Summary:

Willingham was selling perfume door to door in Lawton, Oklahoma.

Working his way through a downtown building, he came to the office occupied by Mrs. Jayne Van Wey. Although she told him she did not wish to purchase any perfume, he continued to press her, adhering to his standard sales procedure of insisting on three "no" answers from a potential customer.

The repeated rejections that ensued led to an what Willingham claims was a rude rebuff.

After calling on some other offices in the building, Willingham noticed Mrs. Van Wey enter a restroom off the hallway near her office. Still angry over their earlier confrontation, he eventually followed her into the restroom, pulled her from a stall, and struck her several times in the face.

As she continued to struggle with him, he slammed her head into the wall and kicked her in the face with his boot. Mrs. Van Wey lost consciousness and died asphyxiating on the blood from her injuries.

Police found a sales brochure left at one of the other offices, and eventually questioned Willingham, who at first denied any involvement then confessed.

Citations:

Willingham v. State, 947 P.2d 1074 (Okl.Cr. 1997) (Direct Appeal).

Final Meal:

Fettuccine alfredo, a small deep dish pepperoni pizza, breadsticks and two peppermint patties.

Final Words:

In his last statement, Willingham apologized to the Van Wey family and said he hoped that his execution brought them some closure and they could someday forgive him. "I love you," Willingham said to his family members. "Okay, I'm ready."

ClarkProsecutor.org

Oklahoma Department of Corrections

Inmate: Jackie L. Willingham
ODOC#: 237747
Birthdate: 10/23/1969
Race: White
Sex: Male
Height: 6 ft. 01 in
Weight: 175 pounds
Hair: Brown
Eyes: Blue
Location: Oklahoma State Penitentiary, Mcalester

Salesman Executed for Murder of Woman Who Didn't Buy Perfume

TheDeathHouse.com

July 24, 2003

McAlester, Okla. - A travelling salesman who beat a woman to death because she refused to buy perfume from him was executed at the state prison Thursdy night. Jackie Lee Willingham was put to death for the robbery and murder of Jayne Van Wey.

The Oklahoma Pardon and Parole Board had recommended that Willingham, 33, receive clemency from the governor for the murder. But, Gov. Brad Henry had not granted any clemencies since he took office in January.

The murder occurred on Dec. 20, 1984 in the victim's Lawton office. Willingham had stopped in the office and tried to sell Van Wey perfume. When she refused and asked him to leave, he followed her into a bathroom and beat and robbed the 62-year-old woman. Willingham confessed to the killing. The pardons panel had voted 3-2 to recommend clemency.

In his last statement, Willingham apologized to the Van Wey family and said he hoped that his execution brought them some closure and they could someday forgive him. "I love you," Willingham said to his family members. "Okay, I'm ready."

The lethal injection of chemicals began at 6:07 p.m. and Willingham was pronounced dead two minutes later - the 13th condemned killer put to death in Oklahoma in 2003 and the second this week.

Fred Staggs, the condemned man's lawyer, believed that the slaying was a crime of passion and that jurors should have been given the option of convicting Willingham of second degree murder, which would not have carried the death penalty. During his trial Willingham said he didn't mean to kill Van Wey. Willingham claimed that the woman was rude to him.

Supreme Court Refusal

KFDX Channel 3 NewsCenter

Thursday, July 24, 2003

The US supreme court this morning refused to stay today`s scheduled execution of an Oklahoma death row inmate. Jackie Willingham is to die at 6 this evening for the 1994 beating death of Jayne Van Wey in Lawton.

Van Wey was killed in her office bathroom after refusing to buy perfume from Willingham. The state pardon and parole board last month recommended clemency for Willingham, but the recommendation was rejected by Governor Henry.

Willingham has requested a last meal of fettuccine alfredo, a small deep dish pepperoni pizza, breadsticks and two peppermint patties. Willingham will be the 13th inmate put to death this year, the fourth this month and the second this week.

