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Brian Darrell DAVIS

 
 
 
 
 

 

 

 

 
 
 
="font-size: 8pt" color="#000000" face="verdana"> Classification: Murderer
Characteristics: Rape
Number of victims: 1
Date of murder: November 4, 2001
Date of arrest: Same day (injured in a single-car accident)
Date of birth: May 10, 1974
Victim profile: Josephine "Jody" Haley Sanford, 52 (his girlfriend’s mother)
Method of murder: Stabbing with knife
Location: Kay County, Oklahoma, USA
Status: Sentenced to death on March 17, 2003. Executed by lethal injection in Oklahoma on June 25, 2013
 
 
 
 
 
 
photo gallery
 
 
 
 
 
 

Summary:

Davis returned home in the early morning hours after socializing at a local club, and found that his girlfriend, Stacey Sanford, and their 3-year-old daughter were missing.

Davis called Jody Sanford, Stacey Sanford’s mother, to ask if she knew where his girlfriend and daughter were. When Jody could not locate her daughter and granddaughter, she went to Stacey’s and Davis’s apartment.”

Davis made several conflicting statements regarding what happened while Jody Sanford was in his home, telling different stories to his girlfriend, to police and to the jury at his trial. He did admit to having sex with and stabbing Jody Sanford.

When Stacey Sanford arrived home shortly after 9 a.m., she found her mother’s body and called 9-1-1. Meanwhile, Davis was seriously injured in a single-car accident in Jody’s van and was arrested for driving under the influence. Jody Sanford had been beaten, stabbed six times, and suffered a broken jaw. DNA evidence confirmed that Davis had sex with her.

Citations:

Davis v. State, 103 P.3d 70 (Okla.Crim. App. 2004). (Direct Appeal)
Davis v. State, 123 P.3d 243 (Okla.Crim. App. 2005). (PCR)
Davis v. Workman, 695 F.3d 1060 (10th Cir. 2012). (Habeas)

Final/Special Meal:

Davis requested no special last meal for his execution day. He ate what the other offenders at OSP had for dinner: BBQ bologna, bread, rice, cookies and lemonade.

Final Words:

“First I would like to say I would like to give the glory to God.” Davis then began quoting biblical scripture. “I shall not die, but live,” he said. “His word is will and let His will be done. I give God the last word — Psalm 119: 17 and 18.” Davis then quoted more scripture and finished his last statement when he said, “Thank you.”

ClarkProsecutor.org

 
 

Oklahoma Department of Corrections

Inmate: BRIAN D DAVIS
ODOC# 230936
Birth Date: 05/10/1974
Race: Black
Sex: Male
Height: 5 ft. 10 in.
Weight: 210 pounds
Hair: Black
Eyes: Brown
Convictions:

CASE# County Offense Conviction Term Start

93-436 KAY Rape In The 2nd Degree 04/20/1995 7Y 0M 0D Probation 04/20/1995 04/19/1997
93-436 KAY Rape In The 2nd Degree 04/20/1995 7Y 0M 0D Probation 04/20/1995 04/19/1997
94-315 KAY Unlawful Poss Of Cds, Cocaine 04/20/1995 7Y 0M 0D Probation 04/20/1995 04/19/1997
2001-733 KAY Murder In The First Degree 03/07/2003 DEATH Death 03/17/2003
2001-733 KAY First Degree Rape 03/07/2003 100Y Incarceration 03/17/2003 07/14/2087

Death Penalty Information

The current death penalty law was enacted in 1977 by the Oklahoma Legislature. The method to carry out the execution is by lethal injection. The original death penalty law in Oklahoma called for executions to be carried out by electrocution. In 1972 the U.S. Supreme Court ruled unconstitutional the death penalty as it was then administered.

Oklahoma has executed a total of 176 men and 3 women between 1915 and 2011 at the Oklahoma State Penitentiary. Eighty-two were executed by electrocution, one by hanging (a federal prisoner) and 96 by lethal injection. The last execution by electrocution took place in 1966. The first execution by lethal injection in Oklahoma occurred on September 10, 1990, when Charles Troy Coleman, convicted in 1979 of Murder 1st Degree in Muskogee County was executed.

Execution Process

Method of Execution: Lethal Injection

Drugs used:
Sodium Thiopental or Pentobarbital - causes unconsciousness
Vecuronium Bromide - stops respiration
Potassium Chloride - stops heart

Two intravenous lines are inserted, one in each arm. The drugs are injected by hand held syringes simultaneously into the two intravenous lines. The sequence is in the order that the drugs are listed above. Three executioners are utilized, with each one injecting one of the drugs.

 
 

Oklahoma executes man for killing girlfriend's mother

By Heide Brandes - Reuters.com

June 25, 2013

(Reuters) - Oklahoma executed a man on Tuesday convicted of raping and stabbing his girlfriend's mother to death during a late night fight in 2001, a state corrections department spokesman said. Brian Darrell Davis, 38, was pronounced dead at 6:25 p.m. CDT (7.25 p.m. EDT) after a lethal injection at a state prison in McAlester, said Jerry Massie, a spokesman for the Oklahoma Department of Corrections. He was the second Oklahoma inmate executed in two weeks and the third in 2013. Davis was also the 17th person to be executed in the United States this year, according to the Death Penalty Information Center.

Asked if he would like to say any last words, Massie said that Davis replied, "Yes, I would. First I'd like to say that I give the glory to God." He then quoted several Bible verses and added, "I shall not die but live. His word is my will and I let his will be done. I give God the last word." Davis did not request a last meal, according to Massie.

Davis was convicted of stabbing Josephine "Jody" Sanford, 52, to death after raping her at the apartment he shared with her daughter, Stacey Sanford. Davis said he returned home from a club early that morning and discovered his live-in girlfriend Stacey and their 3-year-old daughter were gone. Davis said he and Jody Sanford then had consensual sex, argued and fought, and he admitted to stabbing her. Authorities said she had six stab wounds and a broken jaw. Davis said Sanford had attacked him and he never intended to kill her. However, jurors found the killing to be especially heinous, atrocious or cruel and Davis was sentenced to death.

On June 13, Oklahoma Governor Mary Fallin denied Davis' request for clemency, rejecting a parole board recommendation that his sentence be commuted to life without parole.

 
 

Okla. executes man in death of girlfriend's mother

NewsOk.com

June 25, 2013

McALESTER, Okla. (AP) — A man convicted of raping and killing his girlfriend's mother in 2001 was executed in Oklahoma Tuesday, despite a recommendation by the state's pardon and parole board to commute his death sentence after he apologized. Brian Darrell Davis, 39, received a lethal injection Tuesday at the Oklahoma State Penitentiary in McAlester. Davis was the third inmate to be executed by Oklahoma this year and the second in as many weeks.

Davis recited a biblical-themed statement that included Psalms and scripture-based references. "I shall not die but live. His word is will, and let his will be done," Davis said. "I give God the last word. Thank you." Moments later, Davis looked up at the ceiling as the lethal drug was injected. His eyes slowly closed and his left shoulder began to twitch. He was pronounced dead at 6:25 p.m. CDT, five minutes after the injection was administered. Neither family members of the victim nor Davis came to watch the execution. Prison officials said it was likely Davis would be buried in a pauper's cemetery near the prison — known by inmates as Peckerwood Hill — because Davis did not fill out paperwork on who would claim his body.

The state's parole board had suggested to Gov. Mary Fallin that she cut Davis' sentence to life without parole. Fallin rejected the recommendation, with spokesman Aaron Cooper saying the governor reviewed Davis' file and was "satisfied that justice is being served."

A Kay County jury convicted Davis in 2003 of first-degree murder and first-degree rape in the death of his girlfriend's mother, Josephine Sanford, 52. Davis was sentenced to death on the murder conviction and 100 years in prison for rape. The victim's daughter, Stacey Sanford, discovered her mother dead in November 2001 in the Ponca City apartment she shared with Davis. Prosecutors said Josephine Sanford had six stab wounds, a broken jaw and marks around her neck. DNA evidence showed Davis had sex with the victim.

Davis went to the parole board this month, took responsibility for the death and apologized. He said the sexual contact was consensual and that a fight broke out after he remarked about its quality. "I was rude at the end," Davis said, appearing before the panel by video. "We were mad at each other after my comment. And one thing led to another. It just happened so quick." The board voted 4-1 in favor of clemency, prompting Attorney General Scott Pruitt to say the board was usurping the jury that convicted Davis and that the inmate deserved to die for a brutal crime.

Davis' defense attorney, Jack Fisher, said as the execution date approached that justice was not being served. "By the end of the clemency hearing, four of the five board members were convinced that justice could only be served by a sentence of life without parole," Fisher said. "Why Gov. Fallin would substitute her judgment for four members of the board is a mystery to me."

Death penalty opponents, who rallied Monday at the state Capitol to urge Fallin to show mercy, argued that Davis deserved life in prison, not death, after he showed remorse. They also suggested that since Davis, who is black, was convicted by an all-white jury in Kay County that it wasn't truly a jury of his peers and there could have been bias. "Our governor is in a position to make a wrong right," said Garland Pruitt, president of the Oklahoma City chapter of the NAACP. "Wrongs can be righted, hearts can be changed, but it takes those in office to help make those changes take place."

Last week, the state executed James Lewis DeRosa, 36, for his part in the brutal killings of a LeFlore County ranch couple in 2000.

 
 

OSP death row inmate executed Tuesday

By Rachel Petersen - McAlesterNews.com

June 25, 2013

McALESTER — A death row inmate at the Oklahoma State Penitentiary was executed Tuesday evening in the prison’s death chamber. Brian Darrell Davis, 38, had requested no special last meal for his execution day. He ate what the other offenders at OSP had for dinner, said OSP Warden’s Assistant Terry Crenshaw. “BBQ bologna, bread, rice, cookies and lemonade.”

Witnessing the execution were three media representatives, one of Davis’s attorneys, Kay County Sheriff Everette Vanhoesen and an Oklahoma Department of Corrections representative. The execution procedures began at 6:19 p.m. and OSP Warden Anita Trammell asked Davis if he would like to say any last words. “Yes, I would,” Davis said. “First I would like to say I would like to give the glory to God.” Davis then began quoting biblical scripture. “I shall not die, but live,” he said. “His word is will and let His will be done. I give God the last word — Psalm 119: 17 and 18.” Davis then quoted more scripture and finished his last statement when he said, “Thank you.” At 6:20 p.m., Trammell said, “Let the execution begin.” At 6:21 p.m., Davis’s breathing became labored. His body shuttered and his eyes closed. At 6:25 p.m. an attending physician pronounced Davis’s time of death.

