By Sean Murphy - McAlesterNews.com

July 10, 2009

McALESTER — Orville Bullard and Paul Morgan were spending the last night of their fall fishing vacation sleeping in a camper along the Glover River in southern Oklahoma when shotgun blasts rang out. Ambushed by three men, Bullard, 60, and Morgan, 54, were shot to death and their bodies set on fire, burned beyond recognition.

On Thursday, Michael P. DeLozier, 32, was put to death for the Sept. 24, 1995, killings. DeLozier was pronounced dead at 6:10 p.m. after receiving a lethal injection inside the death chamber at the Oklahoma State Penitentiary. “They were two middle-aged men that were on an outing to enjoy the beautiful fall days of squirrel hunting and fishing along the Glover River,” Morgan’s wife, Phyllis Setzer, wrote in a letter to the state Pardon and Parole Board earlier this year. “Steve and Lewis were unarmed men, who were murdered for a generator, food, and the few possessions that were kept inside the camper.”

DeLozier declined to give any last words shortly before receiving the lethal injection. In a statement released by his lawyers earlier in the day, DeLozier admitted he killed the two men and apologized to their families. “I cannot wait to finish paying this debt I owe so I can apologize to the souls of Mr. Morgan and Mr. Bullard, and ask them to forgive me for my taking their lives,” DeLozier wrote. “To the families of my victims all I can say is I’m sorry for the pain I’ve caused you. I hope my death will bring you some peace.”

Two of DeLozier’s attorneys, his wife from the Netherlands whom he married while in prison and two female in-laws witnessed the execution. DeLozier, wearing glasses and a full beard, nodded to the women and smiled before he closed his eyes and laid his head back on the gurney. His breath hitched once as the lethal cocktail began to flow. Moments later, the color drained from his face.

Fourteen members of the victims’ families also witnessed the execution from behind one-way glass. Family members declined to comment to reporters after the execution. They released a statement thanking prosecutors for their work. “We have waited nearly 14 years for this day,” the statement read. “We feel that justice has finally been served.”

Earlier Thursday, the state Court of Criminal Appeals denied a request from DeLozier’s attorneys for a stay of execution and a new evidentiary hearing, saying his attorneys didn’t have sufficient evidence to warrant those moves. His attorneys had argued that a medical expert had new evidence that showed years of methamphetamine abuse by DeLozier affected his brain at the time of the killings and that his trial attorney never presented that information to the McCurtain County jury that sentenced him to death.

Meanwhile, the five-member state Pardon and Parole Board had denied clemency for DeLozier in a unanimous ruling on June 29. DeLozier was the third inmate put to death in Oklahoma this year. No other executions are currently scheduled in the state.

His last meal was a T-bone steak, french fries and a large salad. Last meals in Oklahoma are limited to $15 and must be available for purchase in the McAlester area.

DeLozier’s two co-defendants, brothers Glenney Dale Madison and Nathaniel Madison, also were convicted in connection with the two men’s deaths. Nathaniel Madison, 31, pleaded guilty to conspiracy to commit murder, received a 10-year sentence and testified against DeLozier. He was released from prison in 2000, prison records show. Glenney Madison, 32, was convicted of first-degree murder and is serving a life prison sentence.

Delozier v. State, 991 P.2d 22 (Okla.Crim.App. 1998) (Direct Appeal).

Defendant was convicted in the District Court, McCurtain County, Willard Driesel, J., of first degree murder, and was sentenced to death. The Court of Criminal Appeals, Lane, J. held that: (1) accomplice's testimony was sufficiently corroborated; (2) accomplice's out-of-court statements were admissible to rebut charge of recent fabrication; (3) probative value of two color photographs of murder victims' bodies outweighed their prejudicial effect; (4) evidence was sufficient to establish aggravating factors; (5) defendant was not denied effective assistance of counsel; and (6) aggravating factors outweighed mitigating evidence. Affirmed.

LANE, Judge:

¶ 1 Appellant, Michael DeLozier, was charged with two counts of First Degree Malice Murder in violation of 21 O.S.1991, § 701.7, in McCurtain County District Court Case No. CRF-95-258. The State filed Bills of Particulars for both counts alleging four aggravating circumstances for count one and three aggravating circumstances for count two.FN1 A jury trial was held before the Honorable Willard Driesel, District Judge. The jury found DeLozier guilty of both counts of first degree murder and found in both counts that DeLozier knowingly created a great risk of death to more than one person and that there existed the probability that DeLozier would commit criminal acts of violence that would constitute a continuing threat to society. 21 O.S.1991, § 701.12(2) & (7). As to count one, the jury also found that the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution. 21 O.S.1991, § 701.12(5). The jury recommended DeLozier be sentenced to death for both counts. The trial court sentenced accordingly. From this Judgment and Sentence DeLozier has perfected his appeal.

FN1. The State alleged, in count one, that the defendant knowingly created a great risk of death to more than one person, 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. In count two, the State alleged the same aggravating circumstances except for the especially heinous, atrocious, or cruel aggravator.

FACTS

¶ 2 Steven Morgan and Orville Lewis Bullard were camping in a converted step-van on the bank of the Glover River in northern McCurtain County. About 600 yards from their campsite was the “Tate bus,” a bus also converted for camping. DeLozier, Glenney Dale Madison, Nathaniel Brandon Madison, and others were staying at the bus. Sometime on Saturday, September 23, 1995, DeLozier, the Madison brothers and James Oliver happened upon the Morgan campsite. They engaged in conversation for a few minutes.

¶ 3 While there DeLozier spotted a generator he thought would bring about $700 if stolen. Once back at the Tate bus, DeLozier mentioned stealing the generator. Several of the group, including DeLozier, talked about killing Morgan and Bullard and stealing everything they had.

¶ 4 That night, DeLozier, carrying a single shot shotgun, Glenny Madison, carrying a .22 caliber rifle, and Nathaniel Madison, set off for the Morgan site. Once there, according to Nathaniel Madison, DeLozier stepped into the camper and fired a single shot toward the rear with the shotgun. Then Glenny Madison stepped into the camper and fired a shot from the .22 rifle. The group then stood near Morgan's pickup where Glenny Madison fired several shots into the front of the camper. Nathaniel Madison shouted several times for the camper's occupants to come out, saying nothing would happen to them.

¶ 5 After several minutes, Morgan stepped from the camper. Upon doing so, DeLozier shot him once in the chest with the shotgun. DeLozier and Glenny Madison approached Morgan, and DeLozier took the rifle from Glenny and fired it once into Morgan's face.

¶ 6 The three loaded the generator and many other items from the campsite, some of which were taken from the camper, into Morgan's pickup and took the stolen items back to the Tate bus. On the final trip back to the Morgan camper, the trio encountered headlights coming from the Morgan camp site. All three bailed out from the pickup and left it sitting in the road.

¶ 7 George Vance was driving the vehicle which frightened the trio. He drove up on the Morgan camper and observed Morgan lying on the ground with his pants in his hands. Upon seeing this he turned around and got out as fast as he could. On his way out he found that he was blocked by Morgan's abandoned pickup. He got out of his vehicle and moved Morgan's pickup to the side of the road.

¶ 8 Morgan was found lying on his back outside the camper in front of the door. His body had been burned. Morgan's camper had been burned with the body of Bullard still lying in his bed. Morgan's pickup had also been burned.

¶ 9 DeLozier raises several propositions of error in his appeal. These propositions will be addressed in the order in which they arose at trial.

JURY SELECTION ISSUES FN2. The trial court used an anonymous numbering system in “labeling” each juror, thus we use the numbers in lieu of names in this Opinion.

¶ 10 In proposition eight DeLozier argues that he was denied a fair and impartial jury. DeLozer claims that four jurors should have been removed for cause because they indicated an inability to fairly consider the penalties of life or life without the possibility of parole.

¶ 11 DeLozier first complains that the trial court erred in failing to remove juror 14 for cause as trial counsel requested. Juror 14 told the court that she could fairly consider all three punishments. The trial court did not abuse its discretion in refusing to remove juror 14 for cause. Smith v. State, 1991 OK CR 100, ¶ 16, 819 P.2d 270, 275, cert. denied, 504 U.S. 959, 112 S.Ct. 2312, 119 L.Ed.2d 232 (1992).

¶ 12 DeLozier complains that jurors 18, 41 and 49 should have been removed for cause, sua sponte. Trial counsel removed juror 49 by use of a peremptory strike. Jurors 18 and 41 remained on the jury panel. Trial counsel did not ask to have any of these three jurors removed for cause. Therefore, we review for plain error only. Plain error is error which goes to the foundation of the case, or which takes from a defendant a right essential to his defense. Cleary v. State, 1997 OK CR 35, ¶ 81, 942 P.2d 736, 752, cert. denied, 523 U.S. 1079, 118 S.Ct. 1528, 140 L.Ed.2d 679 (1998). In reviewing the record in this case, we cannot say the failure to remove these jurors, sua sponte, rose to the level of plain error. They each indicated a willingness to consider all three punishment options.

FIRST STAGE ISSUES

¶ 13 In proposition two, DeLozier claims that the evidence was insufficient to convict him of first degree murder. DeLozier bases this argument on the premise that Nathaniel Madison's testimony was not sufficiently corroborated.

A conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. 22 O.S.1991, § 742. If the accomplice's testimony is corroborated as to one material fact by independent evidence tending to connect the defendant with the commission of the crime, from that, the jury may infer that the accomplice speaks the truth as to all. Sellers v. State, 1991 OK CR 41, ¶ 30, 809 P.2d 676, 686, cert. denied, 502 U.S. 912, 112 S.Ct. 310, 116 L.Ed.2d 252 (1991).

¶ 14 Nathaniel Madison's testimony only needed to be corroborated in one material fact by independent evidence tending to connect DeLozier with the murders of Morgan and Bullard. The corroborative evidence need not be complete, independent proof of the crime; it is sufficient if it connects DeLozier to the murders. See Spears v. State, 1995 OK CR 36, ¶ 29, 900 P.2d 431, 440, cert. denied, 516 U.S. 1031, 116 S.Ct. 678, 133 L.Ed.2d 527 (1995).

¶ 15 The corroborative evidence in this case was as follows: testimony that DeLozier admitted killing two men while he was threatening another inmate in the county jail; DeLozier's testimony that he left his camp site carrying the shotgun that was used in the murders; DeLozier's admission that he stole from the victim's campsite; and Vance's testimony that he observed Morgan lying on the ground outside the camper before meeting DeLozier and the others on the road, corroborating Nathaniel Madison's story that Morgan and Bullard were killed while all three were at the Morgan camp.

¶ 16 DeLozier argues in proposition three that the introduction of Nathaniel Madison's out of court statements to O.S.B.I Agent Birchfield constituted improper bolstering. The State argues that the statements were admissible pursuant to 12 O.S.1991, § 2801(4)(a)(2), which reads in part, A statement is not hearsay if ... the declarant testifies at the trial ... and is subject to cross-examination concerning the statement, and the statement is ... consistent with his testimony and is offered to rebut an express or implied charge of recent fabrication or improper influence or motive....

¶ 17 In discussing this same issue in Plotner v. State, 1988 OK CR 139, ¶¶ 32-33, 762 P.2d 936, 943-44, overruled on other grounds in Parker v. State, 1996 OK CR 19, 917 P.2d 980 (1996), we said: that two foundational requirements must be met before such statements are admissible: “First, there must have been a suggestion that the witness has either fabricated his trial testimony or has been unduly influenced. Second, it must be established that the consistent statement was made prior to the time when there was a motive for the witness to lie or there was an exercise of improper influence.” quoting 1 L. Whinery, Guide to the Oklahoma Evidence Code 263 (1985). See also Huckaby v. State, 1990 OK CR 84, ¶ 13, 804 P.2d 447, 451; Tome v. United States, 513 U.S. 150, 115 S.Ct. 696, 705, 130 L.Ed.2d 574 (1995) (Fed.R.Evid.Rule 801(d)(1)(B), from which 12 O.S.1991, § 2801(4)(a)(2), is copied, requires that the prior consistent statement must have been made before the alleged motive to falsify arose). In the present case the that there was a suggestion that the witness had fabricated his trial testimony or had been unduly influenced is shown by defense counsel's cross-examination. In the cross-examination defense counsel made a point to carefully detail the plea agreement Nathaniel Madison had made with the State. Nathaniel was still charged with two counts of first degree murder; however, the counts would be amended to one count of conspiracy to commit murder and Nathaniel would receive a split sentence of two years imprisonment and ten years suspended, after Nathaniel testified against DeLozier. The date of this agreement was not in evidence.

