'I feel my whole body
burning': Last words of man executed by lethal injection in
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
Wilson and three others brutally beat Yost to
death and robbed the store in the early hours of February 25,
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
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
Yost's family denied an interview request but
issued a statement noting the third of three executions was behind
'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
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
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
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
'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
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
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
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
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
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 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
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
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
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
"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
States Court of Appeals
For the Tenth Circuit
Anita Trammell, Interim Warden, Oklahoma State Penitentiary.
Appeal from the
United States District Court for the Northern District of Oklahoma
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
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
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
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
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
[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?
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?
Q: Doesn’t that mean he’s a psychopath?
Q: It doesn’t?
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?
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
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?
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
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
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
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
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
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
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
[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
Q: [W]ell, is it outdated, that it used to
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
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?
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?
Q: Logical, goal-oriented behavior?
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?
Q: The tape you had had the audio portion of
Q: He’s able to strike up conversations; right?
Q: He’s able to help these individuals find
whatever it was they supposedly were looking for; right?
Q: Okay. And he was able to help move them
along and get them on out; right?
Q: And that’s logical, goal-oriented behavior
under the circumstances; would you agree?
Q: And the same is true with Mr. Wilson
removing the safe from the cabinet; right?
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?
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
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
Q: Okay. And it goes on to say a lot of other
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?
Q: All right. And it classified Mr. Wilson as a
type C offender; correct?
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
Q: It also goes on to say that, in fact, type C
inmates typically have difficulty adjusting to prison life; right?
Q: It may be necessary to segregate them from
weaker or more vulnerable inmates; correct?
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
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
A: You mean whether they’ll take medication or
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
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
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
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
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?
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
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
[Defense counsel]: Objection, Your Honor;
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
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;
A: That’s one of the delusions that I cited,
Q: Okay. And you’ve reviewed the recording of
Mr. Wilson’s statement to the police; correct?
Q: He gives a confession?
A: Gave a confession, yes.
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?
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
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
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?
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;
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
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?
Q: Is it your understanding, sir, that Mr.
Wilson was involved in gang life?
Q: Both before—well, at least before he went to
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
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?
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.
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
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
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
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
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
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
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
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
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
¶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).
¶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
¶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.
¶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
¶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
¶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
¶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,
¶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
¶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.
¶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
¶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
¶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
VII. SECOND STAGE ISSUES
¶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
¶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
¶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.
¶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.
¶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
¶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
¶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.
¶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
[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
¶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,
¶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
¶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
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
¶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
¶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
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
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
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
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
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
[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
¶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
¶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
[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
¶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
¶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.