Earlier this month, the Oklahoma Pardon and Parole Board voted 4-1 to recommend granting clemency to Davis. Oklahoma Attorney General Scott Pruitt released a statement on June 7 in which he denounced the board’s clemency vote and Oklahoma Gov. Mary Fallin denied the recommendation, saying that Davis is to be executed as scheduled. “This convicted murderer lured his estranged girlfriend’s mother to his apartment and then brutally raped her, broke her jaw, stabbed her six times, puncturing her abdomen, and left her for dead while he drove around in her van,” Pruitt said. “He does not deserve our pity or clemency, and it is incomprehensible that four members of the pardon and parole board would usurp the judgment of a jury and deny this family justice.”

Of the last 11 death row inmates set for execution in Oklahoma, the board voted to recommend clemency only one other time, for Garry Thomas Allen. As with Davis, Fallin did not approve the board’s recommendation and Allen was executed Nov. 6, 2012. Davis is the second death row inmate set for execution this month. James Lewis DeRosa, 36, was put to death via lethal injection on June 18. The board did not recommend clemency for DeRosa. Both DeRosa and Davis opted to make no last meal requests. In fact, both offenders made no requests at all, Crenshaw said. This includes last meal requests as well as requests for visitors on execution day. Crenshaw said the fact that the two inmates chose to make no last meal requests is quite out of the ordinary. Davis and DeRosa were cell mates, Crenshaw said.

On April 15, the U.S. Supreme Court denied Davis’s final appeal and Pruitt requested an execution date be set. Davis was convicted of the Nov. 4, 2001, rape and murder of 52-year-old Josephine “Jody” Sanford. “In January 2003, Davis was found guilty by a jury for the November 2001 first-degree murder and rape of his girlfriend’s mother, Jody Sanford, 52, of Ponca City,” Pruitt said in a press release. “He was sentenced to death for the murder and 100 years for rape.”

According to court records, Davis returned home in the early morning hours of Nov. 4, 2001, after socializing with friends at a local club. When he arrived home, he found that his girlfriend, Stacey Sanford, and their 3-year-old daughter were missing. Davis called Jody Sanford, Stacey Sanford’s mother, to ask if she knew where his girlfriend and daughter were, court records state. “When Jody could not locate her daughter and granddaughter, she went to Stacey’s and Davis’s apartment.” Davis made several conflicting statements regarding what happened while Jody Sanford was in his home. According to court records, he changed his story multiple times and told different stories to his girlfriend, to police and to the jury at his trial. Court records indicate that Davis did admit to having sex with and stabbing Jody Sanford.

When Stacey Sanford arrived home shortly after 9 a.m., she found her mother’s body. “Stacey (Sanford) immediately called 911 and local police arrived to investigate,” court records state. “Meanwhile, Davis had been involved in a single-car accident while driving Jody’s van near the Salt Fork River Bridge. Davis was seriously injured after he was ejected from the van through the front windshield. Davis was transported to a local hospital for treatment.” Because Davis had a blood alcohol level of .09 percent, he was placed under arrest for driving under the influence and was later transferred to a regional hospital in Wichita, Kan., for treatment for injuries he sustained in the car accident. According to Pruitt, Jody Sanford had been beaten and stabbed six times and DNA evidence showed Davis had raped her. Davis had been in custody with the Oklahoma Department of Corrections since March 17, 2003.

 
 

Rapist and murderer executed by injection in Oklahoma

USAtoday.com

June 25, 2013

TULSA, Oklahoma (AP) — A man convicted of raping and murdering his girlfriend's mother in 2001 was put to death on Tuesday, despite a recommendation by Oklahoma's pardon and parole board to commute his death sentence after he apologized. Brian Darrell Davis, 39, received a lethal injection Tuesday at the Oklahoma State Penitentiary in McAlester. Davis was the third inmate to be executed by Oklahoma this year and the second in as many weeks.

Davis read a biblical-themed statement that included psalms and scripture-based references. "I shall not die but live. His word is will, and let His will be done," Davis said. "I give God the last word. Thank you." Moments later, Davis looked up at the ceiling as the lethal drug was injected. His eyes slowly closed and his left shoulder began to twitch as the lethal drug took effect. Davis was pronounced dead at 6:25 p.m., five minutes after the lethal drug was administered.

The state's parole board had suggested to Gov. Mary Fallin that she cut Davis' sentence to life without parole. Fallin rejected the board recommendation, with spokesman Aaron Cooper saying the governor reviewed Davis' file and was "satisfied that justice is being served in this case."

A jury convicted Davis in 2003 of first-degree murder and first-degree rape in the death of his girlfriend's mother, Josephine Sanford, 52. Davis was sentenced to death on the murder conviction and 100 years in prison for rape. The victim's daughter, Stacey Sanford, discovered her mother dead in November 2001 in the Ponca City apartment she shared with Davis. Prosecutors said Josephine Sanford had six stab wounds, a broken jaw and marks around her neck. DNA evidence showed Davis had sex with the victim.

Davis went to the parole board this month, took responsibility for the victim's death and apologized. He said the sexual contact was consensual and that a fight broke out after he remarked about its quality. "I was rude at the end," Davis said, appearing before the panel by video. "We were mad at each other after my comment. And one thing led to another. It just happened so quick." The board voted 4-1 in favor of clemency, prompting Attorney General Scott Pruitt to say the board was usurping the jury that convicted Davis and that the inmate deserved to die for a brutal crime. Davis' defense attorney, Jack Fisher, said as the execution date approached that justice was not being served. "By the end of the clemency hearing, four of the five board members were convinced that justice could only be served by a sentence of life without parole," Fisher said. "Why Governor Fallin would substitute her judgment for four members of the board is a mystery to me."

Death penalty opponents, who rallied Monday at the state Capitol to urge Fallin to show mercy, argued that Davis deserved life in prison, not death, after he showed remorse. They also suggested that since Davis, who is black, was convicted by an all-white jury in Kay County that it wasn't truly a jury of his peers and there could have been bias. "Our governor is in a position to make a wrong right," said Garland Pruitt, president of the Oklahoma City chapter of the NAACP. "Wrongs can be righted, hearts can be changed, but it takes those in office to help make those changes take place." Last week, the state executed James Lewis DeRosa, 36, for his part in the brutal killings of a LeFlore County ranch couple in 2000.

 
 

Brian Darrell Davis

ProDeathPenalty.com

In the early morning hours of November 4, 2001, Brian Davis returned home after socializing with some friends at a local club, only to find his girlfriend, Stacey Sanford, and their three-year-old daughter missing. He telephoned Josephine “Jody” Sanford, Stacey’s mother, to ask if she had seen or knew of their whereabouts. Jody told Davis that she did not know where they were. Ten to fifteen minutes later, Davis again telephoned Jody and asked her to go and find them. When Jody could not locate her daughter and granddaughter, she went to Stacey’s and Davis’s apartment.

Davis made several conflicting statements about the events that followed once Jody arrived, including a different version during his trial testimony. However, with the exception of his first statement where he claimed to have no memory of what had happened, Davis admitted in his other statements that he fatally stabbed Jody. Jody’s body was discovered shortly after 9:00 a.m. when her daughter Stacey returned home. Stacey immediately called 911 and local police arrived to investigate. Meanwhile, Davis had been involved in a single-car accident while driving Jody’s van near the Salt Fork River Bridge. Davis was seriously injured after he was ejected from the van through the front windshield. Davis was transported to a local hospital for treatment. Because there was an odor of alcohol about him, Davis was placed under arrest and his blood alcohol level was tested and registered .09%.

Later on, Davis was transported to a Wichita hospital for further care. Detective Donald Bohon interviewed Davis around 5:49 p.m. that afternoon. In his first statement, Davis was able to recount his activities at the club the night before, but could not remember who drove him home. He recalled that Stacey and his daughter were not at home when he arrived and he remembered telephoning Jody. He could remember Jody being in the living room with him, but after that moment, he could not recall anything until he woke up in the field after the accident.

Two days later, Detectives Bohon and Bob Stieber interviewed Davis again. Initially, Davis repeated the story he had previously told Detective Bohon. As Stieber questioned Davis, his memory improved. He remembered Jody talking to him about religion and his commitment to Stacey. An angry Davis told Jody that there would be no commitment and the two argued. Davis claimed that Jody stood up while she continued her lecture and that he then stood up, got angry, accused her of being in his face and told her to “back up,” pushing her backwards. Davis claimed Jody grabbed a knife and cut him on his thumb. Davis then hit Jody on the chin (apparently causing the fracture to her jawbone) and tried to grab the knife, getting cut in the process. Davis said he got the knife from Jody and told her to get back, stabbing her in the stomach. He stated that he and Jody began to wrestle down the hallway and that he stabbed Jody in the leg. Once in the bedroom, Davis told Jody to stop and he put the knife down. Jody asked Davis to let her go to which he agreed, but then Jody ran towards the knife. He grabbed the knife first and stabbed Jody on the left side. She then told Davis that she could not breathe and Davis told her to lie down on the bed. Davis said he tried to wrap her up tightly in the bedspread so she would not bleed to death. He claimed he heard her stop breathing, but then fell asleep. When he awoke, he panicked and fled in Jody’s van so he could think about what to do. Shortly thereafter, the crash occurred.

When Stieber confronted him with physical evidence showing Jody was strangled/choked, Davis conceded that he may have choked her while they were wrestling. However, he adamantly denied having consensual or non-consensual sex with her. Davis told his girlfriend Stacey three different versions of what happened that morning. At first, he told her that he believed her mother was an intruder and that he instinctively fought with her to protect his family home. Several months later, he told Stacey that her mother came to their apartment and that the two of them argued because Davis believed Jody was lying about her knowledge of Stacey’s whereabouts. He claimed he pushed Jody and Jody went to the kitchen and retrieved a knife. Davis said that he got his thumb cut when he tried to take the knife from Jody, and that once he got the knife, he stabbed Jody once in the stomach. The argument continued and the two of them ended up in the bedroom where Jody said let’s end this and Davis put the knife down. He claimed that she grabbed the knife as she walked towards the door and that he took it from her and stabbed her again.

Two to three months later after DNA tests showed that Davis’ semen was found in Jody’s vagina, Stacey confronted Davis and he told her a third version of what had happened. In this third version, he said that Jody came to their apartment upset about her husband’s infidelity. He claimed that he tried to comfort her and they ended up having consensual intercourse. After their sexual encounter, Davis said he was lying on the floor in the front room while Jody was in the kitchen and that all of a sudden he was struck in the back of the head with some object. He did not elaborate on the details of the stabbing, indicating that the events unfolded from there.

