost was walking near a passage way to the back room, all four defendants attacked him and dragged him to the back room. One of the defendants, identified as Billy Alverson, came back out and picked up some items that were knocked from the shelves and kept watch for customers. A few moments later, Alverson and Richard Harjo walked out the front door of the store. While they were going out, Yost was yelling and screaming for help, possibly thinking that a customer had entered the store. Alverson and Harjo re-entered the store with Harjo carrying a black aluminum baseball bat. He carried the bat to where Yost had been taken. The surveillance camera picked up the sounds of the bat striking Yost. Circumstantial evidence showed that the baseball bat struck the handcuffs on Yost's wrists which Yost was holding above his head to ward off the blows. As the blows were being struck, Wilson walked from the back room, checked his hands, put on a QuikTrip jacket, got behind the counter and tried to move the safe. While Wilson was behind the counter, several customers came in. Wilson greeted them with a friendly greeting, sold them merchandise, then said "thank you, come again" or "have a nice day."

¶4 All this time Wilson continued to try and pull the safe from underneath the counter. He took money from the cash drawer and pulled money out of the currency change machine. At some point after this, Wilson left the counter area and took the video from surveillance camera recorder. The defendants then loaded the safes into Wilson's car using a dolly from QuikTrip.

¶5 Yost's body was discovered by Larry Wiseman, a customer, at about 6:00 a.m. Yost was laying on the floor in a pool of blood, milk and beer. Yost's ankles were taped together with duct tape. One handcuff was found near Yost's body. The other cuff was missing from the scene. Detectives learned that Wilson was at the store between the hours of 4:00 a.m. and 6:00 a.m.

¶6 Wilson failed to show up for work at the scheduled time of 3:00 p.m. on the same day. Officer Allen set up surveillance on Wilson's house and at about 4:00 p.m. he spotted Wilson get into a gray vehicle. The vehicle was stopped. Wilson was taken into custody. Also arrested were the other occupants in the vehicle: codefendants Alverson, Harjo, and Darwin Brown. Large sums of money were recovered from all of the defendants except Wilson.

¶7 Wilson was questioned by Detective Folks. He told Folks that they planned on robbing the QuikTrip and that he knew Yost would be killed. He said that they had been talking about the robbery for about two weeks. The plan was for him to assume the role of sales clerk once Yost was "taken care of."

¶8 Officers searched Alverson's place of abode where they discovered the drop safe, the dolly, QuikTrip glass cleaner, money tubes and the store surveillance video tape. A search was conducted of Wilson's house but nothing of value was discovered. The next day Wilson's mother called Officer Makinson to come to her house. Once there, the detectives found several items of evidence on the front porch, including the baseball bat, a bloody QuikTrip jacket with Yost's name on it, Wilson's Nike jacket matching the one worn in the store video and the other cuff of the set of handcuffs.

¶9 [983 P.2d 456] Wilson raises twenty propositions of error in his appeal. These propositions will be addressed as they arose at trial.

II. DUAL JURY ISSUES

¶10 In proposition one, Wilson raises several sub-issues concerning the use of dual juries in this case. Although he was tried conjointly with codefendant Brown, each defendant had a separate jury deciding their fate.

¶11 In Cohee v. State, 1997 OK CR 30, Guideline 2, 942 P.2d 211, 213, a majority of this Court set forth Guidelines Governing Juries in Criminal Trials which included approval of the use of dual juries in cases where codefendants are charged. Very little guidance was given to trial courts in the implementation of this procedure except for the provision that:

[b]oth juries will be seated in the jury box and the evidence pertaining to both defendants will be presented to both juries simultaneously. Evidence admissible as to one co-defendant shall be presented to that defendant's jury only.

Cohee

¶12 We first note that the jurisdictions which have approved the use of a dual jury system or multiple jury process require a defendant to show actual prejudice from the use of this novel approach to multiple defendant trials.4 We find this approach comports with Oklahoma law. The use of the multiple jury process is constitutional, and a conviction had with the use of the multiple jury system will be upheld absent a showing of specific prejudice.

¶13 Wilson first claims that the dual jury system has a chilling effect on effective cross-examination. He claims that this problem was magnified when the trial court instructed defense counsel that it is the responsibility of attorneys for the State and defense to advise the Court of testimony which will make it necessary to have the juries separated. The trial court told the attorneys that they would have to work a little harder and that the trial court did not anticipate that any of the attorneys would purposely taint the proceedings in front of the jury.

¶14 [983 P.2d 457] Wilson claims that the spectacle of removing one jury during the course of the trial would place, in the removed juror's minds, the idea that something bad was about to be said about their respective defendant. Therefore, Wilson proposes that defense counsel is in a quandary to either engage in prejudicial cross-examination or create a spectacle of jury removal.

¶15 We fail to see the quandary here. The better course is to remove the jury which may be subject to information that they would otherwise be prohibited from hearing. The jury should be instructed, as is done when bench conferences or objections are ruled upon, that they are not to speculate about what went on in their absence and not to hold it against the defendant for whose fate they were deciding.

¶16 The trial court, in its initial instructions, told both juries that they would be removed from the court room when evidence was presented that did not pertain to their particular defendant. The trial court asked the jury collectively if they could assure the court that they would "not attempt to draw any inference, or come to any conclusions, or guess at what evidence may be presented or is being presented at the time when you were outside of the courtroom." The jury collectively answered in the affirmative.

¶17 We believe that the trial court's instructions to the jury correctly informed them of their duty. We have not found, nor has Wilson presented a record, that they did not follow this admonishment.

¶18 Wilson claims that the dual jury system creates a conflict of interest for defense counsel because he must not only represent his client, but must also strive to protect the codefendant during his presentation of witnesses or cross-examination when both juries are present. Wilson cites Holloway v. Arkansas, 435 U.S. 475, 488-91, 98 S.Ct. 1173, 1180-82, 55 L.Ed.2d 426 (1978), for the proposition that when a conflict of interest is present, prejudice is presumed.

¶19 In Holloway, counsel was required to represent three different codefendants who had conflicting interests. Trial counsel, as an officer of the court, had filed pre-trial motions advising the trial court of a possible conflict of interest and requested separate counsel. This motion was denied. The Court in Holloway determined that when trial counsel, as an officer of the court, claims that a possible conflict of interest will occur because of joint representation, the failure to take adequate steps to resolve the conflict constitutes reversible error. Holloway, 435 U.S. at 486-87, 98 S.Ct. at 1180.

¶20 In this case, each defendant had separate counsel. Therefore, counsel was not faced with the problems occurring in Holloway. The only obligation Wilson's counsel had to the codefendant was to inform the judge when his questions would lead to answers which would not be admissible in the trial of the codefendant. If objectionable questions and answers were presented, it was the responsibility of the codefendant's attorney to raise an objection. At that point it was the trial court's responsibility to determine whether the questioning was prejudicial to the codefendant. We do not believe that the responsibility placed upon trial counsel chilled cross-examination in this case.

¶21 Wilson does not identify specific instances where his counsel was acting under an actual conflict of interest. Instead, Wilson points to the fact that his trial counsel failed to cross-examine several witnesses and failed to conduct a thorough cross-examination of Roy Heim, which would have further developed the theory that Wilson was less culpable than the other defendants. The witnesses not cross-examined by Wilson testified about the store operations, finding Yost's body and observing Wilson in the QuikTrip between 5 and 6:00 a.m. the morning of the crime.

¶22 Whether to cross-examine witnesses is a decision left to trial counsel and is a valid trial strategy. Le v. State, 1997 OK CR 55, ¶ 64, 947 P.2d 535, 557, cert. denied, ___ U.S. ___, 118 S.Ct. 2329, 141 L.Ed.2d 792 (1998). Wilson has not shown that the failure to cross-examine these witnesses caused him to be prejudiced. We have reviewed the testimony and find that the failure to cross-examine these witnesses was based on trial [983 P.2d 458] strategy and not on the dual jury system. The lack of cross-examination of Heim regarding the blood trail from the back room toward the register area and the lack of blood behind the register was likewise a decision of strategy. The videotape showed Wilson remaining in the back room after the bat was brought in. The diagram of the scene clearly indicated a lack of blood behind the registers where Wilson was subsequently stationed. Whether or not Wilson created the blood trail was not the determining factor in his conviction and sentence.

¶23 Next, Wilson claims that the dual jury system deprived him of a jury of his peers. One of the jurors in his jury pool, Juror Foster, was scheduled to be a character witness for codefendant Brown. Juror Foster was removed for cause. Foster stated that she could be a fair juror to Wilson, so Wilson claims that the prosecutor should have been required to use a preemptory challenge to remove her. Given the nature of Foster's connection with this case and her relationship with Brown, we cannot say that the trial court abused its discretion in excusing her for cause.

