Gilson v. Sirmons, 520 F.3d 1196 (10th Cir. 2008) (Habeas).

Background: Petitioner, an Oklahoma state prisoner convicted of first degree child abuse murder and sentenced to death, appealed from an order of the United States District Court for the Western District of Oklahoma, Robin J. Cauthron, Chief Judge, 2006 WL 2320682, which denied his habeas corpus petition.

Holdings: The Court of Appeals, Briscoe, Circuit Judge, held that: (1) conviction for capital murder, based on a divided jury verdict as to whether defendant was guilty of committing the child abuse that led to victim's death, or of permitting such abuse, did not violate petitioner's right to due process; (2) application of Oklahoma's newer injury to child statute to petitioner's case did not result in an ex post facto violation; (3) petitioner was not entitled to an instruction on second degree murder; and (4) court's refusal to allow testimony from defense expert witness concerning credibility of child witnesses was neither unreasonable nor rendered petitioner's trial fundamentally unfair. Affirmed. Henry, Chief Judge, filed opinion dissenting in part.

BRISCOE, Circuit Judge.

Petitioner Donald Lee Gilson, an Oklahoma state prisoner convicted of first degree child abuse murder and sentenced to death, appeals the district court's denial of his 28 U.S.C. § 2254 habeas corpus petition. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

I. BACKGROUND

The pertinent facts of this case were well summarized by the Oklahoma Court of Criminal Appeals (OCCA) in resolving Gilson's direct appeal:

On February 9, 1996, the skeletal remains of eight (8) year old Shane Coffman were found in an abandoned freezer located next to a mobile home formerly rented by his mother, Bertha Jean Coffman. A subsequent search of the mobile home revealed a photograph of [Gilson]. On February 11, 1996, authorities from the Cleveland County Sheriff's Office met with [Gilson] at his mobile home. Living in the mobile home with [Gilson] was Bertha Jean Coffman and her four children, twelve (12) year old Isaac, ten (10) year old Tia, eleven (11) year old Tranny and seven (7) year old Crystal. The children were immediately removed from the trailer and taken to Children's Hospital in Oklahoma City. [Gilson] and Bertha Jean Coffman were detained by the deputies.

Examinations of the children conducted in the emergency room revealed Tranny and Crystal were healthy with a few small scars on each. However, Isaac and Tia were malnourished and emaciated. Tia's feet were swollen and she had difficulty walking. She had gangrenous tissue on her right foot. On her right buttocks was a large open ulcer. Isaac was in the worst condition, emaciated and needing assistance to walk. He was malnourished and had several injuries, in various stages of healing, and scars throughout his body.

In their initial interview with police, [Gilson] and Coffman both denied any knowledge as to the manner in which Shane died. They stated he had run away from home during the early part of November and they had found him dead in the weeds near Coffman's trailer. They decided that putting him in the freezer would be the best thing to do. However, in subsequent interviews both [Gilson] and Coffman recanted this story and admitted to knowing more about the circumstances surrounding Shane's death. From interviews with [Gilson], Coffman, the Coffman children and other witnesses, the following picture emerged.

The four Coffman children mentioned above, along with the murder victim in this case, and another brother, thirteen (13) year old Jeremy, lived with their mother Bertha Jean Coffman, in a mobile home. During the fall of 1994, the Cleveland County Sheriff's Department received complaints of sexual abuse committed upon one of the Coffman children by Coffman's then boyfriend (not [Gilson] ). The investigating detective visited Coffman's mobile home and found the conditions deplorable and unsanitary. The children were removed from Coffman's home until conditions improved. It was about this time that Bertha Jean Coffman met [Gilson]. They were both working as janitors at Little Axe Schools. [Gilson] fixed up Coffman's trailer so she could get her children back. The children were subsequently returned to their mother.

Thereafter, [Gilson] began spending more and more time with Coffman and was given the authority to discipline the children. In June of 1995, the oldest child, Jeremy, ran away [as a result of his mistreatment by Gilson]. The next month, Coffman and her children walked to [Gilson]'s trailer for a visit and never returned to their home. Whatever possessions they had were left at Coffman's trailer. [Gilson]'s trailer had only 2 bedrooms; [Gilson] and Coffman slept in one room and the other room contained [Gilson]'s leather working material. As a result, all five children were forced to sleep on blankets in the living room. They were not permitted to go outside, but had to remain inside the trailer at all times. The children were taken out of school and claimed to be homeschooled by Coffman, although no evidence of homeschooling was ever found. The children were also not permitted to go to church.

[Gilson] and Coffman both disciplined the children. This discipline took several forms, including standing at the wall, sometimes for hours at a time, and beatings with a bamboo stick, a belt, boards, wooden rulers, metal ruler, and a bullwhip. The children were also made to sit in the bathtub, often for hours at a time. Food was withheld, particularly from Isaac and Tia, as punishment. The abuse inflicted upon Shane Coffman resulted in his death on August 17, 1995.

At trial, Tranny testified that he last saw his brother Shane sitting in the bathtub. Tranny said Shane had gotten in trouble for going to the bathroom on the living room carpet. He said that before Shane was put into the bathtub, [Gilson] beat him with a board. Tranny said Shane received several beatings with the board, all over his body. After the beating, [Gilson] put Shane into the bathtub. After a couple of hours, Shane was let out of the bathtub. He then got into trouble again. Tranny said [Gilson] and Coffman then took Shane outside the trailer. Tranny did not know what happened to Shane while he was outside, but he said he could hear Shane screaming. [Gilson] and Coffman carried Shane back inside the trailer. Tranny said Shane's arms were swollen, he was breathing “weird”, and he had a soft spot on his head. Pursuant to [Gilson]'s “house rules”, the other children were not permitted to talk to Shane. [Gilson] then carried Shane to the bathroom and placed him in the bathtub. Tranny said he and the other children heard a few more screams and banging noises. He said both [Gilson] and Coffman were with Shane when they heard the screams. The children then decided to try and go to sleep. He said they were awakened some time later by [Gilson] and Coffman and told that Shane had run away, and that [Gilson] and Coffman were going to look for him.

Isaac testified [Gilson] first sent Shane to stand at the wall for wetting the bed. While he was standing at the wall, [Gilson] hit him with a board. [Gilson] and Coffman eventually took Shane to the bathroom and put him in the bathtub. Isaac said [Gilson] made all the other children go to the bathroom and tell Shane what a bad boy he was. He said that both [Gilson] and Coffman remained in the bathroom with Shane while the children watched television. He said they could hear Shane crying. Isaac further stated that later that night, [Gilson] and Coffman told them Shane had run away.

In a statement made to police shortly after his arrest, and admitted at trial as State's Exhibit 2, [Gilson] stated that on August 17, 1995, he had put Shane in the bathtub as punishment. [Gilson] said he was trying to teach Shane a lesson, so he spanked him and put him in the bathtub where he was to remain until he stopped the disruptive behavior. He said the water in the bathtub was initially warm to help the pain from the spanking, but then he changed it to a cold bath. [Gilson] said Shane was crying as Coffman talked to him about his behavior. He said he then laid down on the couch to watch television with the rest of the kids where he eventually fell asleep. Coffman was in and out of the bathroom talking to Shane before she went to the bedroom to lay down. A while later, Coffman came into the living room in tears and told [Gilson] to come to the bathroom. He said Coffman had taken Shane out of the bathtub and laid him on the floor. Shane's lips were blue and he was not breathing. [Gilson] said he performed CPR for approximately an hour to an hour and half. When his efforts were unsuccessful, [Gilson] took the comforter off of his bed, wrapped Shane up and placed him back in the bathtub.

[Gilson] said he and Coffman discussed what to do next. He said Coffman was worried that the Department of Human Services (hereinafter DHS) would take her kids away if the authorities found out Shane had died. So they left Shane in the bathtub, waiting until the other children had gone to sleep to remove him from the house. [Gilson] said they carried Shane outside and placed him in the back of a truck. He said they discussed “just dumping him somewhere” or “bury[ing] him out in the middle of the boonies.” But they decided neither of those options were right and “even though he wasn't alive he would still be part of the family bein (sic) on her property, ... thought about putting him in the freezer, it wouldn't hurt him and then concreting it over. And making a flower bed out of it.” So [Gilson] and Coffman took Shane's body to the freezer located next to Coffman's trailer and put him inside. [Gilson] said he and Coffman told the other children Shane had run away.

