photo gallery

Summary:

51-year-old Pan Sayakhoummane enjoyed fishing along the Arkansas River near Muldrow. Upon leaving, he was confronted by Wackerly and his wife Michelle. Wackerly shot him eight times with a .22 rifle, stole his fishing gear, pushed his vehicle into the river, and fled. His body was found the next day.

Wackerly was not arrested until three months later when Michelle told authorities she was at the scene when her husband killed Sayakhoummane. Michelle testified with immunity that the day before Sayakhoummane was killed, her husband told her he needed money for a drug habit and would do "whatever it took" to get it, as he loaded a .22-caliber rifle, while wearing latex gloves and wiping off each bullet before loading it in the chamber.

The next morning, the Wackerlys spotted Sayakhoummane fishing along the Arkansas River. After determining no one else was around, they waited near Sayakhoummane's vehicle until he returned from fishing.

Latex gloves, Sayakhoummane's tackle box and a .22-caliber rifle and ammunition, consistent with a bullet retrieved from Sayakhoummane's body, were seized from Wackerly's apartment. A pawn shop owner also told jurors that Wackerly was the man who pawned fishing reels in his shop, which were identified as the reels stolen from Sayakhoummane shortly after he was murdered.

Citations:

Wackerly v. State, 12 P.3d 1 (Okla.Crim. App. 2000) (Direct Appeal).
Wackerly v. Workman, 580 F.3d 1171 (10th Cir. 2009) (Habeas).

Final/Special Meal:

A medium stuffed-crust pizza from Pizza Hut with mushrooms, bell peppers, black olives and jalapenos, a Dr Pepper, coconut cream pie, and a chocolate shake.

Final Words:

Wackerly and two buddhist monks repeatedly recited a six-syllable chant — "om mani padme hum" — described as a "mantra of ultimate compassion." Wackerly's attorneys also joined in the chant.

ClarkProsecutor.org

Oklahoma Department of Corrections

Inmate: DONALD R WACKERLY
ODOC# 264098
Birth Date: 10/08/1969
Race: White
Sex: Male
Height: 6 ft. 00 in.
Weight: 250 pounds
Hair: Brown
Eyes: Blue
County of Conviction: Sequoyah
Case#: 96-349
Date of Conviction: 05/11/98
Convictions: Murder In The First Degree W/Malice Aforethought (2 cts) - Death, Burglary 1st Degree - 50 years.
Location: Oklahoma State Penitentiary, Mcalester
Reception Date: 05/18/1998

Oklahoma Attorney General

08/12/2010

W.A. Drew Edmondson, Attorney General

Execution Date Set for Sequoyah County Killer

The Oklahoma Court of Criminal Appeals today set October 14 as the execution date for Sequoyah County death row inmate Donald Ray Wackerly, II. Wackerly was convicted and sentenced to death for the Sept. 7, 1996, murder of Pam Sayakhoummane, 51, during a robbery.

The attorney general’s office requested the execution date June 7 after the U.S. Supreme Court denied Wackerly’s final appeal.

There is currently one other inmate set for execution in Oklahoma. Cleveland County death row inmate Jeffrey Matthews is scheduled to be executed next Tuesday for the 1994 murder of Otis Earl Short, 77, during a robbery of Short’s home in Rosedale. There are no other execution date requests pending.

Oklahoma man executed for 1996 killing of fisherman

By Sean Murphy - NormanTranscript.com

Oct 15, 2010

McALESTER — A Muldrow man who converted to Buddhism while in prison repeated a Buddhist mantra as he was executed Thursday for the 1996 shooting death of a fisherman along the Arkansas River in eastern Oklahoma. Donald Ray Wackerly, 41, received a lethal injection at the Oklahoma State Penitentiary and was pronounced dead at 6:12 p.m.

Two Buddhist monks and some of Wackerly’s attorneys also chanted the six-syllable mantra of ultimate compassion, “om mani padme hum,” as the lethal combination of drugs was administered. As the execution began, Wackerly acknowledged his attorneys and winked at a relative before he started chanting. Less than a minute after the drugs started to flow, the heavyset Wackerly exhaled powerfully and became quiet. He was pronounced dead six minutes later.

Wackerly had filed a motion Tuesday seeking to have his spiritual adviser inside the death chamber with him during the execution. A federal judge dismissed that case Wednesday after an agreement was reached with prison officials to allow the monk to perform several rituals on Wackerly’s corpse. “As I understand Buddhist tradition, the good feeling and good spirit in the heart and mind at the time of death is related to their belief of a good reincarnation,” said Micheal Salem, one of Wackerly’s attorneys.

Wackerly was convicted in the shooting death of 51-year-old Pan Sayakhoummane during a robbery in Sequoyah County. Three of Sayakhoummane’s relatives witnessed the execution, but declined to speak to reporters.

Court records show Wackerly and his then-wife, Michelle, who lived in nearby Muldrow, drove to the Arkansas River on Sept. 7, 1996, allegedly so that Wackerly could find someone to rob, court documents show. The pair came upon Sayakhoummane, a Laos native from Fort Smith, Ark., who had been fishing along the Arkansas River. The 51-year-old was shot between seven and nine times with a .22-caliber rifle in the head, back, chest, arm, wrist and hand. His body was found the next day in his partly submerged pickup near Lock and Dam 14, about 15 miles from Fort Smith.

Wackerly was arrested about three months later after his estranged wife, who claimed to be a witness, went to the Oklahoma State Bureau of Investigation and described the events surrounding the victim’s murder and the theft of his tackle box and other items that were later pawned. Michelle Wackerly was granted immunity from prosecution and testified against Wackerly at his murder trial.

During a clemency hearing last month, Wackerly said his ex-wife gave him the tackle box and other items taken from the victim and claimed they came from her brother, who hoped to settle a debt with Wackerly. He said she gave authorities a statement implicating him after he became abusive with her.

Muldrow Murderer Executed; Killer Chants Mantra As Life Ebbs Away

By Jeff Arnold - SWtimes.com

Oct 15, 2010

McALESTER, Okla. — Donald Ray Wackerly II chanted a Buddhist mantra as he received a lethal injection Thursday for the 1996 murder of a Fort Smith fisherman near the Arkansas River just south of Muldrow. Wackerly, 41, was pronounced dead at 6:12 p.m., less than six minutes after the fatal three-drug combination was pushed into the intravenous lines inserted in each arm, at the Oklahoma State Penitentiary.

Before the blinds were raised in the death chamber to reveal Wackerly strapped to a steel gurney and a white sheet covering him from his feet to his chest, two Buddhist monks began chanting "om mani padme hum," a mantra of compassion. Before the execution began, Wackerly turned to his attorneys and a family member, smiled and winked and began chanting the mantra of compassion. Less than 30 seconds after the drugs were administered, Wackerly stopped chanting, forcefully exhaled and was pronounced dead five minutes later.

Wackerly, 41, of Muldrow was sentenced to death in 1998 by a Sequoyah County jury for the September 1996 murder of 51-year-old Pan Sayakhoummane. Wackerly wasn't arrested until three months later when his estranged wife, Michelle, told authorities she was at the scene when her husband killed Sayakhoummane.

Michelle Wackerly testified that the day before Sayakhoummane was killed, her husband told her he needed money and would do "whatever it took" to get it, as he loaded a .22-caliber rifle, while wearing latex gloves and wiping off each bullet before loading it in the chamber, according to court documents. The next morning, the Wackerlys spotted Sayakhoummane fishing along the Arkansas River. After determining no one else was around, they waited near Sayakhoummane's vehicle until he returned from fishing.

Michelle Wackerly told jurors she knelt behind the couple's Jeep as Sayakhoummane approached, then she heard seven or eight gunshots. When she stood up, Sayakhoummane was on the ground and her husband was trying to pull a fishing pole from underneath the body, according to court documents. Her husband then put Sayakhoummane's body in the back of his pickup, removed the reels from Sayakhoummane's fishing poles - throwing the poles in a wooded area - took his tackle box and then drove Sayakhoummane's pickup into the river, before the couple left and ate dinner at a fast-food restaurant, according to court documents.

Latex gloves, Sayakhoummane's tackle box and a .22-caliber rifle and ammunition, consistent with a bullet retrieved from Sayakhoummane's body, were seized from Wackerly's apartment and introduced at his trial, according to court documents. A pawn shop owner also told jurors that Wackerly was the man who pawned fishing reels in his shop, which were identified as the reels stolen from Sayakhoummane after he was killed.

Wackerly maintained his innocence, telling the Oklahoma Pardon and Parole Board last month that he was visiting his parents in Fort Smith when Sayakhoummane was killed and his ex-wife implicated him after he became abusive toward her and "she wanted me out of the picture."

Two of Wackerly's sisters, Donna Lomax and Dianna Davis, released a statement after the execution thanking friends and family for their support over the years, saying they would miss their brother and telling the Sayakhoummane family they will "forever be in our hearts and prayers." Three of Sayakhoummane's relatives witnessed Wackerly's execution, but declined comment.

Wackerly sought a last-minute stay of execution Tuesday, when his attorneys filed a motion asking that his execution be delayed until a federal judge determined if an Oklahoma Department of Corrections policy prohibiting a spiritual adviser from the death chamber was constitutional.

Wackerly converted to Buddhism in 2007 and wanted his spiritual adviser present in the death chamber to perform several rituals after the lethal injection was administered, but prior to his death. A federal judge dismissed the motion Wednesday after prison officials agreed to allow the adviser in the death chamber following his death, to perform several rituals on Wackerly's body.

Wackerly's last meal was a medium stuffed-crust pizza from Pizza Hut with mushrooms, bell peppers, black olives and jalapenos, a Dr Pepper, coconut cream pie, and a chocolate shake, according to prison officials.

Convicted murderer executed

By Sherrel Henry - Sequoyah County Times

October 15, 2010

Donald Ray Wackerly, 41, of Muldrow was executed at 6:06 p.m. Thursday. He was pronounced dead by lethal injection at 6:12 p.m. at the Oklahoma State Penitentiary in McAlester.

Convicted and sentenced to death for the 1996 shooting death of 51-year-old Pan Sayakhoummane of Fort Smith, Ark., Wackerly, a converted Buddhist, acknowledged a relative and his attorneys minutes before the lethal injection was administered. As Buddhist monks chanted a hymn of ultimate compassion, Wackerly said a few words and winked at the family member as he and his attorneys joined the chanting. Within minutes of Warden Randy Workman announcing, “Let the execution begin,” Wackerly exhaled deeply, and became quiet before being pronounced dead six minutes later.

A spiritual advisor was allowed to enter the death chamber following the execution to perform several rituals on the corpse before the body was released to the state medical examiner. Earlier in the week a federal judge denied a motion filed by Wackerly’s attorneys requesting a spiritual advisor be allowed in the death chamber during the execution.

On Sept. 7. 1996, Wackerly and his then-wife, Michelle, drove to the Arkansas River south of Muldrow, and found Sayakhoummane fishing alone. Sayakhoummane was shot six to eight times then robbed, according to court records. Sayakhoummane’s body was found the following day in the back of his pickup truck, which was partially submerged in the Arkansas River. Wackerly was later arrested when Michelle Wackerly went to the Oklahoma State Bureau of Investigation and described the events surrounding the murder. She was granted immunity from prosecution and testified against Wackerly at his murder trial. ?

Wackerly maintained his innocence, saying his estranged wife only went to authorities after he became abusive with her.

Wackerly’s sisters, Donna Lomax and Dianna Davis, released the following statement after his execution. “We would like to thank our family and friends for their support of us, as well as Donnie, over the years. Their kind words and prayers have helped to sustain us through this very difficult process. We have been blessed beyond measure by the outpouring of love shown to our family. Donnie loved his family dearly and we certainly love him. We will miss our brother very much and pray he is in a better place. The Sayakhoummane family will forever be in our hearts and our prayers.”

Donald Ray Wackerly executed 12 years after conviction

By Randy Krehbiel - TulsaWorld.com

October 15, 2010

McALESTER - Killer Donald Ray Wackerly went to his death chanting a Buddhist mantra Thursday at the Oklahoma State Penitentiary. Wackerly, 40, was executed for the 1996 shooting death of Laotian immigrant Pan Sayakhoummane. Convicted in 1998, Wackerly maintained his innocence to the end.

His last words consisted of a mantra - "Om mani padme hum" - chanted along with two Buddhist monks who were in the witness room, separated from the death chamber by a plate glass window. The chant is described as the Buddhist "mantra of compassion." Prison officials believe that it was the first execution in state history accompanied by Buddhist religious elements.

Wackerly smiled and nodded to the monks and five other witnesses who attended on his behalf. He also blinked several times in apparent recognition. The execution by lethal injection began at 6:06 p.m., and within seconds, Wackerly's chants faded to whispers, and he exhaled violently. He was pronounced dead at 6:12 p.m.

Among the most compelling evidence against Wackerly in Sayakhoummane's murder was testimony that he pawned fishing gear belonging to the victim several weeks after the man's death. Sayakhoummane had been fishing in the Arkansas River in Sequoyah County when he stopped to help what he thought was a stranded motorist. Prosecutors said the motorist was Wackerly, who feigned trouble with his Jeep to ambush and rob passers-by. Sayakhoummane was shot eight times and was left in his partially submerged truck.

Wackerly admitted to having a severe drug addiction at the time of the murder but claimed that he was framed for the killing by his wife. Sayakhoummane's family did not comment after the execution.

