At about 4:15 on the afternoon of February 9, 1979, John Seward was found dead in the basement of his sister's house in Muskogee County, Oklahoma, shot once in the back of the head. His wife, Roxie, lay beside him, killed by four shotgun blasts fired from a few inches away. The couple had walked in on a burglary. Gone from the house were their wallets, the homeowner's turquoise watch and packages of frozen meat stamped with the name of the man who had given it to the family. Officers who stopped Charles Troy Coleman's pickup that evening found the wallets and the meat inside, and a .28 gauge shotgun, a gauge the trial testimony called uncommon, turned up at his house. He was thirty-one.
Coleman escaped from the county jail while he waited for trial. The prosecutor's closing argument, quoted by the Tenth Circuit, told the rest of that spring: the day after the escape he stabbed Tommie Dotson, a police officer who had stopped him for speeding, in the throat and left him handcuffed in the back of his own patrol car; two days later he was in Tulsa, where Russell Lewis was shot in the head near Chandler Park and his pickup taken; and in Arizona he kidnapped Terry Parish, a county detective who had pulled him over. A Muskogee County jury convicted him of John Seward's murder in 1979 and sentenced him to death, finding five aggravating circumstances. He was never tried for Roxie Seward. A Tulsa County jury convicted him of the Lewis murder and also returned a death sentence, but in September 1983 the Court of Criminal Appeals reversed that conviction outright and ordered a new trial, because the trial court had excused a prospective juror merely for his misgivings about capital punishment.
These are the seven published opinions of the eleven years that followed, from the Oklahoma Court of Criminal Appeals and the Tenth Circuit, 1983 to 1990. Little in them concerns the killings. They are about who sat on the jury, what his trial lawyer did and did not do, how Oklahoma defined a murder "especially heinous, atrocious, or cruel," and, at the end, whether he had been competent to stand trial at all. A stay from the Tenth Circuit in January 1985 held off one execution date. The last opinion, on August 28, 1990, affirmed the denial of his third federal petition and refused another. Early on September 10, 1990, at the Oklahoma State Penitentiary in McAlester, Coleman became the first person executed in Oklahoma in twenty-four years, and the first the state had ever put to death by lethal injection.
Nothing here establishes that Coleman killed Russell Lewis. The Tulsa conviction was reversed in full, and the only evidence the court describes beyond the circumstantial case was a former cellmate's account of a jailhouse confession. The same man testified at the Seward trial, and Coleman's appeal in that case accused the prosecutor of knowingly using perjured testimony from him; the court rejected the claim. None of these opinions says whether Tulsa County tried him again. Press reports at the time of his execution described him as convicted in that case, which the 1983 reversal contradicts, and the record here does not settle it. The attacks on Officer Dotson and Detective Parish come from the prosecutor's argument and the court's summary of the aggravating evidence, not from a separate conviction printed here.
We have replaced some names with initials. John Seward's sister and her husband, whose house was burglarized and who testified, are Mr. and Mrs. W.; the man whose name was stamped on the meat is L.H., and the stamp reads "H., Not for Sale" wherever the courts quote it. Coleman's brother V.D.C., who testified that he took the shotgun from the house and turned it over to an investigator, his sister-in-law J.C., whom the trial court refused to treat as Coleman's common-law wife, the cellmate E.M., and the other private witnesses appear the same way. Prospective jurors are reduced to the first letter of their surnames. The 1983 Tulsa opinion spells the excused juror three ways, Abies, Able and Abel; all three are A. here. The two officers Coleman attacked keep their names, as do the lawyers, judges, doctors and investigators.
These are the reporters' texts, not a scan, and we changed nothing but the paragraphing. Footnotes are collected at the end of each opinion under their own heading, since the reference numbers did not survive. The 1990 opinion reprints the state court's unpublished post-conviction order as an appendix, signatures included, and the reporters' slips stand as printed: a counsel line naming the attorney general "Jan Erie Cartwright," "Tjhis Court," and a citation to "EDDings v. Oklahoma." As opinions of a state appellate court and a federal circuit, all seven are public records and may be reproduced in full.
Charles Troy COLEMAN, Appellant, v. The STATE of Oklahoma, Appellee.
No. F-79-600.
Court of Criminal Appeals of Oklahoma.
July 11, 1983.
Rehearing Denied Sept. 19, 1983.
As Corrected Sept. 19, 1983.
D.D. Hayes, Muskogee, for appellant.
Jan Erie Cartwright, Atty. Gen., Dena L. Bates, Asst. Atty. Gen., Oklahoma City, for appellee.
[OPINION BY BUSSEY, Presiding Judge: type=majority]
OPINION
BUSSEY, Presiding Judge:
Charles Troy Coleman was convicted of Murder in the First Degree, in Muskogee County District Court, Case No. CRF-79-76. In the second stage of the trial, pursuant to 21 O.S.1981, § 701.10, the jury assessed the death penalty.
At approximately 4:15 p.m. on February 9, 1979, John Seward was found in the basement of his sister’s home, dead as a result of a single shotgun wound to the back of his head. His wife, Roxie Seward, was found next to him, dead as a result of four shotgun wounds inflicted from only inches away. Determined to be missing from the home of Mr. and Mrs. W. were the Seward’s wallets, Mrs. W.’s turquoise watch, packages of frozen meat stamped “H., Not for Sale,” and various other food items.
Later that same day, shortly after 6:00 p.m., the defendant was stopped and arrested for traffic violations. A search of the camper pickup truck he was driving revealed the Seward’s wallets, the packaged meat and other various food items, which were subsequently identified by Mrs. W. at trial as being from her pantry.
I.
In his first assignment of error, the defendant alleges that the trial court erred in failing to suppress all evidence obtained as a result of the warrantless search of his pickup truck. Specifically, the defendant alleges the following: That the warrantless search was not justifiable as incident to an arrest for a traffic offense; that his vehicle was illegally impounded on private property; that the alleged inventory search was a subterfuge; and that there was no consent to search the vehicle.
At approximately 6:00 p.m. on the afternoon in question, Officer Ralph Rose, an off-duty dispatcher for the Wagoner County Sheriff’s Department, motioned at the defendant for speeding and passing in a no passing zone, by shaking his finger at him as he passed. Officer Rose testified that Coleman pulled his pickup truck to the side of the road, and a conversation ensued which culminated when Coleman got back into his vehicle. As the defendant departed at a high rate of speed, Officer Rose testified that he observed the passenger in the defendant’s truck drinking a beer. Rose turned on his red lights and pursued the defendant at speeds up to 100 miles per hour. With the assistance of Highway Patrol Trooper Glen Smithson and Wagoner County Sheriff Tommy Gilbert, Officer Rose stopped the defendant’s vehicle and placed him under arrest for various traffic violations and possible driving under the influence of intoxicating liquor. Since Officer Rose observed the defendant speeding, passing in a no passing zone, attempting to elude an officer and exhibiting intoxicated behavior, he had probable cause to arrest Coleman, pursuant to 22 O.S.1981, § 196, for committing misdemeanors in his presence. Thus, Coleman’s initial arrest was proper and valid.
The defendant relies upon Lee v. State, 628 P.2d 1172 (Okl.Cr.1981) and Kelly v. State, 607 P.2d 706 (Okl.Cr.1980), to support his argument that his vehicle was on private property and therefore the law enforcement officers were without authority to impound it without a request by the property owner. We are of the opinion that the facts in the instant case are distinguishable from the facts in Lee, supra, and Kelly, supra. In the instant case the vehicle in question was involved in a high speed, hot pursuit chase which ended only when the defendant pulled into a residential driveway and stopped.
Coleman initially contended that he lived at the residence; however, Sheriff Gilbert was personally acquainted with the people who owned the property, and knew that neither the defendant nor others whom he subsequently claimed to be visiting lived there. It was obvious to the officers that the defendant had merely driven his vehicle into the residential driveway to seek sanctuary. From Sheriff Gilbert’s association with the actual residents and the presence of perishable foodstuffs in plain view in the truck’s camper, it was apparent that the vehicle would have to be removed from the property. Coleman was in custody; his companion who had been observed drinking beer was properly forbidden to drive the vehicle; and, the defendant was unable to make other arrangements for the safekeeping of his belongings. We are of the opinion that the officers acted properly when they impounded the defendant’s vehicle for the purpose of caretaking the defendant’s property in accordance with South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976).
Trooper Smithson testified that he handed an inventory sheet to Officer Rose and instructed him to inventory the truck while he and Sheriff Gilbert transported the Colemans to the Wagoner County Jail. Furthermore, the trooper stated that while taking the defendant into custody, he had observed, in plain view, open wallets in the truck’s glove compartment bearing the names “Seward,” and a box of frozen meat stamped “H., Not for Sale,” in the truck’s camper, and that he routinely questioned Coleman about them. In route to Wagoner, his investigatory instincts having been aroused, Trooper Smithson radioed the scene of the ongoing homicide investigation in Muskogee County and inquired whether the victims’ names were “Seward” and if meat stamped “H., Not for Sale,” had been taken. Upon receiving an affirmative reply, Trooper Smithson immediately stopped his cruiser, handcuffed J.C., read both Colemans their Miranda rights, turned his vehicle around and transported the Colemans to the Muskogee County Jail.
Officer Rose stated that pursuant to a radio communication from Trooper Smithson, informing him that the Colemans had been arrested as suspects in the Muskogee murders, he stopped his inventory, without having written anything on the inventory sheet, and waited for homicide investigators to arrive.
Both Officer Rose and Trooper Smithson testified that the inventory initiated at the time of the defendant and his passenger’s arrest was pursuant to established departmental policy. As stated above, the wallets, the meat marked “H., Not For Sale” and the other foodstuffs were all found during the initial stages of the inventory. The fact that neither Officer Rose nor the other officers had yet to reduce the findings of their inventory to writing is immaterial. The record discloses the good faith in which the inventory was initiated. It was only the sudden focus upon the defendant as a murder suspect which prevented completion of the list.
Although Agent Chrisco may have had time to arrange for a search warrant to be obtained while the pickup was being towed to Muskogee, we need not reach the issue of the appropriateness of his actions. The evidence complained of had previously been legally discovered, and was properly in police custody by virtue of the impoundment of the vehicle and the contents thereof. Swain v. State, 621 P.2d 1181 (Okl.Cr.1980); South Dakota v. Opperman, supra.
Thus, we find that the arrest of the defendant and the subsequent impoundment and inventory of his vehicle were proper, and the evidence of which the defendant now complains was properly admitted. This assignment of error is without merit.
II.
In his second assignment of error, the defendant alleges that the trial court erred in failing to exclude statements made by him at the time of his arrest, because he did not immediately receive the Miranda warnings. Defendant complains of three separate incidents in which Officer Smithson testified that the defendant made inculpa-tory statements to questions regarding the wallets, groceries, and the defendant’s reasons for stopping at the residence where he was arrested.
We initially note that the defendant failed to object to Trooper Smithson’s testimony at the time it was offered at trial. This Court has consistently held that when no specific objections' are made at trial to the admission of a defendant’s inculpatory statements, such objections cannot later be made as assignments of error on appeal. Long v. State, 567 P.2d 110 (Okl.Cr.1977). See also, U.S. v. Holliday, 474 F.2d 320 (10th Cir.1973).
In addition, the defendant did not include this assignment of error in his motion for new trial nor in his petition in error, and has not properly preserved this assignment of error for review. Hawkins v. State, 569 P.2d 490 (Okl.Cr.1977); Chronister v. State, 538 P.2d 215 (Okl.Cr.1975).
Furthermore, even if the alleged error had been properly preserved for review, we are of the opinion, after having carefully reviewed the record before us, that the questions asked of the defendant were purely investigatory in nature, and were not accusatory. The law enforcement officer who asked the questions had no inkling that Coleman had been involved in a homicide, at the time the questions were asked; thus, it cannot be said that the purpose of the questioning was to elicit a confession. The defendant was arrested for traffic violations and possible D.U.I., and it was not until Trooper Smithson called the homicide scene, while in route to the Wagoner County Jail, that the defendant became the “focus” of a homicide investigation, and he was immediately read his Miranda rights warning at that time. See, Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). Thus, we are of the opinion that the questioning was not improper.
Moreover, even if the questioning had been improper, it is well established that the admission of statements obtained in violation of Miranda may be said to constitute harmless error. Harryman v. Estelle, 616 F.2d 870 (5th Cir.1980), cert. denied 449 U.S. 860, 101 S.Ct. 161, 66 L.Ed.2d 76; Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). In determining whether the harmless error rule is applicable, we must determine whether, absent the unconstitutional defect, “the evidence remains not only sufficient to support the verdict but so overwhelming as to establish the guilt of the accused beyond a reasonable doubt.” Chapman, supra.
A review of the record reveals that evidence of Coleman’s guilt, although circumstantial, was overwhelming. The fact that the statements were admitted had no effect on the other substantial evidence introduced against Coleman at trial. As discussed in the first assignment of error, the Sewards’ wallets and the W.s’ meat and groceries, were discovered, pursuant to a valid search, in the defendant’s pickup only two hours after the homicides. Also, at the time of his arrest, approximately $210.00 in cash and a $2.00 bill were found in the defendant’s shirt pocket. Mrs. W., the victim’s sister, testified that her brother carried large sums of money and a $2.00 bill for good luck in his wallet. At trial, two witnesses identified the defendant’s white camper pickup truck as being similar to a white camper pickup they had seen in front of the W.s’ residence at the approximate time of the homicides. J.C., the defendant’s “alleged common law wife,” testified that at approximately 3:30 on the afternoon of February 9, 1979, the defendant left their residence with a shotgun and shells and returned at approximately 4:15. Defendant’s brother, V.D.C., testified that after the defendant’s arrest on the evening of February 9, he retrieved a .28 gauge shotgun (State’s Exhibit No. 19) and a box of Federal brand, No. 6 load shotgun shells from the defendant’s residence and conveyed the evidence to Muskogee County Investigator Gary Sturm between February 10 and February 11, 1979. Tom Jordan, a ballistics specialist, testified that State’s Exhibit No. 19 was an uncommon gauge and brand of shotgun and was consistent with the weapon and ammunition used in the Seward homicides. Finally, Eli Ma-ghee, who was incarcerated with Coleman prior to trial, testified that the defendant recounted the details of the homicides and explained the reasons for the murders as being that, “you just don’t leave any witnesses cause you got a lot less chance of getting convicted.”
Further, the defendant does not allege that the admission of the statements precluded him from introducing exculpatory evidence or hindered his defense in any manner. The second assignment of error is without merit.
III.
In his third assignment of error, the defendant argues that the trial court erred by admitting, over objection, allegedly prejudicial photographs. Specifically, Coleman complains of State’s Exhibits No. 12F and 121, which were black and white photographs of the murder victims taken at the scene of the homicides, and State’s Exhibit No. 18A, which was a color photograph taken before the autopsy depicting the entrance wound in the back of the victim’s head.
We are of the opinion that in accordance with the test set forth in Oxendine v. State, 335 P.2d 940 (Okl.Cr.1958), the probative value of the evidence in question outweighs any prejudicial effect. See also, Glidewell v. State, 626 P.2d 1351 (Okl.Cr.1981). In the instant case, the photographs of the victims at the scene of the crime tend to show that the victims were killed in an execution type manner in the basement. Also, the photograph of the entry wound in the back of the victim’s head corroborates the ballistics expert’s testimony and the pathologist’s testimony that the shotgun was fired at point blank range. These photographs show definitely that the intent was to kill.
Finally, the admission of allegedly gruesome photographs is within the discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. Glidewell v. State, supra. We note that the trial court excluded several other photographs for their prejudicial effect and determined that Exhibits 12F, 121 and 18A were probative and admissible. This assignment of error is without merit.
IV.
In his fourth assignment of error, the defendant alleges that the trial court erred by allowing J.C., the defendant’s alleged common law wife, to testify. He contends that her testimony violates the husband/wife privilege under 22 O.S.1981, § 702 and 12 O.S.1981, § 2504. In Lavicky v. State, 632 P.2d 1234 (Okl.Cr.1981), we said that although 22 O.S.1981, § 702 has not been specifically repealed, the legislature intended that 12 O.S.1981, § 2504 su-percede all prior legislation on the subject. Accordingly, the statute to apply in the present case is 12 O.S.1981, § 2504 which provides in pertinent part:
A. 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 person.
B. An accused in a criminal proceeding has a privilege to prevent his spouse from testifying as to any confidential communication between the accused and .the spouse.
At trial, J.C. testified in regard to the events of the day of the homicide. Our initial inquiry is whether her testimony breached any confidential communications.
J.C. testified that on the day of the homicide, the defendant came home at approximately 3:30, retrieved a shotgun and shells from their bedroom, left in his white camper pickup, and returned at approximately 4:15 p.m. We are of the opinion that this testimony did not concern a privileged communication. The privilege does not extend to matters learned through observation of the spouse’s non-communicative acts which are not intended to be confidential. See, Moore v. State, 270 Ark. 592, 605 S.W.2d 445 (Ark.1980); State v. Benner, 284 A.2d 91 (Me.1971). In the instant case, the defendant had been hunting earlier that day and therefore J.C.’s suspicions weren’t aroused when he left for the second time with the shotgun. It is clear that the defendant’s conduct occurred without any intent by him that his conduct be kept confidential. State v. Benner, supra.
J.C. also testified that, prior to going grocery shopping the defendant stated that they owned the groceries in the back of the camper. Finally, she stated that at the scene of their arrest, the defendant gave her a turquoise watch to keep, and then requested she give it back when they were being transported to Muskogee. We are of the opinion that this testimony also did not breach any confidential communications. Communications are not confidential if made in the presence of third parties. Lavicky v. State, supra. Since these statements of the defendant, to which J.C. testified, were made in the presence of third parties, his contention is without merit. Accordingly, this assignment of error is also without merit.
V.
In his fifth assignment of error, Coleman contends that the trial court committed reversible error by admitting evidence of his escape from the county jail, evidence of the burglary of the W. residence and evidence of the murder of Roxie Seward.
We initially find, from a review of the record, that the State complied with procedures necessary to introduce evidence of other crimes, as set forth by Burks v. State, 594 P.2d 771 (Okl.Cr.1979). The State furnished the defendant with written notice, ten days before trial, of its intent to introduce evidence of the escape, burglary and murder. In the notice of intent to introduce evidence of other crimes, and at the time the evidence was offered, the prosecutor specified the exception under which the evidence was sought to be admitted. Additionally, the trial court gave the jury a limiting instruction regarding evidence of other crimes. Further, it is well established that evidence of an escape from custody by an accused is admissible as showing consciousness of guilt. Odum v. State, 651 P.2d 703 (Okl.Cr.1982). See also, Brinlee v. State, 608 F.2d 839, 10th Cir.1979, cert. denied 444 U.S. 1047, 100 S.Ct. 737, 62 L.Ed.2d 733 (1980).
Finally, we note that the burglary of the W. residence and the murder of Roxie Seward can be considered to be a part of the res gestae of the murder of John Seward. Burks v. State, supra. The burglary and murder were committed contemporaneously with the murder of John Seward and were inseparable parts of a single criminal episode; the charges should have been filed in a single information, listing the various counts. See, Chaney v. State, 612 P.2d 269 (Okl.Cr.1980). We find no merit in the defendant’s fifth assignment of error.
VI.
In his sixth assignment of error, the defendant argues that he was denied a fair trial by reason of the district attorney’s improper and inflammatory remarks made during closing argument. We initially note that although defense counsel moved for a mistrial based on improper prosecutorial remarks at the conclusion of State’s argument, he did not interpose an objection to any of the statements during the course of closing argument. Since no objection was made at the time the alleged prejudicial statements were made, nor was any request made for an admonishment to the jury regarding them, the error has not been properly preserved for review. Smith v. State, 594 P.2d 784 (Okl.Cr.1979). Although defense counsel failed to object to the numerous instances of alleged prosecutorial misconduct, we shall review the record for fundamental error. Cobbs v. State, 629 P.2d 368 (Okl.Cr.1981).
While some of the remarks were unnecessary and are not to be condoned, they were not so grossly improper, in light of the evidence presented, as to have affected the verdict of the jury; thus, no modification or reversal is required. See, Chaney v. State, supra.
VII.
In his seventh assignment of error, the defendant alleges that reversible error occurred at trial by reason of the prosecutor’s knowing use of perjured testimony. Prosecution witness, E.M., was incarcerated with the defendant during the summer of 1979, and testified as to conversations he had with Coleman.
Citing 21 O.S.1981, § 496, the defendant alleges a discrepancy exists between witness E.M.’s testimony at the defendant’s preliminary hearing in Tulsa County for the murder of Russell Lewis and E.M.’s testimony at the trial in Muskogee County for the murder of John Seward, because at the preliminary hearing in Tulsa E.M. did not testify as to his conversations with the defendant regarding the murders of the Sewards in Muskogee County.
A review of the preliminary hearing transcript from the Tulsa County case reveals that there was no questioning by the State’s counsel on the subject of the Seward murders. Obviously, the omission of testimony lacks an essential element of perjury. See, Holt v. State, 506 P.2d 561 (Okl.Cr.1973)..
Further, at trial in the present case, the defense counsel had ample opportunity to cross-examine witness E.M. concerning any inconsistent statements which he might have given. Taylor v. State, 555 P.2d 1073 (Okl.Cr.1976). The jury was properly instructed in regard to the weight and credibility to be given the testimony of any witness. We find this assignment of error to be without merit.
VIII.
In his eighth assignment of error, the defendant alleges that he should have received a preliminary hearing on the bill of particulars. Specifically, he argues that since a preliminary hearing is required in all after former conviction of a felony (AFCF) cases, the same requirement should be had in capital cases. We have recently rejected this argument in Brewer v. State, 650 P.2d 54 (Okl.Cr.1982). In Brewer, supra, we stated that 21 O.S.1981, § 701.9 apprises the defendant of all possible penalties he faces. In addition, 21 O.S.1981, § 701.10 specifically states that “only such evidence in aggravation as the State has made known to the defendant prior to his trial shall be admissible.” These procedures eliminate any element of surprise; therefore, this assignment of error is without merit.
IX.
In his ninth assignment of error, the defendant alleges that the trial court improperly admitted evidence in the second stage which was not previously made known to him. In support of his argument he cites 21 O.S.1981, § 701.10, and alleges that he did not receive notice in the Bill of Particulars that the State intended to introduce evidence that he kidnapped an Arizona highway patrolman after his escape from county jail.
The Bill of Particulars contained the following pertinent language:
5. That there exists a probability that the defendant Charles Troy Coleman will commit future criminal acts of violence that will constitute a continuing threat to society, based on the following:
On the 23rd day of April, 1979, after the defendant had been bound over for trial for the murders of John and Roxie Seward, and it appearing that he would be held accountable for these two deaths and would be taken to trial for the commission of the murders, he did then and there escape from lawful confinement in the Muskogee County jail, fleeing beyond the borders of the State of Oklahoma, further illustrating his contempt and total disregard for the rules of a structured and orderly society and creating a further danger to other lives, including those of the law abiding citizens of this state, and in other areas of this nation; ...
We are of the opinion that the defendant did receive sufficient notice of the evidence which the State intended to introduce in support of the aggravating circumstance. The Bill of Particulars is specific in its allegation of defendant’s escape from the county jail, and the defendant kidnapped the Arizona highway patrolman on the five day spree subsequent to his escape. Furthermore, the defendant was made aware of the evidence because the Arizona highway patrolman had testified to the details of the kidnapping at the preliminary hearing in the Tulsa County murder, a transcript of which had been provided defense counsel. In Chaney v. State, supra, we said that 21 O.S.1981, § 701.10 is designed to give the defendant appropriate notice of the evidence of aggravating circumstance^). We are of the opinion that in the instant case the State complied with this requirement. Accordingly, this assignment of error is without merit.
X.
In his tenth assignment of error, the defendant complains that four prospective jurors were excused for cause in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). In Chaney v. State, supra, we said:
In Witherspoon, the Supreme Court held that persons cannot be excused from jury service for cause just because they are opposed to the death penalty. They can be excused for cause if their views are so strong that they would refuse to return a verdict of guilty, where it was justified, because the defendant could be sentenced to death. Prospective jurors can also be excused for cause if they have decided in advance that they will not vote to impose the death penalty, regardless of the circumstances. However, the questioning in this area during voir dire cannot be too specific:
‘... The most that can be demanded of a venireman ... is that he be willing to consider all of the penalties provided by state law, and that he not be irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings ... ’ (Emphasis original).
In the instant case, we believe that it was proper to excuse the jurors for cause. All four jurors stated unequivocably that they would not impose the death penalty regardless of the facts and circumstances that might emerge in the course of the proceedings. See also, Parks v. State, 651 P.2d 686 (Okl.Cr.1982). We therefore find this assignment of error to be without merit.
XI.
In the final assignment of error, the defendant alleges that three of the convictions relied upon to establish the aggravating circumstance were void and therefore the sentence of death should not have been imposed. At trial, an authenticated copy of the minute entries from the District Court Clerk of Elmore County of the State of Alabama, which reflect the defendant’s convictions in three cases, was admitted as evidence of his prior conviction of a felony involving the use or threat of violence. Defendant argues that these convictions are void because they do not show on their face that he knowingly and voluntarily waived his federal constitutional rights before entering a guilty plea. However, the record does indicate that he was represented by counsel upon entering his pleas of guilty. See, Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258,19 L.Ed.2d 319 (1967). The record also reveals that an appeal was never perfected from the 1967 convictions. Defendant has not alleged that there are pending collateral attacks on the convictions through post-conviction relief. See, State v. Jordan, 126 Ariz. 283, 614 P.2d 825 (Ariz.1980). We are of the opinion that the Alabama convictions were properly introduced. See, Ashlock v. State, 643 P.2d 324 (Okl.Cr.1982). Further, the State introduced another 1973 conviction from the Superior Court of San Luis Obispo County in the State of California, which supports the aggravating circumstance that he was convicted of a prior felony involving the use or threat of violence. Defendant’s final assignment of error is without merit.
XII.
Pursuant to our statutorily imposed duty under 21 O.S.1981, § 701.13, we now hold:
1) The sentence of death was not imposed “under the influence of passion, prejudice or any other arbitrary factor.” This was indeed a merciless execution of two innocent people who intruded upon the defendant as he burglarized a home. However, a complete review of the record reveals that the trial court was sensitive to the nature of the case and that defendant’s attorney competently protected his constitutional rights. We are of the opinion that the defendant received a fair and impartial trial;
2) The evidence supports the jury’s finding of statutory aggravating circumstances as enumerated in Section 701.12. The basis for this holding should be clear from the body of this opinion.
3)We have made a comparison of this case with other first degree murder cases before this Court and we find that the death penalty is not excessive. The jury found five aggravating circumstances present in the instant case. We find that the evidence supports all five aggravating circumstances. We find no reason to disturb or modify the imposition of the death sentence.
Accordingly, the judgment and sentence is AFFIRMED.
CORNISH and BRETT, JJ., concur.
During Agent Chrisco’s testimony at the defendant’s trial, a list of items taken from the appellant’s truck after it had been towed to the garage was introduced. We do not find Officer Chrisco’s testimony to constitute error, since he simply enumerated the items which had already been discovered.
Specifically the defendant complains of the testimony by Officer Smithson as follows: OFFICER SMITHSON: A. I — uh, went back and asked Mr. Coleman if — what his last name was and he told me. And I asked him what his in-laws’ name was, and he told me that, and I don’t remember what his in-laws’ name — what he said they were, but it was not Seward. And, at that point, I went over and asked Mrs. Coleman the same questions, and neither of her answers were Seward either. So, I went back then and asked, Mr. Coleman where he had got the wallet. And he told me he had been to the Eight-Ball the night before, which is a Club in Muskogee, and he said that he had picked up a woman and her husband there who were having an argument and they had pickup trouble and they gave them a ride home. He said, apparently, she had left her wallet in the pickup and about this time Sheriff Gilbert and Ralph Rose was in the rear of the vehicle looking in it and they had discovered some groceries and meat and stuff in it and they called me over to look at it, and on the meat it had a name stamped HOGLE, and it was processed meat, and it had NOT FOR SALE stamped on it. I went back and asked Mr. Coleman about this and he told me that they had been to the Warehouse Market to buy groceries and he said that they bought their groceries there. I asked him if he bought all of them there, and he said: Yes, we bought all of our groceries at the Warehouse Market. And, at this time I asked him, or I told him that he could not buy the meat there. And I asked him: Where did you get the meat that’s stamped NOT FOR SALE? You can’t buy it at Warehouse Market. He told me that apparently the meat was left in the vehicle, also, from the night before cause the people had left meat in there when they took them home. He said: ‘We were all very drunk. Didn’t know what we were doing.’ OFFICER SMITHSON: A. This is a picture of the groceries and frozen meat items that were also found in the rear of the pickup. I asked him about it, and he stated he had bought it at Warehouse Market. MR. TURPEN: Q. And he later stated what? A. He later stated that it belonged to the people that he had picked up at the Eight-Ball. MR. TURPEN: Q. The night before? A. Yes, sir. A. Okay. About that residence. Did you ever inquire as to why they stopped there? A. Yes, I did. I asked Mr. Coleman why they had stopped at this residence. He said: We live here. And I asked his wife later the same question. She verified— MR. PEARSON: Asked who later? I’m sorry. A. His wife. And she verified it. I asked them if they had a key to the residence? They said: ‘No.’ And later Mr. Coleman said: ‘It’s a friend of ours house’ and he called the friend’s name. I don’t remember what the name was. Sheriff Gilbert was there. He knew who lived there, who had built the house, and he stated that was not the name of the people that owned the house.
The record in this case reflects no evidence that defendant’s statement was involuntary.
Defendant’s defense was that he did not have time to commit the murder; that E.M. had a reputation of being untruthful and that his sister-in-law had given him $400 in cash the week of the homicides.
The trial court ruled that J.C. was the common law wife of the defendant’s older brother A.C., whom she had not divorced; therefore, she could not be the defendant’s common law wife.
The State filed a notice of intent to offer evidence of other crimes on August 27, 1979, and trial began on September 25, 1979.
The State advised that the evidence was offered as an exception to other crimes evidence based on res gestae as well as proof of identity of the defendant and defendant’s intent to kill.
The transcript reads in part as follows: Folks, what do we talk about when we talk about First Degree Murder? We’re talking about — we’re talking about this man’s head! I don’t mean to be shocking, ladies and gentlemen of the Jury, but we’re talking about this man’s head being turned into a puddle of blood and gray hairs at the bottom of the stairs. That’s the reality of it. I’m not trying to shock anybody. That’s the reality of it. That a living human being’s head was turned into a puddle of blood and hair because of him, based on the evidence. (Tr. 787). But I want you to think about the last few seconds in John Seward’s life as he’s being marched down those stairs with his wife, you know, to what became a human slaughter house, and think about the horror he must have felt. And think about the terror he must have felt as he spent his last few seconds on this earth — a man who, I suggest to you, had the right to die with more dignity. Let’s think about it. (Tr. 788). Last witness. Mrs. W.. Mrs. W. described this — the home she lived in here— that’s where she lives. It’s nice to live in a home where your brother was murdered in the back basement. Think about that, please. John Seward is dead and gone forever. Plus, there’s more than one victim. We all suffer a little, but think of the family that’s still living in the home and where her brother was murdered in the basement. See, it points out that there’s more than one victim when it comes to cold-blooded murder. When a man does what this man did, Charles Coleman, on that day, February 9th, when he takes them down into the basement of the home and murders them in cold-blood, if you will, when you do that, you see you got more than one victim. You’ve got more than just Roxie and John Seward, you see, you got a family. You got people left behind. See, this was a pretty expensive shopping spree. I mean, a lot of people have suffered, if you know what I mean, based on the evidence, I mean, from the witness stand, that Mrs. W. testified about. (Tr. 830).
The aggravating circumstance is found in 21 O.S.1981, § 701.12.2 which provides in part: Aggravating circumstances shall be: 7. The existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; or ...
Defendant objected to the following jurors being excused for cause: Juror G.; Juror B.; Juror H.; Juror C..
21 O.S.1981, § 701.12 provides that: Aggravating circumstances shall be: (1) The defendant was previously convicted of a felony involving the use or threat of violence to the person.
Defendant has not challenged the validity of this conviction.