Bertha Jean Coffman testified at trial to disciplining her children by making them stand at the time-out wall, and spanking them, only on their bottoms, with a cloth belt or a wooden paddle. She also testified that [Gilson] disciplined her children by spanking them with the wooden paddle, but at various places on their bodies. Coffman stated [Gilson] had a quick temper and did not want the children tearing up his trailer.

In her statement to police on August 17, 1995, Coffman said she and [Gilson] found Shane sexually assaulting his younger brother. As punishment, they made him stand at the time-out wall, then Coffman paddled him. When Shane refused to stand at the wall, Coffman spanked him again. When Shane still would not do as Coffman directed, she screamed at him. Shane then fainted. When Coffman could not get a response from Shane, she put a piece of ice on his chest. When he still did not respond, Coffman picked him up and took him to the bathroom where she placed him in a tub of cool water. She said Shane eventually came to and wanted to get out of the tub. She said he slipped and hit his head on the faucet. Coffman stated she pushed on Shane's shoulders to keep him in the bathtub. They struggled, and the shower doors were knocked off their railing. Coffman called for [Gilson] to come and fix the doors. [Gilson] left the living room where he had been watching television with the other children and put the doors back on their railings. [Gilson] left the bathroom. Coffman and Shane struggled again. [Gilson] returned to the bathroom to see what the noise was about. He saw the doors had fallen off again so he took them and set them on the floor. Coffman said she remained in the bathroom with Shane while [Gilson] went back to the living room.

After a while, [Gilson] stepped into the bathroom and told Coffman to leave Shane alone for a while. So Coffman left the bathroom to get Shane dry clothes and prepare lunch. When she saw that [Gilson] had already prepared lunch, Coffman laid down on her bed. She was awakened by a noise in the bathroom and saw [Gilson] coming out of the bathroom. When asked how Shane was, [Gilson] responded he was fine and that he was blowing bubbles. Coffman sat down to have a cup of coffee, then decided to check on Shane. She found him quiet but not breathing. She called for [Gilson] and they pulled Shane out of the bathtub and gave him CPR. She said they waited until the other children were asleep before taking the body to the freezer. Coffman also stated that once Shane died, Isaac and Tia began receiving the brunt of the discipline from [Gilson].

Shane's skeletal remains were not found until approximately six (6) months after his death. Therefore, the medical examiner, Dr. Balding, was not able to make a determination as to the cause of death. The medical examiner did testify to injuries to certain bones which were evident upon his examination of the remains. The injuries included a fracture to the right jawbone. The injury was determined to be “acute” as it showed no signs of healing, and therefore was probably less than a week old at the time of death. Another fracture was also found on the left side of the skull. Dr. Balding testified the two fractures were the result of two different blunt force blows. A tooth was missing from the right jaw. Fractures were also found in the collarbone, shoulder blades, numerous ribs, both legs, and several vertebrae in the spine. All the fractures were ruled acute, and not the result of normal childhood play.

[Gilson] and Bertha Jean Coffman were jointly charged with first degree murder by child abuse in the death of Shane Coffman, and one count of injury to a minor child for the abuse suffered by each of the remaining children. They were also jointly charged with conspiracy to unlawfully remove a dead body and unlawful removal of a dead body. [The State filed a bill of particulars asserting that Gilson and Coffman should be sentenced to death in connection with the first degree murder charge on the basis of two aggravating factors: (1) that the murder was especially heinous, atrocious and cruel; and (2) the existence of a probability that they would commit criminal acts of violence that would pose a continuing threat to society.] On August 20, 1997, approximately eight (8) months prior to [Gilson]'s trial, Coffman entered Alford [footnote omitted] pleas to all counts. [Gilson] was subsequently tried and convicted on all charges except he was found not guilty of committing injury to a minor child as to Jeremy, Tranny and Crystal. Gilson v. State, 8 P.3d 883, 895-98 (Okla.Crim.App.2000) ( Gilson I ) (internal paragraph numbers omitted). The jury, in connection with the two injury to a minor child convictions, concluded Gilson's sentence should be life imprisonment. At the conclusion of the second-stage proceedings, which were conducted as a result of Gilson's murder conviction, the jury found the existence of both aggravating factors alleged by the State and recommended a death sentence. Gilson was formally sentenced by the state trial court at a later hearing.

Gilson filed a direct appeal challenging his convictions and sentences. On July 26, 2000, the OCCA, with one judge dissenting, affirmed Gilson's convictions and sentences. Gilson I, 8 P.3d at 929. The OCCA subsequently denied Gilson's request for rehearing. Gilson filed a petition for writ of certiorari with the United States Supreme Court. That petition was denied by the Supreme Court on April 2, 2001. Gilson v. Oklahoma, 532 U.S. 962, 121 S.Ct. 1496, 149 L.Ed.2d 381 (2001).

While his direct appeal was still pending before the OCCA, Gilson, in accordance with Oklahoma procedural rules, filed an application for post-conviction relief with the OCCA. The OCCA denied the application for post-conviction relief on September 1, 2000, in an unpublished opinion.

On August 20, 2001, Gilson initiated this federal habeas corpus action by filing a pro se motion to proceed in forma pauperis and a motion for appointment of counsel. Gilson's motion for appointment of counsel was granted and, on March 29, 2002, Gilson filed his federal habeas corpus petition asserting eleven grounds for relief. ROA, Doc. 13. On August 9, 2006, the district court issued an opinion and order denying Gilson's petition. Id., Doc. 29. The district court granted Gilson a certificate of appealability on six issues, and we subsequently granted Gilson a certificate of appealability on one additional issue.

*****

Enmund/Tison violation

Gilson next argues, citing the Supreme Court's decisions in Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140, (1982), and Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987), that the imposition of the death penalty violates his Eighth Amendment rights because the jury in his case did not unanimously find either that he personally participated in the killing of Shane Coffman or that he possessed the requisite intent to make him eligible for the death penalty.

a) The decisions in Enmund and Tison

In Enmund and Tison, the Supreme Court explored the degree of culpability necessary for the imposition of capital punishment in cases involving felony-murder convictions. In doing so, both cases looked to the Cruel and Unusual Punishments Clause of the Eighth Amendment, which prohibits “punishments which by their excessive length or severity are greatly disproportioned to the offenses charged.” Enmund, 458 U.S. at 788, 102 S.Ct. 3368 (internal quotation marks omitted).

In Enmund, the Court “explicitly dealt with two distinct subsets of all felony murders....” Tison, 481 U.S. at 149, 107 S.Ct. 1676. “At one pole was [defendant] Enmund himself; the minor actor in an armed robbery, not on the scene, who neither intended to kill nor was found to have had any culpable mental state.” Id. “The Court held that capital punishment was disproportional in these cases,” and thus violative of the Eighth Amendment. Id. at 150, 107 S.Ct. 1676. At the other pole was “the felony murderer who actually killed, attempted to kill, or intended to kill.” Id. The Court held that the Eighth Amendment posed no hurdle to the imposition of capital punishment in such cases.

In Tison, the Court expanded on the principle of proportionality by addressing two related cases that fell between the categories of felony-murder expressly addressed in Enmund. The petitioners in Tison, two brothers, had assisted their inmate father and another convict in escaping from prison. During the course of the escape, the group's car broke down and one of the brothers flagged down a passing car which contained a family of four. The group proceeded to kidnap and rob the family. While the brothers were nearby, the father and the other convict shot and killed all four members of the kidnapped family. Neither brother attempted to assist the victims before, during, or after the shooting. Moreover, both brothers continued on with the two escapees and the group was not apprehended until several days later. Id. at 151-52, 107 S.Ct. 1676.

The Supreme Court concluded that although neither petitioner actually killed or specifically intended to kill any of the victims, the Eighth Amendment did not prohibit them from being subjected to the death penalty. In reaching this conclusion, the Court noted that “[a] critical facet of the individualized determination of culpability required in capital cases is the mental state with which the defendant commits the crime.” Id. at 156, 107 S.Ct. 1676. “Deeply ingrained in our legal tradition,” the Court noted, “is the idea that the more purposeful is the criminal conduct, the more serious is the offense, and, therefore, the more severely it ought to be punished.” Id. In turn, the Court noted that “the reckless disregard for human life implicit in knowingly engaging in criminal activities known to carry a grave risk of death represents a highly culpable mental state, a mental state that may be taken into account in making a capital sentencing judgment when that conduct causes its natural, though also not inevitable, lethal result.” Id. at 157-58, 107 S.Ct. 1676. Ultimately, the Court held that “major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement.” Id. at 158, 107 S.Ct. 1676.