Wackerly's sisters, Donna Lomax and Dianna Davis, issued a joint statement. "We would like to thank our family and friends for their support of us, as well as Donnie, over the years," they said. Donnie loved his family dearly, and we certainly love him. We will miss our brother very much and pray he is in a better place. The Sayakhoummane family will be forever in our hearts and our prayers."

Wackerly's execution was embroiled in controversies regarding one of the drugs to be administered and by his attempt to have his spiritual adviser present in the death chamber. He unsuccessfully sought a stay of execution, with his lawyer arguing that the execution would not be properly carried out if the one available dose of the sedative sodium thiopental was not properly administered.

On Wednesday, prison officials and Wackerly's lawyer agreed to an arrangement by which the religious leaders were allowed access to the body immediately after the execution.

The next death-row inmate slated for execution is John David Duty, convicted in 2001 for the murder of Curtis Wise. No date has been set.

Wackerly execution won't be delayed in Oklahoma

By Michael Baker - NewsOK.com

October 14, 2010

Donald Ray Wackerly II, sentenced to die for the 1996 murder of Pan Sayakhoummane, had asked for a delay to his Thursday execution to allow his Buddhist spiritual adviser in the death chamber. An agreement was reached, and U.S. District Judge Stephen Friot has dismissed the case. Attorneys reached an agreement Wednesday that clears the way for today's execution of an Oklahoma inmate who wanted his Buddhist spiritual adviser present during the lethal injection.

Wackerly execution won't be delayed in Oklahoma Donald Ray Wackerly II is scheduled to die at 6 p.m. at the Oklahoma State Penitentiary in McAlester. The agreement will allow the spiritual adviser to be in the death chamber moments after Wackerly's death.

Wackerly, 41 was condemned to die for the 1996 murder of a Laotian fisherman. Pan Sayakhoummane was shot eight times and left in the Arkansas River.

Wackerly had asked a federal judge to delay the execution so there could be further hearings on whether a prison rule barring spiritual advisers inside the death chamber is constitutional. U.S. District Judge Stephen Friot dismissed the case after the agreement was announced in court. It was the second time in five days that a case involving Wackerly's execution had appeared before Friot.

After Wackerly challenged Oklahoma's lethal injection procedure, Friot ruled Friday the inmate's execution should go forward because Oklahoma's method exceeds standards the U.S. Supreme Court has already deemed humane and constitutional. That decision has been upheld by the 10th U.S. Circuit Court of Appeals in Denver.

The Agreement

Wackerly's attorney, Micheal Salem, said the agreement is not optimum for his client but will be adequate. "At this point, given the circumstances and the shortness of time, this is reasonable," Salem said. Wackerly will be allowed to recite a mantra of ultimate compassion until he dies, Salem said. The Buddhist spiritual adviser and others in an adjacent observation room will also be allowed to chant.

After Wackerly's death, the spiritual adviser will be escorted into the death chamber and allowed to perform several rituals consistent with Buddhist principles that could take 15 to 20 minutes, Salem said.

As part of his Buddhist practice, Wackerly believes in reincarnation and the teaching that the thoughts and feelings at the time of death can affect the circumstances of rebirth, according to court documents filed on his behalf. His spiritual adviser is to perform a ritual involving the physical touching of the inmate at or near the time of death. "The idea here is to allow this ritual," Salem said. Oklahoma Assistant Attorney General Dan Weitman appeared in court on behalf of prison officials and said he accepted the agreement.

Prison policy

Salem said the agreement does not end the problem and he still envisions further lawsuits challenging the ban on allowing spiritual advisers into the death chamber. Spiritual advisers were allowed inside the death chamber until 2003, when the policy was changed for security reasons, said Corrections Department spokesman Jerry Massie. A spiritual adviser who was wearing an ankle bracelet and on probation showed up and prison officials changed the policy.

Salem said in court documents that prison officials changed the policy after a Muslim spiritual adviser, the same man who was on probation and wearing an ankle bracelet, read a page from the Quran in Arabic. Death row inmates are allowed to visit with a spiritual adviser up to 30 minutes before the execution, Massie said. Spiritual advisers can observe executions from an observation room adjacent to the death chamber.

Donald Ray Wackerly, II

ProDeathPenalty.com

One evening in early September, 1996, Donald Ray Wackerly, II announced to his wife that they needed money and that he would do “whatever it took” to get it. He said this, almost as if to prove his point, while wearing latex gloves and loading his .22 caliber rifle, toweling off each bullet before packing it into the chamber.

The following day, with rifle in hand, Wackerly and his wife left their house in search of someone to rob. They drove to a dam on the Arkansas River near Muldrow, Oklahoma, in rural Sequoyah County. There, they spotted a lone truck parked by a levy, and an older gentleman, who turned out to be Pan Sayakhoummane, fishing nearby. Wackerly parked his Jeep a few feet from the truck and instructed his wife to walk down to the levy to see if any other people, aside from Pan, were there. She did as she was told, talked to Pan for a few minutes, and returned to her husband to confirm that they were alone. Wackerly then instructed his wife to sit and wait. Forty-five minutes passed before Pan returned to his truck, fishing gear in tow.

As he approached, Wackerly raised the hood of his Jeep and asked for help jump-starting the vehicle. Knowing what was going to happen next, Mrs. Wackerly knelt behind the Jeep. There, she heard seven or eight gun shots, followed by a thump. When she stood up, she saw Pan's body lying flat and her husband wrestling to free a fishing pole from underneath it. In order to dispose of Pan's body and truck, Wackerly drove the truck a short distance down a dirt road while Mrs. Wackerly followed in the couple's Jeep. Wackerly stopped the truck at a fork in the road, removed the reels from Pan's assorted fishing poles, and threw the poles into a wooded area. He also took a tackle box from the truck before asking his wife to wait while he drove Pan's truck, with Pan's body lying in its bed, into the river. As it happened, the truck's bumper caught on the river bed so the truck remained only partially submerged.

Finished with these tasks, as least as best he could, Wackerly returned to Mrs. Wackerly and the couple proceeded to a Sonic Drive-In restaurant for dinner. Later that night, Wackerly sifted through the contents of Pan's wallet and cut up all the identity cards he found. He placed the shredded cards in a ziplock bag and threw them away, as he did Pan's wallet. The other property he had stolen-Pan's tackle box and fishing reels-he stashed in a spare room. Eventually, Wackerly sold the reels to a local pawn shop for sixty dollars.

The day after the murder, a passerby found the partially submerged truck and Pan's body. An initial investigation produced no leads but at last Mrs. Wackerly, by this point estranged from her husband, came forward and told Oklahoma state investigators what happened. Based on her account, an agent retrieved Pan's fishing poles from the woods near the river and located his reels at the pawn shop, where the shop's owner confirmed that it was indeed Wackerly who had sold them. Agents also searched Wackerly's apartment and found Pan's tackle box, a pair of latex gloves, a .22 rifle, and a box of ammunition with some bullets missing. Both the weapon and ammunition were consistent with the bullet removed from Pan's body. In due course, Wackerly was charged with first-degree murder and robbery.

At trial, the State relied on the testimony of Mrs. Wackerly; physical evidence corroborating her account; the testimony of the pawn shop owner; and the testimony of Mrs. Wackerly's brother, Curtis Jones, who recounted that Wackerly had confessed to him that he, Wackerly, had killed a man at the dam. In the end, the jury convicted Wackerly of both the murder and robbery charges.

The case proceeded to a sentencing phase, at which the State argued that two statutory aggravating circumstances rendered Wackerly eligible for the death penalty: first, that the murder was committed in a manner aimed to avoid or prevent a lawful arrest or prosecution; and, second, that there was a probability that Wackerly would commit future criminal acts of violence that would constitute a continuing threat to society. The State relied on the evidence presented during the guilt phase to support both arguments, and also introduced additional evidence to support the second. This additional evidence established that Wackerly committed armed robbery of a Webber Falls, Oklahoma convenience store nine days after Pan's murder. While Mrs. Wackerly stood guard at the store's entrance, Wackerly, wearing a hunting mask and carrying a pistol, ordered the store's cashier to give him money. When the cashier declined, Wackerly held his pistol within inches of the cashier's forehead and repeated his demand. This time, the cashier complied. As Wackerly walked with cash in hand toward the exit, he heard a banging from the back of the store. Thinking it was a second employee, he turned back to the register, pointed his gun at the cashier, shouted “I'll kill both of you,” and sprinted away.

For its part, the defense presented three witnesses during the penalty phase. Sue Spinas testified that Wackerly performed farm labor for her, that he was a reliable employee, and that she would hire him again if she had the opportunity. Donna Lomax, Wackerly's half-sister, testified that Wackerly was spoiled by his parents and never disciplined, and, as a result, and through no fault of his own, he generally seemed unprepared for life. Ms. Lomax also testified that, when he was fourteen, Wackerly was the driver in a car accident in which his passenger died. He was never made to take responsibility for causing someone's death, Ms. Lomax related, again contributing, in her estimation, to his general unpreparedness for adulthood. Finally, Diana Branham, Wackerly's step-sister, testified that her seven-year old son had a great relationship with Wackerly. The jury rejected the mitigation and sentenced Wackerly to death.

Wackerly v. State, 12 P.3d 1 (Okla.Crim. App. 2000) (Direct Appeal).

Defendant was convicted following jury trial in the District Court, Sequoya County, John Garrett, J., of first degree murder and first degree robbery and was sentenced to death. Defendant appealed. The Court of Criminal Appeals, Strubhar, P.J., held that: (1) prosecution's use of peremptory challenges at off-the-record conferences to strike two of four Native Americans from jury panel was not fundamental error; (2) omission from search warrant affidavit of certain information allegedly undermining veracity of defendant's wife as informant was not material to finding probable cause; (3) latex gloves were properly seized during residential search under “plain view” doctrine; (4) wife's accomplice testimony was sufficiently corroborated; (5) robbery that was committed contemporaneously with murder could serve as predicate crime for aggravating circumstance that murder was committed to avoid prosecution; and (6) evidence supported “continuing threat” aggravating circumstance. Judgment and sentence affirmed.

Lumpkin, Vice-Presiding Judge, concurred in result and filed an opinion.

STRUBHAR, Presiding Judge:

Appellant, Donald Ray Wackerly, was convicted of First Degree Murder and First Degree Robbery, in the District Court of Sequoyah County, Case No. CF-96-349, after a jury trial held before the Honorable John Garrett. As to the count of First Degree Murder, the State filed a Bill of Particulars alleging two aggravating circumstances: 1) that the murder was committed for the purpose of avoiding or preventing lawful arrest or prosecution; FN1 and 2) the existence of a probability that Appellant would commit criminal acts of violence that would constitute a continuing threat to society.FN2 The jury found the existence of each of the alleged aggravating circumstances and assessed punishment at death on the First Degree Murder conviction. The jury assessed punishment at life imprisonment on the First Degree Robbery conviction. The trial court sentenced Appellant accordingly. From this Judgment and Sentence Appellant has perfected his appeal.FN3

FN1. 21 O.S.1991, § 701.12(5). FN2. 21 O.S.1991, § 701.12(7). FN3. Appellant's Petition-in-Error was filed in this Court on November 6, 1998. His Brief-in-Chief was filed on August 9, 1999, and the State's Response Brief was filed on December 7, 1999. Appellant's Reply Brief was filed on December 27, 1999. The case was submitted to this Court on December 21, 1999, and oral argument was heard on March 7, 2000.

FACTS

On the afternoon of September 7, 1996, Appellant and his wife, Michelle Wackerly, drove to a lock and dam area near Muldrow. They were looking for a person to rob and kill. The preceding night, Appellant had told his wife that they needed money and he was going to do whatever it took to get it. As he said this, Appellant, wearing latex gloves, loaded his rifle. When they were driving around the following afternoon, they saw a blue Toyota pickup parked by a levy and an Asian man fishing on the other side of the levy. Appellant parked his Jeep by the blue pickup and Michelle got out and walked around to look for other people in the area. Seeing none, she approached the man and spoke to him for about five minutes. She then went back to where the vehicles were parked. After forty-five minutes the man came back over the levy carrying his fishing gear. Appellant had raised the hood of his Jeep and asked the man if he had jumper cables to give him a jump. Knowing what was going to happen, Michelle knelt down behind the Jeep. She heard seven or eight gun shots and a thump. When she walked back around the Jeep, she saw that the man was in the bed of his pickup and Appellant was trying to pull a fishing pole out from under him. Michelle heard the man still trying to breath. Appellant drove the man's truck to another location where he drove it into the water. Along the way he threw some of the man's fishing poles into a wooded area. He kept the man's reels and a tackle box. A couple of days later, Appellant took the reels to Rocky's Pawn Shop in Roland. He kept the tackle box.

Around 12:30 a.m. on September 8, 1996, while Dennis Butler and his nephew, Rodney, were four-wheeling near a dam on the Arkansas river, they came upon a truck that was partially submerged in the water. A body was lying in the truck bed. They went back to Rodney's house and called the sheriff's department to report what they had seen. Dennis and Rodney escorted law enforcement officers to the truck where subsequent investigation revealed that Pan Sayakhoummane had been shot and was dead in the bed of the truck.

The investigation led to no suspects in this case until several months later. In December of 1996, Michelle Wackerly, Appellant's then estranged wife, along with her attorney, met with OSBI agents Franchini and Page. Michelle told the OSBI agents what had happened and she took them to where the murder had occurred. Pursuant to Michelle's information, agents retrieved fishing reels from Rocky's Pawn Shop. The owner of the shop confirmed that Appellant had pawned the reels. Appellant's apartment was searched and the search revealed, among other things, a .22 rifle, a box of ammunition with some bullets missing, some latex gloves, and the victim's tackle box. Michelle also directed the agents to the fishing poles that Appellant had thrown from the victim's truck into the woods.