At trial, Davis testified that Jody came to his apartment after she could not locate Stacey and talked to him about his need to commit to her. Davis claimed he responded by making a remark about Jody’s husband’s level of commitment and his rumored infidelity. He said that Jody became emotional and acknowledged that she knew about her husband’s affair. Davis said he felt badly about his remark and got up and sat beside Jody and tried to comfort her. He claimed that Jody kissed him and that they ended up going back to the bedroom and having sex on the bedroom floor for fifteen to twenty minutes. Afterwards Davis got up and stumbled between the hallway and bedroom. He said that Jody was saying something about the time and he said that the sex was not worth his time and that he understood why Jody’s husband was having an affair. He claimed that an angry Jody then hit him in the back of the head with a lotion dispenser, stunning him. As Jody walked by Davis, Davis got up and chased her down the hallway, tackling her and biting her ankle. Jody kicked Davis in the mouth and ran to the kitchen and grabbed a knife. Davis then ran to the living room and grabbed the Play Station II. Davis asked Jody “what the hell are you doing?” and hit her in the face. Davis said Jody “came back with a defensive position” and that he used the Play Station II as a shield. Now angrier, Davis hit Jody again and tossed the Play Station II into a nearby chair. He backed her down the hallway while she swung the knife wildly, cutting Davis on his arm. Davis went into the bathroom for a towel and Jody retreated to the bedroom. He said that when he exited the bathroom he saw Jody in the bedroom doorway and that he ran at her, grabbed her, pulled her down and hit her in the face two to three times. As they were fighting, Davis pushed Jody’s head against the wall and struck her until she finally relinquished the knife. Jody retreated into the bedroom and asked Davis to let her go. Davis claimed he told Jody to go and put the knife on the nightstand. He said that when Jody walked by, she grabbed the knife, which angered him because he believed the fight was over. He then grabbed her shirt, pulled her towards him and put his arm around her neck squeezing as tightly as he could until she dropped the knife. He said that he grabbed the knife, that he was angry and that he stabbed Jody in the back. Jody then “swung back,” struck him in the groin and he fell to one knee. He claimed Jody continued to hit him and that he stabbed her several times as he tried to fend off her attack. He maintained that he never intended to kill Jody.

 
 

Davis v. State, 103 P.3d 70 (Okla.Crim. App. 2004). (Direct Appeal)

Background: Defendant was convicted by jury in the District Court, Kay County, Leslie D. Page, Associate District Judge, of one count of first degree malice murder and one count of first degree rape. Defendant appealed.

Holdings: The Court of Criminal Appeals, Strubhar, J., held that: (1) trial court did not abuse its discretion in allowing rebuttal testimony of witnesses; (2) sufficient evidence proved beyond a reasonable doubt that defendant intended to kill victim, as required to support conviction; (3) trial court did not abuse its discretion in limiting defendant's questioning of witnesses; (4) sufficient evidence supported trial court's finding that defendant's waiver of rights and subsequent statements were voluntary and therefore admissible; and (5) sufficient evidence supported jury's finding that victim's murder was especially heinous, atrocious or cruel. Affirmed.

STRUBHAR, Judge.

¶ 1 Brian Darrell Davis, Appellant, was tried by jury in the District Court of Kay County, Case No. CF–2001–733, where he was convicted of one count of First Degree Malice Murder and one count of First Degree Rape, After Former Conviction of Two Felonies. The jury set punishment at death for the murder after finding the murder was especially heinous, atrocious or cruel FN1 and one hundred (100) years imprisonment for the rape. The Honorable Leslie D. Page, who presided at trial, sentenced Davis accordingly. From this Judgment and Sentence, he appeals.FN2 FN1. 21 O.S.2001, § 701.12(4). FN2. Davis' Petition in Error was filed in this Court on March 26, 2003. Appellant's brief was filed March 5, 2004, and the State's brief was filed July 9, 2004. The case was submitted to the Court on July 15, 2004. Oral argument was held October 26, 2004.

FACTS

¶ 2 In the early morning hours of November 4, 2001, Davis returned home after socializing with some friends at a local club, only to find his girlfriend, Stacey Sanford, and their three-year-old daughter missing. He telephoned Josephine “Jody” Sanford, Stacey's mother, to ask if she had seen or knew of their whereabouts. Jody told Davis that she did not know where they were. Ten to fifteen minutes later, Davis again telephoned Jody and asked her to go and find them. When Jody could not locate her daughter and granddaughter, she went to Stacey's and Davis's apartment.

¶ 3 Davis made several conflicting statements about the events that followed once Jody arrived, including a different version during his trial testimony. However, with the exception of his first statement where he claimed to have no memory of what had happened, Davis admitted in his other statements that he fatally stabbed Jody. Jody's body was discovered shortly after 9:00 a.m. when her daughter Stacey returned home. Stacey immediately called 911 and local police arrived to investigate.

¶ 4 Meanwhile, Davis had been involved in a single-car accident while driving Jody's van near the Salt Fork River Bridge. Davis was seriously injured after he was ejected from the van through the front windshield. Davis was transported to a local hospital for treatment. Because there was an odor of alcohol about him, Davis was placed under arrest and his blood alcohol level was tested and registered .09%. Later on, Davis was transported to a Witchita hospital for further care.

¶ 5 Detective Donald Bohon interviewed Davis around 5:49 p.m. that afternoon. In his first statement, Davis was able to recount his activities at the club the night before, but could not remember who drove him home. He recalled that Stacey and his daughter were not at home when he arrived and he remembered telephoning Jody. He could remember Jody being in the living room with him, but after that moment, he could not recall anything until he woke up in the field after the accident.

¶ 6 Two days later, Detectives Bohon and Bob Stieber interviewed Davis again. Initially, Davis repeated the story he had previously told Detective Bohon. As Stieber questioned Davis, his memory improved. He remembered Jody talking to him about religion and his commitment to Stacey. An angry Davis told Jody that there would be no commitment and the two argued. Davis claimed that Jody stood up while she continued her lecture and that he then stood up, got angry, accused her of being in his face and told her to “back up,” pushing her backwards. Davis claimed Jody grabbed a knife and cut him on his thumb. Davis then hit Jody on the chin (apparently causing the fracture to her jawbone) and tried to grab the knife, getting cut in the process. Davis said he got the knife from Jody and told her to get back, stabbing her in the stomach. He stated that he and Jody began to wrestle down the hallway and that he stabbed Jody in the leg. Once in the bedroom, Davis told Jody to stop and he put the knife down. Jody asked Davis to let her go to which he agreed, but then Jody ran towards the knife. He grabbed the knife first and stabbed Jody on the left side. She then told Davis that she could not breathe and Davis told her to lie down on the bed. Davis said he tried to wrap her up tightly in the bedspread so she would not bleed to death. He claimed he heard her stop breathing, but then fell asleep. When he awoke, he panicked and fled in Jody's van so he could think about what to do. Shortly thereafter, the crash occurred. When Stieber confronted him with physical evidence showing Jody was strangled/choked, Davis conceded that he may have choked her while they were wrestling. However, he adamantly denied having consensual or non-consensual sex with her.

¶ 7 Davis told his girlfriend, Stacey Sanford, three different versions of what happened that morning. At first, he told her that he believed her mother was an intruder and that he instinctively fought with her to protect his family home. Several months later, he told Stacey that her mother came to their apartment and that the two of them argued because Davis believed Jody was lying about her knowledge of Stacey's whereabouts. He claimed he pushed Jody and Jody went to the kitchen and retrieved a knife. Davis said that he got his thumb cut when he tried to take the knife from Jody, and that once he got the knife, he stabbed Jody once in the stomach. The argument continued and the two of them ended up in the bedroom where Jody said let's end this and Davis put the knife down. He claimed that she grabbed the knife as she walked towards the door and that he took it from her and stabbed her again.

¶ 8 Two to three months later after DNA tests showed that Davis' semen was found in Jody's vagina, Stacey confronted Davis and he told her a third version of what had happened. In this third version, he said that Jody came to their apartment upset about her husband's infidelity. He claimed that he tried to comfort her and they ended up having consensual intercourse. After their sexual encounter, Davis said he was lying on the floor in the front room while Jody was in the kitchen and that all of a sudden he was struck in the back of the head with some object. He did not elaborate on the details of the stabbing, indicating that the events unfolded from there.

¶ 9 At trial, Davis testified that Jody came to his apartment after she could not locate Stacey and talked to him about his need to commit to her. Davis claimed he responded by making a remark about Jody's husband's level of commitment and his rumored infidelity. He said that Jody became emotional and acknowledged that she knew about her husband's affair. Davis said he felt badly about his remark and got up and sat beside Jody and tried to comfort her. He claimed that Jody kissed him and that they ended up going back to the bedroom and having sex on the bedroom floor for fifteen to twenty minutes. Afterwards Davis got up and stumbled between the hallway and bedroom. He said that Jody was saying something about the time and he said that the sex was not worth his time and that he understood why Jody's husband was having an affair. He claimed that an angry Jody then hit him in the back of the head with a lotion dispenser, stunning him. As Jody walked by Davis, Davis got up and chased her down the hallway, tackling her and biting her ankle. Jody kicked Davis in the mouth and ran to the kitchen and grabbed a knife. Davis then ran to the living room and grabbed the Play Station II. Davis asked Jody “what the hell are you doing?” and hit her in the face. Davis said Jody “came back with a defensive position” and that he used the Play Station II as a shield. Now angrier, Davis hit Jody again and tossed the Play Station II into a nearby chair. He backed her down the hallway while she swung the knife wildly, cutting Davis on his arm. Davis went into the bathroom for a towel and Jody retreated to the bedroom. He said that when he exited the bathroom he saw Jody in the bedroom doorway and that he ran at her, grabbed her, pulled her down and hit her in the face two to three times. As they were fighting, Davis pushed Jody's head against the wall and struck her until she finally relinquished the knife. Jody retreated into the bedroom and asked Davis to let her go. Davis claimed he told Jody to go and put the knife on the nightstand. He said that when Jody walked by, she grabbed the knife, which angered him because he believed the fight was over. He then grabbed her shirt, pulled her towards him and put his arm around her neck squeezing as tightly as he could until she dropped the knife. He said that he grabbed the knife, that he was angry and that he stabbed Jody in the back. Jody then “swung back,” struck him in the groin and he fell to one knee. He claimed Jody continued to hit him and that he stabbed her several times as he tried to fend off her attack. He maintained that he never intended to kill her. Other facts will be discussed as they become relevant to the propositions of error raised for review.