The jury found that the evidence supported the following five circumstances: 1) the defendant was previously convicted of a felony involving the use or threat of violence to the person; 2) the defendant knowingly created a risk of death to more than one person; 3) the murder was especially heinous, atrocious or cruel; 4) the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution; 5) the existence of probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.
We have compared this case with cases in which the defendant received the penalty of death: Stafford v. State, 665 P.2d 1205 (Okl.Cr.1983); Davis v. State, 665 P.2d 1186 (Okl.Cr.1983); Ake v. State, 663 P.2d 1 (Okl.Cr.1983); Smith v. State, 659 P.2d 330 (Okl.Cr.1980); Parks v. State, 651 P.2d 686 (Okl.Cr.1982); Jones v. State, 648 P.2d 1251 (Okl.Cr.1982); Hays v. State, 617 P.2d 233 (Okl.Cr.1980); Eddings v. State, 616 P.2d 1159 (Okl.Cr.1980) (Remanded for resentencing, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1), Chaney v. State, 612 P.2d 269 (Okl.Cr.1980). We have also compared Coleman’s sentence in light of cases in which death sentences have been modified to life imprisonment: Glidewell v. State, 663 P.2d 738 (Okl.Cr.1983); Johnson v. State, 662 P.2d 687 (Okl.Cr.1983) (53 OBAJ 730, Okl.Cr.1982; opinion withdrawn); Boutwell v. State, 659 P.2d 322 (Okl.Cr.1983); Driskell v. State, 659 P.2d 343 (Okl.Cr.1983); Jones v. State, 660 P.2d 634 (Okl.Cr.1983); Munn v. State, 658 P.2d 482 (Okl.Cr.1983); Odum v. State, 651 P.2d 703 (Okl.Cr.1982); Burrows v. State, 640 P.2d 533 (Okl.Cr.1982); Franks v. State, 636 P.2d 361 (Okl.Cr.1981); Irvin v. State, 617 P.2d 588 (Okl.Cr.1980). We have also considered this case in light of cases in which the defendant’s convictions and sentences of death were reversed or otherwise remanded for subsequent proceedings: Hatch v. State, 662 P.2d 1377 (Okl.Cr.1983); Hall v. State, 650 P.2d 893 (Okl.Cr.1982); Brewer v. State, 650 P.2d 54 (Okl.Cr.1982); Hager v. State, 612 P.2d 1369 (Okl.Cr.1980).
Charles Troy COLEMAN, Appellant, v. The STATE of Oklahoma, Appellee.
No. F-80-150.
Court of Criminal Appeals of Oklahoma.
Sept. 23, 1983.
Patti Palmer, Deputy Appellate Public Defender, Norman, for appellant.
Jan Eric Cartwright, Atty. Gen., Robert C. Smith, Jr., Asst. Atty. Gen., Oklahoma City, for appellee.
[OPINION BY BRETT, Judge: type=majority]
OPINION
BRETT, Judge:
Appellant, Charles Troy Coleman, was charged, tried, and convicted of Murder in the First Degree in Tulsa County District Court, Case No. CRF-79-2176. The jury assessed the death penalty as punishment pursuant to 21 O.S.1981, § 701.10.
The evidence presented by the State to convict appellant for the death of Russell Lewis was almost entirely circumstantial except for very damaging testimony given by a former cellmate of appellant’s. E.M. was being held in the Tulsa County jail when appellant was there pending trial in the present case. E.M. testified that while the two of them were in jail, appellant confessed to killing a man near Chandler Park in Tulsa after robbing him. Appellant told E.M. that he shot the man using a revolver which he had taken from a police officer, and which he subsequently discarded in Arizona.
The remaining evidence at trial is best understood when stated chronologically.
On April 24, 1979, a police officer in Luther, Oklahoma, stopped a car driven by appellant for speeding. Following a driver’s license cheek, appellant overpowered the officer, slashed his throat, and took his revolver. Appellant left the officer handcuffed and locked in the backseat of his patrol car.
Two days later, Russell Lewis, the murder victim, who was temporarily residing in Tulsa, was paid by his employer. On the night of April 26, he had stopped for a beer at a club he frequented, and left around 8:30 p.m. He was not seen alive again.
On April 28, 1979, an employee of the Frisco Railroad in Tulsa found Mr. Lewis’ body down an embankment near Chandler Park and reported the discovery to the sheriff’s office. A search of the victim’s clothes produced no billfold or money. Evidence showed that Mr. Lewis died from a single gunshot wound to the head.
On that same day, Officer Parrish of the Pima County, Arizona, Sheriff’s office stopped appellant in Arizona for driving erratically. Appellant was driving a pickup truck that he claimed belonged to his father, Mr. Lewis. Appellant pulled a gun on Officer Parrish, took his gun, and then drove the officer’s car into the desert and left him locked inside. Within minutes, other officers were in pursuit of appellant and apprehended him. Appellant was driving the victim’s pickup truck and possessed keys that fit door locks at the victim’s home. A Turner Turnpike ticket stub found in the truck placed appellant entering the turnpike at the Bristow, Oklahoma, entrance on April 27 at 12:42 a.m., several hours after the victim was last seen alive, and exiting in Oklahoma City at 3:34 a.m. the same morning.
Nearly three months later, the Luther, Oklahoma, officer’s gun was discovered in the Arizona desert near the point where appellant was apprehended. The man that inadvertently found the gun testified that it contained five shells and the sixth chamber was empty.
Appellant presents thirteen assignments of error in this appeal. Insofar as this conviction must be reversed, it will be necessary to discuss only those issues which will have a bearing on a new trial.
In one of his assignment’s of error, appellant alleges that his right to self-representation was denied at trial and in support of this allegation cites Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Appellant did not, however, unequivocally express his desire to represent himself. He filed several motions placing certain conditions on the assertion of his right. The trial court properly conducted a hearing and determined that even though his initial request might have been timely made, the subsequent motions placing the various conditions on his request caused his expression not to be unequivocal.
In view of the fact that the issue of self-representation may arise again, the trial court is directed to Johnson v. State, 556 P.2d 1285 (Okl.Cr.1976), for guidance; and further, the trial court is admonished that the request to represent oneself at trial must be unequivocal.
In another assignment or error, appellant challenged the exclusion of prospective jurors from the jury panel who had expressed reservations about the death penalty. Our review of the voir dire is governed by the holding in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), where the Supreme Court held, “[a] sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding venireman for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.” A juror may be excused for cause only if he is unwilling to consider all of the penalties provided by the State law and is irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the circumstances that might emerge in the course of the proceedings. Id. at 522, n. 21, 88 S.Ct. at 1777 n. 21.
Appellant claims that Jurors W. and A. were excused in violation of With-erspoon. A review of the voir dire leads this Court to conclude that Juror W. was properly challenged for cause when she unambigously stated that she could not impose the death penalty under any circumstances. This is in accordance with Wither-spoon, as W. would not consider one of the penalties — death.
We have determined, however, that Juror A. was improperly excused for cause. His voir dire at best reflects general objections to the death penalty or conscientious and religious scruples against its infliction.
The following voir dire of Juror A. was conducted:
“You have heard all the questions I have asked, do you feel you could be a fair and impartial juror in the trial of this case? MR. ABEL: I guess.
“THE COURT: You say you guess—
“MR. ABEL: I’m having a little bit of moral trouble with the death penalty.
“THE COURT: Okay. I’ll get to that as soon as we have talked to all of the jurors a little bit more in detail. Do you feel at this point that you could be a fair and impartial juror in the trial of this case? Is that correct? or do you feel there is something — let me ask you this question. I’ll just get into it right now, and I’ll ask you this. In a case where the law and evidence warrant, in a proper case, could you without doing violence to your conscience agree to a verdict imposing the death penalty?
“MR.,ABEL: No.
* ^ * * ⅜ * *
“I’ll get to the original question I asked. In a case where the law and the evidence warrant, in a proper case, could you without doing violence to your conscience agree to a verdict imposing the death penalty?
“MR. ABEL: I really couldn’t.
“THE COURT: You don’t feel that you could?
“MR. ABEL: To be honest, I couldn’t.
(Tr. 30-31).
The following transpired during defense counsel’s voir dire of Juror A.:
“MR. EARL: If Your Honor please, we would like to ask Mr. A. a question.
“Mr. A., we’re not talking about this particular case, because quite obviously you don’t know any of the facts of this case so far. Is it impossible for you to conceive of any situation whatsoever, regardless of how heinous it may be, that would prevent you from assessing the death penalty?
“MR. ABEL: Well, I’ve been taught in church that God has the only right to do this thing, put someone to death.
“MR. EARL: As an obligation, as a citizen to serve on a jury panel, if the Court were to instruct you that under certain circumstances it was appropriate to assess such a penalty, can you conceive of any such factual situation where you would be able to follow the Court’s instruction and do as the Court instructed you in applying to that factual situation?
“MR. ABEL: I could, but I think it would bother my conscience.
“MR. EARL: You could follow the instructions of the Court and assess a death penalty if you thought it was appropriate in this particular situation?
“MR. ABEL: Yes, but I couldn’t with a clear conscience. If it really had to be, I could.
“MR. EARL: That’s the question. I would understand, and I would hope that everybody would have a question or a problem, but given the factual situation are you now telling the Court that you would assess the death penalty if the Court instructed you it was correct?
“MR. ABEL: I think I could, yeah.
(Tr. 32-33).
The State relies on the initial question asked A. to support the challenge for cause. Unfortunately, the answer to that question indicates only that the juror had conscientious objections to imposing the death penalty. To excuse him for that reason is in direct contravention of the Wither-spoon mandate that a juror may not be excused because of conscientious or religious scruples against the death penalty. Juror A. made it abundantly clear that he possessed those qualms by his answer. In fact, Witherspoon states in footnote 9 that “[ojbviously many jurors ‘could, notwithstanding their conscientious scruples [against capital punishment], return ... [a] verdict [of death]’ .... ”
Subsequent voir dire questions are more indicative of Abie’s position. He indicated he was not irrevocably committed before trial had begun to vote against the death penalty by his answer to defense counsel’s question, “You could follow the instructions of the court and assess the death penalty if you thought it was appropriate in this particular situation?” When A. answered, “Yes, but I couldn’t with a clear conscience. If it really had to be I could,” he disclosed his ability to consider all of the penalties; it was not an unambiguous refusal to vote for the death penalty.
Witherspoon mandated the seating of a “neutral” jury and criticized the seating of a hanging jury. The line of neutrality was crossed when the State “swept from the jury all who expressed conscientious or religious scruples against capital punishment .... ” Id. 88 S.Ct. at 1776. Because Juror A. was improperly excused in violation of Witherspoon, the subsequently imposed death penalty cannot stand. Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339 (1976).
Therefore, for the reasons stated herein it is necessary that this conviction be REVERSED and REMANDED for a new trial.
BUSSEY, P.J., and CORNISH, J., concur.
A similar question was a basis of reversal in Maxwell v. Bishop, 398 U.S. 262, 90 S.Ct. 1578, 26 L.Ed.2d 221 (1970).
Charles Troy COLEMAN, Petitioner, v. The STATE of Oklahoma, Respondent.
No. PC-84-391.
Court of Criminal Appeals of Oklahoma.
Nov. 30, 1984.
Edward L. Munson, Tahlequah, for appellant.
Hugh Manning, Asst. Atty. Gen., Oklahoma City, William A. Edmondson, Dist. Atty., Muskogee, for appellee.
[OPINION BY HEZ J. BUSSEY, P.J. ED PARKS, J. TOM BRETT, J. type=majority]
ORDER AFFIRMING DENIAL OF POST-CONVICTION RELIEF
This is an appeal from the District Court of Muskogee County, Case No. CRF-79-76, wherein, after a hearing was held, the Honorable Hardy Summers entered extensive findings of fact and conclusions of law regarding each allegation of error raised by the petitioner in both his original and his amended applications for post-conviction relief, and denied same.
As one of his allegations of error, the petitioner complains of the trial court’s failure to provide him with a court appointed investigator to assist in his defense. However, as the district court found, the doctrine of res judicata bars consideration in post-conviction proceedings of issues which have been or which could have been raised on direct appeal. See for instance, Harrel v. State, 493 P.2d 461 (Okl.Cr.1972), and cases cited therein. Moreover, even if this issue was properly before this Court it would be meritless. The argument sought to be raised has been previously addressed and rejected by this Court. See, Eddings v. State, 616 P.2d 1159 (Okl.Cr.1980), reversed on other grounds, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); and, Bills v. State, 585 P.2d 1366 (Okl.Cr.1978). These cases are dispositive of this issue.
In another assignment of error, the petitioner asserts that the procedure in the district court denied him an opportunity for a fair and impartial hearing. He claims that it was error for the district court not to grant his writ of habeas corpus ad testi-ficandum and his motion to serve as co-counsel in the hearing. However, the petitioner has failed to set forth any authority to support this assertion. Moreover, the applicable statute, 22 O.S.1981, § 1084, states in pertinent part that: “... The Court may receive proof by affidavits, depositions, oral testimony, or other evidence and may order the applicant brought before it for the hearing.” (Emphasis added). The statutory language is clearly permissive and not mandatory.
At the conclusion .of his order, Judge Summers, in addressing this alleged error, stated:
... [T]he issue of whether the defendant should be present during his hearing was under continuous advisement and if the Court found, at any time, that his presence was necessary the proceedings would have been delayed until his presence could be secured. In each instance where counsel sought the defendant’s testimony, that testimony was found to be either stipulated to by the State, not relevant to the issue or not admissable or competent testimony. On no occasion did the Court find that the presence of the defendant to be either necessary or of benefit to the Court in determining the legal issues presented.
The petitioner has failed to' demonstrate that the district judge abused his discretion in this matter.
Petitioner also argues that the district court erred in conducting the hearing on his application while he had a petition for writ of mandamus pending in this Court, in which he prayed for this Court to order Judge Summers to disqualify and recuse in the matter. We do not agree.
This Court never issued any order staying proceedings in the district court; rather, we declined to assume original jurisdiction because the petitioner “... failed to allege sufficient facts [for us] to grant the relief [prayed for],” and his petition was not filed ten (10) days prior to the hearing date as required by Rule 3.17 of this Court. (Since the petition did not state the date that the hearing sought to be prohibited was docketed, a telephone call was necessarily made to the Court Clerk of Muskogee County, and this Court was informed that the matter was scheduled for that very day. An additional telephone call to the District Attorney’s office confirmed that the proceeding was in progress). We are unable to say that Judge Summers erred in holding the hearing.
In several other assignments of error, the petitioner alleges that he was denied effective assistance of counsel at the guilt and sentencing stages of his trial and on appeal. He further maintains that Judge Summers did not apply the proper standards in making his determination that the petitioner had not been denied effective assistance of counsel.
Petitioner sets forth a plethora of actions and inactions which he now maintains were mistakes committed by his trial attorney, which his attorney on direct appeal should have raised, but did not. However, we do not deem it necessary to enumerate each of the allegations for purposes of this appeal.
In the landmark decision of Strickland v. Washington, 466 U.S. -, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court of the United States set forth standards by which to judge a contention that a criminal judgment must be overturned be-, cause of actual ineffective assistance of counsel. Therein, that Court stated in pertinent part as follows:
The 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.
sfc ¡{c ⅝: * sfc sfc
A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, 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. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.
H- * * * * *
Judicial scrutiny of counsel’s performance 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. Cf. Engle v. Isaac, 456 U.S. 107, 133-134 [102 S.Ct. 1558, 1574-1575, 71 L.Ed.2d 783] (1982). A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ (citation omitted).
An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. Cf. United States v. Morrison, 449 U.S. 361, 364-365 [101 S.Ct. 665, 667-668, 66 L.Ed.2d 564] (1981). The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Accordingly, any deficiencies in counsel’s performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution.
⅝ ⅜ ⅝ sfc ⅜: ⅜;
When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt. When a defendant challenges a death sentence such as the one at issue in this case, the question is whether there is a reasonable probability that, absent the errors, the sentencer — including an appellate court, to the extent it independently reweighs the evidence — would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.
sfc ⅜ ⅜ * * *
[A] court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. Courts should strive to ensure that ineffectiveness claims not become so burdensome to defense counsel that the entire criminal justice system suffers as a result. (Emphasis ours).
In the instant case, the petitioner has fallen to the temptation to second guess his trial counsel and now utilizes the benefit of hindsight, and this Court’s opinion rendered on his direct appeal, styled Coleman v. State, 668 P.2d 1126 (Okl.Cr.1983), cert. den., — U.S. -, 104 S.Ct. 986, 79 L.Ed.2d 222 (1984), to assert inadequacies on the part of his trial counsel.
The evidence of the petitioner’s guilt is overwhelming, as is the evidence supporting the jury’s finding of the existence of all five (5) statutory aggravating circumstances. See, Coleman, supra. Moreover, the petitioner has made no showing that the justice of his sentence was rendered unreliable by a breakdown in the adversary process caused by deficiencies in counsel’s assistance. See, United States v. Cronic, — U.S. -, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). The fact that trial counsel elected not to offer any evidence of mitigation in the punishment stage of the proceedings is not per se ineffective assistance as petitioner now alleges. As the Supreme Court observed in footnote 19 of its opinion in United States v. Cronic, supra: ... [T]he Sixth Amendment does not require that counsel do what is impossible or unethical. If there is no bona fide defense to the charge, counsel cannot create one and may disserve the interests of his client by attempting a useless charade.
Even with the use of his hindsight enhanced vision, the petitioner has simply failed to demonstrate that there is a reasonable probability that, absent the alleged errors of which he now complains, the verdict of the jury would have been altered or that his punishment would have been lessened. Therefore, utilizing the standards set forth in Strickland v. Washington, supra, we find that the petitioner has not been denied the actual effective assistance of counsel.
IT IS THEREFORE THE ORDER OF THIS COURT that the order of the District Court denying post-conviction relief should be and the same hereby is AFFIRMED.
IT IS SO ORDERED.
WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 30th day of November, 1984.
HEZ J. BUSSEY, P.J.
ED PARKS, J.
TOM BRETT, J.
APPENDIX
The Findings of Fact and Conclusions of Law of District Judge Hardy Summers read in pertinent part as follows:
“On the 10th day of May, 1984, there came on for Hearing the defendant’s Application for Post-Conviction Relief, the defendant appearing by his appointed counsel, Edward Munson, and the State appearing by W.A. Edmondson, District Attorney for Muskogee County, and, having reviewed the entirety of the Record in the above styled cause, including the Preliminary Hearing, the Motions Hearing of September 5, 1979, the trial transcript, the Motion for New Trial and the Opinion of the Court of Criminal Appeals in case number F-79-600 (Coleman v. State [668 P.2d 1126 (Okl.Cr.1983) ]), having received offers of proof on behalf of the defendant and stipulations of testimony and fact from the State, and, having heard argument of counsel and citations of law from both the State and the defendant, this court makes the following Findings of Fact and Conclusions of Law as to the issues raised in the Applications, taking them in the order that they were filed:
“1. Issue A in the Original Application; that there was an illegal search of defendant’s vehicle and illegal seizure of items therefrom. The Court finds that this question was raised in the defendant’s original Appeal from his conviction and was dealt with by the Court of Criminal Appeals. The findings of that Court being res judica-ta of the issue, Post-Conviction Relief shall be denied.
“2. Issue B in the Original Application; that counsel for the defendant was ineffective in the first stage of the trial by failing to object to certain incriminating statements made at the time of defendant’s arrest. The Court first makes the following Findings of Fact:
“A. That defendant’s trial counsel is a graduate of the University of Tulsa College of Law and was admitted to practice in Oklahoma in 1960.
“B. That defendant’s trial counsel was actively engaged in the practice of law, including extensive trial practice, for the 19 years preceeding his representation of defendant.
“C. That, prior to his representation of defendant, counsel had successfully defended other defendants charged with murder or manslaughter.
“D. That the decision to object to a particular question or the introduction of a particular item of evidence is often a matter of discretion to an experienced trial lawyer.
“E. That the Court of Criminal Appeals reviewed the admissability of the statements in question in the context of defendant’s Second Proposition on appeal and found the questioning of defendant permissible and the statements admissible, and, further, even if inadmissible the error would be harmless in view of the overwhelming evidence against the accused.
“The Court therefore makes the following Conclusions of Law:
“A. That the defendant has failed to establish that counsel’s failure to object to statements made by defendant at the time of his arrest constitutes ineffective assistance of counsel.
“B. That the impact of the statements themselves has been reviewed by the Court of Criminal Appeals and the findings of that Court are res judicata of the issue here.
“On these Findings and Conclusions, Post Conviction Relief as to this issue shall be denied.
“3. Issue C in the Original Application; that counsel for the defendant was ineffective in the second stage of the proceedings by failing to object to certain statements made by the prosecutor. The Court makes the following findings of fact:
“A. That Findings A, B, and C in paragraph 2 above are found herein, in full.
“B. That the decision to object to a particular statement by a prosecutor during closing argument is often a matter of discretion to an experienced trial lawyer.
“C. That the Court of Criminal Appeals has reviewed the entire record of the closing argument for fundamental error and the conclusions of that Court are res judica-ta of the issue here.
“The Court therefore makes the following Conclusions of Law:
“A. That the defendant has failed to establish that counsel’s failure to object to certain statements made by the prosecutor during closing argument constituted ineffective assistance of counsel.
“B. That the impact of the comments themselves has been reviewed by the Court of Criminal Appeals and the findings of that Court are res judicata here.
“On these Findings and Conclusions, Post-Conviction Relief on this issue shall be denied.
“4. Issue D in the Original Application; that there was inadequate notice of certain aggravating circumstances to be used in the second stage of the proceedings. The Court finds that this question was raised in the defendant’s original Appeal from his conviction and was dealt with by the Court of Criminal Appeals. The findings of that Court being res judicata of the issue, Post-Conviction Relief shall be denied.
“5. Issue E in the Original Application; that jury selection was improper and did not meet the requirements of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). The Court finds that this question was raised in the defendant’s original Appeal from his conviction and was dealt with by the Court of Criminal Appeals. The findings of that Court being res judicata of the issue, Post-Conviction Relief shall be denied.
“6. Issue F in the Original Application; that the prosecution knowingly used the perjured testimony of one E.M. to secure the conviction. The Court finds that the question of perjury was raised in the defendant’s original Appeal and was dealt with by the Court of Criminal Appeals, which found that any discrepancies in the testimony of E.M. was not of such a nature as to constitute perjury, that finding being res judicata of the issue here. The non-existance of such perjury being established, the defendant’s allegation that the prosecutor knew of such perjury is wholly without merit. Post-Conviction Relief as to this issue shall therefore be denied.
“7. Issue G in the Original Application; that the State’s retention of defendant’s pick-up truck and camper deprived the defendant of funds with which to hire an investigator. The Court makes the following Findings of Fact:
“A. That, during the trial, the defendant’s pick-up was identified by two witnesses as being at the scene of the murder at the time of the murder.
“B. That, at the time of his arrest, the defendant’s pick-up contained, in the cab area, the wallets of the murder victim and his wife, and, in the camper portion, packages of meat which had allegedly been taken from the scene of the murder.
“C. That the location of these items, and the ability of law enforcement officers to view them in plain sight, was at issue in certain motions before trial and during the trial itself.
“D. That the defendant was aware, at all times subsequent to his arrest, that his pick-up and camper were being held as evidence.
“The Court therefore makes the following Conclusions of Law:
“A. The pick-up and camper, while never introduced at trial, might have been required for a witness to view or for a jury view, and thus had evidentiary value and its retention for those purposes was proper.
“B. That this question was within the knowledge of defendant at the time of his appeal but was not raised, and, thus, does not constitute new evidence or new grounds and is not properly raised in an Application for Post-Conviction Relief.
“On these Findings and Conclusions, Post-Conviction Relief as to this issue shall be denied.
“8. Issue 2 in the Amended Application; that the State withheld exculpatory evidence. The Court makes the following Findings of Fact:
“A. That in a Motions Hearing conducted on September 5, 1979, upon proper request by the defense, the State announced that it possessed no exculpatory evidence.
“B. That in the same Motions Hearing, the State requested that if the defense knew of anything which it felt might be exculpatory that it make a specific request.
“C. That no specific request for an exculpatory item of evidence was made and that none was denied.
“D. That the State made full disclosure of all scientific, ballistics and medical reports in its possession.
“E. That the State’s attorney in the instant hearing announced that his search of the files of the District Attorney’s revealed no exculpatory evidence.
“F. That the one item of evidence specifically cited by the defendant in the instant hearing, the prior statement of one K.C., was reviewed by the Court and found to be not exculpatory.
“G. That defense counsel’s offer of what his client might testify to concerning exculpatory evidence would have been complete hearsay and of no guidance to the Court.
“H. That no other witnesses were offered as to the existance of exculpatory evidence; further, that examination of defendant’s trial counsel revealed no knowledge on his part of any potentially exculpatory evidence which was withheld by the State.
“I. That no exculpatory évidence withheld by the State was shown to exist.
“Therefore, the Court makes the following Conclusions of Law:
“A. That no grounds for Post-Conviction Relief based upon the State’s withholding of exculpatory was shown to exist.
“Post-Conviction Relief as to this issue shall be denied.
“9. Issue 3 in the Amended Application; that the State withheld evidence of another person’s involvement in the crime. The Court adopts all of its findings in paragraph 8 above as to exculpatory evidence and makes those same findings as to evidence of another person’s involvement in the crime. The Court makes the same conclusion of law on the instant issue as was made in paragraph 8 above.
“Post-Conviction Relief as to this issue shall be denied.
“10. Issue 4 in the Amended Application; that the Court erred in allowing certain evidence of weapons and as to cross-examination thereon. The Court makes the following Findings of Fact:
“A. That argument of counsel in the instant hearing centered on evidence that the defendant’s brother, V.D.C., took the alleged murder weapon, a .28 gauge shotgun, from the defendant’s bedroom and threw it, along with other weapons, into a local river, subsequently pointing out to law enforcement where the weapons were and allowing for their recovery.
“B. That the Court, by its rulings at trial, limited the State, in its evidence, to the fact that the shotgun was recovered from defendant’s brother and would not permit testimony about the river unless necessary to establish chain of custody.
“C. That it was not shown by the defense where this limitation was violated or where there was any mention of the guns being recovered from the river.
“D. That the defense was aware of the rulings of the court in this regard during the trial and at all times subsequent thereto.
“Therefore the Court makes the following Conclusions of Law:
“A. That the shotgun, itself, was probative, admissable evidence.
“B. That it was necessary for the State to show chain of custody in order to link the shotgun to the defendant.
“C. That no undue prejudice attached to the manner in which the shotgun was introduced.
“D. That this question was within the knowledge of defendant at the time of his appeal but was not raised, and, thus, does not constitute new evidence or new grounds and is not properly raised in an Application for Post-Conviction Relief.
“On these Findings and Conclusions, Post-Conviction Relief as to this issue shall be denied.
“11. Issue 5 in the Amended Application; that the State committed error in commenting on defendant’s silence during the State’s closing argument. The Court finds that this question was raised in the defendant’s original Appeal from his conviction and was dealt with by the Court of Criminal Appeals. The findings of that Court being res judicata of the issue, Post-Conviction Relief shall be denied.
“12. Issue 6 in the Amended Application; that the State committed error in its comments on evidence not in the record or in misstatements as to the evidence. The Court finds that this question was raised in the defendant’s original Appéal from his conviction and was dealt with by the Court of Criminal Appeals. The findings of that Court being res judicata of the issue, Post-Conviction Relief shall be denied.
“13. Issue 1 in the Amended Application; that the Court committed error in failing to instruct on the defendant’s failure to testify and his right to silence. The Court makes the following Findings of Fact:
“A. That no such instruction was given in either stage one or stage two of the proceedings.
“B. That the defense was asked in each stage whether it had any desired instruction and no instruction on the defendant’s failure to testify or right to silence was requested in either stage.
“C. That defendant’s trial counsel testified in the instant hearing that he was aware at the time of the trial that such an instruction existed and would be given on request and that it was a matter of trial strategy, on a case by case basis, whether such an instruction worked to a defendant’s benefit or harm.
“D. That the defense was aware at the time of trial and at all times subsequent thereto that such an instruction was not given.
“Therefore, the Court makes the following Conclusions of Law:
“A. That, absent a request therefore, it is not error to fail to give an instruction on the defendant’s failure to testify and right to silence.
“B. That this question was within the knowledge of defendant at the time of his appeal but was not raised, and, thus, does not constitute new evidence or new grounds and is not properly raised in an Application for Post-Conviction Relief.
“On these Findings and Conclusions, Post-Conviction Relief as to this issue shall be denied.
“14. Issue 8 in the Amended Application; that the State failed to provide evidence of certain witnesses’ bias or motives in testifying. The Court makes the same Findings of Fact as to allegedly withheld evidence of witnesses’ bias or motives as it made in regard to exculpatory evidence in paragraph 8 above. The Court further concludes, as a matter of law, that no grounds for Post-Conviction Relief based upon the State’s withholding of evidence of witnesses’ bias or motives was shown to exist.
“Post-Conviction Relief as to this issue shall be denied.
“15. Issue 9 in the Amended Application; that the Court erred in not providing an investigator to the defense or appointing co-counsel or legal intern. The Court makes the following Findings of Fact:
“A. That the defense requested on numerous occasions that the court lacked the authority to do so.
“B. That on each occasion, the defense was advised that the court lacked the authority to do so.
“C. That disclosure by the State of discoverable items, including scientific, ballistics and medical reports was complete.
“D. That six of the witnesses, who provided critical evidence as to the defendant’s ownership of a .28 gauge shotgun as well as his location immediately before and after the murder, were related to the defendant by blood or marriage and were equally accessible to the State and the defense.
“E. That defendant’s trial counsel was experienced and skilled in the law and presented Motions and other procedural matters important to his client’s defense in a timely and professional manner.
“F. That the defense was aware at the time of trial and at all times subsequent thereto that the court had not provided an investigator or appointed legal assistance.
“Therefore the Court makes the following Conclusions of Law:
“A. That the defendant was provided an able and thorough defense and was not prejudiced by failure to appoint an investigator or additional legal assistance.
“B. That this question was within the knowledge of defendant at the time of his appeal but was not raised, and, thus, does not constitute new evidence or new grounds and is not properly raised in an Application for Post-Conviction Relief.
“On these Findings and Conclusions, Post-Conviction Relief as to this issue shall be denied.
“16. Issue 10 in the Amended Application; that the Court erred in failing to allow voir dire of a juror as to conversations with other jurors. The Court makes the following Findings of Fact:
“A. The juror in question, Juror M., stated on voir dire that she had heard about the case from a close friend who was also a close friend of the victims.
“B. The juror was excused for cause and never sat on the case.
“C. The juror gave no indication that she had heard anything from another potential juror or had discussed what she knew with any other potential juror.
“D. All jurors prior to M. and all jurors after M. were asked under oath what, if anything, they had heard about the case. ■
“E. Defense counsel was given the opportunity to discuss privately with Juror M. whether there had been any conversation among potential jurors as to M. knowledge of the case.
“F. The voir dire was conducted with each juror being questioned privately, outside the presence of the other jurors or potential jurors.
“G. That the defense was aware at the time of trial and at all times subsequent thereto that the court had not allowed voir dire of Juror M. as to her conversations, if any, with other jurors after she had been excused for cause.
“Therefore the Court makes the following Conclusions of Law:
“A. No prejudice to the defendant occurred from the manner in which Juror M. was questioned or from the failure to allow the defendant further voir dire after the juror had been excused for cause.
“B. That this question was within the knowledge of defendant at the time of his appeal but was not raised, and, thus, does not constitute new evidence or new grounds and is not properly raised in an Application for Post-Conviction Relief.
“On these Findings and Conclusions, Post-Conviction Relief as to this issue shall be denied.
“17. Issue 11 in the Amended Application; that error was committed by defense counsel’s alienation from the defendant during closing argument. The Court makes the following Findings of Fact:”
“A. That the defendant, in this issue, referenced a portion of his counsel’s closing argument in the second stage of the proceedings.
“B. That the defendant’s trial counsel, in examination during the instant hearing, stated that his remarks were an attempt to obtain mercy for his client and not an attempt at alienation.
“C. That the Court finds nothing in the suspect remarks that would support a claim that they were intended to, or resulted in, alienation of counsel from client before the jury.
“D. That the defense was aware at the time of trial and at all times subsequent thereto that the remarks had been made.