¶ 18 According to Agent Birchfield, Nathaniel did not have an agreement with the State when he made his statement on September 26; therefore, this “plea agreement” could not have motivated Nathaniel to lie at that time. However, DeLozier argues that Nathaniel was motivated to lie when he made his statements to Birchfield because he had been arrested for murder. He had a motivation to “save his own skin.”

¶ 19 The jury was instructed that accomplice testimony must be corroborated. We have held that Nathaniel's testimony was corroborated sufficiently to form evidence of DeLozier's guilt. Therefore, DeLozier was protected from accomplice testimony created from whole cloth.

¶ 20 We hold that the requirements of Section 2801(4)(a)(2) were met because Nathaniel's statements were made to Birchfield before his motivation to lie, the plea agreement was present, and because trial counsel implied that he was motivated to lie based on this plea agreement.

¶ 21 In proposition seven DeLozier claims that his constitutional rights were violated by the introduction of what he calls gruesome, inflammatory color photographs. State's Exhibits 15, 16 and 32 were introduced over DeLozier's objection. DeLozier specifically claims that the probative value of State's Exhibits 15 and 32 were outweighed by their prejudicial impact on the jury and that the photographs so infected the trial with unfairness as to deny due process and undermine the reliability of the death sentences.

¶ 22 This crime was a gruesome crime; two men shot and their bodies burned beyond visible identification. State's Exhibit 15 is a relatively close-up photograph of the remains of Morgan. It shows his body lying perpendicular to his camper just outside the door. The photo was probative to show the location of his body in relation to the door of the camper and to corroborate Madison's testimony that Morgan was shot as he stepped from the camper.

¶ 23 State's Exhibit 32 is a close up of the charred remains of Bullard. It is nearly impossible to tell that these are the remains of a human being. The medical examiner used this photograph to explain how he was able to determine that Bullard was shot with a shotgun and a .22 rifle. This was the only photograph to show that Bullard was lying on his bed when he was killed.

¶ 24 Both of these photographs were relevant and probative. The proper test for admissibility of evidence is that relevant evidence will be admissible unless “its probative value is substantially outweighed by the danger of unfair prejudice....” 12 O.S.1991, § 2403; Willingham v. State, 1997 OK CR 62, ¶ 37, 947 P.2d 1074, 1083, cert. denied, 524 U.S. 930, 118 S.Ct. 2329, 141 L.Ed.2d 702 (1998). We find that the admission of these photographs did not constitute error.

¶ 25 In proposition four DeLozier claims that the prosecutor violated his right to remain silent by using his pre-trial silence against him. DeLozier points to the portion of the prosecutor's questioning of him where he is asked how long it took for him to come up with the story he told the jury. The prosecutor asked, “How long did it take you to arrive at this story you just told this jury? Let's see it's May 20 something and this happened in September. That's five-that's eight months; right.”

¶ 26 There was no objection to this questioning; therefore, we review for plain error only. Hamilton v. State, 1997 OK CR 14, ¶ 35, 937 P.2d 1001, 1010, cert. denied, 522 U.S. 1059, 118 S.Ct. 716, 139 L.Ed.2d 657 (1998). Based on the facts and circumstances of this case, we cannot say that this questioning rose to the level of plain error. See Bunce v. State, 1987 OK CR 96, ¶ 12, 738 P.2d 159, 163 (whether a comment rises to the level of plain error depends on the particular facts and circumstances of each case). Furthermore, this was not an unambiguous question regarding DeLozier's right to remain silent. It was more in line with questioning regarding “how long did it take for you to come up with such a ridiculous story?” Therefore, we cannot say that it was a reference to DeLozier's pre-trial silence.

¶ 27 In proposition five, DeLozier argues that instructions regarding impeachment of witnesses unfairly highlighted his impeachment. His argument is based on the fact that DeLozier was named in the “prior conviction” impeachment instruction and Nathaniel Madison was not named in the “prior inconsistent statement” impeachment instruction. Again there was no objection to these instructions as given. Therefore, we review for plain error only. This proposition does not rise to the level of plain error.

¶ 28 DeLozier argues in proposition six that prosecutorial misconduct in both stages of the trial deprived him of due process and reliable verdicts. During first stage, DeLozier claims that (1) the prosecutor bullied and badgered him during cross-examination with assumed and speculative facts; (2) the prosecutor argued facts not in evidence in his first stage closing; and (3) the prosecutor misled the jury by misstating the law, told them that they had a duty to convict and incited societal alarm.

¶ 29 During the second stage, DeLozier claims that (1) the prosecutor improperly bolstered his case for the death penalty by injecting his personal opinion; (2) the prosecutor attacked trial counsel by calling his argument a speculative account of the victim's suffering; (3) the prosecutor argued facts not in evidence; (4) the prosecutor misled the jury by misstating the law regarding the method they should use to arrive at a sentence and denigrated the mitigating evidence, and opined that DeLozier's remorse was not genuine; and (5) the prosecutor gave personal testimony about how this crime had affected him.

¶ 30 None of the comments complained of were objected to at trial. As to these remarks, DeLozier has waived all but plain error. Smith v. State, 1996 OK CR 50, ¶ 28, 932 P.2d 521, 531, cert. denied, 521 U.S. 1124, 117 S.Ct. 2522, 138 L.Ed.2d 1023 (1997). Our review of the record reveals that none of the comments were so egregious as to constitute plain error. Id.

PUNISHMENT ISSUES

¶ 31 In proposition thirteen, DeLozier attacks the constitutionality of the aggravating circumstances found in his case. We have held that these aggravators are constitutional, and we are not persuaded to change our stance on this issue. See Toles v. State, 1997 OK CR 45, ¶¶ 58-62, 947 P.2d 180, 192, cert. denied, 524 U.S. 958, 118 S.Ct. 2380, 141 L.Ed.2d 746 (1998).

¶ 32 In proposition nine, DeLozier argues that the instructions given during second stage deprived him of due process. DeLozier complains generally about instructions that he claims are ambiguous, not given or vague. He admits that this Court has reviewed issues outlined in this proposition and has consistently ruled against appellants. DeLozier raises the following specific issues:

A. The instructions on aggravating circumstances, great risk of death to more than one person, the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution, and the probability that the defendant would constitute a continuing threat to society, 21 O.S.1991, 701.12(2),(5) & (7), did not provide specific and detailed guidance.

B. The jury was not told that it had to determine DeLozier killed, intended to kill, or acted with reckless indifference to human life before it could consider the death penalty.

C. The jury was not told that findings of mitigating circumstances need not be unanimous and that they need not be proved beyond a reasonable doubt.

D. The jury was not instructed that they could impose a punishment less than death even if they concluded that the aggravating circumstances outweighed the mitigating evidence.

E. The jury was not adequately informed about the meaning of life and life without parole.

F. The jury was not told what would happen in the event of a deadlock.

G. The jury was not told that aggravating circumstances must clearly outweigh the mitigating evidence.

¶ 33 First, the aggravating circumstances found in this case have been found to be constitutional. Toles, 947 P.2d at 192. As long as this Court provides a constitutionally adequate narrowing construction to the aggravating circumstances, reversal is not mandated. See Walton v. Arizona, 497 U.S. 639, 654, 110 S.Ct. 3047, 3057, 111 L.Ed.2d 511 (1990) (“as we held in Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990), a state appellate court may itself determine whether the evidence supports the existence of the aggravating circumstance as properly defined or the court may eliminate consideration of the factor altogether and determine whether any remaining aggravating circumstances are sufficient to warrant the death penalty.”)

¶ 34 Our discussion regarding the sufficiency of the evidence presented to prove the aggravating circumstances reveals the narrowing process which properly defines the aggravators in this State. Therefore, there is no reversible error in failing to instruct the jury about these limiting factors.

¶ 35 DeLozier's arguments in sub-propositions B, C, D, E, F and G have been consistently rejected by this Court and we are not persuaded to reconsider those issues now. Johnson v. State, 1996 OK CR 36, ¶¶ 31-33, 43, 47, 928 P.2d 309, 317-319 (sub-propositions B, C, D, E and G); Malone v. State, 1994 OK CR 43, ¶ 16, 876 P.2d 707, 713 (sub-proposition F)

¶ 36 In propositions ten, eleven and twelve DeLozier argues that there was insufficient evidence to prove, beyond a reasonable doubt, the three aggravating circumstances. The jury found that DeLozier murdered Morgan to avoid lawful arrest or prosecution, and the jury found, regarding both murders, that DeLozier would constitute a continuing threat to society and that he created a great risk of death to more than one person. 21 O.S.1991, § 701.12(2), (5) & (7). When reviewing the sufficiency of the evidence of aggravating circumstances, the standard of review is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the aggravating circumstance beyond a reasonable doubt. Powell v. State, 1995 OK CR 37, ¶ 82, 906 P.2d 765, 784, cert. denied, 517 U.S. 1144, 116 S.Ct. 1438, 134 L.Ed.2d 560 (1996), citing, Lewis v. Jeffers, 497 U.S. 764, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990).

¶ 37 Evidence revealed that DeLozier murdered two individuals. Both victims were together in a small camper. DeLozier stepped inside and fired a shotgun. Madison then stepped inside and fired a .22 rifle. Bullard was shot with a shotgun and a .22 rifle. Once back outside the camper, Madison fired several shots into the camper with the .22. Madison called for Morgan to come out of the camper after Bullard had been shot and told Morgan that nothing would happen to him. When Morgan stepped outside, he was shot and killed. DeLozier and the others went to the Morgan campsite with the intent to steal the generator and other property. DeLozier and the others had visited the Morgan campsite earlier, so they would be suspects in any theft.

¶ 38 With Morgan and Bullard dead, there would be two less witnesses to point to DeLozier and the others as suspects. Furthermore, after killing Bullard, DeLozier could not leave Morgan to tell what had happened. With Morgan alive, a more timely search for the suspects would have been undertaken.

¶ 39 These murders were undertaken in a cold-blooded manner. These two men were killed merely for their possessions, a generator and camping supplies. Even after this murder, DeLozier threatened to kill another inmate in the county jail. Prior to the murders, DeLozier killed a police dog and injured another.

¶ 40 The aggravating circumstance, murder to avoid arrest or prosecution, requires a predicate crime for which a defendant seeks to avoid arrest or prosecution, separate from the murder with which he is charged. Hooper v. State, 1997 OK CR 64, ¶¶ 40-41, 947 P.2d 1090, 1106, cert. denied, 524 U.S. 930, 118 S.Ct. 2353, 141 L.Ed.2d 722 (1998).

The great risk of death to more than one person aggravating circumstance is proved by a defendant's acts which create a risk of death to another “in close proximity, in terms of time, location, and intent” to the killing. It may be appropriate where only one person is killed, where more than one person is killed, or where more than one person is killed but the murders are not contemporaneous. Le v. State, 1997 OK CR 55, ¶ 33, 947 P.2d 535, 549, cert. denied, 524 U.S. 930, 118 S.Ct. 2329, 141 L.Ed.2d 702 (1998). The continuing threat aggravating circumstance may be supported by the callous nature of the crime and evidence of a defendant's other offenses, either adjudicated or unadjudicated. Hooper, 947 P.2d at 1107. The facts in this case fully support the jury's finding of the aggravating circumstances.