¶24 Wilson also claims that he was prejudiced by the dual jury system because his jury was sitting closer to the victim's family than the codefendant's jury. The trial court instructed the victim/witness coordinator to tell the family members not to talk during the trial and to leave the courtroom if they became emotional. We find that no error occurred as a result of the seating arrangement.

¶25 Wilson's next claim concerns the introduction of evidence which was inadmissible against him. He claims that evidence was introduced which was more prejudicial than probative on the issue of his guilt and his sentence. His argument rests on the premise that he was not directly involved in the beating death of the victim while his codefendant was; however, the evidence was introduced while both juries were present in the courtroom. This evidence included the testimony of medical examiner Dr. Distefano and photographs of Yost's body and injuries.

¶26 Wilson complains about Dr. Distefano's first stage testimony which went beyond the cause of death. We find that the testimony was relevant. It is arguable that Wilson was present at least during the time the first blows with the baseball bat were struck. Furthermore, the State was attempting to prove either felony murder or malice murder. To prove malice murder the State had to prove intent to kill. The testimony regarding the injuries and the bloody crime scene were relevant to show the cause of death and to show an intent to kill.

¶27 Wilson also complains about second stage evidence showing wounds to the hands and autopsy pictures of Yost's head, body and skull. This evidence was relevant against Wilson to show the violent manner in which Yost died and to show the heinous, atrocious or cruel aggravating circumstance.

¶28 Before leaving the issue of dual juries, we would be remiss if we did not caution the trial courts in Oklahoma to bear in mind that the dual jury procedure has the potential for engendering error, especially in complex cases. The procedure "requires great diligence on the part of the trial judge and cooperation of the attorneys to take the precautions necessary to ensure due process throughout the joint trial." State v. Padilla, 964 P.2d 829, 923 (N.M.Ct.App.1998).

III. VOIR DIRE ISSUES

¶29 Wilson claims, in proposition thirteen, that the manner in which the trial court conducted voir dire violated his constitutional rights. He first claims that the trial court placed undue emphasis on the jurors' views on capital punishment during the death penalty qualification portion of voir dire. The trial court first began the death qualification portion of voir dire by asking individual jurors their view on the death penalty. Follow up questions were then asked based on the jurors' response to the initial question. Wilson claims the trial court erred by asking jurors their views on the death penalty because jurors opposed to the death penalty were removed from the jury panel. We have held that:

[983 P.2d 459]
not all who oppose the death penalty are subject to removal for cause in capital cases; those who firmly believe the death penalty is unjust may nevertheless serve as jurors in capital cases so long as they state clearly that they are willing to temporarily set aside their own beliefs in deference to the rule of law.

Allen v. State

¶30 We find that what Wilson is complaining about is the order in which the trial court asked voir dire questions regarding the death penalty. The better approach is to use the voir dire questions and order set forth in OUJI-CR 2d, 1-5 (1996). However, we find that the manner in which the trial court conducted voir dire in this case was not error. There is nothing to indicate that the jury was bent on delivering the death penalty nor is there anything to indicate that otherwise qualified jurors, who could put personal feelings aside, were excluded.

¶31 The trial court's follow-up questions were designed to determine whether the jurors' personal views on the death penalty would impair their ability to render an impartial verdict. Of the five jurors which Wilson complains about, three were excused because they were against the death penalty and said that they would automatically vote against it, regardless of the evidence and the law; one said he was in favor of the death penalty, but his conscience would not allow him to impose it; and one said she was in favor of the death penalty but, her religious convictions would not allow her to impose it. Likewise, the trial court excused potential jurors who would automatically impose the death penalty regardless of the law and evidence. The trial court did not show partiality to one view or the other.

¶32 Wilson complains that he was not allowed to rehabilitate these jurors. However, neither did the trial court allow the State to rehabilitate jurors who said that they would automatically vote for the death penalty. The trial court is not required to allow the parties to rehabilitate potential jurors. Duvall v. State, 1991 OK CR 64, ¶ 25, 825 P.2d 621, 631, cert. denied, 506 U.S. 878, 113 S.Ct. 224, 121 L.Ed.2d 161 (1992). Therefore, there was no error in the questioning of potential jurors regarding their views on the death penalty.

¶33 Wilson next complains that the trial court did not conduct individual voir dire. He claims that the failure to do so educated jurors as to how they could be removed from jury service by expressing their desire to automatically vote one way or the other on the sentence of death. An appellant may request individual voir dire, but he has no automatic right to such a request. Willingham v. State, 1997 OK CR 62, ¶ 5, 947 P.2d 1074, 1078.

¶34 There is no evidence that the potential jurors were anything but candid in their answers to the trial court's questioning. Thus, the trial court did not abuse its discretion in failing to hold individual voir dire.

IV. FIRST STAGE ISSUES

A.

¶35 In proposition two, Wilson claims that certain evidence obtained as a result of his arrest should have been suppressed because the arrest was made without probable cause. Wilson specifically complains about the introduction of his confession to Detective Folks and waivers of rights signed by him. Wilson also asserts that nearly all of the evidence was gathered as a direct result of his arrest.

¶36 The State claims that Wilson waived the issues in this proposition by failing to properly object to the introduction of this evidence. "[T]o properly preserve objections to the introduction of evidence . . . a timely objection must be made when the evidence is sought to be introduced." Luna v. State, 1992 OK CR 26, ¶ 5, 829 P.2d 69, 71.

¶37 Just before Folks was preparing to testify about Wilson's statements to him while he was in custody, Wilson's attorney objected stating that he was relying on the grounds raised in the earlier in-camera hearings. The timing of this objection indicates [983 P.2d 459] that Wilson was referring to the admissibility of the statements.

¶38 A suppression hearing was held on October 30, 1996. Wilson indicated that he did not have a motion to suppress pending at that time and did not wish to raise the issue at that time. Later, during a motion hearing on January 30, 1997, Wilson orally objected to the introduction of both the confession and the waiver of rights forms because they were obtained as a result of an "illegal" arrest. Wilson, unlike the codefendants, never filed a motion to suppress and never litigated the oral objection he made to the evidence. While Wilson's trial counsel could have been more eloquent in his contemporaneous objection, we find that this issue is properly preserved for review. Finding that this issue is preserved, we begin by determining whether probable cause existed at the time of the arrest.

The dispositive issue in determining whether a felony arrest is legal is whether the arresting person had probable cause, or reasonable cause, to make the arrest. One may make a warrantless felony arrest based on information communicated to him by others, if that information provides reasonable cause for the arrest. The State is not bound to prove that a felony was actually committed in order to justify such an arrest; as long as reasonable cause existed to believe the person committed a felony, the arrest, whether by peace officer or private citizen, is valid, even though it may later turn out that no felony was committed. Fruits of a search incident to such an arrest would generally be admissible. On the other hand, if the arrester did not have reasonable cause to believe the person committed a felony, the fruits of a search incident to the arrest are inadmissible.

Tomlin v. State

¶39 Wilson was taken into custody at about 5:45 p.m. on February 26, 1996, by Sergeant Allen and other officers of the Tulsa Police Department. At the time Wilson was taken into custody, Allen was aware of the following facts: Wilson was identified as being at the store, behind the counter, between 5:00 a.m. and 6:00 a.m; Wilson's vehicle had been seen at the crime scene during the early morning hours of the 26th; the crime scene was discovered sometime before 6:15 a.m.; a large safe had been taken from behind the counter; the video tape from the security monitor had been taken; money from the cash register was taken; a large amount of five dollar bills were taken; Wilson had worked the evening shift the night before, and was not scheduled to work again until 3:00 p.m. on the 26th; and Wilson did not show up for work at that time.

¶40 Allen observed Wilson get into a vehicle on the passenger side. That vehicle was stopped a few minutes later at the direction of Allen, because Allen intended to take Wilson into custody for the robbery and homicide. When the vehicle in which Wilson was a passenger was stopped, Wilson was arrested immediately for the robbery and homicide at the QuikTrip. A large amount of five dollar bills were discovered in the pocket of codefendant Harjo just after Wilson was taken into custody.

¶41 We believe these facts were reliable and it was reasonable for Allen to have relied on these facts in determining whether he had probable cause to arrest Wilson. The trial court did not err in allowing the introduction of Wilson's waiver of rights form and his confession.

B.