Henry Rejects Clemency Recommendation

Oklahoma.com Channel 5

July 18, 2003

OKLAHOMA CITY -- Gov. Brad Henry rejected a Pardon and Parole Board recommendation Friday to commute the sentence of death-row inmate Jackie Lee Willingham to life without parole. Willingham, 33, is scheduled to be executed Thursday for killing a woman who refused to buy perfume from him.

Attorneys for an Willingham had filed a request with the U.S. Supreme Court to stay his execution. The Pardon and Parole Board voted 3-2 on June 25 to recommend clemency for the condemned man.

Henry said he thoroughly reviewed arguments and evidence in the case, meeting personally with Willingham's defense attorney and the attorney general and his staff. "After having listened to the presentations and thoroughly reviewing the record in this matter, as well as information presented at the clemency hearing, I have determined that clemency should be denied in this case," Henry said in a letter to Patrick Morgan, chairman of the Pardon and Parole Board.

The Oklahoma death row inmate filed a request with the U.S. Supreme Court Monday to stay his July 24 execution. Fred Staggs, Willingham's attorney, argued jurors should have been given the option to convict Willingham of second-degree murder for what he described as a crime of passion. Willingham confessed to killing Jayne Ellen Van Wey, 62, in her Lawton office Dec. 20, 1994.

Oklahoma Attorney General News Release

News Release - W.A. Drew Edmondson, Attorney General

Execution Date Set for Willingham 06/02/2003

The Oklahoma Court of Criminal Appeals today set July execution dates for two death row inmates, and Attorney General Drew Edmondson requested an execution date for a third. Execution dates were scheduled for Bryan Anthony Toles, July 22, and Jackie Lee Willingham, July 24. Edmondson requested the execution dates April 1 and May 19, respectively, after the U.S. Supreme Court denied the inmates' final appeals.

Willingham, 33, was sentenced to death in Comanche County District Court after confessing to the Dec. 20, 1994, murder of Jayne Ellen Van Wey, 62. Willingham was working as a traveling salesman when he attempted to sell perfume to Van Wey at her Lawton office. Van Wey refused Willingham's offer and asked him to leave. He then followed her into a bathroom where she was fatally beaten and robbed.

Edmondson is asking family members of Jayne Ellen Van Wey to contact his office. Edmondson said his office attempts to notify victims' family members any time he requests an execution date. Under Oklahoma law, certain victim family members are permitted to witness executions, if they so desire. Family members are asked to contact Allyson Carson at (405) 521-3921.

Oklahoma Coalition to Abolish the Death Penalty

Jackie Willingham (OK) - July 24, 2003

The state of Oklahoma is scheduled to execute Jackie Willingham, a white man, July 24 for the 1994 murder of Jayne Van Wey in Lawton. Willingham, a traveling salesman, confessed to beating Van Wey in the restroom of her office building, but claimed he had no intentions of killing her. The two apparently engaged in a verbal altercation approximately 15 minutes earlier, and he testified that he attacked her out of anger. He left her lying face down on the floor, and she died as a result of aspirating in her own blood.

At trial, Willingham challenged the state’s case on the element of intent, and requested instructions on the lesser offenses of heat-of-passion manslaughter and second-degree depraved-mind murder. The trial court granted the first instruction but denied the second. The jury ultimately rejected Mr. Willingham’s intent defense and found him guilty of first-degree malice murder.

The state should punish Willingham for his violent aggression; however, the death penalty is clearly a disproportionate sentence considering the circumstances. The sentence was likely a reaction to several victim impact statements, which the trial court should not have allowed. One of the victim’s daughters suggested that Willingham be confined to a small area, beaten, and made to choke on his own blood. Although the victims have every right to feel anger toward Willingham, suggestions of such torturous penalties have no place in civilized courtrooms.

Aside from his principle defense – that he never intended to kill Van Wey – Willingham also provided significant mitigating evidence. He suffered serious abuse as a child, and grew up in a household dominated by frequent drugs and alcohol. He had no prior history of violence, and showed remorse for the Van Wey killing.