¶ 41 In part of proposition ten, DeLozier argues that the prosecutor misled the jury about the meaning of the avoiding lawful arrest aggravating circumstance and that the trial court failed to correctly instruct the jury about this aggravating circumstance.

¶ 42 Defense counsel did not object to the comments of the prosecutor regarding the avoiding lawful arrest aggravating circumstance; therefore, we review for plain error only. In reviewing the entire record, the comments do not rise to the level of plain error. We have consistently held that the instruction on this aggravator, which mimics the statute, is sufficient. Boyd v. State, 1992 OK CR 40, ¶ 25, 839 P.2d 1363, 1371, cert. denied, 509 U.S. 908, 113 S.Ct. 3005, 125 L.Ed.2d 697 (1993). We decline to stray from this holding.

¶ 43 DeLozier claims in proposition fourteen that the portion of the victim impact evidence which included an opinion that the proper sentence was one of death violated his federal and state constitutional rights. A victim's recommendation of punishment is allowable in a capital jury sentencing proceeding but will be viewed by this Court with a heightened degree of scrutiny. Ledbetter v. State, 933 P.2d 880, 891 (Okl.Cr.1997); Willingham, 947 P.2d at 1086, see 22 O.S.Supp.1997, § 984.FN3 The recommendation of sentence came from one witness whose opinion was limited to, “Yea, I can tell them the penalty I think is the only penalty that's appropriate would be the death penalty.” This statement did not violate DeLozier's rights.

FN3. While I recognize that a majority of this Court has held that both “victim impact evidence” under 21 O.S.Supp.1997, § 701.10(C) and “victim impact statements” under 22 O.S.Supp.1997, §§ 984 and 984.1 are admissible before a jury in a capital sentencing procedure, I continue to be of the opinion that only “victim impact evidence,” defined in section 701.10(C) as evidence about the victim and the impact of the murder on the family of the victim, is admissible before a jury in a capital sentencing proceeding.

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

¶ 44 In proposition fifteen DeLozier claims that the omission of uniform instruction OUJI-CR 439 setting forth mitigating factors violated 21 O.S.1991, § 701.11 and his rights under federal and state constitutions. DeLozier failed to preserve this error by requesting the instruction or by objecting to the instructions given. In fact trial counsel argued that this instruction should not be given because it could operate to limit the jury's consideration of mitigators. After consideration of the entire record, we find that the failure to give this instruction was not plain error.

INEFFECTIVE ASSISTANCE OF COUNSEL

¶ 45 DeLozier argues in his first proposition that he was denied effective assistance of counsel due to alleged errors of counsel during the trial. Appellant must meet the two-pronged test set out in Strickland v. Washington FN4 to show ineffective assistance of counsel. Lewis v. State, 1998 OK CR 24, ¶ 48, 970 P.2d 1158. First, Appellant must show that trial counsel's performance was deficient. This requires a showing that trial counsel was not functioning as the counsel guaranteed by the Sixth Amendment. Second, he must show he was prejudiced by the deficient performance and that counsel's errors deprived him of a fair trial with a reliable outcome. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. FN4. 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

¶ 46 In review of such a claim, we are to accord a strong presumption that counsel was at least constitutionally competent. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065; Willingham, 947 P.2d at 1078. We will judge counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct, and ask if the conduct was professionally unreasonable. Hooper, 947 P.2d at 1111. An error must be so egregious that it indicates deficient performance by counsel, falling outside the wide range of reasonable professional assistance. Strickland, 466 U.S. at 687-89, 104 S.Ct. at 2064-65. Many significant errors will not meet this highly demanding standard. Kimmelman v. Morrison, 477 U.S. 365, 381-82, 106 S.Ct. 2574, 2586, 91 L.Ed.2d 305 (1986). Those errors that require reversal do so because they reflect performance by counsel that has “so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686, 104 S.Ct. at 2064.

¶ 47 DeLozier first alleges that trial counsel was ineffective because he failed to investigate and use available evidence that was inconsistent with the State's theory of guilt and consistent with the defense. DeLozier complains that trial counsel failed to call two witnesses during the first stage of trial. The decision to call witnesses during trial is usually one of strategy and will not be second guessed on appeal. See Boltz v. State, 1991 OK CR 1, ¶ 31, 806 P.2d 1117, 1126, cert. denied, 502 U.S. 846, 112 S.Ct. 143, 116 L.Ed.2d 109 (1991) (it is a reasonable strategic choice for an attorney to channel his investigation into fewer than all plausible lines of defense upon which he bases his strategy and his choices on the basis of those assumptions are reasonable. “An attorney's decision not to interview witnesses and to rely on other sources of information, if made in the exercise of professional judgment, is not ineffective counsel.”)

¶ 48 DeLozier bases his argument on statements made by Michelle DeLozier Tate and Bubba Oliver to O.S.B.I. Agents and the Preliminary Hearing testimony of Oliver about statements they heard DeLozier and Nathaniel Madison make soon after the “theft.” After reviewing DeLozier's allegations, we find that the failure to use this evidence was not so egregious that it indicates deficient performance, falling outside the wide range of reasonable professional assistance.

¶ 49 Next, DeLozier claims that trial counsel could have pointed out, more thoroughly, inconsistencies in Nathaniel Madison's testimony and his statement to the O.S.B.I. Again, we find that the failure to use this evidence did not constitute deficient performance.

¶ 50 As his second basis for a claim of ineffective assistance of counsel, DeLozier claims that trial counsel failed to protect his rights to be tried by an impartial jury. DeLozier raises this issue substantively as proposition 8. DeLozier claims trial counsel failed to remove jurors who would automatically vote for the death penalty.FN5 The first juror DeLozier cites, juror 14, responded that she could fairly consider the other two options of life without parole and life. The trial court properly refused to remove her for cause and trial counsel used a preemptory challenge to remove her. This in no way constitutes ineffective assistance of counsel. FN5. The trial court used an anonymous numbering system in “labeling” each juror, thus the numbers in lieu of names in this Opinion.

¶ 51 The second juror, juror 49, first responded that he/she could not give fair consideration to life without parole or life. Later, this juror stated that he/she would put personal feelings aside and follow the law regarding punishment. Trial counsel did not challenge for cause, but removed this juror with a preemptory strike. We cannot say, based on the record in this case, that trial counsel was ineffective for failing to challenge this juror for cause.

¶ 52 The third juror, juror 18, told trial counsel that he could consider all three punishments. This juror remained on the jury and ultimately was foreman of the jury. The fourth juror, 41, stated that he would follow the directions of the court in deciding punishment and fairly consider all three punishments. This juror also remained on the jury panel. We cannot say that, based on the record, trial counsel was ineffective for failing to remove these last two jurors either by a challenge for cause or by preemptory strike.

¶ 53 DeLozier's third allegation of ineffective assistance of counsel deals with trial counsel's failure to object to the prosecutor's cross-examination of DeLozier and his failure to object to alleged improper comments in closing. DeLozier raises these issues substantively in propositions 4 and 6. We have reviewed the remarks and note that trial counsel failed to object to the cross examination and the closing argument of the prosecution. Upon reviewing the entire record in this case, we cannot say that the failure to object to these comments was ineffective assistance of counsel.

¶ 54 Lastly, DeLozier claims as ineffective assistance trial counsel's failure to seek the prohibition of the disclosure of his prior convictions before eliciting the information during direct examination. Trial counsel was not ineffective for failing, in limine, to prevent the disclosure of DeLozier's prior convictions. The basis for this argument is tenuous at best.

¶ 55 In addition to the ineffective assistance of counsel claims raised by DeLozier in his brief in chief, he filed an Application for an Evidentiary Hearing asserting additional claims which he contends are supported by evidence not in the record but which were available to defense counsel at the time of trial. See Rule 3.11(B)(3)(b), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (1997). In this application DeLozier requests an evidentiary hearing on the failure of trial counsel to investigate and present evidence to disprove the State's evidence that DeLozier, while in jail, confessed to killing two men while threatening another. Rule 3.11(B)(3)(b) allows an appellant to request an evidentiary hearing when it is alleged on appeal that trial counsel was ineffective for failing to “utilize available evidence or adequately investigate to identify evidence which could have been made available during the course of trial....” Once an application has been properly submitted along with supporting affidavits, this Court reviews the application to see if it contains “sufficient information to show this Court by clear and convincing evidence there is a strong possibility trial counsel was ineffective for failing to utilize or identify the complained-of evidence.” Rule 3.11(B)(3)(b)(i), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (1997).

¶ 56 Believing that Appellant had met this burden, we remanded this case to the district court for an evidentiary hearing. In our remand order we limited the inquiry to items urged in Appellant's motion for an evidentiary hearing, specifically whether trial counsel was ineffective for failing to investigate and present evidence which would have disproved the State's evidence that he admitted to killing the victims and threatened to kill another person. We directed the trial court to determine the availability of evidence or witnesses, the effect of the evidence or witnesses on the trial court proceedings, whether the failure to use a witness or item of evidence was trial strategy, and if the evidence or witnesses were cumulative or would have impacted the verdict rendered. See, Rule 3.11(B)(3)(b)(iii), Rules of the Oklahoma Court of Criminal Appeals, Ch. 18, App. (1997).

¶ 57 We first commend the trial court on the manner in which it conducted the evidentiary hearing and the well-written Findings of Fact and Conclusions of Law. Such work makes it easier for us to resolve this issue by having full understanding of the facts. We will give deference to the trial court's finding of facts and conclusions of law. We find that the findings and conclusions are supported by the record despite DeLozier's claim to the contrary.

¶ 58 In Appellant's application for an evidentiary hearing he identified two specific instances which he claims amounted to ineffective assistance of counsel. He claimed that trial counsel's failure to interview and present Rodney Broades as a witness was ineffective. He also claimed that trial counsel's failure to present evidence that Mussett could not have visually identified him as who was allegedly yelling at Broades was ineffective assistance. Because, these were the only factors presented in the application by DeLozier, our review is limited to only these factors.FN6 Rule 3.11(B)(3)(b)(ii), Rules of the Court of Criminal Appeals, Ch. 18, App. (1997).

FN6. At the hearing after remand, DeLozier also claimed that trial counsel was ineffective for failing to call Tony Loving as a witness. Because the State did not object to this evidence, the trial court allowed DeLozier to present it. However, we are bound by our rules not to consider it in this appeal. Contemporaneous with DeLozier's supplemental brief on this issue, he has filed a Motion to Supplement Record seeking to supplement the record with information concerning Tony Loving and information which should have been introduced at the hearing on remand. Because we will not consider this information on direct appeal the motion is denied.

¶ 59 Trial counsel had information before the trial began that DeLozier was alleged to have made incriminating statements while he was arguing with Broades in the county jail. Mike Mussett, another jail inmate, testified at trial that DeLozier stated, “I've already killed two men, mother fucker; I won't hesitate to kill you.”

¶ 60 An O.S.B.I. report prepared by agent Birchfield and provided to trial counsel before trial reported that Broades told Birchfield about the statements on November 27, just a few days after the statements were alleged to have been made. Broades reported that DeLozier antagonized him with racial slurs and called him a “nigger” repeatedly. Broades told Birchfield that DeLozier stated, “You mother fucker, I've killed two people before. What makes you think I'm afraid to kill a Nigger.” Broades also reported that DeLozier stated that “If they were niggers, he would have pled guilty to killing them.”

¶ 61 Investigation by DeLozier's appellate counsel revealed that Broades was willing to testify that DeLozier never made a statement that he had killed two men and that DeLozier had not threatened to kill him. DeLozier claims that trial counsel was ineffective for relying on the O.S.B.I. report and not seeking out Broades to either confirm or refute the O.S.B.I. report.