¶42 In propositions three and five, Wilson complains about the introduction of DNA test results. Wilson first argues, in proposition three, that the trial court erred in allowing the introduction of DNA test results without holding a hearing on the reliability of the tests. At trial Wilson did not object to the admission of the DNA evidence on the basis that the evidence was unreliable or irrelevant. Wilson only objected that the results of the tests should not be admitted because the results had not been turned over to him until a few days prior to trial. Therefore, based on this particular argument, he has waived all but plain error.

¶43 The DNA test used was the PCR or Polymerase Chain Reaction test. Prior to Wilson's trial, this specific test had [983 P.2d 461] not been approved by this Court. However, in Wood v. State, 1998 OK CR 19, ¶ 40, 959 P.2d 1, we determined that the PCR test was reliable and admissible in the State of Oklahoma. We find that the introduction of the DNA PCR test results did not amount to plain error.

¶44 Wilson complains in proposition five that the trial court abused its discretion in allowing the introduction of the DNA test results in violation of the Oklahoma Discovery Code. Wilson argues alternatively that the trial court should have granted a continuance so that defense counsel could have time to rebut the State's evidence.

¶45 In response to Wilson's discovery motion, the prosecution notified Wilson's counsel, by phone, on Friday January 24, 1997, ten days before trial, that he could come by and pickup additional discovery, which consisted of a copy of the entire file. On January 27, trial counsel obtained the discovery material. Wilson now complains that this notice was insufficient and as such that several items of tangible evidence, witness testimony and the results of scientific tests should have been excluded from the trial.

¶46 Title 22 O.S.1991, § 2002, provides, in part, that the State shall disclose, upon request by the defense, "names and addresses of witnesses which the State intends to call at trial" with their statements or summaries thereof, any results of scientific tests, experiments or comparisons and any tangible objects which the prosecution intends to use in the trial.

¶47 It appears that codefendant Brown's counsel filed all of the motions to exclude and argued the motions and Wilson's counsel merely joined in the motions. The trial court denied the request for the exclusion of this evidence. Counsel asserted that he did not learn the results of the forensic analysis until he picked up the materials on January 27, 1997. During the motion hearing on January 27, the prosecuter stated that he had made a statement at a prior motion hearing that the DNA reports would be available for all parties. The trial court also recalled the statement. Some mention was made that this occurred at the hearing held on October 30, 1996, but the transcript of that hearing does not contain such statements. The trial court did not recall whether the conversation was on the record or not. The trial court took counsel's motion to exclude the evidence under advisement and gave the attorneys time to read the reports and appear at a later date. The trial court specifically found that the State complied with the discovery code by disclosing the evidence on January 24. On February 3, 1997, the trial court denied counsel's motion to exclude the DNA evidence and the motion for a continuance.

¶48 Based on the facts available to the trial court, we cannot say that the trial court abused its discretion in finding that the State complied with the Discovery Code. Furthermore, the trial court did not abuse its discretion in failing to exclude the DNA evidence or in failing to grant a continuance.

¶49 In proposition six, Wilson complains that there was an insufficient chain of custody for items undergoing DNA analysis, serology examination, and other testing. Wilson complains about the DNA testing conducted by Cindy Brown on blood found on a shoe, the steering wheel of Wilson's vehicle, items found on Wilson's porch (including a QuikTrip jacket, a Nike jacket, a paper sack, a latex glove, and an aluminum baseball bat). Wilson complains about Yorkston's testing of items included above as well as the handcuff. Wilson also complains about Yorkston's testimony regarding a piece of amber glass which presumably matched glass found at the scene.

¶50 At no time during Yorkston's or Brown's testimony did Wilson object on the grounds that there was an insufficient chain of custody for the blood analysis. Counsel did object to the admission of items from which blood samples were taken. However, he did not object to the chain of custody of the blood samples after they were taken from these items of evidence. Then at the end of the State's case, pursuant to the trial court's procedure, defense counsel made general objections to the evidence already admitted. The trial court found that there was no substitution or tampering of the evidence, the evidence "was in substantially the same [983 P.2d 462] condition at the time it was offered as it was at the time when the crime was committed."

¶51 "The purpose of the chain of custody rule is to guard against substitution of or tampering with the evidence between the time it is found and the time it is analyzed." Middaugh v. State, 1988 OK CR 295, ¶ 16, 767 P.2d 432, 436. While it is the State's responsibility to show the evidence offered is in substantially the same condition at the time of offering as when the crime was committed, it is not necessary that all possibility of alteration be negated. Williamson v. State, 1991 OK CR 63, ¶ 46, 812 P.2d 384, 397-98, cert. denied, 503 U.S. 973, 112 S.Ct. 1592, 118 L.Ed.2d 308 (1992). If there is only speculation that tampering or alteration occurred, "it is proper to admit evidence and let what doubt there may be go to its weight rather than render the evidence completely inadmissible." Contu v. State, 1975 OK CR 55, ¶ 13, 533 P.2d 1000, 1003.

¶52 We find that the items from which blood samples were taken were properly admitted because witnesses identifying these items testified that they were in the same condition as they were when they were found. However, Wilson did not object to the handling of the blood samples taken from these items at the time evidence was introduced regarding the blood analysis. Although his cross-examination of Yorkston questioned the handling of the blood samples, he still did not object to the evidence of blood analysis based on a lack of a chain of custody. Therefore, Wilson has waived the issue he now presents. Absent an objection, we can review for plain error only. We find that the admission of testimony regarding the testing of samples of bloodstains did not rise to the level of plain error.

¶53 Wilson further complains that other evidence was introduced in violation of the Discovery Code, in proposition five. Witness Carol Cox testified that a metal fragment imbedded in the victim's head came from handcuffs found. This evidence was disclosed on January 24 along with the DNA test results. As with the DNA test results, the Discovery Code was followed. Therefore, the trial court did not abuse its discretion in allowing this evidence.

¶54 An objection was made to testimony from Officer Makison and Danny Boaz, a QuikTrip supervisor, that they could identify the defendants on the store videotapes and still pictures made from the tapes. The objection was partially based on the fact that there had been no discovery on that issue. The trial court found that the police reports were sufficient to give notice that Makison was going to identify the defendants on the tapes. Furthermore the tapes were provided to the defense through discovery. During the motion hearing of January 30, the trial court ruled that there would be no surprise in having Boaz identifying the defendants on the video as he had prior knowledge who the defendants were through personal contact.

¶55 Wilson also complains about testimony regarding hid unrecorded statements to Detective Folks which included an admission that he had been planning the offense for two weeks before the homicide. The portions of the transcript Wilson cites are re-direct questions regarding Wilson's knowledge that the plan was to kill the victim. The recorded portion of the tape clearly indicates that Folks was questioning Wilson about whether he knew Yost would be killed. Wilson finally acknowledged that he "knew they were going to do that." During Folks' direct testimony, Wilson never objected to questions regarding the fact that Wilson told him that they planned on killing Yost two weeks prior. Absent any evidence to the contrary, we cannot say that the trial court abused its discretion in allowing the identifications and the testimony regarding Wilson's statements.

¶56 Lastly, Wilson complains about testimony from John Johnson regarding the policy and procedure that employees of QuikTrip were to follow if they were robbed. Wilson's attorney objected because it was not part of the discovery. The trial court overruled the objection and allowed the testimony. We cannot determine whether the evidence was or was not provided through discovery. However, this witness was endorsed on the original Information [983 P.2d 463] and the prosecutor, at the January 27 motion hearing, advised the trial court that they had turned over information about endorsed witnesses' testimony. Based on the entire record, we find that, even if this testimony was not included in the discovery information, its introduction was harmless beyond a reasonable doubt.

V. FIRST STAGE INSTRUCTION ISSUES

¶57 In proposition seven, Wilson argues that the trial court erred in refusing to instruct on the lesser included offense of second degree felony murder. Wilson claims that there was evidence supporting the view that the murders occurred during the course of robbery by force and fear, a lesser included offense of robbery with a dangerous weapon. We do not agree.

¶58 "Robbery, the predicate felony in second degree felony murder, cannot be accomplished with a dangerous weapon. If it is, the offenses are Robbery with a Dangerous Weapon and first degree felony murder." Foster v. State, 1986 OK CR 19, ¶ 31, 714 P.2d 1031, 1039, cert. denied, 479 U.S. 873, 107 S.Ct. 249, 93 L.Ed. 173. In this case, the evidence clearly showed that the victim was beaten to death with a baseball bat, a dangerous weapon which was used to complete the robbery. Where there is no evidence to support a lesser included offense the court has no right to ask the jury to consider the issue. Boyd v. State, 1992 OK CR 40, ¶ 11, 839 P.2d 1363, 1367-68, cert. denied, 509 U.S. 908, 113 S.Ct. 3005, 125 L.Ed.2d 697 (1993). There was no evidence other than the evidence that a dangerous weapon was used to commit the robbery. Accordingly, we find no error.

