Darwin Demond Brown

ProDeathPenalty.com

Darwin Demond Brown's codefendant Michael Wilson, 19, was employed at the QuikTrip convenience store located on North Garnett Road in Tulsa, Oklahoma, where Richard Yost also worked. Brown, 18, and three codefendants 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. Yost was cleaning the windows on the coolers with all of the defendants 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, Billy Alverson, came back out and picked up some items that were knocked from the shelves. He also kept watch for customers. A few moments later, Alverson and 16-year-old 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." 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 the video went blank as the video was taken from the recorder. Brown was never seen exiting the back room between the times Yost was dragged into the room until the video recorder was stopped. The defendants then loaded two safes into Wilson's car using a dolly from QuikTrip.

Yost's body was discovered by customer Larry Wiseman 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. 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 shortly thereafter he spotted Wilson get into a gray vehicle. The vehicle was stopped. All four defendants were taken into custody. A large number of five dollar bills was recovered from Harjo at the site of the stop. Brown was a passenger in the vehicle occupied by all of the codefendants.

At that time Brown was removed from the car, handcuffed and taken to the Tulsa Police Department where he made a statement. Later, at the police station, money was recovered from all of the defendants except Wilson. Officers searched Alverson's residence where they discovered the drop safe, the dolly, QuikTrip glass cleaner, money tubes and the store surveillance videotape. 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.

Brown v. State, 989 P.2d 913 (Okla.Crim. 1998) (Direct Appeal).

Defendant was convicted in the District Court, Tulsa County, E.R. Turnbull, D.J., of murder in the first degree and robbery with a dangerous weapon and was sentenced to death for murder conviction and life imprisonment for robbery conviction. Defendant appealed. The Court of Criminal Appeals, Lane, J., held that: (1) potential jurors who clearly stated that they would not consider death penalty or would automatically vote against death penalty were properly removed from panel; (2) admission of defendant's incriminating statements was harmless error given evidence contained on convenience store surveillance videotape; (3) evidence that victim was beaten to death with a baseball bat did not support lesser included offense instruction for robbery by force or fear; (4) defendant's convictions for robbery with a dangerous weapon and first degree murder would be interpreted as one of felony-murder only; (5) evidence of victim's extreme mental anguish suffered was sufficient evidence to prove especially heinous, atrocious, and cruel aggravating circumstance of murder; (6) admission of irrelevant statements about murder victim's childhood did not rise to the level of plain error; and (7) admission of prejudicial post-autopsy photograph of interior of victim's skull was harmless error. Conviction for robbery with a dangerous weapon reversed and remanded; judgment and sentence for first-degree murder affirmed. Chapel, P.J., filed a dissenting opinion. Strubhar, V.P.J., concurred in result. Lumpkin, J., filed an opinion concurring in result.

An Appeal from the District Court of Tulsa County. Before the Honorable E.R. Turnbull, District Judge.

¶ 101 DARWIN DEMOND BROWN, 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. Brown 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.

LANE, Judge.

¶ 1 Appellant, Darwin Demond Brown, was charged conjointly with three codefendants FN1 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 the District Court of Tulsa County, 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 Brown 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 would constitute a continuing threat to society. 21 O.S.1991, § 701.12(4), (5) & (7).

FN1. Codefendants were Billy Don Alverson, Michael Lee Wilson and Richard Harjo. Wilson was tried conjointly with Brown and appeals under Oklahoma Court of Criminal Appeals case number F 97-491. 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.

I. FACTS

¶ 2 Brown's codefendant Michael Wilson was employed at the QuikTrip convenience store located at 215 North Garnett Road in Tulsa, Oklahoma, where Richard Yost also worked. Brown and the codefendants 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 all of the defendants 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, Billy Alverson, came back out and picked up some items that were knocked from the shelves. He also 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 the video went blank as the video was taken from the recorder. Brown was never seen exiting the back room between the times Yost was dragged into the room until the video recorder was stopped. The defendants then loaded two safes into Wilson's car using a dolly from QuikTrip.

¶ 5 Yost's body was discovered by customer Larry Wiseman 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. All four defendants were taken into custody. A large number of five dollar bills was recovered from Harjo at the site of the stop. Later, at the police station, money was recovered from all of the defendants except Wilson.

¶ 7 Officers searched Alverson's place of abode where they discovered the drop safe, the dolly, QuikTrip glass cleaner, money tubes and the store surveillance videotape. 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.

¶ 8 Brown raises eighteen propositions of error in his appeal. These propositions will be addressed as they arose at trial.

II. DUAL JURY ISSUES

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

¶ 10 In Cohee v. State, 1997 OK CR 30, ¶ 2, 942 P.2d 211, 213, a majority of this Court set forth Guidelines Governing Juries in Criminal Trials which included, in Guideline 2, 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:

Both juries will be seated in the jury box and the evidence pertaining to both defendants will be presented to both juries simultaneously. Evidence admissible as to one co-defendant shall be presented to that defendant's jury only. Cohee, 942 P.2d at 213. We now have before us Brown's claim that the dual jury system is not authorized under Oklahoma law and the procedure violates a defendant's constitutional rights. We previously ruled, in an “Extraordinary Writ” action by Brown, that the trial court has the discretion to implement a dual jury procedure because Oklahoma law does not prohibit such a procedure.FN2 Under the theory of collateral estoppel (issue preclusion), “once a court has decided an issue of fact or law necessary to its judgment, that issue may not be re-litigated between the same parties or their privies in a suit on a different cause of action.” Wilson v. Kane, 1993 OK 65, n. 23, 852 P.2d 717, 727, n. 23.FN3 Therefore, the principle of collateral estoppel prevents Brown from raising the issue of whether the dual jury procedure is authorized in Oklahoma. However, Brown's arguments regarding the dual jury procedure's effect on his rights are properly before us.

FN2. Brown and two of his 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). FN3. 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.

¶ 11 We first note that jurisdictions which have approved the use of a dual jury system or a multiple jury process require a defendant to show actual prejudice from the use of this novel approach to multiple defendant trials.FN4 We find this approach comports with Oklahoma law. The use of the multiple jury process is constitutional, and a conviction had with the use of the multiple jury system will be upheld absent a showing of specific prejudice.

FN4. People v. Hana, 447 Mich. 325, 524 N.W.2d 682, 693 (Mich.1994); Ewish v. State, 110 Nev. 221, 871 P.2d 306, 313 (1994), reversed on other grounds, 111 Nev. 1365, 904 P.2d 1038; People v. Cummings, 4 Cal.4th 1233, 18 Cal.Rptr.2d 796, 850 P.2d 1, 35 (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, 109 Idaho 616, 710 P.2d 526, 534 (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, 716 F.2d 16, 19 (D.C.Cir.1983), cert. denied, 464 U.S. 996, 104 S.Ct. 492, 78 L.Ed.2d 686 (1983).

¶ 12 Brown claims that the dual jury system violates his right to free, unfettered cross-examination because it 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 would 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.

¶ 13 Brown asserts that counsel could either pursue evidence prejudicial to the codefendant and cause a prejudicial spectacle of removing one jury during the course of the trial; prejudicial because removal would place, in the removed jurors' minds, the idea that something bad was about to be said about their respective defendant.

¶ 14 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 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. We believe that the trial court's instructions to the juries sufficiently protected Brown from any prejudice arising from removal of his jury.

¶ 15 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 juries 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 juries collectively answered in the affirmative.

¶ 16 We believe that the trial court's instructions to the juries correctly informed them of their duty. We have not found nor has Brown presented evidence that the jurors did not follow this admonishment.

¶ 17 Brown 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. Brown 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.

¶ 18 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 1179-80.

¶ 19 In this case, each defendant had separate counsel. Therefore, counsel was not faced with the problems occurring in Holloway. The only obligation Brown'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. Furthermore, Brown does not identify specific instances where his counsel was acting under an actual conflict of interest. Accordingly we find no error in the use of the dual jury system in this case.

III. VOIR DIRE ISSUES

¶ 20 Brown claims, in proposition seven, that jurors were excused in violation of the test found in Wainwright v. Witt.FN5 The proper inquiry is whether a juror's views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. Wainwright, 469 U.S. at 424, 105 S.Ct. at 852. Brown complains that in this case the trial court improperly asked the jurors if they could impose the death penalty, regardless of their beliefs. FN5. 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985).

¶ 21 The trial courts voir dire went something like this, for example: THE COURT: ... Mr. Monroe, ... if convicted, ... it is the duty of the jury to impose punishment.... [The punishment options] are, number one, life in the penitentiary; number two, life in the penitentiary without the possibility of parole, and number three, the death penalty. Mr. Monroe, are you opposed to or in favor of the death penalty? MR. MONROE: I am opposed to the death penalty. THE COURT: ... Would your opposition to the death penalty prevent or substantially impair your ability to find the defendant guilty if the law and the evidence so warrants, because the death penalty could be imposed? MR. MONROE: No. THE COURT: ... If this case should reach the penalty phase, would you automatically vote against the death penalty, regardless of the evidence and the law, that is presented to you while this Court is in session? MR. MONROE: Yes, I would, sir.

¶ 22 Thereupon, the juror would be excused for cause without any further inquiry. Other than Mr. Monroe, Brown complains about the removal, for cause, of potential jurors Borens, Sicks, Akers, LaPage and Ross. Jurors Akers, LaPage and Ross answered the questions just as Monroe answered, and they too were excused for cause.

¶ 23 Juror Borens first stated that she was opposed to the death penalty but would not automatically vote against it. On further voir dire from the State and the trial court, Borens was asked if she would consider the death penalty. She stated that she would not consider the death penalty. Juror Sicks initially indicated that she was opposed to the death penalty and she “would have to vote not in favor of the death penalty.” Under further inquiry by the trial court wherein the trial court asked, “you would not consider all three of the penalty options, or you would consider all three of the penalty options?” Sicks said “I do not think I could consider the death penalty.” The trial court further inquired by asking “Are you telling me that in no circumstances could you impose the death penalty?” Sicks responded, “it would be very hard. I don't know that I could morally do that.” In an attempt to clarify Sicks position, the trial court asked, “Are you telling me that under no circumstances could you impose the death penalty.? ... [I]f we came to the sentencing stage you would have three options. Are you telling me you would not consider the third option?” Sicks replied, “I would not consider it.” Sicks was then excused.

¶ 24 Of all the jurors Brown complains about, only Sicks was asked specifically if she would impose the death penalty. Even in voir dire the trial court corrected itself and correctly asked if she could consider the death penalty.

¶ 25 We have held: [N]ot 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, 1994 OK CR 13, ¶ 23, 871 P.2d 79, 90-91 (citations omitted). The potential jurors Brown complains were improperly removed clearly stated that they would not consider the death penalty or would automatically vote against the death penalty. Although the trial court's voir dire was not a model of perfection, the jurors were properly removed.

¶ 26 The better approach in examining potential jurors regarding the punishments in a capital murder case 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.

¶ 27 Brown further complains that he was not allowed to rehabilitate these jurors. 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 manner in which the trial court conducted this portion of voir dire in this case.