¶ 62 At the evidentiary hearing, Broades testified that he and DeLozier argued several times during the month of November and that DeLozier called him a “nigger” many times. Broades testified that DeLozier never threatened to kill him nor did he admit to killing two men. However, Broades testified that he accused DeLozier of being in jail for killing and DeLozier responded that if they had been niggers, “I would have pled guilty to it.” He called the O.S.B.I. report a lie.

¶ 63 This testimony certainly refutes the testimony of Mussett. The first time Broades revealed this story to an appellate investigator was one and one-half years after DeLozier allegedly made the statements. However, this story is contradicted by the statements Broades made to the O.S.B.I. investigator three days after DeLozier allegedly made the admission and threat.

¶ 64 Trial counsel testified that he made a choice not to seek out Broades and call him as a witness because nothing good could come from his testimony. He had previously made the statement that he did not contact Broades because he could not find him. The reasons trial counsel failed to investigate Broades are irrelevant. Trial counsel testified he would not have called Broades to testify even if counsel had known that Broades had recanted his story, because counsel's strategy was to de-emphasize the admission and to attack Mussett's credibility.

¶ 65 The trial court found that if called as a witness Broades could have testified that DeLozier actually made the incriminating statements or Broades could have testified that DeLozier did not make the incriminating statements and be faced with being impeached with his prior convictions and his prior inconsistent statement. We find that the failure to utilize Broades at trial did not prejudice DeLozier.

¶ 66 The evidence that Mussett could not have visually identified DeLozier as DeLozier made the incriminating statements is contradictory and disputed. At this hearing, evidence was presented that if the cell block door was open, Mussett could not have seen the window where DeLozier's face was visible. Furthermore, witnesses testified that the cell block door was always open. However, there was no evidence the cell block door was open and blocking the view when DeLozier made the statement. DeLozier's own exhibit showing the view of the window, had the door been open, shows that a visual identification could have been made.

¶ 67 Trial counsel, after Mussett testified, toured the jail and requested that jurors be allowed to view the jail area so that they could judge Mussett's testimony in a different light; however that request was denied. The failure to present any other evidence concerning Mussett's visual vantage point did not constitute ineffective assistance of counsel.

¶ 68 We find, after having the benefit of the evidentiary hearing and the trial court's findings of fact and conclusions of law, that trial counsel was not ineffective for failing to interview Broades prior to trial or for failing to call him as a witness. Boltz, 1991 OK CR 1, ¶ 32, 806 P.2d at 1126. Trial counsel was also not ineffective for failing to present more evidence on the issue of whether Mussett could actually identify DeLozier when he made the incriminating statements. We find that counsel's failure to utilize all possible evidence did not alter the outcome of this trial, nor did it render the result of this proceeding fundamentally unfair or unreliable. Lockhart v. Fretwell, 506 U.S. 364, 369, 113 S.Ct. 838, 842, 122 L.Ed.2d 180 (1993).

¶ 69 In proposition sixteen DeLozier urges this Court to review the aggregate impact of the errors alleged. Because we have found no individual error present, there can be no accumulation of error. Humphreys v. State, 1997 OK CR 59, ¶ 42, 947 P.2d 565, 578, cert. denied, 524 U.S. 930, 118 S.Ct. 2329, 141 L.Ed.2d 702 (1998).

MANDATORY SENTENCE REVIEW

¶ 70 Pursuant to 21 O.S.1991, § 701.13(C), we must determine whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor and whether the evidence supports the jury's finding of the aggravating circumstance. The jury found, in both counts, that DeLozier knowingly created a great risk of death to more than one person and that there existed the probability that DeLozier would commit criminal acts of violence that would constitute a continuing threat to society. 21 O.S.1991, §§ 701.12(2) & (7). Additionally, in count one, the jury found that the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution. 21 O.S.1991, § 701.12(5). We have found that these aggravating circumstances were supported by sufficient evidence.

¶ 71 The mitigating evidence argued by DeLozier was his young age, 19; his growing up in an abusive home; his addiction to drugs; others' opinions that he was a caring, loving person before he became addicted to drugs; and the adequacy of punishments less than death. Further, the jury was instructed they could determine mitigation from the evidence presented.

¶ 72 When we independently weigh the mitigating evidence against the aggravating circumstances which were each proven beyond a reasonable doubt, we find the jury's determination that the aggravating circumstances outweigh the mitigating circumstances is amply supported by the record.

¶ 73 Finding no error warranting reversal or modification, Judgment and Sentence of the District Court of McCurtain County is AFFIRMED.

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

Delozier v. Sirmons, 531 F.3d 1306 (N.D.Okla. 2008) (Habeas).

Background: Following affirmance of conviction for first-degree murder and death sentence, 991 P.2d 22, defendant sought writ of habeas corpus. The United States District Court for the Eastern District of Oklahoma, James H. Payne, Chief Judge, denied relief, and defendant appealed.

Holdings: The Court of Appeals, Hartz, Circuit Judge, held that: (1) defense counsel was not constitutionally ineffective; (2) claim of ineffective assistance of trial counsel which had not been raised on direct appeal was procedurally barred; and (3) appellate counsel was not constitutionally ineffective in failing to challenge trial counsel's effectiveness. Affirmed.

HARTZ, Circuit Judge.

Michael DeLozier was convicted on two counts of first-degree murder in Oklahoma state court and sentenced to death. The Oklahoma Court of Criminal Appeals (OCCA) affirmed the conviction and sentence. See DeLozier v. State, 991 P.2d 22 (Okla.Crim.App.1998). After Mr. DeLozier filed an unsuccessful petition for a writ of certiorari in the United States Supreme Court, see DeLozier v. Oklahoma, 528 U.S. 1023, 120 S.Ct. 535, 145 L.Ed.2d 415 (1999), and an unsuccessful application for postconviction relief in Oklahoma state court, he filed in the United States District Court for the Eastern District of Oklahoma on August 31, 2000, an application for relief under 28 U.S.C. § 2254. The district court denied the application but granted a certificate of appealability (COA) on Mr. DeLozier's claim of ineffective assistance of counsel. See 28 U.S.C. § 2253(c)(1) (requiring a COA to appeal denial of habeas application). We denied Mr. DeLozier's motion for issuance of an expanded COA.

The OCCA summarized the incriminating evidence as follows: Steven Morgan and Orville Lewis Bullard were camping in a converted step-van on the bank of the Glover River in northern McCurtain County [the “Morgan camp”]. About 600 yards from their campsite was the “Tate bus,” a bus also converted for camping. DeLozier, Glenney Dale [“Bo”] Madison, Nathaniel Brandon Madison, and others were staying at the bus. Sometime on Saturday, September 23, 1995, DeLozier, the Madison [cousins] and James [“Bubba”] Oliver happened upon the Morgan campsite. They engaged in conversation for a few minutes.

While there DeLozier spotted a generator he thought would bring about $700 if stolen. Once back at the Tate bus, DeLozier mentioned stealing the generator. Several of the group, including DeLozier, talked about killing Morgan and Bullard and stealing everything they had.

That night, DeLozier, carrying a single shot shotgun, Glenney Madison, carrying a .22 caliber rifle, and Nathaniel Madison, set off for the Morgan site. Once there, according to Nathaniel Madison, DeLozier stepped into the camper and fired a single shot toward the rear with the shotgun. Then Glenney Madison stepped into the camper and fired a shot from the .22 rifle. The group then stood near Morgan's pickup where Glenney Madison fired several shots into the front of the camper. Nathaniel Madison shouted several times for the camper's occupants to come out, saying nothing would happen to them.

After several minutes, Morgan stepped from the camper. Upon doing so, DeLozier shot him once in the chest with the shotgun. DeLozier and Glenney Madison approached Morgan, and DeLozier took the rifle from Glenney and fired it once into Morgan's face.

The three loaded the generator and many other items from the campsite, some of which were taken from the camper, into Morgan's pickup and took the stolen items back to the Tate bus. On the final trip back to the Morgan camper, the trio encountered headlights coming from the Morgan camp site. All three bailed out from the pickup and left it sitting in the road.

George Vance was driving the vehicle which frightened the trio. He drove up on the Morgan camper and observed Morgan lying on the ground with his pants in his hands. Upon seeing this he turned around and got out as fast as he could. On his way out he found that he was blocked by Morgan's abandoned pickup. He got out of his vehicle and moved Morgan's pickup to the side of the road.

Morgan was found lying on his back outside the camper in front of the door. His body had been burned. Morgan's camper had been burned with the body of Bullard still lying in his bed. Morgan's pickup had also been burned. DeLozier, 991 P.2d at 25-26.

Mr. DeLozier, Bo Madison, and Nathaniel Madison were charged with the first-degree murders of Bullard and Morgan. Bo Madison was convicted and sentenced to life without parole in a separate proceeding. Nathaniel Madison entered into a plea agreement with the State, agreeing to testify against Mr. DeLozier in exchange for a lesser charge and reduced sentence.

On appeal Mr. DeLozier challenges his conviction and sentence on the grounds that his trial counsel was ineffective in (1) not properly challenging four jurors who were biased in favor of the death penalty; (2) not moving before trial to exclude evidence of his prior convictions; (3) not calling as witnesses his sister and a friend who were with him shortly after the murders but who did not participate in the murders; (4) not effectively impeaching Nathaniel Madison's testimony; (5) not objecting to the State's improper comment on his pretrial silence; (6) not objecting to the State's improper questions when he was cross-examined and to its improper arguments to the jury; and (7) not conducting a proper investigation to obtain mitigating evidence for the penalty phase of trial and not presenting available mitigating evidence. He also contends (8) that his counsel on direct appeal to the OCCA was ineffective for not raising a claim of ineffective trial counsel and (9) that the cumulative effect of trial counsel's deficient acts rendered counsel's assistance ineffective. We affirm.

I. THE TRIAL

A. Jury Selection

During voir dire the trial court informed each potential juror that under Oklahoma law there were three alternative punishments for a person convicted of first-degree murder: death, imprisonment for life with no parole, or imprisonment for life. It asked the jurors whether they could fairly consider each alternative if the defendant was found guilty.

Four prospective jurors initially indicated that they would have difficulty considering sentences other than death. The trial court inquired further into whether they could fairly consider all three forms of punishment, and then permitted the parties to ask questions. Ultimately, each of the four said that they could give fair consideration to each form of punishment. Mr. DeLozier's attorney challenged only one of the prospective jurors for cause, but the court overruled his challenge. He then removed that prospective juror and another of the four with peremptory strikes; the other two jurors sat on the jury.

B. The Guilt Phase

1. The Prosecution's Case in Chief

a. Nathaniel Madison

Nathaniel Madison was the first witness. He testified as follows: In late September 1995 Damon Tate drove Mr. DeLozier, Bo Madison, Bubba Oliver, Paradise Wooten, and him to a campsite on the Glover river that they called “the Tate bus” because of a bus on the site that had been converted for camping. The next day they all smoked marijuana but were not high because the marijuana was not good. In the afternoon Mr. DeLozier, Bo, Bubba, and he left the camp on four wheelers to look for a generator that they had heard the previous night; they had agreed to steal it. They found the generator at the Morgan camp, where they saw Morgan and Bullard and stopped to talk. Nathaniel noticed the generator, ice chests, and various other camping equipment.

When they returned to the Tate bus, Mr. DeLozier again brought up the idea of stealing the generator. Nathaniel, Bo, and Bubba thought that it was a good idea. As they were sitting around a campfire that evening, Mr. DeLozier suggested that they just shoot the men and take everything that they had. Bo and Nathaniel, but not Bubba, agreed. After a discussion of 15 or 20 minutes, Bo, Nathaniel, and Mr. DeLozier decided to lie down, intending to wait a while so that the victims would be asleep when they arrived at the Morgan camp. Later they noticed that the generator had stopped running, so the three men walked to the Morgan camp through the woods. Mr. DeLozier carried a shotgun and Bo carried a .22 caliber rifle.