VI. DOUBLE JEOPARDY

¶59 In proposition four, Wilson claims that his conviction for robbery with a dangerous weapon and first degree murder violate the prohibition against double jeopardy. At Wilson's request, the trial court gave a general first degree murder verdict form to the jury. The trial court instructed that they could find Wilson guilty of first degree murder under either of the alternative theories. Based on this record, there is no way of determining whether the jury found Wilson guilty of malice murder or felony murder.

¶60 When a defendant is charged with alternative theories of murder and the jury's verdict form does not specify under which theory, malice murder or felony murder, the defendant was found guilty then "the verdict must be interpreted as one of felony-murder in order that appellant receive the benefit of the rule that a defendant cannot be convicted of felony-murder and the underlying felony." Munson v. State, 1988 OK CR 124, ¶ 28, 758 P.2d 324, 332, cert. denied, 488 U.S. 1019, 109 S.Ct. 820, 102 L.Ed.2d 809 (1989).

¶61 Because it is impossible to determine under which theory of first degree murder Wilson was convicted, we must order that his conviction for robbery with a dangerous weapon be dismissed.

VII. SECOND STAGE ISSUES

A.

¶62 Wilson contends that the trial court erred in allowing, during the second stage, the admission of his statements made to police on February 16, 1996. It seems that Wilson was pulled over for speeding by Sgt. Samuel McCullough of the Tulsa Police Department ten days before he was involved in the murder of Yost. During that traffic stop Wilson was asked to step from the car and provide identification. Wilson had no identification so he was asked to sit in the patrol car. While in the patrol car McCullough asked Wilson who he was and asked about his arrest record. Wilson identified himself and said that he had been arrested in a double homicide in October of 1994 and was awaiting sentencing on a lesser charge of accessory to murder. Wilson was asked if he had any guns or drugs in his vehicle and Wilson stated "No, you can look if you want to." During the search of the vehicle, Sgt. McCullough observed a black baseball bat and found a loaded .25 caliber handgun under the passenger seat.

¶63 [983 P.2d 464] Wilson objected during the testimony of McCullough "for the same reasons stated earlier in our in-camera hearing." The discussion during the in-camera hearing was that the statements regarding being an accessory after the fact to murder were not relevant to the continuing threat aggravator. Wilson now claims that the statements were inadmissible because no Miranda5 warnings were given and that the consent to search was invalid because the consent was made during the illegal interrogation and arrest.

¶64 Whenever a defendant makes a specific objection at trial no different objections will be considered on appeal. Romano v. State, 1995 OK CR 74, ¶ 18, 909 P.2d 92, 109, cert. denied, ___ U.S. ___, 117 S.Ct. 151, 136 L.Ed. 2d 96 (1996). By failing to object to the testimony and evidence based on custodial interrogation without giving the Miranda warning and a "coerced" consent to search, Wilson has waived all but a review for plain error.

¶65 Under the facts presented at trial it is reasonable to conclude that Wilson was not in custody for purposes of Miranda and that the consent to search was voluntary. Accordingly we find no plain error in the admission of this evidence.

B.

¶66 In proposition nine, Wilson claims that during the second stage he was the victim of an evidentiary harpoon which came in the form of prejudicial hearsay. Sgt. Huff testified regarding Wilson's previous conviction for accessory after the fact of murder. During his testimony he testified that he was contacting Wilson for another detective because "it was known that he [Wilson] had been driving a vehicle which matched the description as the vehicle used in that homicide the previous night."

¶67 Wilson admits, in a footnote, that his attorney failed to object to the answer, and claims that the testimony constitutes plain error because it violated his Sixth Amendment right to confrontation. "Plain error is that error which goes to the foundation of the case, or which takes from a defendant a right essential to his defense." Cleary v. State, 1997 OK CR 35, ¶ 81, 942 P.2d 736, 752, cert. denied, ___ U.S. ___, 118 S.Ct. 1528, 140 L.Ed.2d 679 (1998).

¶68 We find that the answer did not rise to the level of plain error. First, Wilson was not harmed by this statement because after being brought in by Huff, Wilson told Sgt. Meek about his involvement in the drive by shooting. Second, the answer was in response to questioning about why Huff was contacting Wilson. The answer was given, not for the truth of the matter asserted, but to explain why he was contacting Wilson.

C.

¶69 In propositions ten and sixteen, Wilson attacks the "especially heinous, atrocious or cruel" aggravating circumstance. Wilson argues that there was insufficient evidence for the "especially heinous, atrocious or cruel" aggravating circumstance in proposition ten. In the first part of this proposition Wilson claims that the evidence was insufficient to show conscious physical suffering. Wilson is correct in claiming that to support the heinous, atrocious or cruel aggravator the State must prove conscious serious physical abuse or torture prior to death. See Willingham, 947 P.2d at 1084. This may include the infliction of either great physical anguish or extreme mental cruelty. Cheney v. State, 1995 OK CR 72, ¶ 15, 909 P.2d 74, 80. On appeal, the standard of review is "whether there was any competent evidence to support the State's charge that the aggravating circumstance existed." Bryson v. State, 1994 OK CR 32, ¶52, 876 P.2d 240, 259, cert. denied, 513 U.S. 1090, 115 S.Ct. 752, 130 L.Ed.2d 651 (1995).

¶70 The medical examiner testified that the first blow by the baseball bat could have rendered Yost unconscious. However, before the baseball bat was ever introduced into the attack, Yost was attacked and dragged into the back room by his four assailants. Yost screamed for help while the bat was being retrieved from the car. Obviously he was being restrained at that time by [983 P.2d 465] Wilson and another defendant. Yost suffered injuries to his hands, arguably coming from the blow from the bat, indicating defensive wounds. There was a piece of metal from the handcuff imbedded in Yost's head indicating that he had his hands between his head and the bat. In the surveillance tape noises can be heard during the attack after the baseball bat was taken to the cooler where Yost was being held. Once the bat arrived, it is possible that Yost was struck and rendered unconscious with one blow. However, we find that before the bat was brought into the attack, Yost had suffered the extreme mental anguish of being held captive, knowing that his ultimate fate rested in the hands of his attackers whom he could identify if left to live.

¶71 In Cheney, 909 P.2d at 80, we said:

[T]his Court has limited this aggravating circumstance to cases in which the State proves beyond a reasonable doubt that the murder of the victim was preceded by torture or serious physical abuse, which may include the infliction of either great physical anguish or extreme mental cruelty. "Absent evidence of conscious physical suffering of the victim prior to death, the required torture or serious physical abuse standard is not met." As to the extreme mental cruelty prong of this aggravating circumstance, "torture creating extreme mental distress must be the result of intentional acts by the defendant. The torture must produce mental anguish in addition to that which of necessity accompanies the underlying killing. Analysis must focus on the acts of the defendant toward the victim and the level of tension created." (footnotes omitted.)

¶72 There is ample evidence of the extreme mental anguish suffered by Yost prior to his death. This evidence illustrates the realization by Yost that he was going to be harmed and even killed by the gang of robbers who had overpowered him and dragged him into a back room. See Neill v. State, 1994 OK CR 69, ¶¶ 64-65, 896 P.2d 537, 556, cert. denied, 516 U.S. 1080, 116 S.Ct. 791, 133 L.Ed.2d 740 (1995).

¶73 In the second portion of this proposition, Wilson claims that the especially heinous, atrocious, or cruel aggravator does not apply to him because he did not inflict the serious physical abuse, nor did he intend that such abuse be inflicted. Wilson citing Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987) correctly claims that, in a felony murder prosecution, the State must at least show that the accused substantially participated in the killing.

¶74 As we stated before, we will presume that the jury convicted Wilson under the felony murder theory, so that Wilson will be provided the benefit of the prohibition against double jeopardy. We make the same presumption here.

¶75 The evidence that Wilson substantially participated in the killing is clear. Wilson was involved in the initial subduing of Yost. He admitted that he knew that Yost would be killed. Wilson even supplied the bat used to beat Yost to death. He was present in the back room when the bat was brought in by Harjo. He was present when sounds of the first blow can be heard on the audio/videotape. He had to know that a beating with a baseball bat would cause serious conscious physical suffering and death. See Hatch v. State, 1985 OK CR 57, ¶ 6, 701 P.2d 1039, 1040 (Death penalty upheld where "[d]efendant . . . contemplated that a killing was not only possible, but probable and further that lethal force [would] probably be employed.")