Although not cited by Gilson, the Supreme Court's decision in Cabana v. Bullock, 474 U.S. 376, 106 S.Ct. 689, 88 L.Ed.2d 704 (1986), is also relevant to our Enmund/Tison analysis. Cabana was a procedural case in which the Court “determine[d] in whose hands the [ Enmund/Tison-mandated] decision that a defendant possesses the requisite degree of culpability properly lies.” 474 U.S. at 378, 106 S.Ct. 689. In addressing that issue, the Court emphasized that its “ruling in Enmund d[id] not concern the guilt or innocence of the defendant” and “establishe[d] no new elements of the crime of murder that must be found by the jury.” Id. at 385, 106 S.Ct. 689. Continuing, the Court noted that “[t]he decision whether a particular punishment-even the death penalty-is appropriate in any given case is not one that [it] ha[d] ever required to be made by a jury.” Id. To the contrary, the Court noted, “the decision whether a sentence is so disproportionate as to violate the Eighth Amendment in any particular case, like other questions bearing on whether a criminal defendant's constitutional rights have been violated, has long been viewed as one that a trial judge or an appellate court is fully competent to make.” Id. at 386, 106 S.Ct. 689. Thus, the Court stated, “ Enmund does not impose any particular form of procedure upon the States.” Id. If a criminal defendant's conduct satisfies the Enmund or Tison requirements for imposition of the death penalty, the Court held, “the Eighth Amendment itself is not violated by his or her execution regardless of who makes the determination of the requisite culpability....” Id. In other words, “[a]t what precise point in its criminal process a State chooses to make the Enmund determination is of little concern from the standpoint of the Constitution.” Id. Thus, the Court held, “when a federal habeas court reviews a claim that the death penalty has been imposed on one who” does not meet the Enmund or Tison requirements for imposition of the death penalty, “the court's inquiry cannot be limited to an examination of jury instructions. Rather, the court must examine the entire course of the state-court proceedings against the defendant in order to determine whether, at some point in the process, the requisite factual finding as to the defendant's culpability has been made.” Id. at 387, 106 S.Ct. 689. “If it has,” the Court held, “the finding must be presumed correct by virtue of 28 U.S.C. § 2254(d), ... and unless the habeas petitioner can bear the heavy burden of overcoming the presumption, the court is obliged to hold that the Eighth Amendment as interpreted in Enmund [and Tison ] is not offended by the death sentence.” Id. at 387-88, 106 S.Ct. 689.

b) The OCCA's rejection of Gilson's Enmund/Tison claim

Gilson first raised his Enmund/Tison claim on direct appeal. The OCCA rejected the claim on the merits, stating as follows: [Gilson] contends in his second assignment of error that his death sentence violates the Eighth and Fourteenth Amendments, as well as Article II, § 9, of the Oklahoma Constitution because his conviction under 21 O.S.1991, § 701.7(C), failed to establish eligibility for the death sentence. In the first of several subpropositions, [Gilson] argues the State failed to prove he in fact killed, attempted to kill or was a major participant in a felony showing reckless indifference to human life. He contends that his death sentence can stand only if each of the theories underlying his murder conviction constitutionally justifies the imposition of a capital sentence. The State argues in response that the facts in this case are sufficient to support a finding that [Gilson] was eligible for the death sentence.

Initially we note the record shows that after the verdicts were rendered, defense counsel moved to strike the Bill of Particulars arguing that [Gilson] was no longer constitutionally eligible for the death penalty because the jury failed to find unanimously that he committed any intentional act which led to the death of the victim. This objection has properly preserved the issue for appellate review.

As addressed in Proposition I, the verdict in this case was a general verdict of guilt for first degree murder with the jury disagreeing as to the underlying factual basis. Therefore, we will review that factual basis in light of the applicable law to determine death eligibility.

In Wisdom v. State, 918 P.2d 384 (Okl.Cr.1996), we held that a defendant convicted of First Degree Murder by Child Abuse who actually killed the victim by his/her own hand was eligible for the death sentence. [Gilson] acknowledges this ruling but urges reconsideration. We decline the offer. (citation omitted). Here, the evidence supports a finding that [Gilson] actually killed the victim. [Gilson] participated in beating the victim prior to the time he was taken to the bathroom. [Gilson] was in the bathroom with the victim and Coffman, and after Coffman left the room, was seen exiting the bathroom immediately before Shane was found dead. This evidence certainly renders [Gilson] eligible for the death sentence.

This Court has not previously ruled on whether a defendant convicted of First Degree Child Abuse Murder by permitting child abuse is death eligible. Both [Gilson] and the State direct us to Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987) for the application of the death penalty to a defendant who does not kill by his/her own hand. In Tison, a felony-murder case in which the defendant himself did not kill, the Supreme Court held that a defendant who did not actually commit the act which caused death, but who was a major participant in the felony and who had displayed reckless indifference to human life, may be sufficiently culpable to receive the death penalty. 481 U.S. at 158, 107 S.Ct. at 1688. The Supreme Court stated:

Similarly, we hold that the reckless disregard for human life implicit in knowingly engaging in criminal activities known to carry a grave risk of death represents a highly culpable mental state, a mental state that may be taken into account in making a capital sentencing judgment when that conduct causes its natural, though also not inevitable, lethal result. Id. at 481 U.S. at 157-58, 107 S.Ct. at 1688.

Tison modified the Supreme Court's holding in Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), that the Eighth Amendment forbids the imposition of the death penalty on “one ... who aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed.” Id., 458 U.S. at 797, 102 S.Ct. at 3376.

Although this Court has held that an Enmund/Tison analysis does not apply in the case of the actual killer, (citation omitted), we find it does apply in a case where the defendant was not the actual killer. (citation omitted). In as much as one of the underlying theories of this case is murder by the permitting of child abuse, we apply the analysis used in Enmund and Tison.

Here, the evidence shows [Gilson] was a major participant in the felony. Acting jointly with Coffman, he took Shane outside the trailer and was party to conduct which elicited screams from the child. He and Coffman took Shane back inside the trailer, they both took him back to the bathroom and they both remained with him in the bathroom for periods of time. This evidence clearly supports the conclusion that his participation was major and substantial.

[Gilson] argues that, at worst, his conduct was that of an omission-of failing to protect the victim from a potentially dangerous situation-and not that of knowingly permitting the abuse to occur. To the contrary, [Gilson]'s conduct was not merely the nonperformance of what ought to be done, as in cases of criminal omissions. (citation omitted). His active participation in the abuse occurring inside his small trailer is very different from a passive act of failing to provide what is required by law.

We next determine whether [Gilson] displayed reckless indifference to human life. In discussing this term in Tison, the Supreme Court stated “[a] critical facet of the individualized determination of culpability required in capital cases is the mental state with which the defendant commits the crime.” 481 U.S. at 157, 107 S.Ct. at 1687. The Court further stated:

A narrow focus on the question of whether or not a given defendant “intended to kill,” however, is a highly unsatisfactory means of definitively distinguishing the most culpable and dangerous of murderers. Many who intend to, and do, kill are not criminally liable at all-those who act in self-defense or with other justification or excuse ... On the other hand, some nonintentional murderers may be among the most dangerous and inhumane of all-the person who tortures another not caring whether the victim lives or dies, or the robber who shoots someone in the course of the robbery, utterly indifferent to the fact that the desire to rob may have the unintended consequence of killing the victim as well as taking the victim's property. This reckless indifference to the value of human life may be every bit as shocking to the moral sense as an “intent to kill.” ... (“[I]n the common law, intentional killing is not the only basis for establishing the most egregious form of criminal homicide.... For example, the Model Penal Code treats reckless killing, ‘manifesting extreme indifference to the value of human life,’ as equivalent to purposeful and knowing killing”). Enmund held that when “intent to kill” results in its logical though not inevitable consequence-the taking of human life-the Eighth Amendment permits the State to exact the death penalty after a careful weighing of the aggravating and mitigating circumstances. Similarly, we hold that the reckless disregard for human life implicit in knowingly engaging in criminal activities known to carry a grave risk of death represents a highly culpable mental state, a mental state that may be taken into account in making a capital sentencing judgment when that conduct causes its natural, though also not inevitable, lethal result. Id., at 481 U.S. at 157-58, 107 S.Ct. at 1687-88.