Upon arriving at the campsite, Mr. DeLozier and Bo each stepped into the camper, fired a shot toward the back of the camper, and then hid behind a pickup at the site (Morgan's pickup). From there, Bo fired additional shots into the camper. As instructed by Mr. DeLozier, Nathaniel began yelling for the occupants to come out. About 20 minutes later Morgan came to the door of the trailer. Mr. DeLozier told him to come out, assuring him that nothing would happen to him. But when Morgan finally emerged, Mr. DeLozier stepped out from behind the truck and shot him with the shotgun. Mr. DeLozier then took the .22 from Bo and shot Morgan in the face.

After the shooting the three men loaded goods from the camper into Morgan's pickup and drove it back to the Tate bus. They later returned, again filled the pickup with goods, and drove back to the Tate bus. Among the items that they took were two automatic shotguns and a .22 rifle. Some time after the first trip, Michelle Tate (Mr. DeLozier's sister), Damon Tate (her husband), and Shawn Smith arrived at the campsite. Michelle asked where they had gotten the truck and the goods. Mr. DeLozier answered that they had “borrowed the truck and ... got the stuff at the getting place.” R. Vol. 8 at 572.

Mr. DeLozier and the Madisons later set out in the pickup on a third trip to the Morgan camp. But they met an oncoming vehicle on their way. Mr. DeLozier pulled the truck to the side of the road and they fled. The Madisons went in a different direction than Mr. DeLozier did, and they never saw him again. As the Madisons walked back to the Tate bus, about five minutes after fleeing the truck, Nathaniel saw the truck catch on fire. Ten minutes later he saw the Morgan camper catch on fire and assumed that Mr. DeLozier had started the fires.

When Nathaniel and Bo arrived at the Tate bus, they changed clothes, grabbed the guns used in the shootings, and walked to Damon Tate's house. Damon drove them to meet Nathaniel's mother. In exchange for the ride, Nathaniel gave Damon the .22 used in the shooting; Nathaniel returned the shotgun to the owner, his brother Tim.

Nathaniel was arrested early the next morning. He was then interviewed by an investigator with the Oklahoma State Bureau of Investigation (OSBI), and he was interviewed again the next day. He had not yet retained an attorney nor been offered a plea agreement.

Mr. DeLozier's attorney, Robert Perrine, cross-examined Nathaniel. Although Nathaniel had testified on direct that his testimony was consistent with what he had said in both interviews with the OSBI, Perrine pursued possible inconsistencies: Nathaniel had testified that Mr. DeLozier was the one who had first spoken of killing Morgan and Bullard, but Perrine suggested that (1) in Nathaniel's initial interview he had said that there had been no talk of killing the victims before they went to the Morgan camp and (2) in the later interview he had said that Bo spoke of killing the men before their first trip to the camp. In response, Nathaniel admitted that it was possible that he had lied during his second interview. Also, although Nathaniel had testified that the murders occurred on the first trip to the Morgan camp and that he, Mr. DeLozier, and Bo were together on every trip made to the camp, Perrine intimated that Nathaniel had told OSBI agents in his first interview that Mr. DeLozier had made a trip to the camp by himself and, when he returned, told Nathaniel and Bo that he had set fire to the campsite. Nathaniel admitted that if he had said that, it was a lie.

On further cross-examination Nathaniel admitted that he and Bo, not Mr. DeLozier, had left the camp area with the murder weapons. Perrine then elicited that in return for testifying against Mr. DeLozier, Nathaniel would be charged with conspiracy to murder, rather than murder in the first degree, and his punishment would be only ten years' imprisonment and ten years' probation. Perrine also questioned Nathaniel about a letter that he had written to Paradise Wooten saying that he would lie to get even and advising her to lie under oath if she found herself in trouble. Asked whether he was capable of lying under oath, he admitted that he was.

b. Law-Enforcement and Expert Witnesses

OSBI Agent Chris Dill confirmed that the shotgun used in the crime had been recovered from the home of Tim Madison. On cross-examination Perrine elicited that Dill had conducted the first interview of Nathaniel and that Nathaniel had made two statements contrary to his trial testimony: Dill said that Nathaniel had told him (1) that neither he, Bo, nor Mr. DeLozier had discussed killing the victims before going to the Morgan camp to steal property, and (2) that Mr. DeLozier made a trip to the Morgan camp by himself and, when he returned, said that he had burned the pickup but did not say that he had burned the camper.

OSBI Agent Dale Birchfield described the murder scene and the surrounding area, including the distance to the Tate bus-about 300 to 400 yards. Also, to rehabilitate Nathaniel's testimony, he recounted what Nathaniel had told him during Nathaniel's second OSBI interview. In particular, Nathaniel had said that Mr. DeLozier and Bo had stepped into the camper and fired shots, that Morgan later came out of the camper, and that Mr. DeLozier had shot him first in the chest with a shotgun and then in the face with a .22. Birchfield admitted on cross-examination, however, that the OSBI investigation had shown that the Madisons, not Mr. DeLozier, had taken the two murder weapons from the Tate bus as they fled.

Dr. Ronald F. Distefano, a forensic pathologist and medical examiner, testified that Morgan's body was charred but that there was nevertheless evidence that he had been shot. X rays showed objects in the chest that were characteristic of shotgun pellets, and there was a gunshot wound in the head. Similarly, although Bullard's body was also charred, an x ray revealed shotgun pellets, the plastic wad of a shotgun shell was recovered from the body, and there was evidence of a bullet wound in the head.

Lester Blake, an agent with the Oklahoma State Fire Marshal, testified to his opinion that the fire at the Morgan camp had been intentionally set with a match and ignitable liquid. The fire followed the liquid from Morgan's body to the camper, where there was evidence of an accelerant pour pattern. Inside the camper were some items that had exploded as a result of the fire, including a gas lantern and some ammunition. On cross-examination Blake said that the fire would have reached its peak within three minutes, so that it could have been seen from a distance, and would have continued for an hour or more; and he suggested that in addition to explosions of the lantern and ammunition, the tires may have exploded before they burned.

c. George Vance

George Vance did not testify but the parties stipulated to what he would have said: [H]e was ... traveling in his pickup truck [when] he came upon a campsite by the Glover River and observed a white male on his back on the ground in front of a camper located at the camp. This white male was clothed in undershorts and a shirt and was holding a pair of blue jeans to his chest. [He] then attempted to leave the camp area and spun his tires doing so[.] [As he] left the camp [he] met a ... pickup, which was abandoned by its drivers[.][He] moved this vehicle which was blocking the roadway and left the area. [He] saw no fires at any time that evening.R. Vol. 9 at 810.

d. Michael Mussett

Michael Mussett, who had been an inmate at the McCurtain County Jail with Mr. DeLozier, testified that during an argument Mr. DeLozier yelled to another inmate, Rodney Broades: “I've already killed two men, mother fucker; I won't hesitate to kill you.” Id. at 726. Mussett explained that because he was a “trustee,” he was not in a cell with the rest of the inmates, but was able to roam the jail's L-shaped hallway. When the statement was made, he was standing at the elbow, or “pivot point” of the L, looking in both directions. He could see Mr. DeLozier's ten-man cell (the “Thunderdome”) to the right, and Broades's seven-man cell on the hallway to the left. Broades was screaming at the door of the seven-man cell and Mr. DeLozier's face was visible through the Thunderdome's bean hole (a head-level opening in the cell door about six inches wide and 14 inches high). Mussett reported the incident to officials the following day. Although he admitted that his trustee status reduced his time to be served, he claimed to have received no special treatment for reporting the incident.

On cross-examination Mussett admitted that someone standing at the pivot point of the hall could not see into the Thunderdome and that he “wouldn't know [Mr. DeLozier's] voice from Adam.” Id. at 730. Perrine further elicited that Mussett had known the victims all his life and knew when he went to jail that the people accused of killing them would be there. When asked whether he felt that he was helping the Morgans and Bullards by testifying, he said that he did not know.

After Mussett testified, Perrine requested that the jury be permitted to visit the jail, saying, “I went down there at lunch time and looked and ... [t]here's no way; you can't get enough of your face in that bean hole to identify who it is.” Id. at 770. He argued that “the defendant is entitled to have this jury go look for themselves to determine whether or not the witness Mussett is telling the truth about the way he identified the speaker of those words, because he said that was the only way he could identify them is by looking at him and seeing him through the bean hole.” Id. The court denied the motion. Perrine later moved for permission to call a witness to rebut Mussett's testimony. The court granted the request, but the witness was never called.

2. Mr. DeLozier's Case

Two witnesses testified for the defense: Paradise Wooten and Mr. DeLozier himself.

a. Paradise Wooten

Wooten testified that she had been with Mr. DeLozier, the Madisons, and her brother, Bubba Oliver, at the Tate bus the night of the murders. They all sat around the campfire talking about stealing stuff from the Morgan camp and killing Morgan and Bullard. They smoked one marijuana joint that evening, but because they had no papers or cans to smoke the little marijuana that was left, they threw the remainder in the fire.

She and Bubba were asleep when Mr. DeLozier and the Madisons returned from the Morgan camp. They woke her, but she stayed in bed and did not see the truck or what they had taken. The three men left again; and she and Bubba stayed up to await their return. This time, however, Mr. DeLozier returned to the campsite by himself. He said, “Let's go, the game rangers are down there.” Id. at 854. She and Bubba dressed and the three of them quickly left.

Up to that point she had not heard any gunshots. After they had traveled about 50 yards from the campsite, she saw a light coming from near the river (by the Morgan camp). The light looked like “[l]ights on a football field but it was yellow.” Id. at 856. Once they finally got up the hill, about 30 to 45 minutes after leaving the campsite, she heard three or four gun shots; five minutes later she heard a blast. Wooten, Bubba, and Mr. DeLozier wandered through the mountains for three days before they were arrested. Mr. DeLozier was with her the entire time. She did not recall seeing any blood on his clothes or any evidence that he had been near a fire. And he had not acted as if he had killed somebody. On cross-examination Wooten admitted that part of the reason that she and Bubba had refused to go to the Morgan camp with the others was the earlier talk of killing Morgan and Bullard.

b. Mr. DeLozier

Mr. DeLozier began his testimony by stating his age (19), providing some background information, and admitting that he had previously pleaded guilty to felony charges of killing one police dog and injuring another. He then gave his account of the murders. He had gone to the Tate bus campsite to avoid appearing for court proceedings regarding the felony charges, which were pending at the time. On Saturday September 26 he, Nathaniel, Bo, and Bubba were riding four wheelers when they came across Morgan, Bullard, and a third man at the Morgan camp. After talking with the three men for 15 to 20 minutes, they left. Mr. DeLozier suggested to the others that they steal the generator from the Morgan camp. Bo and Nathaniel again mentioned stealing property from the Morgan camp later that evening as they were sitting around the campfire with Mr. DeLozier, Wooten, and Bubba. This time, however, Bo suggested that they kill Morgan and Bullard and take everything. Mr. DeLozier did not respond because he did not think Bo was serious. They were all high on marijuana, and he had used some methamphetamine that weekend.

During the night the three left for the Morgan camp. He carried a shotgun and Bo carried a .22, but they did so only for protection. About halfway to the campsite they stopped to smoke a cigarette and he handed the shotgun to Nathaniel, who carried the gun the rest of the way.

When they arrived at the campsite, the pickup, which was backed up to the camper, was packed with camping equipment and other personal property; everything but the generator was loaded on the truck. The keys were in the truck. They quickly threw the generator in the back of the truck and left. As they were unloading the pickup at the Tate bus, Michelle Tate, Damon Tate, and Shawn Smith arrived in their vehicle. Damon said that a game warden had stopped them as they drove to the Tate bus.