VOIR DIRE ISSUES

Although most of the voir dire proceedings were conducted in open court on the record, that portion of voir dire where the parties exercised peremptory challenges was held in chambers and off the record. Appellant complains in his fourth proposition that this failure to maintain a complete record in a capital case was error which requires reversal. In support of his position he cites to decisions of this Court where relief was granted in capital cases upon a finding that the trial record was incomplete. See Conover v. State, 1999 OK CR 26, 990 P.2d 291 (reversal of sentencing stage was required where significant portions of the transcript, including the death qualifying portion of voir dire, were missing); Van White v. State, 1988 OK CR 47, 752 P.2d 814 (failure to transcribe voir dire required reversal as such failure prevented this Court from determining whether the trial court erred in excluding prospective jurors under Witherspoon v. Illinois FN4 and Wainwright v. Witt FN5). Appellant recognizes, however, that this Court has also held that a lack of record alone will not warrant reversal. See Parker v. State, 1994 OK CR 56, ¶¶ 26-27, 887 P.2d 290, 295 (Court failed to find reversible error where bench conferences were not recorded as no allegations of evidentiary error were alleged and lack of record of bench conferences did not hinder Court's ability to conduct the mandatory sentence review).

FN4. 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). FN5. 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985).

In the present case, Appellant alleges that reversal is warranted as a result of the failure to transcribe the exercise of peremptory challenges because without a record to review, it cannot be determined whether Witherspoon or Batson FN6 issues exist which could have been raised. The omission from the record of the exercise of peremptory challenges does not affect counsel's or this Court's ability to review for Witherspoon issues. The death qualifying portion of the voir dire proceedings, including challenges for cause, has been preserved in the record. FN6. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

With regard to Appellant's claim that the prosecutor may have exercised peremptory challenges in violation of Batson, we note that this Court held, in Black v. State, 1994 OK CR 4, ¶ 23, 871 P.2d 35, 42, where the peremptory challenges were off the record and there was no way to ascertain what, if any, reason was given for the dismissal of potential jurors, that Appellant waived his Batson challenge by failing to make a timely objection at trial. Accordingly, this Court can only review the record for fundamental error, viewing the pertinent facts in the light most favorable to the trial court's rulings. Id.

Appellant notes that it is apparent from the record that of the four Native Americans in the panels of potential jurors, two were struck by the State's use of peremptory challenges. The State argues that race neutral reasons for dismissing the two Native American jurors are evident from the record as both potential jurors had friends or relatives who had been or were being prosecuted for murder and both expressed a hesitation to impose the death penalty.FN7 Under these circumstances, combined with the lack of objection by defense counsel who was privy to the off-the-record conference at which the jurors were struck, we hold Appellant has not successfully raised an inference the prosecutor used peremptory challenges to strike jurors based upon race. We therefore find no fundamental error, as we are not left with “a definite and firm conviction that a mistake has been committed.” Hernandez v. New York, 500 U.S. 352, 369-370, 111 S.Ct. 1859, 1871-72, 114 L.Ed.2d 395, 412-13 (1991) (plurality opinion). This proposition warrants no relief. FN7. Trial Transcript pp. 22-23, 61-62, 44-45.

Appellant argues in his eleventh proposition that his constitutional rights were violated by the trial court's failure to remove, sua sponte, jurors who would automatically vote for the death penalty. He specifically complains that six jurors should have been removed for cause when they indicated that they were unable to consider fairly the lesser penalties of life and life without the possibility of parole. This Court has held that “[i]t is the duty of counsel to examine jurors on voir dire. Counsel then must discover any facts affecting their qualifications and then reasonably raise any objection that might exist as to any member of the panel.” Tate v. State, 1995 OK CR 24, ¶ 33, 896 P.2d 1182, 1191. Failure to do so waives all but plain error. Id. However, this Court has also held that “[t]he failure of the trial court to remove a prospective juror who unequivocally states that he is unwilling to follow the law during the penalty phase by considering a life sentence is error.” Ross v. State, 1986 OK CR 49, ¶ 11, 717 P.2d 117, 120, cert. granted, 482 U.S. 926, 107 S.Ct. 3209, 96 L.Ed.2d 696 (1987).

Of the six potential jurors at issue, four were removed by the defense through the exercise of peremptory challenges and only two, Jurors Sumoeter and Stuart, remained on the jury. Appellant cannot complain about the four potential jurors who did not sit on the jury. See Tate, 1995 OK CR 24, at ¶ 34, 896 P.2d at 1191. Further, he has failed to show how the use of his peremptory challenges on these four potential jurors prejudiced him. Id.

As to the remaining jurors, Sumoeter and Stuart, the record reveals that while each of these jurors expressed a clear ability to vote for the death penalty, they did not express that this was the only punishment option they would consider. Mrs. Sumoeter stated that she could consider the full range of punishment; life, life without the possibility of parole and death. She also mentioned that she had written a college research paper on capital punishment and she believed the death penalty to be applicable in some cases but she would consider all three punishment options based upon the evidence.FN8 Mrs. Stuart stated that she could consider the full range of punishment and listen to mitigating evidence.FN9 As neither of these potential jurors unequivocally stated that she was unwilling to follow the law during the penalty phase by considering any penalty other than death, the trial court cannot be found to have erred in not removing them for cause. Appellant also argues in his eleventh proposition that the trial court erred by refusing to conduct an individual voir dire. Appellant acknowledges this Court's ruling “[t]hat the decision to allow individual voir dire of potential jurors is committed to the sound discretion of the trial court and is not a right guaranteed to a defendant.” Douglas v. State, 1997 OK CR 79, ¶ 15, 951 P.2d 651, 661, cert. denied, 525 U.S. 884, 119 S.Ct. 195, 142 L.Ed.2d 159 (1998). In the present case, individual voir dire was not warranted. There is nothing in the record to indicate that the jurors were less than candid in their responses concerning the death penalty or that their responses to questions about the death penalty were given to avoid jury service. There is no evidence Appellant was denied a fair trial or a reliable sentencing hearing by the trial court's denial of the motion for individual voir dire. FN8. Trial Transcript pp. 104, 125-30. FN9. Trial Transcript pp. 104, 168.

FIRST STAGE ISSUES

In his first proposition, Appellant contends that items seized from his house pursuant to the execution of the search warrant should have been suppressed. He claims that the affidavit upon which the magistrate relied in issuing the search warrant omitted three fundamental pieces of information which, if known to the magistrate, would have precluded a finding of probable cause. Accordingly, Appellant argues that because the magistrate was deprived of fundamental information, the probable cause determination should be vitiated.

In Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 2684, 57 L.Ed.2d 667 (1978), the Supreme Court held that an affidavit supporting a factually sufficient search warrant may be attacked upon allegations that the affidavit contained deliberate falsehoods or reckless disregard for the truth. However, if when the inaccuracies are removed from consideration there remains in the affidavit sufficient allegations to support a finding of probable cause, the inaccuracies are irrelevant. See Id. “To determine this issue, we ask whether the warrant would have been issued if the judge had been given accurate information.” Gregg v. State, 1992 OK CR 82, ¶ 19, 844 P.2d 867, 875, citing United States v. Page, 808 F.2d 723, 729 (10th Cir.1987), cert. denied, 482 U.S. 918, 107 S.Ct. 3195, 96 L.Ed.2d 683 (1987).

Appellant specifically complains that the affiant, OSBI Agent Franchini, misled the magistrate by omitting information concerning the informant's varying accounts of her recollection regarding the location of the gun. Appellant also complains that the affiant omitted from the affidavit that the informant, Michelle Wackerly, had given information in exchange for complete immunity from prosecution. Finally, Appellant complains that the affiant failed to inform the magistrate that at the time the warrant was issued, the authorities had not yet fully established the informant's veracity. However, Appellant has not shown these omissions to be fundamental pieces of information which, if known to the magistrate, would have precluded a finding of probable cause.

The affidavit supporting the search warrant indicates that during the course of their investigation Michelle had taken agents to the place where the victim had been killed and the area where Appellant had thrown the victim's fishing poles. The affidavit also reveals that authorities had confirmed information provided by the informant that Appellant had pawned two of the victim's fishing reels at Rocky's Pawn Shop. When reviewing the totality of the circumstances, including both allegations included in the affidavit and those which Appellant contends should have been included in the affidavit, there is no doubt but that upon being fully informed, the magistrate would still have had a substantial basis for concluding that probable cause existed. See Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (The standard for review for the validity of a search warrant is the totality of circumstances). See also Lynch v. State, 1995 OK CR 65, ¶ 18, 909 P.2d 800, 804-05 (Our duty as a reviewing Court is simply “to ensure that the magistrate had a substantial basis for concluding that probable cause existed.”). Accordingly, we find the affiant's failure to inform the magistrate of the complained of omissions was not material to the finding of probable cause.

Appellant also complains in his first proposition that when the search warrant was executed, officers exceeded the scope of the warrant by seizing items not described therein. Although several items not listed in the warrant were seized by police, only one of these, a box of latex gloves, was actually admitted into evidence at trial. Generally, items not described in a search warrant may not be seized. Fritz v. State, 1986 OK CR 181, ¶ 8, 730 P.2d 530, 532. Appellant acknowledges that an exception to this rule is that seizure of items within the “plain view” of officers, who are legitimately in a position to obtain that view, is permissible. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). However, he argues that the box of gloves was not in plain view as it was found in a closed drawer of a bedside table. We find that this argument is not persuasive. The warrant authorized authorities to search for wallets and documents of identification belonging to the victim-items which may well have been placed in the closed drawer of a bedside table. Accordingly, when police opened the drawer to search for the small items listed in the search warrant, the items therein were in plain view. Further, although the latex gloves were not listed in the warrant, because the police had probable cause to believe that they may be useful as evidence they acted properly in seizing the gloves. See Texas v. Brown, 460 U.S. 730, 739, 103 S.Ct. 1535, 1542, 75 L.Ed.2d 502 (1983). This proposition is without merit.

Appellant complains in his second proposition that after the case was submitted to the jury, they were allowed to separate. The record reflects that the trial court did allow the jury to take a ten minute break after the case had been submitted to them and before they retired to the jury room for deliberations. During this time, while the evidence was being moved to the jury room, the jurors were allowed to go down stairs to smoke or to congregate at the end of the hall where they had taken other breaks.

It is true that under 22 O.S.1991, § 857, the jury may not separate after they have begun deliberations. This Court has held that if they are allowed to separate and commingle with people outside the group, prejudice is presumed. See Elliott v. State, 1988 OK CR 81, ¶ 14, 753 P.2d 920, 922. However, this Court has also held that, “[w]hen the court allows the jury to separate and counsel for both sides is present, their failure to object waives any potential error caused by the separation.” Id. See also Day v. State, 1989 OK CR 83, ¶ 15, 784 P.2d 79, 84.

In the case at bar, with counsel for both sides present, the judge allowed the jury to “separate” and go unattended into the hall or downstairs to smoke. Although defense counsel had filed a motion prior to trial to prohibit jury dispersal, no objection was made at this time nor was any admonishment requested. Accordingly, this Court may find that this error has been waived for review on appeal.

During the first stage of trial, the state called Michelle Wackerly to testify. She testified about statements Appellant made to her the night before the murder concerning his intent to kill someone and statements he made the following day around the time that the murder took place. Appellant argues in his third proposition that the statements he made to his wife about the murder were confidential communications under 12 O.S.1991, § 2504 FN10 which were privileged and that error occurred when Michelle Wackerly was allowed to testify about these privileged communications.

FN10. Title 12 O.S.1991, § 2504(A) provides: A communication is confidential for purposes of this section if it is made privately by any person to his spouse and is not intended for disclosure to any other person. [13] ¶ 21 This Court has held that “[s]tatements between a husband and wife are confidential if made when they are alone, or are expressly made confidential by the parties, or are induced by the marital relationship.” Watkins v. State, 1985 OK CR 79, ¶ 5, 702 P.2d 1045, 1046. However, exclusion of the testimony is not required if the accused subsequently discussed the subject matter with a third person. Johnson v. State, 1995 OK CR 62, ¶ 45, 911 P.2d 918, 927, cert. denied, 519 U.S. 839, 117 S.Ct. 116, 136 L.Ed.2d 67 (1996). In the present case, Appellant discussed the same subject matter with his brother-in-law, Curtis Jones. While he did not go into detail about the crime committed, he did admit to Jones that he had killed the victim in this case. Therefore, the confidential nature of his prior discussions with his wife was lost and exclusion of the challenged testimony was not required. The testimony of Michelle Wackerly regarding statements made to her by Appellant was not in error.

The trial court ruled as a matter of law that Michelle Wackerly was an accomplice and instructed the jury that her testimony had to be corroborated. In his fifth proposition, Appellant asserts that the accomplice testimony implicating him was not adequately corroborated by independent evidence.

“[T]he general rule is that testimony of an accomplice must be corroborated with evidence, that standing alone, tends to link the defendant to the commission of the crime charged....” Sadler v. State, 1993 OK CR 2, ¶ 22, 846 P.2d 377, 383. It is only required that there be at least one material fact of independent evidence that tends to connect the defendant with the commission of the crime. Id. Further, “this evidence may be direct or circumstantial and need not corroborate all of the material aspects of the crime.” Tibbs v. State, 1991 OK CR 115, ¶ 26, 819 P.2d 1372, 1380.