¶ 28 In proposition six Brown claims that two jurors were excused by the State in violation of his constitutional rights as interpreted by Batson v. Kentucky.FN6 Brown claims that these two jurors, Busby and Sims, were excused because they were the same minority race as he was. The State offered race neutral reasons for excluding both jurors. The State asserted that they were excusing Busby because she was opposed to the death penalty, she gave inconsistent answers and said she couldn't be fair to the State. Facts also reveal that Busby was the niece of the Tulsa Police Department's Deputy Chief. Both her brother and her cousin were police officers. Busby's second cousin was murdered and her sister-in-law's brother was beaten with a bat. The State asserted that juror Sims was sleeping during the voir dire process. The trial court also took notice that Sims had been falling asleep during voir dire and questioned her, in camera, regarding her reasons for sleeping. FN6. 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

¶ 29 “The ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.” Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834 (1995). Brown has not persuaded us that the trial court abused its discretion in finding that the State's race neutral reasons were legitimate and did not deny equal protection. Id.; Cleary v. State, 1997 OK CR 35, ¶ 6, 942 P.2d 736, 742-43. Accordingly, we find no error in this proposition.

¶ 30 In proposition eight, Brown asserts that he was prejudiced by comments made by a juror during voir dire. This juror's friend lived with codefendant Wilson's ex-girlfriend, and this juror apparently heard his friend and Wilson's ex-girlfriend talking about what Wilson had said to his ex-girlfriend about the crime. This juror's friend had also told him what was “going on.” Brown claims this was a violation of Bruton v. United States. FN7 “An accused's right to confront the witnesses against him is violated when the out-of-court admissions of non-testifying codefendants which implicate the defendant are introduced at trial.” Johnson v. State, 1995 OK CR 62, on rehearing, 911 P.2d 918, 932, citing Bruton, 391 U.S. at 126, 88 S.Ct. at 1622. FN7. 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

¶ 31 This jurors' comments can hardly be called an interjection of Wilson's extra-judicial confession. In fact, it is practically impossible to call the colloquy a confession at all, except for the fact that it shows Wilson had personal knowledge of the crime. However, there was no information divulged which would have, in any way, implicated Brown. Therefore, this proposition must fail.

IV. FIRST STAGE ISSUES

* * *

IX. PROSECUTORIAL MISCONDUCT

¶ 87 Brown claims in proposition eleven that improper tactics and arguments of the prosecutor deprived him of a fair trial. Brown cites sixty-eight instances of alleged prosecutorial misconduct. The misconduct alleged includes comments made during voir dire, comments made during first and second stage opening statements and closing arguments, improper questioning of witnesses, and improper presentation of evidence which was not relevant, or the probative value of the evidence was substantially outweighed by the danger of unfair prejudice, or needless presentation of cumulative evidence.

¶ 88 Of the comments made by the prosecutor, most were not met with a contemporaneous objection. We have reviewed these comments and find that they did not rise to the level of plain error. The trial court sustained objections to some of the comments, but no admonition was given. We find that any error was cured when the trial court sustained the objections. Pennington v. State, 1995 OK CR 79, ¶ 35, 913 P.2d 1356, 1369. In other cases, the trial court admonished the jury to keep in mind that the arguments and comments of the attorneys were not evidence and that they must rely only on their own recollection of the evidence. These admonitions cured all but plain error. There was no plain error. See Charm v. State, 1996 OK CR 40, ¶ 60, 924 P.2d 754, 770.

¶ 89 Brown claims that during the first stage the prosecutor presented evidence which was gruesome. 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 value 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. We find that they were properly introduced, thus there can be no prosecutorial misconduct for presenting the evidence.

¶ 90 Brown complains about evidence presented by the prosecutor in second stage. We find that of the exhibits complained about, all but one were relevant to show the events leading to death which were relevant to prove the aggravating circumstances. Therefore these photographs were probative. We find that the probative value was not substantially outweighed by the danger of unfair prejudice.

¶ 91 The sole photograph we find offensive is 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 victims head. However, we fail to find the relevance of this photograph for second stage. Post-autopsy photographs generally are found to be inadmissible, for any probative value they have is substantially outweighed by prejudicial effect. 12 O.S.1991, § 2403. The relevance of this photograph is negligible because it shows the handiwork of the medical examiner rather than the defendant or his codefendants. Its prejudicial value is great because it tends to shock the general public unaccustomed to viewing the inside of the human body. Sattayarak v. State, 1994 OK CR 64, ¶ 8, 887 P.2d 1326, 1330; Oxendine v. State, 1958 OK CR 104, ¶¶ 6-8, 335 P.2d 940, 943. Here the probative value is outweighed by the danger of unfair prejudice. The prosecutor should have known that this photograph had little relevance and that its probative value would be substantially outweighed by the prejudicial effect, therefore, the prosecutor committed misconduct in offering this piece of evidence.

¶ 92 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 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.

¶ 93 Brown claims that the prosecutor committed misconduct by offering evidence which was cumulative. Brown claims that the introduction of diagrams of Yost's injuries and the video of the crime scene was cumulative to the photographs already admitted. The diagrams of the injuries were relevant to assist the jury in understanding the medical examiner's testimony. The crime scene video gives the jury a walk through perspective of the crime scene. FN12 This information was relevant to prove the aggravating circumstances alleged by the State; that the murder was especially heinous, atrocious or cruel and that Brown 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. Therefore, the prosecutor did not commit misconduct in offering this evidence. FN12. 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 Duckett v. State, 1995 OK CR 61, ¶ 1-3, 919 P.2d 7, 27 (Lane, J. concurring in result)

¶ 94 We find no prosecutorial misconduct which requires reversal of this case. Therefore, this proposition fails.

X. CUMULATIVE ERROR.

¶ 95 Brown, in proposition eighteen, 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 error occurring in both the first and second stages of this trial. None of these errors required reversal singly. In viewing the cumulative effect of these errors we also find they do not require reversal of this case. Gilbert v. State, 1997 OK CR 71, ¶ 101, 951 P.2d 98, 122, cert. denied, 525 U.S. 890, 119 S.Ct. 207, 142 L.Ed.2d 170.

XI. MANDATORY SENTENCE REVIEW

¶ 96 In proposition seventeen Brown claims that the mitigation outweighed the aggravating evidence, and in light of the error occurring during trial Brown asks this Court to modify his sentence. Under our mandatory sentence review in accordance with 21 O.S.1991, § 701.13(C), we must determine whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor and whether the evidence supports the jury's finding of the aggravating circumstance.

¶ 97 The jury found that there existed the probability that Brown 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.

¶ 98 The mitigating evidence was summarized into an instruction for the jury to consider. This evidence included Brown's positive family relationships; his cooperative and sensitive attitude towards family members; his young age (eighteen at the time of the crime); his personality of being a follower who was adrift at the time of the crime. 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.

¶ 99 We do not find that the jury's verdict of death was rendered because of the influence of passion, prejudice or any other arbitrary factor. It was not rendered because of any errors occurring during the trial or the prosecutors' alleged misconduct. Therefore, we will not disturb Brown's sentence as he requests.

¶ 100 We have found that Brown'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.

JOHNSON, J., concurs. STRUBHAR, V.P.J., and LUMPKIN, J., concur in results. CHAPEL, P.J., dissents.

Brown v. Sirmons, 415 F.Supp.2d 1268 (N.D.Okla. 2006) (Habeas).

Background: Following affirmance on appeal of defendant's state conviction for murder in the first degree and sentence of death, 989 P.2d 913, defendant filed petition for writ of habeas corpus.

Holdings: The District Court, Kern, J., held that: (1) dual jury process was not constitutional error; (2) defendant exhausted claim relating to the failure of the trial court to give an instruction on second degree murder by imminently dangerous conduct; (3) defendant was not entitled to second degree felony murder instruction; (4) prospective jurors were properly excused for cause in capital murder trial based on jurors' bias against imposition of the death penalty; (5) prosecutor's comments did not render trial fundamentally unfair; (6) admission of photograph of the interior of victim's skull during second stage of capital murder trial did not render defendant's trial fundamentally unfair; (7) sufficient evidence existed to support jury's finding of conscious suffering and physical abuse, as required for heinous, atrocious, or cruel aggravator; (8) victim impact statements presented by victim's wife and mother did not render trial fundamentally unfair; and (9) claim that his constitutional rights were violated because the prosecution submitted insufficient evidence to prove the murder was committed for the purpose of avoiding or preventing a lawful arrest was procedurally barred. Petition denied.

KERN, District Judge.

This matter comes before the Court on a Petition for Writ of Habeas Corpus (Dkt.# 12) filed by Oklahoma death row inmate Darwin Demond Brown, pursuant to 28 U.S.C. § 2254. Petitioner, who appears through counsel, challenges his conviction and sentencing in Tulsa County District Court Case No. CF-95-1024. Respondent Gary Gibson filed a response to the Petition denying its allegations (Dkt.# 14), and Petitioner filed a Reply (Dkt.# 17). For the reasons discussed below, the Court finds the Petition should be denied.

As a preliminary matter the Court notes that Marty Sirmons is now the Warden at Oklahoma State Penitentiary. Pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure, the Court finds that Marty Sirmons is the proper substituted Respondent and the Court Clerk shall be directed to note such substitution on the record.

The Court has reviewed: (1) the Petition for Writ of Habeas Corpus, the Response to the Petition, and the Reply to the Response; (2) transcripts of the motion hearing held on October 30, 1996, motion hearing held on January 27, 1997, motion hearing held on January 30, 1997, motion hearing held on February 3, 1997, jury pool proceedings held on February 3, 1997 in front of Brown jury pool only, voir dire of Brown jury on February 6-7, 1997 (three volumes), motion hearing held on February 10, 1997, and hearing held in chambers on February 11, 1997, after opening statement in Wilson case; (3) transcript of the first stage of jury trial proceedings, held February 11-14, 1997 (five volumes); (4) transcript of the second stage of the jury trial proceedings held on February 18-20, 1997 (five volumes); (5) all documents and exhibits (photographs of certain items of physical evidence submitted in lieu of actual items) admitted in jury trial proceedings, including one audio tape of Darwin Brown's statement to police and two video tape exhibits; (6) transcript of the sentencing proceedings held on April 9, 1997; (7) Original Record (O.R.) in Tulsa County Case No. CF-95-1024, Volumes I, II and III; and (8) all other records before the Oklahoma Court of Criminal Appeals which were transmitted to this Court and certified by the parties.

BACKGROUND
I. FACTUAL HISTORY

Petitioner and three other co-defendants were convicted for the February, 1995, brutal killing of QuikTrip employee, Richard K. Yost. Pursuant to 28 U.S.C. § 2254(e)(1), the historical facts as found by the state court are presumed correct. In Petitioner's state court direct appeal, the Oklahoma Court of Criminal Appeals adopted the following facts.FN1 FN1. Additional facts, apparent from the record, may be presented throughout this opinion as they become pertinent to this Court's analysis.

Brown's codefendant Michael Wilson was employed at the QuikTrip convenience store located at 215 North Garnett Road in Tulsa, Oklahoma, where Richard Yost also worked. Brown and the codefendants 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.

Yost was cleaning the windows on the coolers with all of the defendants 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, Billy Alverson, came back out and picked up some items that were knocked from the shelves. He also 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.”

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 the video went blank as the video was taken from the recorder. Brown was never seen exiting the back room between the times Yost was dragged into the room until the video recorder was stopped. The defendants then loaded two safes into Wilson's car using a dolly from QuikTrip.

Yost's body was discovered by customer Larry Wiseman 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.

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. All four defendants were taken into custody. A large number of five dollar bills was recovered from Harjo at the site of the stop. Later, at the police station, money was recovered from all of the defendants except Wilson.