Willingham is the last of four Oklahoma inmates facing execution in July. All four cases have serious issues that call into question the fairness of the state’s death penalty system. Please contact Gov. Brad Henry and request a commutation of his sentence.

Murderer Set to Die Thursday

By Doug Russell - McAlester News-Capital & Democrat

July 19, 2003

Unless the U.S. Supreme Court intervenes, the execution must go on. That's the decision of Gov. Brad Henry, who announced Friday that he was denying clemency for Comanche County killer Jackie Lee Willingham. The 33-year-old ex-Marine is scheduled to die Thursday for the 1994 beating death of a Lawton woman.

Attorneys for Willingham have filed a request with the U.S. Supreme Court to stop his execution. If clemency had been granted, Willingham's sentence would have been commuted to life without parole.

The three attorneys on the Oklahoma Pardon and Parole Board had voted on June 25 to recommend clemency. The other two members of the board, a teacher and a former Department of Corrections employee, voted against clemency. In Oklahoma, the governor has the final say on whether clemency should be granted. The Pardon and Parole Board can recommend clemency, after which the governor decides whether or not to grant it. The governor cannot grant clemency if it is not recommended by the board.

In a letter to Patrick Morgan, chairman of the Pardon and Parole Board, Henry said he had met with the state attorney general and his staff as well as with Willingham's attorney. "After having listened to the presentations and thoroughly reviewing the record in this matter, as well as information presented at the clemency hearing, I have determined that clemency should be denied in this case," Henry wrote.

Oklahoma City attorney Fred Staggs said jurors should have been given the option to convict Willingham of second-degree murder for what he described as a "depraved mind murder."

Willingham confessed to killing Jayne Ellen Van Wey, 62, in her Lawton office building Dec. 20, 1994. According to Staggs, three psychologists found that Willingham was symbolically destroying his abusive mother when he attacked Van Wey. According to court documents, Willingham attacked Van Wey inside a restroom of a Lawton office building, hitting and kicking her so severely she choked to death on her own blood.

Willingham is scheduled to be the 13th Oklahoma inmate executed this year. The 12th, Bryan Anthony Toles, is scheduled to die Tuesday for the killings of 39-year-old Juan Franceschi and 15-year-old son Lonnie Franceschi, also in Lawton. Another death row inmate, Harold Loyd McElmurry III, is to be executed July 29 for the murders of 75-year-old Rosa Vivien Pendley and her 80-year-old paraplegic husband, Robert Pendley, in Lenna.

Willimgham v. Mullin

(Habeas 10th Circuit)

BRORBY, Senior Circuit Judge.

Jackie Lee Willingham appeals from an order of the district court denying his petition for a writ of habeas corpus under 28 U.S.C. § 2254. Upon a thorough review of the record and the arguments presented, we conclude Mr. Willingham is not entitled to habeas relief.

In 1995, an Oklahoma jury found Mr. Willingham guilty of first degree malice murder. See Okla. Stat. tit. 21, § 701.7. At the penalty phase, the jury rejected the State's allegation that Mr. Willingham posed a continuing threat to society, see id. § 701.12(7), but found that the murder was especially heinous, atrocious, or cruel (HAC aggravator), see id. § 701.12(4).

After weighing the HAC aggravator against the evidence presented in mitigation, the jury determined that Mr. Willingham should be put to death for the crime. The trial court formally imposed the recommended sentence, and the Oklahoma Court of Criminal Appeals (OCCA) affirmed both conviction and sentence on direct appeal. See Willingham v. State, 947 P.2d 1074 (Okla. Crim. App. 1997). The OCCA also denied Mr. Willingham's subsequent application for post-conviction relief. See Willingham v. State, No. PC-97-389 (Okla. Crim. App. Mar. 19, 1998) (unpub.).