Appellant argues that aside from Michelle Wackerly's testimony that he actually shot the victim, there was no evidence which linked him to the actual commission of the crime. He claims that all other evidence-evidence that Michelle knew where to find the fishing poles, evidence that he had pawned the fishing reels, evidence that he was found to possess the rifle and tackle box-merely raises a suspicion of his guilt. Assuming, arguendo, that none of this evidence standing alone would necessarily link Appellant to the commission of the crime charged, there is other evidence which does. Curtis Jones testified that Appellant told him what had happened. In reference to the victim in this case, Appellant told Jones that “he was the one that did it.” FN11 Although Appellant argues that this testimony was too vague and unreliable to serve as adequate corroboration, we find it is sufficient independent evidence which links Appellant to the commission of the crime charged. Hence, the evidence was sufficient to corroborate the accomplice's testimony. FN11. Trial Transcript pp. 391-92.

Appellant argues in his sixth proposition that the evidence was insufficient to support his conviction for Robbery with a Firearm. He asserts that an essential element of robbery is that the victim must have been induced to part with his or her property by fear and there was no evidence in the present case that the victim was alive and in fear when the property was taken. Robbery with a Firearm is simply a robbery accomplished with the use of a firearm.FN12 Robbery, is “a wrongful taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” FN13 While the robbery in the present case may not have been accomplished by means of fear, it most certainly was accomplished by means of force. We decline to find merit in Appellant's argument that his robbery conviction cannot stand because the victim was killed before his property could be taken by means of fear. See Mitchell v. State, 1965 OK CR 138, ¶ 12, 408 P.2d 566, 571 (this Court adopted the premise that if the taking of property from the person of another is accomplished by force, although the victim does not know what is being done, it is, nevertheless, robbery). See also Diaz v. State, 1986 OK CR 167, ¶¶ 6-7, 728 P.2d 503, 509. FN12. 21 O.S.1991, § 801. FN13. 21 O.S.1991, § 791.

Appellant also contends that the robbery conviction cannot stand because the State relied wholly upon uncorroborated accomplice testimony to support it. As discussed above in Proposition V, the accomplice testimony about the events which gave rise to the charges in the present case was corroborated by independent evidence. This allegation of error is without merit.

Next, Appellant complains that the State failed to prove the crime of Robbery with a Firearm as alleged in the Information. The Information charged Appellant with having committed the crime of robbery by having taken and carried away from the victim “[t]wo fishing reels and an unknown amount of money.” FN14 Appellant argues that although Michelle Wackerly testified that Appellant had taken a wallet from the victim, she did not mention ever seeing any money taken by Appellant. Appellant fails to mention that the State did present evidence that he took from the victim two fishing reels as was alleged in the Information. Accordingly, there was no variance between the Information and the evidence presented at trial. This argument is without merit. FN14. Original Record p. 2.

Finally, Appellant argues that because the evidence was insufficient to support the robbery conviction, the State relied upon constitutionally insufficient evidence to support the imposition of the death penalty. Accordingly, he contends the imposition of his death sentence was unconstitutional. As we have found that the evidence was sufficient to support his conviction for Robbery with a Firearm, this argument must also fail.

ISSUES AFFECTING BOTH STAGES OF TRIAL

In his thirteenth proposition of error, Appellant claims he was denied a fair trial and sentencing proceeding because of improper comments made by the prosecutor during both stages of his trial. Appellant cites to several comments which he contends exceeded the bounds of proper prosecutorial advocacy. He claims that the prosecution improperly aligned itself with the jury, induced societal alarm, gave personal opinions, denigrated mitigating evidence, appealed for sympathy for the victims, encouraged a sentence based upon emotion and arbitrary factors and misstated the law. None of the comments complained of were objected to at trial. Accordingly, as to these remarks, all but plain error has been waived. Freeman v. State, 1994 OK CR 37, ¶ 15, 876 P.2d 283, 287-88, cert. denied, 513 U.S. 1022, 115 S.Ct. 590, 130 L.Ed.2d 503 (1994).

Many of the alleged instances cannot truly be labeled “prosecutorial misconduct.” Rather, they were the typical sort of questions asked or comments made during the normal course of a trial and accordingly, these instances fall within the broad parameters of effective advocacy and do not constitute error. Martinez v. State, 1999 OK CR 33, ¶ 44, 984 P.2d 813, 825, cert. denied, 529 U.S. 1102, 120 S.Ct. 1840, 146 L.Ed.2d 782 (2000). While a few instances bordered upon impropriety we must review them in light of the entire record. Id. at 826. Because we do not find that the inappropriate comments deprived Appellant of a fair trial or affected the jury's finding of guilt or assessment of the death penalty, we decline to grant relief on this proposition.

Appellant alleges in his fourteenth proposition that trial counsel made several errors which denied him effective assistance of counsel. To show ineffective assistance of counsel, a defendant must meet the two-pronged test set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First he must show that defense counsel's performance was deficient. This requires a showing that counsel made errors so egregious that he was not functioning as the counsel guaranteed by the Sixth Amendment. Second, he must show he was prejudiced by the deficient performance; that counsel's errors deprived him of a fair trial with a reliable outcome. Id. 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. “Any showing that the outcome would have been different is sufficient.” Duckett v. State, 1995 OK CR 61, ¶ 11, 919 P.2d 7, 14, cert. denied, 519 U.S. 1131, 117 S.Ct. 991, 136 L.Ed.2d 872 (1997). See also Fisher v. State, 1987 OK CR 85, ¶ 28, 736 P.2d 1003, 1011-12, cert. denied, 486 U.S. 1061, 108 S.Ct. 2833, 100 L.Ed.2d 933 (1988).

Appellant first complains that defense counsel was ineffective for failing to inquire whether ten of the twelve jurors seated would automatically impose the death penalty. The record reflects that the jurors were asked whether they could consider all three possible punishments for first degree murder. It is true that defense counsel could have pursued this further and asked each potential juror if they would automatically impose the death penalty. See Jones v. State, 1999 OK CR 8, ¶ 2, 990 P.2d 247, 249. While counsel did not ask this specific question he did ask a variety of other questions designed to garner from the jurors their opinions regarding the death penalty. Accordingly, on this issue we decline to find that defense counsel's performance was deficient.

Appellant also argues that defense counsel was deficient for failing to ask that two jurors who were partial to the death penalty be removed for cause. In Proposition XI Appellant complained that Jurors Sumoeter and Stuart were not dismissed for cause. We noted that while each of these jurors expressed a clear ability to vote for the death penalty, they did not express that this was the only punishment option they would consider. We found that because neither of these potential jurors unequivocally stated that she was unwilling to follow the law during the penalty phase by considering any penalty other than death, the trial court did not err in failing to remove them for cause. As Appellant was not entitled to have these two jurors removed for cause, defense counsel cannot be found deficient for failing to request such removal.

It is also Appellant's contention that trial counsel was ineffective for failing to object to the testimony of Michelle Wackerly on the grounds that it violated the marital privilege statute. As noted in Proposition III, the confidential nature of Appellant's prior discussions with his wife was lost when he discussed the same subject matter with his brother-in-law, Curtis Jones. Accordingly, exclusion of this testimony was not required. See Johnson, 1995 OK CR 62, at ¶ 18, 911 P.2d at 927. Defense counsel cannot be found deficient for failing to object to this admissible testimony.

Appellant further argues that defense counsel was deficient for failing to object to the improperly admitted victim impact evidence. As we note in Proposition XII, the victim impact statement was extremely short and largely appropriate. Even if counsel should have objected to this statement as it referenced unnamed family members, Appellant has fallen far short of showing that this failure to object rendered counsel's performance deficient. Hence, we cannot find Appellant was denied effective assistance of counsel based upon this allegation of error.

Finally, Appellant argues that he was denied effective assistance of counsel because defense counsel failed to argue at the suppression hearing that when the affiant obtained the search warrant he failed to inform the magistrate that the Informant was giving information in exchange for a deal and that the Informant's story had not yet been verified. Again, as discussed in Proposition I, these two alleged omissions did not constitute error affecting the constitutionality of the search warrant. Accordingly, defense counsel was not deficient for failing to argue them at the suppression hearing.

In addition to the ineffective assistance of counsel claims raised by Appellant in his Brief-in-Chief, he filed an Application for an Evidentiary Hearing asserting three additional claims which he contends are supported by evidence not in the record but which was available to defense counsel at the time of trial. In this application, Appellant requests an evidentiary hearing on: 1) the failure of defense counsel to impeach Michelle Wackerly; 2) the failure of defense counsel to produce evidence during the Franks hearing to establish that Agent Franchini misrepresented information regarding Michelle Wackerly's recollection of the location of the gun FN15; and 3) counsel's failure to investigate and present available evidence which would have warranted different verdicts and sentences in the first and second stages of trial.

FN15. On March 3, 2000, Appellant filed a Motion to Amend Original Application For Evidentiary Hearing on Sixth Amendment Claim in which he urges this Court to consider a tape recording of an OSBI interview with Michelle Wackerly and her attorney. Appellant avers that this tape recording supports the argument that defense counsel was ineffective for failing to bring to the trial court's attention evidence that Agent Franchini may have perjured himself in order to place in the affidavit sufficient information to support the magistrate's finding of probable cause. Rule 3.11(B)(3)(b), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (1999) provides that when an allegation of ineffective assistance of counsel is predicated upon trial counsel's alleged failure to utilize available evidence “appellate counsel may submit an application for an evidentiary hearing, together with affidavits setting out those items alleged to constitute ineffective assistance of trial counsel.” Appellate counsel in the present case has not attempted to amend his original application for evidentiary hearing with affidavits but instead, has attempted to amend his original application with the actual tape recording and the transcript thereof which he contends supports his claim. The tape recording and transcript are not properly before this Court and cannot be considered when ruling upon the application for evidentiary hearing. Accordingly, Appellant's Motion to Amend Original Application For Evidentiary Hearing on Sixth Amendment Claim is denied. As an aside, we note that even if we could consider the tape recording it would not change our ruling on the application for evidentiary hearing as there is no clear and convincing evidence showing a strong possibility that counsel was ineffective for failing to show that Michelle Wackerly's attorney invited Agent Franchini to perjure himself. Again, even if the magistrate had known of Michelle Wackerly's varying recollections of where the gun had last been seen and her attorney's willingness to have her say what he believed Franchini wanted to hear, the magistrate would still have had an abundance of sufficient, reliable information upon which to base his finding of probable cause.

Appellant requests this evidentiary hearing based upon Rule 3.11(B)(3)(b), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (1999). This rule 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 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 application and supporting exhibits, we find Appellant has shown this Court that trial counsel could perhaps have accessed other information in preparing for trial. However, Appellant has not shown by clear and convincing evidence a strong possibility that defense counsel was ineffective for failing to utilize or identify the complained-of evidence. Accordingly, we decline to grant Appellant's application for an evidentiary hearing.

SECOND STAGE ISSUES

The jury found the alleged aggravating circumstance that the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution. In his seventh proposition Appellant contends that this finding was unsupported under the law for several reasons. Appellant correctly advises that this aggravating circumstance requires a predicate crime, separate from the murder, for which a defendant seeks to avoid arrest or prosecution. See Barnett v. State, 1993 OK CR 26, ¶ 30, 853 P.2d 226, 233. “Where such crimes are not separate and distinct from the murder itself, but rather significantly contribute to the death, they may not be used as the predicate crime for purposes of this aggravating circumstance.” Id. at 234. Appellant argues that the evidence presented at trial did not support this aggravating circumstance because the robbery was not a predicate crime, separate and distinct from the murder.

The evidence presented at trial makes clear that Appellant intended to commit a robbery and was prepared to kill to get the money he wanted. Although the murder occurred contemporaneously with the robbery, we find it was separate and distinct from the robbery. The evidence in the present case was sufficient to support the jury's finding that the murder was committed to avoid lawful arrest or prosecution.

It is also argued that the State failed to prove beyond a reasonable doubt that Appellant intended to commit murder for the purpose of preventing or avoiding lawful arrest. This Court has held that a defendant's intent is critical to a determination of whether he killed to avoid arrest or prosecution. See Powell v. State, 1995 OK CR 37, ¶ 66, 906 P.2d 765, 781, cert. denied, 517 U.S. 1144, 116 S.Ct. 1438, 134 L.Ed.2d 560 (1996). We have further noted that “as in other areas of criminal law, the defendant's intent can be proved by circumstantial evidence.” Id. See also Snow v. State, 1994 OK CR 39, ¶ 33, 876 P.2d 291, 299, cert. denied, 513 U.S. 1179, 115 S.Ct. 1165, 130 L.Ed.2d 1120 (1995). When the evidence relied upon to support this aggravating circumstance is entirely circumstantial, the evidence must exclude any reasonable hypothesis except that Appellant murdered the decedent to avoid arrest or prosecution for the underlying robbery. See Romano v. State, 1995 OK CR 74, ¶ 73, 909 P.2d 92, 119, cert. denied, 519 U.S. 855, 117 S.Ct. 151, 136 L.Ed.2d 96 (1996).

It is not clear from the facts of this case whether Appellant intended to killed his victim to facilitate the robbery or whether he killed his victim to avoid arrest for the robbery. There is some circumstantial evidence that Appellant was interested in avoiding detection for this crime. This is evinced by the testimony of Michelle Wackerly that after they parked by the victim's truck, Appellant told her to go over the levy and see if there were any other people in the area.FN16 Because Appellant did not disguise his identity, the victim could have identified him after the robbery. Accordingly, this Court finds that the evidence excludes every reasonable hypothesis except that Appellant killed to avoid arrest. FN16. Trial Transcript p. 308.