Officers searched Alverson's place of abode where they discovered the drop safe, the dolly, QuikTrip glass cleaner, money tubes and the store surveillance videotape. 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. Brown v. Oklahoma, 989 P.2d 913, 919-20 (Okla.Crim.App.1998).

II. PROCEDURAL HISTORY

Petitioner, Darwin Edmond Brown, was convicted following a jury trial in the District Court of Tulsa County, Oklahoma, Case No. CF-95-1024, of Murder in the First Degree (malice aforethought and felony murder) and Robbery With a Dangerous Weapon. His trial was held jointly with co-defendant Michael Wilson's trial, in front of separate juries. Petitioner was represented at trial by attorney Allen Smallwood. At the conclusion of the sentencing stage, Petitioner's jury found three aggravating circumstances: (1) the murder was especially heinous, atrocious or cruel; (2) the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution; and (3) Brown would constitute a continuing threat to society. Petitioner was, on April 9, 1997, sentenced to death on the murder conviction and sentenced to life imprisonment on the robbery conviction.

Petitioner filed a direct appeal of his convictions and sentences to the Oklahoma Court of Criminal Appeals (“OCCA”) in case No. F-97-493. The OCCA rejected Petitioner's alleged errors by affirming the conviction and sentence on the murder count. The judgment and sentence for robbery with a dangerous weapon was reversed and remanded to the district court for dismissal. The OCCA denied a rehearing on February 22, 1999. Brown, 989 P.2d at 913. Petitioner did not seek certiorari review from the United States Supreme Court.

Petitioner sought post-conviction relief from the Oklahoma Court of Criminal Appeals in case No. PC-98-1251, but all requested relief was denied on November 9, 1999, in an unpublished opinion. (Dkt.# 12, Exh. B) (Opinion Denying Post-Conviction Relief).

Petitioner initiated the instant habeas corpus proceedings on February 2, 2000. He claims constitutional violations arising from the trial court's unauthorized use of dual juries, a warrantless arrest without probable cause, the trial court's refusal to instruct on second degree murder, errors in the trial court's dismissal of certain veniremen for cause, prosecutorial misconduct, insufficient evidence to support the heinous, atrocious and cruel aggravator, unconstitutional application of continuing threat and “avoid arrest” aggravators, improper victim impact evidence, and cumulative errors.

V. Prosecutorial Misconduct and Gruesome Photographs

In his fifth proposition of error, Petitioner asserts that prosecutorial misconduct, including improper comments and the introduction of gruesome photographs, deprived Petitioner of his right to a fundamentally fair trial in violation of the Eighth and Fourteenth Amendments. He also claims that his Sixth Amendment rights to an impartial jury were violated by prosecutorial comments made during closing arguments. Respondent maintains that this claim was raised on direct appeal where the OCCA considered the prosecutorial misconduct claims of the Petitioner and determined that Petitioner was not denied a fair trial or due process. The OCCA found none of the alleged instances of misconduct, either individually or collectively, warranted relief. Brown, 989 P.2d at 933-35. Respondent urges that Petitioner has not met his burden of proof on this issue and is not entitled to habeas relief under § 2254(d).

Sixty-eight instances of alleged prosecutorial misconduct during both stages of trial were presented by Petitioner on direct appeal to the OCCA. The state court found most of the alleged inflammatory comments made by the prosecutor were not objected to and were, therefore, waived except for plain error. The OCCA found no plain error. Brown, 989 P.2d at 934. Of the remaining comments, counsel's objections were sustained or the jury was admonished, thereby curing any error. Id. The OCCA further held that, with the exception of one photograph of the interior of the victim's skull introduced during second stage proceedings (State's Trial Exhibit # 115), none of the comments, questions or evidence presented by the prosecution constituted misconduct. Id. at 934-35. The error found in the admission of the one photograph was deemed harmless. Id. at 934. The Supreme Court has prescribed rules that govern Petitioner's prosecutorial misconduct claims. Therefore, this Court must determine whether the Court of Criminal Appeals decision on these claims is contrary to such rules. 28 U.S.C. § 2254(d)(1).

Not every improper and unfair remark made by a prosecutor will amount to a federal constitutional deprivation. See Caldwell v. Mississippi, 472 U.S. 320, 338, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985) (plurality opinion). When a prosecutor's comment or argument deprives Petitioner of a specific constitutional right, a habeas claim may be established without requiring proof that the entire trial was thereby rendered fundamentally unfair. Mahorney v. Wallman, 917 F.2d 469, 472 (10th Cir.1990) (citing Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431(1974)). A prosecutor's improper comment or argument which does not deprive a defendant of a specific constitutional right will require the reversal of a state conviction only where those remarks sufficiently infect the trial so as to make it fundamentally unfair and, therefore, a denial of due process. Donnelly, 416 U.S. at 643, 645, 94 S.Ct. 1868. See also Trice v. Ward, 196 F.3d 1151, 1167 (10th Cir.1999); Hoxsie v. Kerby, 108 F.3d 1239, 1243 (10th Cir.1997). Federal law clearly provides that in order to constitute a due process violation the prosecutorial conduct must be of sufficient significance to result in the denial of a defendant's right to a fair trial. Donnelly, 416 U.S. at 645, 94 S.Ct. 1868.

This Court's inquiry into the fundamental fairness of a trial can only be made after examining the entire proceeding. Donnelly, 416 U.S. at 643, 94 S.Ct. 1868. The complained of remarks or arguments must be considered in the context in which they were made. Greer v. Miller, 483 U.S. 756, 765-66, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987); see also Darden v. Wainwright, 477 U.S. 168, 179, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986).

To view the prosecutor's statements in context, we look first at the strength of the evidence against the defendant and decide whether the prosecutor's statements plausibly “could have tipped the scales in favor of the prosecution.”... We also ascertain whether curative instructions by the trial judge, if given, might have mitigated the effect on the jury of the improper statements.... Ultimately, we “must consider the probable effect the prosecutor's [statements] would have on the jury's ability to judge the evidence fairly.” Fero v. Kerby, 39 F.3d 1462, 1474 (10th Cir.1994) (citations omitted). In addition, the Court must consider the prejudice, if any, attributable to the prosecutor's comments. Brecheen v. Reynolds, 41 F.3d 1343, 1355 (10th Cir.1994) ( citing Mahorney, 917 F.2d at 472-73). This Court will apply these principles to Petitioner's individual instances of alleged prosecutorial misconduct. For the sake of clarity, Petitioner's arguments will be examined at the various stages of trial as set forth below.

A. Voir Dire

Petitioner contends prosecutorial misconduct during voir dire deprived him of a fair trial. Specifically, Petitioner argues that the prosecution acted improperly during voir dire in the following ways:

1. Prosecutor stated to a venireman that the emotions that [he] might have about the death penalty would be appropriate during penalty phase proceedings. Tr. Trans. Feb. 7, 1997, at 360-61.

2. Prosecutor improperly presented a Trojan horse theory by telling a prospective juror that when you don't have fear of a person or a thing, you let your guard down sometimes, don't you? Id. at 362.

3. Prosecutor urged selective use of the presumption of innocence by explaining that, the reason for the presumption of innocence is to protect the innocent but not to prevent the guilty from being convicted. Id. at 365.

4. Prosecutor argued to the jury panel that in some types of first degree murder, rehabilitation is not an issue. Id. at 365.

5. Prosecutor then emphasized his point by asking, “[W]ould there be some types that are so bad that rehabilitation is not even an issue[?]” Id. at 366.

6. Prosecutor tried to elicit sympathy for the victim by asking if a potential juror would agree that the victim's life is also important. Id.

7. Prosecutor argued that the death penalty would bring equilibrium back to society and to the victim's family, for two little boys and a wife to fill the hole that's been created by this murder. Id. at 367.

8. Prosecutor derogated the States burden of proof by asking a juror about his ability to start off at zero/zero. Id. at 417

9. Prosecutor tried to elicit an anticipatory verdict based upon an unfair characterization of the evidence. Id. at 453.

10. Prosecutor incorrectly explained the legal doctrine of accomplice liability, implying that all four defendants had to be treated equally under the law because one was guilty for the acts of another. Id. at 508-09.

Because Petitioner does not argue the prosecutor's statements during voir dire violated a specific constitutional right, this Court will analyze the claims under the fundamental fairness standard of Donnelly. After a careful review of the totality of the circumstances of the trial, the Court does not find the statements of the prosecutor so prejudiced the jury against Petitioner as to deny him the fundamental fairness to which he is entitled under the Constitution. See Brecheen v. Reynolds, 41 F.3d 1343, 1356 (10th Cir.1994). The OCCA did not address each individual instance of alleged prosecutorial misconduct during voir dire. Noting that the Petitioner cited sixty-eight instances of alleged misconduct, which included comments made by the prosecutor during voir dire, the OCCA found:

Of the comments made by the prosecutor, most were not met with a contemporaneous objection. We have reviewed these comments and find that they did not rise to the level of plain error. The trial court sustained objections to some of the comments, but no admonition was given. We find that any error was cured when the trial court sustained the objections. Pennington v. State, 1995 OK CR 79, 85, 913 P.2d 1356, 1369. In other cases, the trial court admonished the jury to keep in mind that the arguments and comments of the attorneys were not evidence and that they must rely only on their own recollection of the evidence. These admonitions cured all but plain error. There was no plain error. See Charm v. State, 1996 OK CR 40, 60, 924 P.2d 754, 770. Brown, 989 P.2d at 933-34. Respondent observes that Petitioner has not shown how the OCCA's decision is contrary to, or an unreasonable application of, federal law as determined by the Supreme Court. The Court agrees.

Petitioner first complains that the prosecutor improperly stated during voir dire that emotions might be appropriate during second stage proceedings. Petitioner provides no authority for his claim this statement deprived him of a fair trial. The Court has reviewed the trial transcript and does not find any support for this contention. Further, the jury was instructed that they “should not let sympathy, sentiment or prejudice enter into [their] deliberations, but should discharge [their] duties as jurors impartially, conscientiously, and faithfully under [their] oaths.” O.R. Vol. III at 473. The jury is presumed to follow its instructions. Weeks v. Angelone, 528 U.S. 225, 234, 120 S.Ct. 727, 145 L.Ed.2d 727 (2000) (citing Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987)).

Petitioner next challenges the prosecutor's remarks to a potential juror that “you let your guard down” when you know a person. These remarks, which Petitioner refers to as presenting a “Trojan Horse” theory, did not result in an unfair trial. Evidence was admitted during the trial that the victim was a co-worker of defendant Wilson, and he knew all the defendants. Petitioner has not expanded on his assertion that this remark contributed to an unfair trial, nor has he provided any authority to support his claim of a due process violation as a result of the prosecutor's remarks.

The Petitioner next complains that the prosecutor improperly characterized the presumption of innocence when he said it is “to protect the innocent, but not to prevent the guilty from being convicted.” This remark was not sufficiently significant to have affected the jury's verdict and Petitioner provides no legal authority or argument to support his contention that it violated his due process rights.

Petitioner asserts that his constitutional rights were violated when the prosecutor asked a potential juror if he thought there were some types of first degree murder for which rehabilitation might be an issue. Again, Petitioner provides no authority for his contention that the general remarks about rehabilitation resulted in a fundamentally unfair trial. After careful review of the arguments and the record this Court finds nothing to support Petitioner's assertion that these comments resulted in a fundamentally unfair trial.