“E. That the attorney who prosecuted the appeal in behalf of the defendant was a different attorney than his trial counsel.
“Therefore the Court makes the following Conclusions of Law:
“A. No prejudice to the defendant occurred from the remarks referenced by the defendant in this issue.
“B. That this question was within the knowledge of defendant at the time of his appeal but was not raised, and, thus, does not constitute new evidence or new grounds and is not properly raised in an Application for Post-Conviction Relief.
“On these Findings and Conclusions, Post-Conviction Relief as to this issue shall be denied.
“18. Issue 12 in the Amended Application; that the Court erred in failing to suppress evidence obtained at the time of the defendant’s arrest. The Court finds that this question was raised in the defendant’s original Appeal from his conviction and was dealt with by the Court of Criminal Appeals. The findings of that Court being res judicata of the issue, Post-Conviction Relief shall be denied.
“19. Issue 13 in the Amended Application; that the rights of the defendant were violated through the use of perjured testimony from E.M.. The Court finds that this question was raised in the defendant’s original Appeal from his conviction and was dealt with by the Court of Criminal Appeals. The findings of that Court being res judicata of the issue, Post-Conviction Relief shall be denied.
“20. Issue 14 in the Amended Application; that the Court erred in allowing the testimony of defendant’s reputed common-law wife. The Court finds that this question was raised in the defendant’s original Appeal from his conviction and was dealt with by the Court of Criminal Appeals. The findings of that Court being res judica-ta of the issue, Post-Conviction Relief shall be denied.
“21. Issue 15 in the Amended Application; that the Court erred in allowing evidence which resulted from an illegal search of the defendant’s vehicle. The Court finds that this question was raised in the defendant’s original Appeal from his conviction and was dealt with by the Court of Criminal Appeals. The findings of that Court being res judicata of the issue, Post-Conviction Relief shall be denied.
“22. Issue 16 in the Amended Application; that error was committed in presenting evidence of other crimes in the second stage of the proceedings for which no notice was provided. The Court finds that the question of adequate notice of other crimes evidence, in both the first and second stages of the proceedings, was dealt with by the Court of Criminal Appeals. The findings of that Court being res judica-ta of the issue, Post-Conviction Relief shall be denied.
“23. Issue 17 in the Amended Application; that the defendant was denied a fair trial due to misstatements of the evidence by the prosecutor. The Court finds that this question was raised in the defendant’s original Appeal from his conviction and was dealt with by the Court of Criminal Appeals. The findings of that Court being res judicata of the issue, Post-Conviction Relief shall be denied.
“24. Issue 18 in the Amended Application; that error was committed in overruling defense objections to certain items of evidence and technical reports pertaining thereto. The Court makes the following Findings of Fact:
“A. That, upon his arrest, the defendant’s pants were submitted to the O.S.B.I. laboratory in Tahlequah, Oklahoma.
“B. That a certain spot was found on the pants, cut out and analyzed and was found to be blood, human, type unknown.
“C. That the nature of the test destroyed the spot, making it unavailable for defense analysis.
“D. That the chemist was permitted to testify as to his findings.
“E. That the defense called a witness who testified that the defendant, shortly before the crime alleged, had cut himself; the same being offered as evidence of an alternative source for the spot of blood.
“F. That the defense as aware at the time of trial and at all times subsequent thereto that the testimony as to the spot of blood was ruled admissible and admitted into evidence.
“Therefore the Court makes the following Conclusions of Law:
“A. That the evidence was probative of a material fact at issue and was admissible for whatever weight the jury chose to give it.
“B. That the destruction of the evidence, through the very nature of the testing, does not render the evidence inadmissible.
“C. That this specific question was within the knowledge of the defendant at the time of his appeal but was not raised, and, thus, does not constitute new evidence or new grounds and is not properly raised in an Application for Post-Conviction Relief.
“On these Findings and Conclusions, Post-Conviction Relief shall be denied as to this issue.
“25. Issue 19 in the Amended Application; that error was committed in allowing evidence, in the second stage of the proceedings, of other crimes for which no convictions had been had. The Court makes the following Findings of Fact:
“A. That evidence was presented in the second stage of criminal acts for which no convictions had been had.
“B. That the evidence was offered to show a probability that the defendant would commit acts of violence in the future.
“C. That the defense was aware at the time of the trial and at all times subsequent thereto that evidence of these crimes was presented.
“Therefore the Court makes the following Conclusions of Law:
“A. That evidence of actions by the defendant which are probative of the issue of whether a probability exists that the defendant, absent infliction of the death penalty, will commit acts of violence in the future, are admissible in the second stage of the proceedings even if those acts are criminal in nature and no convictions for those actions have been obtained.
“B. That this question was within the knowledge of defendant at the time of his original Appeal from his conviction, but was not raised, and, thus, does not constitute new evidence or new rounds and is not properly raised in an Application for Post-Conviction Relief.
“On these Findings and Conclusions, Post-Conviction Relief as to this issue shall be denied.
“26. Issue 20 in the Amended Application; that the defendant was denied effective representation of counsel due to counsel’s failure to object on certain occasions and to otherwise preserve his client’s rights. On this issue, the Court re-adopts its Findings of Fact and Conclusions of Law in paragraphs 2 and 3 above, as fully as if repeated here, and further concludes as matters of Law:
“A. That the defendant has failed to meet his burden of showing lack of reasonably competent counsel or ineffective assi-sance of counsel, much less the standard of farce or mockery which was in effect at the time of the trial of this cause.
“B. That neither hindsight nor lack of success is the proper criteria for judging effectiveness of counsel.
“C, That the defendant was provided a highly competent and effective trial counsel and defense, and was not prejudiced by certain failures to object to items of evidence, questions propounded, or remarks of opposing counsel, which failures are as easily attributable to strategy as to error.
“On these-Findings and Conclusion, Post-Conviction Relief as to this issue shall be denied.
“27. Issue 21 in the Amended Application; that the defendant was prejudiced by the failure of the State to produce the entire transcript of defendant’s statement. The Court makes the following Findings of Fact:
“A. That, upon his arrest, the defendant, after advice of rights, gave a statement to the District Attorney’s office.
“B. That a transcript of the defendant’s statement was prepared.
“C. That the State, at a Motions Hearing on September 5, 1979, acknowledged possession of the transcript and offered a copy of said transcript to the defense.
“D. That the defendant, by affidavit submitted in the instant proceeding, acknowledged possession of said transcript.
“E. That the defendant and his attorney, at the trial of the case, submitted that they were aware the State had evidence of prior statements by the defendant, and that those statements mitigated against the defendant taking the stand.
“F. That the defendant’s trial attorney, under examination in these proceedings, testified that he was aware of the contents of the statement and felt that there were inconsistencies between that statement and other statements by his client that would be damaging if the defendant took the stand.
“G. That the State never offered the contents of the statement at the trial.
“H. That the defense was aware at the time of the trial and at all times subsequent thereto of the extent of the statement in the possession of the State and the extent of the statement given by the defendant if the transcript was, in fact, incomplete.
“Therefore the Court makes the following Conclusions of Law:
“A. That the State complied with the discovery laws that it make known to the defense the existence of any statement made by the defendant and the contents thereof.
“B. That the State did not use any statement made by the defendant against the defendant which it had not previously made known to the defendant.
“C. That if, in fact, the transcript was not complete, that the defendant was not prejudiced thereby since the transcript was not used by the State and the defendant is charged with the knowledge of what he has said.
“D. That this question was within the knowledge of defendant at the time of his original Appeal from his conviction but was not raised, and, thus, does not constitute new evidence or new grounds and is not properly raised in an Application for Post-Conviction Relief.
“On these Findings and Conclusions, Post-Conviction Relief as to this issue shall be denied.
“28. Issue 22 in the Amended Application; that the defendant was denied a fair trial due to the exclusion of jurors who expressed general reservations about the death penalty. The Court finds that this question was raised in the defendant’s original Appeal from his conviction and was dealt with by the Court of Criminal Appeals. The findings of that Court being res judicata of the issue, Post-Conviction shall be denied.
“29. Issue 23 in the Amended Application; that the defendant was denied a fair trial by prejudicial actions which focused apparent guilt on the defendant. The Court makes the following Findings of Fact.
“A.' The defendant was charged with, and convicted of, murder in the first degree.
“B. That following preliminary hearing and before trial, the defendant departed from the Muskogee County jail, without permission, and subsequently became the suspect in another murder in Tulsa, Oklahoma, an assault with a deadly weapon in Oklahoma County, and the kidnapping of a law enforcement officer in Arizona.
“C. That the defendant was considered an escape and security risk by the State.
“D. That the officers who were assigned to guard the defendant during trial were instructed to wear coats or jackets to cover any firearms they might be possessing.
“E. That the court observed no occasion during trial when the instructions referred to immediately above were not complied with.
“F. That the defendant was dressed in civilian clothes, as opposed to jail or prison garments, at all times during trial.
“G. That the defendant was never handcuffed or shackled in the courtroom during trial.
“H. That the defendant’s trial counsel, examined in the context of this hearing, testified that he knew of no occasion, and no occasion was ever brought to his attention, when the defendant was handcuffed or physically restrained by deputies outside the courtroom but in the presence of jurors.
“I. That defendant’s trial counsel further testified that if any such occasion had been brought to his attention he would have made a record of it.
“J. That there is no record of handcuffs or physical restraint in the trial transcript.
“K. That defendant’s counsel now offers proof that the defendant would testify that there were occasions, coming to and from the courtroom, when he was physically held by deputies or in handcuffs and that jurors were present in the hall on some of those occasions. The State stipulated that, if the defendant were in court, he would so testify, but did not stipulate to the truth thereof.
“L. That, by this offer, the defendant shows that he had knowledge at the time of the trial and at all times subsequent thereto of the actions he now complains.
“Therefore the Court makes the following Conclusions of Law:
“A. That the degree of security provided during the trial of the above styled cause was reasonable under the circumstances.
“B. That the defendant was not prejudiced by the security measures taken or by any action of which the court or his attorney had knowledge.
“C. That this question was within the knowledge of the defendant at the time of his original Appeal from his conviction but was not raised, and, thus, does not constitute new evidence or new grounds and is not properly raised in an Application for Post-Conviction Relief.
“On these Findings and Conclusions, Post-Conviction Relief as to this issue shall be denied.
“There were a number of issues raised in the Application and Amended Application for Post-Conviction Relief wherein this Court relied upon the rulings of the Court of Criminal Appeals on direct Appeal as dispositive of the issue under res judicata. This Court wishes to stress that on none of those issues was the defendant deprived of his right, through counsel, to make his argument, present evidence, and argue authority. On none of those issues did this Court find evidence or authority to disturb the prior rulings.
“This Court also wishes to stress that the Appeal of the conviction was handled by an attorney other than the trial attorney and that issues which challenged the effectiveness of the trial attorney could have been raised by that attorney on appeal. Here, again, while this Court cited those issues which were not properly presented in an Application for Post-Conviction Relief, there was no bar of defense counsel in developing those issues and each was found to be without merit.
“It should be further noted by this Court that the issue of whether the defendant should be present during his hearing was under continuous advisement and if the Court found, at any time, that his presence was necessary the proceedings would have been delayed until his presence could be secured. In each instance where counsel sought the defendant’s testimony, that testimony was found to be either stipulated to by the State, not relevant to the issue or not admissable or competent testimony. On no occasion did the Court find that the presence of the defendant to be either necessary or of benefit to the Court in determining the legal issues presented.
“Based upon the findings of the Court relative to each of the issues presented, it is the Order of this Court that the Application for Post-Conviction Relief and the Amended Application for Post-Conviction Relief, and each ground contained therein, be, and are hereby, DENIED.”
See Appendix.
We take judicial notice that, despite being provided the benefit of court appointed investigator, the petitioner received a sentence of death in a subsequent murder trial held in Tulsa County. See, Coleman v. State, 670 P.2d 596 (Okl.Cr.1983), reversed because a juror was improperly excused in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).
Charles Troy COLEMAN, Petitioner-Appellant, v. John N. BROWN, Warden, Oklahoma State Penitentiary at McAlester, Oklahoma, Respondent-Appellee, and Larry Meachum, Director of the Oklahoma Department of Corrections, and Michael C. Turpen, Attorney General of Oklahoma, Additional Respondents-Appellees.
No. 85-1094.
United States Court of Appeals, Tenth Circuit.
Jan. 19, 1985.
Edward Munson, Tahlequah, Okl., for petitioner-appellant.
Michael C. Turpén, Atty. Gen., David W. Lee, Asst. Atty. Gen., Oklahoma City, Okl., for respondents-appellees.
Before HOLLOWAY, Chief Judge, and LOGAN and SEYMOUR, Circuit Judges.
[OPINION BY HOLLOWAY, Chief Judge. type=majority]
HOLLOWAY, Chief Judge.
The court has for consideration the appellant Charles Troy Coleman’s application for a stay of execution of appellant’s death warrant, and exhibits submitted in support therecf. Argument by counsel was made before the undersigned judge, who has conferred on the application with Judge Logan and Judge Seymour. The court concludes as follows.
The court is advised that the United States District Court for the Eastern District of Oklahoma has considered and denied appellant’s petition for habeas corpus relief on January 18, 1985. The district court denied a stay of execution also and issued a certificate of probable cause under 28 U.S.C. § 2253. A notice of appeal was filed on January 18, 1985.
The certificate of probable cause for an appeal having been granted, the appellant must “be afforded an opportunity to address the merits, and the court of appeals is obligated to decide the merits of the appeal. Accordingly, a circuit court, where necessary to prevent the case from becoming moot by the petitioner’s execution, should grant a stay of execution pending disposition of an appeal when a condemned prisoner obtains a certificate of probable cause on his initial habeas appeal.” Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983). This is appellant’s first habeas appeal in the federal courts in this matter, we are advised, and this ruling of the district court was the first ruling on the merits of appellant’s constitutional claims by a federal court. The Supreme Court has emphasized the duty of the courts of appeal to afford the parties an opportunity to address the underlying merits and the obligation of the courts to give “due consideration of the merits.” Barefoot, 103 S.Ct. at 3392; see also Chaney v. Brown, 712 F.2d 441, 443 (10th Cir.1983) (per curiam); Sonnier v. Maggio, 714 F.2d 20, 21 (5th Cir.1983), cert. denied, — U.S.—, 104 S.Ct. 1331, 79 L.Ed.2d 726 (1984). The district court rendered an opinion of 23 pages addressing over 30 claims made by the appellant.
In view of the issuance of the certificate of probable cause for an appeal; the substantial lengthy opinion of the District Court discussing numerous issues raised in the federal habeas suit; this court’s obligation to give the parties the opportunity fully to address the underlying merits; this court’s duty to give due consideration to the merits of the appeal; the obvious restrictions of time in light of the execution which is scheduled on January 22, 1985; and the irreversible nature of the death penalty, we are constrained to grant the application for a stay of the death warrant, pending this appeal. See Barefoot, 103 S.Ct. at 3392; Chaney, 712 F.2d at 443.
IT IS THEREFORE ORDERED that execution of the death warrant for the appellant Charles Troy Coleman is hereby stayed and that the appellee John N. Brown, Warden of the Oklahoma State Penitentiary, his agents and employees and all persons acting by and under the authority of the State of Oklahoma, are hereby enjoined from executing said death warrant for Charles Troy Coleman, until the further order of this court.
IT IS ORDERED that this appeal be expedited; that the clerk of this court shall establish a briefing schedule and make other necessary orders for the preparation of this appeal for argument and submission at the April 15, 1985 term of this court. As indicated by the Barefoot opinion, 103 S.Ct. at 3392, counsel are cautioned that such briefs and the argument, which the court will schedule during the April term of court the week of April 15, 1985, should address fully all the issues on the merits of this habeas appeal that the parties wish to raise. The case is assigned to Calendar A for argument.
IT IS FURTHER ORDERED that duplicate originals of this order shall be transmitted to the United States Marshal for the Eastern District of Oklahoma for service on appellee John N. Brown, Warden of the Oklahoma State Penitentiary, and for a return thereon to this court; a duplicate original shall also be transmitted to the United States Marshal for the Western District of Oklahoma for service upon appellee Larry Meachum, Director of the Oklahoma Department of Corrections, and for return thereon to this court; and copies of this order are being mailed to counsel and delivered this date.
IT IS SO ORDERED.
Charles Troy COLEMAN, Petitioner-Appellant, v. John N. BROWN, Warden, Oklahoma State Penitentiary at McAlester, Oklahoma; Larry Meachum, Director, Department of Corrections, State of Oklahoma; and the Attorney General of the State of Oklahoma, Respondents-Appellees.
No. 85-1094.
United States Court of Appeals, Tenth Circuit.
Sept. 30, 1986.
Edward L. Munson, Tahlequah, Okl., for petitioner-appellant.
David W. Lee, Asst. Atty. Gen., Chief, Criminal & Federal Divisions (Michael C. Turpen, Atty. Gen. of Oklahoma, Robert A. Nance, Deputy Chief, Federal Div., Hugh A. Manning, Asst. Atty. Gen., and Susan Stewart Dickerson, Asst. Atty. Gen., with him on the briefs), Oklahoma City, Okl. for respondents-appellees.
Before HOLLOWAY, Chief Judge, and LOGAN and SEYMOUR, Circuit Judges.
[OPINION BY LOGAN, Circuit Judge. type=majority]
LOGAN, Circuit Judge.
Petitioner, Charles Troy Coleman, appeals from the district court's denial of his application for a writ of habeas corpus and his motions for a stay of execution and an evidentiary hearing.
The issues on appeal are (1) whether prospective jurors for Coleman’s trial were excused for cause improperly because of their opposition to the death penalty; (2) whether the exclusion of prospective jurors opposed to the death penalty from the guilt stage of the trial denied Coleman a jury representing a cross-section of the community and resulted in a conviction-prone jury; (3) whether Coleman was denied effective assistance of counsel in the sentencing stage of his trial, the guilt stage of his trial, or in the trial as a whole; (4) whether Coleman had a constitutional right to the appointment of an investigator to aid his attorney; (5) whether the prosecutor’s remarks in closing arguments in both stages of the trial denied Coleman a fair trial; and (6) whether the district court erred in not granting Coleman an evidentiary hearing. We affirm.
Coleman was convicted of first-degree murder and sentenced to death by an Oklahoma jury on October 12, 1979. Evidence at trial showed that while Coleman was burglarizing the home of Mr. and Mrs. W., John and Roxie Seward walked in on him. John Seward was the brother of Mrs. W.. Coleman shot and killed the Sewards with a .28 gauge shotgun, apparently after he took them into the basement. Although there were no witnesses to the murders, the circumstantial evidence was overwhelming. There was evidence that this particular gauge shotgun was very rare and that Coleman owned one. Several hours after the murders, Coleman was stopped for a traffic violation and found in possession of Mrs. Seward’s wallet. The police discovered in Coleman’s truck sixty-four pounds of meat, marked “H., Not for Sale.” L.H. testified that he had given this meat to the W.s. The police also found Mrs. W.’s watch beneath the back seat of the police car. Coleman’s wife testified that Coleman gave her this watch while they were in the back seat of that vehicle. There was also testimony placing Coleman’s truck at the W.s’ home at the estimated time of the murder. None of this evidence was refuted.
The Oklahoma Court of Criminal Appeals affirmed Coleman’s conviction and sentence. Coleman v. State, 668 P.2d 1126 (Okla.Crim.App.1983), cert. denied, 464 U.S. 1073, 104 S.Ct. 986, 79 L.Ed.2d 222 (1984). After the United States Supreme Court denied certiorari, Coleman filed an application for post-conviction relief in the state district court in Muskogee County. See Okla.Stat. tit. 22, §§ 1080-1088. That court denied the application, and the Oklahoma Court of Criminal Appeals affirmed. Coleman v. State, 693 P.2d 4 (Okla.Crim. App.1984).
Coleman then filed in federal district court these applications for a writ of habeas corpus, an evidentiary hearing, and a stay of execution. The district court denied each of Coleman’s applications. This court granted a stay of execution, 753 F.2d 832, and has given full consideration to the appeal after briefing and oral argument.
I
Coleman first contends that the trial court erred in excluding four jurors for cause under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). In Witherspoon the Supreme Court indicated that prospective jurors in a capital case could be excluded if they made it
“unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant’s guilt. ”
Id. at 522 n. 21, 88 S.Ct. at 1777 n. 21 (original emphasis). Many lower courts treated this as an absolute standard which had to be met fully before jurors could be excluded on the grounds of their scruples against the death penalty. But in Wain wright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), the Court rejected this restricted view of exclusion and adopted language from Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980), as the exclusive standard:
“[A] juror may not be challenged for cause based on his views about capital punishment unless those views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. The State may insist, however, that jurors will consider and decide the facts impartially and conscientiously apply the law as charged by the court.”
Id. 469 U.S. at 420, 105 S.Ct. at 850 (quoting Adams, 448 U.S. at 45, 100 S.Ct. at 2526 and adding emphasis); accord Darden v. Wainwright, — U.S. -, -, 106 S.Ct. 2464, 2468, 91 L.Ed.2d 144 (1986).
To be excluded from service, therefore, it is not necessary that prospective jurors would vote automatically against the death penalty or that their opinions on capital punishment would prevent them from rendering an impartial verdict. If a prospective juror conscientiously disapproves of the death penalty, that juror can be eliminated if any of that person’s jury duties would be “substantially impaired.” We must apply this standard to petitioner’s case.
Of the four prospective jurors the trial court excused, the most questionable voir dire involved H.:
“Court: [I]f you were sitting on a jury and in a case where the law and the evidence warranted and you were told it was a proper case to consider the death penalty, could you, if you felt it was proper, agree to a death penalty that did not [sic] without doing violence to your own conscience?”
Juror: No, I don’t think I could.
Court: In other words, you’re telling me that if you find beyond a reasonable doubt that the Defendant was guilty of Murder in the First Degree and if under the law and the evidence and all the circumstances you could consider a death penalty, you tell me that you have such reservations that you just simply could under no circumstances impose a death penalty upon another human being? Juror: I don’t think I could, no.”
R. VI, 23. H.’s responses sufficiently demonstrated that his beliefs about capital punishment would “substantially impair” his ability to serve as a juror. His answers were markedly similar to those of the juror in Witt, whom the Court found justifiably excluded for cause. Witt, 469 U.S. at 412, 105 S.Ct. at 846, 850. In effect H. stated that he did not believe he would be able to apply the law as instructed.
Notably, the Witt Court ceded a great deal of authority to state trial judges to determine whether a juror should be excluded. A trial judge’s finding that a prospective juror is biased'is a “factual finding.” Id. at 418, 105 S.Ct. at 849-50; Darden, — U.S. at-, 106 S.Ct. at 2468. Accordingly, a federal court, when reviewing a state decision pursuant to a petition for habeas corpus, must accord such findings a “presumption of correctness.” 28 U.S.C. § 2254(d). We see no grounds for overturning the trial judge’s decision in this case.
II
Coleman claims that the exclusion of jurors opposed to the death penalty from the guilt/innocence phase of his trial violated his right to a jury comprised of a fair cross-section of the community, and to a fair and impartial jury, in violation respectively of the Sixth and Fourteenth Amendments. The Supreme Court’s recent decision in Lockhart v. McCree, — U.S.-, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986), forecloses these arguments.
III
Coleman next claims that he was denied his Sixth Amendment right to effective assistance of counsel. He asserts that his representation was inadequate in both the guilt and sentencing stages of his trial.
In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court adopted a two-part test for determining whether a criminal defendant has been denied reasonably effective counsel. The defendant must show “that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment” and that “counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687, 104 S.Ct. at 2064. The defendant must meet both of these requirements to succeed on an ineffective assistance of counsel claim. Id. A claim may thus be disposed of by a failure to show either of them. Id. at 697, 104 S.Ct. at 2069.
A
Coleman raises several issues concerning the adequacy of his representation during the guilt stage of his trial; the essence of the claim is inadequate time to prepare. Specifically, Coleman asserts as error his counsel’s failure to (1) investigate and present alibi evidence; (2) submit written briefs on particular motions; (3) prepare adequately for cross-examination of a particular witness; and (4) request an instruction that Coleman’s refusal to testify should not be used against him. Although several of these claims are based on statements taken out of context, we have reviewed each of the contentions carefully and conclude that there is no reversible error. We address each of Coleman’s arguments briefly.
Regarding the alibi evidence, an attorney has a duty “to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at 691, 104 S.Ct. at 2066; accord Kimmelman v. Morrison, — U.S.-,-, 106 S.Ct. 2574, 2588, 91 L.Ed.2d 305 (1986). The reasonableness of an attorney’s decision not to conduct an investigation is directly related to the information the defendant has supplied. Strickland, 466 U.S. at 691, 104 S.Ct. at 2066; see also Mitchell v. Kemp, 762 F.2d 886, 888-89 (11th Cir.1985); United States v. DeCoster, 624 F.2d 196, 209 (D.C.Cir.1979) (en banc). In a capital case the attorney’s duty to investigate all possible lines of defense is strictly observed. See generally House v. Balkcom, 725 F.2d 608, 615 (11th Cir.), cert. denied, 469 U.S. 870, 105 S.Ct. 218, 83 L.Ed.2d 148 (1984); United States v. Golub, 694 F.2d 207, 215 (10th Cir.1982); cf. Caldwell v. Mississippi, 472 U.S. 320,-& n. 2, 105 S.Ct. 2633, 2640 & n. 2, 86 L.Ed.2d 231 (1985) (Eighth Amendment requires “greater degree of scrutiny of the capital sentencing determination” (quoting California v. Ramos, 463 U.S. 992, 998-99, 103 S.Ct. 3446, 3451-52, 77 L.Ed.2d 1171 (1983)).
On the second day of trial, Coleman specifically requested before the court that his attorney subpoena an elderly woman who lived across the street from Coleman’s brother, in order to establish an alibi. Although Coleman did not know this witness’ name, he did know and reveal where she lived. Coleman’s attorney apparently made no effort to contact this witness. In light of the strong case against Coleman and the seriousness of the charges, it was improper for his attorney to fail to investigate what was perhaps Coleman’s sole line of defense. A defendant is not entitled to an attorney who will “leave not the smallest stone unturned,” see DeCoster, 624 F.2d at 210, but when the defendant has but one stone, it should at least be nudged.
We must therefore address the prejudice question. Absent this failure, was there a reasonable probability that the outcome of the trial would have been different? See Strickland, 466 U.S. at 693-94, 104 S.Ct. at 2067-68. The answer is no. Even today, as Coleman faces execution, the name of this alleged witness has not been provided. We have only two affidavits from Coleman’s relatives, stating that they spoke to this witness. Weighing this potential evidence, whose very existence is dubious, against the evidence produced at trial on Coleman’s whereabouts at the time of the murders, we are unable to conclude that the alibi testimony would have altered the trial’s outcome. See Wallace v. Lockhart, 701 F.2d 719, 730 (8th Cir.) (evidentiary hearing unnecessary when name of potential witness not provided), cert. denied, 464 U.S. 934, 104 S.Ct. 340, 78 L.Ed.2d 308 (1983).
Coleman argues that his attorney failed to file written briefs on certain motions and that he never requested additional time to file reply briefs. This court has held that the Sixth Amendment does not require that every possible motion be filed, but only those having a solid foundation. See United States v. Afflerbach, 754 F.2d 866, 870 (10th Cir.), cert. denied, — U.S. -, 105 S.Ct. 3506, 87 L.Ed.2d 636 (1985); United States v. Crouthers, 669 F.2d 635, 643 (10th Cir.1982). And an attorney’s decision whether to file a written brief on a given motion is strategic. This is especially so when, as in the instant case, an attorney has only limited resources. The Strickland Court instructed .reviewing courts to be “highly deferential” to strategic decisions of attorneys. 466 U.S. at 690-91, 104 S.Ct. at 2066-67. Accordingly, we find that the attorney’s decision not to submit written briefs on each of the myriad motions made during trial was reasonable.
Coleman next claims that his attorney failed to prepare adequately for the testimony of E.M., an inmate at the Tulsa County Jail who testified that Coleman admitted murdering the Sewards. Although Coleman’s attorney did not attend the hearing at which E.M. testified, he was given a transcript of this hearing shortly after trial began. Coleman has now presented evidence suggesting that E.M. committed penury.
Perhaps Coleman’s attorney could have prepared more completely for this witness. Counsel did, however, call one witness who stated that E.M. was a liar. Other testimony would have been cumulative. Further, E.M. was only one of several witnesses the state used to prove that Coleman committed the murder and, with respect to sentencing, was likely to commit further crimes. This court must take notice of the virtually unchallenged evidence of Coleman’s guilt. See Strickland, 466 U.S. at 695-96, 104 S.Ct. at 2068-69. We cannot conclude that the jurors would have reached a contrary decision with respect to guilt or sentence had they not heard the testimony of E.M., or if that testimony had been more thoroughly discredited.
Coleman finally contends that his attorney erred in failing to request an instruction that a defendant’s decision not to testify cannot be used against him. If a defendant requests an instruction on silence, it must be given. Carter v. Kentucky, 450 U.S. 288, 305, 101 S.Ct. 1112, 1121, 67 L.Ed.2d 241 (1981). A court is not obligated to so instruct, however, unless a request is made. Dutton v. State, 674 P.2d 1134, 1140 (Okla.Crim.App.1984). And whether to request a particular instruction is within an attorney’s tactical discretion. See Bashor v. Risley, 730 F.2d 1228, 1241 (9th Cir.), cert. denied, 469 U.S. 838, 105 S.Ct. 137, 83 L.Ed.2d 77 (1984). Here, counsel admitted that attorneys often decide not to request such an instruction because it calls attention to the defendant’s silence. We do not find it improper that Coleman’s attorney failed to request this instruction.
B
With respect to the sentencing phase of the trial, the crux of Coleman’s claim is that his attorney was unprepared; that counsel did not investigate other criminal charges pending against Coleman, which the state introduced as evidence of aggravating circumstances; and that counsel did not present any mitigating evidence. Coleman contends that his attorney had “given up” and in closing argument separated himself from his client.
On the preparedness issue, even at this late date petitioner has not pointed to any specific evidence that investigation of the charges pending against him would have revealed. Without a showing that an investigation would have uncovered mitigating evidence, this court may not presume prejudice.
Similarly, Coleman asserts that his trial attorney should have had members of Coleman’s family testify on his behalf. But during state hearings on post-conviction relief, Coleman’s attorney responded to a question on the existence of mitigating evidence by saying, “You couldn’t even put his family on.” R. III, 97. This indicates that Coleman’s attorney considered using such testimony but decided against it. Such a decision is well within the range an attorney is entitled to make. See Strickland, 466 U.S. at 690-91, 699, 104 S.Ct. at 2066-67, 2070; Mitchell v. Kemp, 762 F.2d 886, 890 (11th Cir.1985). The Strickland Court noted that when there is overwhelming evidence of both guilt and aggravating factors, testimony that the defendant is a “good” person is unlikely to alter the outcome of a sentencing proceeding. 466 U.S. at 700, 104 S.Ct. at 2071; see also Stanley v. Zant, 697 F.2d 955, 970 (11th Cir.1983), cert. denied, 467 U.S. 1219, 104 S.Ct. 2667, 81 L.Ed.2d 372 (1984).
In reaching the conclusion that Coleman has failed to prove prejudice, we emphasize that the jury found that five aggravating factors existed beyond a reasonable doubt, and Coleman has not challenged the validity of any of them. Only one aggravating factor is needed to allow the jury to consider the death penalty. Okla.Stat. tit. 21, § 701.11. Coleman has not met his burden of proving that his attorney’s failure to present mitigating evidence prejudiced his case.
Finally, Coleman claims that his attorney’s closing argument in the sentencing stage of his trial was prejudicial. He focuses on isolated portions of the closing argument to argue that his trial attorney failed to “humanize” Coleman and that he disassociated himself from his client. See, e.g., King v. Strickland, 748 F.2d 1462, 1464-65 (11th Cir.1984) (attorney’s focus on reprehensible nature of the crime and his court-appointed status were factors justifying reversal), cert. denied, 471 U.S. 1016, 105 S.Ct. 2020, 85 L.Ed.2d 301 (1985). But the closing argument here shows only an experienced criminal attorney’s strategic decision to appeal to a jury’s religious beliefs. It was the plea for mercy the defendant himself chose not to make. Faced with overwhelming evidence of both guilt and aggravating factors, Coleman’s attorney made a reasoned decision not to focus on Coleman’s guilt or innocence but to appeal to the jury's merciful instincts. Counsel expressly testified that his closing argument was “intended to create some sympathy for a man who had been convicted of Murder One.” R. III, 84. A reviewing court cannot second guess the decisions of experienced trial attorneys. Strickland, 466 U.S. at 690-91, 104 S.Ct. at 2066-67; Darden, — U.S. at-, 106 S.Ct. at 2473. Viewing this closing argument as a whole, we hold that the argument did not prejudice Coleman.