After Damon, Michelle, and Shawn left, the Madisons wanted to go back to the Morgan camp for another load. Mr. DeLozier joined them. On their way back to the Morgan camp in the stolen truck, they saw headlights approaching, so they stopped the truck and fled. Mr. DeLozier went back to the Tate bus and the Madisons went in a different direction. When Mr. DeLozier reached the Tate bus about ten minutes later, he woke up Paradise and Bubba and told them that they had to leave. He explained that he thought he had seen a game warden and assumed that they did not want to be at the bus with stolen goods stacked in front of it when the game warden arrived. As they were leaving in the opposite direction from the Morgan camp, they heard an explosion and saw an orange glow along the river. They also heard several “pops like gunshots.” R. Vol. 10 at 920.

On cross-examination Mr. DeLozier testified that he had never threatened to kill fellow inmate Broades and that Mussett was lying.

3. Rebuttal Witness

The State called Phyllis Morgan Setzer, Morgan's wife, in rebuttal. She testified that she and her husband had gone camping hundreds of times and had never loaded their things the night before. Rather, on the day they were set to leave, they would typically have lunch and then load everything into the truck. On the weekend of the murders, she and her son planned to drive to the Morgan camp that Sunday (the day after the murders), meet Morgan and Bullard for a fish fry, and pack up after that. She also testified that many of the items recovered from the Tate bus were items that remained permanently in the camper at the Morgan camp; they would not have taken them home.

C. The Penalty Phase

The information charging Mr. DeLozier with murder listed four aggravating circumstances supporting the death penalty: 1. The defendants, and each of them, created a risk of death to more than one person; 2. The murders were especially heinous, atrocious or cruel; 3. The murders were committed for the purpose of preventing a lawful arrest or prosecution; 4. The existence of a probability that the defendants would commit criminal acts of violence that would constitute a continuing threat to society. R. Vol. 2 at 4. During the penalty phase of the trial, after the jury had found Mr. DeLozier guilty on both counts of first-degree murder, the State presented no additional evidence in support of the aggravating circumstances. It limited its presentation to calling victim-impact witnesses: Mr. Bullard's son, Joe Bullard, and Mr. Morgan's wife, Phyllis Morgan Setzer. Both testified about the profound effect of the loss of Morgan and Bullard on their families' lives.

Perrine called three witnesses. Mr. DeLozier's mother, Terry Gilbert, testified that Mr. DeLozier's biological father left him when he was very young. When he was three years old, they moved in with his stepfather, Johnny Gilbert, who beat him from the very beginning. The beatings got “really bad” when Mr. DeLozier turned 12 or 13. R. Vol. 10 at 1054. For example, if Mr. DeLozier failed to mow the lawn, Johnny would throw him up against a wall and start calling him names; Johnny's favorite name for him was “shit for brains.” Id. She volunteered, “I mean you get told enough that you're no good, that's the way he has had to grow up.” Id. Mr. DeLozier regularly attended church with his mother, but they eventually stopped when Johnny got jealous one night and followed them home. As a result of the abuse, Mr. DeLozier became cold and withdrawn. He began using drugs, but without the drugs he was not a bad person.

Mr. DeLozier's aunt, Yolanda Bell, testified that his family life was so bad that he ran away from home at one point and lived with her in Texas. She had known him as a loving, affectionate boy. His sister, Michelle Tate, corroborated that he was regularly abused by his stepfather. She said, “Johnny wouldn't ever hit me because [Mr. DeLozier] would always jump in and let him beat on him instead.” Id. at 1068. She also testified that he began using drugs heavily once he left home and that he stole from others to support his habit. When asked whether she thought that Mr. DeLozier had turned to drugs to forget about what his stepfather was like, Michelle answered, “Who wouldn't want to forget? You get cut for getting a cookie out of a cookie jar.” Id. at 1070. Before the drugs, she said, he was a great brother with high spirits.

The court struck the second aggravator with respect to Bullard's murder, explaining that there was insufficient evidence that the killing was especially heinous, atrocious, or cruel. The jury sentenced Mr. DeLozier to death on both counts. With respect to the Morgan murder, the jury found that Mr. DeLozier created a risk of death to more than one person, that he committed the murder with the purpose of avoiding or preventing a lawful arrest or prosecution, and that he constituted a continuing threat to society. Regarding Bullard's death the jury found that Mr. DeLozier created a risk of death to more than one person and constituted a continuing threat to society.

II. POST TRIAL PROCEEDINGS

A. Direct Appeal

On September 15, 1997, Mr. DeLozier, through his new attorney, Lee Ann Jones Peters, filed with the OCCA an appellate brief that claimed, among other things, that Perrine had provided ineffective assistance of counsel. He contemporaneously filed an application for an evidentiary hearing to supplement the record regarding his claim that Perrine had failed to investigate and present evidence to discredit Mussett's testimony that he had heard Mr. DeLozier tell Rodney Broades, a fellow inmate, that he had committed two murders. The OCCA granted the application.

1. Evidentiary Hearing

At the evidentiary hearing before the trial judge, Perrine testified that as a matter of trial strategy he had decided not to contact Broades. He had received a copy of an OSBI report of interviews with Broades and Mussett conducted a few days after the incident, and both had reported essentially the same statement. (Broades reported that Mr. DeLozier had said: “ ‘You mother-fucker, I've killed two people before. What makes you think I'm afraid to kill a “Nigger?” ’ ” R. Vol. 4 at 438. Mussett's version was: “You mother-fucker, I've already killed two men and I won't hesitate to kill a Nigger.” Id. at 437.) Broades had also reported that Mr. DeLozier, referring to the charges on which he was being held, had said that “ ‘[i]f they were Niggers, he would have pled guilty to killing them.’ ” Id. at 438. Perrine feared that if Broades were called as a witness, he might repeat what he had told the OSBI; and if Broades changed his story, he could be impeached by his prior statement, “which would have over emphasized the statement and given it more credibility.” R. Vol. 12 at 14. Perrine also worried that the statement, which was laced with racial slurs, would inflame the two African-American jurors against his client. Therefore, Perrine said, rather than interview Broades or call him as a witness, he chose to deemphasize the statement and attack Mussett's credibility. He had visited the jail, including the cells in which Broades and Mr. DeLozier were housed as well as the place in the hall where Mussett claimed to have stood, and had requested that the jury be permitted to visit the jail to see for themselves that Mussett's testimony could not be true. He had also included on the witness list an inmate in McCurtain County Jail at the time of the incident. Although he never called the inmate, and could not remember why, he recalled “feeling satisfied that there was enough evidence in ... about the physical set-up of the jail. And that's the only reason that I can think that I would have even wanted to call [him.]” Id. at 28.

Ruth Castillo, an investigator for Mr. DeLozier, was called to testify whether a face in the bean hole of the Thunderdome (Mr. DeLozier's cell) would be visible from the hallway pivot point. Castillo had visited the jail in August 1997, after the trial and after the facility had ceased serving as a jail. While visiting the facility, she had several pictures taken from various locations. One picture was of the Thunderdome bean hole taken from the point of the hallway where Mussett claimed to have been. Castillo asserted that the picture showed the difficulty one would have in identifying a face in the bean hole. She explained

I tried to put [the woman with the camera] right at the pivotal point. I went into the cell, and I pressed my face against the Bean Hole in the cement wall. She took a picture. Uh, and, uh, in the picture that I reviewed, uh, has a little sliver of my face, but she-I think she actually moved a little down the wall-down the hall. Now when I-I didn't take a picture of her in the cell. I didn't ask her to do that. It's dirty. But when I stood at the pivotal point and I looked down, I could not see into the Bean Hole at all, because it's recessed. All I could see was the outer cement, uh, uh, wall of it. I couldn't see anything inside of it. When I pressed my face against the Bean Hole, I could not put my face in any way through the Bean Hole, because it hit me on the cheeks, and on my hair. Id. at 70-71.

Next, Mr. DeLozier called Rodney Broades, who testified that Mr. DeLozier had said nothing to the effect of what was stated in the OSBI report. Broades, who had several prior convictions, admitted that he and Mr. DeLozier often argued, but he said that Mr. DeLozier had never admitted to committing the murders or threatened to kill him. He testified that when an OSBI agent had asked him to verify what Mr. DeLozier had allegedly said to him a few days earlier, he had told the agent that the alleged statement “wasn't nowhere in the range of what was said.” Id. at 83. On cross-examination Broades repeated that the agent who wrote the report had lied about what he had told the agent. But on redirect Broades admitted that Mr. DeLozier had said, consistent with the report, “[I]f it would have been black people the[y're] saying that I killed, I would have said I done it and pleaded guilty to it.” Id. at 96.

One of Mr. DeLozier's cellmates, Tony Loving, testified that he recalled a shouting match between Mr. DeLozier and Broades on the day of the alleged incident, but he said that the two were “just calling each other names back and forth,” id. at 104. He said: “I never heard Mr. DeLozier say he'd kill anyone. Or had killed anyone.” Id. at 105. He also testified that a person standing at the pivot point of the hallway could not see a face in the Thunderdome's bean hole. For almost a month (though not at the time of the incident) Loving had been a jail trustee, which allowed him, like Mussett, to walk the halls. He said that when a cellblock door near the Thunderdome was open, it would block the view of the bean hole from the pivot point, and that the cellblock door was “always open.” Id. at 107. He did not, however, say whether a face in the bean hole would have been visible if the door had been closed.

On cross-examination the State elicited that Loving had two prior felony convictions and that he had not paid attention to every argument between Mr. DeLozier and Broades. Then, in response to the trial judge's question whether he had ever heard Mr. DeLozier threaten Broades, Loving contradicted some of his earlier testimony, saying that Mr. DeLozier had told Broades “that he would kill his black ass.” Id. at 115. He added that Mr. DeLozier had “said something about killing him. Said something about, If I would have killed anybody it would have been a nigger....” Id. at 117.

The State called two law-enforcement officers in rebuttal. OSBI Agent David Cathey testified that Broades had told him that Mr. DeLozier had said, “ ‘You motherfucker, I killed two people before. What makes you think I'm afraid to kill a nigger?’ ” Id. at 129. Cathey said that he had quoted the words that Broades had used during the interview, which were “almost identical” to those reported by Mussett. Id. On cross-examination Cathey admitted that he had not recorded the interview, had not asked Broades to sign the statement, and had not shown Broades the report after it had been transcribed. Next, the State called McCurtain County Sheriff Richard McPeak, who testified that a person standing at the pivot point could “[l]ook around the corner at the six-man cell, and look right here at this Bean Hole and see somebody's face in that Bean Hole. I've stood there several times and looked at them before.” Id. at 138.

In his findings of facts and conclusions of law, the trial judge concluded that “[f]ailing to call Broades as a witness ... constituted sound trial strategy,” R. Vol. 14, Doc. 51 at 9 (Evidentiary Hr'g-Findings of Fact and Conclusions of Law, Sept. 17, 1998), and did not affect the outcome of the proceeding. The judge said that both Broades and Loving gave inconsistent, impeachable testimony. The trial judge was likewise unpersuaded by the photograph that purportedly contradicted Mussett's assertion that he had seen Mr. DeLozier's face in the bean hole. He said that it “clearly shows a portion of Mrs. Castillo's face in the bean-hole.” Id. at 15. The judge concluded:

Admissible evidence to support th[e] allegation [that Perrine had failed to present evidence that Mussett could not have visually identified Mr. DeLozier through the bean hole] did not exist and was not available to [Perrine]. Appellate counsel fails to identify any witness with a basis of knowledge to support defendant's theory. Photographic evidence was not available to support this theory either, as defendant's most probative photograph (... the only photo taken from where Mussett was standing and looking at a face in the beanhole) does not support appellate counsel's theory. Even testimony by Investigator Castillo would have been impeached by her own photograph and the testimony of the Sheriff.

...

Failure to present such a witness or photograph had no effect on the trial proceedings nor could it have impacted the jury's verdict. Id. at 17.