¶76 In proposition sixteen Wilson claims that the especially heinous, atrocious or cruel aggravator does not perform the constitutionally required narrowing process. The "heinous, atrocious or cruel" aggravator has been analyzed thoroughly and, when properly limited by the conditions precedent of torture or serious physical abuse, is consistent with the mandates of the Eighth and Fourteenth Amendments. Toles v. State, 1997 OK CR 45, ¶59, 947 P.2d 180, 192, cert. denied, ___ U.S. ___, 118 S.Ct. 1280, 141 L.Ed.2d 740 (1998). We decline the invitation to deviate from our previous holdings.

D.

¶77 In propositions seventeen and eighteen, Wilson attacks the "continuing [983 P.2d 466] threat" aggravating circumstance. Wilson claims that evidence regarding his conviction for accessory after the fact of murder was irrelevant to the aggravating circumstance of continuing threat in proposition seventeen. To show continuing threat the State must show the existence of a probability that the defendant would commit acts of violence that would constitute a continuing threat to society. 12 O.S.1991, § 701.12(7).

To prove "continuing threat" the State must show a particular defendant has a pattern of criminal conduct that will likely continue in the future. Any relevant evidence showing the probability that the defendant will commit future acts of violence including unadjudicated criminal conduct is admissible.

Douglas v. State

¶78 In proposition eighteen, Wilson claims that the continuing threat aggravator did not serve the necessary narrowing function. We have previously held that the "continuing threat" aggravator is neither vague nor overbroad. Toles, 947 P.2d at 192. We decline to reconsider our previous decision in this regard.

¶79 Wilson next claims that the Uniform Instruction is improper and leaves the meaning of the aggravator hopelessly vague. First we note that counsel did not object to this instruction. Therefore he has waived all but plain error. We find that the Uniform Instruction on the continuing threat aggravating circumstance tracks the language of the statute as well as language found in our case law. Malone v. State, 1993 OK CR 43, ¶38, 876 P.2d 707, 716; 21 O.S.1991, §701.12(7). Because the instruction is based on the language of the statute as well as on our case law, there is no error in the instruction. It correctly performs the narrowing processes necessary to be constitutionally acceptable.

E.

¶80 Wilson claims in proposition nineteen that the instructions on the issue of mitigation allowed the jury to disregard mitigating evidence. The language of the standard instructions has been considered thoroughly by this Court, and we find it properly instructs the jury on the use of mitigating evidence. Toles, 947 P.2d at 193. The standard OUJI-CR 2d instructions on aggravators and mitigating evidence were given in this case. Accordingly we find no error here.

F.

¶81 In proposition fourteen, Wilson asserts that his death sentence must be vacated because the jury was exposed to inadmissible victim impact evidence. In this case, two members of the victim's family read prepared statements which had previously been approved by the trial court. Wilson's attorney did not make a contemporaneous objection to the testimony of the victims. Because Wilson did not make a contemporaneous objection to the victim impact evidence, we can review for plain error only. Cleary, 942 P.2d at 752.

This Court has stated that both "victim impact statements" and "victim impact evidence" are admissible in a capital sentencing procedure. This includes a victim's rendition of the "circumstances surrounding the crime, the manner in which the crime was perpetrated, and the victim's opinion of a recommended sentence." However, "evidence may be introduced 'that is so unduly prejudicial that it renders the trial fundamentally unfair,' thus implicating the Due Process Clause of the Fourteenth Amendment."

Willingham

[983 P.2d 467] Our statutory language is clear, the evidence in a victim impact statement is to be limited to the "financial, emotional, psychological, and physical effects," or impact, of the crime itself on the victim's survivors; as well as some personal characteristics of the victim.

Conover v. State

¶82 In this case, Wilson complains about statements from the victim's wife stating she enjoyed cooking and ironing for the victim. This evidence is relevant to show the psychological, emotional and physical impact of the victim's death. Wilson complains about the victim's mother's statements that he had just received his real estate license and had plans for the future. The victim's mother also stated that the victim told her that he would take care of her in her old age and for her not to worry about the future. These statements were relevant to show the financial and emotional impact of the crime itself on the victim's survivors. Wilson claims that the mother's statement was hearsay. Arguably the statement was not offered for the truth of the matter asserted, thus not hearsay. The statement was only offered to show that the victim's mother believed that the victim would take care of her financially in the future.

¶83 The victim's wife testified that the victim was especially fond of Christmas holidays because he was raised in a family that did not celebrate Christmas. The victim's mother testified that she didn't have any problems with the victim as a child. Statements about a victim's childhood have no relevance in victim impact evidence. See Cargle v. State, 1995 OK CR ___, ¶ __, 909 P.2d 806, 829 (pointing out victim's positive attributes as a child "in no way provides insight into the contemporaneous and prospective circumstances surrounding his death"). We find that these comments amounted to error, but they do not rise to the level of plain error, because they did not go to the foundation of the case, or take from Wilson a right essential to his defense. See Willingham, 947 P.2d at 1088.

¶84 Wilson finally complains that the victim impact evidence in this case served as nothing more than a "superaggravator." We have previously held that victim impact evidence is very different and serves a different purpose than aggravation evidence. Willingham, 947 P.2d at 1086. The State is still required to prove at least one aggravator beyond a reasonable doubt before the death penalty may be imposed. Id.

¶85 In this case, the jury was specifically instructed that they could only consider the aggravating circumstances set forth in the instructions. Wilson has not convinced us that the jury would not have found the aggravating circumstance but for the victim impact evidence. Id.

VIII. ISSUES ADDRESSING BOTH FIRST AND SECOND STAGE.

¶86 In proposition eleven, Wilson argues that the introduction of highly prejudicial, cumulative and irrelevant evidence deprived him of a fair trial and sentencing procedure. Relevant evidence is that which has any tendency to make more or less probable a material fact in issue. 12 O.S.1991 § 2401. "Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, needless presentation of cumulative evidence or unfair and harmful surprise." 12 O.S.1991, § 2403.

¶87 Wilson first claims that gruesome photographs introduced during the first stage of trial deprived him of a fair trial. [983 P.2d 468] These pictures, State's exhibits 19, 20 and 113, depicted the wounds to the victim and the crime scene. The photographs also aided the medical examiner in his explanation of the wounds to the victim and manner of death. Thus, they were relevant to show the cause of death and the intent of the attacker. The fact that they were gruesome does not make them inadmissible. Their probative must be substantially outweighed by the danger of unfair prejudice. Willingham, 947 P.2d at 1083. Gruesome photographs are a result of gruesome crimes. McCormick v. State, 1993 OK CR 6, ¶ 10, 845 P.2d 896, 898. That is what we have here. We find no abuse of discretion in the admission of these photographs.

¶88 Wilson next claims that certain photographs introduced during the first and second stage were cumulative. The probative value must be substantially outweighed by the needless presentation of cumulative evidence. 12 O.S.1991, § 2403. Wilson claims that still pictures taken from the store surveillance video were cumulative of the video. The store surveillance video showed the events as they transpired. The still photographs taken from this video made it easier for witnesses to identify the defendants at the time certain events are taking place. Therefore, they were introduced for different purposes and are not cumulative.

¶89 He claims that the diagrams and photographs of the scene were also cumulative of the crime scene video introduced during the second stage. The diagrams and the photographs of the scene were introduced to give the jury an idea of the layout of the store and different angles of the crime scene. The crime scene video gives the jury a walk through perspective of the crime scene.7 This information was relevant to prove the aggravating circumstances alleged by the State: that the murder was especially heinous, atrocious or cruel and that Wilson would commit future acts of violence which would constitute a continuing threat to society. The introduction of these separately did not result in the needless admission of cumulative evidence.

¶90 Wilson claims that the introduction of the money taken from the codefendants was not relevant. The State had the burden of proving that the defendants acted conjointly in the robbery. Evidence obtained from the codefendants was relevant to show that they were acting together in the robbery.

¶91 Wilson complains that photographs introduced during the second stage of trial were too prejudicial, and repetitious pictures of injuries to the victim's hands were unnecessary. The injuries to the hands were necessary to show that the victim was trying to defend himself thus was conscious during the attack. Therefore these photographs were probative. We find that the probative value was not substantially outweighed by the danger of unfair prejudice.