Mr. Willingham then commenced the instant habeas proceeding, alleging fifteen grounds for relief. The district court denied the petition in its entirety, and Mr. Willingham appealed. The district court granted a certificate of appealability (COA) on ten issues. See generally 28 U.S.C. § 2253(c). Following the case management conference, this court issued its standard order directing that, unless Mr. Willingham submitted a motion to expand the COA within ten days, "[t]he issues to be raised in the opening brief are those set forth by the district court in its order granting a [COA]." Case Management Order, April 18, 2001. No such motion was filed. In accordance with the case management order and § 2253(c), we limit our consideration to the ten issues properly certified for review:(1)

1. Refusal to Instruct on Second Degree Murder; 2. Use of Victim Impact Evidence; 3. Ineffective Assistance of Counsel; 4. Admission of Willingham's Post-Arraignment Statements; 5. Prosecutorial Misconduct during Second Stage Closing Argument; 6. Admission of Cumulative Photographs of the Victim; 7. Admission of Willingham's Videotaped Statement at Crime Scene; 8. Sufficiency of the Evidence Supporting the HAC Aggravator; 9. Use of an Improper Reasonable Doubt Instruction; and 10. Cumulative Error

FACTS

Most of the pertinent facts were established by Mr. Willingham's own trial testimony and his earlier admissions to the police.

On the day of the murder, Mr. Willingham was selling perfume door to door in Lawton, Oklahoma. Working his way through a downtown building, he came to the office occupied by Mrs. Jayne Van Wey. Although she told him she did not wish to purchase any perfume, he continued to press her, adhering to his standard sales procedure of insisting on three "no" answers from a potential customer.

The repeated rejections that ensued led to an escalation of the situation to what Mr. Willingham claims was a rude rebuff by Mrs. Van Wey and hostile vulgarity on both sides.

After calling on some other offices in the building, Mr. Willingham noticed Mrs. Van Wey enter a restroom off the hallway near her office. Still angry over their earlier confrontation, he eventually followed her into the restroom, pulled her from a stall, and struck her several times in the face.

As she continued to struggle with him, he slammed her head into the wall and let her fall backward onto the floor. When she rolled over and began to push herself up onto her hands and knees, he kicked her in the face with his boot. At that point, all resistance ceased, and he left. Mrs. Van Wey lost consciousness and died asphyxiating on the blood from her injuries.

Shortly after the murder, the police found a sales brochure left at one of the other offices Mr. Willingham had visited. Upon contacting the company and speaking with a supervisor, the police learned that a sales team in Lawton would be meeting at a local restaurant later that afternoon. The supervisor also indicated that at least one member of the team, Kevin Longenecker, fit the suspect's description.

The police proceeded to the restaurant and approached the group of salesmen. Detective John Whittington asked about Mr. Longenecker and was told by Mr. Willingham that he was not there. Detective Whittington noticed that Mr. Willingham was extremely uneasy and had a fresh scratch on his neck.

After Mr. Willingham offered a facially implausible explanation of the scratch, Detective Whittington asked him to come to the police station. The detective said the entire group would need to come, and explained that the police were investigating an attack on a woman (he did not say murder) downtown that day.

At the police station, Mr. Willingham was advised of his Miranda rights,(2) which he waived in writing. He initially denied any involvement in the attack, but after Detective Whittington pointed out what looked like blood on his boots and asked him to tell his side of the story, Mr. Willingham admitted he had beaten Mrs. Van Wey.

However, some of the details of his version of the attack did not fit the physical evidence, and he was asked to return to the scene and clarify his account. After again waiving his Miranda rights, Mr. Willingham walked through the crime scene describing the attack, somewhat differently, on videotape.

Thereafter, Mr. Willingham learned that Mrs. Van Wey had died. He was interviewed again to clear up additional questions raised by the physical evidence, and at this point finally admitted he had forcefully kicked Mrs. Van Wey in the head before leaving the restroom.

Finally, after two of Mrs. Van Wey's credit cards were found in the restaurant where Detective Whittington had first spoken with Mr. Willingham, he was advised of his rights and questioned once more, to explain this new development. He eventually admitted he had not immediately followed Mrs. Van Wey into the restroom but had stopped in her office and taken the cards from her purse first, "to make it look like a robbery."