2. OCCA Opinion

The OCCA opinion addressed each of the ineffective-assistance claims argued by Mr. DeLozier in this court, except for the claims regarding the penalty phase, and affirmed his conviction and sentence. Mr. DeLozier's petition for a writ of certiorari was denied by the United States Supreme Court. See DeLozier, 528 U.S. 1023, 120 S.Ct. 535.

B. Application for Postconviction Relief

On December 11, 1998, Mr. DeLozier filed an application for postconviction relief with the OCCA. Pertinent to this appeal, he argued that Perrine had been ineffective in failing to present evidence of Mr. DeLozier's drug addiction and drug-induced impairment as mitigating factors in the penalty phase of his trial. In support of the application Mr. DeLozier submitted a report of a psychological examination by Dr. Jeri Fritz, a licensed clinical psychologist. The report said that use of methamphetamine, a central-nervous-system stimulant, could cause “irritability, insomnia, memory loss, confusion, anxiety, aggression, as well as serious physical problems including cardiac and brain damage.” R. Vol. 19, Ex. 13 at 11. “Prolonged use of methamphetamine,” it continued, “can create symptoms that resemble psychiatric diagnoses and are characterized by hallucinations, repetitive behaviors, and paranoia, which can produce suicidal or homicidal thoughts.” Id. Although earlier tests of Mr. DeLozier had not revealed any “gross neuropsychological impairment,” id. at 8, [t]he effect of the combination of a prolonged methamphetamine binge mixed with central nervous system depressants would most[ ] likely have meant that Mr. DeLozier would have been in the highly dangerous “tweaking” stage while at the Tate camp. He may have most likely been irritable, confused, hyperaroused, agitated, and paranoid. His behavior would probably have been unpredictable with a high potential for unprovoked violence, id. at 12. Mr. DeLozier contended that Perrine should have investigated and developed such mitigating evidence.

In addition, Mr. DeLozier claimed that Perrine had been ineffective for waiting until after the guilty verdict to interview members of Mr. DeLozier's family for potentially mitigating evidence. And appellate counsel had been ineffective, according to Mr. DeLozier, because she had failed to claim that Perrine had been ineffective for not presenting mitigating evidence.

The OCCA rejected Mr. DeLozier's claims. His claims with respect to Perrine were procedurally barred, it said, because he had not raised them on direct appeal and his claims did not “turn on facts or information unavailable at the time of his direct appeal.” DeLozier v. State, No. PC 98-517, slip op. at 6 (Okla.Crim.App. April 28, 1999) (internal quotation marks omitted) (R. Vol. 14, located between Docs. 64 and 65). Regarding his claim of ineffective assistance of appellate counsel, the court applied the test set forth in Walker v. State, 933 P.2d 327 (Okla.Crim.App.1997), overruling recognized by Harris v. State, 167 P.3d 438 (Okla.Crim.App.2007), and denied the claim because “[h]e ha[d] not shown appellate counsel breached any duties owed to him, or that appellate counsel's judgment was unreasonable under the circumstances or did not fall within the wide range of professional assistance.” DeLozier, No. PC 98-517, slip op. at 7-8 (internal quotation marks omitted).

C. § 2254 Application

On August 31, 2000, Mr. DeLozier filed his application for relief under 28 U.S.C. § 2254. Together with nine other claims for relief, he raised an ineffective-assistance-of-counsel claim, advancing the same arguments that he had made before the OCCA on direct appeal and in his application for postconviction relief. The district court rejected his arguments but granted him a COA with regard to his ineffective-assistance-of-counsel claim.

III. DISCUSSION

A. Standard of Review

Because Mr. DeLozier filed his application under 28 U.S.C. § 2254 after the effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA), the provisions of that statute apply. Malicoat v. Mullin, 426 F.3d 1241, 1246 (10th Cir.2005). AEDPA establishes deferential standards of review for state-court factual findings and legal conclusions. “AEDPA ... mandates that state court factual findings are presumptively correct and may be rebutted only by ‘clear and convincing evidence.’ ” Saiz v. Ortiz, 392 F.3d 1166, 1175 (10th Cir.2004) (quoting 28 U.S.C. § 2254(e)(1)). As for legal conclusions, if the federal claim was adjudicated on the merits in the state court, we may only grant federal habeas relief if the habeas petitioner can establish that the state court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Id. (quoting 28 U.S.C. 2254(d)(1) and (2)). As we have stated:

Under the “contrary to” clause, we grant relief only if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the [Supreme] Court has on a set of materially indistinguishable facts. Under the “unreasonable application” clause, relief is provided only if the state court identifies the correct governing legal principle from the Supreme Court's decisions but unreasonably applies that principle to the facts of the prisoner's case. Thus we may not issue a habeas writ simply because we conclude in our independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable. Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir.2004) (brackets, citations, and internal quotation marks omitted).

B. Ineffective Assistance of Trial Counsel

Mr. DeLozier contends that he was denied effective assistance of trial counsel because (1) counsel failed at voir dire to protect his right to be tried by an impartial jury; (2) counsel failed to seek to prohibit disclosure of his prior convictions before eliciting them himself on direct examination; (3) counsel did not call Michelle Tate and Bubba Oliver as witnesses; (4) counsel did not thoroughly impeach Nathaniel Madison's testimony; (5) counsel did not properly and effectively investigate and adduce testimony to counter Mussett's testimony that he had heard Mr. DeLozier's boast of having committed two murders; (6) counsel failed to object to the State's comment on his pretrial silence; (7) counsel did not object to the State's cross-examination of him and its improper arguments to the jury; (8) counsel did not properly and effectively investigate, prepare, and adduce mitigating evidence for the penalty phase; and (9) the cumulative effects of counsel's deficient acts rendered counsel's assistance ineffective.

To prevail on an ineffective-assistance-of-counsel claim, Mr. DeLozier must establish (1) that his “counsel's representation fell below an objective standard of reasonableness,” Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and (2) that there is “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different,” id. at 694, 104 S.Ct. 2052. When reviewing the guilt stage of the trial for prejudice, “the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Id. at 695, 104 S.Ct. 2052. With respect to a death sentence, “the question is whether there is a reasonable probability that, absent the errors, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Id. Our review is “highly deferential” and we “indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. at 689, 104 S.Ct. 2052 (internal quotation marks omitted).

1. Voir Dire

Mr. DeLozier claims that Perrine erred by failing to protect his right to be tried by an impartial jury. During voir dire the trial judge informed the prospective jurors that under Oklahoma law a person convicted of first-degree murder could be punished by death, imprisonment for life with no parole, or imprisonment for life. Four prospective jurors initially indicated that they could not consider the punishments of life in prison or life in prison without parole. Perrine unsuccessfully challenged one for cause, and he used peremptory challenges to strike that juror and another of the four. The other two sat on the jury. Mr. DeLozier contends that Perrine should have challenged for cause the three unchallenged jurors and should have used peremptory strikes to exclude the two who sat on the jury. He also contends that Perrine did not adequately preserve for appeal the trial judge's error in denying his one challenge for cause.

“[T]he proper standard for determining when a prospective juror may be excluded for cause because of his or her views on capital punishment ... is whether the 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 v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985) (internal quotation marks omitted). We discuss each prospective juror in turn.

Juror 14 initially stated, “[A]nyone that has gone in and killed somebody and if it's proven without a doubt whatsoever, no question whatsoever that they did do it then I think they deserve the death penalty.” R. Vol. 7 at 281. But when asked by the court whether she could give “fair consideration to life in prison and life in prison with no parole,” she said that she could. Id. at 282-83. Perrine's challenge for cause was overruled, but he later removed this prospective juror with a peremptory strike.

The exchange between Juror 18 and Perrine was as follows: MR. PERRINE: Can you imagine a situation where two people were killed and you find somebody guilty of those murders where you give them a life sentence? JUROR 18: No. MR. PERRINE: What I'm asking is it possible to give somebody a life sentence in your mind could you vote for it and can you perceive of any type of situation when somebody has killed two people or been involved in the killings and still give them a life sentence and think that was appropriate? JUROR 18: Yeah. MR. PERRINE: That's all we want to know is can you consider all three punishments as a possible? JUROR 18: Yes. MR. PERRINE: Final conclusion? JUROR 18: Yes. R. Vol. 8 at 325-26. Perrine did not challenge Juror 18 for cause and he sat on the jury.

Juror 41 initially stated that he would have difficulty giving fair consideration to life in prison without parole: THE COURT: [C]an you give fair consideration to recommending the death penalty? JUROR 41: Fair consideration? THE COURT: Yes, sir. JUROR 41: Yeah. THE COURT: Can you also give fair consideration to life in prison w[ith] no parole and to life in prison? JUROR 41: Not life in prison with no parole. THE COURT: You're telling me you cannot even fairly consider that? JUROR 41: Well, I don't like it.... ... THE COURT: [W]hat would be required of you would be that and this goes to my question, is if you found the defendant guilty of murder in the first degree beyond a reasonable doubt and if you felt like it was warranted under the facts and circumstances of the case then can you consider-number one, can you consider, fairly consider, the death penalty? JUROR 41: Yes, sir. THE COURT: You could on that. Now can you also fairly consider life with no parole and life in prison if you are directed by the Court that you should give fair consideration or you must give fair consideration to those punishment options? JUROR 41: Yes, sir, if that's what your directions are. THE COURT: You could follow that? JUROR 41: Yes, sir. I don't like it. THE COURT: I understand. Now that's some of the things that when I went over instructions with you earlier about can you accept and follow the law whether you like it or not and this is not the place to change the law. But I'm sure the attorneys may have some follow-up questions they'd like to ask you about that. Id. at 511-13. Perrine did not challenge Juror 41 for cause and he sat on the jury.

Juror 49 similarly seemed to modify her views under questioning: THE COURT: [C]ould you give fair consideration to recommending the death sentence? JUROR 49: Yes, I could. THE COURT: Could you also give fair consideration to life in prison with no parole and life in prison? JUROR 49: No. THE COURT: You could not even fairly consider those options? JUROR 49: I would really, really have to think about it. THE COURT: Well, that's why we're here.... My question is could you fairly consider each of the three punishment options? JUROR 49: I probably could. I would really have to think about it and just weigh the situation and probably think it out. THE COURT: I understand. Now the attorneys will ... have some questions for you I'm sure about how you feel about the death penalty and so forth, but before we move onto that I want to be real sure, that you are able, you are telling me that you are able under those circumstances to consider not only the death penalty but also to give fair consideration to life in prison with no parole and life in prison? Can you fairly consider each of those? JUROR 49: It would be real hard. THE COURT: I understand it would be hard. JUROR 49: That's just how I feel. THE COURT: There's nothing easy about being a juror. I understand. But I need you to tell me can you give- JUROR 49: I really couldn't give you an honest answer. THE COURT: Is there any set of circumstances in the case of a murder in the first degree, any set of facts and circumstances that you feel like you could warrant or justify a life sentence or a life with no parole sentence as opposed to a death sentence? JUROR 49: There could be circumstances. THE COURT: Once you heard the evidence in this case could you fairly consider those circumstances and give fair consideration to those two punishment options? JUROR 49: I guess I could; yes. Id. at 464-65. The prosecutor then asked whether, if certain prerequisites for imposing the death penalty were not met, the juror would “have any problem returning a verdict of life or life without parole.” Id. at 466. Juror 49 said, “Probably not; I could probably.” Id. Perrine then questioned the juror: MR. PERRINE: If [the government does not] convince you beyond a reasonable doubt that any of [the] aggravating circumstances exist you're not even supposed to consider the death penalty. Do you think you could do that? JUROR 49: I probably could. MR. PERRINE: Now the Bible says something about an eye for an eye? JUROR 49: Yes. MR. PERRINE: Sounds like that's what you believe? JUROR 49: I do believe that, yes. MR. PERRINE: That may be fine in your religious beliefs, but when you're in a courtroom you have to set aside that feeling and follow the law. Is that possible? JUROR 49: Yes. Id. at 467-68. Perrine did not challenge Juror 49 for cause, but used a peremptory strike to remove her. See id. at 528.