In making the above determination, the Supreme Court also looked to the laws of several states and found that in the states which authorize capital punishment for felony-murder the greater the defendant's participation in the felony murder, the more likely that he acted with reckless indifference to human life. Id., 481 U.S. at 153-54, 107 S.Ct. at 1685-86.

This Court has addressed reckless indifference to human life only as it pertains to those who actually killed. In doing so, we found a reckless indifference to human life turns largely on the facts of the case, but was evidenced in part by the defendant's creation of a desperate situation inherently dangerous to human life. Hain v. State, 919 P.2d 1130, 1146 (Okl.Cr.), cert. denied, 519 U.S. 1031, 117 S.Ct. 588, 136 L.Ed.2d 517 (1996), and the defendant's causing the serious conscious physical suffering and death of the victim. Brown v. State, 989 P.2d 913, 931 (Okl.Cr.1998).

The facts in the present case support a finding that [Gilson] acted with reckless indifference to human life. Acts in which [Gilson] participated outside the trailer caused injury to the child which elicited screams of pain. The child was brought back inside the trailer with swollen arms, a soft spot on his head, and irregular breathing. The victim had to be carried to the bathroom, an act in which [Gilson] again participated. Further acts in which [Gilson] participated inside the bathroom caused the victim to again scream and cry. [Gilson] was aware of the struggle between Coffman and the victim in which the victim was injured and property in the bathroom was damaged.

[Gilson]'s argument focuses on the elements of the offense of permitting child abuse and asserts that terms “willfully” and “knowingly” contained in the statute and jury instruction on first degree murder by permitting child abuse are not the equivalent of reckless indifference for human life. The elements of the offense of first degree murder by permitting child abuse have previously been addressed in this opinion. We found the evidence in this case supported a finding of the existence of those elements beyond a reasonable doubt. Here, we look beyond those elements and find [Gilson]'s conduct illustrated a reckless indifference to human life. The evidence supports a finding that [Gilson] subjectively appreciated that his conduct would likely result in the taking of innocent life. This is sufficient to make him eligible for the death penalty.

In this opinion, we have previously compared the crime of child abuse murder to the crime of felony-murder for purposes of determining sufficiency of the evidence to sustain a conviction. Such a comparison of the two offenses is again warranted during this discussion of the applicability of the death penalty. The eligibility of a defendant convicted of child abuse murder by the permitting of child abuse is similar to that of a non-triggerman convicted of felony-murder. In Hatch, 701 P.2d at 1040, a non-triggerman was sentenced to death for his participation in the underlying felonies. Hatch and co-defendant Ake forced their way into the victim's home, ransacked the home at gunpoint and repeatedly threatened to kill the family of four who occupied the house. Ake instructed Hatch to go outside, turn the car around, and “listen for the sound.” Hatch did as he was told. Ake then shot each family member and fled the scene with Hatch. The two adult victims died while the two children survived. Ake v. State, 663 P.2d 1, 4 (Okl.Cr.1983).

In reviewing Hatch's death sentence, this Court stated: In Enmund, the Supreme Court held that the death penalty cannot be constitutionally imposed against one who is convicted of felony murder for a killing occurring during the course of a robbery who neither kills, does not intend that life be taken, nor contemplates that lethal force will be employed by others. The evidence against appellant was that he entered his victims' home with a shotgun in hand. His confederate entered too with a loaded handgun. Appellant held the victims at gunpoint while Ake looted the home and attempted to rape his victims' twelve year old daughter. Appellant also took a turn attempting to rape her. Appellant frequently threatened the lives of his victims as they lay hog-tied on the floor. After a discussion as to their plan of action, appellant went outside and turned his automobile around while he waited “for the sound”, as Ake had instructed him to do.

We agree with the trial court's finding that “the Defendant Hatch contemplated that a killing was not only possible, but probable and further that lethal force probably be employed.” Therefore, we find that appellant's sentences of death are justified and are in compliance with Enmund and we AFFIRM each. Hatch, 701 P.2d at 1040.

The death sentence for a non-triggerman has also been upheld in other jurisdictions. In Florida v. White, 470 So.2d 1377 (Fla.1985), the defendant and two companions gained entrance to a home under a subterfuge. All three men were armed and wore masks. They tied up the people in the house and ransacked it. When one of the assailants' mask fell from his face, the three assailants discussed killing the victims. The defendant verbally opposed any killing. The two other assailants shot the victims, killing six of the eight. The three assailants then gathered up their loot and returned to the defendant's motel room where the loot was divided. The Supreme Court of Florida found that Enmund did not bar the imposition of the death penalty due to the defendant's presence both before, during and after the murders; his full and active role in capturing, intimidating and guarding the victims; his failure to disassociate himself from either the robbery or the murder while verbally opposing any killing; and the lack of any evidence he acted under coercion.

In Fairchild v. Norris, 21 F.3d 799 (8th Cir.1994), the Eighth Circuit Court of Appeals held the evidence supported a finding that the defendant non-triggerman was eligible for the death penalty. In that case, the defendant and an accomplice kidnapped, raped and killed a woman. The Court found the defendant fully participated in the kidnapping of the victim-followed her to her car, forced her inside at gunpoint, and took money from her purse. Upon arriving at a deserted house, he subsequently raped her. The defendant was outside of the house when the victim was shot by the accomplice. However, the defendant had been present when the gun was initially shown to the victim and death threats were made. The Eighth Circuit found the defendant's participation in the armed robbery, kidnapping and rape; his leaving the victim alone with the armed accomplice, and his failure to be deterred in his conduct by the victim's pleas for mercy were sufficient for a reasonable juror to find that he was a major participant in the felonies and that he acted with reckless indifference to human life.

Accordingly, evidence in the present case of [Gilson]'s full, active and knowing participation in the underlying acts of child abuse inflicted upon Shane, his failure to disassociate himself from those acts of abuse perpetrated by Bertha Coffman, and his failure to either be deterred in his conduct or respond in any positive manner to what surely must have been pleas for mercy from the victim, were sufficient for a reasonable juror to find beyond a reasonable doubt that he was a major participant in the child abuse and that he acted with reckless indifference to human life.

[Gilson] next argues his death sentence should be modified as an Enmund/ Tison analysis was not done by the trial court and it would be improper for this Court to conduct such a review on appeal. In Cabana v. Bullock, 474 U.S. 376, 106 S.Ct. 689, 88 L.Ed.2d 704 (1986), the Supreme Court stated that the Eighth Amendment does not require that a jury make the findings required by Enmund; an appellate court, a trial judge, or a jury may make the requisite findings. Id. at 474 U.S. at 392, 106 S.Ct. at 700. This Court can review the record and make the findings required by Enmund and Tison. Reviewing the evidence in this case, we find the facts support a finding that [Gilson]'s major participation in the felony of child abuse, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement. Gilson I, 8 P.3d at 919-22 (internal paragraph numbers omitted).

Following the issuance of the OCCA's decision, Gilson filed a petition for rehearing with the OCCA arguing that the Supreme Court had just issued its decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) FN5, and that, in light of Apprendi, only a jury could make the requisite Enmund/Tison findings. On August 29, 2000, the OCCA issued an order denying Gilson's petition for rehearing and stating, in pertinent part, as follows: FN5. Apprendi was decided approximately a month before the OCCA issued its decision resolving Gilson's direct appeal.

We have reviewed Apprendi and find it is not applicable. In Apprendi, the Supreme Court struck down as unconstitutional the New Jersey “hate crime” statute. The New Jersey statute provided for an extended term of imprisonment if the trial judge found, by a preponderance of the evidence, that the defendant in committing the underlying criminal offense acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity. The Supreme Court said it was “unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed.” 102 [120] S.Ct. [at] 2362-63. The Court further said “[i]t is equally clear that such facts must be established by proof beyond a reasonable doubt.” Id., 102 [120] S.Ct. at 2363. The Supreme Court continued by finding the principles involved in its decision in Apprendi did not render invalid prior case law holding that it is not necessary for a jury in a capital case to make every finding of fact underlying the sentencing decision.