Mr. Willingham's only defense at trial was to challenge the State's case on the element of intent. Specifically, he testified that while he had attacked Mrs. Van Wey out of anger over their prior confrontation, he had not intended to kill or seriously injure her. Accordingly, the defense requested instructions on the lesser offenses of heat-of-passion manslaughter and second degree depraved-mind murder. The trial court granted the first instruction but denied the second. The jury ultimately rejected Mr. Willingham's intent defense, finding him guilty of first degree malice murder.

* * * *

As indicated at various points throughout this opinion, the strength of the State's case on both guilt and aggravation effectively undercuts Mr. Willingham's assertion of actionable prejudice in connection with the few errors which may have occurred during the proceedings. Now, "[c]onsidering [any such] errors in the aggregate, we conclude upon review of the entire record that the cumulative [effect] is harmless" as well. United States v. Becker, 230 F.3d 1224, 1233 (10th Cir. 2000), cert. denied, 121 S. Ct. 1666 (2001); see also Moore v. Gibson, 195 F.3d 1152, 1175 (10th Cir. 1999).

Accordingly, the judgment of the district court is AFFIRMED.

Willingham v. State, 947 P.2d 1074 (Okl.Cr. 1997) (Direct Appeal).

Defendant was convicted in the District Court, Comanche County, Allen McCall, District Judge, of first-degree murder, and sentenced to death. Defendant appealed. The Court of Criminal Appeals, Lane, J., held that: (1) probable cause existed to support seizure of defendant's blood-covered boots during his first interview with police; (2) second-degree depraved mind murder is not lesser included offense of first-degree malice murder; (3) fact that defendant intended to harm victim does not preclude conviction on charge of second-degree depraved mind murder, so long as defendant did not intend to take victim's life; overruling Palmer v. State, 871 P.2d 429; (4) any error resulting from giving of instruction on lesser-included offense of first-degree heat of passion manslaughter was harmless; (5) probative value of six photographs showing injuries sustained to victim's face to demonstrate malice aforethought outweighed prejudice to defendant; (6) evidence was sufficient to support finding of heinous, atrocious or cruel aggravating circumstance; and (7) sentence of death was appropriate. Affirmed. Chapel, P.J., concurred in results. Lumpkin, J., concurred specially with separate opinion.

LANE, Judge.

Appellant, Jackie Lee Willingham, was charged with first degree malice murder in violation of 21 O.S.1991, § 701.7 in the district court of Comanche County, Case No. CRF-94-499. The State filed a Bill of Particulars alleging two aggravating circumstances. A jury trial was held before the Honorable Allen McCall, District Judge. The jury found Appellant guilty of first degree murder and found that the murder was especially heinous, atrocious, or cruel. The State also alleged that Appellant posed a continuing threat to society. Appellant was sentenced to death. From this Judgment and Sentence Appellant has perfected his appeal.

I. FACTS

Sufficient evidence was presented to show that Appellant, a traveling salesman, beat and kicked Jayne Van Wey, while she was in the restroom of her office. Appellant left her lying face down on the floor, bleeding and *1078 unconscious. Mrs. Van Wey died as a result of aspirating her own blood.

Investigation by the Lawton police department led to the arrest of Appellant, who, after being interviewed several times admitted to beating Mrs. Van Wey. Appellant claimed that he was upset because Mrs. Van Wey had rudely rebuffed his sales efforts 15 to 30 minutes before the attack. Appellant said that his intent was to beat her, not enough to kill or seriously injure her, "as bad as it was."

* * * *

After reviewing the record and carefully weighing the aggravating circumstances and the mitigating evidence, we find the sentence of death to be factually substantiated and appropriate. We find that even absent the *1089 improper victim impact evidence, the result would have been the same. Finding no error warranting reversal or modification, Judgment and Sentence of the District Court of Comanche County is AFFIRMED.