C
In determining that Coleman received effective assistance of counsel, we have focused not only on alleged errors, but also on what counsel did for Coleman. Courts should not judge the overall quality of representation by focusing unduly on isolated incidents. See Tucker v. Zant, 724 F.2d 882, 894 (11th Cir.1984), reversed on other grounds sub. nom. Tucker v. Kemp, 762 F.2d 1480 (11th Cir.1985) (en banc). Although certain individual errors may be so fundamental that they alone constitute reversible error, see Morrison, — U.S. at -, 106 S.Ct. at 2586-89, when a series of errors of lesser magnitude are asserted, a court should consider the quality of representation as a whole. Id. at-, 106 S.Ct. at 2588.
Coleman’s attorney was an experienced criminal lawyer who had participated in several other capital trials. Although the record shows he was beleaguered, he nevertheless vigorously defended Coleman. He succeeded in obtaining a change of venue and in excluding from the guilt stage of the trial testimony that Coleman had escaped from jail and that his brother had thrown the murder weapon into a river. See United States v. Winkle, 722 F.2d 605, 608-09 (10th Cir.1983). He made numerous objections and motions throughout the guilt and sentencing stages. Having reviewed the entire record, we are convinced this attorney was an effective advocate.
IV
Coleman asserts that the trial court’s refusal to appoint a private investigator to help his attorney violated his due process and equal protection rights. Oklahoma only permits courts in counties with populations greater than 200,000 to appoint private investigators to aid indigent defendants. Okla.Stat. tit. 19, § 138.6. The trial court found that it had no authority to appoint an investigator because the trial was taking place in Muskogee County, which has fewer than 200,000 people.
We need not decide whether the Constitution requires appointment of a private investigator to aid in the defense’s preparation for trial if the defendant makes no showing that the requested assistance would be beneficial. Caldwell v. Mississippi, 472 U.S. 320,-n. 1, 105 S.Ct. 2633, 2637 n. 1, 86 L.Ed.2d 231 (1985). Other than the possible existence of one unnamed alibi witness, Coleman has alleged only that his attorney was overworked, that many witnesses were involved in the case, and that the state’s resources far surpassed those of the defense. These factors do not invariably preclude a defense attorney from rendering a reasonably effective defense. Cf United States v. Cronic, 466 U.S. 648, 663,104 S.Ct. 2039, 2049, 80 L.Ed.2d 657 (1984) (that government had more time to prepare case does not necessarily result in prejudice to defendant). Even if such general showings would have been sufficient before trial, they are insufficient post-trial. See Mason v. Arizona, 504 F.2d 1345, 1352-53 (9th Cir.1974); see also Caldwell, 472 U.S. at -n. 1, 105 S.Ct. at 2637 n. 1. We hold that Coleman has not demonstrated substantial prejudice from the lack of an investigator.
V
A
Coleman contends that, in the state’s closing arguments during the trial’s guilt stage, the state improperly (1) commented on Coleman’s failure to testify; (2) told the jury they were the last link in the chain of law enforcement; (3) attempted to inflame the jury and evoke sympathy for the victim; and (4) commented on issues not in evidence.
In a habeas proceeding, our review of a state prosecutor’s allegedly prejudicial remarks is limited. “A federal court does not have supervisory jurisdiction over state courts and may overturn a state court conviction only when a defendant’s constitutional rights have been violated.” Sanchez v. Heggie, 531 F.2d 964, 967-68 (10th Cir.) (citing Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)), cert. denied, 429 U.S. 849, 97 S.Ct. 135, 50 L.Ed,2d 122 (1976); accord Darden, — U.S. at-, 106 S.Ct. at 2472. Remarks that would cause us to reverse in a direct appeal of a federal conviction are not necessarily grounds for reversal when spoken in state courts. Brooks v. Kemp, 762 F.2d 1383, 1399 (11th Cir.1985) (en banc), vacated on other grounds, — U.S.-, 106 S.Ct. 3325, 92 L.Ed.2d 732 (1986); Cobb v. Wainwright, 609 F.2d 754, 755 (5th Cir.), cert. denied, 447 U.S. 907, 100 S.Ct. 2991, 64 L.Ed.2d 857 (1980). Further, to determine whether a state prosecutor’s remarks were so flagrant as to deny a defendant a fair trial, we must take notice of all the surrounding circumstances, including the strength of the state's case. See United States v. Haskins, 737 F.2d 844, 850 (10th Cir.1984)); see also Darden, — U.S. at -, 106 S.Ct. at 2472.
In his closing argument during the guilt stage, the prosecutor asked: “Why did he leave at 3:15 with a .28 gauge shotgun in his hand? Why did he leave with the shotgun____” R. VII, 832. He continued along these lines, prefacing bits of unanswered inculpatory evidence with the word “why.” Coleman construes this as unconstitutional comment on his silence. Further, Coleman observes, the state commented on the “uncontradicted” evidence. Id.
In Knowles v. United States, 224 F.2d 168 (10th Cir.1955), we held that reversible error exists if a prosecutor’s remarks were “manifestly intended or [were] of such character that the jury would naturally and necessarily take [them] to be a comment on the failure of the accused to testify.” Id. at 170; accord United States v. Hooks, 780 F.2d 1526, 1533 (10th Cir.), cert. denied, — U.S. -, 106 S.Ct. 1657, 90 L.Ed.2d 199 (1986). In Knowles, a tax fraud case, the prosecutor stated that the defendant “had every opportunity in the world given to make an explanation of it, to prove it was in error, to cast doubt upon it. And it wasn’t done.” Knowles, 224 F.2d at 170. We construed this as a comment on the fact that the evidence was unrefuted, not that the defendant failed to testify. Id,.; see also United States v. Walton, 552 F.2d 1354, 1362-63 (10th Cir.) (statement that particular witness was the only one willing to testify did not violate Fifth Amendment), cert. denied, 431 U.S. 959, 97 S.Ct. 2685, 53 L.Ed.2d 277 (1977); Sanchez v. Heggie, 531 F.2d at 967 (statement that no one attempted to explain evidence did not violate Fifth Amendment). The remarks in the instant case were far more innocuous than those in Knowles. They were not “manifestly intended” to draw attention to Coleman’s silence; they were no more than a rhetorical device.
The prosecutor also stated in closing argument in the guilt stage that, following the police, the witnesses, and the district attorney’s office, the jury was the final link in the chain of law enforcement. We agree with Coleman that this “final link” statement was improper. By suggesting that the jury is only the last link in a long decision, the statement tends to trivialize the jury’s importance. See Tucker v. Kemp, 762 F.2d 1480, 1485-86 (11th Cir.) (en banc) (finding similar argument improper at sentencing stage), vacated on other grounds, — U.S.-, 106 S.Ct. 517, 88 L.Ed.2d 452 (1985). This argument also misstates the role of the jury, placing it in an adversarial position with respect to the defendant. To the extent that the prosecutor’s argument portrayed the jury as part of a team opposing the defendant, it was improper. But we do not find that this “last link” remark made during the guilt stage of the trial — even taken together with the prosecutor’s persistent attempts to evoke sympathy for Coleman’s victims and his comments on matters not in evidence — rose to the level of constitutional error.
Regarding Coleman’s third argument, the Supreme Court recently has explained that an improper closing argument in the guilt stage of a capital case warrants reversal only if the “prosecutors’ comments ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’ ” Darden, — U.S. at -, 106 S.Ct. at 2472 (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)). This standard was not met here. The prosecutor’s improper comments generally were limited to the introduction of a lengthy closing argument. See United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 1047, 84 L.Ed.2d 1 (1985) (remarks must be viewed in context of entire record); United States v. Espinosa, 771 F.2d 1382, 1401 (10th Cir. 1985) (same), cert. denied, — U.S. -, 106 S.Ct. 579, 88 L.Ed.2d 561 (1985). In view of the overwhelming evidence of defendant’s guilt, they cannot be said to have violated Coleman’s right to a fair trial.
The prosecutor also did not manipulate or misstate the evidence. Rather, many of the prosecutor’s most graphic remarks were in fact accurate descriptions of the evidence. See Hance v. Zant, 696 F.2d 940, 951 (11th Cir.) (“unquestionably inflammatory” evidence accurately depicting scene of murder admissible), cert. denied, 463 U.S. 1210, 103 S.Ct. 3544, 77 L.Ed.2d 1393 (1983), overruled on other grounds, Brooks v. Kemp, 762 F.2d 1383 (11th Cir. 1985) (en banc).
B
Coleman also contends that the prosecutor’s closing remarks in the sentencing stage of his trial rendered it fundamentally unfair. The standard governing appellate review of closing arguments during the sentencing stage of capital cases is whether the comments might have affected the sentencing decision. See Caldwell v. Mississippi, 472 U.S. 320, -, 105 S.Ct. 2633, 2644, 86 L.Ed.2d 231 (1985) (“Because we cannot say that this effort [improper comment] had no effect on the sentencing decision, that decision does not meet the standard of reliability that the Eighth Amendment requires.”)
Death is qualitatively different from all other punishments, therefore “there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.” Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976). A decision on the propriety of a closing argument must look to the Eighth Amendment’s command that a death sentence be based on a complete assessment of the defendant’s individual circumstances, see Brooks v. Kemp, 762 F.2d 1383, 1406 (11th Cir.1985) (en banc), vacated on other grounds, — U.S. -, 106 S.Ct. 3325, 92 L.Ed.2d 732 (1986), and the Fourteenth Amendment’s guarantee that no one be deprived of life without due process of law, see Darden, — U.S. at -, 106 S.Ct. at 2472.
Some emotion is inevitable in capital sentencing. Brooks, 762 F.2d at 1404-OS. Thus, appeals to emotion ordinarily do not alone render an argument improper. Id. at 1405 & n. 34; see also Darden, — U.S. at-, 106 S.Ct. at 2472 (emotional argument during guilt stage did not render trial fundamentally unfair). But, as we discuss below, even if a prosecutor’s comments are confined to permissible subjects, if those comments are nevertheless designed to evoke a wholly emotional response from the jury, constitutional error can result.
With respect to the subjects that a prosecutor may address, comments are permissible only to the extent they are relevant to factors the jury may properly consider. Drake v. Kemp, 762 F.2d 1449,1458 (11th Cir.1985) (en banc), cert. denied, — U.S. -, 106 S.Ct. 3333, 92 L.Ed.2d 739 (1986). Thus the prosecutor may comment on evidence concerning the existence of an aggravating factor the state statute requires to be found before the jury may impose the death penalty. Brooks, 762 F.2d at 1408. The prosecutor also may comment on “information about the defendant, his character, and the circumstances of his offense made known to the jury throughout the bifurcated trial.” Id. at 1406.
Comments on the defendant’s future dangerousness and the chances for rehabilitation also are permissible. Id. at 1406-08 (citing Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976)); Drake, 762 F.2d at 1458. Similarly, comments concerning the penological justifications for the death penalty, i.e., retribution, incapacitation, and general deterrence, are appropriate. Brooks, 762 F.2d at 1407-08; Drake, 762 F.2d at 1458.
Here, Coleman alleges the prosecutor improperly gave his personal opinion on whether Coleman felt remorse for his actions, and commented on Coleman’s future dangerousness. In addition, the prosecutor sought to shift responsibility for the death penalty from the jurors to Coleman. We address these in turn.
Coleman challenges the following statements of the prosecutor:
“Let’s not even consider the ones that were killed, murdered, that we’ve proven to you, but the ones he tried to kill and murder. I just appeal to simple justice. In our Second Stage we showed you about the escape. We showed you what happened in five days. You talk about regret and remorse for what he did to John Seward. My gosh! Here we are 60 days later cutting Tommie Dotson’s throat. Tells him ‘I’m looking for a place to leave you for a while.’ He’s already stabbed him in the throat. He’s bleeding to death, so he handcuffs his hands behind him, then throws him back of the patrol car, and then destroys any communication he can have with anybody by ripping all of the wires out. Do we have to tolerate that? That’s on April 24th. That’s the day after he escaped and he feels a lot of regret and remorse for what he did to John and Roxie Seward. And we can tell here — here he is a day later after he escaped — 60 days after the murder. Tommie Dotson — what has he got to do with anything. He just stopped the man — but we need a gun so we stab him and put him in the back of the car with his hands handcuffed behind him. That’s April 24th. On April 26th, two days later, now he’s in Tulsa. He’s in Tulsa and B.W. told you what he saw. What have we got?”
R. VII, 1001-02 (emphasis added). Although Coleman’s contention that the prosecutor should not give his personal opinion is correct, see Darden, — U.S. at-, 106 S.Ct. at 2477 (Blackmun, J., dissenting), we do not believe that occurred here. Instead, the quoted argument is directly relevant to the “probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society,” one of the Oklahoma aggravating circumstances. Okla.Stat. tit. 21, § 701.-12(7). Coleman’s failure to show regret or remorse for his actions may have helped the jury determine whether he was likely to commit crimes in the future. Thus these comments were not improper.
Coleman also challenges the prosecutor’s remarks concerning his future dangerousness. He contends that Oklahoma law forbids such remarks. Oklahoma, however, permits such commentary as long as the defendant’s future dangerousness is listed as an aggravating circumstance in the bill of particulars. Brewer v. State, 650 P.2d 54, 58 n. 1 (Okla.Crim.App.1982), cert denied, 459 U.S. 1150, 103 S.Ct. 794, 74 L.Ed.2d 999 (1983). The state did include Coleman’s future dangerousness as an aggravating circumstance in its bill of particulars, and thus was free under state law to argue that Coleman constituted a continuing threat. In addition, such comments are constitutionally appropriate. See Brooks, 762 F.2d at 1411-12. Comments on a defendant’s future dangerousness are relevant to specific deterrence, one of the purposes of the death penalty.
The prosecutor also stated:
“In closing I say to you that they try to put the responsibility on you, like it’s all your fault. To a certain extent — I don’t mean to imply, I don’t mean to imply that it’s put on you like it’s your fault if you do something in this case. I don’t mean to imply that necessarily, but let me make it real clear that you’re not writing the verdict in this case. Don’t— don’t be mistaken into believing that it’s your responsibility that this happened, that you’re, you’re writing the verdict. I, I say to you, this man wrote the verdict on February 9th, and all those days after when he got out of jail and went on [sic] spree of knifing and kidnapping and killing. He wrote the verdict. This man. He wrote it in blood over and over.”
R. VII, 1018-19.
In Caldwell v. Mississippi, 472 U.S. at ---, 105 S.Ct. at 2638-46, the Supreme Court condemned somewhat analogous remarks which emphasized that appellate courts ultimately would determine the appropriate penalty. The Court concluded that “it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere.” Id. at-, 105 S. Ct. at 2638. It condemned such arguments because (1) it is the duty of the jury rather than an appellate court to impose the sentence; (2) the jury, believing that an appellate court will correct an error, may sentence the defendant to death even though they are not convinced this penalty is necessary; (3) jurors may conclude that a life sentence cannot be increased to death and impose the death penalty so that the appellate court can impose it if it so desires; and (4) the argument may be used as a means to obtain the votes of undecided jurors. Id. at---, 105 S.Ct. at 2638-42.
We believe the dangers the Court identified in Caldwell are not present in the remarks made here. This method of argument does not permit the jury to rely on someone else to make the ultimate sentencing decision or otherwise dilute or trivialize the jury’s responsibility. Unlike the argument in Caldwell, the argument used here did not suggest to the jury that someone else now has control over the defendant’s fate. Instead, it only brought into focus that defendant is responsible for his own plight. See Brooks, 762 F.2d at 1410.
Moreover, viewing this argument in context, it is evident that the prosecutor had no intention of diminishing the jury’s sense of responsibility.
“He [Coleman’s attorney], he said something about, come out here, and I can’t remember what he said. He said, you bring back the death penalty, come back here and slap everybody on the back and joke around — my gosh, folks! Let’s don’t take it that lightly. He makes it sound like it would be easy for you to do that.
I say to you the toughest thing you may do in your whole life — the toughest thing you may do in your whole life is to come back and do what you know you’ve got to do in this case.
And it will be something you’ll pray about and think about forever. It won’t be something you’re popular about and want to joke about and run around to the coffee shop and barber shop to brag about it. It won’t be. It will be one of the most serious things you’ve ever done in your life and it won’t be easy. I don’t care what he says. I know that it won’t be. It’s not easy to be here now. It’s a grave responsibility you have. It’s an important responsibility you have, and it’s not easy to shoulder that kind of load, but somebody’s got to. Somebody’s got to. Somebody’s got to stop what this man did. Somebody’s got to take that responsibility.
Is it easy? No, it’s not easy, but you’ve got to do it. If you don’t, it just goes on and on and what are we just supposed to accept that? We’ve got to draw a line and stand for something.”
R. VII, 1017-18. The prosecutor’s argument that Coleman was responsible for his own plight thus was not improper.
We are disturbed by the tenor of some of the prosecutor’s closing argument at sentencing. Although discussion of the heinousness of the crime or the likelihood that the defendant will commit future violent acts will inevitably evoke some emotion, the prosecutor’s primary role is to give the jury the facts necessary to decide if the death penalty is warranted. Prosecutorial playing on jurors’ passion can only subvert the delicate process of preventing the arbitrary imposition of the death penalty, with which the courts have long struggled.
Nevertheless, we cannot conclude that the prosecutor’s argument here was im-, proper. Other courts have tolerated far more egregious arguments. See, e.g., Brooks, 762 F.2d at 1413 (prosecution’s description of defendant as a “cancer on the body of society” not improper). Although the prosecutor’s emotional argument came close to the line dividing proper from improper argument, we cannot conclude that he transgressed Coleman’s Eighth or Fourteenth Amendment rights.
VI
Coleman’s final claim is that the district court erred in not granting him an evidentiary hearing. He contends he did not receive a full and fair hearing in state court because he was not permitted to testify at hearings conducted on his application for post-conviction relief. But Coleman has alleged only in the most general terms what he would have testified to had he been permitted to attend the state hearing. Most of his claims concern his counsel’s alleged ineffectiveness. These general and conclusory assertions do not warrant an evidentiary hearing. See Tucker v. Zant, 724 F.2d 882, 897-98 (11th Cir.1984), aff'd, 762 F.2d 1480 (11th Cir.1985) (en banc); Wallace v. Lockhart, 701 F.2d at 730. Further, we are convinced by our review that the record was sufficient, without augmentation through an evidentiary hearing, to show that Coleman had effective counsel. See Pierce v. Cardwell, 572 F.2d 1339, 1343 (9th Cir.1978).
We AFFIRM the district court’s denial of the writ of habeas corpus. In light of the fact that this is a capital case, following the consideration of any rehearing petition that may be filed, when the final order of this court is entered, or when the judgment becomes final without further order and issuance of the mandate of this court which would otherwise occur, we will stay our mandate and execution of petitioner’s death warrant for thirty days pending the filing of a petition for certiorari in the Supreme Court of the United States; if such a petition for certiorari is filed within such time, then the stay of our mandate and of petitioner’s execution will continue until disposition by the Supreme Court of the petition for certiorari.
We have noted a significant error, which we must discuss, in the district court’s January 18, 1985 "Order Denying Petitioner’s Application for Evidentiary Hearing, Denying Petition For Writ of Habeas Corpus, And Denying Petitioner’s Application For Stay of Execution.” At page 23 of that Order, the district court stated that "petitioner has filed a previous request for habeas corpus relief before the court in No. 80-312-C, which was denied by order of this court on December 22, 1980.” The Order then quoted language from Barefoot v. Estelle, 463 U.S. 880, 895, 103 S.Ct. 3383, 3395, 77 L.Ed.2d 1090 (1983), about the State’s legitimate interest in preventing a mere delaying tactic by abuse of the writ. The record before us shows that the prior case No. 80-312-C was not a habeas petition attacking the John Seward murder conviction and death sentence involved in the instant case. That case dealt instead with claims that the petitioner was denied his right to a speedy trial on the charge that he murdered Roxie Seward. Accordingly, the district court’s statements about successive proceedings and the prior case were clearly in error.
In addition to dispensing with Witherspoon’s reference to "automatic” decisionmaking, the Witt Court eliminated the requirement that a juror's bias be shown with "unmistakable clarity.” Witt, 469 U.S. at 419, 105 S.Ct. at 850. See generally Comment, Excluding Death Penalty Opponents from Capital Juries: Witt, Wither-spoon, and the Impartial Juror, 34 U.Kan.L.Rev. 149 (1985).
The trial judge has the power, and indeed the duty, to ask his own questions to explore the depth of a juror’s convictions regarding imposition of the death penalty. See Witt, 469 U.S. at 419, 105 S.Ct. at 850; Darden,-U.S. at-, 106 S.Ct. at 2469. Had the juror indicated that he could impose the death penalty in an exceptional case, the trial judge'could have found the juror qualified under the Witt standard. The record reveals that Coleman's attorney made no attempt to question these jurors. He did, however, take strong exception to the excusing of each of these four jurors by various motions and comments.
On appeal, Coleman offered two affidavits by his relatives stating that they had talked to the woman and that she said she saw Coleman at his brother’s house during the time the crimes were committed. The relatives further stated that they had conveyed this information to Coleman's attorney prior to trial.
Coleman specifically notes his attorney's failure to brief the question whether J.C.’s testimony fell within the husband-wife privilege. But the Oklahoma Court of Criminal Appeals affirmed the trial court’s decision to admit this testimony. Coleman v. State, 668 P.2d 1126, 1134 (Okla.Crim.App.1983). We therefore cannot find that Coleman’s attorney’s decision not to brief this issue may have altered the trial’s outcome.
Oklahoma requires a jury to find the existence of an aggravating circumstance before it may consider imposing the death penalty. Okla.Stat. tit. 21, § 701.10-.12. In this case, the jury found the following aggravating circumstances: “1. The Defendant was previously convicted of a felony involving the use or threat of violence to the person; 2. The Defendant knowingly created a risk of death to more than one person; 3. The Murder was especially heinous, atrocious or cruel; 4. The Murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution; 5. There exists a probability that the Defendant would commit criminal acts of violence that would constitute a continuing threat to society.” R. IV, 195. Oklahoma law, as it must, also permits the introduction of mitigating evidence. Okla.Stat. tit. 21, § 701.10.
This appears to be a common trial tactic. See Caldwell v. Mississippi, 472 U.S. 320,-, 105 S.Ct. 2633, 2637, 86 L.Ed.2d 231 (1985).
The Supreme Court recently has granted certiorari in a case challenging a jury instruction that a jury must not consider sympathy in deciding whether to impose the death penalty. California v. Brown, — U.S.-, 106 S.Ct. 2274, 90 L.Ed.2d 717 (1986). Although a similar instruction was given in the instant case, R. VII, 993, we cannot consider this issue. It has not been raised either here or in the state courts. Such an issue must be presented to the state courts before it may be treated in federal proceedings. See Crisp v. Mayabb, 668 F.2d 1127, 1132 (10th Cir.1981), cert. denied, 459 U.S. 827, 103 S.Ct. 62, 74 L.Ed.2d 64 (1982); Drennon v. Hess, 642 F.2d 1204, 1205 (10th Cir.1981); L. Yackle, Post-conviction Remedies § 67, at 285-86 (1981).
The only specific evidence that Coleman has brought to the court’s attention are reports suggesting that one of the state’s witnesses may have committed perjury. As discussed above, we do not believe that introduction of this evidence would have altered the outcome of either stage of the trial.
Both Georgia and Oklahoma require the jury to find the existence of at least one statutorily designated aggravating factor before it may consider imposing the death penalty. See Ga.Code § 17-10-30; Okla.Stat. tit. 21, § 701.11. But regardless of how many aggravating factors are found, the jury may decline imposition of the death penalty. Okla.Stat. tit. 21, § 701.11, Brooks, 762 F.2d at 1405.
The following is an example of the prosecutor’s playing to the jury’s emotions while commenting on permissible subjects: "I talked to you about one thing — not vengance, not even punishment. I talked about one word — PROTECTION. And nobody tells us, Scriptures or otherwise — nobody tells us we don’t have the right to protect ourselves. He talks about family. Why didn’t he ask them? Why didn’t he ask Mrs. W. how she felt? She’s a Christian lady. Why didn’t he ask her how she felt about this and what her understanding of her religion was? Why didn’t he ask Mr. Parish when he took the witness stand? Why didn’t he ask those people? If he wants to get up here and tell you that those people didn’t feel that way, then why didn’t he ask them when they sat right up there, you know, why didn’t he ask them? Because they’re Christian, God-fearing people! That they also want to be protected from being like a sheep. Like a sheep at the hands of that man, being marched down to slaughter. Being thrown in a ravine. PROTECTION. I’m not talking vengance. I’m not talking punishment. We’ve got to do something to protect ourselves from something that kills so callously, that kills so senselessly, and I’m not saying ‘No big deal,' I’m saying that’s how he felt about life. The gun’s more important — a gun is more important. The groceries are more important. I say to you, ladies and gentlemen of the Jury, we’ve got to do something. We’ve got to do something to make sure that this range of five days doesn’t happen again.’’ R. VII, 1015-16 (original emphasis).
Charles Troy COLEMAN, Petitioner-Appellant, v. James SAFFLE, Warden, Oklahoma State Prison, Larry Meachum, Director, Department of Corrections, and Attorney General of the State of Oklahoma, Robert Henry, Respondents-Appellees.
No. 87-2011.
United States Court of Appeals, Tenth Circuit.
March 6, 1989.
Mandy Welch of Payne & Welch, Hugo, Okl. (John Thomas Hall, Tulsa, Okl., with her on the briefs) for petitioner-appellant.
David W. Lee, Asst. Atty. Gen., Chief, Crim. & Federal Divisions (Robert H. Henry, Atty. Gen. of Oklahoma, Susan Stewart Dickerson, Asst. Atty. Gen., Deputy Chief, Crim. Div., M. Caroline Emerson, Sandra D. Howard, and Michael W. Elliott, Asst. Attys. Gen., with him on the briefs) State of Okl., Okl. City, Okl., for respondents-ap-pellees.
Before HOLLOWAY, Chief Judge, and LOGAN and SEYMOUR, Circuit Judges.
[OPINION BY LOGAN, Circuit Judge. type=majority]
LOGAN, Circuit Judge.
Petitioner, Charles Troy Coleman, is under a sentence of death as a result of an Oklahoma state court conviction for first-degree murder. In this, his second federal petition for habeas corpus relief, Coleman argues that this court must vacate his death sentence because of the following alleged constitutional errors: (1) the sentencing jury found one of five aggravating circumstances was present — that the murder was “especially heinous, atrocious, or cruel” — after it was instructed in an unconstitutional manner; (2) this court’s invalidation of Oklahoma’s application of the “heinous, atrocious, or cruel” circumstance renders some of the evidence introduced at Coleman’s sentencing hearing constitutionally inadmissible; (3) the trial court’s anti-sympathy instruction at the sentencing stage unconstitutionally diverted the jury from fully considering mitigating evidence; and (4) certain statements by the prosecutor and photographs allowed into evidence at the guilt stage constituted comments about the victim in violation of Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987). The district court denied relief.
The facts of this case are set out in our opinion affirming an earlier denial of habe-as relief. See Coleman v. Brown, 802 F.2d 1227 (10th Cir.1986) (Coleman I), cert, denied, 482 U.S. 909,107 S.Ct. 2491, 96 L.Ed. 2d 383 (1987). We will repeat here only-such facts as are necessary to an understanding of the issues we must decide.
In 1979, an Oklahoma jury convicted Coleman of first degree murder and, after hearing evidence produced at a separate sentencing hearing, determined that all five of the statutory aggravating circumstances alleged by the state were present. The jury then sentenced Coleman to death. One of the aggravating circumstances found by the jury was that the murder was “especially heinous, atrocious, or cruel.” See Okla.Stat.Ann. tit. 21, § 701.12(4).
The Oklahoma Court of Criminal Appeals affirmed Coleman’s conviction and sentence. Coleman v. State, 668 P.2d 1126 (Okla.Crim.App.1983), cert. denied, 464 U.S. 1073, 104 S.Ct. 986, 79 L.Ed.2d 222 (1984). Coleman then filed an application for post-conviction relief in an Oklahoma state district court. That court’s denial of relief was affirmed on appeal. Coleman v. State, 693 P.2d 4 (Okla.Crim.App.1984). He next turned to the federal courts for habeas corpus relief, and this court affirmed the denial of his petition. Coleman I, 802 F.2d 1227.
Coleman thereafter filed a second habeas petition m state district court, whose denial of relief was affirmed in an unpublished order by the Court of Criminal Appeals. While his state petition was still pending, Coleman filed another habeas application in federal district court, raising numerous issues. When the district court denied relief, he appealed to this court. We granted a stay of execution pending the resolution of the appeal.
I
Abuse of the Writ
Coleman’s first allegation of constitutional error is that the jury imposed the death sentence after receiving an unconstitutional instruction regarding the aggravating circumstance that the murder was “especially heinous, atrocious, or cruel.” See Cartwright v. Maynard, 822 F.2d 1477 (10th Cir.1987) (en banc), aff'd, — U.S. -, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988) (holding unconstitutional Oklahoma’s construction and application of this circumstance).
Before we reach the merits of this contention, we must address whether procedural rules bar our consideration of the claim. The state argues that because Coleman should have raised this issue earlier, he has abused his right to apply for a writ of habeas corpus, and we should dismiss this part of the petition without reaching its merits. Accepting this argument, the district court dismissed the current petition.
A federal court may dismiss a subsequent or successive petition for a writ of habeas corpus if “it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ.” 28 U.S.C. foil. § 2254 Rule 9(b). This rule is repeated in slightly different words in 28 U.S.C. § 2244(b), which states that a court need not consider a petition unless it “alleges and is predicated on a factual or other ground not adjudicated on the hearing of the earlier application for the writ, and unless the court, justice, or judge is satisfied that the applicant has not on the earlier application deliberately withheld the newly asserted ground or otherwise abused the writ.”
These “abuse of the writ” rules were developed to give finality to judgments, while permitting petitioners the greatest possible opportunity to vindicate their constitutional rights. See Kuhlmann v. Wilson, 477 U.S. 436, 451-52, 106 S.Ct. 2616, 2625-26, 91 L.Ed.2d 364 (1986) (plurality opinion). In our analysis, we must distinguish between claims raised and reached on the merits in an earlier habeas petition, referred to as “successive petitions,” and claims raised for the first time in a subsequent petition. Id., 477 U.S. at 444 n. 6, 106 S.Ct. at 2622 n. 6.
In arguing that we should not consider Coleman’s claim, the state, relying on Kuhlmann, asserts that a court should consider a petitioner’s second petition only when “the prisoner supplements his constitutional claim with a colorable showing of factual innocence.” Kuhlmann, 477 U.S. at 454, 106 S.Ct. at 2627. But Kuhlmann was a successive petition case; the Supreme Court has never indicated its “factual innocence” test should apply to subsequent petitions raising new claims. Further, the factual innocence test only applies when the petitioner is relying on the “ends of justice” doctrine to mandate consideration of the claims. Id., 477 U.S. at 451, 454,106 S.Ct. at 2625, 2627; see Sanders v. United States, 373 U.S. 1, 15, 83 S.Ct. 1068, 1077, 10 L.Ed.2d 148 (1963) (prior denial of petition bars later claim if same ground was previously presented and determined adversely to petitioner, prior decision was on the merits, and ends of justice would not be served by deciding petition on merits). Because Coleman’s allegation regarding the heinous, atrocious, or cruel circumstance was neither presented nor decided in his first federal habeas action, we need not apply the factual innocence criteria or the three-part Sanders test.