Petitioner next complains that the prosecutor tried to elicit sympathy for the victim by asking if a person's life who was taken was important. He also asserts that the prosecutor's reference to bringing back equilibrium to the victim's family was an attempt to improperly elicit sympathy for the victim's wife and two children. As noted above, the jurors were instructed not to let sympathy enter into their deliberations. Petitioner has failed to demonstrate how these voir dire comments resulted in a fundamentally unfair trial.

Petitioner next argues that the prosecutor “improperly skewed” the State's burden of proof when he asked during jury voir dire whether a potential juror could “start off at zero/zero.” See Dkt. # 17 at 11 and Tr. Tran. Feb. 7, 1997 at 418. The Respondent argues that the prosecutor was not referring to the burden of proof, but was asking whether the juror could consider the death penalty. Although it is not crystal clear, based upon the prosecutor's questions before and after the “zero/zero” comment, it appears to this Court that the “zero/zero” question pertained to the juror's ability to consider and impose the death penalty.

QUESTION: Okay. You stated that you are not opposed or not in favor. Can you explain that to me? ANSWER: Well, it would have to-I would have to be convinced pretty thoroughly before I wanted the death penalty. QUESTION: Okay. When you say “pretty thoroughly,” explain that to me. ANSWER: Well, that in my mind it was clear that he really did it. QUESTION: Okay. Well, Mr. LaFortune talked a little bit about the basketball game, 51 to 49. Do you remember that? ANSWER: Uh-huh. QUESTION: Do you understand the State wouldn't want you to give a 20-point lead before we even started the game, would you? ANSWER: That's right. QUESTION: Okay. Do you think you can start off at zero/zero? ANSWER: Yes. QUESTION: That may be hard to do. ANSWER: Yes, it may be, but I think I can. QUESTION: Okay. And you're telling me that if you find the law and the evidence warrants you to consider the death penalty, you would consider it? ANSWER: I would consider it. QUESTION: And you're telling me that you could impose it? ANSWER: I believe I could.

A review of the entire proceedings convinces this Court that the merits of this issue were correctly resolved by the OCCA. The “zero/zero” comment, even if improper, was not significant enough to influence the jury's decision and did not render Petitioner's trial fundamentally unfair. Donnelly, 416 U.S. at 643, 94 S.Ct. 1868 (1974); see also Boyd v. Ward, 179 F.3d 904, 920 (1999).

Petitioner also alleges that his due process rights were violated when the prosecutor asked a prospective juror, “If the evidence shows you, both in the first stage and second stage that when the defendant had a man's life in his hands, that he didn't hesitate to take it, would that influence your decision in the second stage?” (Dkt. # 12 at 70). He claims the prosecutor was attempting to elicit an anticipatory verdict based upon an unfair characterization of the record. A review of the voir dire transcript reveals that Petitioner's attorney objected to this question, the trial judge sustained the objection and ordered the prosecutor to reword the question. Considered in the entire context of the trial, this question did not violate Petitioner's constitutional due process rights.

Petitioner's final objection to the prosecutor's voir dire comments arises from the following: PROSECUTOR: All right. We had spoke [sic] yesterday quite a bit about accomplice liability and acting in concert. If the Judge instructs you that when four persons are acting in concert that they're all equally guilty under the law-PETITIONER'S ATTORNEY: Judge, sorry, Mr. LaFortune. I'm going to object to that. That's not an accurate statement of law, Judge.PROSECUTOR: Judge, I was trying to approach it as we discussed it yesterday. COURT: Let him finish, Mr. Smallwood. I'm not sure, I thought he was headed in the right direction. I could be mistaken. I'll overrule it, Mr. LaFortune. Stay within the guidelines that we talked about. PROSECUTOR: Try to. Thank you, Judge. If the Judge instructs you that four persons acting in concert are equally guilty for the acts of the other, can you follow that law? ANSWER: Yes. PETITIONER'S ATTORNEY: Pardon me- COURT: I'll sustain the objection. PETITIONER'S ATTORNEY: Thank you, sir. I would ask the jury be admonished to disregard that comment. It's not an accurate statement of the law. COURT: Ladies and gentlemen, when it comes time for you to know what the law is, when the jury instructions are given to you, this court will give you those jury instructions and that will be the law that you are to follow. Okay? Thank you very much.

The Respondent contends that any error in the prosecutor's comments was cured by the Court's admonishment to the jury. Petitioner has the burden of establishing that the prosecutor's comments were so prejudicial that he was deprived of the fundamental fairness essential to the concept of due process. Nichols v. Sullivan, 867 F.2d 1250, 1253 (10th Cir.1989) citing Donnelly, 416 U.S. at 642, 94 S.Ct. 1868. Petitioner has failed to do so. The trial judge admonished the jury to disregard the prosecutor's statement and advised them that is was not an accurate statement of the law. Petitioner has not shown that the OCCA's determination as to the effectiveness of the jury admonishment was unreasonable. This Court agrees with the OCCA's conclusion that the trial court's admonition was sufficient to cure whatever prejudicial impact the prosecutor's remarks may have had. See Singer v. U.S., 380 U.S. 24, 38, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965). Further, the jury was adequately instructed regarding accomplice culpability. (O.R. Vol. III at 463-64).

B. Opening Statement

Two of Petitioner's alleged instances of prosecutorial misconduct occurred during the prosecutor's first stage opening statement. First, the prosecutor stated that the victim had hopes and dreams. Second, the prosecutor again used his Trojan Horse metaphor. Petitioner characterizes both comments as attempts to solicit sympathy for the victim. Even if the statements were error and attempts to invoke sympathy, they simply do not rise to the level required to constitute a violation of Petitioner's due process rights. The OCCA's denial of relief was not unreasonable.

C. First Stage

Petitioner next argues that the introduction of gruesome photographs during the first stage violated his rights to a fair trial. The OCCA explained its rejection of this argument as follows:

Brown claims that during the first stage the prosecutor presented evidence which was gruesome. 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 value 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. We find that they were properly introduced, thus there can be no prosecutorial misconduct for presenting the evidence. Brown, 989 P.2d at 934. Federal habeas review is not available to correct state law evidentiary errors, but is limited to violations of constitutional rights. Thornburg v. Mullin, 422 F.3d 1113, 1128-29 (10th Cir.2005) ( citing Smallwood v. Gibson, 191 F.3d 1257, 1275 (10th Cir.1999)). In Thornburg, the petitioner also contended that the introduction of gruesome photographs deprived him of a fundamentally fair trial and due process of law. Reviewing the Thornburg record under the constraints of the AEDPA, the Tenth Circuit found that the State bore the burden of convincing the jury that its witnesses and experts provided an accurate account of events. Noting that the photographs, although gruesome, corroborated the accounts of the State's witnesses, the Circuit Court determined that the OCCA had not acted contrary to, or unreasonably applied, federal law in concluding that admission of the photographs was proper. Thornburg, 422 F.3d at 1129. As in Thornburg, the scenes depicted in the photographs identified as State's exhibits 19, 20 and 113, corroborate the testimony of other witnesses who described the scene, and manner and cause of death of Mr. Yost. The OCCA's decision that the photos were properly admitted into evidence and did not constitute the basis for prosecutorial misconduct was not contrary to, or an unreasonable application of, federal law.

Petitioner also contends that the prosecutor intentionally misstated facts during his first stage examination of the police officer who had interviewed Petitioner after his arrest. The prosecutor asked, “So he told you that two weeks prior they had planned to kill this individual?” (February 12, 1997, Tr. Trans. at 137). The trial judge sustained defense counsel's objection to the question and the following occurred: PROSECUTOR: Did you ask him whether or not they had planned prior to doing this? WITNESS: Yes, I did. PROSECUTOR: And what did he tell you? WITNESS: He told me that Billy Alverson and Michael Wilson had planned the robbery two weeks before. Id. The OCCA determined that any error was cured when the trial court sustained the objection. Brown, 989 P.2d at 933-34. This Court does not find that the prosecutor's initial question, even if improper, was fundamentally unfair. The OCCA's resolution was not unreasonable and Petitioner is not entitled to relief on this claim.

D. Closing Argument-First Stage

Petitioner asserts that his constitutional rights were violated by certain remarks made by the prosecutor in the first stage closing arguments. Specifically, Petitioner asserts that the prosecutor was again seeking sympathy for the victim and asking the jury to “do justice.” These undeveloped assertions by Petitioner do not support his request for habeas relief on this issue.

E. Second Stage

Petitioner claims three instances of prosecutorial misconduct during the second stage proceedings of his trial. First, Petitioner alleges the jury was numbed by the prosecutor's presentation of more gruesome photographs. The OCCA found that all photographs were “relevant to show the events leading to death which were relevant to prove the aggravating circumstance” except one photograph (State's trial exhibit # 115) showing the interior of Yost's skull. Finding that the exhibit # 155 photo had little relevance to second stage issues and its probative value was substantially outweighed by its prejudicial effect, the OCCA held the admission of the photograph to be error. Further analyzing the impact of the photograph by comparing it to other properly admitted, but gruesome photographs, the OCCA determined the error was harmless. Without providing legal support for his conclusion, Petitioner challenges the OCCA's decision and states simply, “Under any constitutional standard, the introduction of such evidence unfairly prejudiced the jury to sentence Brown to death.” (Dkt. # 17 at 13). This Court agrees with the OCCA and fails to see the relevance of the photograph for second stage purposes. It is a post-autopsy photograph of the interior of the victim's skull. However, the Court also agrees that it is no more shocking or gruesome than the multiple photographs which were properly admitted showing the crime scene and the damage done to the victim's body by the murder weapon, a baseball bat. Accordingly, upon review of the totality of the circumstances surrounding the admission of the photograph and the substantial amount of properly admitted evidence supporting the aggravating circumstances, this Court does not find that the admission of the photograph in question denied Petitioner the fundamental fairness to which he is entitled under the Constitution. Brecheen, 41 F.3d at 1356.

Petitioner next complains that the prosecutor presented cumulative evidence in the form of diagrams of Yost's injuries and the video of the crime scene. The OCCA's rationale for rejecting this argument on direct appeal was:

Brown claims that the prosecutor committed misconduct by offering evidence which was cumulative. Brown claims that the introduction of diagrams of Yost's injuries and the video of the crime scene was cumulative to the photographs already admitted. The diagrams of the injuries were relevant to assist the jury in understanding the medical examiner's testimony. The crime scene video gives the jury a walk through perspective of the crime scene. This information was relevant to prove the aggravating circumstances alleged by the State; that the murder was especially heinous, atrocious or cruel and that Brown 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. Therefore, the prosecutor did not commit misconduct in offering this evidence. Brown, 989 P.2d at 934-35. Petitioner has not demonstrated, or even attempted to explain, how the OCCA's determination was contrary to or an unreasonable application of federal law as established by the Supreme Court. Habeas relief shall be denied on this issue.

Finally, Petitioner challenges the prosecutor's comments during second stage proceedings when he elicited facts alleging that Brown was part of a gang. After objection to the question asked of one witness referring to Petitioner's involvement “in a gang beating of a pregnant woman” (February 20, 1997, Tr. Trans. at 28), the trial judge admonished the jury to “remember the evidence as it was presented to them, not as any of the attorneys say that it is.” Id. Petitioner provides no legal authorities or argument to support any claim that this was prosecutorial misconduct so prejudicial as to deprive him of a constitutionally fair trial. Habeas relief is not available on this issue.