Finally, this Court has previously considered and rejected the argument that the principles guiding our decision today render invalid state capital sentencing schemes requiring judges, after a jury verdict holding a defendant guilty of a capital crime, to find specific aggravating factors before imposing a sentence of death. Walton v. Arizona, 497 U.S. 639, 647-649 [110 S.Ct. 3047, 111 L.Ed.2d 511] (1990); id., at 709-714 [110 S.Ct. 3047] (Stevens, J., dissenting). For reasons we have explained the capital cases are not controlling: “Neither the cases cited, nor any other case, permits a judge to determine the existence of a factor which makes a crime a capital offense. What the cited cases hold is that, once a jury has found the defendant guilty of all the elements of an offense which carries as its maximum penalty the sentence of death, it may be left to the judge to decide whether that maximum penalty, rather than a lesser one, ought to be imposed.... The person who is charged with actions that expose him to the death penalty has an absolute entitlement to jury trial on all the elements of the charge.” Almendarez-Torres, 523 U.S., at 257, n. 2 [118 S.Ct. 1219] (Scalia, J., dissenting) (emphasis deleted). 102 [120] S.Ct. at 2366.

Accordingly, we find Apprendi does not render invalid the rule of Cabana, i.e., that the Eighth Amendment does not require that a jury make the findings required by Enmund; an appellate court, a trial judge, or a jury may make the requisite findings. Cabana, 474 U.S. at 392, 106 S.Ct. at 700. This Court was legally entitled to make the Enmund/Tison findings in [Gilson]'s direct appeal.

Further, under Oklahoma law, in order to return a verdict of guilty, the jury is required to find, beyond a reasonable doubt, each element of the offense charged. In the sentencing phase of a capital case, the jury is required to find, beyond a reasonable doubt, the existence of the aggravating circumstances alleged and whether the aggravating circumstances outweigh the mitigating evidence. This is the basis upon which the death sentence is imposed, not any findings as to culpability which might be required by Enmund/ Tison. In Apprendi, the defendant entered guilty pleas and waived his right to a jury determination of the issues.

For the foregoing reasons, we find Apprendi is not controlling, and rehearing on the issue is denied. Gilson v. State, No. F-98-606 (Okla.Crim.App. Aug. 29, 2000) (Order Denying Rehearing and Directing Issuance of Mandate).

*****

Trial counsel's failure to present evidence of Gilson's brain damage

In his final issue, Gilson argues that his trial counsel “were ineffective for failing to investigate and present powerful evidence establishing [his] extensive and permanent brain damage.” Aplt. Br. at 110. “This information,” Gilson argues, “could have been used to challenge [his] mental capacity to commit the crime” and, “[m]ore importantly, ... should have been used as mitigation and could very well have resulted in a sentence less than death.” Id.

In support of these arguments, Gilson asserts that he “was temporarily paralyzed ... and suffered prolonged unconsciousness” as a result of “an auto accident on March 12, 1993.” Id. at 111. According to Gilson, “[t]he impact caused severe head injuries, including multiple, extensive facial and cranial fractures,” and resulted “in permanent organic brain damage.” Id. In turn, Gilson asserts, citing various expert witnesses, that the “brain damage had repercussions on his personality and behavior.” Id. at 112. In particular, Gilson asserts that the brain damage resulted in “severe executive and personality dysfunction,” and a “decreased ability to self-regulate behavior or inhibit impulses....” Id. (internal quotation marks omitted). These post-accident changes in behavior, Gilson contends, could have been affirmed by testimony from “[n]umerous family members and acquaintances....” Id. at 113.

a) Clearly established Supreme Court precedent

Not surprisingly, Gilson identifies Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), as providing the “clearly established federal law” applicable to his claim of ineffective assistance of trial counsel. In Strickland, the Supreme Court held that “[a] convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components.” 466 U.S. at 687, 104 S.Ct. 2052. “First,” the Court noted, “the defendant must show that counsel's performance was deficient.” Id. “This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. “Second,” the Court noted, “the defendant must show that the deficient performance prejudiced the defense.” Id. “This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. “Unless a defendant makes both showings,” the Court held, “it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.” Id.

b) OCCA's rejection of Gilson's claim

Gilson first raised the issue of ineffective assistance of trial counsel on direct appeal. The OCCA rejected Gilson's arguments on the merits: [Gilson] contends in his thirteenth assignment of error that he was denied a fair trial and reliable sentencing proceeding by the ineffective assistance of counsel. An analysis of an ineffective assistance of counsel claim begins with the presumption that trial counsel was competent to provide the guiding hand that the accused needed, and therefore the burden is on the accused to demonstrate both a deficient performance and resulting prejudice. Strickland v. Washington, at 466 U.S. at 687, 104 S.Ct. at 2064. See also Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Strickland sets forth the two-part test which must be applied to determine whether a defendant has been denied effective assistance of counsel. First, the defendant must show that counsel's performance was deficient, and second, he must show the deficient performance prejudiced the defense. [footnote omitted]. Unless the defendant makes both showings, “it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.” Id., 466 U.S. at 687, 104 S.Ct. at 2064. [Gilson] must demonstrate that counsel's representation was unreasonable under prevailing professional norms and that the challenged action could not be considered sound trial strategy. Id., 466 U.S. at 688-89, 104 S.Ct. at 2065. The burden rests with [Gilson] to show that there is a reasonable probability that, but for any unprofessional errors by counsel, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id., 466 U.S. at 698, 104 S.Ct. at 2070. This Court has stated the issue is whether counsel exercised the skill, judgment and diligence of a reasonably competent defense attorney in light of his overall performance. Bryson v. State, 876 P.2d 240, 264 (Okl.Cr.1994), cert. denied, 513 U.S. 1090, 115 S.Ct. 752, 130 L.Ed.2d 651 (1995).

*****

Filed with the direct appeal is an Application for Evidentiary Hearing on Sixth Amendment Claim and Motion to Supplement, pursuant to Rule 3.11(B)(3)(b), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (1998). [Gilson] asserts in the Application that counsel was ineffective in failing to investigate and utilize available mitigating evidence. Attached to the Application are twelve (12) affidavits. The first two (2) affidavits are from [Gilson]'s trial counsel wherein they state they received boxes of medical records from Saint Anthony's Hospital pertaining to injuries [Gilson] suffered in a 1993 automobile accident. Both counsel state they did not see any reference to a C.A.T. (Computer Axial Tomograph) scan in the records, therefore they made no attempt to locate such. Both counsel also state that during their investigation of the case, they spoke to several people who mentioned drastic personality changes in [Gilson] since the 1993 accident. Counsel also stated that at the time of trial, they did not know the true extent of the physical and/or psychological damage suffered by [Gilson] as a result of the accident. (Exhibits A and B).

The third affidavit is from Michael L. Johns, an investigator in the Capital Direct Appeal Division of the Oklahoma Indigent Defense System. Mr. Johns stated he reviewed the files provided by [Gilson]'s trial counsel and discovered “two Radiological Reports which indicated that two series of C.A.T. scans were taken of [Gilson's] brain and skull. The first series was done on March 15, 1993, and the second series was done on March 22, 1993.” Mr. Johns also stated that on May 6, 1999, he personally picked up from Saint Anthony's Hospital copies of all of the C.A.T. scans conducted on [Gilson]. (Exhibit C).

The next three (3) affidavits are from C. Alan Hopewell, Ph.D., Albert V. Messina, M.D., and Jay A. Rosenblum, M.D. Dr. Hopewell stated he conducted a neuropsychological evaluation of [Gilson] on May 24, 1999, at the Oklahoma State Penitentiary. Based upon that testing, Dr. Hopewell concluded [Gilson] suffers from “irreversible organic brain syndrome which is chronic in nature and which [is] classic for this type of damage and which is a direct result of traumatic head injury.” (Exhibit D, pg. 18). Dr. Messina stated he evaluated the C.A.T. scans and medical records concerning [Gilson]. He concluded the records indicated extensive brain damage to [Gilson]'s right frontal lobe and right temporal lobe which remains and results from the prior motor vehicle accident on March 12, 1993. (Exhibit E). Dr. Rosenblum stated he evaluated the reports of Drs. Hopewell and Messina, as well as [Gilson]'s medical records. He verified the findings of Drs. Hopewell and Messina and concluded that [Gilson]'s “severe brain damage in the area most affected is compatible with Dr. Hopewell's neuropsychological evaluation. As a result, [Gilson's] prognosis for improvement is very poor and permanent.” (Exhibit F).

The remaining six (6) affidavits are from family, friends and co-workers who state that [Gilson] exhibited drastic personality changes after the 1993 automobile accident. [Gilson]'s mother and step-father state that prior to the accident [Gilson] did not act out of the ordinary, and showed attention to his appearance and household. However, after the accident he withdrew, became careless with his appearance, and took on bizarre habits such as eating only certain foods and having an unnatural fear of other food items. (Exhibits G and H.) Friends and co-workers stated [Gilson] often seemed distant and unaware of his surroundings after the accident (Exhibits I, J, K, and L).