¶ 10 In his first proposition of error, Davis claims the trial court abused its discretion in allowing the testimony of State's witnesses, William Parr and Russell Busby, in rebuttal because their identity had not been disclosed during pre-trial discovery. He maintains the Oklahoma Criminal Discovery Code FN3 (hereinafter “Code”) abrogated the common law “no notice” rule regarding rebuttal witnesses and requires disclosure and endorsement of all known or reasonably anticipated witnesses, including rebuttal witnesses. Accordingly, Davis maintains admission of Parr's and Busby's testimony was error.FN4 Because Davis objected to these witnesses on this basis, this claim has been preserved for review. FN3. 22 O.S.Supp.2002, § 2002. FN4. The record shows the State called five witnesses in rebuttal at the close of the defense's case-in-chief, three of which were endorsed as potential witnesses and are not the subject of this claim. Parr testified that he knew the victim for over ten years and that she had a peaceable character. Busby testified that he was qualified to conduct crime scene reconstruction and blood stain interpretation. Busby then gave his opinions about the crime scene, specifically contradicting certain portions of Davis' trial testimony.

¶ 11 Title 22 O.S.2002, § 2002(A)(1)(a) requires the State to disclose upon the defense's request “the names and addresses of witnesses which the State intends to call at trial, together with their relevant, written or recorded statement, if any, or if none, significant summaries of any oral statement.” Davis maintains that because the Code does not specifically exclude rebuttal witnesses from the State's compulsory disclosure duty and compels the defense to make known to the State the witnesses the defense intends to call at trial, § 2002(A)(1)(a) should be construed to require the State to include potential rebuttal witnesses in its endorsements and discovery materials to effectuate meaningful reciprocal discovery.

¶ 12 We have yet to consider the exact question presented, i.e., whether the Code has changed the common law rule and now requires the State to disclose the names and addresses of its rebuttal witnesses. To date, the Code's “intends to call at trial” language has been interpreted by this Court to include only those witnesses the State intends to call or reasonably anticipates calling in its case-in-chief to prove its case and to refute any known or anticipated defenses. In Short v. State, 1999 OK CR 15, 980 P.2d 1081, cert. denied, 528 U.S. 1085, 120 S.Ct. 811, 145 L.Ed.2d 683 (2000), the defendant sought to present a witness in his case-in-chief for whom no notice had been given under the Code. Short argued on appeal that the witness was a rebuttal witness for whom no notice was required as the witness was being offered to rebut testimony presented during the State's case-in-chief. Short, 1999 OK CR 15, ¶ 24, 980 P.2d at 1094. We found the witness was not a true rebuttal witness in the legal sense, noting every defense witness is a “rebuttal” witness to the State's case. Short, 1999 OK CR 15, ¶ 25, 980 P.2d at 1094. In so holding, we affirmed our position concerning notice of rebuttal witnesses, stating that “under usual trial proceedings, rebuttal is an opportunity for the State to present witnesses, for whom no notice is required, to rebut the defense case-in-chief.” Id. (emphasis added) Thus, the Short Court found no modification by the enactment of the Code of the long-standing rule that the State is not required to endorse rebuttal witnesses.

¶ 13 This same position was taken in Thornburg v. State, 1999 OK CR 32, ¶ 27, 985 P.2d 1234, 1245, cert. denied, 529 U.S. 1113, 120 S.Ct. 1970, 146 L.Ed.2d 800 (2000) (post-Code case) and Cheney v. State, 1995 OK CR 72, ¶ 70, 909 P.2d 74, 91 (a case tried after this Court's promulgation of almost identical discovery rules in Allen v. District Court of Washington County), when this Court held trial counsel was not ineffective in failing to object to rebuttal testimony based on lack of notice or surprise because the State is not required to endorse its rebuttal witnesses.

¶ 14 We take this opportunity to clarify this Court's position on the issue of the notice required under the Code. There is nothing in the Code that explicitly rejects or revokes the long-established rule that the State need not give notice of its rebuttal witnesses. That said, we emphasize this Court's condemnation of parties who are not forthcoming with their respective discovery obligations. The purpose of our reciprocal discovery code is to provide for the adequate exchange of information to facilitate informed pleas, to expedite trials, to minimize surprises/trial by ambush, to afford the parties the opportunity for effective cross-examination and to meet the requirements of due process. After all, the true purpose of a criminal trial is the ascertainment of the facts. We interpret the phrase “witnesses the State intends to call at trial” to mean a person or persons whom the State reasonably anticipates it is likely to call at trial, including those witnesses, especially experts, whose testimony is known or anticipated both prior to and after receipt of the defense's discovery materials.

¶ 15 No notice, however, is required for rebuttal witnesses. We recognize that a trial is not a scripted proceeding; rather, it is a process that ebbs and flows. Every lawyer and trial judge knows that during the trial process, things change and the best laid strategies and expectations may quickly become unsuitable: witnesses who have been interviewed vacillate or change their statements; events that did not loom large at preliminary hearing or throughout the pretrial proceedings may in reality become a focal point at trial. Thus, there must be some flexibility.

¶ 16 To ensure fairness, our trial courts are vested with the responsibility to determine whether proposed rebuttal witnesses are truly being offered to rebut evidence presented by the defense during its case-in-chief which could not be reasonably anticipated. If the so-called rebuttal witness is not a bona fide rebuttal witness, but rather a witness who could and should have been called in the State's case-in-chief and for whom no notice was given, the trial court should exclude the witness's testimony upon proper objection. If the rebuttal witness is offered to rebut specific evidence presented by the defense, the trial court should admit the testimony. We acknowledge there are conceivable circumstances where a failure to name a witness might be found to be a willful act designed to circumvent discovery rules. However, our existing rules as outlined above resolve the issue as well as the concerns raised by Davis of the nefarious prosecutor who deliberately withholds the names of witnesses the State intends to call at trial by labeling these witnesses as rebuttal witnesses in an attempt to hide significant parts of the State's case and to ambush the defense. Moreover, any unfairness that results from a lack of notice of a true rebuttal witness can usually be remedied by a continuance. We have held that if an unendorsed witness' testimony will require a defendant to produce additional evidence or other rebuttal witnesses, the defendant is entitled to a continuance of sufficient time to prepare to defend against the rebuttal testimony. Griffin v. State, 1971 OK CR 492, ¶ 12, 490 P.2d 1387, 1389. Here, Davis did not request any continuance.

¶ 17 We must now decide if the trial court properly admitted Parr's and Busby's testimony in rebuttal. The State called both Parr and Busby specifically to rebut claims Davis made during his trial testimony of which the State had no notice and in which Davis repudiated his prior statements and gave yet a sixth version of the events that happened between Jody and him. At trial, Davis testified that Jody started the altercation by hitting him in the head with the lotion dispenser after he made disparaging remarks about her sexual performance. He portrayed Jody as the aggressor throughout much of the fight to support his self-defense and mutual combat theories. Such testimony made Parr's testimony of Jody's peaceable character relevant and admissible. Likewise, Busby's testimony was relevant to refute Davis' claims made for the first time during his trial testimony concerning the manner and locations of the knife attack that were different than his pre-trial statements. Based on this record, we find that the trial court did not abuse its discretion in allowing the rebuttal testimony of Parr and Busby. Therefore, no relief is required.

¶ 18 In his second proposition of error, Davis contends upholding and allowing the continuation of the long-standing “no notice” rule in modern criminal discovery violates a capital defendant's Sixth, Eighth and Fourteenth Amendment rights. According to Davis, it is unfair to allow the State to label an expert witness as a rebuttal witness when the expert's testimony can be reasonably expected or anticipated from the defense's disclosure duties under the Code. We agree that the State should disclose witnesses whose testimony is known or anticipated after the State receives the defense's discovery materials. However, that is not the situation presented in this case.

¶ 19 Davis notes in several instances in his brief that the defense is not required under the Code to give notice of the defendant's own anticipated testimony if he chooses to testify. Here, the State had not been given any notice or indication prior to trial that Davis would testify.FN5 Nor did the defense reveal which, if any, of his prior statements he would advocate at trial or whether he would present a different version of the fateful events as he did. Under these circumstances, the State could not reasonably anticipate what rebuttal evidence would be relevant until Davis testified. FN5. The record shows the prosecutor did not engage Busby to conduct any crime scene reconstruction/investigation until the second day of trial when defense counsel announced during voir dire that Davis would testify.

¶ 20 Interestingly, Davis maintains the State knew or should have reasonably anticipated that it would call a crime scene reconstructionist because Davis had made statements about the location and circumstances of the knife attack from the beginning. Yet, he claims unfair surprise by this same witness whose necessity should have been so obvious to the prosecution. He maintains that the defense was unprepared to refute Busby's qualifications and conclusions due to the lack of notice of such a potential rebuttal witness. We find this assertion somewhat disingenuous. The defense was well aware of the State's right to present rebuttal evidence and the very real possibility the State would attempt to rebut Davis' trial testimony. Had Davis not taken the stand or changed his story, Busby's testimony would have been inadmissible in rebuttal. Davis has no legitimate constitutional claim that his rights were violated when it was he who elected to take the stand and offer yet another version of the events that attempted to account for the State's evidence, but that the State could ultimately discredit in rebuttal. Based on this record, we find that Davis' constitutional rights were not violated by the lack of notice of Busby's testimony.

¶ 21 Davis claims in his third proposition that his first-degree murder conviction must be reversed because the trial evidence was insufficient to prove beyond a reasonable doubt that he intended to kill Jody Sanford. Davis relies on his trial testimony to argue the evidence showed that the parties engaged in mutual combat, that it was Sanford who introduced the knife into the fight and that, at most, he is guilty of heat of passion manslaughter.

¶ 22 In reviewing sufficiency challenges, we review the direct and circumstantial evidence, crediting all inferences that could have been drawn in the State's favor, to determine if any rational trier of fact could have found the essential elements of the charged crime beyond a reasonable doubt. Black v. State, 2001 OK CR 5, ¶ 34, 21 P.3d 1047, 1062, cert. denied, 534 U.S. 1004, 122 S.Ct. 483, 151 L.Ed.2d 396 (2001); Spuehler v. State, 1985 OK CR 132, ¶ 7, 709 P.2d 202, 203–04. “Pieces of evidence must be viewed not in isolation but in conjunction, and we must affirm the conviction so long as, from the inferences reasonably drawn from the record as a whole, the jury might fairly have concluded the defendant was guilty beyond a reasonable doubt.” Matthews v. State, 2002 OK CR 16, ¶ 35, 45 P.3d 907, 919–20, cert. denied, 537 U.S. 1074, 123 S.Ct. 665, 154 L.Ed.2d 570 (2002).