Appellant next argues that during voir dire, the prosecutor provided an incomplete and misleading definition of this aggravating circumstance to the jury. The record supports this assertion. However, the record also reveals that the comment at issue was not met with objection by defense counsel. The general rule is that when the State makes an objectionable statement, it is incumbent upon defense counsel to make a timely, contemporaneous objection. Failure to object waives all but plain error on appeal. Cheatham v. State, 1995 OK CR 32, ¶ 37, 900 P.2d 414, 422. This isolated comment did not rise to the level of plain error.

The trial court instructed the jury that the State relied “in part” on circumstantial evidence to prove this aggravator.FN17 Appellant argues that this instruction was in error as all of the evidence relied upon to support this aggravating circumstance was circumstantial. Again, as counsel did not object to this instruction he has waived all but plain error. Wilson v. State, 1998 OK CR 73, ¶ 79, 983 P.2d 448, 466, cert. denied, 528 U.S. 904, 120 S.Ct. 244, 145 L.Ed.2d 205 (1999). This instruction was not plain error. FN17. Original Record p. 270.

Finally, Appellant argues that the aggravating circumstance that “the murder was committed for the purpose of avoiding arrest or prosecution” is being applied and interpreted in an unconstitutionally vague and overbroad manner. The aggravating circumstance, “that the murder was committed to avoid lawful arrest or prosecution” has been found to be neither vague nor overbroad. See Toles v. State, 1997 OK CR 45, ¶ 61, 947 P.2d 180, 192, cert. denied, 524 U.S. 958, 118 S.Ct. 2380, 141 L.Ed.2d 746 (1998). See also Castro v. State, 1992 OK CR 80, ¶ 44, 844 P.2d 159, 175, cert. denied, 510 U.S. 844, 114 S.Ct. 135, 126 L.Ed.2d 98 (1993).

At the close of the second stage of trial, defense counsel requested the jury be instructed that they could consider as mitigating evidence that “Michelle Wackerly, the accomplice to these charges, was given immunity from prosecution.” FN18 The trial court declined to give this instruction. Appellant argues in his eighth proposition that this ruling was in error. In support of his argument Appellant cites Penry v. Lynaugh, 492 U.S. 302, 327-28, 109 S.Ct. 2934, 2951, 106 L.Ed.2d 256 (1989) for its holding that a “jury must be allowed to consider and give effect to mitigating evidence relevant to a defendant's character or record or the circumstances of the offense.” Appellant correctly notes that this Court has addressed the issue of whether an accomplice's sentence is relevant to a defendant's character, record or is a circumstance of the offense: FN18. Original Record p. 286.

In the sentencing phase of the trial, the fact that an alleged accomplice did not receive the death penalty is no more relevant as a mitigating factor for the defendant than the fact that an alleged accomplice did receive the death penalty would be as an aggravating circumstance against him. Simply put, an alleged accomplice's sentence has no bearing on the defendant's character or record and it is not a circumstance of the offense. Brogie v. State, 1985 OK CR 2, ¶ 39, 695 P.2d 538, 546-47, citing Coulter v. State, 438 So.2d 336 (Ala.Cr.App.1982).

Appellant argues that Brogie and Coulter are distinguishable from the present case as neither decision considered the relevance of such evidence when an accomplice testifies against the accused. We find this distinction to be inapposite to the reasoning of Brogie and Coulter. Although the accomplice's sentence or immunity from prosecution is not relevant as a mitigating factor, defense counsel was allowed to argue that the jury should not subject Appellant to death while the other participant in this crime was free from prosecution. In turn, the State acknowledged that justice was not meted out to one participant in the crime and urged the jury to do “justice” in the present case by giving Appellant the death penalty. Appellant argues that the prosecutor unfairly used this evidence against him. Just as an accomplice's sentence is not relevant as mitigating evidence, it is also irrelevant as evidence against an accused. However, in the present case, the prosecutor's comments were not met with objection and accordingly, will not warrant relief absent a showing of plain error. Martinez, 1999 OK CR 33, at ¶ 67, 984 P.2d at 825. Appellant argues that in light of the absence of his requested instruction and the prosecutor's argument, the jury was only allowed to use evidence of the accomplice's immunity from prosecution against him. We find it equally tenable that they could have considered defense counsel's arguments to the contrary. There was no plain error here.

Appellant asserts in his ninth proposition that the application of the continuing threat aggravating circumstance to his case violated his constitutional rights. He specifically argues that the trial court's instructions to the jury regarding this aggravating circumstance were constitutionally infirm because they did not require the State to prove beyond a reasonable doubt that he would commit future acts of violence, only that there existed a probability that he would commit future acts of violence which would constitute a continuing threat to society. This, he contends, was confusing to the jury as it suggested that the State was required to prove only a probability that Appellant would commit future acts of violence despite the fact that Oklahoma statutes require the jury to find aggravating circumstances unanimously and beyond a reasonable doubt. Appellant's argument is misplaced as Oklahoma statutes clearly require the State to prove beyond a reasonable doubt the existence of a probability that Appellant would commit criminal acts of violence which would constitute a continuing threat to society. 21 O.S.1991, §§ 701.11 and 701.12(7).

Appellant also argues that the use of the word “probability” renders the aggravating circumstance unconstitutional as a “probability” is a statistical term, the application of which is incapable of narrowing the class of defendants who are eligible for the death penalty. Thus, he argues the word “probability” renders the aggravator unconstitutionally vague and overbroad. The argument that the continuing threat aggravating circumstance is vague and overbroad has been consistently rejected by this Court. E.g., Cannon v. State, 1998 OK CR 28, ¶ 73, 961 P.2d 838, 855; Bryan v. State, 1997 OK CR 15, ¶ 55, 935 P.2d 338, 365, cert. denied, 522 U.S. 957, 118 S.Ct. 383, 139 L.Ed.2d 299 (1997). Further, we have specifically found that “the phrase ‘the existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society’ is clear and does not require further definition.” Id.

Appellant also argues that the trial court's instructions to the jury on the continuing threat aggravating circumstance were vague and did not sufficiently narrow the jury's discretion as they allowed the jury to presume the requisite threat of future violence upon a finding of any type of future generalized threat. They did not properly focus the jury's attention on future acts of violence. This argument has been previously rejected by this Court in Short v. State, 1999 OK CR 15, ¶ 70, 980 P.2d 1081, 1103-04, cert. denied, 145 U.S. 683, 120 S.Ct. 811, 145 L.Ed.2d 683 (2000). We will not depart from this holding at this time. Appellant's argument's are rejected.

In his tenth assignment of error, Appellant contends the evidence was insufficient to support the “continuing threat” aggravating circumstance. To support this aggravator, the State must present evidence showing the defendant's behavior demonstrated a threat to society and a probability that threat would continue to exist in the future. Humphreys v. State, 1997 OK CR 59, ¶ 35, 947 P.2d 565, 576, cert. denied, 511 U.S. 1077, 114 S.Ct. 1663, 128 L.Ed.2d 379 (1994). This Court has held that prior unadjudicated acts of violent conduct are relevant to the determination of whether a defendant is likely to commit future acts of violence that would constitute a continuing threat to society. Darks v. State, 1998 OK CR 15, ¶ 41, 954 P.2d 152, 164. Evidence of the callous nature of the crime and a defendant's blatant disregard for the importance of human life has been held sufficient to support this aggravating circumstance as well. Id.

To support the alleged continuing threat aggravator in the present case, the State introduced evidence that Appellant had committed an unadjudicated robbery of a convenience store in Webber Falls. Appellant acknowledges that this Court has long held that evidence of unadjudicated crimes is admissible to show that a defendant poses a continuing threat to society. See Turrentine v. State, 1998 OK CR 33, ¶ 77, 965 P.2d 955, 977, cert. denied, 525 U.S. 1057, 119 S.Ct. 624, 142 L.Ed.2d 562 (1998). However he urges this Court to depart from this established precedent for the reasons stated by Judge Chapel in his dissent in Paxton v. State, 1993 OK CR 59, ¶¶ 2-9, 867 P.2d 1309, 1334-36 (Chapel, dissenting), cert. denied, 513 U.S. 886, 115 S.Ct. 227, 130 L.Ed.2d 153 (1994). Appellant would have this Court ban the use of unadjudicated crimes to prove the continuing threat or, in the alternative, place restrictions on the use of such evidence. We decline to revisit this issue at this time.

Appellant also argues that allowing evidence of unadjudicated crimes to be used to prove the continuing threat aggravating circumstance violates his constitutional right to equal protection of the law because Oklahoma law bans the use of unadjudicated offenses to enhance punishment for noncapital offenses. To show an equal protection violation Petitioner must show that this law “impermissibly interferes with his exercise of a fundamental right or operates to the peculiar disadvantage of him as a member of a suspect class; or that the [law] is not rationally related to a legitimate state interest.” Clayton v. State, 1995 OK CR 3, ¶ 17, 892 P.2d 646, 654, cert. denied, 516 U.S. 846, 116 S.Ct. 137, 133 L.Ed.2d 84 (1995). Appellant does not argue that he is a member of a suspect class, but indicates this law must be evaluated under the rational basis test. Accordingly, Appellant must prove there is no rational basis for the law which allows the use of unadjudicated crimes be used to prove the continuing threat aggravating circumstance if he is to succeed in his argument. Under this approach, the challenged classification must be “rationally related to a legitimate state interest.” City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2517, 49 L.Ed.2d 511 (1976). See also Crawford v. State, 1994 OK CR 58, ¶ 5, 881 P.2d 88, 90, citing Swart v. State, 1986 OK CR 92, ¶ 9, 720 P.2d 1265, 1268. This constitutional standard is “offended only if the classification rests on grounds wholly irrelevant to the achievement of the state's objective.” McGowan v. Maryland, 366 U.S. 420, 425, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961).

We believe that Oklahoma's capital sentencing procedure passes constitutional muster under the rational basis standard. The purpose of allowing evidence of nonadjudicated offenses is to assist the jury in determining whether the defendant is likely to be a continuing threat to society. This evidence helps focus the jury on the individual offender. Oklahoma has a strong interest in ensuring that all relevant evidence concerning the capital defendant is placed before the jury so that it can consider the evidence when determining whether the alleged aggravating circumstances exist. In furthering this interest, the State could rationally decide that different procedures should be used for capital defendants than for noncapital defendants. We reject Appellant's claim that Oklahoma's use of nonadjudicated offenses to support the continuing threat aggravating circumstance violates the Equal Protection Clause of the Fourteenth Amendment.

The evidence of Appellant's robbery of the Hit and Run convenience store in Webber Falls only nine days after the crime which is the subject of the present case was not unsupported and unreliable as Appellant argues. Michelle Wackerly testified that she and Appellant robbed the convenience store. She stated that they wore masks and each carried a gun. Appellant wore an orange and brown hunting mask. Colleen Parker testified that she was the clerk at the Hit and Run store in Webber Falls on September 16, 1996, when the store was robbed by two people. The male was mostly covered and was holding a dark colored gun. On September 21, 1996, Stigler police stopped a jeep occupied by Appellant and Michelle Wackerly. A subsequent search of this vehicle revealed an orange face mask and a .22 pistol. This gun was identified by Colleen Parker as the weapon which Appellant used during the robbery of the Hit and Run.

Appellant also argues that the nature of the crime in this case does not support the continuing threat aggravating circumstance because the crime was not committed in a particularly brutal or calloused manner. “In determining the callousness of the crime, the defendant's attitude is critical to the determination of whether he poses a continuing threat to society.” Turrentine, 1998 OK CR 33, at ¶ 78, 965 P.2d at 977. Further, “[a] defendant who does not appreciate the gravity of taking another's life is more likely to do so again.” Snow, 1994 OK CR 39, at ¶ 30, 876 P.2d at 298. In the present case, the calloused nature of the crime, evinced in part by Appellant's cavalier attitude about taking another person's life, supported the continuing threat aggravating circumstance. Accordingly, we find that the jury's determination that Appellant poses a continuing threat to society beyond a reasonable doubt is supported by evidence of the unadjudicated robbery and the calloused nature of the crime. Reversal of this aggravating circumstance is not required.

In his twelfth proposition, Appellant argues that his death sentence must be vacated because the victim impact evidence violated his constitutional rights. He first complains that the victim impact testimony given by the victim's wife violated the statutory restrictions on victim impact testimony because she testified that “all of the family” misses the victim and feels grief.FN19 Appellant contends that this was improper victim impact testimony because it could have referred to the effects of the crime on individuals beyond those enumerated in the statute. Proper victim impact evidence is limited to information “about the financial, emotional, psychological, and physical effects of a violent crime on each victim and members of their immediate family....” FN20 The term “members of the immediately family” is defined as “the spouse, a child by birth or adoption, a stepchild, a parent, or sibling....” FN21 While it is true that Mrs. Sayakhoummane did not specify to whom she was referring when she referenced “all of the family” or “we,” any error in the few ambiguous references to family that she made in her extremely short victim impact statement cannot be found to have been anything but a minor departure from the statutory requirements. The arguably improper portions of this victim impact statement, which were not met with objection, were not plain error which could in any way be found to have affected the sentencing proceeding. FN19. Trial Transcript p. 532-33. FN20. 22 O.S.Supp.1999, § 984(1). FN21. 22 O.S.Supp.1999, § 984(2).