[Gilson]'s Application contends the information contained in the affidavits constitute [sic] the “clear and convincing evidence” necessary under Rule 3. 11(B)(3)(b)(i) to demonstrate a strong possibility trial counsel was ineffective. Accordingly, [Gilson] urges this Court to so find and to order an evidentiary hearing to fully address the ineffectiveness issue.

Rule 3.11(B)(3)(6) 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 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 evidence 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).

Upon review of the affidavits, we find trial counsel was aware of the automobile accident and any personality changes in [Gilson] since the accident. However, the record reflects that with that knowledge, counsel chose a defense of actual innocence, not one of diminished capacity. That strategic choice is not indicative of deficient performance as a defense of actual innocence was reasonable based upon information provided to counsel by [Gilson]'s family and friends.

“[A]n attorney who makes a strategic choice to channel his investigation into fewer than all plausible lines of defense upon which he bases his strategy are reasonable 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. Boltz v. State, 806 P.2d 1117, 1126 (Okl.Cr.1991), cert. denied, 502 U.S. 846, 112 S.Ct. 143, 116 L.Ed.2d 109 (1991), quoting United States v. Glick, 710 F.2d 639, 644 (10th. Cir.1983).

Here, [Gilson] told police he never abused Shane, but merely assisted in the decision concerning what to do with the body and the removal of the body. Further, he said he never abused any of the other children, that it was Bertha Coffman who abused the children. [Gilson]'s mother and step-father testified they never saw [Gilson] abuse the children and that the children appeared to be fond of [Gilson]. Based upon this evidence, it was a reasonable decision based upon their professional judgment for defense counsel to focus on Bertha Coffman as the actual perpetrator and pursue a defense of actual innocence on [Gilson]' s part. That the strategy proved unsuccessful is not grounds for branding counsel ineffective. Absent a showing of incompetence, [Gilson] is bound by the decisions of his counsel and mistakes in tactic and trial strategy do not provide grounds for subsequent attack. Davis v. State, 759 P.2d 1033, 1036 (Okl.Cr.1988). To have also raised any type of mental disorder defense would have been inconsistent with a defense of actual innocence and would have considerably weakened both defenses. Counsel's decision in this case was reasonable trial strategy, which we will not second guess on appeal. Bernay v. State, 989 P.2d 998, 1015 (Okl.Cr.1999).

Further, counsel was not ineffective for failing to present evidence of the injury during second stage. The record shows the second stage defense focused on [Gilson] being a productive and contributing member of society therefore, he deserved a punishment less than death. This included evidence of his lack of any prior violent conduct and his skills and ability to maintain employment. While evidence of [Gilson]'s mental condition and his inability to control his “explosive behavior” may have had some mitigating effect, this evidence could be a two-edged sword. Evidence that [Gilson] had poor control over his behavior had the potential of proving [Gilson] was a threat to society, including prison society, and could indicate a propensity for future violence. Such evidence would have been contradictory to mitigating evidence of [Gilson]'s lack of culpability and lack of violent conduct. Counsel's strategic decision to pursue a second stage defense that [Gilson] was less culpable than Coffman, and highlight the positive traits of his character instead of focusing on any mental problems he might have was well within the range of professional reasonable judgment.

While [Gilson] has provided a great deal of information in his affidavits, we find he has failed to set forth sufficient evidence to warrant an evidentiary hearing. He has failed to show by clear and convincing evidence a strong possibility that defense counsel was ineffective for failing to utilize the complained-of evidence. [citation omitted]. Accordingly, we decline to grant [Gilson]'s application for an evidentiary hearing. Gilson I, 8 P.3d at 926-29 (internal paragraph numbers omitted).

c) Gilson's challenge to the OCCA's analysis

Gilson argues that the OCCA's decision was “flawed” in two related respects. Aplt. Br. at 116. First, Gilson argues that the OCCA's decision “overlook[ed] the requirement that counsel conduct a ‘thorough’ mitigation investigation.” Id. (citing Wiggins v. Smith, 539 U.S. 510, 524, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003)). Second, Gilson complains that the OCCA's “determination [ ] as to counsel making a strategic decision [was] based on sheer speculation, which is not enough.” Id. In this regard, Gilson argues that the affidavits he submitted to the OCCA from his trial counsel “say nothing of a strategic decision to intentionally omit the evidence,” and in fact “suggest there was no strategic decision, as they admit they overlooked the reference to CAT scans and were not aware of the true nature and extent of [his] head injuries.” Id. at 117.

We find it unnecessary to address Gilson's arguments, both of which focus on the first Strickland prong, because we conclude, applying a de novo standard of review, that Gilson cannot satisfy the second Strickland prong. Turning first to Gilson's complaint that his trial attorneys failed to present evidence of his auto accident and its effects during the first-stage proceedings, we conclude that Gilson was not prejudiced by this purported failure.FN18 Although the OCCA recognized a defense of complete insanity at the time of Gilson's trial, it had never recognized, and appears to this date to have never recognized, a defense to first degree murder positing that the defendant was incapable of forming the specific intent due to a mental illness short of complete insanity. See Grant v. State, 58 P.3d 783, 795 (Okla.Crim.App.2002) (“We need not reach the issue of a ‘diminished capacity’ defense in this [first degree murder] case, as Grant's evidence regarding his mental illness did not show that he suffered mental infirmities that would have rendered him incapable of forming the specific intent necessary.”). Moreover, none of the evidence submitted by Gilson to the OCCA in connection with his ineffective assistance claim establishes that he lacked the ability to form the specific intent necessary to be found guilty of first degree murder. To the contrary, the clinical neuropsychologist who examined Gilson (Dr. C. Alan Hopewell) concluded that Gilson had “an overall IQ score of 92,” Hopewell Report at 8, and “technically ‘kn[e]w right from wrong’ ” but was “often unable to ‘conform his behavior to the right’ due to impulsivity, poor judgment, and the failure to see or understand the consequences of his actions.” Id. at 10. Thus, the purported failure of Gilson's trial attorneys to pursue a diminished capacity defense to the first degree murder charge, based on Gilson's alleged post-accident changes in behavior, simply did not prejudice Gilson.

FN18. We also question whether Gilson adequately presented this argument to the OCCA. Although the “Application for Evidentiary Hearing on Sixth Amendment Claims” that Gilson filed with the OCCA asserted generally that Gilson was denied effective assistance of counsel in both stages of trial, it failed to offer any specific arguments regarding counsel's first-stage performance, and instead focused exclusively on counsel's failure to present evidence of Gilson's auto accident and resulting effects during the second-stage proceedings.

We reach a similar conclusion with respect to Gilson's claim that his trial attorneys erred in failing to present accident-related evidence during the second-stage proceedings. With respect to this claim, it is not entirely clear whether the OCCA intended to address the second prong of the Strickland test, but its opinion does contain the following language that is relevant to our second prong analysis:

While evidence of [Gilson]'s mental condition and his inability to control his “explosive behavior” may have had some mitigating effect, this evidence could be a two-edged sword. Evidence that [Gilson] had poor control over his behavior had the potential of proving [Gilson] was a threat to society, including prison society, and could indicate a propensity for future violence. Such evidence would have been contradictory to mitigating evidence of [Gilson]' s lack of culpability and lack of violent conduct. Counsel's strategic decision to pursue a second stage defense that [Gilson] was less culpable than Coffman, and highlight the positive traits of his character instead of focusing on any mental problems he might have was well within the range of professional reasonable judgment. Gilson I, 8 P.3d at 928.