¶ 23 To prove malice aforethought murder, the State must show the defendant acted with a deliberate intention to take the life of the victim without justification. Black, 2001 OK CR 5, ¶ 35, 21 P.3d at 1062. This intent may be formed instantly before committing the homicidal act. 21 O.S.2001, § 703. The law infers a design to effect death from the fact of killing unless the circumstances raise a reasonable doubt that such design existed. 21 O.S.2001, § 702. When direct evidence of a person's intent is lacking, jurors must rely on circumstantial evidence to ascertain the person's intent at the time of the homicidal act. Black, 2001 OK CR 5, ¶ 35, 21 P.3d at 1062.

¶ 24 The record shows Davis received jury instructions on the lesser-related offense of first-degree heat of passion manslaughter and the defenses of self-defense and voluntary intoxication. The jury heard the evidence, including Davis' trial testimony, and rejected his claim that he was engaged in mutual combat and that he stabbed Sanford in a heat of passion. The jury's verdict is supported by the record. All of Davis' accounts of his encounter with Sanford that early morning were discredited in some form or fashion. At trial, Davis repudiated his five statements made prior to trial, claiming he had lied to spare/protect the Sanford family as well as his own family. He testified his trial version was the truth. However, Russell Busby, the crime scene reconstructionist, testified that the blood patterns in the back bedroom were inconsistent with Davis' trial version of the events that Sanford was standing in the back bedroom while she was being stabbed. The jury was free to consider the fact that Davis changed his story to fit the facts as he learned them in evaluating his credibility. The fact that Davis' statements and his trial testimony were inconsistent with each other and with the physical evidence was a relevant consideration in determining his truthfulness and ultimately his guilt. See McElmurry v. State, 2002 OK CR 40, ¶ 42, 60 P.3d 4, 19.

¶ 25 The uncontroverted evidence showed Davis called Sanford in the early morning hours of November 4th looking for Stacey and his daughter. Despite being told they were not there, he called again within fifteen minutes and thereafter Sanford left her home and ended up at Davis' apartment. Later that morning, Sanford was found dead, half-naked, bruised and stabbed multiple times. Around the same time, Davis was involved in a serious accident that occurred as he was driving Sanford's van some nine miles away from his apartment. The jury could easily have concluded the events unfolded more like Davis described in his second statement in which Davis admitted getting mad at Sanford after she lectured him on commitment and church. He started the fight with Sanford because he felt she was in his “face” and that she was not being truthful about Stacey's whereabouts. This statement provided the plausible motive in this case. The jury had legitimate reasons to disbelieve Davis' claims that he never intended to kill Sanford in light of the severity of her stab wounds and other injuries and his inconsistent stories about the events. Based on this record, we find the evidence was sufficient to sustain the verdict.

¶ 26 In his fourth proposition, Davis claims the trial court committed reversible error when it refused the uniform instructions he requested on the definition of circumstantial evidence and the need for circumstantial evidence to exclude reasonable theories of innocence. The record shows these instructions were not discussed during the instruction conference. Rather, defense counsel requested them just before the jury retired to deliberate and the trial court denied the request.

¶ 27 “An instruction on circumstantial evidence is only required when the State's evidence consists of entirely circumstantial evidence.” Wade v. State, 1992 OK CR 2, ¶ 19, 825 P.2d 1357, 1362. When the State relies on both direct and circumstantial evidence for its proof, the jury need not be specially instructed of circumstantial proof. Roubideaux v. State, 1985 OK CR 105, ¶ 24, 707 P.2d 35, 39. Here, the State's case was not entirely circumstantial as there was direct evidence Davis killed Sanford. Simply because one of the elements is proved by circumstantial evidence does not make the case an entirely circumstantial case. A review of the record shows the instructions given correctly stated the applicable law and included all of Davis' theories of defense. Accordingly, we find the trial court did not abuse its discretion in denying Davis' late request for these circumstantial evidence instructions.

¶ 28 In his fifth proposition of error, Davis claims the trial court abused its discretion when it prohibited him from questioning Tom Sanford, Stacey Sanford and Raymond Pollard, about Tom Sanford's alleged extra-marital affair, arguing such evidence was relevant to Jody Sanford's state of mind that fateful morning and would have supported his claim that the sexual encounter between them was consensual. He maintains the trial court's ruling denied him his constitutional right to confront witnesses against him and his right to compulsory process.

¶ 29 Before calling Tom Sanford to testify, the State moved in limine to prohibit the defense from questioning him about whether or not he had engaged in an extra-marital affair. The State argued that Tom Sanford's participation in any extra-marital affair was not relevant to the case. The defense argued it had the right to address the subject since the State had presented evidence of it through Stacey Sanford FN6 and such evidence was relevant to Jody Sanford's state of mind to show whether she would have given consent to have sex with Davis. The State responded that it had not offered evidence that an affair had actually taken place, only that Davis had told Stacey that her mother was upset about an affair. The trial court ruled that evidence of an actual affair was not relevant, but even if it were, the prejudicial effect outweighed any probative value it might have had. FN6. Stacey had earlier testified about Davis' third statement to her in which he admitted, after being confronted with DNA evidence, to having sex with her mother before he killed her. Davis told Stacey that her mother was upset about her husband cheating on her and that Davis' attempts to comfort her led to consensual sexual intercourse.

¶ 30 It is well established that the scope of cross-examination and the admission of evidence lie in the sound discretion of the trial court, whose rulings will not be disturbed unless that discretion is clearly abused, resulting in manifest prejudice to the accused. Williams v. State, 2001 OK CR 9, ¶ 94, 22 P.3d 702, 724, cert. denied, 534 U.S. 1092, 122 S.Ct. 836, 151 L.Ed.2d 716 (2002); Reeves v. State, 1991 OK CR 101, ¶ 30, 818 P.2d 495, 501. There is no such abuse of discretion in the present case. Whether Jody Sanford had heard a rumor of an affair and whether she believed it as true would not have been rendered more or less probable by the admission of evidence indicating whether or not Tom Sanford had actually engaged in an extra-marital affair. The issue was Jody Sanford's existing state-of-mind to which Davis testified. Davis repeated his claim under oath that Sanford was upset about her husband's alleged affair in support of his claim that they had consensual sex. Therefore, evidence from Sanford that he actually engaged in an affair was not relevant to the issues in controversy.

¶ 31 The same is true for Raymond Pollard and Stacey Sanford. The defense sought to question Pollard in its case-in-chief about seeing Tom Sanford in the company of a woman, not his wife. Such evidence was irrelevant to the issue of consent or Sanford's state of mind at the time of her death. Likewise, the defense wanted to ask Stacey if she had heard the rumors Davis had heard about her father being involved in an extra-marital affair and whether she knew if her mother had heard or knew of the rumors. Defense counsel did not indicate that he had any knowledge to support an offer of proof that Stacey knew her mother was aware of any alleged affair and was affected by it in the days before her death. Based on this record, it cannot be said the trial court abused its discretion in limiting defense counsel's questioning of these witnesses. Accordingly, we find this claim has no merit.

¶ 32 In his sixth proposition of error, Davis contends the introduction of his statements to Detective Bohon and Detective Stieber violated his Fifth Amendment rights because the State failed to prove by a preponderance of the evidence that he knowingly and voluntarily waived his right to remain silent/privilege against self-incrimination. He also claims, as he did below, that his statement was not voluntary within the meaning of the Due Process Clause of the Fourteenth Amendment due to the coercive police tactics utilized in obtaining the statement from a person in his condition.

¶ 33 Voluntariness of a confession is judged from the totality of the circumstances, including the characteristics of the accused and the details of the interrogation. Van White v. State, 1999 OK CR 10, ¶ 45, 990 P.2d 253, 267; Lewis v. State, 1998 OK CR 24, ¶ 34, 970 P.2d 1158, 1170, cert. denied, 528 U.S. 892, 120 S.Ct. 218, 145 L.Ed.2d 183 (1999). See also Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 1141, 89 L.Ed.2d 410, 421 (1986). For a waiver of rights to be effective, the State must show by a preponderance of the evidence that the waiver was the product of a free and deliberate choice rather than intimidation, coercion, or deception and that the waiver was made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it. Lewis, 1998 OK CR 24, ¶ 34, 970 P.2d 1158, 1170; Smith v. State, 1996 OK CR 50, ¶ 16, 932 P.2d 521, 529, cert. denied, 521 U.S. 1124, 117 S.Ct. 2522, 138 L.Ed.2d 1023 (1997).

¶ 34 The trial court held a Jackson v. DennoFN7 hearing to consider Davis' objection that his waiver of rights and subsequent statement were involuntary. It found, after considering the totality of the circumstances, that the question of the voluntariness of Davis' waiver was a fact question to be resolved by the jury and that a finding of involuntariness as a matter of law was not justified. This Court will not reverse a trial court's ruling where the trial court's decision to admit a statement is supported by competent evidence of the voluntary nature of the statement. Bryan v. State, 1997 OK CR 15, ¶ 17, 935 P.2d 338, 352, cert. denied, 522 U.S. 957, 118 S.Ct. 383, 139 L.Ed.2d 299 (1997). FN7. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964) established a defendant's right to an in camera hearing on the voluntariness of his confession.

¶ 35 The evidence supports the trial court's finding that Davis' waiver of rights and subsequent statements were voluntary and therefore admissible. At the Jackson v. Denno hearing, the State presented the testimony of both Detectives Bohon and Stieber. The State also provided the court with transcripts of both interviews. Detective Bohon testified that before he interviewed Davis the first time on November 4th, he consulted hospital medical staff about what, if any, medications Davis had been or was taking and the best time to speak with him to ensure Davis would be coherent and free from the influence of any medications. Bohon testified that prior to any questioning, he read Davis his Miranda warning from the standard printed sheet, including the two waiver questions. Bohon said that Davis responded affirmatively when asked if he understood his rights and appeared to do so. Davis then agreed to tell Bohon what he could remember. Bohon testified that during the interview Davis was conscious and did not appear to be under the influence of any type of drug or alcohol. His speech was not slurred and he gave understandable and reasonable responses to the questions posed. Furthermore, Davis appeared oriented to time and place. Bohon did not threaten, force, pressure or promise Davis anything in order to get him to make a statement. Bohon characterized the conversation as “cordial” and “pretty open.” A review of the transcript confirms Bohon's testimony.

¶ 36 Detectives Bohon and Stieber followed the same protocol when they interviewed Davis on November 6th. Bohon again conferred with hospital medical staff about Davis' medication regimen and its effects on him so Davis would be lucid and clear-headed during anticipated questioning. Prior to any questioning, Stieber read to Davis the Miranda warning from his Miranda card and asked Davis if he understood his rights and wanted to talk with him. Davis said that he understood his rights and that he would answer what he could. At no time during the interview did Davis indicate that he wanted to terminate the interview or consult a lawyer. Davis appeared to understand all questions asked and gave appropriate responses to the questions posed. The specificity of detail Davis was able to provide and the back and forth nature of the interview demonstrated that he was fully alert and comprehended what others said to him, thereby supplying strong evidence that he understood his rights as presented to him as well.