Even though Coleman has not previously raised the invalid aggravating circumstance argument, his claim still may be barred. Rule 9(b) and 28 U.S.C. § 2244 mandate that the courts should dismiss subsequent petitions when the petitioner has offered no reasonable explanation why he did not raise his claim in the earlier application. See Kuhlmann, 477 U.S. at 444 n. 6, 106 S.Ct. at 2622 n. 6 (because habeas relief is of an “equitable nature,” petitioner’s subsequent application may be dismissed, though it raises new issues, if petitioner has acted to disqualify himself from relief); Sanders, 373 U.S. at 10, 83 S.Ct. at 1074. Specifically, Coleman must show that he or his counsel in the earlier petition did not intentionally abandon or inexcusably neglect the new claim, Witt v. Wainwright, 755 F.2d 1396, 1397 (11th Cir.), cert. denied, 470 U.S. 1039, 105 S.Ct. 1415, 84 L.Ed.2d 801 (1985), and that he did not deliberately withhold the claim or at least has a good reason for not previously raising it. Woodard v. Hutchins, 464 U.S. 377, 379 & n. 3, 104 S.Ct. 752, 753 n. 3, 78 L.Ed.2d 541 (1984) (Powell, J., concurring, joined by four other justices). Coleman can satisfy part of this burden by showing, by a preponderance of the evidence, that he did not know of the specific legal or factual grounds for the claim when he filed his earlier petition, Booker v. Wainwright, 764 F.2d 1371, 1376 (11th Cir.), cert. denied, 474 U.S. 975, 106 S.Ct. 339, 88 L.Ed.2d 324 (1985), or that the law has changed since the earlier petition, Sanders, 373 U.S. at 17, 83 S.Ct. at 1078; Tucker v. Kemp, 818 F.2d 749, 752 (11th Cir.1987). But even if the law has changed since the earlier petition, Coleman also must show that he or his attorney reasonably should not have been aware of the possibility or legal basis for such a claim. Bowden v. Kemp, 793 F.2d 273, 275 & n. 4 (11th Cir.), cert. denied, 477 U.S. 910, 106 S.Ct. 3289, 91 L.Ed.2d 576 (1986); Moore v. Blackburn, 774 F.2d 97, 98 (5th Cir.1985), cert. denied, 476 U.S. 1176, 106 S.Ct. 2904, 90 L.Ed.2d 990 (1986).
Once the state adequately raises the abuse of the writ issue with clarity and particularity, as the state did in this case, the burden shifts to the petitioner to show, by a preponderance of the evidence, that he has not abused the writ procedure. Price v. Johnston, 334 U.S. 266, 292, 68 S.Ct. 1049, 1063, 92 L.Ed. 1356 (1948); Jones v. Estelle, 722 F.2d 159, 164 (5th Cir.1983), cert. denied, 466 U.S. 976, 104 S.Ct. 2356, 80 L.Ed.2d 829 (1984); 28 U.S.C. foll. § 2254 Rule 9 Advisory Committee Notes. Coleman ultimately bears the burden of persuasion, and the Supreme Court plainly has instructed federal courts to dismiss petitions, even in capital cases, when petitioners fail to prove that they have not abused the writ. Antone v. Dugger, 465 U.S. 200, 206,104 S.Ct. 962, 964, 79 L.Ed.2d 147 (1984); Woodard, 464 U.S. at 379, 104 S.Ct. at 753. Nevertheless, we must remember that when a man’s life is at stake and he has not had federal review of the alleged constitutional defects in his conviction and sentence, we should be reluctant to hold that his misconduct is grave enough to warrant the sanction of dismissal of his petition. See Potts v. Zant, 734 F.2d 526, 529 (11th Cir.1984), cert. denied, 475 U.S. 1068, 106 S.Ct. 1386, 89 L.Ed.2d 610 (1986).
Coleman argues that this court’s decision in Cartwright v. Maynard, 822 F.2d 1477 (10th Cir.1987), and the Supreme Court’s subsequent affirmance in Maynard v. Cartwright, — U.S. -, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988), constitute an intervening change in the law, not reasonably foreseen by Coleman or his counsel at the time of the first habeas application. Those decisions hold that Oklahoma's application of the statutory aggravating circumstance that the murder was “especially heinous, atrocious, or cruel,’’ Okla.Stat.Ann. tit. 21, § 701.12(4), was unconstitutionally over-broad and vague. Cartwright, 822 F.2d at 1491-92, Maynard, 108 S.Ct. at 1859. As noted, this circumstance was one of five found beyond a reasonable doubt by the jury in this case.
It cannot reasonably be disputed that our decision in Cartwright was a new and significant development in Oklahoma law. The real question, therefore, is whether Coleman’s counsel reasonably could have been expected to raise the issue in the first petition and argue for a change in the law. Here we hold that Coleman and his counsel acted reasonably in not challenging, in the first habeas petition, the heinous, atrocious, or cruel instruction and its application to Coleman. Although our holding in Cartwright is well supported by precedent, neither this court nor the Oklahoma courts previously had given any reliable indication that the state’s construction of this particular circumstance might be invalid. In fact, the Oklahoma courts repeatedly had rejected, often summarily, the assertion that the state’s construction of this circumstance was unconstitutional. See, e.g., Liles v. State, 702 P.2d 1025, 1031-32 (Okla.Crim.App.1985), cert. denied, 476 U.S. 1164, 106 S.Ct. 2291, 90 L.Ed.2d 732 (1986); Cartwright v. State, 695 P.2d 548, 555 n. 6 (Okla.Crim.App.), cert. denied, 473 U.S. 911, 105 S.Ct. 3538, 87 L.Ed.2d 661 (1985); Davis v. State, 665 P.2d 1186, 1202 (Okla.Crim.App.), cert. denied, 464 U.S. 865, 104 S.Ct. 203, 78 L.Ed.2d 177 (1983). Arguably, Coleman’s counsel should have been aware of the possibility of making such a claim, as counsel in Cartwright certainly was. Yet, by looking at the objective factors, such as the previous failure of any court or judge to indicate that Oklahoma’s construction might be unconstitutional, we hold that Coleman had good reason for not raising this claim in his first petition, and his present challenge is not barred by the abuse of the writ doctrine. The district court erred in concluding to the contrary.
II
Procedural Default
The state next contends that because Coleman failed to raise his heinous, atrocious, or cruel circumstance claim at trial or on direct appeal, which it contends is required by state law, he is foreclosed from raising it now. See Wainwright v. Sykes, 433 U.S. 72, 86-87, 97 S.Ct. 2497, 2506-07, 53 L.Ed.2d 594 (1977). In Sykes, the Supreme Court held that a federal ha-beas court is precluded from reviewing a state prisoner’s allegation of constitutional error if the state court has declined to review the claim due to the petitioner’s failure to comply with a state contemporaneous objection rule. Id., 433 U.S. at 85-86, 97 S.Ct. at 2505-06 More specifically, it held that a petitioner’s “failure to timely object to [the alleged error] amounted to an independent and adequate state procedural ground which would have prevented direct review here” and thus precluded habeas corpus review as well. Id. at 87, 97 S.Ct. at 2506.
Oklahoma has codified the following procedural rule:
“All grounds for relief available to an applicant under [the post-conviction relief act] must be raised in his original, supplemental or amended application. Any ground finally adjudicated or not so raised, or knowingly, voluntarily and intelligently waived in the proceeding that resulted in the conviction or sentence or in any other proceeding the applicant has taken to secure relief may not be the basis for a subsequent application, unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the prior application.”
Okla.Stat.Ann. tit. 22, § 1086. The state urges application of this rule to dismiss Coleman’s petition. The state district court, considering the alleged constitutional error now before us, apparently agreed. When Coleman filed his second application in state district court, that court stated that the claim “was not raised in this particular case, it’s my understanding. It could have been raised, but it wasn't raised, so by reason therefore then the doctrine of res judicata will apply, so that proposition will be overruled.” Coleman v. Saffle, No. CRF-79-76, transcript of hearing at 145 (D. Muskogee County, Okla., July 9, 1987), III R.Doc. 12. The Court of Criminal Appeals affirmed on the same grounds. Coleman v. Saffle, No. H-79-508, unpublished order (Okla.Crim.App. July 15, 1987), III R.Doc. 12.
Thus, the Oklahoma state courts have held that Coleman’s invalid aggravating circumstance claim is barred by a state procedural rule. We must respect the state’s interpretation of its own rules. Yet, the Supreme Court has “ ‘consistently held that the question of when and how defaults in compliance with state procedural rules can preclude our consideration of a federal question is itself a federal question.’ ” Johnson v. Mississippi, — U.S. -, 108 S.Ct. 1981, 1987, 100 L.Ed.2d 575 (1988) (quoting Henry v. Mississippi, 379 U.S. 443, 447, 85 S.Ct. 564, 567, 13 L.Ed.2d 408 (1965)). As a partial answer to that question, the Court has held that a state procedural rule must be “independent and adequate” before it bars federal review; and, a state rule is not “adequate” unless it is “strictly or regularly followed.” Hathorn v. Lovorn, 457 U.S. 255, 262-63, 102 S.Ct. 2421, 2426-27, 72 L.Ed.2d 824 (1982); see also Johnson, 108 S.Ct. at 1987; Barr v. City of Columbia, 378 U.S. 146, 149, 84 5.Ct. 1734, 1736, 12 L.Ed.2d 766 (1964); see also Runnels v. Hess, 653 F.2d 1359, 1366 (10th Cir.1981) (Logan, J., concurring and dissenting) (Sykes does not alter rule that a federal court may review a federal claim, even in face of a state procedural bar, if state rules “are unreasonable on their face or are unreasonably or inconsistently applied”).
We conclude that the procedural rule requiring a criminal defendant to raise all issues contemporaneously and on direct appeal is not “strictly followed” in Oklahoma when a ruling of the Supreme Court or a federal appellate court binding in the jurisdiction changes the law after the petitioner’s earlier appeal. See Hathorn, 457 U.S. at 263, 102 S.Ct. at 2426 (to bar federal court review, procedural rule must be applied “evenhandedly to all similar claims”); Wheat v. Thigpen, 793 F.2d 621, 626-27 (5th Cir.1986), cert. denied, 480 U.S. 930, 107 S.Ct. 1566, 94 L.Ed.2d 759 (1987).
For example, in Stewart v. State, 495 P.2d 834, 836 (Okla.Crim.App.1972), the Oklahoma Court of Criminal Appeals ruled that a habeas petitioner’s claim of trial error based on Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), was not barred “since defendant is asserting a claim which did not exist at the time of his [direct] appeal.” The court stated that because the Supreme Court had not yet decided Burgett at the time of petitioner’s trial, he had offered a “sufficient reason” under Okla.Stat.Ann. tit. 22, § 1086 for not asserting the claim on direct appeal. Stewart, 495 P.2d at 836.
In Jones v. State, 704 P.2d 1138, 1140 (Okla.Crim.App.1985), the court stated that a petitioner could raise at the post-conviction stage new grounds for relief if “a ‘sufficient reason’ prevented the assertion of the error at trial or on direct appeal, such as a subsequent change in the law affecting the petitioner’s case.” (emphasis added). The court made this statement while reaffirming the general rule that “if an issue is bypassed on direct appeal, it may not be asserted on application for post-conviction relief.” Id. at 1140.
In Cartwright v. State, 708 P.2d 592, 594 (Okla.Crim.App.1985), cert. denied, 474 U.S. 1073, 106 S.Ct. 837, 88 L.Ed.2d 808 (1986), the court held that
“we consider a constitutional argument, raised for the first time on application for post-conviction relief where the constitutional remedy was unavailable at trial or on direct appeal. In such a case a ‘sufficient reason’ has been stated for the failure to present the issue on direct appeal.”
The court there considered the merits of the petitioner’s claim based on Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed. 2d 53 (1985), which had been decided after the petitioner’s direct appeal. Cartwright, 708 P.2d at 595.
Thus, we conclude that Oklahoma has not “strictly followed” its contemporaneous objection rule embodied in Okla.Stat.Ann. tit. 22, § 1086, and that by barring Coleman’s claim while allowing the claims pressed in cases such as Stewart, Jones and Cartwright, it has inconsistently applied its “sufficient reason” exception. Oklahoma’s rule, therefore, is not “adequate” to preclude our review of Coleman's claim, and we proceed to its merits. See Hathorn, 457 U.S. at 262-63, 102 S.Ct. at 2426-27.
Ill
A
Erroneous Aggravating Circumstance
Coleman argues that this court must vacate his death sentence because, at the sentencing phase of his trial, the court gave the jury an unconstitutional instruction regarding the aggravating circumstance that the murder was “especially heinous, atrocious, or cruel.” In Cartwright v. Maynard, 822 F.2d 1477 (10th Cir.1987) (en banc), we held that even though the “especially heinous, atrocious, or cruel” circumstance survived a facial invalidity challenge, Oklahoma had applied it in an unconstitutional manner. Id. at 1488-91. The Oklahoma courts’ construction was over-broad and did not adequately channel the jury’s sentencing discretion as required by Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), and other Supreme Court decisions. Cartwright, 822 F.2d at 1487, 1491. The Supreme Court agreed with our holding and affirmed our judgment in Maynard v. Cartwright, — U.S. -, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988).
Just as in Cartwright, the trial court and the Court of Criminal Appeals in the present case failed to apply the constitutionally required narrowing criteria to the “heinous, atrocious, or cruel” circumstance. The trial court here gave virtually the same jury instruction given in Cartwright. The state makes no showing that the Court of Criminal Appeals applied any more rigid review of the circumstance’s application in Coleman’s pase than it did in Cartwright’s case. Thus, the Oklahoma trial court and the Court of Criminal Appeals unconstitutionally applied the “heinous, atrocious, or cruel” circumstance here.
The question remains whether we should apply harmless error analysis in these circumstances. In Cartwright, we did not engage in such analysis; we simply vacated that petitioner’s death sentence and remanded to the Oklahoma courts for further proceedings. 822 F.2d at 1482-83, 1492. But we did so because at that time the Oklahoma courts refused to reweigh aggravating and mitigating circumstances once one aggravating circumstance relied on by the jury was declared invalid. Id. at 1482-83.
Oklahoma law, however, has changed. In Stouffer v. State, 742 P.2d 562, 563 (Okla.Crim.App.1987), cert. denied, — U.S. -, 108 S.Ct. 763, 98 L.Ed.2d 779 (1988), the Court of Criminal Appeals reinterpreted the “heinous, atrocious, or cruel” circumstance so that a murder must involve “torture or serious physical abuse” before a jury may find that the circumstance exists. It also ruled that, applying its new, stricter interpretation, it should reweigh the remaining aggravating circumstances against any mitigating evidence, and decide if the evidence still warranted a death sentence. Id. at 564. The court held that its previous rule had been
Id. (citation omitted). It then went on to determine that, in light of the overwhelming evidence of guilt and the jury’s rejection of that defendant’s theories, the unconstitutional submission of the heinous, atrocious, or cruel circumstance “was at most harmless error.” Id.; see also Castro v. State, 745 P.2d 394, 408-09 (Okla.Crim. App.1987) (evidence insufficient to support heinous, atrocious, or cruel circumstance, but death penalty still “substantiated and valid” in light of prosecution’s overwhelming evidence and remaining circumstance that defendant constituted continuing threat to society), on rehearing, 749 P.2d 1146, cert, denied, — U.S.-, 108 S.Ct. 1248, 99 L.Ed.2d 446 (1988). Thus, Oklahoma reviewing courts, in cases in which the jury has considered an invalid aggravating circumstance, now apply harmless error analysis and also reweigh the evidence to determine if the death penalty continues to be warranted.
“unnecessarily deferential in light of the authority and responsibility given this Court by the Legislature to review capital sentences____ [Tjhis Court must make a sentence review which includes factual substantiation of the verdict and determining the validity of the sentence. A weighing of the aggravating circumstances versus mitigating factors is implicit to such a review.”
We must accept Oklahoma’s interpretation of its own law — that a death penalty is not automatically vacated when the jury found an invalid aggravating circumstance, and that the rule applies to persons convicted before the new interpretation — unless this interpretation violates federal constitutional rights. We do have to determine two federal constitutional issues, because they directly affect the remedy we may order in this case: (1) whether application of the new state rule, that death sentences are not automatically vacated, is constitutionally invalid, under ex post facto principles, when applied to one like Coleman, convicted before Stouffer’s reinterpretation; and, if not, (2) whether harmless-error analysis is applicable to the submission of the invalid aggravating circumstance.
B
Due Process — Ex Post Facto Issue
The Oklahoma Court of Criminal Appeals has ruled that the decision to reweigh does not constitute an ex post facto law, even though applied to petitioners convicted before the Stauffer decision. Castro, 749 P.2d at 1150. The Castro court held that Stouffer merely interpreted a statute that was in effect when the crimes were committed, and does not “criminalize conduct which was innocent when done, nor ... make the crime greater than when it was committed.” Id. Soon after Castro, however, the Court of Criminal Appeals held that, as applied to defendants convicted before its enactment, an Oklahoma statute allowing the court to remand for resen-tencing when a defendant’s death sentence was imposed unconstitutionally was an ex post facto law because it permitted reinsti-tution of a death sentence, a result not possible under prior court-made rule. Dutton v. Dixon, 757 P.2d 376, 379 (Okla.Crim.App.1988). The Dutton court distinguished Castro without discussion.
Coleman’s constitutional rights here derive from the Due Process Clause because the law change at issue was by judicial construction; the prohibition against ex post facto laws applies only to legislative enactments. Marks v. United States, 430 U.S. 188, 191-92, 97 S.Ct. 990, 992-93, 51 L.Ed.2d 260 (1977); Devine v. New Mexico Dep’t of Corrections, 866 F.2d 339, 342, 344 (10th Cir.1989). Nevertheless, “an unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law,” Bouie v. City of Columbia, 378 U.S. 347, 353, 84 S.Ct. 1697, 1702, 12 L.Ed.2d 894 (1964), so we apply ex post facto principles to decide the due process issue. The critical test, as stated in recent Supreme Court cases, is whether, as applied, the change impairs “substantial personal rights,” or merely changes “modes of procedure which do not affect matters of substance.” Dobbert v. Florida, 432 U.S. 282, 293, 97 S.Ct. 2290, 229, 53 L.Ed.2d 344 (1977) (quoting Beazell v. Ohio, 269 U.S. 167, 171, 46 S.Ct. 68, 69, 70 L.Ed. 216 (1925)); see also Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 2451, 96 L.Ed.2d 351 (1987); United States v. Affleck, 765 F.2d 944, 948 (10th Cir.1985) (en banc) (no ex post facto violation if new law is merely procedural and does not increase punishment for, or change the elements of, an offense, or alter facts necessary to establish guilt).
An unforeseeable judicial interpretation that makes a crime greater than when it was committed, Bouie, 378 U.S. at 353, 84 S.Ct. at 1702, or that inflicts a greater punishment than the law permitted when the crime was committed, Miller, 107 S.Ct. at 2450, violates ex post facto principles and a defendant’s due process rights. Does the change at issue before us — the decision that death sentences are no longer automatically vacated when the jury has found an invalid aggravating circumstance —affect Coleman’s substantive rights by making his crime greater or inflicting greater punishment than when the murder was committed? The crime was then and still is first degree murder, and death was and still is the maximum punishment for the crime. Facially, Stouffer does not aggravate Coleman’s crime or increase his punishment.
In Weaver v. Graham, 450 U.S. 24, 29-30 & n. 12, 101 S.Ct. 960, 964-65 & n. 12, 67 L.Ed.2d 17 (1981), the Supreme Court stated the ex post facto test in terms of whether the change in law “disadvantage[s]” the defendant. That language is also in older Supreme Court cases. See, e.g., Kring v. Missouri, 107 U.S. (17 Otto) 221, 27 L.Ed. 506 (1883). In a sense, the change wrought by Stouffer disadvantages the offender, who under the earlier Oklahoma court interpretations would have his death sentence automatically reduced to life imprisonment upon establishing that the jury found an erroneous mitigating circumstance. An offender, however, does not win his ex post facto argument by proving disadvantage alone. See, e.g., Beazell v. Ohio, 269 U.S. 167, 170-71, 46 S.Ct. 68, 68-69, 70 L.Ed.2d 216 (1925); Hopt v. Utah, 110 U.S. 574, 589-90, 4 S.Ct. 202, 209-10, 28 L.Ed. 262 (1884).
As we recognized in Affleck, even a change in the law that “seriously disadvantages” a defendant is not prohibited by the Ex Post Facto Clause if it affects only matters of procedure and does not “impose[ ] a punishment for an act which was not punishable at the time it was committed; or impose[ ] additional punishment to that then prescribed; or change[ ] the rules of evidence by which less or different testimony is sufficient to convict than was then required.” 765 F.2d at 948, 949 (quoting Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325-26, 18 L.Ed. 356 (1867)). In Af-fleck, we viewed the modern Supreme Court cases as modifying the absolute-sounding words of Kring and other decisions, and stated that the true focus of ex post facto analysis is on “the elements of the offense, the conditions and quantum of punishment, and the quantity and degree of proof necessary to establish guilt.” 765 F.2d at 950.
In the one modern Supreme Court case involving the application of ex post facto principles to the death penalty, Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977), the Court upheld against ex post facto challenge application of a new Florida death penalty statute changing the functions of judge and jury as applied to one who committed the crime before the statute’s enactment. The prior statute required the death sentence unless a majority of the jury recommended mercy. The revised statute left sentencing to the trial judge, with the jury rendering an advisory opinion. Id. at 289-91, 97 S.Ct. at 2296-97. The jury recommended that Dob-bert receive a life sentence but, as allowed under the new statute, the trial judge sentenced him to death. The Supreme Court found the changes to be procedural because “ ‘[t]he crime for which the present defendant was indicted, the punishment prescribed therefor, and the quantity or the degree of proof necessary to establish his guilt, all remained unaffected by the subsequent [change in the law].’ ” Id. at 294, 97 S.Ct. at 2298 (quoting Hopt v. Utah, 110 U.S. 574, 589-90, 4 S.Ct. 202, 209-10, 28 L.Ed. 262 (1884)). The Court rejected the argument that petitioner’s punishment was increased because there was no valid death penalty in Florida when he committed the crime, that statute having been held unconstitutional, as a “sophistic argument [that] mocks the substance of the Ex Post Facto Clause.” Id., 432 U.S. at 297, 97 S.Ct. at 2300. The Court said that because a statute existed at the time the defendant committed the crime which mandated death as an appropriate penalty for murder, the defendant had “fair warning” of the crime’s consequences. Id.
In the instant case, as in Dobbert, the state statute in effect at the time Coleman committed the murder allowed death as a possible punishment; and the quantity or the degree of proof necessary to establish guilt were unchanged by Stouffer. Stouf-fer effected only a procedural change in the way the Oklahoma Court of Criminal Appeals carries out its statutorily-required review of death sentences. A procedural change in the law, even if it is to the petitioner’s disadvantage, is not a constitutionally prohibited ex post facto law. Dob-bert, 432 U.S. at 293-94, 97 S.Ct. at 2298-99 (law not ex post facto because it “simply altered the methods employed in determining whether the death penalty was to be imposed”); Beazell, 269 U.S. at 170-71, 46 S.Ct. at 68-69; Affleck, 765 F.2d at 948. Therefore, applying the Stouffer reinterpretation to Coleman’s case is not an invalid application of an ex post facto law.
C
Harmless Error
The state’s principal argument concerning the invalidly applied “heinous, atrocious, or cruel” circumstance is that it was harmless error beyond a reasonable doubt. In Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983), the Supreme Court held that because the Georgia statute did not require the sentencer to weigh aggravating and mitigating evidence, the state supreme court properly could allow a death sentence to stand, even after invalidating one or more aggravating circumstances, provided one circumstance remained. Id., 462 U.S. at 874, 890, 103 S.Ct. at 2741, 2749. The Zant Court specifically left open the question whether, in the context of a sentencing scheme requiring the sentencer to weigh aggravating circumstances and mitigating evidence, as the Oklahoma statute does,- see Okla.Stat.Ann. tit. 21, § 701.11, a federal constitutional error could be harmless. Zant, 462 U.S. at 873 n. 12, 890,103 S.Ct. at 2741 n. 12, 2749. We face that question here, and hold that it may.
Barclay v. Florida, 463 U.S. 939, 103 S.Ct. 3418, 77 L.Ed.2d 1134 (1983), went a long way toward resolving the question left open in Zant. Under Florida law the trial judge makes the ultimate decision on death, and the judge may not consider non-statutory aggravating circumstances. Id., 463 U.S. at 956, 103 S.Ct. at 3428. In Barclay, the judge did consider an improper aggravating circumstance, yet the Florida Supreme Court upheld his imposition of the death sentence, applying harmless-error analysis. The United States Supreme Court affirmed, holding that even though the statute required the sentencer to weigh aggravating and mitigating evidence, the sentencer’s consideration of the invalid circumstance did not “so infect[] the balancing process created by the Florida statute that it is constitutionally impermissible for the Florida Supreme Court to let the sentence stand.” Barclay, 463 U.S. at 956, 103 S.Ct. at 3428 (plurality opinion). Although the error there was one of state law, the Court summarized its holding in terms not confined to state law errors: “There is no reason why the Florida Supreme Court cannot examine the balance struck by the trial judge and decide that the elimination of improperly considered aggravating circumstances could not possibly affect the balance.” Id. at 958, 103 S.Ct. at 3429. Justices Stevens and Powell, whose votes were necessary to make a majority, concurred in the judgment and focused on the procedural protections of the Florida statute, which they found constitutionally adequate. Id. at 960, 969-70, 103 S.Ct. at 3430, 3434-36 (Stevens, J., concurring in the judgment).
In another recent case, the Supreme Court vacated a death sentence only after it concluded that the constitutional error at the sentencing proceeding was prejudicial, and did not involve the “mere invalidation of an aggravating circumstance.” Johnson v. Mississippi, — U.S. -, 108 S.Ct. 1981, 1988, 100 L.Ed.2d 575 (1988) (earlier conviction in violation of petitioner’s rights used as sole evidence to support aggravating circumstance that he previously was convicted of a crime). We believe Barclay and Johnson, in conjunction with Zant, clearly indicate that we should apply harmless-error analysis in the instant case, even though Oklahoma law requires the sentencer to weigh the aggravating and mitigating circumstances. The Supreme Court has said that a death penalty scheme in which the jury balances aggravating and mitigating circumstances is not all that different, in reality, from other schemes, if the jury knows in advance the consequences of its finding of aggravating circumstances. Franklin v. Lynaugh, — U.S. -, 108 S.Ct. 2320, 2331 n. 12, 101 L.Ed.2d 155 (1988).
Our holding is buttressed by the Supreme Court’s repeated admonitions to apply harmless-error analysis to other constitutional errors, even in capital cases. See, e.g., Satterwhite v. Texas, — U.S. -, 108 S.Ct. 1792, 1798, 100 L.Ed.2d 284 (1988) (harmless-error analysis applies to erroneous admission of psychiatric testimony, in violation of Sixth Amendment, at capital sentencing stage); see also Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 1438, 89 L.Ed.2d 674 (1986) (analysis applies to unconstitutional denial of defendant’s right to cross-examine adverse witnesses); Chapman v. California, 386 U.S. 18, 24-25, 87 S.Ct. 824, 828-29, 17 L.Ed.2d 705 (1967) (analysis applies to improper arguments by prosecutor). The Court has held that, although some constitutional errors require automatic reversal, see, e.g., Gray v. Mississippi, 481 U.S. 648, 107 S.Ct. 2045, 2056, 95 L.Ed.2d 622 (1987) (improper exclusion of jurors on basis of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968)); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (complete denial of counsel), these errors “are the exception and not the rule.” Rose v. Clark, 478 U.S. 570, 578, 106 S.Ct. 3101, 3106, 92 L.Ed.2d 460 (1986). In Rose, the Court noted that the constitutional errors requiring per se reversal “either aborted the basic trial process ... or denied it altogether.” Id. at 578 n. 6, 106 S.Ct. at 3106 n. 6. Thus, “if the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other errors that may have occurred are subject to harmless-error analysis.” Id. at 579, 106 S.Ct. at 3107; see also R. Traynor, The Riddle of Harmless Error 50 (1970) (“Reversal for error, regardless of its effect on the judgment, encourages litigants to abuse the judicial process and bestirs the public to ridicule it.”). Even in cases in which the Court has held that harmless-error analysis does not apply, it has recognized that the error must go “to the very integrity of the legal system” before such analysis is precluded. Gray, 107 S.Ct. at 2056 (plurality opinion).
Coleman asserts that our application of harmless-error analysis to the sentencing determination violates his right to have a jury determine his sentence. The Supreme Court rejected this argument in Rose, a case involving a constitutionally deficient jury instruction:
“We agree that the determination of guilt or innocence, according to the standard of proof required by [In re] Winship [397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)] and its progeny, is for the jury rather than the court. Harmless error analysis addresses a different question: what is to be done about a trial error that, in theory, may have altered the basis on which the jury decided the case, but in practice clearly had no effect on the outcome? This question applies not merely to Sandstrom [v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979) ] violations, but to other errors that may have affected either the instructions the jury heard or the record it considered____ The dissent’s argument — that the Sixth Amendment forbids a reviewing court to decide the impact of a trial error on the outcome— logically implies that all such errors are immune from harmless-error analysis. Yet this Court repeatedly has held to the contrary.”
478 U.S. at 582 n. 11, 106 S.Ct. at 3108 n. 11 (citations omitted). Cf. Spaziano v. Florida, 468 U.S. 447, 460, 104 S.Ct. 3154, 3162, 82 L.Ed.2d 340 (1984) (Constitution does not require a jury, instead of a court, to make the decision whether a death sentence should be imposed).
In applying harmless-error analysis, we must ask ourselves whether we can “declare a belief that [the constitutional error] was harmless beyond a reasonable doubt.” Chapman, 386 U.S. at 24, 87 S.Ct. at 828. In doing so, we look at the entire trial record. Van Arsdall, 475 U.S. at 684, 106 S.Ct. at 1438. We recognize that there is a heightened need for reliability in making the harmless error determination in a capital case, see Johnson, 108 S.Ct. at 1986, 1988-89; Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973 (1978) (plurality opinion), but conclude that in the instant case, the unconstitutional submission to the jury of the “heinous, atrocious, or cruel” aggravating circumstance was harmless beyond a reasonable doubt.
At the sentencing stage of Coleman’s trial, the jury found five aggravating circumstances, four of which Coleman does not challenge on constitutional or sufficiency of the evidence grounds. See note 1, ante. Coleman does not dispute his conviction, the facts of the murder as proved by the prosecution, or the accuracy of other evidence introduced by the prosecution at the sentencing hearing. At that hearing, the state introduced evidence of Coleman’s two prior convictions — one for assault with intent to rob and the other for possession of and assault with a weapon. It showed that, after being arrested following the Se-wards’ homicides, Coleman escaped from jail. The next day, he cut the throat and hand of Oklahoma police officer Dotson, who had stopped him for speeding. Coleman took Dotson’s pistol and shotgun and left him handcuffed in the patrol car. E.M., who was in jail with Coleman, testified that Coleman told him that he assumed Dotson would die. Coleman told Dotson after their struggle, however, that he was not going to hurt him. Two days later Coleman shot and killed Russell Lewis in Chandler Park in Tulsa and took his pickup truck. Coleman shot Lewis in the head. Coleman then kidnapped Terry Parish, a county detective in Arizona who had stopped him for erratic driving. Coleman took his revolver and left him handcuffed in the back of his patrol car in the desert. Coleman said that if Parish did exactly what he told him to do, he would not kill him. In addition to the shotgun murder of John Seward, for which he was convicted, there was evidence at the guilt stage of his killing of Seward’s wife, shooting her in the head and back four times with a shotgun.
In affirming the denial of petitioner’s first application for habeas relief, we concluded, and the facts recited above reaffirm, that there existed “overwhelming evidence of both guilt and aggravating factors.” Coleman I, 802 F.2d at 1236. In addition, no mitigating evidence was introduced at the sentencing hearing, and no evidence from the trial stage reasonably could have been considered by the jury in mitigation. See post Part IV.