F. Closing Argument-Second Stage

Petitioner lists several instances of alleged improper comments by the prosecutor during second stage closing argument. First, he asserts that the prosecutor “asked the jury to speculate on what the victim thought when he saw the baseball bat.” (Dkt.# 12). The transcript reveals that the trial judge sustained defense counsel's objections to the comments and admonished the jury. (February 20, 1997, Tr. Trans. at 68-9). The OCCA did not specifically address this alleged error but ruled that the trial court's admonitions to the jury cured all but plain error. Brown, 989 P.2d at 933-34. The state appellate court found no plain error in any of Petitioner's alleged instances of prosecutorial misconduct. Id. at 934. This Court does not find that the comments made by the prosecutor rendered Petitioner's trial fundamentally unfair.

Petitioner also complains that the prosecutor compared the defendants to animals stalking their prey. The trial judge overruled defense counsel's objection and reminded the jury to “remember the evidence as it was presented to you when the witnesses in this case testified.” (February 20, 1997, Tr. Trans. at 74.) The OCCA did not find error. Petitioner does not support his claim with argument or authority. Habeas relief shall be denied on this issue.

Petitioner next asserts that his constitutional rights to a fair trial were violated because the prosecutor played the “race card.” At issue is the following; PROSECUTOR: State's Exhibit Number 52 FN8 also tells you something, if you listen to it. When Don Bell asked this man, who did you kill, you know what he says? “Just a white dude.” FN8. State's exhibit # 52 is an audiotape of Brown's statement to police. Id. at 75. Defense counsel immediately objected and asked to approach the bench, whereupon he asked for a mistrial alleging the prosecutor deliberately attempted to apply racial prejudice to the jury. The trial judge overruled the objection and once again admonished the jury to make their decision on the evidence. Id. at 75-6. Without discussion about this particular incident, the OCCA found no plain error in all instances where an objection was raised and the trial judge admonished the jury “to keep in mind that the arguments and comments of the attorneys were not evidence and that they must rely on their own recollection of the evidence.” Brown, 989 P.2d at 934. Respondent observes that the prosecutor's comment was based upon the evidence presented, and notes that the words “Just a white dude” were Mr. Brown's own words during his post-arrest interview with the police. (Dkt. # 14 at 51). Petitioner replies that the prosecutor intended to inflame the all white jury with his reference, and that Brown's statement was taken out of context because he was simply giving the police officer questioning him a physical description of the victim. Relying on Turner v. Murray, 476 U.S. 28, 35, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986) for the proposition that the prosecutor's improper comment “tapped into feelings of racial prejudice” (Dkt. # 17 at 15), Petitioner argues that the comment resulted in an unfairly imposed death sentence.

At issue in the Turner case was whether the trial judge's refusal to ask prospective jurors about their racial attitudes deprived Turner of his right to a fair trial.FN9 The Supreme Court noted that, “[I]n addition to petitioner's being accused of a crime against a white victim, the crime charged was a capital offense.” Turner, 476 U.S. at 34, 106 S.Ct. 1683. Finding “a unique opportunity for racial prejudice to operate but remain undetected” the Court held that the trial judge failed to adequately protect petitioner's constitutional right to an impartial jury when he refused to question prospective jurors on racial prejudice. Id. at 35, 106 S.Ct. 1683. Petitioner in the instant case does not claim that he was denied the right to question potential jurors about their possible racial prejudice, but relies on the dicta in Turner that racial prejudice may operate in the jury's mind undetected. To present a federal constitutional question, however, Petitioner must show that the prosecutor's statement rendered the entire sentencing proceeding fundamentally unfair. The statement must be considered in the context of the entire trial. The statement made by the prosecutor was based upon the evidence presented at trial. Brown himself is the one who referred to the victim as a “white dude.” Viewing the record as a whole, this Court does not find that the prosecutor's statement rises to the level of a constitutional deprivation of due process. FN9. As in the case at hand, defendant Turner was black and his victim was white.

Petitioner's remaining undeveloped assertions of prosecutorial misconduct during second stage closing arguments are that the prosecutor: (1) directed the jury to focus on the victim's feelings; (2) urged the jury to impose the death penalty based upon a non-statutory aggravating circumstance; (3) improperly commented on Petitioner's right to remain silent by stating that the members of Brown's family had expressed remorse but Brown had not; (4) improperly stressed the deterrent value of imposing the death penalty in Brown's case; and (5) compared Brown's life in prison to the fate of the victim. See Dkt. # 12 at 74-5. Petitioner provides no authority or argument to sustain his burden under the AEDPA to show that the OCCA's denial of relief on these issues resulted in an unreasonable application of federal law as determined by the Supreme Court. Habeas relief is denied on this issue.

VI. Heinous, Atrocious or Cruel (HAC) Aggravator

Petitioner contends in his sixth claim for habeas corpus relief that the State introduced insufficient evidence to support the finding that the murder of Mr. Yost was especially heinous, atrocious, or cruel in violation of Petitioner's rights under the Eighth and Fourteenth Amendments. He also asserts that the evidence was insufficient to support the finding that Petitioner substantially participated in the murder under the requirements of Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982) and Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987). Finally, he maintains that the HAC aggravator, as applied in the State of Oklahoma, is unconstitutional because it does not adequately narrow the class of murderers eligible for the death penalty.

A. Sufficiency of Evidence for HAC Aggravator

Petitioner's first challenge to the HAC aggravator is an evidentiary one. Specifically, Petitioner asserts that the prosecution failed to present evidence of conscious physical suffering by the victim or extreme mental cruelty as required by Oklahoma law for application of the HAC aggravator. Respondent contends that the evidence supported a finding that Mr. Yost suffered mental torture and endured conscious physical suffering sufficient to satisfy the HAC requirements.

At trial, the jury found the HAC aggravator for the murder of Mr. Yost. See O.R. Vol. III at 432. The OCCA reviewed the evidence on direct appeal and found that the HAC aggravator was supported by the evidence. Denying relief on this issue, the OCCA found ample evidence of both conscious physical suffering and extreme mental torture suffered by Yost:

All evidence introduced during first stage was incorporated during second stage. Brown stated, in the confession, that Yost didn't say anything once he was hit on the back of the head with the baseball bat, but he was hollering before that. After Yost fell to the ground, Brown said that Yost was breathing real hard and [h]is side was moving up and down. This could be considered evidence of conscious physical suffering in support of the especially heinous, atrocious or cruel aggravating circumstance. However, this was not the only evidence introduced to support this aggravating circumstance.

The medical examiner testified that the first blow by the baseball bat could have rendered him 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 Alverson and Harjo retrieved the bat. Obviously he was being restrained at that time by Brown and Wilson. 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 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. Brown, 989 P.2d at 930-31. Additionally, in its mandatory sentence review pursuant to Okla. Stat. tit. 21, § 701.13(c), the OCCA upheld Brown's death sentence, specifically noting that the aggravating circumstances were supported by sufficient evidence. Id. at 935. Petitioner argues that the OCCA's conclusion was based upon an unreasonable determination of the facts, and he is entitled to relief under 28 U.S.C. § 2254(d)(2).

The appropriate standard of review is the rational factfinder standard established in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Lewis v. Jeffers, 497 U.S. 764, 781, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990). The relevant habeas question under the Jackson standard is to ask “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the [aggravating circumstance] beyond a reasonable doubt.” Jackson, 443 U.S. at 319, 99 S.Ct. 2781; Lewis, 497 U.S. at 783, 110 S.Ct. 3092 (considerations also apply to federal habeas review of state court's finding of aggravating circumstances). This standard “gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319, 99 S.Ct. 2781. The Tenth Circuit has emphasized that, under Jackson, review is “sharply limited” and a court “faced with a record of historical facts that supports conflicting inferences must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.” Messer v. Roberts, 74 F.3d 1009, 1013 (10th Cir.1996)(quoting Wright v. West, 505 U.S. 277, 296-97, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992)). This Court's review is limited to deciding whether the OCCA's decision that there was sufficient evidence to support a jury's finding of the HAC aggravator was contrary to or an unreasonable application of Jackson. 28 U.S.C. § 2254(d)(1); Spears v. Mullin, 343 F.3d 1215, 1238 (10th Cir.2003).

In applying the Jackson standard, the Court looks to Oklahoma law to determine the substantive elements of the aggravating circumstance. Under Oklahoma law, the HAC aggravator is properly found when the murder was preceded by torture or serious physical abuse. Medlock v. Ward, 200 F.3d 1314, 1321 (10th Cir.2000). The instructions given to the jury at Petitioner's trial conformed to Oklahoma law, advising the jury that the phrase “especially heinous, atrocious, or cruel” is directed to those crimes where the death of the victim was preceded by torture of the victim or serious physical abuse. See O.R. Vol. V at 751.

The OCCA has determined that the torture element requires proof of either great physical anguish or extreme mental cruelty. Berget v. State, 824 P.2d 364, 373 (Okla.Crim.App.1991). Torture creating extreme mental distress must be the result of intentional acts by the defendant. Id. Physical abuse requires evidence of conscious, physical suffering. Romano v. Gibson, 239 F.3d 1156, 1176 (10th Cir.2001); see also Powell v. State, 906 P.2d 765, 779-80 (Okla.Crim.App.1995) (recognizing that it is critical for the State to prove the victim's conscious physical suffering before death); Spears v. State, 900 P.2d 431, 443 (Okla.Crim.App.1995).

To prove a murder was especially heinous, atrocious or cruel, the State must introduce competent evidence indicating the victim's death was preceded by torture or serious physical abuse, which may include the infliction of either great physical anguish or extreme mental cruelty. Perry v. State, 893 P.2d 521, 533-34 (Okl.Cr.1995); Booker v. State, 851 P.2d 544, 548 (Okl.Cr.1993); Battenfield v. State, 816 P.2d 555, 565 (Okl.Cr.1991), cert. denied, 503 U.S. 943, 112 S.Ct. 1491, 117 L.Ed.2d 632 (1992). To support a finding of serious physical abuse, the State must show the victim endured conscious physical suffering prior to death. Stafford v. State, 832 P.2d 20, 23 (Okl.Cr.1992).

As we stated in Perry, it is critical the State prove the victim consciously suffered prior to death. Perry, 893 P.2d at 534 Prosecutors have proved this aggravator by introducing evidence the victim suffered numerous defensive wounds indicating that the victim was conscious and attempted to fight off her attacker; statements from the defendant indicating the victim consciously suffered serious physical abuse or extreme mental cruelty prior to death; witness testimony that the victim was alive and conscious at the time the physical abuse was inflicted; or medical evidence that the victim was conscious during the infliction of serious physical injury. Powell v. State, 906 P.2d 765, 779-80 (Okla.Crim.App.1995).

Additionally, the OCCA has stated that there are no “specific, uniform criteria, applicable to all murder cases, which would make the application of the ‘heinous, atrocious or cruel aggravator’ a mechanical procedure.” Robinson v. State, 900 P.2d 389, 401 (Okla.Crim.App.1995). “Rather, the examination of the facts of each and every case is necessary in determining whether the aggravator was proved.” Id. While evaluating the particular evidence introduced at Petitioner's trial, the Court must accept the jury's resolution of the evidence as long as it is within the bounds of reason. Grubbs v. Hannigan, 982 F.2d 1483, 1487 (10th Cir.1993).