¶ 37 In addition, a review of both interviews shows that Davis' statements were not extracted or coerced by the exertion of improper influence. This is especially true of Davis' first statement since he did not confess and claimed he had no memory of what had happened. The record does reveal that during the second interview in which Davis ultimately confessed, Stieber did use phrases like “cold blooded killer” and “cold blooded bastard” to spur Davis to provide details of the events that culminated in Sanford's death. The comments complained of were not coercive in nature; the detectives neither threatened Davis nor implied promises of benefits or leniency. Rather, the detectives explained to Davis that the evidence showed that he was responsible for Sanford's death, leaving them to conclude that he either planned it and carried it out making him a cold blooded killer or that some unplanned fight erupted and Sanford was stabbed and killed. Only Davis could provide the answer and they encouraged him to do so. After reviewing the totality of the circumstances, we find the trial court did not err in its ruling. Accordingly, no relief is required.

¶ 38 In his seventh proposition of error, Davis contends the trial evidence was insufficient to support the jury's finding that Sanford's murder was especially heinous, atrocious or cruel. Acknowledging Sanford's injuries, he maintains that these wounds were inflicted either entirely or in large measure under circumstances of mutual combat and that the aggravating circumstance only applies to those acts which occur after the intent to kill is formed. Davis submits that because we cannot know at what moment the intent to kill was formed under the evidence presented, we must find the evidence of this aggravating circumstance insufficient. We disagree.

¶ 39 This Court upholds a jury's finding of this aggravating circumstance when it is supported by proof of conscious serious physical abuse or torture prior to death; evidence that a victim was conscious and aware of the attack supports a finding of torture. Black, 2001 OK CR 5, ¶ 79, 21 P.3d at 1074. As discussed in Proposition 3, supra, the evidence was sufficient for a rational jury to conclude that Davis intentionally killed Sanford, his statements notwithstanding. The jury rejected Davis' self defense and mutual combat theories. There was evidence of a struggle during which Davis stabbed Sanford six times penetrating vital organs. She later died from the blood loss associated with these wounds. Davis also beat Sanford, broke her jaw and attempted to choke her as evidenced by the petechiae in her eyes. Sanford was found naked from the waist down and her shirt and bra were pushed up over her breasts. She had a bite mark on her ankle and a possible bite mark on her thigh. Davis' sperm was found in her vagina and the jury concluded Davis raped Sanford at some point during the attack. In his many statements, Davis never claimed Sanford was unconscious until sometime after she had been stabbed. Evidence of such an assault and rape on a 52–year–old woman standing 4'11? by a young man standing 5'10? weighing 245 lbs. accompanied by Sanford's injuries would allow a rational jury to conclude that Davis intended to kill Sanford when he stabbed her six times and that he inflicted trauma causing conscious serious physical abuse or torture prior to Sanford's death. Therefore, we find the evidence, when viewed in the light most favorable to the State, was sufficient to find beyond a reasonable doubt that Sanford's murder was especially heinous, atrocious or cruel. Black, 2001 OK CR 5, ¶ 79, 21 P.3d at 1074.

¶ 40 In his eighth proposition of error, Davis claims he was denied a fair trial by the admission of prejudicial, irrelevant and privileged marital communications consisting of statements both oral and written he made to Stacey Sanford while awaiting trial. The record shows that Davis did not object to much of the evidence about which he now complains and that the trial court overruled the objections he did make, finding Davis had not proved the existence of a common law marriage.

¶ 41 The marital privilege, set forth at 12 O.S.2001, § 2504, applies equally to common law and ceremonial marriages. Blake v. State, 1988 OK CR 272, ¶ 4, 765 P.2d 1224, 1225 (quoting K. McKinney, Privileges, 32 Okla.L.Rev. 307, 326 (1979)). However, before an accused can take advantage of the marital privilege to exclude evidence, he or she must first prove, by clear and convincing evidence, the existence of a valid marriage. Blake, 1988 OK CR 272, ¶ 4, 765 P.2d at 1225. To establish a valid common law marriage, there must be evidence of an actual mutual agreement between the spouses to be husband and wife, a permanent relationship, an exclusive relationship—proved by cohabitation as man and wife, and the parties to the marriage must hold themselves out publicly as man and wife. Id.

¶ 42 Although Stacey Sanford and Davis lived and had children together, Stacey Sanford described her relationship with Davis as boyfriend and girlfriend. She testified that it was Davis who told her parents she was pregnant with their second child because she was afraid her parents would be angry with her for getting pregnant again without her and Davis being married. She further testified that Davis had talked with her mother about marrying her. In his November 6th interview with detectives, Davis told them Sanford came to his apartment and started lecturing him about the need for Davis and Stacey to commit. He and Stacey were having some problems at that time, but Davis said they were working things out and were “going to get married and all of that.” At trial, Davis described Stacey as his fiancé and mother of his children. When asked if the two of them had held each other out as husband and wife, Davis stated “[j]ust as—as far as engagement, that's about it, common law married.” Later in his testimony, Davis testified that he and Stacey were having problems and that they had been engaged in the past, but were not at the time of Sanford's death. The foregoing testimony presented at trial was insufficient to establish the elements of a valid common law marriage by clear and convincing evidence. Accordingly, we find the trial court did not err in allowing evidence of Davis' statements to Stacey Stanford at trial over Davis' marital privilege objection.

¶ 43 In addition, Davis' claim that the evidence was irrelevant and unduly prejudicial is without merit. Davis' pre-trial statements explaining the events of that morning to Stacey and his letters to her urging her to stand by him were unquestionably relevant to the issues in dispute and to Davis' credibility. Such evidence was not unfairly prejudicial. Accordingly, we find the trial court did not abuse its discretion in admitting the complained-of evidence. Williams, 2001 OK CR 9, ¶ 94, 22 P.3d at 724.

¶ 44 In his final proposition of error, Davis claims his death sentence should be vacated or modified because the aggravating circumstances were not charged in an information or indictment, were not subjected to adversarial testing at a preliminary hearing, and were therefore not determined to probably exist by a neutral and detached magistrate. Thus, Davis claims the District Court never acquired jurisdiction over the aggravating circumstances.

¶ 45 Davis relies upon the United States Supreme Court's holdings in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Under these cases and the Supreme Court's interpretation of them in Sattazahn v. Pennsylvania, 537 U.S. 101, 123 S.Ct. 732, 154 L.Ed.2d 588 (2003), Davis maintains aggravating circumstances “operate as the functional equivalent of an element of a greater offense.” See Ring, 536 U.S. at 609, 122 S.Ct. at 2443, quoting from Apprendi, 530 U.S. at 494, n. 19, 120 S.Ct. 2348. Thus, Davis contends, aggravating circumstances-as the functional equivalent of an element of a greater offense-must be charged in an indictment or information and then be presented and established at a preliminary hearing for a death sentence to be constitutionally sound.

¶ 46 We have previously rejected this claim. Primeaux v. State, 2004 OK CR 16, ¶ 14–16, 88 P.3d 893, 899–900, cert. denied, 543 U.S. 944, 125 S.Ct. 371, 160 L.Ed.2d 257 (2004). See also Thacker v. State, 2004 OK CR 32, ¶ 9–23, 100 P.3d 1052. We find these cases dispositive. Accordingly, no relief is required.

MANDATORY SENTENCE REVIEW

¶ 47 Pursuant to 21 O.S.2001, § 701.13(C), we must now determine (1) whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor; and (2) whether the evidence supports the jury's finding of aggravating circumstances as enumerated in 21 O.S.2001, § 701.12. In regard to the first inquiry, we find that Davis' death sentence did not result from passion, prejudice or other arbitrary factor. In regard to the second inquiry, the jury was instructed on the three aggravating circumstances alleged and found the existence of only one aggravating circumstance: (1) that the murder was especially heinous, atrocious or cruel. FN8 As discussed in Proposition 7, we find that this aggravating circumstance is supported by sufficient evidence. Additionally, the jury was instructed on ten (10) specific mitigating circumstances FN9 and instructed to consider any other mitigating circumstances that were present. Upon reviewing the record, we find that the aggravating circumstance outweighed the mitigating circumstances and that Davis' death sentence is factually substantiated and appropriate. Accordingly, the Judgment and Sentence of the trial court is AFFIRMED.

FN8. The jury rejected the following aggravators: 1) Davis committed the murder for the purpose of avoiding or preventing a lawful arrest or prosecution; and 2) the existence of a probability that Davis would commit criminal acts of violence that would constitute a continuing threat to society. 21 O.S.2001, §§ 701.12(5) & (7) FN9. These included: 1) Davis did not have any significant history of prior violent criminal activity; 2) Davis' capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law; 3) Davis was under the influence of mental/emotional disturbance; 4) Davis acted under circumstances which tended to justify, excuse or reduce the crime; 5) Davis is likely to be rehabilitated; 6) Davis cooperated with authorities; 7) Davis' age; 8) Davis' character; 9) Davis' emotional/family history; and 10) Davis was a model inmate while in jail and has positively influenced other inmates.

JOHNSON, P.J., LUMPKIN and CHAPEL, JJ.: concur. LILE, V.P.J.: concur in result.

 
 

Davis v. State, 123 P.3d 243 (Okla.Crim. App. 2005). (PCR)

Background: Following appellate affirmance of convictions for first degree murder and first degree rape and imposition of death penalty, 103 P.3d 70, 2004 OK CR 36, defendant sought post-conviction relief.

Holdings: The Court of Criminal Appeals, A. Johnson, J., held that: (1) ineffective assistance of trial counsel claims in post-conviction petition would not be barred when appellate counsel and trial counsel were the same; (2) trial counsel's failure to object to State's alleged gender discrimination in use of peremptory challenges was not deficient assistance; (3) and defendant failed to establish ineffective assistance of counsel. Application denied. C. Johnson, J., concurred specially and filed opinion. Lumpkin, V.P.J., concurred in part, dissented in part, and filed opinion.

OPINION DENYING APPLICATION FOR POST–CONVICTION RELIEF, MOTION FOR DISCOVERY AND REQUEST FOR EVIDENTIARY HEARING

A. JOHNSON, Judge.

¶ 1 Brian Darrell Davis, Petitioner, was convicted by jury of First Degree Murder and First Degree Rape in the District Court of Kay County, Case No. CF–2001–733. The district court followed the jury's verdict and sentenced Davis to death for murder and one hundred years imprisonment for rape. Davis appealed and this Court affirmed his Judgment and Sentence in Davis v. State, 2004 OK CR 36, 103 P.3d 70.