Finally, in arguing against harmlessness, Coleman points to the evidence the prosecution introduced at the sentencing stage, such as pictures of the victims and of the crime scene, to support the heinous, atrocious, or cruel aggravating circumstance. But the Oklahoma Court of Criminal Appeals repeatedly has held that evidence regarding “the calloused manner in which a crime is committed” may be introduced to support the aggravating circumstance, also charged in the instant case, that the defendant would constitute a continuing threat to society. Fisher v. State, 736 P.2d 1003, 1009 (Okla.Crim.App.1987), on rehearing, 739 P.2d 523, cert. denied, — U.S. -, 108 S.Ct. 2833, 100 L.Ed.2d 933 (1988); see also Van Woundenberg v. State, 720 P.2d 328, 337 (Okla.Crim.App.), cert. denied, 479 U.S. 956, 107 S.Ct. 447, 93 L.Ed.2d 395 (1986); Robison v. State, 677 P.2d 1080, 1088 (Okla.Crim.App.), cert. denied, 467 U.S. 1246, 104 S.Ct. 3524, 82 L.Ed.2d 831 (1984).
In both Barclay, 463 U.S. at 956, 103 S.Ct. at 3428, and Zant, 462 U.S. at 886, 103 S.Ct. at 2747, the Supreme Court determined that evidence introduced to support an invalid aggravating circumstance did not require reversal. In both cases that evidence consisted of the defendant’s prior record and the Court decided that the evidence was admissible under the Eighth Amendment because it accurately and plausibly described facts about the defendant’s record. Barclay, 463 U.S. at 956, 103 S.Ct. at 3428; Zant, 462 U.S. at 887-88, 103 S.Ct. at 2748-49; see also Barclay, 463 U.S. at 967, 103 S.Ct. at 3433 (Stevens, J., concurring in judgment). In the case before us, as in Barclay and Zant, the evidence admitted to support the invalid aggravating circumstance — photographs of the victims and their wounds — though inflammatory, accurately depicted facts of the crime. This case does not involve introduction of misleading or inaccurate information, but rather the “mere invalidation of an aggravating circumstance supported by evidence that was otherwise admissible.” See Johnson, 108 S.Ct. at 1988. Introduction of this evidence, then, did not violate Coleman’s Eighth Amendment or other constitutional rights. We find nothing in the instant case about the improper consideration of an aggravating circumstance that rendered petitioner’s trial fundamentally unfair or aborted the trial’s function of reliably determining guilt or innocence and the appropriate sentence.
In a state such as Oklahoma, in which the jury makes the death sentencing decision in the first instance by weighing the evidence, see Okla.Stat.Ann. tit. 21, § 701.11, we are very hesitant to find harmless error in the submission to the jury of an unconstitutional aggravating circumstance. At the same time, however, we believe it improper to vacate Coleman’s sentence when we are convinced beyond a reasonable doubt that the jury would have imposed the same sentence even if the court had not submitted the invalid circumstance to it. We are convinced in this case because the evidence of guilt is overwhelming, the remaining four aggravating circumstances are strongly supported by the evidence, and there is no mitigating evidence. Thus, we hold that although there was constitutional error at Coleman’s trial on this issue, it was harmless.
IV
Anti-Sympathy Instruction
Despite the district court’s apparent conclusion to the contrary, the state concedes that neither abuse of the writ doctrine nor procedural default bars petitioner from pressing in this court his claim based upon the trial court’s allegedly unconstitutional anti-sympathy instruction. See California v. Brown, 479 U.S. 538, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987). Therefore, we will reach the merits of this issue without discussing these procedural doctrines.
In the instant case, the state trial court instructed the jury as follows: “You should not allow sympathy, sentiment or prejudice to affect you in reaching your decision. You should avoid any influence of passion, prejudice or any other arbitrary factor when imposing sentence.” Coleman argues that the inclusion of the word “sympathy” in this instruction violates his Eighth Amendment rights, citing Brown. We have recently treated the issue in Parks v. Brown, 860 F.2d 1545 (10th Cir.1988) (en banc), in which this court held that the following instruction violated the Eighth Amendment: “You must avoid any influence of sympathy, sentiment, passion, prejudice or other arbitrary factor when imposing sentence.” Id. at 1552 n. 8. We find that, for purposes of the Eighth Amendment, the two instructions are indistinguishable, as indeed the state concedes. But that does not end our inquiry.
The basic problem with Coleman’s anti-sympathy instruction argument in the instant case is that he introduced no mitigating evidence at the penalty phase of his trial. Recognizing this void, he asserts that a jury might have based some sympathy on the testimony of two prosecution witnesses — his wife and sister-in-law — during the guilt stage of the trial. In the course of their testimony, each of the witnesses stated that they loved the defendant. Conceding that this is the only evidence that legitimately might have engendered sympathy for him, Coleman asserts that the very meagerness of this evidence compounded the error of the anti-sympathy instruction. In addition, Coleman argues that his counsel’s closing argument at the guilt stage basically constituted a plea for mercy and sympathy, and by instructing the jury not to consider sympathy in sentencing him, the court virtually directed a verdict of death.
The state, on the other hand, argues that the anti-sympathy instruction merely directed the jury to ignore sympathy not based on mitigating evidence. And, even if the specific anti-sympathy instruction sweeps too broadly, it argues that the trial court’s other instructions directing the jury to consider any mitigating factors it might find, see Instruction 9, quoted in note 12, ante, cure the potentially unconstitutional anti-sympathy instruction.
Parks specifically rejected the argument that a general instruction to consider all mitigating circumstances cures the error in an anti-sympathy instruction like that here. 860 F.2d at 1556-57. But we do agree with the state that precedents binding upon us define the types of evidence that might properly evoke the sympathy of a jury, and there was no such evidence presented here.
During the sentencing phase of a capital case, the defendant has a well-established right to introduce “relevant” mitigating evidence that he proffers as a basis for a sentence less than death. Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973 (1978) (plurality opinion). The Supreme Court has held, however, that a state constitutionally may choose to limit arbitrariness and prohibit reliance on “extraneous emotional factors,” by instructing the jury in a capital case to base its sentencing decision on the evidence, and to ignore “factors not presented at trial, and irrelevant to the issues at trial.” Brown, 479 U.S. at 543, 107 S.Ct. at 840. That case held that the Eighth Amendment does not prohibit an instruction that the jurors must not “be swayed by ‘mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling’ ” during the penalty phase of a capital murder trial. Id. at 542, 107 S.Ct. at 840. The Court stated that while the Eighth Amendment requires the defendant be given the opportunity to present and have the sentencer consider any relevant mitigating evidence, the instructions must not give “unbridled discretion” to the jury. Id. at 541, 107 S.Ct. at 839. The Brown instruction did not violate these principles because by instructing the jury “to avoid basing its decision on mere sympathy,” reasonable jurors would interpret the instruction to mean that they should simply “ignore emotional responses that are not rooted in the aggravating and mitigating evidence introduced during the penalty phase.” Id. at 542,107 S.Ct. at 840 (emphasis in original).
Thus, Coleman was not constitutionally entitled to an instruction that permitted the jury to consider sympathy not arising from the evidence, because otherwise sentencing could be based on arbitrary factors and not “on the circumstances of the crime and the character of the individual defendant.” Proffitt v. Florida, 428 U.S. 242, 251, 96 S.Ct. 2960, 2966, 49 L.Ed.2d 913 (1976) (opinion of Stewart, Powell, & Stevens, JJ.). Therefore, if there was no mitigating evidence from which a jury might have drawn sympathy for Coleman, or a proffer of such evidence, an instruction which prevented the jury from considering any sympathy in arriving at its sentencing decision would not impair any of Coleman’s rights. In the absence of relevant mitigating evidence, any sympathy the jury could draw would be “totally divorced from the evidence adduced,” and thus the court properly could instruct the jury not to consider it. Brown, 479 U.S. at 542, 107 S.Ct. at 840.
The Supreme Court has defined “relevant mitigating evidence” as “any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” Lockett, 438 U.S. at 604, 98 S.Ct. at 2964 (plurality opinion) (citation omitted); see also Franklin v. Lynaugh, — U.S. -, 108 S.Ct. 2320, 2326, 101 L.Ed.2d 155 (1988) (plurality opinion); Robison v. Maynard, 829 F.2d 1501, 1504-05 (10th Cir.1987).
Even though the Court has given a broad interpretation to what qualifies as mitigating evidence, see Skipper v. South Car olina, 476 U.S. 1, 4, 8, 106 S.Ct. 1669, 1670, 1673, 90 L.Ed.2d 1 (1986), we cannot conclude that the statements of Coleman’s wife and sister-in-law qualify as “relevant mitigating evidence” on which a jury legitimately might have grounded feelings of sympathy. Even in Skipper, in which the Court arguably gave its broadest reading of what constitutes mitigating evidence, the evidence in question directly concerned the petitioner’s own conduct, and thereby his character. Id. at 3, 106 S.Ct. at 1670. In the case before us the only evidence that might be considered as mitigating merely constituted statements that the witnesses loved Coleman; they in no way concerned an aspect of his “character or record and any of the circumstances of the offense.” Lockett, 438 U.S. at 604, 98 S.Ct. at 2964.
The recently decided Franklin case is analogous to Coleman’s. In Franklin, the trial court had refused a jury instruction “that any evidence considered by them to mitigate against the death penalty should be taken into account” in imposing punishment, 108 S.Ct. at 2326, and the petitioner argued that this instruction prevented the jury from considering “residual doubts” about the defendant’s guilt when it imposed sentence. The Supreme Court, however, reaffirmed that although “relevant mitigating evidence” includes much, it is limited to evidence concerning the defendant’s character, record, or the circumstances of the crime. Thus, it rejected petitioner’s argument: “Such lingering doubts are not over any aspect of petitioner’s ‘character,’ ‘record,’ or a ‘circumstance of the offense.’ ” Id. at 2326. In addition, the Court stated that the defendant’s rights were not violated when the jury was allowed to consider the sole mitigating evidence — his good behavior record in prison — only in relation to the future dangerousness aggravating circumstance. Id. at 2328. The Court recognized it had never fully defined exactly what evidence bore on a defendant’s character, but said that in limiting the jury’s consideration of the behavior evidence to the dangerousness circumstance, the trial court had allowed consideration of the evidence to the extent required by the Constitution. Id. at 2328-29; see also Lockett, 438 U.S. at 604 n. 12, 98 S.Ct. at 2965 n. 12 (trial court may exclude as irrelevant evidence not bearing upon defendant’s character, record, or the circumstances of the offense). As Justice O’Connor noted in her concurring opinion in Franklin, “[njothing in Lockett or Ed-dings requires that the sentencing authority be permitted to give effect to evidence beyond the extent to which it is relevant to the defendant’s character or background or the circumstances of the offense.” 108 S.Ct. at 2333 (O’Connor, J., concurring in judgment).
The same is true of the statements at issue here. The statements by Coleman’s wife and sister-in-law do not in any way bear on Coleman’s background or the circumstances of the offense. The only way they could be considered to bear on Coleman’s character is to assume that a wife or sister-in-law would not love him unless he had some good character traits. We doubt that a mother’s love is given only to those children who deserve it; we doubt that a wife (or even a sister-in-law) expresses love only for a husband who deserves it. And even if the statement of love implies some good character traits it does not identify what they are. Thus, we hold that the statements here do not constitute “relevant mitigating evidence” on which a jury could base sympathy.
This situation is analogous to Robison, in which we recently held that testimony of a relative of the victim urging the jury to reject the death penalty was properly denied because it was not relevant mitigating evidence. See 829 F.2d at 1504. Guided by Brown, Franklin, and Robison, we hold that Coleman’s constitutional rights were not violated by the trial court’s anti-sympathy instruction. The anti-sympathy instruction was erroneous on its face, but did not rise to a violation of the Constitution, as construed in Brown, because there was no relevant mitigating evidence to weigh against the substantial evidence of valid aggravating circumstances. See Parks, 860 F.2d at 1553.
Coleman’s argument that the trial court’s anti-sympathy instruction negated his counsel’s plea for mercy or sympathy during his closing argument is troubling. Coleman’s counsel did not refer to any evidence produced by either the prosecution or the defense as providing a basis for the jury’s sympathy. With respect to weighing the circumstances of the offense in the sentencing decision, the jury was instructed, consistent with Oklahoma law, see Parks v. State, 651 P.2d 686, 694 (Okla.Crim.App.1982), cert. denied, 459 U.S. 1155, 103 S.Ct. 800, 74 L.Ed.2d 1003 (1983), that if the jury found one or more aggravating circumstances existed beyond a reasonable doubt, it was “authorized to consider imposing a sentence of death.” VII R. 991 (emphasis added). Thus, under Oklahoma law, even if the jury finds that the aggravating circumstances outweigh the mitigating circumstances, it is still free to decline to impose the death penalty. See Burrows v. State, 640 P.2d 533, 544 (Okla.Crim.App.1982). We think the instructions sufficiently preserved, under the Constitution, the jury’s responsibility and authority to exercise its discretion in the sentencing determination. See Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976) (Opinion of Justices Stewart, Powell and Stevens); Jurek v. Texas, 428 U.S. 262, 271, 96 S.Ct. 2950, 2956, 49 L.Ed.2d 929 (1976) (Opinion of Justices Stewart, Powell and Stevens).
Although we do not approve of the instruction given, we hold that Coleman’s constitutional rights were not violated by the anti-sympathy instruction in the particular circumstances of this case.
V
A
Improper Prosecution Argument
Relying upon Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), Coleman argues that the prosecutor improperly discussed the victim during closing argument at the guilt stage. He asserts that the prosecutor intended to inflame the jury and induce it to base its sentencing decision on the good character of the victim and not on the background, character, and culpability of Coleman.
In Booth, the Supreme Court reviewed a procedure whereby the state parole division prepared a presentence report, one part of which included details of the murder’s effect on the victim and the victim’s family. The report was then admitted into evidence for the sentencer’s consideration during the penalty phase of a capital trial. Id. 107 S.Ct. at 2530-31. The Supreme Court held that this “victim impact statement” introduced an arbitrary and impermissible factor into the jury’s sentencing decision. The Court stated that for a sentencer permissibly to consider factors other than the defendant’s record, character, and the circumstances of the particular crime, the other factors must bear some relationship to the defendant’s “ ‘personal responsibility and moral guilt.’ ” Id. at 2533 (quoting Enmund v. Florida, 458 U.S. 782, 801, 102 S.Ct. 3368, 3378, 73 L.Ed.2d 1140 (1982)). While noting that some types of information regarding a victim may be relevant because “they relate directly to the circumstances of the crime,” Booth, 107 S.Ct. at 2535 n. 10, and recognizing that the trial judge continues to have the responsibility of deciding, under Fed.R.Evid. 403 or an analogous state evidentiary rule, whether prejudice from evidence outweighs its probative value, the Court rejected “the contention that the presence or absence of emotional distress of the victim’s family, or the victim’s personal characteristics, are proper sentencing considerations in a capital case.” Id. at 2535 (footnote omitted).
Regarding the prosecutor’s arguments at the guilt stage of the present trial, the Oklahoma Court of Criminal Appeals noted that the comments were “unnecessary and not to be condoned.” See Coleman v. State, 668 P.2d 1126, 1135 (Okla.Crim.App.1983), cert. denied, 464 U.S. 1073, 104 S.Ct. 986, 79 L.Ed.2d 222 (1984). We agree. Our role in reviewing the comments of a state prosecutor, however, is limited. Because the prosecutor’s arguments did not infringe on any specific constitutional right of Coleman, such as his right to introduce mitigating evidence, see Eddings v. Oklahoma, 455 U.S. 104, 113, 102 S.Ct. 869, 876, 71 L.Ed.2d 1 (1982), we only review the prosecutor’s comments for fundamental fairness and whether they denied Coleman due process. See Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974) (“[N]ot every trial error or infirmity which might call for application of supervisory powers correspondingly constitutes a ‘failure to observe that fundamental fairness essential to the very concept of justice.’ ”) Id. at 642, 94 S.Ct. at 1871 (quoting Lisenba v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 289, 86 L.Ed. 166 (1941)). Booth was an Eighth Amendment case, concerning the introduction of state-sanctioned evidence, and does not alter this rule that we may only review prosecutorial argument for fundamental fairness.
We recognize that “[o]ur duty to search for constitutional error with painstaking care is never more exacting than it is in a capital case,” Burger v. Kemp, 483 U.S. 776, 107 S.Ct. 3114, 3121, 97 L.Ed.2d 638 (1987), but we can find no denial of due process in the prosecutor’s comments during his closing argument at the guilt stage of this trial. The present case bears a striking similarity to Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986), in which the Supreme Court, in finding that a prosecutor’s closing argument at the guilt stage of a capital case did not render the trial fundamentally unfair, focused on the fact that “[t]he prosecutors’ argument did not manipulate or misstate the evidence, nor did it implicate other specific rights of the accused such as the right to counsel or the right to remain silent.” Id,, 477 U.S. at 181-82, 106 S.Ct. at 2472-73. The Court placed special emphasis on the fact that the allegedly improper comments were made at the guilt stage of the trial, “greatly reducing the chance that they had any effect at all on sentencing.” Id. at 183 n. 15, 106 S.Ct. at 2473 n. 15. We cannot find that the prosecutor’s guilt-stage arguments rendered Coleman’s sentencing fundamentally unfair, and we therefore find no constitutional error.
B
Introduction of Evidence
Also relying on Booth, Coleman argues that at the guilt stage, the trial court improperly allowed into evidence photographs that showed the victim and his family, thereby constituting an impermissible appeal to the jury’s emotions.
This argument is equally without merit. Even though this issue involves the admission of evidence, Coleman has not succeeded in showing that introduction of the photographs is sufficiently analogous to a victim impact statement to constitute an Eighth Amendment violation. The photos were introduced at the guilt stage, not the sentencing stage, so there is a reduced chance the photos had any effect on sentencing. Darden, All U.S. at 183 n. 15, 106 S.Ct. at 2473. In addition, the photos and other contents of the wallet were introduced for the purposes of proving ownership by the victims and their identity. The trial court so instructed the jury. The trial court’s decision to admit the photos for this purpose was a matter of state law, insofar as relevancy is concerned, and the court’s limiting instruction removed any significant chance that the evidence might violate petitioner’s Eighth Amendment rights. Thus, we conclude these photos are not sufficiently analogous to the introduction of the victim impact statement in Booth that their admission was constitutional error.
We AFFIRM the district court’s denial of the writ of habeas corpus. In light of the fact that this is a capital case, following the consideration of any rehearing petition that may be filed, when the final order of this court is entered, or when the judgment becomes final without further order and issuance of the mandate of this court which would otherwise occur, we will stay our mandate and execution of petitioner’s death warrant for thirty days pending the filing of a petition for certiorari in the Supreme Court of the United States; if such a petition for certiorari is filed within such time, then the stay of our mandate and of petitioner’s execution will continue until disposition by the Supreme Court of the petition for certiorari.
The other four aggravating circumstances found by the jury were: (1) Coleman was previously convicted of a felony involving the use or threat of violence to the person; (2) Coleman knowingly created a great risk of death to more than one person; (3) the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution; and (4) Coleman probably would continue to commit criminal acts of violence that would constitute a continuing threat to society. Coleman, 802 F.2d at 1235 n. 6; see also Okla.Stat.Ann. tit. 21, § 701.12(1), (2), (5), (7).
In this court’s opinion rejecting the first application for habeas relief, see Coleman v. Brown, 802 F.2d 1227 (10th Cir.1986), cert. denied, 482 U.S. 909, 107 S.Ct. 2491, 96 L.Ed.2d 38 (1987), we rejected the following allegations: (1) that the trial court improperly excluded potential jurors who were opposed to the death penalty, id. at 1231-32; (2) that the exclusion of those jurors denied Coleman his right to a jury composed of a fair cross-section of the community, id. at 1333; (3) that Coleman was denied effective assistance of counsel at both the guilt and sentencing stages of his trial, id. at 1233-36; (4) that Coleman suffered prejudice from the trial court’s failure to appoint an investigator to aid him in the preparation of his defense, id. at 1236-37; (5) that the prosecutor’s improper statements during closing arguments at both the guilt and the sentencing stages denied Coleman a fair trial, id. at 1237-42; and (6) that the trial court erred in not giving Coleman an evidentia-ry hearing on his habeas petition, id. at 1242.
Because Coleman was represented by counsel on his first petition, he is charged with the knowledge of reasonably competent counsel. See Jones, 722 F.2d at 167; Daniels v. Blackburn, 763 F.2d 705, 707 (5th Cir.1985). We do not decide whether, if Coleman had represented himself on the prior petition, he might be chargeable with a different level of knowledge. Cf. Jones, 722 F.2d at 167.
This circuit has not decided previously the standard of review to apply to a district court’s dismissal of a petition on abuse of the writ grounds. At least one other circuit has determined that abuse of discretion is the standard. See Jones, 722 F.2d at 169. We do not decide the question today, because we find the district court should have addressed the merits of Coleman's claim under any standard that might be applied.
The Sykes opinion did state, however, that the cause and prejudice analysis of Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed. 2d 149 (1976), might excuse a state procedural default. Sykes, 433 U.S. at 84-85, 97 S.Ct. at 2505. In addition, a federal court is free to exercise its independent judgment in disposing of the federal claim if it finds that the state courts have in fact considered it on the merits. Id. at 87, 97 S.Ct. at 2506. Because we find no consistent application of a procedural default rule by the Oklahoma courts when considering a change in the law after an earlier appeal, we need not reach Coleman’s argument that he met the cause and prejudice requirements necessary to overcome a procedural default. See Dutton v. Brown, 812 F.2d 593, 596 (10th Cir.) (en banc), cert. denied, — U.S. -, 108 S.Ct. 116, 98 L.Ed.2d 74 (1987).
In Castleberry v. State, 590 P.2d 697, 701 (Okla.Crim.App.1979), the court held that even though the petitioner’s Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), argument had been considered on direct appeal, an intervening decision of the U.S. Supreme Court, clarifying Brady, rendered the issue "inadequately raised” on direct appeal. See Okla. Stat.Ann. tit. 22, § 1086 (court may not reach merits of allegations in second petition "unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the prior application”) (emphasis added). Inasmuch as Castle-berry concerns the "inadequately raised" prong of the statute, it is not directly on point with the instant case. It is, however, persuasive in showing that an intervening change or clarification in the law entitles a petitioner to consideration of his claim at the post-conviction stage.
The court in this case instructed the jury as follows: "You are further instructed that the term ‘heinous,’ as that term is used in these instructions means extremely wicked or shockingly evil, and that ‘atrocious’ means outrageously wicked and vile; and ‘cruel’ means designed to inflict a high degree of pain, utter indifference to or enjoyment of, the suffering of others; pitiless.” Jury Instruction 8, Brief of Petitioner/Appellant, App. E; cf. Cartwright, 822 F.2d at 1488 & n. 6.
In Marks, the Supreme Court held that overruling its own precedent was unforeseeable for due process purposes. 430 U.S. at 194-95 & n. 10, 97 S.Ct. at 994 & n. 10. See also Devine, 866 F.2d at 345. We do not doubt that Stouffer's overruling of prior Oklahoma precedent was unforeseeable for purposes of ex post facto analysis.
The statute was rendered unconstitutional by the Supreme Court’s decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). See Donaldson v. Sack, 265 So.2d 499 (Fla.1972).
The state also urges us to review the evidence to determine whether, under the narrowing construction of Stouffer now applied by the Oklahoma courts, the murder in this case still qualifies as heinous, atrocious, or cruel. As we construe the request, it goes beyond harmless-error review, in which we ask whether beyond a reasonable doubt the mistake did not affect the jury’s decision, and requires our independent evaluation, under some lesser standard, of the appropriateness of the death penalty in the circumstances of the case. In light of our disposition of the case, we find it unnecessary to determine whether we may engage in such a determination. We note, however, that the United States Supreme Court declined to engage in such analysis when the State of Oklahoma there made what appears to be a similar argument. Cartwright, 108 S.Ct. at 1859.
In some contexts, the Supreme Court has reversed death sentences because it could not conclude that the constitutional error had "no effect” on the jury’s deliberations or sentencing decision. See Skipper v. South Carolina, 476 U.S. 1, 8, 106 S.Ct. 1669, 1673, 90 L.Ed.2d 1 (1986) ("Nor can we confidently conclude that credible evidence [offered by petitioner in mitigation] would have had no effect upon the jury’s deliberations.”); Caldwell v. Mississippi, 472 U.S. 320, 341, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985) ("Because we cannot say that this effort [to minimize the jury’s sense of responsibility] had no effect on the sentencing decision, that decision does not meet the standard of reliability that the Eighth Amendment requires.’’). In cases in which the Court has ruled on a jury’s consideration of an invalid aggravating circumstance, however, the Court has mandated no such standard. See Barclay, 463 U.S. at 958, 103 S.Ct. at 3429; Zant, 462 U.S. at 888-90, 103 S.Ct. at 2748-50. In Skipper, the jury was denied evidence it properly might consider in sentencing and in Caldwell the jury was misled as to its role in sentencing. This seems logically different from the aggravating circumstance cases in which the jury had adequate and independent grounds for imposing the death sentence — the other aggravating circumstances.
Only Instructions 9 and 10 given by the trial court are relevant to our determination of whether that court improperly foreclosed the jury’s consideration of mitigating evidence. Instructions 9 and 10, in relevant part, are as follows: Instruction 9: "You are instructed that mitigating circumstances are not specifically enumerated in the statutes of this State but the law of this State sets up certain minimum mitigating circumstances you shall follow as guidelines in determining which sentence you impose in this case. You shall consider any or all of these minimum mitigating circumstances which you find apply to the facts and circumstances of this case. You are not limited in your consideration to these minimum mitigating circumstances. You may consider any additional mitigating circumstance, if any, you find from the evidence in this case. What are and what are not additional mitigating circumstances is for you the jury to determine. The following are the minimum mitigating circumstances as provided by law____” Instruction 10: "In arriving at your determination as to what sentence is appropriate under the law, you are authorized to consider all the evidence received here in open Court presented by the state and the defendant throughout the trial of Stage One or this Stage Two of the case before you. You are the judges of the facts. The importance and worth of the evidence is for you to decide. You should not allow sympathy, sentiment or prejudice to affect you in reaching your decision. You should avoid any influence of passion, prejudice or any other arbitrary factor when imposing sentence. You should do your duties as jurors faithfully, as you swore you would do. The Court has made rulings during the second part of this trial. In ruling, the Court has not in any way suggested to you, nor intimated in any way, what you should decide. The Court does not express any opinion whether or not statutory aggravating circumstances or mitigating circumstances did or did not exist nor does the Court suggest to you in any way the punishment to be imposed by you." Brief of Petitioner/Appellant, App. E.
The trial court instructed the jury that in imposing sentence it could consider “all the evidence received here in open Court presented by the state and the defendant throughout the trial of Stage One or this Stage Two of the case before you.” See note 11, ante. This instruction was permissible under Oklahoma law. See Brogie v. State, 695 P.2d 538, 542 (Okla.Crim.App.1985); see also Gregg v. Georgia, 428 U.S. 153, 164, 96 S.Ct. 2909, 2921, 49 L.Ed.2d 859 (1976) (opinion of Stewart, Powell, & Stevens, JJ.).
Instruction 1 in the sentencing stage stated in pertinent part that "[i]t is now your duty to determine the penalty which shall be imposed for this offense____" Instruction 7 stated: “You are instructed that in the event you unanimously find that one or more of these aggravating circumstances existed beyond a reasonable doubt, then you would be authorized to consider imposing a sentence of death. If you do not unanimously find beyond a reasonable doubt one or more of the statutory aggravating circumstances existed, then you would not be authorized to consider the penalty of death. In that event the sentence would be imprisonment for life. If you do unanimously find one or more of these aggravating circumstances existed beyond a reasonable doubt and you further find that such aggravating circumstance or circumstances is outweighed by the finding of one or more mitigating circumstances, the death penalty shall not be imposed. In that event the sentence would be imprisonment for life.” VII R. 991 (emphasis added).
We are not directly asked here to reconsider our holding in Coleman I that defense counsel acted competently even though he introduced no mitigating evidence at the penalty phase of the trial. 802 F.2d at 1235. We do review, sua sponte, that issue in the context of the anti-sympathy instruction of which Coleman now complains. Using hindsight, had counsel anticipated that the trial court's instruction would violate the rule set out in our Parks decision, no doubt he would have tried to introduce some mitigating evidence. That proves too much, however, because, had either Parks or Brown been decided at the time of this trial, no doubt the court would have given a different sympathy instruction. Competency of counsel must be judged by what he reasonably should have known at the time of the trial in 1979. The same reasoning that has led the state not to oppose consideration of this issue in this habeas petition as an abuse of the writ, and that has compelled us to entertain the issue on its merits, dictates that counsel was not incompetent for failing to anticipate the issue at the 1979 trial. Additionally, we note, as we did in Coleman I, counsel’s response in state post-conviction hearings on whether mitigating evidence existed, that he could not even put members of Coleman’s family on the stand. See Coleman /, 802 F.2d at 1235. .During his closing argument at the guilt stage, the prosecutor referred to the victim's personal traits, his possible thoughts at the time of his murder, and the fact that the victim’s relatives also suffered as a result of the defendant’s crime.
The state argues that Coleman’s contention regarding the prosecutor’s argument is foreclosed by the abuse of the writ doctrine, see ante, pp. 1379-1382, because on his first habeas application, Coleman argued that the prosecutor’s closing argument at the guilt stage "attempted to inflame the jury and evoke sympathy for the victim.” Coleman I, 802 F.2d at 1237. We rejected that argument in Coleman 1, finding that although the arguments were improper, they did not rise to the level of constitutional error. Id. at 1238. We have serious doubts whether the argument based on Booth represents a sufficiently new legal theory to avoid treatment as a successive petition. Booth concerned the introduction of state-sanctioned evidence, not prose-cutorial arguments. Nevertheless, we choose to discuss briefly the merits of Coleman’s argument. The state also argues that procedural default bars Coleman from raising any claim regarding the prosecutor's argument or the introduction of evidence argument next considered, because counsel made no contemporaneous objection to the prosecutor’s argument. See Parks v. State, 651 P.2d 686, 693 (Okla.Crim.App.1982), cert. denied, 459 U.S. 1155, 103 S.Ct. 800, 74 L.Ed.2d 1003 (1983). Because of our disposition on other grounds, we will not discuss the state’s procedural default argument. See Moore v. Kemp, 824 F.2d 847, 851 n. 5 (11th Cir.1987), cert. granted sub nom. Zant v. Moore, — U.S. -, 108 S.Ct. 1467, 99 L.Ed.2d 697 (1988); Pierre v. Shulsen, 802 F.2d 1282, 1283 n. 3 (10th Cir.1986) (unnecessary to decide whether petitioner adequately preserved all issues in state courts if petitioner’s “argument lacks all merit”), cert. denied, 481 U.S. 1033, 107 S.Ct. 1964, 95 L.Ed.2d 536 (1987).
See also Kirkpatrick v. Blackburn, 777 F.2d 272, 284-85 (5th Cir.1985), cert. denied, 476 U.S. 1178, 106 S.Ct. 2907, 90 L.Ed.2d 993 (1986); Brooks v. Kemp, 762 F.2d 1383, 1409 (11th Cir.1985) (“The fact that there is a victim, and facts about the victim properly developed during the course of the trial, are not so far outside the realm of ‘circumstances of the crime’ that mere mention will always be problematic. It is not necessary that the sentencing decision be made in a context in which the victim is a mere abstraction.”), cert. denied, 478 U.S. 1022, 106 S.Ct. 3337, 92 L.Ed.2d 742 (1986).
Charles Troy COLEMAN, Petitioner-Appellant, v. James L. SAFFLE, Warden, Oklahoma State Penitentiary, McAlester, Oklahoma, Respondent-Appellee.
No. 90-7043.
United States Court of Appeals, Tenth Circuit.
Aug. 28, 1990.
As Amended Sept. 4, 1990.
Certiorari Denied Sept. 9, 1990.
See 111 S.Ct. 22.
Mandy Welch, Deputy Appellate Public Defender, Norman, Okl., for petitioner-appellant.
Robert A. Nance, Asst. Atty. Gen., Oklahoma City, Okl. (Robert H. Henry, Atty. Gen. of Oklahoma, and Sandra D. Howard, Asst. Atty. Gen., Oklahoma City, Okl, were with him on the brief), for respondent-appellee.
Before HOLLOWAY, Chief Judge, and MOORE and TACHA, Circuit Judges.
[OPINION BY PER CURIAM. type=majority]
PER CURIAM.
Charles Troy Coleman, petitioner-appellant, was convicted of first degree murder and sentenced to death by an Oklahoma jury in 1979. He appeals from the district court’s denial of his third petition for federal habeas relief and his motions for an •evidentiary hearing and stay of execution. Petitioner also seeks a certificate of probable cause from this court, and a stay of his execution scheduled September 10, 1990.