¶92 Wilson also complains about the post-autopsy photograph of the interior of the skull showing a hinge type fracture at the base of the skull (State's exhibit 115). We assume that this photograph was introduced to show the sheer force of the blows to the victim's head. However, we fail to find the relevance of this photograph for second stage. Post-autopsy photographs generally are found to be inadmissible, for any probative value they have is substantially outweighed by prejudicial effect. 12 O.S.1991, § 2403. The relevance of this photograph is negligible because it shows the handiwork of the medical examiner rather than the defendant or his codefendants. Its prejudicial value is great because it tends to shock the general public unaccustomed to viewing the inside of the human body. Sattayarak v. State, 1994 OK CR 64, ¶ 8, 887 P.2d 1326, 1330; Oxendine v. State, 1958 OK CR 104, ¶¶ 6-8, 335 P.2d 940, 943.

¶93 This Court will not disturb a trial court's decision to admit evidence absent an abuse of discretion; however, an abuse of discretion will be found where the probative [983 P.2d 469] value of a photograph is substantially outweighed by the danger of unfair prejudice. Spencer v. State, 1990 OK CR 49, ¶ 8, 795 P.2d 1075, 1078. Here the probative value is outweighed by the danger of unfair prejudice, and the trial court erred by admitting the photograph.

¶94 Though we find error in the admission of a photograph, such error does not always require reversal. Darks v. State, 1998 OK CR 15, ¶ 44, 954 P.2d 152, 164. To determine the prejudice incurred by the erroneous admission, we look to the nature of the other photographic evidence admitted at trial. In this case, photographs of the numerous wounds to the victim's head suffered by the victim were properly admitted. These photographs were far more prejudicial than the sterile, clinical photograph of the inside of the victim's skull. And while the photograph of the interior of the skull was more prejudicial than probative, given the other, properly admitted photographs, we do not find that the jury imposed the death penalty because of its introduction. This error is harmless.

¶95 Wilson complains that the introduction of photographs of two Sprite cartons (State's exhibit 124) was cumulative to a photograph of the victim's body in relation to soft drink containers (State's exhibit 18). State's exhibit 124 is a close-up of blood splatters found on boxes on the shelves a few feet above the victim; exhibit 18 shows the relationship between these boxes and the victim's body. These photographs were relevant to show that the victim may have been standing or kneeling when he was struck. They show different angles and are not cumulative. They are relevant to show that he was conscious during the attack.

¶96 Wilson complains about two firearms introduced during second stage. One of the pistols was recovered from Wilson during the investigation of a drive-by shooting for which Wilson pled guilty to accessory after the fact to first degree murder. Wilson actually had the loaded pistol concealed under his shirt and tried to conceal it under some sheets on his bed in the presence of police detectives. The other loaded pistol was recovered from Wilson's vehicle during the traffic stop of February 16, 1995. Wilson was driving and Brown was in the passenger seat. The firearm was found under the passenger seat. According to the arresting officer, Wilson was charged with transporting a firearm as a result of this stop. The State introduced this evidence to prove the continuing threat aggravator. We find no error in the introduction of these pistols.

IX. PROSECUTORIAL MISCONDUCT

¶97 Wilson claims in proposition twelve that improper tactics and arguments of the prosecutor deprived him of a fair trial. Wilson first claims that the prosecutor argued facts not in evidence during the first stage closing argument. He admits that there was no objection to these comments; therefore, he has waived all but a review for plain error. The first comment Wilson complains about is the prosecutor's comment that rolls of money were found after Wilson's car, a '91 Ford Escort, was stopped. The vehicle stopped, a gray Chevrolet, was not Wilson's vehicle. It was a vehicle in which Wilson was a passenger. Rolls of money were found in the pockets of three of the occupants in the vehicle. In reviewing this misstatement of the facts in light of the totality of the evidence, we determine that this misstatement of fact by the prosecutor does not rise to the level of plain error. Bear v. State, 1988 OK CR 181, ¶29, 762 P.2d 950, 957.

¶98 Next, Wilson complains that the prosecutor quoted him as saying "yeah, we were going to kill him" and that they decided to kill him two weeks before. Wilson's recorded statement is not that clear of an admission. However, Folks testified that Wilson admitted to talking about robbing the QuikTrip some two weeks prior and that Wilson said that "we planned on killing him." On cross-examination, Folks said that this probably occurred during an unrecorded conversation, because it was not on the tape recorded interview. The statements of the prosecutor regarding this testimony was an accurate review of Folks' testimony; therefore, there was no error here.

¶99 [983 P.2d 470] Wilson claims that the prosecutor unnecessarily ridiculed him by first calling him a psychopath during the second stage arguments. A psychopathic personality is defined as "an emotionally and behaviorally disordered state characterized by clear perception of reality except for the individual's social and moral obligations and often by the pursuit of immediate personal gratification in criminal acts, drug addiction or sexual perversion." Webster's Collegiate Dictionary 10th ed. p 943 (1997). Dr. Reynolds, the defendant's mental health witness, testified that Wilson had some characteristics of a psychopath, but he did not believe that Wilson was a psychopath. The prosecutor also referred to Wilson as being no better than an animal that you put down to sleep, when they act this way. He said that Wilson was unadulterated evil and a psychopathic killer. The State should refrain from unwarranted personal criticism or name calling. Le, 947 P.2d at 555. However, based on the entire record before us, we find that these comments did not rise to the level of plain error.

¶100 Wilson complains that the prosecutor cast aspersions upon defense counsel during voir dire by asking the jurors, "You won't let a smoke screen fool you?" Defense counsel objected and asked for a mistrial. The trial court admonished the jury to disregard the remark. Wilson claims that the admonishment was not sufficient to cure the error. The prosecutor was merely asking the jury to use common sense to evaluate evidence and not be fooled by irrelevant information. These comments were not attacks on defense counsel. Thus no error occurred.

¶101 Next, Wilson complains that the prosecutor went too far in his attempts to invoke sympathy for the victim and the victim's family during the second stage argument. No objections were made to the prosecutor's comments during the second stage closing argument. The prosecutor first stated,

You put yourselves in the victim's shoes. Each and every day you get up, you put on your clothes, and you go to work. You tie your shoes, you get off - you get off to work, you kiss your wife and your kids, if you have any, good bye. And you don't know what the day might bring. You only have hope. And he left that particular night, on the 25th, hoping it to be just like an ordinary day in terms of what he would do.

He didn't have the chance to tell Angela goodbye. He didn't have the chance to tell his two sons goodbye. And when he was preparing for work, I anticipate he wasn't pondering how he was going to die. He had no - he had no opportunity to prepare himself to die. He had 2 minutes and 11 seconds.

The prosecutor later expressed his feigned sorrow that Wilson's mother had to wait 20 minutes to see Wilson in jail and then asked the jury, "Ms. Dorn (Yost's mother) right over there, guess how long she gets to wait to see her son because of his actions, because of his plotting? The rest of her life, she gets to wait to see Richard." The prosecutor then referred to defense counsel's closing as begging for mercy then stated that Richard Yost begged for mercy, but they sentenced him to death. "He (Wilson) wants you to do something less for him. Why?" Then the prosecutor stated that there are no good reasons based on what Wilson did to Yost to give less than death.

¶102 Wilson claims these arguments in closing reinforced and revived the prosecutor's comments made during voir dire that one of the purposes for punishment was to restore the "equilibrium that has been upset by the murder of an innocent person." Wilson claims that these arguments were intended to cause the jury to disregard the mitigating evidence and show no mercy because he had shown no mercy to Yost.

The State should not encourage the jury to impose the death penalty out of sympathy for the victims. This Court has specifically condemned many of the comments made in second stage, stating "[t]here is no reason for them and counsel knows better and does not need to go so far in the future." . . . No amount of mitigating evidence can counter this argument, and if the jury agrees they may not even consider mitigating evidence.

[983 P.2d 471]
Le, 947 P.2d at 554-55. However, Wilson has not shown that the jury improperly weighed the mitigating evidence in his case. While the prosecution arguments were clearly error, they do not rise to the level of plain error.

¶103 Wilson next argues that the prosecutor told the jury that they had a duty to convict. During the first stage closing, the prosecutor called the process (the jury trial) the "great equalizer." The prosecutor stated that "what was so unfair that night is now equalized." What was "four plus a bat versus one" is now "one versus the justice 12 of you can deliver in your verdict of guilty to murder." Objections were overruled by the trial court. These comments are tantamount to telling the jury that their job was to avenge the murder of Yost. The jury's duty is to determine the facts from the evidence, to follow the law, and to reach a verdict based upon the evidence, as they are so aptly instructed by the trial court. The jury's duty is not to render a verdict out of a sense of vengeance or as "the great equalizer." To ask them to do so is error. However, in this case, based on the overwhelming evidence of guilt, we find the comments to be harmless. "This Court will not reverse a conviction for prosecutorial misconduct unless the State's argument is so flagrant and of such a nature as to be prejudicial to the defendant." Hammon, 1995 OK CR 33, ¶ 91, 898 P.2d 1287, 1307.