On direct appeal the OCCA ruled that Perrine had not been ineffective with respect to these four prospective jurors. “Generally, an attorney's actions during voir dire are considered to be matters of trial strategy, which cannot be the basis of an ineffective assistance claim unless counsel's decision is so ill chosen that it permeates the entire trial with obvious unfairness.” Neill v. Gibson, 278 F.3d 1044, 1055 (10th Cir.2001) (brackets, ellipses, and internal quotation marks omitted). Mr. DeLozier has failed to make such a showing. A reasonable attorney could have found Jurors 18 and 41 acceptable and Juror 49 not challengeable for cause. The OCCA's decision was neither contrary to, nor an unreasonable application of, clearly established federal law. (As for Juror 14, Perrine adequately preserved for appellate review his challenge for cause; the OCCA addressed, and rejected, the argument.)

2. Prior Convictions

Mr. DeLozier testified on direct examination that he had two prior felony convictions-one for mistreating a police dog and another for killing a police dog. He contends that Perrine was ineffective for failing to seek to prohibit disclosure of his convictions on cross-examination before eliciting them himself on direct examination. Under Oklahoma law, evidence of prior felonies “shall be admitted [for the purpose of attacking the credibility of a witness] if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused.” Okla. Stat. tit. 12, § 2609. Rather than waiting for the prosecutor to elicit a conviction on cross-examination, however, defense counsel may decide to attempt to reduce the sting of the evidence by introducing it on direct examination. See Lamb v. State, 756 P.2d 1236, 1238 (Okla.Crim.App.1988) (“This Court has been unwilling to say that direct examination about prior felony convictions was not a viable trial strategy.”). Although Mr. DeLozier acknowledges that this may be a sensible strategy, he argues that Perrine should not have pursued it without first trying to prohibit disclosure of the evidence through a pretrial motion in limine.

The OCCA reviewed this claim on the merits on direct appeal. It held that “[t]rial counsel was not ineffective for failing, in limine, to prevent the disclosure of DeLozier's prior convictions,” calling “[t]he basis for this argument ... tenuous at best.” DeLozier, 991 P.2d at 32. We must defer to the OCCA's evaluation of the admissibility of impeachment evidence under state law. See Boyd v. Ward, 179 F.3d 904, 912 (10th Cir.1999) (“[W]e defer to state court determinations of state law.”). Of course, counsel is not ineffective for failing to make a motion that would not succeed. See Sperry v. McKune, 445 F.3d 1268, 1275 (10th Cir.2006). Given the unlikelihood of a successful motion in limine, the OCCA's rejection of this ineffective-assistance claim was neither contrary to, nor an unreasonable application of, clearly established federal law. See 28 U.S.C. § 2254(d).

3. Failure to Call Witnesses

Mr. DeLozier contends that Perrine was ineffective for failing to call Michelle Tate and Bubba Oliver as witnesses. We first address Tate.

Mr. DeLozier asserts that Tate's testimony would have corroborated his defense that Morgan and Bullard were alive after the first trip to the Morgan camp. In an interview following the murders, she told an OSBI agent

When [Damon Tate, Shawn Smith, and I] arrived at the [Tate] bus I saw MICHAEL DELOZIER standing on the driver['s] side of a turquoise blue Chevrolet pickup truck. The pickup had just stopped and BO and NATHANIEL were standing on the passenger side.

...

[Mr. DeLozier] said that he had borrowed the pickup truck. NATHANIEL told me they were going to take it back at least close enough they could find it. NATHANIEL said they had got the stuff from the lake. R. Vol. 3 at 301 (emphasis added). According to Mr. DeLozier, the italicized they in Nathaniel's statement to Tate refers to Morgan and Bullard and proves that the two men were alive after the first trip to the Morgan camp, as he testified.

“Generally, the decision whether to call a witness rests within the sound discretion of trial counsel.” Jackson v. Shanks, 143 F.3d 1313, 1320 (10th Cir.1998). Mr. DeLozier has failed to establish that Perrine's decision not to call Tate as a witness was unsound. Nathaniel's statement to Tate, which, as hearsay, would have been admissible solely to impeach Nathaniel's testimony, see Okla. Stat. tit. 12, § 2801, was ambiguous. The “they” who “could find” the truck may have been law-enforcement officers or relatives of the victims, as well as the victims themselves. More importantly, there would be no reason to assume that Nathaniel was telling the truth. After all, he did not contradict Mr. DeLozier's statement to Tate that the three men had “borrowed” the truck. Nathaniel apparently felt no urge to expose the lie to Tate. The OCCA ruled that Perrine's decision not to call Michelle as a witness was not deficient performance. DeLozier, 991 P.2d at 32. Given the marginal probative value of Tate's testimony, we hold that the OCCA's decision was not an unreasonable application of, or contrary to, clearly established federal law.

As for calling Bubba Oliver, Mr. DeLozier contends that Bubba would have (1) contradicted Nathaniel's testimony that Mr. DeLozier shot Morgan and Bullard on the first trip to the Morgan camp, and (2) corroborated his and Wooten's testimony that gunshots were fired, and the fires started, by someone other than Mr. DeLozier after he had returned (without the Madisons) to the Tate bus. There is support in the record that Bubba could have provided evidence on the first subject: In an interview with the OSBI, Bubba gave the following account: A short time after they got the [Morgan] pickup unloaded, [Damon] TATE, MICHELLE and SHAWN SMITH left in TATE's pickup. [Bubba] then asked NATHANIEL MADISON if they had killed the men at the camp. NATHANIEL replied to [Bubba] that they didn't kill them, they changed their minds when they got there and had just stolen some of the stuff from the camp. R. Vol. 4 at 418.

He apparently testified similarly at the preliminary hearing: I asked [Nathaniel] earlier in the bus, you know, did they kill them and he said no that they ... had their stuff loaded up going to leave the next day and he supposedly figured that's what it was all loaded up for and that's what I figured they just got in it and took off, they ... was pretty wasted earlier that day so I figured that was pretty believable you know for them to be asleep. Aplt. Br. at 21-22 (The record does not contain a transcript of the preliminary hearing, but the State does not challenge this quotation in Mr. DeLozier's brief.). If Bubba had so testified at trial, the testimony would have been admissible to impeach Nathaniel. On the second subject, Mr. DeLozier can point to Wooten's testimony-that she, Bubba, and Mr. DeLozier were together when they saw the fire at the Morgan campsite and heard gun shots and an explosion-and assume that Bubba would have testified similarly. Mr. DeLozier asserts that Bubba would actually have been a superior witness to Wooten, contending that Bubba “was much more familiar with the woods than the young Ms. Wooten[,] so he would have been able to provide details as to time, distance, and the sound of gun shots.” Id. at 25. He does not, however, cite to anything in the record on appeal showing Bubba's version of these events.

In any event, even if Perrine had believed that Bubba would testify about the fires and gunshots as described in Mr. DeLozier's brief, it would have been reasonable strategy not to call him as a witness. Bubba had made very incriminating statements during his interview with the OSBI. Contrary to Mr. DeLozier's trial testimony that he had not seriously discussed killing the men at the Morgan camp, Bubba told the OSBI that everyone had discussed killing Morgan and Bullard. Indeed, according to Bubba, Mr. DeLozier said: “ ‘We could sneak through the woods and they could not hear us because of the generator running. We could open the door and blow their heads off.’ ” R. Vol. 4 at 417. After Bubba had tried for two hours to convince Bo, Nathaniel, and Mr. DeLozier that there was no need to kill Morgan and Bullard, someone said, “ ‘Let's go smoke them, come on.’ ” Id. Bubba responded, “ ‘I'm not going. I ain't got the balls to kill anybody,’ ” and stayed at the Tate bus with Wooten. Id. When Nathaniel, Bo, and Mr. DeLozier had returned from the Morgan camp, Bubba expected them to return with news of their having killed somebody and asked both Mr. DeLozier and Nathaniel if they had done so. Rather than deny killing them, Mr. DeLozier admonished Bubba to keep quiet in front of Michelle.

A reasonable attorney could decide that the risk of Bubba's testimony conforming to what was in the OSBI report (or his being impeached by an OSBI witness if his testimony was to the contrary) greatly outweighed any advantage from Bubba's duplicating Wooten's account (which appears credible) and stating that Nathaniel had denied that they had killed anyone when the three men returned to the Tate bus with their loot. The OCCA ruled that Perrine's failure to call Bubba “was not so egregious that it indicates deficient performance, falling outside the wide range of reasonable professional assistance.” DeLozier, 991 P.2d at 32. This ruling was not an unreasonable application of, or contrary to, clearly established federal law.

4. Cross-Examination of Nathaniel Madison

Mr. DeLozier contends that Perrine was ineffective for failing to impeach Nathaniel Madison's testimony more thoroughly by showing inconsistencies with his statements to the OSBI. He points to the following inconsistencies between Nathaniel's trial testimony and his first statement to the OSBI: (1) At trial Nathaniel testified that upon arriving at the Morgan camp, Mr. DeLozier and Bo stepped into the camper and each fired a shot. Several minutes later Morgan stepped out and Mr. DeLozier shot him; neither Mr. DeLozier nor Bo reentered the camper to kill Bullard. In his first statement to the OSBI, however, Nathaniel had said that Morgan and Bullard were ordered out of the camper, that Morgan was shot first, and that Mr. DeLozier and Bo then entered the trailer to shoot Bullard. (2) Nathaniel also testified at trial that he and Bo never left the Tate bus without Mr. DeLozier. Yet in his first statement to OSBI agents he said that in the early morning, after the first trip to the Morgan camp (when Morgan and Bullard were murdered and he, Bo, and Mr. DeLozier stole the truck and the goods), he and Bo left the Tate bus for a short while and returned after Mr. DeLozier, Wooten, and Bubba had left. Mr. DeLozier contends that pointing out such inconsistencies would have weakened Nathaniel's credibility and shown the jury that he and Bo had an opportunity to commit the crimes without Mr. DeLozier.

This court has repeatedly stated that “counsel's decisions regarding how best to cross-examine witnesses presumptively arise from sound trial strategy.” Richie v. Mullin, 417 F.3d 1117, 1124 (10th Cir.2005). Mr. DeLozier has failed to show that the strategy employed here was not sound. Perrine questioned Nathaniel on several inconsistencies between his statements to the OSBI and his testimony. At trial Nathaniel testified that Bo had not stated that he was going to kill Morgan and Bullard and take their belongings, but he did admit that he may have told OSBI agents otherwise in his second interview. Additionally, he testified that the murders occurred on the first trip to the Morgan camp and that he, Bo, and Mr. DeLozier were together on every trip made to the camp. But on cross-examination, Perrine pointed out that Nathaniel had told OSBI agents in his first interview that Mr. DeLozier made a trip to the camp by himself and, when he returned, told Nathaniel and Bo that he had set fire to the campsite. Nathaniel said that he did not remember making that statement; but that if he had, it was a lie. Perrine even got Nathaniel to admit that he was capable of lying under oath. Moreover, when an OSBI agent later testified about Nathaniel's first statement, Perrine elicited from him two things that Nathaniel had said that were contrary to his trial testimony.

Perhaps Nathaniel could have been impeached further with his statements to the OSBI, but emphasizing those statements could produce only limited dividends because they were consistent with his testimony on the essentials: in both statements he asserted that Mr. DeLozier had killed Morgan and Bullard. In any event, Perrine obtained substantial concessions from Nathaniel-in particular, his admissions that he might lie under oath and that he received a great benefit (the lighter sentence) for testifying against Mr. DeLozier. The OCCA ruled that Perrine's failure to impeach Nathaniel at greater length did not constitute deficient performance. See DeLozier, 991 P.2d at 32. This ruling was not an unreasonable application of, or contrary to, clearly established federal law.

5. Impeachment of Jailhouse Confession