Appellant also complains that the trial court erred in failing to hold an in-camera hearing to determine the admissibility of the victim impact evidence. It is true that this Court has held that an in-camera hearing should be held by the trial court to determine the admissibility of the evidence as it relates to 12 O.S.1991, § 2403. Cargle v. State, 1995 OK CR 77, ¶ 76, 909 P.2d 806, 828, cert. denied, 519 U.S. 831, 117 S.Ct. 100, 136, 136 L.Ed.2d 54 L.2d 54 (1996). The failure of the trial court to hold the in-camera hearing was error. However, the record reflects that defense counsel did not object to the presentation of the victim impact evidence at trial and therefore, he has waived all but plain error. See Le v. State, 1997 OK CR 55, ¶ 38, 947 P.2d 535, 551, cert. denied, 524 U.S. 930, 118 S.Ct. 2329, 141 L.Ed.2d 702 (1998). The victim impact statement was extremely short and it was largely appropriate. The failure to hold an incamera hearing was harmless beyond a reasonable doubt. There was no plain error.

Finally, Appellant argues that victim impact evidence negates the narrowing function that death penalty procedures are required to provide. He argues it operates as a “superaggravator” that skews the results in the balancing of aggravating and mitigating circumstances. We have consistently rejected this argument noting that the State is required to prove at least one aggravator beyond a reasonable doubt before the death penalty may be imposed. See Alverson v. State, 1999 OK CR 21, ¶ 73, 983 P.2d 498, 519, cert. denied, 528 U.S. 1089, 120 S.Ct. 820, 145 L.Ed.2d 690 (2000).

In his fifteenth proposition, Appellant argues that the instructions given to the jury on the issue of mitigation permitted jurors to ignore the mitigating evidence altogether and seriously diminished the effect of the mitigating evidence. He also contends the instructions on the manner in which the jury was to weigh the aggravating circumstances were erroneous and set forth an improper burden of proof. Although Appellant acknowledges that this Court has rejected these arguments in the past,FN22 he urges this Court to reconsider its prior rulings. As Appellant has not provided persuasive argument as to why we should reconsider well established precedent, we decline to do so at this time.

FN22. See Alverson, 1999 OK CR 21, at ¶ 66, 983 P.2d at 518; Salazar v. State, 1998 OK CR 70, ¶ 33, 973 P.2d 315, 328, cert. denied, 528 U.S. 895, 120 S.Ct. 226, 145 L.Ed.2d 190 (1999); Patton v. State, 1998 OK CR 66, ¶ 99, 973 P.2d 270, 298, cert. denied, 528 U.S. 939, 120 S.Ct. 347, 145 L.Ed.2d 271 (1999).

In his final proposition, Appellant asks this Court to review the aggregate impact of the errors in his case in addition to reviewing the errors individually. This Court has held that where there is no error present, there can be no accumulation of error. However, when there have been numerous irregularities during the course of the trial that tend to prejudice the rights of the defendant, reversal will be required if the cumulative effect of all the errors was to deny the defendant a fair trial. (citations omitted) Smith v. State, 1996 OK CR 50, ¶ 62, 932 P.2d 521, 538, cert. denied, 521 U.S. 1124, 117 S.Ct. 2522, 138 L.Ed.2d 1023 (1997). See also Bechtel v. State, 1987 OK CR 126, ¶ 12, 738 P.2d 559, 561. While it can be found in the present case that there were irregularities during the course of the trial, even taken together, these cannot be found to have been so great as to have denied Appellant a fair trial. Accordingly, after reviewing the errors in aggregate, we find that they were harmless beyond a reasonable doubt. Relief is not warranted.

MANDATORY SENTENCE REVIEW

In accordance with our statutory duty, we must now determine whether the death sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor, and also whether the evidence supports the jury's finding of the alleged statutory aggravating circumstances. See 21 O.S.1991, § 701.13(C). We are satisfied that neither passion, prejudice nor any other arbitrary factor contributed to the jury's sentencing determination. After carefully reviewing the evidence presented, we also find that it supported the jury's finding of the aggravating circumstances.

Finding no error warranting reversal or modification, Appellant's Judgment and Sentence is AFFIRMED. JOHNSON, J., and LILE, J., concur. LUMPKIN, V.P.J., and CHAPEL, J., concur in results.

LUMPKIN, Vice-Presiding Judge: Concur in Result.

I concur in the Court's decision to affirm the judgment and sentence in this case. However, I write to address what I believe should be the analysis in two of the propositions of error.

In the Court's analysis of Proposition III, it fails to point out Appellant is attempting to raise the issue of marital privilege for the first time on appeal. He failed to raise any objection at trial to what he now alleges were confidential marital communications. Failure to object waives the issue and Appellant has failed to show the admission of the testimony constitutes plain error. See Simpson v. State, 876 P.2d 690 (Okl.Cr.1994). In addition, the actions of Michelle Wackerly were not communications/conversations which would fall within the marital privilege. She would have been able to testify as to what she observed regardless of whether the privilege had been claimed or not. See Coleman v. State, 668 P.2d 1126, 1134 (Okl.Cr.1983). See also 2 L. Whinery, Oklahoma Evidence: Commentary on the Law of Evidence, § 38.05 (1994). For these reasons, I agree Proposition III is without merit.

Appellant alleges ineffective assistance of counsel in Proposition XIV. This Court has consistently applied the two pronged test set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), in adjudicating whether counsel was ineffective. In explaining the prejudice prong of Strickland, this Court has previously relied on Lockhart v. Fretwell, 506 U.S. 364, 369-70, 113 S.Ct. 838, 842-43, 122 L.Ed.2d 180, 189 (1993) to the extent that an analysis focusing solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective. Our reliance upon Lockhart's analysis into the fundamental fairness of the trial to explain one prong of the Strickland test was based upon language from Strickland that “[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result,” 466 U.S. at 686, 104 S.Ct. at 2064, and “[s]econd, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” 466 U.S. at 694, 104 S.Ct. at 2064. However, recently in Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), the Supreme Court backed away from its emphasis on the fundamental fairness of the trial when analyzing prejudice. The Court stated that an analysis of the prejudice prong was to focus solely on whether there was a reasonable probability that but for counsel's unprofessional errors, the rest of the proceeding would have been different. Id. at 120 S.Ct. 1495. Therefore, pursuant to Williams, our analysis of an ineffective assistance of counsel claim is appropriately based solely upon the two prong test set forth in Strickland, and our prejudice determination is based upon whether the outcome of the trial would have been different but for counsel's unprofessional errors.

The Court's discussion of Proposition VII is somewhat inherently inconsistent and fails to apply the proper standard of review. This record presents both direct and circumstantial evidence both as to the crime itself and the proof of the aggravating circumstances found by the jury. As to the crime itself, I have previously stated this Court should adopt a unified Spuehler-type approach to evaluating the sufficiency of the evidence in all cases, whether they contain both direct and circumstantial evidence, or whether they contain entirely circumstantial evidence. See White v. State, 900 P.2d 982, 993-94 (Okl.Cr.1995) (Lumpkin, J., specially concurring). However, “[w]hen the sufficiency of the evidence of an aggravating circumstance is challenged on appeal, the proper test is whether there was any competent evidence to support the State's charge that the aggravating circumstance existed.” Romano v. State, 847 P.2d 368, 387 (Okl.Cr.1993). “In making this determination, this Court should view the evidence in the light most favorable to the State.” Id. Applying the proper test the evidence is sufficient to support the finding of the jury as to each of the aggravators.

Wackerly v. Workman, 580 F.3d 1171 (10th Cir. 2009) (Habeas).

Background: After his conviction for first-degree murder and sentence to death were affirmed, 12 P.3d 1, and his state-court habeas corpus petition denied, defendant filed a federal habeas petition. The United States District Court for the Eastern District of Oklahoma, Frank Howell Seay, Senior District Judge, 2007 WL 963210, denied the petition. After defendant appealed, the Court of Appeals sua sponte ordered the case consolidated with Wilson v. Sirmons, scheduled an en banc session to resolve an intra-circuit split of authority, 549 F.3d 1267, and remanded to the panel,577 F.3d 1284.

Holding: On remand, the Court of Appeals, Gorsuch, Circuit Judge, held that defense counsel's allegedly deficient performance during sentencing did not constitute ineffective assistance. Affirmed.

GORSUCH, Circuit Judge.

This case arises out of a 1996 crime in which Donald Wackerly planned and executed the murder of a stranger for petty cash. After trial, an Oklahoma jury found Mr. Wackerly guilty of first-degree murder and sentenced him to death. An appeal and post-conviction habeas corpus petition before state courts followed, but neither succeeded. Mr. Wackerly then filed a federal habeas petition in the United States District Court for the Eastern District of Oklahoma. The district court denied this petition, too. Mr. Wackerly now appeals the district court's disposition to us, and in doing so presents a single issue for our decision: whether trial counsel rendered ineffective assistance by failing to investigate and then present certain evidence to the jury during the penalty phase of his trial. Like the district court before us, we discern no reasonable probability that the evidence he points to would have altered his sentence. Accordingly, we affirm.

I

One evening in early September, 1996, Mr. Wackerly announced to his wife that they needed money and that he would do “whatever it took” to get it. He said this, almost as if to prove his point, while wearing latex gloves and loading his .22 caliber rifle, toweling off each bullet before packing it into the chamber.

The following day, with rifle in hand, Mr. Wackerly and his wife left their house in search of someone to rob. They drove to a dam on the Arkansas River near Muldrow, Oklahoma, in rural Sequoyah County. There, they spotted a lone truck parked by a levy, and an older gentleman, who turned out to be Pan Sayakhoummane, fishing nearby. Mr. Wackerly parked his Jeep a few feet from the truck and instructed his wife to walk down to the levy to see if any other people, aside from Mr. Sayakhoummane, were there. She did as she was told, talked to Mr. Sayakhoummane for a few minutes, and returned to her husband to confirm that they were alone. Mr. Wackerly then instructed his wife to sit and wait.

Forty-five minutes passed before Mr. Sayakhoummane returned to his truck, fishing gear in tow. As he approached, Mr. Wackerly raised the hood of his Jeep and asked for help jump-starting the vehicle. Knowing what was going to happen next, Mrs. Wackerly knelt behind the Jeep. There, she heard seven or eight gun shots, followed by a thump. When she stood up, she saw Mr. Sayakhoummane's body lying flat and her husband wrestling to free a fishing pole from underneath it.

In order to dispose of Mr. Sayakhoummane's body and truck, Mr. Wackerly drove the truck a short distance down a dirt road while Mrs. Wackerly followed in the couple's Jeep. Mr. Wackerly stopped the truck at a fork in the road, removed the reels from Mr. Sayakhoummane's assorted fishing poles, and threw the poles into a wooded area. He also took a tackle box from the truck before asking his wife to wait while he drove Mr. Sayakhoummane's truck, with Mr. Sayakhoummane's body lying in its bed, into the river. As it happened, the truck's bumper caught on the river bed so the truck remained only partially submerged. Finished with these tasks, as least as best he could, Mr. Wackerly returned to Mrs. Wackerly and the couple proceeded to a Sonic Drive-In restaurant for dinner.

Later that night, Mr. Wackerly sifted through the contents of Mr. Sayakhoummane's wallet and cut up all the identity cards he found. He placed the shredded cards in a ziplock bag and threw them away, as he did Mr. Sayakhoummane's wallet. The other property he had stolen-Mr. Sayakhoummane's tackle box and fishing reels-he stashed in a spare room. Eventually, Mr. Wackerly sold the reels to a local pawn shop for sixty dollars.

The day after the murder, a passerby found the partially submerged truck and Mr. Sayakhoummane's body. An initial investigation produced no leads but at last Mrs. Wackerly, by this point estranged from her husband, came forward and told Oklahoma state investigators what happened. Based on her account, an agent retrieved Mr. Sayakhoummane's fishing poles from the woods near the river and located his reels at the pawn shop, where the shop's owner confirmed that it was indeed Mr. Wackerly who had sold them. Agents also searched Mr. Wackerly's apartment and found Mr. Sayakhoummane's tackle box, a pair of latex gloves, a .22 rifle, and a box of ammunition with some bullets missing. Both the weapon and ammunition were consistent with the bullet removed from Mr. Sayakhoummane's body.

In due course, Mr. Wackerly was charged with first-degree murder and robbery. At trial, the State relied on the testimony of Mrs. Wackerly; physical evidence corroborating her account; the testimony of the pawn shop owner; and the testimony of Mrs. Wackerly's brother, Curtis Jones, who recounted that Mr. Wackerly had confessed to him that he, Mr. Wackerly, had killed a man at the dam. In the end, the jury convicted Mr. Wackerly of both the murder and robbery charges.

The case proceeded to a sentencing phase, at which the State argued that two statutory aggravating circumstances rendered Mr. Wackerly eligible for the death penalty: first, that the murder was committed in a manner aimed to avoid or prevent a lawful arrest or prosecution; and, second, that there was a probability that Mr. Wackerly would commit future criminal acts of violence that would constitute a continuing threat to society. Okla. Stat. tit. 21, § 701.12. The State relied on the evidence presented during the guilt phase to support both arguments, and also introduced additional evidence to support the second. This additional evidence established that Mr. Wackerly committed armed robbery of a Webber Falls, Oklahoma convenience store nine days after Mr. Sayakhoummane's murder. While Mrs. Wackerly stood guard at the store's entrance, Mr. Wackerly, wearing a hunting mask and carrying a pistol, ordered the store's cashier to give him money. When the cashier declined, Mr. Wackerly held his pistol within inches of the cashier's forehead and repeated his demand. This time, the cashier complied. As Mr. Wackerly walked with cash in hand toward the exit, he heard a banging from the back of the store. Thinking it was a second employee, he turned back to the register, pointed his gun at the cashier, shouted “I'll kill both of you,” and sprinted away.