¶104 Wilson also claims that this first stage argument influenced the jury during the second stage and caused them to render the sentence of death out of a sense of duty to equalize matters. Again, Wilson has not shown that the jury improperly weighed the evidence in second stage; therefore, Wilson was not prejudiced during second stage.

¶105 Wilson argues that the prosecutor misstated the law during voir dire by informing the jury that they will be "recommending a sentence." Objections by defense counsel were overruled. We have held that this type of comment is not error. Humphreys v. State, 1997 OK CR 59, ¶ 5, 947 P.2d 565, 570, cert. denied, ___ U.S. ___, 118 S.Ct. 2329, 141 L.Ed. 702 (1998). Next, Wilson claims the prosecutor misstated the law during voir dire by trying to define parties to crimes as a person who is present during the commission of a crime or someone who stood by and watched. Also, regarding punishment, the prosecutor asked whether the fact that the person did not actually strike the fatal blow makes him less liable to receive the death penalty. In second stage closing, the prosecutor told the jury that under their oath, they had to reach a decision. Of these comments only two were met with a contemporaneous objection which was sustained; this cured the error. Smith v. State, 1996 OK CR 50, ¶ 29, 932 P.2d 521, 531-32. We find that the other comments did not rise to the level of plain error.

¶106 Lastly, Wilson claims that the lack of an objection to the remarks complained of does not constitute waiver of the prejudice caused by the combined effect of the erroneous comments. While we are confounded by the fact that experienced prosecutors jeopardize cases, in which the evidence is overwhelming, with questionable argument, we have reviewed the prosecutor's conduct and comments in their entirety and in comparison to the great weight of evidence presented, both during first and second stage, we find his conduct and comments did not contribute to the verdict and sentence of death. Jones v. State, 1995 OK CR 34, ¶ 90, 899 P.2d 635, 654-55, cert. denied, 517 U.S. 1122, 116 S.Ct 1357, 134 L.Ed.2d 524 (1996).

X. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS

¶107 In proposition fifteen, Wilson asserts that he was denied effective assistance of counsel for several reasons. To successfully prove ineffective assistance of counsel, Appellant must show that defense counsel's performance was deficient and that he was prejudiced by the deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Lockhart v. Fretwell, 506 U.S. 364, 369, 113 S.Ct. 838, 842, 122 L.Ed.2d 180 (1993).

¶108 Wilson first asserts that his attorney failed to fully investigate his mental health background or effectively assist Dr. Reynolds in preparation for his second stage [983 P.2d 472] testimony. Wilson has filed, contemporaneously with this issue, an application for an evidentiary hearing regarding ineffective assistance of counsel in an attempt to supplement the record with material not found in the record.

¶109 A review of the trial record shows trial counsel did put forth a mental health expert to rebut the State's continuing threat contention and to mitigate punishment. At trial, Dr. Reynolds testified that he examined Wilson on three separate occasions. He also met with Wilson's mother and was provided with Wilson's medical records, school records and statements from people who knew Wilson. Reynolds testified that Wilson had a severe personality disturbance. Reynolds explained that Wilson had some unusual, bizarre types of thinking that would suggest that he is not in touch with reality at times. Reynolds testimony indicated that Wilson committed this crime as an intelligent but immature person, and that, because of his family support and his intelligence, he had the capability of being rehabilitated. The mere fact more evidence could have been presented is not, in itself, sufficient to show counsel was deficient. Douglas, 951 P.2d at 680. Reynold's testimony was credible and well developed. We find Appellant has failed to carry his burden to show either deficient performance by counsel, or prejudice from the omission of this specific evidence.8

¶110 Wilson next claims that counsel was ineffective for failing to properly preserve the record for appellate review by making timely objections. First, Wilson claims that trial counsel was ineffective for failing to request a hearing on the scientific reliability of the DNA evidence, which is raised as a substantive proposition of error in proposition three. We find that counsel's failure to request the hearing did not alter the outcome of this trial, nor did it render the result of this proceeding fundamentally unfair or unreliable. Lockhart, 506 U.S. at 369, 113 S.Ct. at 842. As stated previously, the PCR DNA method has been accepted by this Court. Therefore, Wilson cannot show that he was prejudiced by this omission.

¶111 Wilson claims that trial counsel was ineffective for failing to specifically object to the introduction, during second stage, of Wilson's statements made on February 16, 1995, on the grounds that Wilson was not advised of his Miranda rights. We previously held, when discussing Wilson's proposition eight, that the facts indicate that Wilson was not in custody; therefore, Miranda did not apply. Wilson cannot show that he was prejudiced by the failure to object based on the failure to give the Miranda warning.

¶112 Wilson claims that trial counsel was ineffective for failing to object to the second stage comments of Sgt. Huff, which he complained about in proposition nine. We held that the introduction of the statement did not harm Wilson; therefore, Wilson cannot show that he was prejudiced by the comment.

¶113 Finally, Wilson claims that his attorney was deficient by failing to object to comments made by the prosecutor during first stage closing argument, voir dire and second stage closing argument. We discussed these comments in proposition twelve. We find that the comments did not affect the outcome of this trial or render the trial fundamentally unfair or unreliable; therefore, Wilson can show no prejudice from the failure of counsel to object to the prosecutor's comments.

XI. CUMULATIVE ERROR.

¶114 Wilson, in proposition twenty, asks us to look to the combined effect of the errors if we determine that none of the errors singly requires reversal. We have found that during first stage there were no errors which considered singly required reversal. In viewing the effect of these errors cumulatively, we find that they do not require reversal. During second stage, we found error in the introduction of State's exhibit 124 (the photograph of the interior of the skull). We also found some error, [983 P.2d 473] although not plain error, in the victim impact statements and the prosecutors comments. In viewing the cumulative effect of these errors we find they do not require reversal of this case. Gilbert v. State, 1997 OK CR 71, ¶ 101, 951 P.2d 98, 122, cert. denied, ___ U.S. ___, 119 S.Ct. 207, 142 L.Ed.2d 170 (1998).

XII. MANDATORY SENTENCE REVIEW

¶115 Pursuant to 21 O.S.1991, § 701.13(C), we must determine whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor and whether the evidence supports the jury's finding of the aggravating circumstance. The jury found that there existed the probability that Wilson would commit criminal acts of violence that would constitute a continuing threat to society, that the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution, and that the murder was especially heinous atrocious or cruel. 21 O.S.1991, § 701.12(4), (5) & (7). We have found that these aggravating circumstances were supported by sufficient evidence.

¶116 The mitigating evidence was summarized into an instruction for the jury to consider. This evidence included his young age; his positive behavior at home, school and church; his above average intelligence; his treatable psychological disorder; his traumatic childhood; his beneficial loving and nurturing mother; and those who believe he could be helpful and supportive to others if allowed to live. The jury was instructed that they could determine other mitigating circumstances based on the facts of the case. After reviewing the record and carefully weighing the aggravating circumstances and the mitigating evidence, we find the jury's determination that the aggravating circumstances outweigh the mitigating circumstances is amply supported by the record.

¶117 We have found that Wilson's conviction for robbery with a dangerous weapon must be reversed and remanded with instructions to dismiss. We find no error warranting reversal of the conviction or sentence of death for first degree murder; therefore, Judgment and Sentence for the crime of murder in the first degree in the District Court of Tulsa County is AFFIRMED.

AN APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY
BEFORE THE HONORABLE E. R. TURNBULL, DISTRICT JUDGE

¶118 MICHAEL LEE WILSON, was tried by jury for Murder in the First Degree and Robbery with a Dangerous Weapon in Case No. CF-95-1024 in the District Court of Tulsa County before the Honorable E. R. Turnbull, District Judge. Wilson was sentenced to death for Murder in the First Degree and life for Robbery with a Dangerous Weapon and perfected this appeal. Judgment and Sentence for the crime of Robbery with a Dangerous weapon is REVERSED and REMANDED with instructions to DISMISS. Judgment and Sentence for the crime of Murder in the First Degree is AFFIRMED.