Petitioner argues that there was no evidence to support either limiting factor (torture or serious physical abuse) required in the HAC aggravator. Respondent asserts that the evidence reveals that the victim suffered both extreme mental anguish and serious physical abuse.

The evidence in the instant case, when viewed in the light most favorable to the State, supports a finding that the death of Mr. Yost was preceded by conscious suffering and physical abuse. The medical examiner testified that Mr. Yost died of blunt trauma to the head. (Tr. Trans. February 13, 1997 at 48). The videotape of the incident reveals that a struggle took place between the victim and his attackers. (State's Exhibit # 1). The medical examiner testified that wounds on the victim's hands and fingers were consistent with defensive wounds (Tr. Trans. February 13, 1997 at 37), and wounds on one wrist were consistent with evidence of a struggle while the victim was handcuffed. Id. at 30. Defensive wounds on the victim's hands, fingers and wrist plainly demonstrate that he did not lose consciousness swiftly but was aware of that was happening to him. Additionally, a hinge from the handcuffs was removed from the victim's skull indicating he had placed his hands between the bat and his head in a defensive posture. Further, Mr. Yost was bound prior to his death, evidencing he was conscious during part of the attack. See Romano v. Gibson, 239 F.3d 1156, 1177 (10th Cir.2001) (bound arms and legs were evidence victim was conscious during part of the attack as there would be no need to bind a dead person). In light of the foregoing, this Court concludes there was sufficient evidence of conscious suffering to fall within Oklahoma's narrowed scope and preserve the application of the heinous, atrocious or cruel aggravating circumstance to this case. See Medlock v. Ward, 200 F.3d 1314, 1322 (10th Cir.2000). The finding by the jury of the HAC aggravator is rationally supported by the evidence. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Accordingly, the OCCA's decision upholding the jury's finding of the HAC aggravator was not unreasonable. Petitioner is not entitled to habeas corpus relief on this issue.

B. Sufficiency of evidence of Petitioner's participation in murder

Petitioner next alleges the sentence of death was improper because the State failed to prove that he himself killed Yost, attempted to kill Yost, or intended the death of Yost. To support his proposition Petitioner relies on the holdings of the United States Supreme Court in Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982) and Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987). The OCCA denied relief on this issue, stating:

The evidence was clear that Brown substantially participated in the killing. Brown was involved in the initial subduing of Yost. 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 and he remained in the back room until the beating ceased. He had to know that a beating with a baseball bat would cause serious conscious physical suffering and death. Therefore, we find that Brown “was a major participant in the felony committed, who displayed reckless indifference to human life,” therefore, he was “sufficiently culpable to receive the death penalty.” Allen v. State, 1994 OK CR 30, ¶ 15, 874 P.2d 60, 64 (citing Tison, 481 U.S. at 158, 107 S.Ct. at 1688). Brown, 989 P.2d at 931. Because Tenth Circuit precedent is unclear whether a sufficiency of the evidence claim presents a question of law reviewable under § 2254(d)(1) or a question of fact reviewable under § 2254(d)(2), this Court will consider whether the OCCA's determination was contrary to clearly established federal law or based upon an unreasonable determination of the facts. See e.g. Boltz v. Mullin, 415 F.3d 1215, 1230 (10th Cir.2005); Turrentine v. Mullin, 390 F.3d 1181, 1197 (10th Cir.2004).

In Enmund, the defendant was convicted of felony-murder (the unlawful killing occurring during the perpetration of or in the attempted perpetration of robbery). The sole issue decided by the Court was whether death is a valid penalty under the Eighth and Fourteenth Amendments for one who neither took life, attempted to take life, nor intended to take life. Id. at 787, 102 S.Ct. 3368. Enmund was the driver of the getaway car for two others who killed an elderly man and his wife. The United States Supreme Court found that the imposition of the death penalty where “the record supported no more than the inference that Enmund was the person in the car by the side of the road at the time of the killings, waiting to help the robbers escape” was inconsistent with the Eighth and Fourteenth Amendments. Id. Unlike the facts in Enmund, the evidence in Petitioner's trial indicated he helped subdue the victim and helped implement the murder by acting as a lookout while staying in the back room with the victim. Therefore, this Court finds the facts of this case evidencing Petitioner's participation in the murder are clearly distinguishable from Enmund.

Similarly, in Tison, the defendants were convicted of felony-murder. Again, there was no evidence the Tison brothers took any act intended to kill. The issue, therefore, became whether the Eighth Amendment prohibited a death sentence where the defendants' participation, combined with a reckless indifference to human life, was sufficient to satisfy the culpability requirements of Enmund. Unlike Enmund, the defendants' personal involvement, in Tison, was, however, described by the Court as substantial. The Court held that: [T]he reckless disregard for human life implicit in knowingly engaging in criminal activities known to carry a grave risk of death represents a highly culpable mental state, a mental state that may be taken into account in making a capital sentencing judgment when that conduct causes its natural, though also not inevitable, lethal result. Tison v. Arizona, 481 U.S. 137, 157-158, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987). As in Tison, Petitioner was, at the least, actively involved in the underlying felony of robbery and was physically present during the entire sequence of criminal activity culminating in the murder of Yost and the subsequent flight by Petitioner and his co-defendants. It is clear to this Court that the Enmund/ Tison culpability requirement was satisfied.

After a careful review of the records herein, this Court finds the adjudication of this claim by the Oklahoma Court of Criminal Appeals was not contrary to, nor did it involve an unreasonable application of, clearly established Federal law, as determined by the United States Supreme Court. 28 U.S.C. § 2254(d)(1). Further, this Court concludes the evidence relied upon by the OCCA was sufficient to support application of the HAC aggravator to Petitioner. Accordingly, the adjudication of this claim did not involve an unreasonable determination of the facts in light of the evidence presented at trial. 28 U.S.C. § 2254(d)(2). Petitioner is not entitled to relief on this claim.

C. Constitutionality of HAC Aggravator

Petitioner next challenges the constitutionality of the heinous, atrocious or cruel aggravator found in Okla. Stat. tit. 21, § 701.12(4) as failing to legitimately narrow the class of defendants eligible for the death penalty. Petitioner argues that the HAC aggravator, as applied in Oklahoma, enables all murderers who strike more than one blow to a victim to be automatically eligible for capital punishment. Respondent counters that the heinous, atrocious or cruel definition has been adequately narrowed to comply with constitutional standards, and Petitioner's claim is without merit.

On direct appeal Petitioner questioned the constitutionality of the HAC aggravating circumstance applied in his case. The OCCA denied relief, stating:

In proposition fourteen Brown 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, found to be consistent with the mandates of the Eighth and Fourteenth Amendments. Toles v. State, 1997 OK CR 45, 60, 947 P.2d 180, 192. We decline the invitation to deviate from our previous holdings. Brown, 989 P.2d at 931 (Okla.Crim.App.1998).

Because the constitutionality of aggravating factors is a question of law, Petitioner must demonstrate that the OCCA's decision was contrary to, or involved an unreasonable application of, federal law as established by the United States Supreme Court. See United States v. McCullah, 76 F.3d 1087, 1107 (10th Cir.1996) and 28 U.S.C. § 2254(d)(1). Petitioner has failed to meet this burden. The Tenth Circuit summarized its position on the constitutionality of Oklahoma's heinous, atrocious or cruel aggravator in Workman v. Mullin, 342 F.3d 1100, 1115-16 (10th Cir.2003), stating:

We have repeatedly held that Oklahoma's current definition of “especially heinous, atrocious or cruel” aggravating circumstance is not unconstitutionally vague.

Workman acknowledges that the Tenth Circuit has routinely upheld the constitutionality of this aggravating circumstance, see, e.g., Romano v. Gibson, 239 F.3d 1156, 1176 (10th Cir.2001); Thomas v. Gibson, 218 F.3d 1213, 1226 (10th Cir.2000); Medlock v. Ward, 200 F.3d 1314, 1319 (10th Cir.2000); Moore v. Gibson, 195 F.3d 1152, 1175-76 (10th Cir.1999); Smallwood v. Gibson, 191 F.3d 1257, 1274 (10th Cir.1999); Hooks v. Ward, 184 F.3d 1206, 1239-40 (10th Cir.1999); Foster v. Ward, 182 F.3d 1177, 1194 (10th Cir.1999); Duvall v. Reynolds, 139 F.3d 768, 793 (10th Cir.1998). Nevertheless, Workman attempts to find room for his argument that the aggravating circumstance is unconstitutionally vague in snippets of language from our cases such as a line from Thomas expressing doubt about blanket application of Oklahoma's early formulation and Judge Lucero's concurrence in Medlock. See generally Thomas, 218 F.3d at 1229 n. 17 (“There exists, at a minimum, a serious constitutional question as to whether an aggravator which makes eligible for the death penalty all murderers who strike more than one blow adequately narrows the class of murderers eligible for the death penalty.”); Medlock, 200 F.3d at 1324 (“There must be conscious suffering of more than the brief duration necessarily accompanying virtually all murders. Were this not so, the narrowing construction [that Oklahoma has given the aggravating circumstance] would not have the discretion limiting effect required by [the Eighth Amendment].”) (Lucero, J., concurring).

Oklahoma, however, has limited application of the aggravating circumstance to only those crimes where the death of the victim was preceded by torture of the victim or serious physical abuse. Stouffer v. State, 742 P.2d 562, 563 (Okla.Crim.App.1987). This limitation was included in the jury instructions in Workman's case. ROA Criminal Appeal, Original Record at 98, Instruction No. 3 penalty phase (“The phrase ‘especially heinous, atrocious, or cruel’ is directed to those crimes where the death of the victim was preceded by torture of the victim or serious physical abuse.”). We have specifically found Oklahoma's new formulation to be constitutional since this limiting language was enacted. Hatch v. State, 58 F.3d 1447, 1468-69 (10th Cir.1995); see also Duvall, 139 F.3d at 793. Workman, 342 F.3d at 1115-16. Tenth Circuit precedent forecloses Petitioner's argument that Oklahoma's heinous, atrocious or cruel aggravator is unconstitutionally vague. Habeas relief is denied on this issue.

VII. Continuing Threat Aggravator

Petitioner asserts in his seventh claim that the continuing threat aggravating circumstance is unconstitutional, and application of the aggravator in his case violated the Eighth and Fourteenth Amendments.

A. Constitutionality of Continuing Threat Aggravator

As acknowledged by Petitioner, Tenth Circuit precedent forecloses Petitioner's facial challenge to Oklahoma's continuing threat aggravator as unconstitutional. Sallahdin v. Gibson, 275 F.3d 1211, 1232 (10th Cir.2002); see also Medlock v. Ward, 200 F.3d 1314, 1319 (10th Cir.2000). This claim is without merit.

B. Sufficiency of Evidence for Continuing Threat Aggravator

Petitioner also asserts there was insufficient evidence to support the jury's finding that there was a probability he would commit future criminal acts of violence as required for the continuing threat aggravator under Oklahoma law. See Okla. Stat. tit. 21, § 701.12(7); Medlock v. State, 887 P.2d 1333, 1346 n. 30 (Okla.Crim.App.1994). Respondent incorrectly contends that the issue was not raised on direct appeal, and is unexhausted but should be denied on its merits. (Dkt. # 14 at 63). Petitioner raised this issue on direct appeal ( see Brief of Appellant filed May 21, 1998 at 91-93). Citing specific evidence presented by the State during the trial as sufficient, the OCCA denied relief on the merits finding “the evidence was sufficient from which the jury could find the possibility that Brown would commit future acts of violence which would constitute a continuing threat to society.” Brown, 989 P.2d at 932.