Whether or not we owe any deference to these conclusions, we believe they are entirely accurate. To be sure, the evidence presented by Gilson to the OCCA in connection with his ineffective assistance claim persuasively established that he was involved in a 1993 automobile accident, sustained a serious brain injury as a result of the accident, and has experienced negative physical and mental effects since the accident (e.g., a constant “global” headache; photophobia; increased sensitivity to auditory stimuli). Dr. Hopewell's neuropsychological consulting report, however, paints a bleak and ominous picture of Gilson's personality, behavior, and likely future conduct. For example, Hopewell noted that Gilson had a “tendency to become agitated and belligerent easily when frustrated.” Hopewell Report at 12. Indeed, Hopewell reported that this tendency actually played out during their interview, with Gilson becoming frustrated at Hopewell and at times throwing his pencil across the room, yelling, answering in gibberish, and refusing to continue with requested testing. Hopewell opined that Gilson “w[ould] have extreme difficulties in terms of frustration tolerance as well as restrictions in abilities to deal with complicated, stressful, complex, and ambiguous situations.” Id. at 8. Relatedly, Hopewell concluded that Gilson would have difficulty conforming his behavior to societal norms “due to impulsivity, poor judgment, and the failure to see or understand the consequences of his actions.” Id. at 10. Hopewell also concluded that Gilson had an “inability to regulate behavior or inhibit impulses” and thus “w[ould] often act before thinking.” Id. at 18. Given these extremely negative descriptions of Gilson's likely behavior, we conclude that the presentation of this evidence to the jury during the second-stage proceedings would not have resulted in a different outcome. In particular, we conclude that the presentation of this evidence would likely have weighed against Gilson by erasing any lingering doubts that may have existed as to his role in Shane's murder, and by confirming the jury's conclusion that he represented a continuing threat, even if confined in prison for life. Thus, we conclude Gilson was not prejudiced by the failure of his trial attorneys to gather and present this evidence to the jury during the second-stage proceedings.

The judgment of the district court is AFFIRMED.

*****

HENRY, Chief Judge, dissenting in part.

“This was a horrible crime.” Gilson v. State, 8 P.3d 883, 930 (Okla.Crim.App.2000) (Chapel, J., dissenting). It is difficult to imagine a more heart-rending set of facts than those that befell a helpless and innocent Shane Coffman. There is no question that Donald Gilson had a history of abusing at least some of the Coffman children, who lived in fear of him, and I rest assured that he will be punished for that abuse, as he was convicted of two out of five counts of injury to a minor. Further, should the court see fit to adopt the reasoning of this partial dissent, Mr. Gilson would again face trial for murder or manslaughter with a properly instructed jury.

I am aware that we owe state courts great deference under AEDPA. We may only reverse their determinations in the most limited circumstances. Nevertheless, when a death sentence is imposed we must be certain that it was with the full protections of the Constitution.

It was with this in mind that Congress enacted 28 U.S.C. § 2254, providing habeas relief in order “to interpose the federal courts between the States and the people, as guardians of the people's federal rights-to protect the people from unconstitutional action.” Reed v. Ross, 468 U.S. 1, 10, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984) (internal quotation marks omitted). This protection is most crucial when the defendant's life hangs in the balance. “[D]eath is a different kind of punishment from any other which may be imposed in this country.... It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.” Gardner v. Florida, 430 U.S. 349, 357-58, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977).

The majority opinion is well-written and carefully resolves a number of issues in this prosecution under a relatively new and unique statute. While I agree with much of its resolution of the issues before us, I must part company on one vital issue protected by our legal heritage. In a case with such disturbing facts, filed against a defendant who had at least some history of abuse, the risk of an unwarranted conviction is especially high. “The absence of a lesser included offense instruction increases the risk that the jury will convict ... simply to avoid setting the defendant free.” Spaziano v. Florida, 468 U.S. 447, 455, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984). This “risk cannot be tolerated in a case in which the defendant's life is at stake.” Beck v. Alabama, 447 U.S. 625, 637, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980).

Ms. Coffman, whose guilty plea was accepted by the state court, was convicted of first-degree murder and received a sentence of life in prison. The dispositive portion of Mr. Gilson's appeal is only about what role Mr. Gilson played in Shane's murder. When determining the narrow question whether Mr. Gilson was entitled to a jury instruction on second-degree manslaughter, we have only one question before us-what could a reasonable jury have found regarding Mr. Gilson's culpability in Shane's death? Evidence was presented at trial that Mr. Gilson played no part in abusing Shane the day he died and that he was asleep on the couch during the abuse that led to Shane's death. A rational jury could have believed this evidence and found Mr. Gilson guilty of culpable negligence, but not of actively permitting child abuse, as the Oklahoma statute requires for a first-degree murder conviction. Because, even under our deferential standard of review, the evidence supported giving an instruction on second-degree manslaughter-a right protected under Beck and Spaziano-I must respectfully dissent.

A. Standard of Review

First, I must address the appropriate standard of review. We have never definitively determined whether sufficiency of the evidence to support a lesser included offense instruction is a factual or a legal question. See, e.g., Boltz v. Mullin, 415 F.3d 1215, 1233 (10th Cir.2005) (noting that the Tenth Circuit has not yet decided the appropriate standard); Turrentine v. Mullin, 390 F.3d 1181, 1197 (10th Cir.2004) (same); Hogan v. Gibson, 197 F.3d 1297, 1306 (10th Cir.1999) (same). If it is a legal question, we must ask whether it was contrary to or an unreasonable application of clearly established federal law. 28 U.S.C. § 2254(d)(1). If it is a factual determination, we must ask whether the OCCA's conclusion was “an unreasonable determination of the facts in light of the evidence presented.” 28 U.S.C. § 2254(d)(2). Further, if factual, we must presume the state court's determinations to be correct unless Mr. Gilson has presented clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1).

The Oklahoma Court of Criminal Appeals characterizes the sufficiency of the evidence to support a lesser included offense instruction as a legal issue. See e.g., Young v. State, 12 P.3d 20, 39 (Okla.Crim.App.2000). Moreover, in direct criminal appeals, we treat denials of lesser included offense instructions as legal determinations. See, e.g., United States v. Castillo, 140 F.3d 874, 886 (10th Cir.1998).

Consistent with this approach, the sufficiency of the evidence to support a lesser included offense instruction seems to me not to be a purely factual determination. See Hogan, 197 F.3d at 1306 n. 6 (stating that although the panel cannot resolve the inconsistency itself, it unanimously agrees that we should treat the determination as a conclusion of law). While such a determination involves some application of the facts, this is not the end of the inquiry, as “[t]his appellate function does not involve fact finding in the first instance, but rather a review of the record to determine whether the factfinder had an evidentiary basis for its rulings which would satisfy the legal standard in question.” Bryson v. Ward, 187 F.3d 1193, 1211 (Briscoe, J., concurring) (emphasis added). In this case, the OCCA did not find any facts in determining that Mr. Gilson was not entitled to lesser included offense instructions. Instead, the OCCA applied the clearly established federal legal standard set forth in Beck, to the facts in the record.

“No presumption of correctness attaches to legal conclusions or determinations on mixed questions of law and fact.” Case v. Mondragon, 887 F.2d 1388, 1393 (10th Cir.1989). Therefore, we must review such legal determinations under § 2254(d)(1), reversing the OCCA only if its determination was an unreasonable application of Beck. I maintain that it was.

B. The second-degree manslaughter instruction

Under Beck, “a sentence of death [may not] constitutionally be imposed after a jury verdict of guilt on a capital offense, when the jury was not permitted to consider a verdict of guilt of a lesser included non-capital offense, and when the evidence would have supported such a verdict.” 447 U.S. at 627, 100 S.Ct. 2382 (internal quotation marks omitted). It is the jury's duty to weigh the evidence-not ours, and not the OCCA's. But in order to allow a jury to most freely perform its duties, we must be sure that state courts follow Beck's mandate, which was designed “to eliminate the distortion of the factfinding process that is created when the jury is forced into an all-or-nothing choice between capital murder and innocence.” See Spaziano, 468 U.S. at 455, 104 S.Ct. 3154. Beck's mandate applies even when the convicting jury retained the discretion not to sentence the defendant to death. Hooks v. Ward, 184 F.3d 1206, 1227 (10th Cir.1999). Here, the evidence supported instructions for culpable negligence second-degree manslaughter under Okla. Stat. Ann. tit. 21, § 716.

1. Second-degree manslaughter defined

“Every killing of one human being by the act, procurement, or culpable negligence of another ... is manslaughter in the second degree.” Okla. Stat. Ann. tit. 21, § 716. Oklahoma defines culpable negligence as “the omission to do something which a reasonably careful person would do, or the lack of the usual ordinary care and caution in the performance of an act usually and ordinarily exercised by a person under similar circumstances and conditions.” Oklahoma Uniform Jury Instructions-Criminal 4-104 (2007). Mr. Gilson argues that he fell asleep on the couch while Shane was alone with Ms. Coffman, but did not actively permit Shane's abuse, as the first-degree murder statute requires. “To permit” as used in Oklahoma's child-abuse murder statute means “to authorize or allow for the care of a child by an individual when the person authorizing or allowing such care knows or reasonably should know that the child will be placed at risk of abuse....” Okla. Stat. Ann. tit. 10, § 7115. As the State argued in its brief before us, “[t]h[e] definition [of ‘to permit’] does not encompass a mere failure to act ... but instead anticipates one's affirmative action ....” Aple's Br. at 42 (emphasis added).