¶ 2 Davis now seeks post-conviction relief in this Court, raising five propositions of error. Under the Capital Post–Conviction Procedure Act, only those claims that “[w]ere not and could not have been raised in a direct appeal” and that also “[s]upport a conclusion either that the outcome of the trial would have been different but for the errors or that the defendant is factually innocent” can be raised. 22 O.S.Supp.2004, § 1089(C)(1) & (2). “This Court will not consider issues which were raised on direct appeal and are barred by res judicata, or issues which have been waived because they could have been, but were not, raised on direct appeal.” Cummings v. State, 1998 OK CR 60, ¶ 2, 970 P.2d 188, 190. The burden is on the applicant to show that his claim is not procedurally barred. See 22 O.S.Supp.2004, § 1089(C). For purposes of post-conviction, a claim could not have been previously raised if: 1) it is a claim of ineffective assistance of trial counsel involving a factual basis that was not ascertainable through the exercise of reasonable diligence on or before the time of the direct appeal, or 2) it is a claim contained in an original timely application for post-conviction relief relating to ineffective assistance of appellate counsel. 22 O.S.Supp.2004, § 1089(D)(4)(b)(1) & (2).

¶ 3 In Proposition I, Davis claims trial and appellate counsel were ineffective for failing to challenge at trial and on direct appeal the prosecutor's use of eight peremptory challenges to remove women from the jury, claiming the State engaged in a pattern of gender discrimination that violated his rights to due process and equal protection. Davis contends this claim could not have been raised on direct appeal because appellate counsel also served as trial counsel and the Oklahoma Indigent Defense System has a policy prohibiting a member of the trial team, serving as appellate counsel, from raising a claim of ineffective assistance of trial counsel on direct appeal.

¶ 4 In Neill v. State, 1997 OK CR 41, ¶ 7, 943 P.2d 145, 148, we held that under 22 O.S.Supp.1995, § 1089(D)(4)(b)(1), the fact that trial and appellate counsel may be the same did not excuse appellate counsel from raising a claim of ineffective assistance of trial counsel on direct appeal. The Neill court found that the language in the amended Capital Post–Conviction Procedure Act overruled our previous decisions in Roberts v. State, 1996 OK CR 7,>¶ 12, 910 P.2d 1071, 1078–79; Fowler v. State, 1995 OK CR 29, ¶ 3, 896 P.2d 566, 569; and Webb v. State, 1992 OK CR 38, ¶ 11, 835 P.2d 115, 117, holding appellate counsel who was trial counsel in the same case was not required to raise a claim of ineffective assistance regarding his own performance below and that claims of ineffective assistance of trial counsel would be considered on collateral review. Neill, 1997 OK CR 41, ¶ 6, 943 P.2d at 148 n. 2. See also McCracken v. State, 1997 OK CR 50, ¶ 6, 946 P.2d 672, 676. This Court followed a minority position requiring a criminal defendant to raise ineffective assistance of trial counsel claims on direct appeal or forfeit them.FN1 See Cannon v. Mullin, 383 F.3d 1152, 1159 (10th Cir.2004).

FN1. The Tenth Circuit has declined to apply Oklahoma's procedural bar to collateral review of ineffective assistance of trial counsel claims, finding Oklahoma's rule that such claims must be raised on direct appeal or forfeited was inadequate and denied defendants meaningful review of their ineffective assistance of trial counsel claims in certain circumstances. Hooks v. Ward, 184 F.3d 1206, 1213–15 (10th Cir.1999). While the Tenth Circuit found there was no rigid constitutional rule prohibiting Oklahoma from requiring the presentation of ineffective assistance of trial counsel claims on direct appeal, it held that given the importance of the Sixth Amendment right to counsel it would not apply Oklahoma's procedural bar where a petitioner had the same counsel at trial and on appeal, or where the ineffectiveness claim could not be resolved solely on the basis of the trial record. See Turrentine v. Mullin, 390 F.3d 1181, 1206 (10th Cir.2004); Hooks, 184 F.3d at 1214; McCracken v. State, 268 F.3d 970, 977 (10th Cir.2001); English v. Cody, 146 F.3d 1257, 1264 (10th Cir.1998).

¶ 5 The Legislature amended the Capital Post–Conviction Procedure Act in 2004. The Act now provides that “[a]ll claims of ineffective assistance of counsel shall be governed by clearly established law as determined by the United States Supreme Court.” 22 O.S.Supp.2004, § 1089(D)(4). In Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986), the Supreme Court explained why the procedural bars applied to other habeas claims were not suitable for ineffective assistance of counsel claims: Because collateral review will frequently be the only means through which an accused can effectuate the right to counsel, restricting the litigation of some Sixth Amendment claims to trial and direct review would seriously interfere with an accused's right to effective representation. A layman will ordinarily be unable to recognize counsel's errors and to evaluate counsel's professional performance; consequently a criminal defendant will rarely know that he has not been represented competently until after trial or appeal, usually when he consults another lawyer about his case. Indeed, an accused will often not realize that he has a meritorious ineffectiveness claim until he begins collateral review proceedings, particularly if he retained trial counsel on direct appeal. Were we to ... hold that criminal defendants may not raise ineffective-assistance claims that are based primarily on incompetent handling of Fourth Amendment issues on federal habeas, we would deny most defendants whose trial attorneys performed incompetently in this regard the opportunity to vindicate their right to effective trial counsel ... Id., 477 U.S. at 378, 106 S.Ct. at 2584–85 (citation omitted).

¶ 6 We recognize the importance of applying our rules of procedural bar uniformly and consistently to effectuate finality of judgment. By amending the Act as it did, the Legislature implicitly overruled the approach adopted by this Court in WalkerFN2 to review ineffective assistance of counsel claims on post-conviction and instead requires this Court to review these claims under the standards in established Supreme Court precedent. Requiring appellate counsel to evaluate his or her own performance and decisions at trial or forfeit a claim of ineffective assistance of trial counsel does not comport with Kimmelman because post-conviction applicants are not provided the opportunity to consult with separate counsel on appeal in order to obtain an objective assessment of trial counsel's performance. In light of Kimmelman, we find that the importance of the Sixth Amendment compels us to consider all claims of ineffective assistance of trial counsel raised in a timely application for post-conviction relief and no longer apply a procedural bar when appellate counsel and trial counsel were the same. This procedure adequately protects a criminal defendant's ability to vindicate his or her constitutional right to the effective assistance of counsel. FN2. Walker v. State, 1997 OK CR 3, 933 P.2d 327.

¶ 7 We now consider Davis's claim of ineffective assistance of trial counsel. Claims of ineffective assistance of counsel are mixed questions of law and fact which we review de novo. See Hanes v. State, 1998 OK CR 74, ¶ 4, 973 P.2d 330, 332. These claims are governed by the two-part Strickland test that requires a petitioner to show: [1] that counsel's performance was constitutionally deficient; and [2] that counsel's performance prejudiced the defense, depriving the petitioner of a fair trial with a reliable result. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). To prove deficient performance, Davis must overcome the strong presumption that counsel's conduct falls within the wide range of reasonable professional conduct and demonstrate that counsel's representation was unreasonable under prevailing professional norms and that the challenged action could not be considered sound trial strategy. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. Judicial scrutiny of counsel's performance is highly deferential. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065; Patterson v. State, 2002 OK CR 18, ¶ 17, 45 P.3d 925, 929. If Davis demonstrates that counsel's performance was deficient, he still must show prejudice before this court may rule in his favor. Lockett v. State, 2002 OK CR 30, ¶ 15, 53 P.3d 418, 424. To show prejudice, Davis must demonstrate “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Lockett, 2002 OK CR 30, ¶ 15, 53 P.3d at 424. This Court may address the performance and prejudice components in any order and need not address both if a petitioner fails to make the requisite showing for one. See Lockett, 2002 OK CR 30, ¶ 15, 53 P.3d at 424; Davis v. State, 1999 OK CR 16, ¶ 38, 980 P.2d 1111, 1120.

¶ 8 Generally, a trial attorney's actions during jury selection are considered matters of trial strategy. See Roberts, 1996 OK CR 7, ¶ 20, 910 P.2d at 1080; Cheney v. State, 1995 OK CR 72,>¶ 69, 909 P.2d 74, 91. The record here shows that after questioning by the attorneys and numerous for-cause challenges, a panel of thirty potential jurors was passed for cause, consisting of fourteen women and sixteen men. Each side then exercised their nine peremptory challenges, leaving a jury of 12 consisting of nine men and three women. Davis is correct that the State exercised eight of its nine allotted peremptory challenges to remove women from the panel. Because of these numbers, it is Davis's theory that women were systematically excluded from the jury.

¶ 9 It is well established that the Equal Protection Clause forbids the use of peremptory challenges to exclude jurors solely on the basis of their gender or race. J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994); Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); Ezell v. State, 1995 OK CR 71, ¶ 4, 909 P.2d 68, 70. “The very idea of a jury is a body ... composed of the peers or equals of the person whose rights it is selected or summoned to determine; that is, of his neighbors, fellows, associates, persons having the same legal status in society as that which he holds.” Batson, 476 U.S. at 86, 106 S.Ct. at 1717 ( quoting Strauder v. West Virginia, 100 U.S. 303, 308, 10 Otto 303, 25 L.Ed. 664 (1879)).

¶ 10 Davis claims that trial counsel was ineffective because he did not object to the allegedly deliberate exclusion of female jurors from the jury panel. Given our highly deferential scrutiny of counsel's performance, we cannot find that counsel's failure to challenge the State's use of peremptory challenges was not sound trial strategy. In Sorensen v. State, 6 P.3d 657, 662–63 (Wyo.2000) and State v. Wilson, 117 N.M. 11, 868 P.2d 656, 663–64 (App.1993), the Wyoming Supreme Court and the New Mexico Court of Appeals respectively rejected an ineffective assistance of counsel claim based on failure to make a Batson challenge. Both of these courts were unwilling to second guess defense counsel, reasoning that defense counsel might have had sound reasons related to the defendant's theory of the case for not opposing the prosecutor's use of the State's peremptory challenges. It was equally conceivable to those courts that the defense lawyers were satisfied that the final jury selected was a fair cross-section of the community and that the defendant's chances for a favorable outcome would not improve with any changes and might instead lessen. See Sorensen, 6 P.3d at 663. We agree with this reasoning because it reflects fitting deference to defense counsel, who had an eyewitness view of the venire, in deciding to make, or refrain from making, a Batson/J.E.B. challenge.