The issues on appeal are (1) whether petitioner was deprived of a constitutionally adequate determination of his competency to stand trial because the state trial court did not sua sponte conduct an eviden-tiary hearing or make an independent judicial determination of petitioner’s competency; (2) whether petitioner was deprived of his right to a fair and reliable sentencing determination because the state hospital that performed the competency evaluation did not disclose petitioner’s medical records to his counsel or to the court, which records might have been used as mitigating evidence at the sentencing stage of his trial; (3) whether petitioner was denied effective assistance of counsel; (4) whether petitioner’s failure to raise these issues in his prior habeas petitions constitutes an abuse of the writ; and (5) whether the district court erred in not granting petitioner an evidentiary hearing.
I
The factual and procedural histories of this ease are adequately set out in our earlier opinions affirming denial of petitioner’s first and second petitions for habeas relief. See Coleman v. Saffle, 869 F.2d 1377 (10th Cir.1989) (Coleman II), cert. denied, — U.S. -, 110 S.Ct. 1835, 108 L.Ed.2d 964 (1990); Coleman v. Brown, 802 F.2d 1227 (10th Cir.1986) (Coleman I), cert. denied, 482 U.S. 909, 107 S.Ct. 2491, 96 L.Ed.2d 383 (1987). We repeat only those facts necessary to our resolution of this appeal.
Petitioner was tried and convicted in the district court of Cherokee County, Oklahoma, following a change of venue from Muskogee County for the trial. Approximately six months before trial, petitioner’s trial attorney filed a motion requesting a court-ordered evaluation of Coleman’s sanity. Ill R. at 187. After a brief hearing on the motion, Associate District Judge Burris entered an order finding that “a doubt has arisen [as] to the present sanity of the defendant,” and ordering Coleman’s commitment to Eastern State Hospital “for observation and examination for a period not to exceed sixty (60) days.” Ill R. at 187. Petitioner was admitted to Eastern State Hospital on March 12, 1979, and released approximately one month later on April 10, 1979. On April 6, 1979, the Director and Chief Forensic Psychiatrist of Eastern State Hospital, Dr. R.D. Garcia, wrote a single page letter (erroneously dated March 6, 1979) to Judge Burris advising the court that it was the opinion of the hospital staff that petitioner was competent to stand trial. Id. Dr. Garcia’s letter states that Coleman “does have sufficient ability to consult with an attorney and he does have a rational as well as actual understanding of the proceedings.” Id.
We are referred to no indication in the record that petitioner’s competency to stand trial was questioned by his attorney or the trial court at any other time during the trial proceedings. Cf., e.g., VII R. at 40. Petitioner’s conviction and death sentence were affirmed by the Oklahoma Court of Criminal Appeals. Coleman v. State, 668 P.2d 1126 (Okla.Crim.App.1983), cert. denied, 464 U.S. 1073, 104 S.Ct. 986, 79 L.Ed.2d 222 (1984). Petitioner then filed an application for post-conviction relief in state district court. That court denied the application in an unpublished order and the Oklahoma Court of Criminal Appeals affirmed. Coleman v. State, 693 P.2d 4 (Okla.Crim.App.1984).
After this court affirmed the denial of Coleman’s first habeas petition, see Coleman I, 802 F.2d 1227, but before this court heard argument on Coleman’s second petition for federal habeas relief, petitioner’s attorney, on or about August 21, 1987, obtained for the first time Eastern State Hospital’s records of its 1979 court-ordered examination of petitioner. On September 23, 1987, petitioner, acting through his present attorney, filed a motion to remand the Coleman II habeas appeal then pending in this court to the federal district court in order to raise new claims based upon the newly discovered medical records. See Motion to Remand to District Court in No. 87-2011 (filed Sept. 23, 1987). Petitioner also requested that this court instruct the federal district court to hold the proceedings in abeyance pending exhaustion in state court of the new claims, and that petitioner be permitted to amend his habe-as petition after exhaustion of state remedies.
The pending appeal in Coleman II was argued and submitted to this court on October 2, 1987. We took the motion for remand under advisement. By letter dated October 25, 1987, petitioner’s attorney advised this court that petitioner had initiated state post-conviction proceedings in which he raised the claims predicated on the newly discovered evidence. Having been advised that the state post-conviction proceedings were in progress, this court proceeded to file its opinion on March 6, 1989, affirming the denial of habeas relief; we denied petitioner’s motion to remand as moot on April 11, 1989.
The state district court conducted an evi-dentiary hearing on the new claims based on the medical issues, asserted in petitioner’s third application for post-conviction relief, on December 17 and 18, 1987, and January 22, 1988. The state district court denied relief in an unpublished order which was affirmed by the Oklahoma Court of Criminal Appeals in an unpublished decision. The Supreme Court denied certiorari. Coleman v. Oklahoma, — U.S. -, 110 S.Ct. 208, 107 L.Ed.2d 162 (1989).
A fourth application for post-conviction relief was filed in the district court of Muskogee County, attacking the reliability of Dr. Garcia’s determination of Coleman’s competency to stand trial on the ground that Dr. Garcia’s own alleged mental illness distorted his interpretation of data and impaired his diagnostic judgment. The state district court denied relief without a hearing, and the Oklahoma Court of Criminal Appeals affirmed that decision without requesting briefing by the parties. The Supreme Court denied Coleman’s petition for certiorari on that matter on June 11, 1990. — U.S. -, 110 S.Ct. 2633, 110 L.Ed.2d 652 (1990).
After having exhausted his state court remedies, Coleman filed his third petition for federal habeas relief in the Eastern District of Oklahoma on June 18, 1990. The court denied relief in an unpublished order on July 11, 1990, and this appeal followed.
II
A primary issue on this appeal is whether the medical evidence in question which was in records of Eastern State Hospital at Vinita, Oklahoma, was “material” under the opinions of the Supreme Court so that its disclosure was required as exculpatory evidence for the defendant. See Pennsylvania v. Ritchie, 480 U.S. 39, 57, 107 S.Ct. 989, 1001-02, 94 L.Ed.2d 40 (1986); United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383-84, 87 L.Ed.2d 481 (1985) (Opinion of Blackmun, J.); United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963).
As noted, petitioner’s state trial attorney applied for commitment of petitioner for a mental examination, this was ordered by a state associate district judge, and a letter from the state hospital’s chief forensic psychiatrist reported that the staff concluded petitioner had sufficient ability to consult with an attorney and that he had a rational and actual understanding of the proceedings against him. However, the detailed medical evaluations and records concerning petitioner were not sent to the judge or counsel. A copy of Dr. Garcia’s letter was sent to the District Attorney, who then furnished a copy to petitioner’s trial counsel, Mr. Pearson.
The additional medical evidence included admitting notations, recorded by Dr. Garcia on March 13, that diagnosis was “Deferred.... DIAGNOSTIC IMPRESSION: R/O [rule out] Depressive reaction, situational. (Retain) Schizophrenia, chronic undifferentiated type in partial remission, if not complete.” Ill R. at 197. That early notation also stated “He may be considered competent in a psychiatric and legal point of view at this point but questionable.” On March 14 a psychological evaluation was done by Dr. Quijano, a clinical psychologist, and Dr. McGuffey, a psychologist, both members of the hospital staff. Their observations, made some two days after petitioner’s admission, included a statement that “[Coleman] seemed to have an adequate understanding of courtroom procedures. When asked if he felt he was mentally competent, Charles stated he thought so and did not feel like he needed to be in a mental hospital; however, he noted ‘People have different ideals [sic] about mental problems.’ Charles is not considered competent to stand trial at this time due to the apparent underlying schizophrenic thinking with a predominance of paranoid projections.” Ill R. at 199.
The testimony at the state court 1987 post-conviction hearing included that of Dr. Quijano, and defendant’s murder trial attorney, Mr. Pearson, and several other witnesses. It was noted by Dr. Quijano that the staff had a bias in favor of finding the petitioner incompetent to stand trial and that this was a reason for keeping him for observation for approximately a month, instead of the customary two weeks’ period. Dr. Quijano testified that “the staff struggled with this [Mr. Coleman’s competency] because ... you have Charles Coleman reporting symptoms which are not overtly verified.” VII R. at 202. On March 27, 1979, a further psychological evaluation was made in the records by Dr. Quijano and Dr. McGuffey and they noted that the results of their investigation would “tend to suggest intellectual deterioration in relation to psychogenic factors rather than organic impairment. Considering Charles’ past history of reported seizure activity, would tend to indicate an underlying organic brain syndrome. In addition, however, there are indications of an underlying chronic schizophrenic process which appears to be in partial remission at this time.” This March 27 evaluation was concerned primarily with suspected organic mental impairment. The evaluation stated: “WAIS. Charles obtained a Verbal IQ of 72, a Performance IQ of 64, and a Full Scale IQ of 66, suggesting that he is presently functioning in the range of mild to borderline mental retardation.” Ill R. at 200. We must agree that such evidence was relevant and admissible, if it had been available and had been offered for petitioner at the penalty stage. Penry v. LYNaugh, — U.S. -, 109 S.Ct. 2934, 2949, 106 L.Ed.2d 256 (1989).
The final detailed medical record made at the hospital was a Discharge Summary, apparently made on the release date of April 10, 1979. This included a final diagnosis: “Psychiatric: (1) Non-psychotic organic brain syndrome, brain trauma, gross force (age 9), associated with convulsive disorder. (2) Antisocial personality, by history. (3) Malingering.” This Discharge Summary was signed by Dr. Garcia and it included a statement: “Potentially dangerous not only to himself but to others as an antisocial individual.” It concluded that petitioner was: “Competent in a psychiatric and legal point of view, knowing right from wrong and capable of testifying in his own defense, with actual and factual understanding in the court proceeding.”
In his testimony at the 1987 state post-conviction proceeding, Dr. Quijano stated that he was in agreement with the Discharge Summary’s diagnosis, paragraphs 1, 2 and 3, as quoted above. However, he “would include retained schizophrenic chronic undifferentiated type in remission.” VII R. at 165. Dr. Quijano testified that he did “not recall and the chart does not reflect disagreement among the staff.” Id.
It is true that the hospital medical records included numerous statements, principally notations made before the staff’s final evaluations, which are supportive of arguments now made by the petitioner concerning his mental condition. However, in making an inquiry as to whether evidence was “material” in evaluating a due process claim of alleged nondisclosure of material evidence under United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3384-85, 87 L.Ed.2d 481 (1985) (Opinion of Blackmun, J.), “we must avoid concentrating on the suppressed evidence in isolation. Rather, we must place it in the context of the complete record.” Trujillo v. Sullivan, 815 F.2d 597, 613 (10th Cir.1987), cert. denied, 484 U.S. 929, 108 S.Ct. 296, 98 L.Ed.2d 256 (1987).
In this light we must consider the total picture which includes other factors related to the medical records, factors unfavorable to petitioner’s position. First, the April 10, 1979, Discharge Summary for the hospital included this statement on petitioner’s mental condition: “schizophrenia, chronic undifferentiated type, in partial remission, if not complete.” (Emphasis added.) Second, the April 10, 1979, Discharge Summary had a concluding statement also that petitioner was “Competent in a psychiatric and legal point of view, knowing right from wrong and capable of testifying in his own defense, with actual and factual understanding in the court proceeding.” As mentioned earlier, this view was stated in the April 6, 1979, letter to Judge Burris from the Chief Forensic Psychiatrist at the hospital, Dr. Garcia: “We have completed our evaluation of Mr. Coleman and it is the opinion of our staff that he does have sufficient ability to consult with an attorney and he does have a rational as well as actual understanding of the proceedings against.” [sic]. III R. at 508. Significantly, Dr. Garcia’s conclusion of competence came at the end of petitioner’s hospitalization, whereas the evaluations expressing doubt as to petitioner’s competence to stand trial, or a conclusion of incompetence, were made relatively early in his hospitalization.
Third, the medical records contained some damaging statements of a different sort, unfavorable to petitioner if presented to the jury. The Discharge Summary of April 10, 1979, p. 2, stated: “Potentially dangerous not only to himself but to others as an antisocial individual.” The medical records also included an unfavorable much earlier letter of December 7, 1962, concerning petitioner when 15 years of age. This letter stated that petitioner had pulled a gun on an officer when arrested and that ■ his actions on impulse made him “unable to live by the rules of our society” and that he was “dangerous to Charles as a person and to the community.” III R. at 305. Such unfavorable evidence from the medical records would have added force to the damaging evidence of petitioner’s violent conduct. There was evidence before the jury at trial that petitioner shot and killed both Mr. and Mrs. Seward with a .28 gauge shotgun. Coleman I, 802 F.2d at 1231, cert. denied, 482 U.S. 909, 107 S.Ct. 2491, 96 L.Ed.2d 383 (1987). The State had alleged future dangerousness as an aggravating circumstance and it was proper to argue that Coleman constituted a continuing threat to society. Id. at 1240. At the sentencing stage, there was also evidence that after his arrest for the Sewards’ homicides, petitioner escaped from jail and the next day cut the throat and hand of a police officer and told another inmate in jail he assumed the officer would die; Coleman told the officer, however, after their struggle that he was not going to hurt him. Coleman II, 869 F.2d at 1389. Two days later petitioner shot and killed a man in a park in Tulsa, and later kidnapped an Arizona detective, leaving him handcuffed in his car in the desert. Id. at 1390. Thus, statements we have noted in the medical records about petitioner’s potential dangerousness would have carried damaging implications which the State was arguing in the sentencing phase.
Fourth, we note that the Discharge Summary’s final diagnosis included the unfavorable conclusion of “Malingering.” Similarly, much earlier notations for December 22, 1962, during petitioner’s hospitalization at Eastern State when he was 15 years old, included a statement that “He feigns pain to get attention.” III R. at 417.
Fifth, we note that there were five aggravating circumstances found by the jury in petitioner’s sentencing phase of trial: (1) the defendant was previously convicted of a felony involving the use or threat of violence to the person; (2) the defendant knowingly created a risk of death to more than one person; (3) the murder was especially heinous, atrocious or cruel; (4) the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution; and (5) the existence of probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. The “especially heinous, atrocious, or cruel” circumstance was held to be applied unconstitutionally in Oklahoma, Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988), and must be disregarded. In Coleman II, 869 F.2d at 1390, we held that the jury’s inclusion of that invalid circumstance in its sentencing determination was harmless error. Nevertheless four valid aggravating circumstances remained which amply supported the death penalty and which must be considered as part of the circumstances here.
In sum, the medical records whose nondisclosure is complained of included several unfavorable statements within those records, as noted above, such as references to petitioner’s potential dangerousness to himself and others. Along with these, we must consider the damaging guilt and sentencing stage evidence of petitioner’s repeated violent acts. Considered in light of all the circumstances, we must conclude that even if the medical records had been disclosed and used as favorable evidence as to petitioner’s mental condition to argue sympathetically for him at the sentencing stage, nevertheless there was no “reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different,” and there was no such “probability sufficient to undermine confidence in the outcome.” Pennsylvania v. Ritchie, 480 U.S. 39, 57, 107 S.Ct. 989, 1001, 94 L.Ed.2d 40 (1986) (quoting Bagley, 473 U.S. at 682, 105 S.Ct. at 3383) (Opinion of Blackmun, J.).
Ill
A.
Petitioner further argues that he was deprived of a consitutionally adequate determination of competency because (1) the state trial court did not sua sponte conduct an evidentiary hearing on petitioner’s competency to stand trial, and (2) the court failed to make an independent judicial determination of petitioner’s competency to stand trial. We must disagree.
The parties do not disagree concerning the underlying due process right not to be tried while incompetent, or the legal standard for determining competency to stand trial. The question presented is whether, in light of the information available to the trial court, “the [court’s] failure to make further inquiry into petitioner’s competence to stand trial denied him a fair trial.” Drope v. Missouri, 420 U.S. 162, 174-75, 95 S.Ct. 896, 905, 43 L.Ed.2d 103 (1975).
The Oklahoma statutes in effect at the time of petitioner’s trial and conviction did not require the trial court to conduct a competency hearing unless the defendant’s sanity was in doubt during trial. Compare Okla.Stat. tit. 22 §§ 1171-1173 (1971) (repealed 1980) with id. §§ 1162-1163. However, state procedures must be adequate to protect a defendant’s right not to be tried or convicted while incompetent. Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836, 838, 15 L.Ed.2d 815 (1966); see also Drope v. Missouri, 420 U.S. at 172, 95 S.Ct. at 904. Due process requires a trial court to conduct a competency hearing sua sponte whenever the “evidence raises a bona fide doubt as to the defendant’s competence to stand trial.” Pate, 383 U.S. at 385, 387, 86 S.Ct. at 842, 843; see also Drope v. Missouri, 420 U.S. at 180-81, 95 S.Ct. at 908 (reiterating the Robinson due process standard and explicitly recognizing a trial judge’s constitutional obligations to resolve competence issues and to be alert before and during trial to evidence suggesting a defendant’s possible incompetence).
The Court has acknowledged that there are “no fixed or immutable signs which invariably indicate the need for further inquiry to determine fitness to proceed,” 420 U.S. at 180, 95 S.Ct. at 908, but has recommended that the factfinder consider “evidence of a defendant’s irrational behavior, his demeanor at trial, and any prior medical opinion on competence to stand trial” in reaching its decision. Id. The Court noted that even one of these factors standing alone may, in some circumstances, be sufficient. Id. Information tending to establish the requisite doubt “need not be presented in a formal motion nor argued by defense counsel nor presented to the judge in the form of admissible evidence.” Lokos v. Capps, 625 F.2d 1258, 1260 (5th Cir.1980); accord Demos v. Johnson, 835 F.2d 840, 843 (11th Cir.), cert. denied, 486 U.S. 1023, 108 S.Ct. 1998, 100 L.Ed.2d 229 (1988).
We have carefully reviewed the record, and conclude that there was insufficient evidence before the trial judge to mandate an evidentiary hearing on petitioner’s competency to stand trial.
The matters before the court included: the information before the judge prior to the commitment, see note 12, including defense counsel’s oral argument in support of his motion for a psychiatric examination, with reference to existing medical records from the State of California and to petitioner’s complaints of seizures and headaches. After the examination the court had Dr. Garcia’s letter of April 6, 1979, in which he reported that the staff had concluded that petitioner was competent to stand trial.
These circumstances are similar to those in United States v. Crews, 781 F.2d 826, 833 (10th Cir.1986). There, the trial court ordered a psychiatric examination, on the government’s motion, but did not hold an evidentiary hearing or make an express finding of competency. Instead, the court relied solely on two psychiatrists’ conclusions that the defendant was competent to stand trial and ordered the defendant to stand trial. The defendant challenged the district court’s failure to hold a competency hearing pursuant to his request under 18 U.S.C. § 4244 (now 18 U.S.C. § 4241), and the court’s failure to make a finding of competency before assigning the case for trial.
This court held that the trial court did not err in failing to hold an evidentiary hearing. 781 F.2d at 833. “[A] trial court need not conduct a competency hearing when there has been only minimal or no evidence of incompetence.” Id. (citing cases). The court held that “[t]o raise a substantial question requiring a competency hearing there must be some evidence to create doubt on the issue. Merely raising the issue is insufficient.” Id. The court concluded as follows:
The only evidence presented to the court before the trial in this case was that defendant was a hospitalized mental patient at the time of the alleged crime and that he suffered from the mental illnesses recited in the reports of Drs. Merrell and Logan. In light of the 'psychiatrists’ conclusions that the defendant was competent to stand trial, however, we cannot say the trial court erred in failing to hold an evidentiary hearing.
Id. (Emphasis added.)
According to Crews, “we must determine ‘whether a reasonable judge, situated as was the trial court judge whose failure to conduct an evidentiary hearing is being reviewed, should have experienced doubt with respect to competency to stand trial’ ” 781 F.2d at 833 (quoting de Kaplany v. Enomoto, 540 F.2d 975, 983 (9th Cir.1976) (en banc), cert. denied, 429 U.S. 1075, 97 S.Ct. 815, 50 L.Ed.2d 793 (1977)). We are persuaded that in light of the information available to the state trial judge here, the state court did not err in failing to hold an evidentiary hearing. After the report back from the hospital, the judge had no real basis for concerns casting doubt on petitioner’s competency to stand trial. The petitioner does not point to record evidence at trial of conduct that was unusual or otherwise suggestive of incompetency. Finally, the testimony of petitioner’s trial counsel at the 1987 state post-conviction hearing seriously undermines the hypothesis that petitioner was unable to consult with his lawyer or that he failed to appreciate the nature of the proceedings against him.
Dr. Garcia’s letter is admittedly concluso-ry and does not reveal the factual basis for the staff’s conclusion or any of the information contained in Coleman’s extensive medical records which might have caused the court to doubt petitioner’s competency. Nevertheless, in the absence of any contrary evidence or other indicia of incompetence, we are not persuaded that the state court’s failure to inquire further into Coleman’s competency to stand trial deprived him of due process. As the Court noted in Drope v. Missouri, “judges must depend to some extent on counsel to bring issues into focus.” 420 U.S. at 176-77, 95 S.Ct. at 906. Petitioner’s trial counsel raised no further objections in this regard, and he testified at the 1987 state post-conviction hearing that he spent “a lot of time” with petitioner and had no reason to doubt Mr. Coleman’s competency to stand trial, and no reason to further investigate his psychiatric history. See VII R. at 44-45, 48, 50, 58, 67.
Petitioner further argues that because the trial court did not hold an evidentiary hearing, its determination of competency was impermissibly based solely on the unsubstantiated conclusions of Dr. Garcia. We disagree. Petitioner’s argument is little more than a restatement of his first contention that the trial court should have conducted a more complete inquiry into his competency to stand trial. We have just rejected that argument as well as its underlying premise that the court’s competency determination was based on insufficient information. While it is true that the court’s determination of competency necessarily depended upon the adequacy of Eastern State Hospital’s competency examination, and upon the accuracy and completeness of Dr. Garcia’s report to Judge Burris, that fact alone does not undermine the reliability or the independence of the court’s ultimate finding of competency. In light of the information then available to the trial judge, and in particular the absence of any indicia of incompetence, the court was entitled to rely on the conclusions of experts. See United States v. Crews, 781 F.2d at 833.
We do not mean to suggest that the trial court should merely accept a psychiatrist’s conclusions without meaningful inquiry where there is doubt as to the reliability of those conclusions, or the completeness and forthrightness of the information conveyed to the court. Nor do we deviate from the principle that “[i]n all ... proceedings leading to the execution of an accused, ... the fact-finder must ‘have before it all possible relevant information about the individual defendant whose fate it must determine.’ ” Ford v. Wainwright, 477 U.S. 399, 413, 106 S.Ct. 2595, 2603-04, 91 L.Ed.2d 335 (1986) (quoting Jurek v. Texas, 428 U.S. 262, 276, 96 S.Ct. 2950, 2958, 49 L.Ed.2d 929 (1976) (plurality opinion)). However, since there was “minimal or no evidence of incompetence,” Crews, 781 F.2d at 833, as here, and no evidence undermining the reliability of Dr. Garcia’s competency evaluation or conclusions, there was no constitutional error.
In sum, we agree with the state court’s conclusion that “the procedures utilized for determining petitioner’s competency and ability to assist counsel in 1979 did not, per se, violate the due process clause of the Fourteenth Amendment.” See App. A at 4.
B.
Finally, we are persuaded that the state court’s determination of petitioner’s competency to stand trial is “fairly supported by the record,” 28 U.S.C. § 2254(d)(8), and is therefore entitled to a presumption of correctness. Maggio v. Fulford, 462 U.S. 111, 117, 103 S.Ct. 2261, 2264, 76 L.Ed.2d 794 (1983); Sumner v. Mata, 449 U.S. 539, 551, 101 S.Ct. 764, 771, 66 L.Ed.2d 722 (1981).
The state court findings, quoted in the order of the Oklahoma Court of Criminal Appeals, stated: “7. That the records compiled by Eastern State Hospital together with the testimony of Dr. Walter Quijano, the psychologist who participated in the examinations and evaluation of petitioner in 1979, support the report tendered the court by Dr. Garcia that petitioner was, in fact, able to assist counsel and competent to stand trial.” App. A at 4.
We are satisfied that these findings are supported by the record of the state court post-conviction hearing. Petitioner’s attorney was asked whether he would have been able, without expert assistance, to understand the medical records and their importance. He replied: “At no time did I ever personally as a lawyer defending Charles Coleman question his competency. That was never brought to my attention, nor did I ever question it.” VII R. at 44. The attorney also testified that petitioner gave no response when the attorney told him they needed to be thinking about what to do at the sentencing stage, and that he always asked about what the officers were doing with his pickup truck. Id. at 45, 48. Nevertheless, the attorney said: “I didn’t have any problem communicating with him.” Id. at 48. The attorney never observed any seizure or convulsion of petitioner and did not have reason to believe petitioner was not in touch with reality. Id. at 55. We note that petitioner’s attorney was an experienced criminal lawyer who had participated in several other capital trials. Coleman I, 802 F.2d at 1236.
We have also reviewed the testimony of Dr. Pedderson, a psychiatrist, called at the hearing by petitioner. She examined petitioner for 2V2 to 3 hours in August 1987 and reviewed his medical records. She testified that the records would raise a doubt as to petitioner’s ability to assist his attorney “because of the fact that Mr. Coleman was hearing voices and had psychotic episodes in the past, had a lot of paranoid thinking and similar things.” VII R. at 109. Dr. Quijano, the clinical psychologist on the staff that observed petitioner during the 1979 hospitalization, agreed with Dr. Pedderson’s impression that Coleman was suffering from “chronic schizophrenic undifferentiated type.” He said, however, the condition was “In remission.” Id. at 175. Dr. Quijano said “In remission means that the person is basically functioning well. But that whoever is dealing with that person, you must be alert to the symptoms coming back without notice. It’s like ulcers.” Id. at 183.
In light of the state court post-conviction record considered as a whole, we cannot say the court’s findings, quoted above, are “not fairly supported by the record.” Sumner v. Mata, 449 U.S. at 551, 101 S.Ct. at 771; 28 U.S.C. § 2254(d); see also Maggio v. Fulford, 462 U.S. Ill, 117, 103 S.Ct. 2261, 2264, 76 L.Ed.2d 794 (1983); cf. Demosthenes v. Baal, — U.S. -, 110 S.Ct. 2223, 2225, 109 L.Ed.2d 762 (1990). Therefore we must accept the finding that the evidence supports the report to the state court in 1979 that “petitioner was, in fact, able to assist counsel and competent to stand trial.” App. A at 4.
IV
Respondent contends that this third federal petition for habeas relief should be dismissed because petitioner has abused the writ of habeas corpus. A federal court may dismiss a second or successive petition if “it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ.” 28 U.S.C. foil. § 2254, Rules Governing Section 2254 Proceedings, Rule 9(b); accord 28 U.S.C. § 2244(b); see also Coleman II, 869 F.2d at 1380-81. Abuse of the writ occurs if the petitioner either (1) intentionally and inexcusably withholds the new claim from an earlier petition, or (2) “otherwise abuse[s] the writ” because the proceeding’s “only purpose is to vex, harass, or delay.” 28 U.S.C. § 2244(b); Sanders v. United States, 373 U.S. 1, 18, 83 S.Ct. 1068, 1078-79, 10 L.Ed.2d 148 (1963). Once the state adequately raises the defense of abuse of the writ, the burden shifts to the petitioner to show that he has not abused the writ procedure. See Coleman II, 869 F.2d at 1381.
The federal district court concluded herein that although petitioner did not receive the Eastern State Hospital medical records until August, 1987, his prior “habe-as counsel was aware of alleged competency problems with his client, but chose for strategy or other unknown reasons not to pursue those issues.” Order Denying Petition for Writ of Habeas Corpus at 8 (E.D. Okla. July 11, 1990). The court believed that petitioner’s failure to procure the medical records earlier was legally inexcusable and therefore that petitioner “abused the writ as to all issues.” Id. at 9-10. Significantly, however, the court did not dismiss the petition on that basis. Instead, the court proceeded to address the merits of petitioner’s claims “ ‘in the interest of last minute justice.’ ” Id. at 12 (quoting Bell v. Lynaugh, 858 F.2d 978, 94 (5th Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 3262, 106 L.Ed.2d 607 (1989)); see Sanders v. United States, 373 U.S. at 15-18, 83 S.Ct. at 1077-79; Kuhlmann v. Wilson, 477 U.S. 436, 451, 106 S.Ct. 2616, 2625-26, 91 L.Ed.2d 364 (1986). Where the district court chooses to rule on the merits of a second or successive habeas corpus petition, rather than to dismiss the petition as an abuse of the writ, this court may also address the merits. See, e.g., Slicker v. Wainwright, 809 F.2d 768, 769 (11th Cir.1987).
We are convinced that we should reach the merits of petitioner’s claims based on the discovery in August 1987 of the Eastern State Hospital medical records. Petitioner has made a substantial showing that neither he nor his counsel learned of the existence of those records until August 2, 1987, and that they did not receive them until August 21, 1987. We disagree with the district court’s hypothesis that because petitioner raised four issues relating to his competency in his second federal habeas petition, he necessarily had a sufficient factual basis for the claims now before us. See Order at 7. The issues raised in the second federal habeas proceeding are patently distinct from those now before us. We do not doubt that petitioner’s earlier claims had “some factual basis,” id., but it does not follow that petitioner’s new claims are “predicated upon grounds obviously well known to [petitioner] when [he] filed the preceding application.” S.Rep. No. 1797, 89th Cong., 2d Sess. 2, reprinted in 1966 U.S.Code Cong. & Admin.News 3663, 3664.
Until petitioner’s attorneys obtained the Eastern State Hospital records, they had no factual basis for claiming that information favorable to the accused had been wrongly withheld by the state hospital. Furthermore, petitioner’s challenges to the procedural adequacy of his pretrial competency determination are predicated to a large extent on Dr. Garcia’s failure to disclose to the trial judge any reference to the information contained in petitioner’s medical records which might have cast doubt on Dr. Garcia’s conclusion that petitioner was competent to stand trial. Thus, we are persuaded that petitioner “did not know of the specific ... factual grounds for [those] claim[s] when he filed his earlier petition.” Coleman II, 869 F.2d at 1380.
Petitioner has further demonstrated that as soon as he and his counsel became aware of Eastern State Hospital’s records, he pursued his claims diligently and in good faith in both state and federal court. Petitioner’s brief in his second habeas appeal (filed on August 26, 1987) refers to the recent discovery of “new evidence” warranting relief. Before we heard oral argument in that appeal on October 2, 1987, petitioner’s counsel filed a motion on September 23, 1987, seeking remand of the pending case to the district court so that his habeas petition could be amended and the newly discovered claims considered in the pending habeas proceeding. Counsel also requested that the federal proceedings be held in abeyance until petitioner exhausted his state remedies. There is no evidence in the record that suggests that petitioner is pursuing needless piecemeal litigation or that he has raised the claims only to vex, harass, or delay.
We do decline, however, to reach petitioner’s ineffective assistance of counsel claim. As the district court correctly noted, this is the second time Coleman has argued that he was denied effective assistance of counsel at both the guilt and sentencing stages of his trial. See Order at 11, 12. We carefully reviewed this claim in Coleman I, 802 F.2d at 1236, and again sua sponte in Coleman II, 869 F.2d at 1394. Petitioner nevertheless argues that his ineffective assistance of counsel claim should not be dismissed because it alleges new or different grounds from those previously determined on the merits, and neither petitioner nor his counsel knew of the factual basis for the claim when he filed his earlier petitions. We do not agree.
Although petitioner predicates his claim of ineffective assistance of counsel on the 1987 discovery of the Eastern State Hospital records, the substance of the claim is that petitioner’s trial counsel failed to conduct a reasonable investigation of petitioner’s background. We carefully considered and rejected a similar claim in Coleman I. See 802 F.2d at 1233-36. Thus, although the Eastern State Hospital medical records which have subsequently come to light add a new dimension to petitioner’s claim, they do not sufficiently change its essential features. We therefore are not required to reconsider the claim on the merits. Sanders, 373 U.S. at 15, 83 S.Ct. at 1077. Thus, like the district court, we decline to review petitioner’s ineffective assistance of counsel claim.