APPEARANCES AT TRIAL

APPEARANCES ON APPEAL

JOE P. ROBERTSON
KENT R. HUDSON
INDIGENT DEFENSE SYSTEM
CAPITAL TRIAL DIVISION
440 SOUTH HOUSTON, RM. 313
TULSA, OK 74127
ATTORNEYS FOR DEFENDANT

WILLIAM H. LUKER
JULIE L. GARDNER
APPELLATE DEFENSE COUNSEL
CAPITAL DIRECT APPEALS DIVISION
INDIGENT DEFENSE SYSTEM
1660 CROSS CENTER DRIVE
NORMAN, OK 73019
ATTORNEYS FOR APPELLANT

WILLIAM LaFORTUNE
DISTRICT ATTORNEY
BRETT SWAB
ASSISTANT DISTRICT ATTORNEY
406 TULSA COUNTY COURTHOUSE
TULSA, OK 74103
ATTORNEY FOR THE STATE

W. A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA
JENNIFER B. MILLER
ASSISTANT ATTORNEY GENERAL
112 STATE CAPITOL BUILDING
OKLAHOMA CITY, OK 73105
ATTORNEYS FOR APPELLEE

OPINION BY: LANE

CHAPEL, P.J.: CONCURS
STRUBHAR, V.P.J.: CONCURS
LUMPKIN, J.: CONCURS IN RESULTS
JOHNSON, J.: SPECIALLY CONCURS

FOOTNOTES

1 Codefendants were Billy Don Alverson, Darwin D. Brown and Richard Harjo. Darwin D. Brown was tried conjointly with Wilson and appeals under Oklahoma Court of Criminal Appeals case number F 97-493. Alverson appeals under case number F 97-1024. Harjo appeals under case number F 97-1054. Wilson and Alverson were also sentenced to death. Harjo was sentenced to life without the possibility of parole.

2 Wilson's codefendants filed Petitions for Extraordinary Relief prior to the commencement of this trial asking that the trial court be prohibited from using a dual jury system. We denied the Petitions holding that Oklahoma law did not preclude the trial court from exercising his discretion and impaneling dual juries. Harjo et al. v. Turnbull, Order Denying Petitions for Extraordinary Relief, Nos. P 96-1258, P 96-1266, P 96-1278 (Okl.Cr. January 14, 1997) (not for publication).

3 For a discussion of the differences between collateral estoppel and res judicata see Miller v. Miller, 1998 OK 24, ¶¶ 22-26, 956 P.2d 887, 896-97.

4 People v. Hana, 524 N.W.2d 682, 693 (Mich. 1994); Ewish v. State, 871 P.2d 306, 313 (Nev. 1994), reversed on other grounds, 904 P.2d 1038; People v. Cummings, 850 P.2d 1, 35 (Cal. 1993), cert. denied, 511 U.S. 1046, 114 S.Ct. 1576, 128 L.Ed.2d 219 (1994); State v. Bowman, 588 A.2d 728, 734 (Me. 1991); State v. Beam, 710 P.2d 526, 534 (Idaho 1985), cert. denied, 476 U.S. 1153, 106 S.Ct. 2260, 90 L.Ed.2d 704 (1986), sentence vacated on other grounds in Beam v. Paskett, 3 F.3d 1301, 1304 (9th Cir. 1993), cert. denied, 511 U.S. 1060, 114 S.Ct. 1631, 128 L.Ed.2d 354 (1994); United States v. Lewis, 71 F.3d 16, 19 (D.C. Cir. 1983), cert. denied 464 U.S. 996, 104 S.Ct. 492, 78 L.Ed.2d 686 (1984).

5 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

6 While I recognize that a majority of this Court has held that both "victim impact evidence" under 21 O.S.Supp.1997, § 701.10(C) and "victim impact statements" under 22 O.S.Supp.1997, §§ 984 and 984.1 are admissible before a jury in a capital sentencing procedure, I continue to be of the opinion that only "victim impact evidence," defined in section 701.10(C) as evidence about the victim and the impact of the murder on the family of the victim, is admissible before a jury in a capital sentencing proceeding.

It is my opinion that "victim impact statements," defined in § 984, and provided for in § 984.1, including circumstances surrounding the crime, the manner in which the crime was perpetrated, and the victim's opinion of a recommended sentence, should only be presented to the trial judge at the formal sentencing proceeding. I also believe that the language of the legislature supports my position on this issue.

7 The video in this case does contain a narrative describing the scene; however, the volume was turned off when shown to the jury. Therefore, the video is not prejudicial like the one I found offensive in Duckett v. State, 1995 OK CR 61, ¶¶ 1-3, 919 P.2d 7, 27-28 (Lane, J. concurring in result).

8 Accordingly, we further find that Wilson's application for an evidentiary hearing on this claim should be denied.

[983 P.2d 473]
LUMPKIN, JUDGE: CONCUR IN RESULT

¶1 I concur in the result reached in this case. I do not agree with portions of the rationale, however, and therefore I write separately to address those points of disagreement.

¶2 First, I do not agree that the doctrine of collateral estoppel "prevents Wilson from raising the issue of whether the dual jury procedure is authorized in Oklahoma." To find Appellant bound by the doctrine of collateral estoppel, he would have to be found a "privie" of his co-defendants. Such is not the case. Appellant did not file a Petition for Extraordinary Relief as did his co-defendants. The application of procedural bar in the context of criminal procedure is not necessarily the same as in civil procedure. Here, we should simply be speaking in terms of Appellant's failure to raise this issue below, thereby waiving the claim on appeal. Otherwise, we should simply reiterate the position we took in denying the Petitions for Extraordinary Relief filed by Appellant's co-defendants.

¶3 Second, while I am of the opinion Oklahoma law does not prevent the trial court, in the exercise of its discretion, from impaneling dual juries, I remain skeptical regarding the value of this procedure, especially in capital cases. Although I do not find reversible error occurred in the instant case, some of the issues raised by Appellant are illustrative of future problems we will likely encounter when dual juries are impaneled. Rather than broadly endorsing the dual jury procedure, as did the majority in Cohee v. State, 942 P.2d 211, 213 (Okl.Cr.1997)(Lumpkin, J. Concurring in part, dissenting in part), I will continue to monitor its impact on the trial on a case-by-case basis.

¶4 [983 P.2d 474] Third, with respect to proposition eleven, I believe the opinion goes too far in its discussion of post-autopsy photographs. While I agree with the general principal that post-autopsy photographs should be viewed with a certain degree of suspicion because of their potential to be more prejudicial than probative, we must recognize that post-autopsy photographs may have their place in certain cases. See Mitchell v. State, 884 P.2d 1186, 1196 (Okl.Cr.1994)(post-autopsy photograph more probative than prejudicial). In addition, the post-autopsy photograph of the interior of the skull which revealed the hinge type fracture at the base of the skull did not show "the handiwork of the medical examiner". It showed the level of force used by Appellant and his co-defendants as they beat the victim to death. If this injury had been visible on the outside of the victim's body, a photograph of those injuries would have been admissible regardless of how prejudicial it might have been. As the Court recognizes "photographs of the numerous wounds to the victim's head suffered by the victim were properly admitted. These photographs were far more prejudicial than the sterile, clinical photograph of the inside of the victim's skull". Opinion at Pg. 38. I find the photograph was admissible and no error occurred.

¶5 Finally, I cannot concur with the totality of the language and analysis used in the opinion in resolving proposition twelve.

[983 P.2d 474]
JOHNSON, JUDGE: SPECIALLY CONCURS

¶1 I concur and agree with the majority that collateral estoppel applies in this case as to the question of dual juries. Even though Appellant was not a party to the "Extraordinary Writ," the doctrine of collateral estoppel would apply and therefore any additional discussion, I feel, is unnecessary. Harjo et al. v. Turnbull, Order (Okl.Cr. January 14, 1997). I agree with the Court's analysis on the balance of the proposition of error (dual jury issues) but feel that the analysis is unnecessary.

¶2 The Court in its discussion on the DNA test results and other places in the opinion indicates that trial counsel failed to object to statements or admission of evidence and therefore the court could only examine for "plain error." This, of course, is a proper statement with which I agree but I need to point out that "plain error" is not one and the same as "reversible error." Simpson v. State, 876 P.2d 690, (OklCr. 1994. This Court has found that the terms "plain error," "fundamental error," and "substantial right" are one and the same meaning. Simpson, 876 P.2d at 695. The errors complained of do not go to the foundation of the case nor show prejudice. The Court was proper in applying the harmless error analysis. Simpson, 876 P.2d at 695.

¶3 Guilt in this case is exceedingly clear. This is a horrible case of an unjustified killing. Clearly all of the parties knew what was going to happen because they could all be easily identified and they had to cover their crime with the atrocious murder. I find nothing in this case that would make me change the jury's verdict. Therefore, I specially concur.