Under Oklahoma law the continuing threat aggravator may be proved by prior convictions, unadjudicated crimes, or circumstances of the crime for which defendant is on trial. Rogers v. State, 890 P.2d 959, 976-77 (Okla.Crim.App.1995); Mitchell v. State, 884 P.2d 1186, 1208 (Okla.Crim.App.1994). As support for the aggravating circumstance of “continuing threat to society” the State presented evidence at trial of Petitioner's participation in a beating on September 25, 1983, (February 18, 1997 Tr. Trans. of Second Stage proceedings before Brown jury only, at 60-61), and of three prior instances when he was in illegal possession of a firearm. Id. Petitioner does not argue that the OCCA's determination of the facts supporting their conclusion is unreasonable. Therefore, this Court presumes them to be correct. 28 U.S.C. § 2254(e)(1). He argues that these offenses were unadjudicated and do not provide constitutionally sufficient evidence to support the continuing threat aggravator. The United States Constitution does not, however, preclude a capital sentencer from considering unadjudicated bad acts. Knighton v. Mullin, 293 F.3d 1165, 1172 (10th Cir.2002).

Again, the controlling standard is whether any rational trier of fact could have found the aggravator beyond a reasonable doubt and, under AEDPA, we ask only “whether the OCCA's decision was reasonable.” McCracken v. Gibson, 268 F.3d 970, 981 (10th Cir.2001). After reviewing the evidence in the light most favorable to the State, this Court finds that any rational trier of fact could have found the continuing threat to society aggravating circumstance existed beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S.Ct. 2781. Therefore, the OCCA did not act contrary to Jackson or any other clearly established federal law in upholding the jury's finding of this aggravating circumstance. The state appellate court's determination that there was sufficient evidence to support this aggravating fact was not unreasonable under either 28 U.S.C. § 2254(d)(1) or (2). Habeas relief is denied on this claim.

VIII. Victim Impact Evidence

Petitioner next claims that his rights guaranteed by the Eighth and Fourteenth Amendments were violated by victim impact evidence introduced during the penalty phase of his trial. He first argues that the victim impact statements presented by the victim's wife and mother were unfairly prejudicial. He also claims that victim impact evidence in the Oklahoma sentencing scheme acts as an improper “super aggravator” and is unconstitutional. The OCCA denied these claims of error on direct appeal. Brown, 989 P.2d at 932-33.

A. Statements by Yost's wife and mother

Toward the end of the State's case in the second stage proceedings, the victim's wife, Angela Yost, and his mother, Alma Dorn, each read their prepared victim impact statements into the record. See Tr. Trans., February 18, 1997, at 164-71. Petitioner asserts that the statements were unfairly prejudicial and exceeded the limitations established in Cargle v. State, 909 P.2d 806 (Okla.Crim.App.1995) and Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991).

Mrs. Yost read a short statement in which she described how her life had changed since her husband's murder, how she had enjoyed cooking and ironing for her husband and how much he enjoyed celebrating birthdays and holidays because he had not been able to do so during his childhood. In support of his claim that Mrs. Yost's testimony was “hyper prejudicial,” Petitioner draws the Court's attention to the following proceedings had at the bench following her statement: MR. SMALLWOOD: Judge, we had a member of the Victim Witness Center crying in the courtroom. This is absolutely unacceptable, Judge. If she can't get a hold of herself, she doesn't need to be in here. She's not a party to this. I don't know who it is. THE COURT: Mr. LaFortune, why don't you ask the member of the Victim Witness Center who's crying to excuse herself. MR. SMALLWOOD: I didn't hear it, but I saw it, Judge. THE COURT: Okay. Go ask her to leave. Call your next witness. Tr. Trans., February 18, 1997, at 168-69.

Petitioner also complains that the references in Ms. Dorn's statement to her son's childhood and his future plans to take care of her in her old age were unduly prejudicial. The OCCA found the statements of both Mrs. Yost and Ms. Dorn were relevant to show the impact of the murder on their lives, with the exception of the references to his childhood. Noting that statements “about a victim's childhood have no relevance in victim impact evidence,” the OCCA found such references constituted error but did not rise to the level of plain error. Brown, 989 P.2d at 933.

Petitioner has failed to demonstrate how the OCCA's decision was contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court. Federal habeas corpus review of the admission of victim impact evidence is limited to a determination whether the use of the victim statement made the sentencing hearing “so fundamentally unfair as to deny him due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 645, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974); accord, Payne, 501 U.S. at 825, 111 S.Ct. 2597. In reviewing the victim impact statements made by Angela Yost and Alma Dorn, this Court does not find the remarks so infected the sentencing proceeding as to render it fundamentally unfair. Accordingly, habeas relief is denied on this issue.

B. Constitutionality of victim impact evidence as applied in Oklahoma

Petitioner next asserts that victim impact evidence in Oklahoma is not relevant to Oklahoma's “death penalty scheme” which requires a balancing test of aggravating and mitigating circumstances. (Dkt. # 12 at 104). He claims it operates as a non-statutory “super aggravator” resulting in an unconstitutional skewing of the weighing process between aggravating and mitigating circumstances. Id. This claim was raised on direct appeal. In rejecting Petitioner's arguments, the OCCA stated:

Brown 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.

In this case, the jury was specifically instructed that they could only consider the aggravating circumstances set forth in the instructions. Brown has not convince us that the jury would not have found the aggravating circumstance but for the victim impact evidence. Id. Brown, 989 P.2d at 933.

If a state chooses to allow the admission of victim impact evidence, the Eighth Amendment erects no per se bar. “A State may legitimately conclude that evidence about the victim and about the impact of the murder on the victim's family is relevant to the jury's decision as to whether or not the death penalty should be imposed.” Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). In overruling its own previous split decisions in Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), and South Carolina v. Gathers, 490 U.S. 805, 109 S.Ct. 2207, 104 L.Ed.2d 876 (1989), the Supreme Court observed that, “assessment of the harm caused by the defendant has long been an important factor in determining the appropriate punishment, and victim impact evidence is simply another method of informing the sentencing authority about such harm.” Payne, 501 U.S. at 808, 111 S.Ct. 2597. Noting that in most cases, “victim impact evidence serves entirely legitimate purposes,” the Payne Court concluded that such statements are “simply another form or method of informing the sentencing authority about the specific harm caused by the crime in question, evidence of a general type long considered by the sentencing authorities.” Id. at 825, 111 S.Ct. 2597.

In 1992, Oklahoma enacted legislation permitting victim impact evidence. See Okla. Stat. tit. 21, § 701.10(c) (1992) FN10 and Okla. Stat tit. 22, §§ 984, 984.1 (1992).FN11 Petitioner does not challenge the constitutionality of the Oklahoma statutes or the admission of victim impact statements per se, but asserts that the statements have no place in Oklahoma's balancing scheme and can be considered by the jury “as it sees fit on an arbitrary basis.” (Dkt. # 12 at 107). Petitioner's concern about the jury's possible misuse of victim impact evidence in its deliberations is based upon mere speculation. FN10. Section 701.10 © of Title 21 provides, “In the sentencing proceeding, ... the state may introduce evidence about the victim and about the impact of the murder on the family of the victim.”

FN11. Section 984 of Title 22 in effect at the time of Petitioner's crime and trial defines “victim impact statements” as, “information about the financial, emotional, psychological, and physical effects of a violent crime on each victim and members of their immediate family, and includes information about the victim, circumstances surrounding the crime, the manner in which the crime was perpetrated, and the victim's opinion of a recommended sentence.” Per Section 984.1, copies of the victim impact statement are to be made available to the parties.

Petitioner's jury was fully instructed as to its duties for determining punishment in the second stage proceedings. (O.R. Vol. III at 478-96). In arriving at a determination of punishment the jury was instructed to first determine whether any one or more of the three aggravating circumstances existed beyond a reasonable doubt. (Instruction No. 5, O.R. Vol. III at 484). Jurors were advised they could “consider only those aggravating circumstances set forth in these instructions.” (Instruction No. 9, O.R. Vol. III at 488). Only after unanimously finding that one or more of the aggravating circumstances existed beyond a reasonable doubt could the jury even consider imposing a death sentence. Id. The jury is presumed to follow its instructions. Weeks v. Angelone, 528 U.S. 225, 234, 120 S.Ct. 727, 145 L.Ed.2d 727 (2000) (citing Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987)). Petitioner's assumption that his jury considered the victim impact evidence to be another aggravating circumstance ignores the plain language of the instructions given at trial, which the jury is presumed to follow. Petitioner's jury found the existence of all three aggravating circumstances beyond a reasonable doubt before recommending the death sentence for Petitioner.

Additionally, the Supreme Court has determined that aggravating circumstances give effect to constitutional protections by narrowing the class of death eligible murders, and the introduction of victim impact evidence does not eliminate that effect. Tuilaepa v. California, 512 U.S. 967, 979-80, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994). “[T]he sentencer may be given unbridled discretion in determining whether the death penalty should be imposed after it has found that the defendant is a member of the class made eligible for that penalty.” Id. (internal quotations omitted). “A capital sentencer need not be instructed how to weigh any particular fact in the capital sentencing decision.” Id. at 979, 114 S.Ct. 2630. This Court finds that the use of victim impact evidence in general under Oklahoma law and specifically in Petitioner's trial did not deprive Petitioner of his Eighth Amendment or Fourteenth Amendment rights. The OCCA's decision on this issue in Brown's direct appeal was not an unreasonable application of clearly established federal law as determined by the Supreme Court. Habeas relief is denied on this issue.

IX. Application of Avoid Arrest Aggravator

In Claim IX, Petitioner asserts his constitutional rights were violated because the prosecution submitted insufficient evidence to prove the murder was committed for the purpose of avoiding or preventing a lawful arrest, one of three aggravators found by the jury to exist in this case. Specifically, Petitioner argues that the “avoid arrest” aggravating circumstance was applied in an unconstitutional manner because it was not supported by a predicate crime apart from the murder itself for which Brown sought to avoid arrest or prosecution. Petitioner's jury found him guilty of both murder in the first degree and robbery with a dangerous weapon. (O.R. Vol. III, at 426-27). Unable to determine from the verdict form whether the murder conviction was based upon malice murder or felony murder, the OCCA interpreted the verdict as one of felony murder and ordered that his conviction for robbery with a dangerous weapon be dismissed. Brown, 989 P.2d at 930, 935. Petitioner argues that the dismissal of the felony robbery conviction invalidates the “avoid arrest” aggravator because that aggravator must be supported by an underlying predicate crime which is separate from the crime of murder. Thus, Petitioner asserts the avoid arrest aggravator was applied in an unconstitutional manner in his case.

This issue was not raised on direct appeal, but was raised as “Proposition III” in Petitioner's post conviction proceedings. (Post Conviction Application, filed June 1, 1999, in Case Number PC-98-1251, In the Court of Criminal Appeals for the State of Oklahoma, at pages 23-30). The OCCA found that the issue was waived as it had not been raised on direct appeal and Brown had not shown that the facts or law supporting this claim were unavailable to direct appeal counsel. (Unpublished Opinion Denying Relief filed November 8, 1999, in Case No. PC-98-1251). The state appellate court also rejected Petitioner's argument that the failure of his appellate counsel to raise the issue on direct appeal constituted ineffective assistance of counsel. Id. In these habeas proceedings Respondent asserts that this claim is procedurally barred. For the reasons stated below, this Court finds that Petitioner is procedurally barred from habeas review of this issue.