V
Finally, petitioner argues that the federal district court erred when it denied his motion for an evidentiary hearing on the following issues: (1) the adequacy of petitioner’s pretrial competency evaluation and determination; (2) the Brady claim; and (3) abuse of the writ. The last point is moot because we do not hold that petitioner’s claims based on the newly discovered evidence constitute abuse of the writ.
A habeas petitioner is entitled to a hearing in federal court on disputed issues of fact raised in the petition “if the habeas applicant did not receive a full and fair evidentiary hearing in a state court, either at the time of the trial or in a collateral proceeding.” Townsend v. Sain, 372 U.S. 293, 312-13, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963); see 28 U.S.C. § 2254(d). Our holding above that the presumption of correctness applies to the written findings of fact by the state court in petitioner's third application for state post-conviction relief necessarily presupposes that the state court resolved the material issues of fact after a hearing on the merits, and the fact-finding procedure employed by the state court was adequate to afford a full and fair hearing. See 28 U.S.C. § 2254(d). Therefore, petitioner is not entitled to an evidentiary hearing in federal court on the question of his “competency in fact” in 1979. Cf. Edwards v. State of Oklahoma, 577 F.2d 1119, 1121 (10th Cir.1978).
In connection with petitioner’s claim of error by the federal court’s denial of an evidentiary hearing, we note that our rulings that a Pate v. Robinson hearing was not required by the facts before the state court, and that the medical records did not amount to “material” evidence under the Bagley and Ritchie tests, were both legal rulings, not calling for any evidentiary hearing.
Finally, we agree with the state district court’s conclusion in its order denying petitioner's fourth application for post-conviction relief that “the evidence offered, which might, in its best light, raise a question as to the competence of Dr. Garcia, is irrelevant when considered in view of the fact that petitioner’s competence was established and remains established by sufficient evidence outside and beyond the conclusion reached by Dr. Garcia.” App. B at 2. We reach that conclusion as a matter of law, assuming, arguendo, that petitioner's factual allegations concerning Dr. Garcia’s competence are true. Therefore, because there are no contested factual issues to be resolved, the federal court was not required to conduct an evidentiary hearing on that question.
VI
CONCLUSION
Accordingly, the motion for issuance of a certificate of probable cause is GRANTED. For the reasons stated, the judgment of the district court denying the petition for a writ of habeas corpus is AFFIRMED.
On consideration of the motion for a stay of execution, the brief in support thereof, and the response, we are not persuaded that there is a reasonable probability that four members of the Supreme Court would consider the underlying issues sufficiently meritorious for a grant of certiorari, or that there is a significant possibility of reversal of this decision. See Barefoot v. Estelle, 463 U.S. 880, 895, 103 S.Ct. 3383, 3395-96, 77 L.Ed.2d 1090 (1983). Therefore, the motion for a stay of the petitioner’s execution is DENIED. In order that disposition by this court may be concluded expeditiously, it is further ORDERED that any petition for rehearing or petition for rehearing with suggestion for rehearing en banc be filed with the Clerk of this Court by 10:00 o’clock a.m. on September 4, 1990.
IT IS SO ORDERED.
[OPINION BY TACHA, Circuit Judge, type=concurrence]
TACHA, Circuit Judge,
concurring.
I agree fully with the majority, but I write separately for the limited purpose of making clear I do not agree with any possible inference that the hospital notations and reports the defendant seeks in this case are subject to disclosure under the requirements of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The Brady rule applies to exculpatory and impeachment information known to and subject to the control of the prosecution, and without which the defendant would be deprived of a fair trial. In this case the prosecution, as well as the defense, was unaware of the additional hospital records at the time of the trial so neither side relied on this additional information in preparing for trial or in cross-examining witnesses. Further, there is no indication in the record that Eastern State Hospital would have refused to turn its records and reports over to both sides if such information had been requested. Clearly, as we have found, additional psychological records were not considered material to the conduct of the trial at the time so no request was made. The requirements of Brady simply are not implicated in this case because the prosecution had no actual or imputed knowledge of, and took no part in withholding, exculpatory or impeachment evidence.
Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1986), presents an entirely different question. In that case, both the prosecution and the defense were aware of the subpoenaed records, which if made available would have been equally available to both sides. The question the Court confronted there was whether the asserted privilege could block disclosure of information that might have been material to the defendant’s due process right to be tried fairly. The Supreme Court did not decide in that case whether the Brady rule did or did not apply but rather that the assertion of the privilege by the protective service agency could not stand as an absolute bar to disclosure of material that might be subject to the Brady rule. Further, the Court did not decide that the protective service agency was an arm of the prosecution for Brady purposes.
I agree with the majority that because of the underlying due process concerns, the question whether the information is subject to the Brady rule and the question whether the information was material are so closely intertwined that it is difficult to determine which should be answered first. I would hold, however, that the newly-discovered hospital records in this case were not Brady material because they were not known to the prosecution nor were they subject to the control of the prosecution and no request was made for them. These factors are touchstones to invoking the Brady requirements.
APPENDIX A
In the Court of Criminal Appeals of the State of Oklahoma
Charles Troy Coleman, Petitioner, v. State of Oklahoma, Respondent.
ORDER AFFIRMING DENIAL OF POST-CONVICTION RELIEF
On August 15, 1988, Charles Troy Coleman filed his appeal from denial of post-conviction relief in Muskogee County District Court, Case No. CRF-79-76.
Appellant was found guilty of First Degree Murder and was sentenced to suffer the death penalty. That conviction was appealed to this Court and was affirmed July 11, 1983. See Coleman v. State, 668 P.2d 1126 (Okl.Cr.1983). Petition for Cer-tiorari was filed with the United States Supreme Court, which was denied January 16, 1984. See Coleman v. Oklahoma, 464 U.S. 1073, 104 S.Ct. 986, 79 L.Ed.2d 222 (1984). Post Conviction Application was filed in Muskogee County District Court February 6, 1984, which was denied May 24, 1984. The appeal was lodged in this Court, and denial of relief was affirmed on November 30, 1984. See Coleman v. State, 693 P.2d 4 (Okl.Cr.1984).
January 16, 1985, Coleman filed for a writ of habeas corpus in the United States District Court for the Eastern District of Oklahoma. January 18, 1985, the District Court denied the writ of habeas corpus. An appeal was lodged with the United States Court of Appeals, Tenth Circuit.
September 30, 1986, the appeal was denied. See Coleman v. Brown, 802 F.2d 1227 (10th Cir.1986). A second petition for Writ of Certiorari was filed with the United States Supreme Court in Case No. 86-6750. The petition was denied June 1, 1987. Rehearing was denied June 26, 1987.
July 6, 1987, Coleman filed a second application for post-conviction relief in the Muskogee County District Court, which was denied on July 9, 1987. This Court affirmed that denial on July 15, 1987, in Case No. H-79-508.
July 7, 1987, Coleman filed a petition for writ of habeas corpus in the United States District Court, Case No. 87-351-C. July 15, 1987, the petition was denied by the United States District Court for the Eastern District of Oklahoma. July 20, 1987, an appeal was lodged with the United States Court of Appeals, Tenth Circuit. July 20, 1987, the United States Court of Appeals entered a stay of execution in Coleman’s case. Subsequently, on March 6, 1989, the petition was denied in Case No. 87-2011.
October 15, 1987, Coleman filed a third application for post-conviction relief in the Muskogee County District Court. February 8, 1988, the District Court denied Coleman’s post-conviction relief. From that denial, this appeal has been lodged.
The statement of facts concerned in Coleman’s case may be found in Coleman v. State, 668 P.2d 1126 (Okl.Cr.1983).
In this appeal, Coleman argues two assignments of error in support thereof:
A. That Mr. Coleman was deprived of a constitutionally adequate determination of his competency to stand trial; and,
B. The State’s failure to disclose the records of Eastern State Hospital’s court ordered examination of Mr. Coleman’s sanity deprived him a fair and adequate determination of his competency to stand trial and also deprived him of his right to a fair trial and an individualized sentencing determination in violation of the Eighth and Fourteenth Amendments.
Included in the records filed with this appeal are: the Original Record filed June 2, 1988; the Transcript of Testimony filed May 10, 1988, on the hearing held December 17 and 18, 1987, and January 22, 1988; a Supplement to Record on Appeal, consisting of the records admitted into evidence, filed August 25, 1988. Coleman’s brief was filed August 15, 1988, and the State’s brief was filed September 9, 1988.
On February 8, 1988, the Honorable Lyle Burris, District Judge for Muskogee County, Oklahoma, entered the following order denying post-conviction relief:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
NOW on this 8th day of February, 1988, being fully advised in the premises, this Court issues the following Findings of Fact and Conclusions of Law in the above styled cause:
STATEMENT OF THE CASE
On October 19, 1987, Petitioner filed an Application for Post-Conviction Relief and various Motions accompanying said Application. The Application for Post-Conviction Relief alleged three specific claims:
1. That Petitioner was deprived of a fair and adequate proceeding for determining his ability to assist counsel and his competency to stand trial in violation of the due process clause of the Fourteenth Amendment.
2. That Petitioner was denied a fair trial with regard to a determination of his criminal responsibility in violation of the due process clause of the Fourteenth Amendment.
3. That Petitioner was denied his right to a full and fair determination of the appropriate sentence when the State misrepresented and withheld material evidence concerning his mental condition in violation of the Eighth and Fourteenth Amendments of the Constitution.
On November 24, 1987, following the State’s Response to the said Application, this Court granted Petitioner’s Motion for Counsel, granted Petitioner’s Motion for Expert Assistance, granted Petitioner’s Motion to Produce, and granted Petitioner’s Motion for Evidentiary Hearing, which Hearing was set for the 17th day of December, 1987. Hearing was held on the 17th and 18th days of December, 1987, with final arguments and briefs set and held on the 22nd of January, 1988, the petitioner appearing at all times by Mandy Welch, Deputy Appellate Public Defender, and the State appearing by W.A. Drew Edmondson, District Attorney.
During the hearings of December 17th and 18th, 1987, Petitioner’s request to be personally present in court was taken and kept under advisement. On the 22nd of January, 1988, Petitioner’s request to be present and testify was withdrawn, although Petitioner maintained his request to be present to assist counsel. At no time during the hearings did this court find that Petitioner’s presence in court would be necessary for testimony or required for a presentation of the legal issues herein.
This court, in the process of this Application for Post-Conviction Relief and in previous court proceedings, has become thoroughly familiar with the records of the above styled cause. In reviewing this application, the court has reviewed all of the records of the ease, has had available and reviewed where necessary the transcripts of all proceedings before the district courts of Muskogee County, has listened to and noted the testimony of witnesses for the petitioner and the state, both expert and lay, has reviewed on several occasions the records of Eastern State Hospital in their entirety as they pertain to petitioner, has listened to the arguments of counsel for both parties and reviewed the legal authority cited by each, as well as additional applicable case law and statutes. Based upon all of the above, this Court makes the following Findings of Fact and Conclusions of Law as to each of the Claims raised by Petitioner:
A. THAT PETITIONER WAS DEPRIVED OF A FAIR AND ADEQUATE PROCEEDING FOR DETERMINING HIS ABILITY TO ASSIST COUNSEL AND HIS COMPETENCY TO STAND TRIAL IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.
FINDINGS OF FACT
1. Petitioner was tried and convicted of murder in the first degree and sentenced to death in 1979, at which time the procedure for determination of competency was located at Title 22 O.S.A., sections 1171-1174. Those procedures provided for a period of observation and examination at a hospital within the Department of Mental Health, during which time criminal proceedings were suspended, and a report to the court by the Mental Health doctors as to the competence of the defendant.
2. Upon motion of defense counsel, petitioner was sent to Eastern State Hospital for such an evaluation prior to his preliminary hearing in the above styled cause. Approximately thirty (30) days later, the Court received a report from Dr. R.D. Garcia, Chief Forensic Psychiatrist, Eastern State Hospital, which stated that petitioner “does have sufficient ability to consult with an attorney and he does have a rational as well as actual understanding of the proceedings.”
3. At no other time during the trial proceedings was petitioner's competency or sanity raised as an issue.
4. Petitioner’s trial attorney, Mr. Don Pearson, testified under oath that his motion for commitment was primarily to obtain additional time and also to determine whether his client might have a mental problem; that at no time did he have reason to believe that his client was not competent. In fact, Mr. Pearson testified that in his opinion his client, petitioner herein, was competent, did understand the nature and consequences of the proceedings, and was able to assist him in his own defense.
5. That the records compiled by Eastern State Hospital during petitioner’s period of observation, were not in the possession of the District Attorney or any agent of the District Attorney until 1987 and were, in 1979, equally available to the State or Defense by discovery motion or subpoena.
6. That the State, by and through the Office of District Attorney, including any member of the District Attorney’s staff or any investigative agent or arm of said office, did not withhold or conceal any of the records of Eastern State Hospital from the petitioner at any stage of the proceedings against him.
7. That the records compiled by Eastern State Hospital together with the testimony of Dr. Walter Quijano, the psychologist who participated in the examinations and evaluation of petitioner in 1979, support the report tendered the Court by Dr. Garcia that petitioner was, in fact, able to assist counsel and competent to stand trial.
CONCLUSIONS OF LAW
1. That the procedures utilized for determining petitioner’s competency and ability to assist counsel in 1979 did not, per se, violate the due process clause of the Fourteenth Amendment. Colbert v. State, 654 P.2d 624 (Okl.Cr.1982).
2. That the procedures utilized in 1979 for determining competency were known to petitioner and were available to be raised on direct appeal and thus are barred in an application for post-conviction relief. Coleman v. State, 693 P.2d 4 (Okl.Cr.1984).
3. That neither the procedure utilized nor the records which have subsequently come to light concerning the medical and psychological history of petitioner are sufficient to raise a reasonable doubt as to petitioner’s competence in 1979. Chaney v. Brown, 730 F.2d 1334, 1340 (10th Cir.1984).
Wherefore, premises considered, post-conviction relief as to petitioner’s first claim should be and is hereby DENIED.
B. THAT PETITIONER WAS DENIED A FAIR TRIAL WITH REGARD TO A DETERMINATION OF HIS CRIMINAL RESPONSIBILITY IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.
FINDINGS OF FACT
1.The court restates each of its findings of fact above.
2. That the petitioner gave a lengthy and detailed statement to District Attorney Investigator Gary Sturm immediately after his arrest in 1979 and, consistent with that statement, interposed the defense at trial that his whereabouts at the time of the murder was accounted for and any period of absence was insufficient for him to have accomplished the offense. This defense was inconsistent with and antagonistic to any defense based upon lack of criminal responsibility or lack of sanity.
3. Petitioner’s trial attorney, Mr. Don Pearson, testified that, upon his review of the medical records in question, he would not have utilized them in the first (guilt) stage of the trial even if he had had them in 1979.
4. That the evidence of petitioner’s guilt at trial was “overwhelming.”
CONCLUSIONS OF LAW
1. That, with the evidence in question being equally available to the state and the defense at the time of trial, the failure of the defense to obtain the evidence is not a violation of the due process clause of the Fourteenth Amendment. Chaney v. Brown, 730 F.2d 1334 (10th Cir.1984).
2. That the evidence in question, had it been available to the defense at time of trial, would have been insufficient to create a reasonable doubt as to the guilt of the accused, his sanity or his criminal responsibility and, thus, is insufficient to warrant relief. Chaney, supra. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342, Castleberry v. State, 590 P.2d 697 (Okl.Cr.1979).
Wherefore, premises considered, post-conviction relief as to petitioner’s second claim should be and is hereby DENIED.
C. THAT PETITIONER WAS DENIED HIS RIGHT TO A FULL AND FAIR DETERMINATION OF THE APPROPRIATE SENTENCE WHEN THE STATE MISREPRESENTED AND WITHHELD MATERIAL EVIDENCE CONCERNING HIS MENTAL CONDITION IN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS OF THE CONSTITUTION.
FINDINGS OF FACT
1. The court restates each of its findings of fact above.
2. In the second (punishment) stage of the trial, the jury found the following aggravating circumstances beyond a reasonable doubt:
a. The Defendant was previously convicted of a felony involving the use or threat of violence to the person.
b. The Defendant knowingly created a great risk of death to more than one person.
c. The murder was especially heinous, atrocious or cruel.
d. The murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution.
e. There exists a probability that the Defendant would commit criminal acts of violence that would constitute a continuing threat to society.
4. The jury unanimously recommended a death penalty.
5. That matters of social history contained within the records was equally available to the defense through the testimony of the defendant himself or members of the defendant’s family.
6. That some matters relating to the petitioner’s psychological history would have been of benefit to the state in the punishment stage had the records been in the possession of the parties at the time of trial.
CONCLUSIONS OF LAW
1. That, with the evidence in question being equally available to the state and the defense at the time of trial, the failure of the defense to obtain the evidence is not a violation of the Eighth or Fourteenth Amendments. Chaney v. Brown, 730 F.2d 1334 (10th Cir.1984).
2. That the evidence in question, had it been available to the defense at time of trial, would have been insufficient to create a reasonable doubt as to any of the aggravating circumstances found by the jury and would have been insufficient to have affected the outcome of the punishment stage of the proceedings, beyond a reasonable doubt, and, as such, said evidence is insufficient to warrant relief. Chaney, supra. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342. Castleberry v. State, 590 P.2d 697 (Okl.Cr.1979).
Wherefore, premises considered, post-conviction relief as to petitioner’s third claim should be and is hereby DENIED.
CONCLUSION
This is petitioner’s third application for post-conviction relief and his third eviden-tiary hearing in this Court. In addition, the record reflects that the petitioner has completed a direct appeal and has entered the federal courts twice on writs of habeas corpus. Issues raised by petitioner’s counsel in briefs or oral argument, while not directly relating to the three claims for relief, have been considered. Additionally, the court has searched the medical records in question on any construction of the issues.
It is the Order of this Court that Post-Conviction Relief upon the issues raised in petitioner’s Application and upon an and all issues raised by petitioner attendant to said Application, upon each such Claim, should be and is hereby DENIED.
/s/Lyle Burris District Judge
NOW THEREFORE, after considering the records on file with this Court in the above-styled and numbered post-conviction appeal, and being fully advised in the premises, this Court finds that the Order of the District Court of Muskogee County in Case No. CRF-79-76, should be affirmed.
IT IS SO ORDERED.
CHARLES TROY COLEMAN is further advised that he has exhausted his State Remedies.
WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 6th day of April 1989.
/s/Tom Brett TOM BRETT, PRESIDING JUDGE
/s/Ed Parks ED PARKS, VICE PRESIDING JUDGE, Concur in Results.
/s/Hez J. Bussey HEZ J. BUSSEY, JUDGE, Concur in Results.
7s7 James F. Lane JAMES F. LANE, JUDGE /s/Gary L. Lumpkin GARY L. LUMPKIN, JUDGE
ATTEST:
/s/James Patterson Clerk
APPENDIX B
In the District Court for Muskogee County, State of Oklahoma
Charles Troy Coleman, Petitioner, -vs-State of Oklahoma, Respondent.
No. CRF-79-76
Feb. 26, 1990.
ORDER
Now on this 26th day of February, on petitioner’s motion, the order of this court entered on February 5, 1990, is hereby vacated for the reason that petitioner did not receive timely notice thereof, and judgment is hereby entered on this date denying petitioner’s application for post-conviction relief in accordance with the findings of the February 5, 1990 order, which findings are incorporated herein.
/s/Lyle Burris JUDGE OF THE DISTRICT COURT
In the District Court in and for Muskogee County, State of Oklahoma
Charles Troy Coleman, Petitioner, -vs-State of Oklahoma, Respondent.
Case No. CRF-79-76
Feb. 5, 1990.
ORDER
NOW on this 5th day of February, 1990, this Court having reviewed Petitioner’s Application for Post-Conviction Relief, Motion for Approval of Reasonable Expenditure of Funds for Expert, Motion for Discovery and For Evidentiary Hearing, and Appendix to Application for Post-Conviction Relief; the State’s Response to Application for Post-Conviction Relief; and the Petitioner’s Reply to State’s Response and Supplement to Application for Post-Conviction (Relief), and Supplemental Appendix to Application for Post-Conviction Relief, together with Petitioner’s Second and Third Supplements to Application for Post-Conviction Relief; and, further, this Court being familiar with and having available for review the entire file of the case of State vs. Charles Troy Coleman, including the record and exhibits of Petitioner’s last Application for Post-Conviction Relief, upon which this Court ruled on February 8th, 1988; and, further, this Court having reviewed the case law cited by both Petitioner and the State, including the pronouncements of various appellate courts in decisions involving Petitioner herein, it is the Finding and Order of this Court as follows:
1. That the issue of due process involved in the procedures for determination of competency utilized in the case of Petitioner has been raised and dealt with in prior post-conviction relief proceedings and thus is barred as a matter of law. Coleman v. State, 693 P.2d 4 (Okl.Cr.1984).
2. That the factual issue of the competence of Petitioner to stand trial in 1979 was raised and dealt with in prior post-conviction relief proceedings and thus is barred as a matter of law. Findings of Fact and Conclusions of Law, Coleman v. State, CRF-79-76, February 8, 1988; affirmed, Coleman v. State, PC-88-159, April 6, 1989.
3. That the issues now raised by Petitioner, if true, are insufficient to challenge the due process of the procedures utilized to determine the competence of Petitioner in 1979.
4. That the Petitioner offers no new evidence, much less any material evidence, as to the competence of Petitioner in 1979. The evidence offered, which might, in its best light, raise a question as to the competence of Dr. Garcia, is irrelevant when considered in view of the fact that Petitioner’s competence was established and remains established by sufficient evidence outside and beyond the conclusion reached by Dr. Garcia. This evidence includes the testimony under oath of Dr. Quijano, who also examined Petitioner in 1979, the sworn testimony of Don Pearson, who represented Petitioner in 1979, and the testimony of other individuals who dealt with Petitioner in and since 1979, as well as the entirety of the records of Eastern State Hospital compiled in 1979. No affidavit submitted by Petitioner raises any doubt as to his own competence at time of trial.
5. That this Court, while cognizant of the unanimous finding of the Court of Criminal Appeals in April, 1989, that: “CHARLES TROY COLEMAN is further advised that he has exhausted his State Remedies”, thoroughly reviewed all pleadings and affidavits submitted by Petitioner and finds no issue or ground which would justify further hearing or delay in the due course of this case.
WHEREFORE, premises considered, Post-Conviction Relief on all grounds and issues raised by Petitioner herein shall be and is hereby DENIED; further, Petitioner’s Motion for Approval of Reasonable Expenditure of Funds for Expert is DENIED since such funds have not been shown to be either reasonable or necessary in light of the rulings herein; further, Petitioner’s Motion for Discovery and for Evi-dentiary Hearing is DENIED; and, further, that Petitioner’s request for an additional thirty days to explore alternatives and to supplement the record is DENIED.
/s/Lyle Burris JUDGE OF THE DISTRICT COURT
APPENDIX C
In the Court of Criminal Appeals of the State of Oklahoma
Charles Troy Coleman, Petitioner, v. State of Oklahoma, Respondent.
No. PC-90-326
ORDER AFFIRMING DENIAL OF POST-CONVICTION RELIEF
The petitioner has appealed to this Court from an order of the District Court of Muskogee County, denying his application for post-conviction relief in Case No. CRF-79-76.
This is petitioner’s fourth application for post-conviction relief; therefore, he is barred from asserting any claims not raised in his first petition. (See 22 O.S. 1981, § 1086). The petitioner is further advised that he has EXHAUSTED his State remedies in Muskogee County Case No. CRF-79-76, and the clerk of this Court is directed NOT to accept any further petitions in said case for filing. The order of the District Court is AFFIRMED.
IT IS SO ORDERED.
WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 11th day of April, 1990.
/s/James F. Lane JAMES F. LANE, VICE PRESIDING JUDGE
/s/Tom Brett TOM BRETT, JUDGE
/s/Gary L. Lumpkin GARY L. LUMPKIN, JUDGE
/s/Charles A. Johnson CHARLES A. JOHNSON, JUDGE
ATTEST:
/s/James Patterson Clerk
The transcript of that hearing was before the federal district court and has been designated as Volume VII of the record on appeal herein.
We append to this opinion the unpublished opinion of the Oklahoma Court of Criminal Appeals affirming the denial of post-conviction relief filed on April 6, 1989, which opinion also reproduces in full the findings of fact and conclusions of law of the Oklahoma District Court rejecting those claims. See Appendix A hereto. .The unpublished orders of the state district court denying the fourth state post-conviction petition are appended hereto as Appendix B. We also append the unpublished order of the Oklahoma Court of Criminal Appeals affirming that denial of post-conviction relief as Appendix C.
This question whether evidence was "material” under Ritchie or Bagley, inter alia, is stricter on petitioner, and distinct from the broader test for "any relevant mitigating factor" which the sentencer must be permitted to consider. EDDings v. Oklahoma, 455 U.S. 104, 112, 102 S.Ct. 869, 875, 71 L.Ed.2d 1 (1982).
We note, however, that Dr. Quijano testified that the staff did not advise Dr. Garcia as to competency or incompetency of Coleman. The staff participated in the sense of supplying Dr. Garcia the data on observation and testing he asked for, but Garcia alone pulled all the information together and made the decision on competency. Until this case, Dr. Quijano had not seen the letters sent to the court. VII R. at 165-166. At no point in his testimony did Dr. Quijano express disagreement with Dr. Garcia’s conclusion of competence.
It is true that Mr. Pearson and Mr. Hayes, respectively Mr. Coleman’s attorneys at trial and on direct appeal, both state that the Eastern State Hospital records, if disclosed, would have been useful in the trial, particularly in the sentencing phase. See VII R. at 42, 44, 46, 48, 215, 216, 225, 230. The test is not, however, whether petitioner’s counsel would have used the evidence which was not disclosed. Rather, the determinative question is whether the evidence is "material” in view of the entire record under the Supreme Court’s standard. While the selective use of the hospital records might have proved useful to defense counsel, the introduction of any portion of the medical records favorable to petitioner would have given the prosecution the opportunity to introduce other portions of these same records which are adverse to petitioner. We are satisfied that the prosecution would have found these other portions of the medical records beneficial to its case. Mr. Gary Sturm, the District Attorney’s chief investigator on the Coleman case, testified that records would have been useful in the sentencing stage of the trial to show aggravating circumstances. VII R. at 279, 283, 284.
In view of our conclusion that the records were not "material” under the standards of the Supreme Court so that their disclosure was required by due process, we need not, and do not, decide the question whether the state hospital should be considered a part of the prosecution arm of the state so that the disclosure requirements of the Brady, Ritchie, Bagley and Agurs cases applied. In this connection we note that a general Brady v. Maryland request was made for the production of exculpatory material by petitioner’s state trial counsel. Trial Transcript at 22-24. The prosecuting attorney stated that he did not believe there was any such evidence in their possession.
See Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835 (1956).
The Court has applied the following two-part test for determining competency to stand trial: (1) whether the defendant "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding” and (2) "whether he has a rational as well as a factual understanding of the proceedings against him.” Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 789, 4 L.Ed.2d 824 (1960) (per curiam).
The trial court was required to commit the defendant to a state hospital for observation and examination for a period not to exceed sixty days whenever it determined (prior to trial) that there was "a doubt as to the present sanity of the [defendant].” Okla.Stat. tit. 22 § 1172. Criminal proceedings are then suspended "pending the report of the doctors_" Id. § 1172. If the examining doctors conclude that the individual is "presently sane,” then the order of the district court suspending criminal proceedings is dissolved. Id. § 1173. See generally Colbert v. State, 654 P.2d 624, 627 (Okla.Crim.App.1982) (finding the Oklahoma procedures constitutionally adequate to protect the right of the accused not to be tried while legally incompetent). In 1980, the Oklahoma statutes were substantially changed, and now require both a competency examination and evidentiary hearing whenever there is any doubt as to the defendant’s competency to stand trial. See Okla.Stat. tit. 22 §§ 1175.1 — 1175.8 (1981); see generally Scott v. State, 730 P.2d 7 (OkIa.Crim.App.1986); Rowell v. State, 676 P.2d 268 (Okla.Crim.App. 1984). .This standard derives from the Illinois statute at issue in Robinson. See 383 U.S. at 385, 86 S.Ct. at 842. As the Court noted in Drope v. Missouri, 420 U.S. at 172, 95 S.Ct. at 904, the Robinson Court did not hold that the procedure prescribed by that statute was constitutionally mandated, although it did hold that the statutory procedure, if followed, was constitutionally adequate. In Drope, the court framed the question as whether the information available to the trial court created a "sufficient doubt of [petitioner's] competence to stand trial to require further inquiry on the question.” Id. at 180, 95 S.Ct. at 908.
We note that it was Judge Burris who heard the motion for the mental examination and ordered the hospitalization. Judge Summers tried the murder case of petitioner, but became a Justice of the Oklahoma Supreme Court on February 1, 1985, before the 1987 hearing on the third state post-conviction proceeding. Judge Burris again conducted that hearing and made findings and conclusions thereon and denied the application.
The judge said at the beginning of the hearing that, with defense counsel Pearson having stated to the court that in his opinion the defendant should be examined for the reason counsel could not consult with petitioner nor communicate properly to prepare his case, the application would be granted. Transcript of Proceedings in District Court, March 9, 1979, at 4. At that point, defense counsel stated: [I]t’s been called to my attention through some medical records that were submitted to me from the State of California that there has been a history of seizures that the defendant has suffered since — oh, for a lot of years, and there is psychiatric statements to back up that in the State of California which I have just read here recently, and in view of that and in view of the fact that the defendant has been complaining down at the local jail about having seizures and about having headaches, I am under the impression that it certainly would be wise to have the examination made at this time. Id.., at 4-5. Petitioner was questioned by his attorney and stated he had requested counsel to send him to the state hospital and that he (petitioner) requested the court to send him to the hospital for observation. Id. at 12-13. The medical records to which counsel alluded were never submitted to the court or otherwise made a part of the record. The record does indicate that Mr. Pearson forwarded some materials to Eastern State Hospital, but it is not clear whether those materials included the California medical records. Cf. Transcript of 1987 Post-Conviction Hearing at 52-53. With respect to the reference to counsel’s difficulty in communicating with petitioner, we note that there is no later statement to such effect after the commitment and that counsel testified at the 1987 post-conviction hearing that he had no problem of communication. VII R. at 48. .Although Crews was a direct criminal appeal construing a federal trial court’s obligations under the controlling federal statute, see 18 U.S.C. § 4244 (now codified at 18 U.S.C. § 4241), we do not believe it should be distinguished on that basis. The principles announced in Crews are sound and, we believe, applicable to our habeas review of analogous state court procedures with the constitutional requirements in mind. See de Kaplany v. Enomoto, 540 F.2d 975, 983 (9th Cir.1976) (en banc), cert. denied, 429 U.S. 1075, 97 S.Ct. 815, 50 L.Ed.2d 793 (1977), citing Robinson and Drope in connection with stating the test for an evidentiary hearing as quoted in Crews, 781 F.2d at 833.
The letter does refer to Dr. Garcia's recommendation that petitioner continue to take specified medication, but it does not elaborate.
The parties do not cite to (and we have not found) an express finding of competency. It is apparent, however, that the trial judge ordered petitioner to trial which, we have held, constitutes an implied finding that he was sufficiently competent to stand trial. United States v. Crews, 781 F.2d at 833. .Petitioner contends that Dr. Garcia failed to disclose to the court material information in petitioner’s medical records which might undermine Dr. Garcia's conclusions. Therefore, petitioner argues that Dr. Garcia's letter to the court was necessarily misleading and the court’s reliance on Dr. Garcia’s conclusions in that letter failed to protect petitioner’s right not to be tried while incompetent. The flaw in petitioner’s argument is that it presupposes either a duty on the part of the examining psychiatrist to disclose the data upon which his or her conclusions are based, or a duty on the part of the trial court to inquire further into petitioner’s competency to stand trial (i.e., hold an evidentiary hearing in these circumstances). Petitioner cites no authority, and we have found none, for the first premise; and we have rejected the second premise above.
As noted earlier, the third federal habeas petition combined the constitutional claims asserted in both the third and fourth state court post-conviction proceedings.
Although we do hold that petitioner’s ineffective assistance of counsel claim is an improper successive petition, we do so as a matter of law on the assumption that the factual allegations upon which that claim is based are true. Because there are no contested issues of material fact, an evidentiary hearing is unnecessary.