“Permitting” under the first-degree child abuse murder statute requires active authorization. A “mere failure to act,” that does not involve the affirmative action necessary to support a first-degree murder child abuse conviction may constitute culpable negligence. Oklahoma courts have found a defendant guilty of such a culpably negligent failure to act, when, for instance, he failed to seek medical care for a sick child. Funkhouser v. State, 763 P.2d 695 (Okla.Crim.App.1988).FN1 The “kaleidoscopic nature of the varying degrees of mental culpability,” People v. Green, 56 N.Y.2d 427, 452 N.Y.S.2d 389, 437 N.E.2d 1146, 1149 (1982), makes the line between active permission necessary for first-degree murder and a culpably negligent failure to act hard to draw. Determining a given defendant's degree of culpability, however hard to define, is “to be inferred from the facts and circumstances proved and involve[s] fine gradations along but a single spectrum of culpability.” Id. (internal quotation marks omitted). The question for us is whether a rational jury could have found that Mr. Gilson engaged in some failure to act that falls short of the necessary active authorization required to meet Oklahoma's definition of “permit” but is still actionable as culpable negligence.

FN1. Notably, in a subsequent case, the OCCA did comply with Beck and held that where the defendant spilled boiling water on his son to the point that he died as a result of his burns (and this tragedy took place in the bedroom, not the kitchen), the defendant was entitled to culpable negligence second-degree manslaughter instructions. Ball v. State, 173 P.3d 81 (Okla.Crim.App.2007).

2. The evidence

“[I]t has long been beyond dispute that the defendant is entitled to an instruction on a lesser included offense if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater.” Beck, 447 U.S. at 635, 100 S.Ct. 2382 (internal quotation marks omitted). After considering all of the State's evidence, I believe there remains a set of facts that a rational jury could have relied on to convict Mr. Gilson of second-degree manslaughter and acquit him of first-degree murder. Although, as the majority notes, Ms. Coffman's testimony and police interviews contained some inconsistencies as to exactly what happened that night, Ms. Coffman consistently claimed that Mr. Gilson had not abused Shane on the day of or the few days preceding Shane's death.FN2 Whatever inconsistencies plagued Ms. Coffman's testimony as to her own actions, and whatever she stated about Mr. Gilson's temper in general, she was consistent as to this one, critical point.

FN2. See, e.g., Trial Transcript, vol. VI, at 1403-04, 1375 (Ms. Coffman stating that, as she said in the February 9 interview with police, Don Gilson did not touch Shane on the day he died and that Mr. Gilson hadn't done anything else to discipline Shane that day). See also Add. Aplt's Br., at 145, 154, 180 (Oklahoma State Bureau of Investigation Interview Transcript) (stating “[I]t was about two days before [Shane died] that he had spanked Shane,” “Nobody touched that boy [Shane] but me that day. Nobody,” and, “I have gone over this, and over this, and over this and for six, for almost six months. But believe me, I lived this day every day of my life since then. And I don't remember him ever spanking Shane that day.”). A rational jury, believing Ms. Coffman's testimony along with, for instance, Mr. Gilson's claims that he was asleep on the couch during the abuse leading to Shane's death, could have found that Mr. Gilson was culpably negligent and therefore guilty of second-degree manslaughter. The culpably negligent action in this scenario would have been falling asleep on the couch while Ms. Coffman, to his knowledge, disciplined Shane. In the closing arguments during the guilt phase of the trial, Mr. Gilson's counsel said, “He thought that Bertha was just spanking [Shane]; that she had Shane in timeout; that he was in the bathtub; that he was not being cooperative. Nowhere in [Mr. Gilson]'s statement is there anything about him being aware of [Ms. Coffman] beating on Shane, hitting him with a board, hitting him in the legs, hitting him in the arms, hitting him in the head, nowhere.” Trial Transcript, vol. X, at 2202-03. Mr. Gilson's counsel further pointed to the report of the state's investigator, Cliff Winkler, which noted that Mr. Gilson's testimony was consistent with Ms. Coffman's as to the fact that he was asleep when she came in and reported that Shane was not breathing and that he then performed CPR for an hour and a half. Id. “[Mr. Gilson] said he was in shock. He said he had no conceivable idea what had happened.” Id.

A rational jury could believe this set of facts and find that Mr. Gilson did not actively permit Ms. Coffman's abuse that killed Shane, but instead negligently failed to intervene, falling asleep while she was alone with him. A rational jury could have found that this failure to act, while tragic, did not rise to the level of affirmatively, actively, wilfully permitting Ms. Coffman to abuse Shane-that is, that along the spectrum of culpability, Mr. Gilson's failure to act was culpably negligent.

The majority states that Ms. Coffman's testimony's “internal inconsistencies” and “the overwhelming weight of the State's evidence” establish that no rational juror could convict Mr. Gilson of manslaughter while acquitting him of first-degree murder. Maj. Op. at 1237-38. The majority is certainly right that the State presented abundant evidence to support Mr. Gilson's first-degree murder conviction-but, respectfully, this is not the question:

A Beck claim is not the functional equivalent of a challenge to the sufficiency of the evidence for conviction; rather, Beck focuses on the constitutionality of the procedures employed in the conviction of a defendant in a capital trial and is specifically concerned with the enhanced risk of an unwarranted capital conviction where the defendant's life is at stake and a reasonable jury could have convicted on a lesser included offense. Hogan, 197 F.3d at 1305 (emphasis added).

As the State itself noted in its closing argument during the guilt phase of the trial, Ms. Coffman has consistently claimed that she and she alone is responsible for Shane's death. Trial Transcript, vol. X, at 2161. The State further argued that the jury should not believe Ms. Coffman's version of events because “[t]here is a bond between those two, Bertha Jean and Donald Lee,” id. at 2162, and that “[Ms. Coffman] thinks she's got the death penalty beat and she is going to try her damnedest to give him the same gift out of you.... From her jail cell Bertha Jean is still trying to run things, and she will if you let her.” Id. at 2163. While it is certainly possible Ms. Coffman may have been covering up for Mr. Gilson, the State's mere intimations regarding Ms. Coffman's motivation is not enough to render Ms. Coffman's testimony unbelievable by any rational jury.

3. Application of Beck

It is neither our job, nor the OCCA's to weigh the evidence and decide which side's is stronger. “Our question is not whether the evidence pointing to the lesser offense ... was weak.” United States v. Humphrey, 208 F.3d 1190, 1207 (10th Cir.2000). Instead, we must ask whether “there is any evidence fairly tending to bear upon the lesser included offense, however weak that evidence may be.” Id. A trial court may properly deny a defendant's request for a lesser included offense instruction only when there is no evidence to reasonably support that conviction. See, e.g., Young v. Sirmons, 486 F.3d 655, 672 (10th Cir.2007) (defendant not entitled to a lesser included second-degree murder instruction when “forensic evidence revealed that there were at least three weapons used during the gunfight, and there was no evidence of shots fired by anyone but [the defendant and two others] ” ) (emphasis added), cert denied, --- U.S. ----, 128 S.Ct. 1269, 170 L.Ed.2d 100, (2008); Darks v. Mullin, 327 F.3d 1001, 1010 (10th Cir.2003) (defendant not entitled to a lesser included first-degree manslaughter instruction when “[his] attorney was forced to concede at oral argument, that no evidence support[ed] the adequate provocation element”) (emphasis added).

Here, the State did present ample evidence that Mr. Gilson's treatment of the Coffman children was, at times, nothing short of atrocious. Nevertheless, in conducting our lesser included offense inquiry, we must only concern ourselves with the events that caused Shane's death. The evidence of prior abuse on which the State relied to support the capital murder charge is not evidence that Mr. Gilson necessarily caused or wilfully permitted Shane's death. Although the State's case was strong, the State's presentation of the facts was not the only reasonable interpretation of the evidence, and the jury did not have to believe it (and in fact did not believe the evidence in three of the five counts of injury to a minor). We already know that the jury was split as to whether Mr. Gilson actively permitted the abuse or committed it himself. Especially in light of Ms. Coffman's unequivocal testimony that Mr. Gilson played no part in abusing Shane the day he died, and the testimony of both that Mr. Gilson was asleep on the couch, it is not the case that there was no evidence to support an instruction on second-degree manslaughter.