For its part, the defense presented three witnesses during the penalty phase. Sue Spinas testified that Mr. Wackerly performed farm labor for her, that he was a reliable employee, and that she would hire him again if she had the opportunity. Donna Lomax, Mr. Wackerly's half-sister, testified that Mr. Wackerly was spoiled by his parents and never disciplined, and, as a result, and through no fault of his own, he generally seemed unprepared for life. Ms. Lomax also testified that, when he was fourteen, Mr. Wackerly was the driver in a car accident in which his passenger died. He was never made to take responsibility for causing someone's death, Ms. Lomax related, again contributing, in her estimation, to his general unpreparedness for adulthood. Finally, Diana Branham, Mr. Wackerly's step-sister, testified that her seven-year old son had a great relationship with Mr. Wackerly.

Based on this evidence, Instruction No. 10 to the jury informed them that: Evidence has been introduced as to the following mitigating circumstances: 1. The defendant did not have any significant history of prior criminal activity. 2. The defendant is likely to be rehabilitated. 3. The defendant's emotional/family history. 4. Don Wackerly loves his family[.] 5. Don Wackerly's family loves him. 6. Don Wackerly was a steady, reliable employee for Sue Spinas. 7. Don Wackerly's execution would have a devastating effect upon his nephew.

In addition, you may decide that other mitigating circumstances exist, and if so, you should consider those circumstances as well. App. at 272. The jurors were further directed that they “may consider sympathy or sentiment for the defendant in deciding whether to impose the death penalty,” and that they could impose a non-capital punishment even if they found the aggravating circumstances outweighed the mitigating circumstances. Id. at 273, 275.

The jury sentenced Mr. Wackerly to death for murder and life imprisonment for robbery. In doing so, the jurors unanimously found that both statutory aggravating circumstances supported the death penalty. The Oklahoma Court of Criminal Appeals (OCCA) affirmed Mr. Wackerly's conviction and death sentence on direct appeal, and then denied his motion for post-conviction relief. Wackerly v. Oklahoma, 12 P.3d 1, 19 (Okla.Crim.App.2000), cert. denied, 532 U.S. 1028, 121 S.Ct. 1976, 149 L.Ed.2d 768 (2001). Later, Mr. Wackerly filed a 28 U.S.C. § 2254 habeas petition in federal district court, challenging his conviction on a number of grounds. The district court denied all of his claims for relief and denied a certificate of appealability (COA). See Wackerly v. Sirmons, 2007 WL 963210 (E.D.Okla.2007); 28 U.S.C. § 2253. This court, however, granted Mr. Wackerly a COA on two issues, although in briefing before us he has opted to pursue only one-specifically, whether trial counsel was ineffective for failing to investigate and present mitigating evidence at the penalty phase of his trial.

II

Until recently, an intra-circuit split of authority existed on what standard governs our review of habeas petitions presenting ineffective assistance of counsel claims, like Mr. Wackerly's, when the OCCA declines to supplement the original trial record with outside evidence proffered by the petitioner. Some of our cases have suggested that the deferential standard of review we typically apply under the Antiterrorism and Effective Death Penalty Act (AEDPA) pertains. See, e.g., Welch v. Sirmons, 451 F.3d 675, 682, 704, 708-09 (10th Cir.2006). Other of our cases have suggested that our review should be de novo. See Bryan v. Mullin, 335 F.3d 1207, 1215-16 (10th Cir.2003) (en banc). Mr. Wackerly initially argued his appeal to us under AEDPA's deferential standard, but a majority of the active judges on our court sua sponte ordered this case consolidated with Wilson v. Sirmons, 536 F.3d 1064 (10th Cir.2008), and scheduled an en banc session to resolve our intra-circuit split of authority, see Wilson v. Sirmons, 549 F.3d 1267 (10th Cir.2008). In the end, the en banc court concluded that we should review Mr. Wackerly's petition de novo. Wilson v. Workman, 577 F.3d 1284 (10th Cir.2009) (en banc).

Assessing his appeal de novo, Mr. Wackerly still has the burden of establishing two things to prevail. First, he must show that trial counsel “committed serious errors in light of ‘prevailing professional norms' such that his legal representation fell below an objective standard of reasonableness.” Castro v. Ward, 138 F.3d 810, 829 (10th Cir.1998) (quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). The inquiry here, even on de novo review, “must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Second, Mr. Wackerly must show that this deficient performance mattered-namely, 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. Because counsel's alleged failures occurred during the sentencing phase of Mr. Wackerly's trial, this question focuses on whether there exists a “reasonable probability that, absent the errors, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Id. at 695, 104 S.Ct. 2052. And because in Oklahoma only a unanimous jury may impose the death penalty, this question further narrows to focus on whether there is a reasonable probability “that at least one juror would have struck a different balance” but for counsel's putative misconduct. Wiggins v. Smith, 539 U.S. 510, 537, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003).

Even assuming without deciding that counsel was ineffective for failing to develop and present potential mitigation evidence at the sentencing stage, Mr. Wackerly cannot demonstrate a reasonable probability that the evidence counsel failed to amass and present would have affected the jury's ultimate assessment of the aggravating and mitigating evidence in this case. See Cooks v. Ward, 165 F.3d 1283, 1292-93 (10th Cir.1998) (court need not address both Strickland prongs if it determines petitioner fails on one). In reaching this conclusion under Strickland's prejudice prong, we necessarily take account of “the strength of the government's case and the aggravating factors the jury found, as well as the totality of the mitigating factors that might have been presented.” Sallahdin v. Gibson, 275 F.3d 1211, 1235 (10th Cir.2002); see also Cooks, 165 F.3d at 1293 (In evaluating prejudice, court “must look at the totality of the evidence, not just evidence that would have been helpful to [petitioner's] case.”). Accordingly, in what follows we first explore the strength of the government's case as presented at trial before then turning to assess it against the mitigating evidence Mr. Wackerly says counsel should have produced.

A

There can be little question about the strength of the record supporting the jury's verdict in this case. On the question of guilt, Mrs. Wackerly testified to the time, place, and manner of Mr. Sayakhoummane's murder, and in every essential respect her account was corroborated by physical proof or the testimony of others. She directed law enforcement officers both to the victim's discarded fishing poles in the woods and to the victim's fishing reels at the pawn shop. A search of Mr. Wackerly's apartment revealed a .22 caliber weapon and a box of ammunition-both consistent with the type of bullets that had been removed from the victim's body-as well as a box of latex gloves and the victim's tackle box. Mrs. Wackerly's brother, Curtis Jones, testified that Mr. Wackerly had confessed to him that he was responsible for the murder.

As to the two statutory aggravating factors, again strong evidence supported each. On the question whether the crime was committed in a manner aimed to avoid or prevent lawful arrest or prosecution, the State's evidence established that Mr. Wackerly went to a remote location to select a victim; instructed his wife to survey the area to make sure they were alone with the victim; and attempted to conceal his crime by driving the victim's truck, with the body in its bed, into the water. On the question whether Mr. Wackerly is likely to remain a threat, there was not only proof that the murder fazed Mr. Wackerly but little-he dined at the local Sonic shortly after the crime-there was also proof that just days after the murder Mr. Wackerly committed another robbery at gunpoint. Cf. Cooks, 165 F.3d at 1289 (under Oklahoma law callous nature of crime is sufficient to establish continuing threat to society aggravator).

Neither can there be any serious question of Mr. Wackerly's moral culpability and awareness of the wrongness of his actions. He planned the crime the night before; drove to a secluded site in a calculated attempt to avoid detection of his crime; waited forty-five minutes for the victim to approach; tricked the victim by asking for help with his car; brutally killed his victim with seven or eight gun shots; and then sought to hide the evidence of his crime. Given these circumstances, it is exceedingly implausible that a jury might conclude that Mr. Wackerly's mind was momentarily so clouded that he was unable to distinguish right from wrong. Underscoring this point, after the murder was completed Mr. Wackerly showed no recognizable remorse, dining out immediately after the event and just a few days later robbing a convenience store using a firearm and threats of violence. Simply put, this case is in no way analogous to those in which we have found the State's evidence on guilt and the aggravating circumstances comparatively weak. See, e.g., Mayes v. Gibson, 210 F.3d 1284, 1291 (10th Cir.2000) (granting petitioner evidentiary hearing on ineffective assistance of counsel claim given “relative weakness of the State's case, the jury's obvious struggle in deliberations, and the fact that only one aggravator was found”).

B

While the government's case is strong, Mr. Wackerly's proffered mitigating evidence is not. Mr. Wackerly faults his trial counsel for failing to introduce four general categories of evidence. But we cannot see how any of this evidence would have made a difference. Indeed, our precedent compels just the opposite conclusion.

1

Mr. Wackerly first complains that his trial lawyer should have introduced evidence of his substance abuse problems. According to a report prepared by Dr. Mickey Ozolins, a neuropsychologist who saw Mr. Wackerly in preparation for his post-conviction habeas petition, throughout high school Mr. Wackerly drank alcohol excessively, used steroids to build muscle mass, and experimented, though minimally, with other substances. Then, starting around age twenty-four, he began to use approximately $25 worth of “crank”-slang for methamphetamine-per week. After two years, Mr. Wackerly was using up to $300 worth of the drug per day. About one and a half months before he was arrested, Mr. Wackerly stopped using methamphetamine and planned to enter a rehabilitation program, but in the end never did so and instead resumed his habit. Mr. Wackerly does not allege that he attempted to address his substance abuse problem at any other point in his life. In addition to Dr. Ozolins's report, Mr. Wackerly's high-school girlfriend submitted an affidavit saying that Mr. Wackerly's temper was normally short, but even shorter when he was abusing alcohol and drugs.

This court has repeatedly found that unproduced evidence of this sort often can have a distinctly double-edged nature to it: whatever mitigating effect such evidence might have had if presented, “it is just as likely the jury would react negatively” to it. Davis v. Executive Dir. of Dep't of Corr., 100 F.3d 750, 763 (10th Cir.1996). So, for example, in Davis we held that the petitioner was not prejudiced by his counsel's failure to investigate and present expert testimony at sentencing on the nature and effects of his severe alcoholism. Whatever the mitigating effect of such evidence, we held, it was equally possible that the jury would have faulted petitioner for his “repeated failures to effectively address” the problem. Id. In McCracken v. Gibson, 268 F.3d 970 (10th Cir.2001), we similarly explained that evidence suggesting the petitioner became “irrational and violently destructive” when under the influence of alcohol or drugs surely bore an aggravating as well as mitigating quality because, while it might have “erase[d] or reduce[d] any lingering doubt the jury may have had concerning [the petitioner's] role in the offense,” it might have also “bolster[ed] the jury's conclusion that [the petitioner] represented a continuing threat to society.” Id. at 980. In Sallahdin v. Mullin, 380 F.3d 1242 (10th Cir.2004), we similarly held that “the jury could have viewed [petitioner's] steroid use in a negative light. Not only are [the drugs] illegal, the jury could have drawn negative inferences from the fact that [petitioner] knowingly used the substances for a period of approximately four years.” Id. at 1251. And in Duvall v. Reynolds, 139 F.3d 768 (10th Cir.1998), we noted that “[t]estimony concerning [petitioner's] substance abuse would have resulted in the introduction of details of [his] prior convictions and violent conduct, which invariably resulted from his substance abuse. The jury could have perceived such evidence as aggravating rather than mitigating.” Id. at 782; see also DeLozier v. Sirmons, 531 F.3d 1306, 1332 (10th Cir.2008) (appellate counsel's decision not to argue on appeal that trial counsel was ineffective for failing to put on evidence of petitioner's substance abuse did not constitute deficient performance because such evidence could be considered a “two-edged sword”). Other circuits have come to much the same conclusion in analogous cases. See Pace v. McNeil, 556 F.3d 1211, 1224 (11th Cir.2009) (failure to present evidence of petitioner's substance abuse not deficient in part because “presenting evidence of a defendant's drug addiction to a jury is often a ‘two-edged sword’: while providing a mitigating factor, such details may alienate the jury and offer little reason to lessen the sentence”); Jones v. Page, 76 F.3d 831, 846 (7th Cir.1996) (failure to introduce evidence of petitioner's abuse problems was a reasonable strategic choice because such evidence was a “double-edged sword”).FN1

FN1. Some of these cases arise in the context of holding that defense counsel did not engage in deficient performance by failing to introduce evidence of the defendant's history of substance abuse. Others arise, like our case, in the context of holding that counsel's failure to present such evidence didn't prejudice the defendant. Whichever Strickland prong they arise under, these cases all demonstrate that substance abuse evidence often can have more aggravating than mitigating effect.