In addressing the procedural bar question the first consideration for this Court is to determine whether the state appellate court's decision was founded on an independent and adequate state procedural rule. “A state court finding of procedural default is independent if it is separate and distinct from federal law.” Maes v. Thomas, 46 F.3d 979, 985 (10th Cir.). A finding of procedural default is an adequate state ground if it has been applied evenhandedly “in the vast majority of cases.” Id. ( quoting Andrews v. Deland, 943 F.2d 1162, 1190 (10th Cir.1991)). The procedural bar, as applied to Petitioner's claim, was an “adequate” state ground because the OCCA consistently declines to review claims which could have been but were not raised on direct appeal. Okla. Stat. tit. 22, § 1086. The Court also finds that the bar imposed by the OCCA was an “independent” ground because Petitioner's failure to comply with state procedural rules was “the exclusive basis for the state court's holding.” Maes, 46 F.3d at 985. Applying the principles of procedural default to this case, the Court concludes that Petitioner's claim in proposition IX is procedurally barred.

As a result of the procedural bar, this Court may not consider the merits of Petitioner's claim related to the unconstitutional application of the “avoid arrest” aggravator unless Petitioner is able to show “cause and prejudice” for the default, or demonstrate that a fundamental miscarriage of justice would result if his claim is not considered. See Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Demarest v. Price, 130 F.3d 922, 941-42 (10th Cir.1997). The cause standard requires a petitioner to “show that some objective factor external to the defense impeded ... efforts to comply with the state procedural rules.” Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). Examples of such external factors include the discovery of new evidence, a change in the law, and interference by state officials. Id. As for prejudice, a petitioner must show “ ‘actual prejudice’ resulting from the errors of which he complains.” United States v. Frady, 456 U.S. 152, 168, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). A “fundamental miscarriage of justice” exception requires a petitioner to demonstrate that he is “actually innocent” of the crime of which he was convicted. Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995); McCleskey v. Zant, 499 U.S. 467, 494, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991).

Petitioner attempts to demonstrate “cause and prejudice” via two arguments. First, he claims the law supporting his claim was unavailable to direct appeal counsel because “the underpinnings” of his claim rely in part on a case decided by the OCCA after Petitioner's direct appeal. Relying now on the state appellate court's finding in Alverson v. State, 983 P.2d 498 (Okla.Crim.App.1999) that malice murder and felony murder are simply different means of committing the same offense, Petitioner argues that the OCCA's interpretation of state law invalidates the “avoid arrest” aggravator in Petitioner's case. This Court fails to see how the Alverson language invalidates the “avoid arrest” aggravator and notes, in fact, that the Alverson decision specifically declares that, “Our misguided decision to dismiss the underlying felony convictions in those cases [referencing the direct appeal decisions in the cases of Petitioner's co-defendant Harjo and of Corey Duane Hamilton] gave the defendants undue benefit to which they were not entitled.” Id. at 521, n. 109. In Hamilton's trial, as in Petitioner's case, the jury's verdict did not specify whether Hamilton was found guilty of malice-aforethought murder or kidnapping murder or armed-robbery murder. Thus, the OCCA interpreted the verdict as one of felony murder and reversed Hamilton's conviction for Robbery with a Firearm. Hamilton v. State, 937 P.2d 1001, 1009 (Okla.Crim.App.1997). Petitioner has not established cause through his argument of “new law” based upon the Alverson case.

Petitioner next asserts that his appellate attorney rendered ineffective assistance of counsel in failing to raise the defaulted claim related to the “avoid arrest” aggravator on direct appeal, constituting cause for his procedural default. (Dkt. # 17 at 19). Ineffective assistance of appellate counsel may constitute cause for state procedural default where counsel's performance falls below the minimum standard established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Murray v. Carrier, 477 U.S. 478, 488-489, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). However, the assistance provided by appellate counsel must rise to the level of a constitutional violation. As noted by the Tenth Circuit, “A claim of appellate ineffectiveness can be based on counsel's failure to raise a particular issue on appeal, although it is difficult to show deficient performance under those circumstances because counsel ‘need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal.’ ” Cargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir.2003) ( citing Smith v. Robbins, 528 U.S. 259, 285, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000)). Furthermore, before ineffective assistance of appellate counsel can be considered “cause” to excuse the procedural default of a constitutional claim, the ineffective assistance of counsel claim itself must have been fairly presented to the state court as an independent claim. Murray, 477 U.S. at 489, 106 S.Ct. 2639; Edwards v. Carpenter, 529 U.S. 446, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000).

In the instant case, Petitioner raised the issue of ineffective assistance of appellate counsel in his post-conviction proceedings. The OCCA, applying its three-tiered analysis set forth in Walker v. State, 933 P.2d 327 (Okla.Crim.App.1997), overruling by statute recognized in Davis v. State, 123 P.3d 243, 245 (Okla.Crim.App.2005) (citing to Okl. Stat. tit. 22, § 1089(D)(4) (2004)), rejected this claim as part of Petitioner's post-conviction appeal, finding that Petitioner had failed to carry his burden of establishing ineffective assistance by his appellate counsel. Because the OCCA's analysis of the ineffective assistance of appellate counsel claim deviated from the controlling federal standard of Strickland, it is not entitled to deference. Cargle v. Mullin, 317 F.3d 1196, 1205 (10th Cir.2003).

In evaluating Petitioner's claim of ineffective assistance of appellate counsel as raised in the instant action, this Court shall apply the Strickland two-pronged standard used for claims of ineffective assistance of trial counsel. See United States v. Cook, 45 F.3d 388, 392 (10th Cir.1995). The Strickland test requires a showing of both deficient performance by counsel and prejudice to Petitioner as a result of the deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). When a habeas petitioner alleges that his appellate counsel rendered ineffective assistance by failing to raise an issue on direct appeal, the Court first examines the merits of the omitted issue. Hawkins v. Hannigan, 185 F.3d 1146, 1152 (10th Cir.1999). If the omitted issue is meritless, then counsel's failure to raise it does not amount to constitutionally ineffective assistance. Id.; see also Parker v. Champion, 148 F.3d 1219, 1221 (10th Cir.1998) ( citing Cook, 45 F.3d at 392-93). If the issue has merit, the Court then must determine whether appellate counsel's failure to raise the claim on direct appeal was deficient and prejudicial. Hawkins, 185 F.3d at 1152; see also Cook, 45 F.3d at 394.

In this case, after a careful review of the record in light of Petitioner's allegation of ineffective assistance of appellate counsel, this Court finds no basis for granting relief under § 2254(d). Appellate counsel's performance, even if deemed deficient, was not prejudicial to Petitioner under the Strickland standard. To establish the prejudice prong of the test, Petitioner must show that the allegedly deficient performance prejudiced the defense; namely, “that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Petitioner has the burden of demonstrating prejudice. Id. at 696, 104 S.Ct. 2052. Failure to establish either prong of the Strickland standard will result in denial of relief. Id.; Hatch v. Oklahoma, 58 F.3d 1447, 1457 (10th Cir.1995).

Petitioner relies upon a conclusory statement that his appellate counsel was ineffective without supporting facts, authorities or arguments about his appellate counsel's ineffectiveness. Petitioner seems to assume that if his counsel had raised the issue of the alleged unconstitutional application of the “avoid arrest” aggravator on direct appeal that the results of the proceedings would have been different. The record does not support this assumption. Brown's jury found the existence of three aggravators before recommending the death penalty as punishment for Brown's participation in Yost's murder. Even if the OCCA had determined that the “avoid arrest” aggravator was invalid after it dismissed Brown's conviction for robbery with a dangerous weapon, Petitioner has not demonstrated that the OCCA would have reversed the death sentence. The invalidity of one of multiple aggravating circumstances does not automatically render a death sentence unconstitutional. See Brown v. Sanders, 546 U.S. 212, 126 S.Ct. 884, 163 L.Ed.2d 723 (2006). Petitioner has not shown that his appellate counsel's failure to raise the issue of an unconstitutional application of the avoid arrest aggravator would have rendered a different result in the sentencing proceedings. Thus, Petitioner has not shown prejudice caused by his counsel's omission, and his ineffective assistance of appellate counsel claim fails under the Strickland standard. Having failed to establish ineffective assistance of counsel as cause for his procedural default, Petitioner is not entitled to the “cause and prejudice” exception from the procedural bar. Accordingly, this proposition is procedurally barred from consideration by the Court unless the “fundamental miscarriage of justice” exception is applicable.

The “fundamental miscarriage of justice” exception to a procedural bar applies “in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Murray v. Carrier, 477 U.S. at 495-96, 106 S.Ct. 2639 (1986). Petitioner has not set forth a fundamental miscarriage of justice argument to excuse his procedural default. Accordingly, the Court concludes that Petitioner does not fall within the narrow “fundamental miscarriage of justice” exception.

Having failed to demonstrate cause and prejudice or that a fundamental miscarriage of justice will result if this Court does not consider his claim, Petitioner's claim on this proposition is procedurally barred, and habeas corpus relief requested in ground IX shall be denied on that basis.

X. Cumulative Error

Finally, Petitioner argues that the accumulation of all trial errors deprived him of his rights to due process and fundamental fairness, entitling him to relief. The Tenth Circuit Court of Appeals has repeatedly held that cumulative error analysis is applicable only where there are two or more actual errors. Workman v. Mullin, 342 F.3d 1100, 1116 (10th Cir.2003). Cumulative impact of non-errors is not part of the analysis. Le v. Mullin, 311 F.3d 1002, 1023 (10th Cir.2002) (citing U.S. v. Rivera, 900 F.2d 1462, 1471 (10th Cir.1990)). Having rejected each of Petitioner's claims, the Court finds no basis for a cumulative error analysis. Petitioner is not entitled to relief on this ground.

XI. Evidentiary Hearing

In his request for relief (Dkt. # 12 at 124) Petitioner asks for an evidentiary hearing “as to any issues which involve facts not apparent from the existing record” and “to any issues which involve facts disputed by the State.” Id. As the disposition of Petitioner's habeas corpus petition does not require reference to any materials beyond those that are available and currently before the Court, this Court finds that there is no need for an evidentiary hearing in this case. There are no disputed factual questions remaining that could possibly entitle Petitioner to habeas corpus relief. Petitioner has failed to demonstrate the need for an evidentiary hearing under either 28 U.S.C. § 2254(e)(2) or any other governing principle of law. Michael Williams v. Taylor, 529 U.S. 420, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). Accordingly, Petitioner's request for an evidentiary hearing is denied.

CONCLUSION

After a complete review of the transcripts, trial record, appellate record, briefs filed by the Petitioner and Respondent, and the applicable law, the Court finds Petitioner's request for relief in his Petition for Writ of Habeas Corpus by a Person in State Custody Pursuant to 28 U.S.C. § 2254 (Dkt.# 12) to be without merit. Accordingly, habeas relief on all grounds is denied.

ACCORDINGLY IT IS HEREBY ORDERED THAT: 1. Marty Sirmons is substituted for Gary Gibson as the party Respondent and the Court Clerk is directed to note such substitution on the record. 2. Petitioner's request for habeas relief (Dkt.# 12) is denied. IT IS SO ORDERED.

Darwin Demond Brown