Mr. Wackerly affords us no basis on which we might distinguish these cases from his own. This isn't to say that the mitigating edge of unproduced substance abuse evidence can never be sharper than its aggravating edge. But it is to say that Mr. Wackerly has not shown his is such a case. By way of example, he does not argue that this is a case in which the aggravating aspect of his drug use was already placed before the jury, such that no further harm, and only good, could have come from introducing further details of his substance abuse habit. See Smith v. Mullin, 379 F.3d 919, 943 n. 11 (10th Cir.2004) (mitigating evidence of mental health problems not double-edged because aggravating “edge” of mental impairments was already presented to the jury in the guilt phase of trial). The jury in this case was not already made aware of the significant potential “aggravating” aspects of Mr. Wackerly's drug abuse that came to light in Dr. Ozolins's report, including the degree of Mr. Wackerly's drug abuse, its longevity, that he had previously engaged in “car theft activity to trade for drugs,” and that he needed approximately $300 a day to feed his drug habit. And such evidence surely would have strengthened the State's case of guilt, supplying a persuasive motive for the murder, as well as its case that Mr. Wackerly posed a continuing threat to society, emphasizing that Mr. Wackerly's expensive and unaddressed habit gave him a continuing reason to rob and kill, even for modest sums.FN2

FN2. The only evidence of Mr. Wackerly's drug use put before the jury came during his estranged wife's testimony when she testified that she and her husband had been on drugs around the time of the convenience store robbery. That some minuscule evidence of petitioner's drug use was before the jury does not diminish the aggravating nature of the substantial additional new evidence contained in Dr. Ozolins's report.

Likewise, and by way of further example, Mr. Wackerly does not allege that he was using drugs of a quality and in such quantities while planning and executing the murder that he was incapable of appreciating the difference between right and wrong. In Correll v. Ryan, 539 F.3d 938 (9th Cir.2008), the Ninth Circuit, albeit over a significant dissent, granted habeas relief to a petitioner whose counsel failed to present evidence that his client was heavily intoxicated with methamphetamine at the time of the crime. The petitioner proffered an expert who opined that the petitioner was “likely having impulse control problems, judgment impairment, and aggressiveness at the time of the crime and that he may have been experiencing drug-induced paranoia,” such that a juror could reasonably be persuaded that the petitioner “was, at the time of the crimes, incapable of appreciating the wrongfulness of his conduct.” Id. at 953-54 (emphasis added).FN3 Even assuming without deciding the Ninth Circuit's holding would pertain in our circuit, unlike Mr. Correll Mr. Wackerly simply does not allege that he was impaired by drugs at the time of the crime, let alone provide expert evidence that his mental state or capacity at the relevant times was so diminished that he could not appreciate right from wrong.FN4

FN3. See also Hardwick v. Crosby, 320 F.3d 1127, 1167 (11th Cir.2003) (granting evidentiary hearing on effectiveness of counsel at sentencing in part because counsel failed to present evidence that client had committed murder after a “long Christmas weekend binge of drugs and alcohol”); Jennings v. Woodford, 290 F.3d 1006, 1017 (9th Cir.2002) (finding counsel ineffective at guilt stage of capital trial for failing to investigate adequately the extent of client's heavy drug use, when there was evidence that client was on drugs at the time of the crime and an expert testified that reasonable investigation would have shown that during the period leading up to the murder petitioner suffered “psychotic symptoms including hallucinations, delusions, memory gaps and periods of dissociation”); Brownlee v. Haley, 306 F.3d 1043, 1071 (11th Cir.2002) (granting habeas relief as to sentence where counsel failed to present mitigation evidence at sentencing and, among the evidence not presented, was petitioner's “extensive drug abuse, particularly on the night in question”); cf. Pace, 556 F.3d at 1224 (holding that failure to investigate client's substance abuse problems not deficient in part because evidence indicated client was not on drugs at the time of the murder).

FN4. All Mr. Wackerly alleges, by way of Dr. Ozolins's report, is that he was using “up to $300 a day” of methamphetamine and was “under the influence of recreational drugs almost constantly.” App. Ex. M. at 3-4. It seems possible Mr. Wackerly goes no further because he cannot do so. The facts of his crime strongly suggest that he understood the wrongfulness of his conduct and accordingly sought to conceal his crime, see supra Parts I & II.A, and Mr. Wackerly's own expert, Dr. Ozolins, found that he retains above average nonverbal intelligence, average verbal intelligence, and superior planning and organization skills, see infra Part II B.3.

2

Next, Mr. Wackerly submits that he suffers from certain psychological maladies that counsel should have disclosed to the jury. This evidence, however, bears the same problem as Mr. Wackerly's proffered substance abuse evidence: it is the type of “double-edged” evidence that could have as easily hurt as helped his cause.

Take Mr. Wackerly's claim that he suffers from self-destructive behavior and mood swings that cause him, in the words of his half-sister, to go “from happy to rage in a matter of seconds.” In Gilson v. Sirmons, 520 F.3d 1196 (10th Cir.2008), we confronted a similar circumstance, where the petitioner faulted counsel for failing to introduce a neuropsychological report painting him as having difficulty conforming to societal norms “due to impulsivity, poor judgment, and the failure to see or understand the consequences of his actions,” and as having a tendency to become “agitated and belligerent easily when frustrated.” Id. at 1249. We held that such evidence has little mitigating value because it tends to “confirm[ ] the jury's conclusion that he represented a continuing threat, even if confined in prison for life.” Id. at 1250. See also Cannon v. Gibson, 259 F.3d 1253, 1277-78 (10th Cir.2001) (failure to introduce testimony of petitioner's psychiatric disorders “which distort his perceptions and impair his judgment” did not establish prejudice because it would portray him as an “unstable individual with very little impulse control” and strengthen argument that he was a continuing threat to society); McCracken, 268 F.3d at 980 (finding that petitioner was not prejudiced by counsel's failure to introduce evidence that he was capable of losing control of his anger and becoming “irrational and violently destructive,” because it would have had a negative effect on the jury). Mr. Wackerly does not explain how or why a different result should obtain here.

Much the same might be said of Mr. Wackerly's assertion that he suffers from a dependent personality disorder that allows him to be easily influenced by others. Whatever mitigating value such evidence might have had, it also indubitably would have supported the State's claim that Mr. Wackerly constitutes a continuing threat to society. As we explained in Young v. Sirmons, 551 F.3d 942 (10th Cir.2008), evidence that the petitioner committed a murder in reaction to others' influence or emotional distress risks portraying the petitioner as “a particularly dangerous person, capable of extreme violence in reaction to relatively common life events.” Id. at 968.

3

Mr. Wackerly contends that counsel should have introduced a 1987 doctor's report in which a doctor noted that Mr. Wackerly “may be semi-retarded.” Whatever other difficulties this argument has, as a factual matter it simply is not what it first appears to be. In 1987, Mr. Wackerly visited a doctor with complaints of venereal warts. That doctor made a note in Mr. Wackerly's patient file commenting that he might be “semi-retarded,” but Mr. Wackerly does not suggest that the doctor was ever trained in mental health, and the note contains no explanation of the foundation for the doctor's opinion or any elaboration of it. There is, thus, no basis in the record for concluding the note constitutes a competent or considered medical opinion. Moreover, it is contradicted by more recent tests conducted by Mr. Wackerly's own expert, Dr. Ozolins. Dr. Ozolins concluded that Mr. Wackerly is far from semi-retarded, finding that he “is functioning in the Average range of verbal intelligence and the Above Average range of nonverbal intelligence,” with an IQ score of 107 (average). App. Ex. M at 5-6. Dr. Ozolins also found Mr. Wackerly's spatial skills to be in the average-to-above-average range, his planning and organization skills “very superior,” and his memory and nonverbal reasoning skills superior. Id. at 6. On this record, we cannot see how counsel's failure to introduce a doctor's note from his youth and a very different context prejudiced him.

The same holds true with respect to the assortment of other medical records Mr. Wackerly proffers. Mr. Wackerly asserts that he “sustained organic brain damage during birth,” Aplt. Br. at 29, but the records he points to show only that forceps were used during his birth, and that while he “was initially very bruised and cyanotic” and had a hematoma on his scalp, all this rapidly resolved, App. Ex. M at 1-2. Mr. Wackerly has presented no evidence indicating that any lasting organic brain damage followed. Neither has he proffered evidence showing that the accidents he suffered in later life, such as a 1988 motorcycle crash, resulted in any lasting brain damage. To the contrary, Dr. Ozolins's recent report strongly suggests that any injuries Mr. Wackerly suffered had little impact on his mental capacity.

We reject as well Mr. Wackerly's assertion that Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), requires a different conclusion. There, the Supreme Court found trial counsel ineffective for failing to introduce testimony about the defendant's difficult childhood, his history of severe and repeated beatings from his father, the fact that his parents had been imprisoned for criminal neglect, and the fact that he was “borderline mentally retarded.” Id. at 373 n. 4, 120 S.Ct. 1495. Trial counsel was also found ineffective for failing to introduce evidence from prison guards prepared to testify that Mr. Williams was a model inmate. Id. at 396, 120 S.Ct. 1495. See also Wiggins v. Smith, 539 U.S. 510, 534-35, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (counsel ineffective where undiscovered mitigation evidence was “powerful” and included evidence that petitioner had experienced severe abuse in the first years of his life with his alcoholic, absentee mother; suffered physical torment, sexual molestation, and repeated rape during his subsequent years in foster care; had been homeless for a period of time; and had diminished mental capacities). The evidence Mr. Wackerly presents is of a very different quality. Mr. Wackerly's neuropsychologist found that he was raised by his biological parents; that neither of his parents had any psychiatric, drug, or alcohol problems; that his mother was his “best friend”; that Mr. Wackerly indicated he had “no developmental problems except that he was a slow reader”; and that he “got along well socially in high school.” App. Ex. M at 2-3. While Mr. Williams's “borderline retarded” mental condition might have made the jury doubt his moral culpability, the most recent and reliable tests show Mr. Wackerly's mental abilities to be very different. And, of course, we have before us none of the plainly mitigating evidence of good prison behavior present in Williams.

4

Other items of evidence Mr. Wackerly argues his counsel should have introduced are merely cumulative of the evidence the jury did hear. For example, Mr. Wackerly complains that his attorney should have presented proof that Mr. Wackerly never recovered emotionally after he was in a car accident at fourteen, and was “coddled” by his parents. These same concepts, however, were communicated to the jury through the testimony of Mr. Wackerly's half-sister, Donna Lomax. We cannot say, as we must for Mr. Wackerly to prevail, that further presentation of the same evidence from different witnesses was reasonably likely to have made a difference in his sentence. See Humphreys v. Gibson, 261 F.3d 1016, 1021 (10th Cir.2001) (holding that failure to present evidence that is cumulative of evidence actually heard by the jury does not establish prejudice); James v. Gibson, 211 F.3d 543, 557 (10th Cir.2000) (same); Foster v. Ward, 182 F.3d 1177, 1189 (10th Cir.1999) (same); Moore v. Reynolds, 153 F.3d 1086, 1099 (10th Cir.1998) (same).

Mr. Wackerly finally faults trial counsel for failing to introduce evidence that he was exposed to toxic chemicals in one of his jobs, that he was a poor student, that he was an unreliable employee, and that he may have Attention Deficit Disorder as well as narcissistic and depressive traits. This proffered proof no doubt illustrates that Mr. Wackerly has experienced his fair share of difficulties in life, but we cannot say there is a reasonable probability that it would have moved any juror to change his or her sentencing calculus. The evidence does not give context to the murder, provide an explanation for Mr. Wackerly's behavior, or suggest Mr. Wackerly bears any less moral culpability for his actions. In short, it does little to counteract the strength of the State's case or render questionable the two aggravating factors found by the jury, and we cannot say that the jury might have imposed a different sentence had they been presented with these scattered pieces of Mr. Wackerly's life.FN5

FN5. We deny Mr. Wackerly's request for an evidentiary hearing. Even assuming we may review his request under pre-AEDPA standards in light of Mr. Wackerly's effort to develop his claim in state court, see Barkell v. Crouse, 468 F.3d 684, 693 (10th Cir.2006), taking all his factual allegations as true they still fail, for reasons we have given, to entitle him to relief, cf. Matthews v. Workman, 577 F.3d 1175, 1193 n. 8 (10th Cir.2009).

* * *

This simply is not a case where unproduced mitigation evidence is of such a kind and quantity as to call into question the outcome of Mr. Wackerly's penalty phase proceedings. The case against Mr. Wackerly was strong and the non-cumulative evidence Mr. Wackerly faults trial counsel for failing to present bears a distinctly double-edged quality to it, likely to have favored the State's case at least as much as his. Given this, we are obliged to affirm.FN6

FN6. Shortly after receiving a COA on his habeas petition, Mr. Wackerly filed a pleading with this court seeking permission to file a second or successive habeas application with the district court. In this pleading, Mr. Wackerly sought permission to present a new claim that his trial counsel was constitutionally ineffective for failing to investigate Mr. Wackerly's claim that Mrs. Wackerly committed the murder. After receiving the State's response, Mr. Wackerly sought to withdraw his request for authorization to file his second and successive habeas petition. He asked that the motion be dismissed without prejudice to refile at a later date. Though his motion for dismissal did not indicate his reasons for seeking dismissal, Mr. Wackerly has since conceded that he “does not have a compelling basis for successor permission at this time.” Br. in Support of Motion, at 7. Briefing ensued on the question whether a motion for authorization to file a second or successive petition under 28 U.S.C. § 2244(b)(3)(A) constitutes the presentation of an “application” under 28 U.S.C. § 2244(b), thereby triggering the restrictions on filing additional habeas petitions outlined in that statute. On reflection, we believe the answer to that question should be left to another day because, at this point at least, it remains unclear whether Mr. Wackerly will choose to attempt to file another habeas petition. If and when he does, we can address the issue. Therefore, we grant Mr. Wackerly's motion to dismiss his earlier motion seeking permission to file a second or successive habeas petition, but we decline to pass on whether this dismissal bars him from filing future habeas petitions.