¶ 11 Defense counsel here is a seasoned capital trial attorney who raised two Batson challenges during the State's exercise of its peremptory challenges. There is no evidence before us to show counsel was unaware of the expansion of Batson in J.E.B. A review of the jury selection in this case supports a finding that defense counsel's decision not to raise a J.E.B. challenge was strategic and that gender-neutral reasons for the removal of the majority of the women were readily apparent. Based on this record, we find no ineffectiveness on this ground. FN3. Having rejected Davis's claim of ineffective assistance of trial counsel on the merits, he necessarily cannot prevail on his claim of ineffective assistance of appellate counsel on this same basis and we need not address this claim further.

¶ 12 In Proposition II, Davis claims trial counsel was ineffective for failing to present scientific evidence and supporting witness statements to show Davis did not knowingly and intelligently waive his rights to remain silent and to counsel. He further claims appellate counsel was ineffective for failing to raise on direct appeal a claim of ineffective assistance of trial counsel on this same basis. As discussed in Proposition I, we will consider Davis's claim of ineffective assistance of trial counsel on the merits on post-conviction and no longer apply a procedural bar where trial and appellate counsel were the same.

¶ 13 The record shows defense counsel filed a motion to suppress Davis's November 4th and November 6th statements to the police, arguing that the effects of the medication administered to him on the days of the interview prevented Davis from fully understanding his rights and knowingly and voluntarily waiving them.FN4 The issue was litigated in a Jackson v. DennoFN5 hearing prior to trial and the trial court found that Davis's waiver of rights was not involuntary as a matter of law. Appellate counsel on direct appeal challenged the trial court's ruling and admission of Davis's statements at trial. We held that the evidence supported the trial court's ruling and that the trial court did not err in admitting Davis's statements. Davis, 2004 OK CR 36, ¶ 35, 103 P.3d at 80–81. FN4. Davis did not confess in his November 4th interview; rather, he claimed he could not remember anything. See Davis, 2004 OK CR 36, ¶ 37, 103 P.3d at 81. FN5. Jackson v. Denno, 378 U.S. 368, 380, 84 S.Ct. 1774, 1783, 12 L.Ed.2d 908 (1964) established a defendant's right to an in camera hearing on the voluntariness of his confession.

¶ 14 Davis now claims that his medical records, his expert's report and affidavits of his family members contained in the appendices to his application compel a finding that his waiver of rights was involuntary and that trial counsel was ineffective for not presenting this evidence. See Appendices 4 through 15. We disagree and find that he cannot prevail on his ineffective assistance of trial counsel claim. The material neither leads to a conclusion that the trial court's ruling would have been different had counsel presented the information to the court nor that the outcome of his trial would have been different had the information been presented to the jury. At best, the medical records and expert's report show there was a “potential for impairment” from the medications Davis received. The affidavits concerning Davis's clarity were refuted not only by the detectives who interviewed Davis, but by his own medical records.FN6 See Appendix 6 (Nov. 4th “Nurses Notes” state that Davis was answering questions appropriately and following commands shortly after his interview on November 4th.) We find trial counsel was not ineffective on this ground. FN6. All but one of the affidavits address Davis's clarity on November 4th when Davis did not confess, but only claimed he could not remember what had happened.

¶ 15 In Proposition III, Davis claims trial and appellate counsel were ineffective for failing to object at trial and argue on direct appeal that the trial court's findings following the Jackson v. Denno hearing did not comport with constitutional requirements and denied Davis due process. Davis argues the trial court did not make the necessary factual findings as required by Jackson v. Denno, supra, and Sims v. Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593 (1967).

¶ 16 As noted above, trial counsel filed a motion to suppress Davis's statements to police. The trial court held a Jackson v. Denno hearing and found, after reviewing the totality of the circumstances, that the statements were not involuntary as a matter of law. Stated in the positive, the trial court found that the statements were voluntary and admissible.FN7 Trial judges need not make formal findings of fact or write opinions concerning their rulings on the voluntariness of a defendant's confession. Sims, 385 U.S. at 544, 87 S.Ct. at 643. The only requirement is that a finding that a confession is voluntary appear in the record with “unmistakable clarity.” Id. Davis's contention that the trial court should have made specific findings of fact concerning the voluntariness of Davis's statement is ill-founded because such a finding was implicit in the court's decision that the confession was voluntary. The trial court's ruling here satisfied the requirements of Jackson and Sims. See Chatham v. State, 1986 OK CR 2, ¶ 5, 712 P.2d 69, 71; Fogle v. State, 1985 OK CR 50, ¶ 5, 700 P.2d 208, 210; Harger v. State, 1983 OK CR 30, ¶ 11, 665 P.2d 827, 830. Because the trial court's ruling complied with Jackson and Sims, Davis cannot show that trial and appellate counsel were ineffective in failing to challenge the ruling on this basis. We find no ineffectiveness of trial or appellate counsel on this ground. FN7. This Court reviewed the record on direct appeal and found that the evidence supported a finding that Davis knowingly waived his rights and that his statements were voluntary and admissible. Davis, 2004 OK CR 36, ¶ 35, 103 P.3d at 80–81.

¶ 17 In Proposition IV, Davis claims trial and appellate counsel were ineffective for failing to argue that Davis was denied a fair trial due to the admission of Davis's statements given while he was injured and under the influence of medication administered as part of his medical treatment. While this claim was not raised in this exact manner below, the substance of the claim was litigated both at trial by trial counsel and on direct appeal by appellate counsel. As we stated in Turrentine v. State, 1998 OK CR 44, ¶ 12, 965 P.2d 985, 989, “[t]hat post-conviction counsel raises the claims in a different posture than that raised on direct appeal is not grounds for reasserting the claims under the guise of ineffective assistance of appellate counsel. The doctrine of res judicata does not allow the subdividing of an issue as a vehicle to relitigate at a different stage of the appellate process.” Because this claim was raised and decided on direct appeal, it is barred by res judicata.

¶ 18 In Proposition V, Davis claims the cumulative impact of the errors identified in the preceding propositions renders the result of his trial unreliable. We have reviewed each of Davis's claims and found that he has failed to meet his burden to show he is entitled to relief under the Capital Post Conviction Procedure Act. Consequently, when these alleged errors are considered cumulatively, they do not require relief.

¶ 19 We turn finally to Davis's motions for an evidentiary hearing, discovery and supplementation of the record.FN8 A post-conviction applicant is not entitled to an evidentiary hearing unless “the application for hearing and affidavits ... contain sufficient information to show this Court by clear and convincing evidence the materials sought to be introduced have or are likely to have support in law and fact to be relevant to an allegation raised in the application for post-conviction relief.” Rule 9.7(D)(5), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2005). Davis has failed to make this clear and convincing showing or to overcome the presumption of regularity both in his post-conviction application and appendices and his motion for evidentiary hearing. As for Davis's discovery request, he has failed to show this Court why additional discovery is necessary and has failed to overcome the presumption of regularity. Rule 9.7(D)(3), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2005). His requests for an evidentiary hearing and discovery are denied. FN8. Davis requests this Court to issue an order supplementing the record with the material contained in the appendices filed with the verified application. Rule 9.7(D), Rules of the Court of Criminal Appeals, Title 22, Ch. 18, App. (2005), provides that the record on capital post-conviction consists of the original application and any affidavits and material filed along with the original application. Because the material contained in the appendices is part of the record, there is no need to issue an order supplementing the record. The request is DENIED.

DECISION

¶ 20 After reviewing Davis's application for post-conviction relief and motion for evidentiary hearing and discovery, we conclude: (1) there exist no controverted, previously unresolved factual issues material to the legality of Davis's confinement; (2) Davis's grounds for review which are properly presented have no merit or are barred by res judicata; and (3) the Capital Post–Conviction Procedure Act warrants no relief. Accordingly, Davis's Application for Post–Conviction Relief and Motion for Evidentiary Hearing and Discovery are DENIED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2005), the MANDATE is ORDERED issued upon the delivery and filing of this decision. CHAPEL, P.J. and LEWIS, J.: concur. C. JOHNSON, J.: specially concur. LUMPKIN, V.P.J.: concur in part/dissent in part. LUMPKIN, P.J.: concur in part, dissent in part.

¶ 1 Unfortunately, the Oklahoma Legislature provided little or no insight into the reason(s) why it suddenly amended the Capital Post–Conviction Act in 2004 to state that “[a]ll claims of ineffective assistance of counsel shall be governed by clearly established law as determined by the United States Supreme Court.” While I agree the focus of the Opinion is correct when it states this language “implicitly overruled” the approach adopted by this Court in Walker v. State, 1997 OK CR 3, 933 P.2d 327, concerning the method of analyzing ineffective assistance of counsel claims, I believe the Opinion paints with too broad a brush in applying the limited purpose of the language.

¶ 2 It seems to me that the Legislature's only intent was to do away with the Walker method of reviewing post-conviction ineffective assistance claims. Therefore, I am inclined to agree with the Opinion to the extent it holds, in regards to post-conviction claims of ineffective assistance of trial counsel, that this Court should apply the procedure required by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). But I believe it goes too far when it states we will “no longer apply a procedural bar when appellate counsel and trial counsel were the same.”

¶ 3 The Opinion reads too broadly on this point. That is, the Opinion suggests, whether intentionally or not, that this Court can no longer set its own rules and procedures for reviewing post-conviction ineffective assistance of counsel claims arising from the direct appeal, but must simply defer to the United States Supreme Court. Insofar as the Opinion takes that position or interprets the statute in that manner, I dissent. See Behrens v. Patterson, 1997 OK CR 76, ¶ 3, 952 P.2d 990, 991 (finding the Supreme Court's application or interpretation of a federal rule of appellate procedure “is not controlling as to the construction, application, or interpretation of any Oklahoma rule of appellate procedure”).

¶ 4 I do not believe either the language of the statutory amendment or the intent of the Legislature was to make sweeping changes in the way this Court does business to the extent the opinion advises. Indeed, the Supreme Court has recognized a State's authority to establish and apply procedural waiver rules on this very issue. See Stewart v. Smith, 536 U.S. 856, 122 S.Ct. 2578, 153 L.Ed.2d 762 (2002) (disallowing federal habeas review of a state procedural rule that is independent of federal law). Thus, it appears to me the statutory amendment is nothing more than a confirmation of the analysis in my Walker dissent, which focused on the fact that Strickland should be our guide for reviewing ineffective assistance of counsel claims, not the newly formulated Walker process.

¶ 5 I find it reasonable and appropriate to restrict this new statutory language to exactly that. Our other rules regarding how and when we will accept and rule on ineffective assistance of counsel claims do not need to be “federalized.” Oklahoma can and should retain our tried and proven procedures of review, while applying Strickland, just as we did prior to Walker. But I cannot join in a wholesale relinquishment of the authority held by the State of Oklahoma and this Court to set our own rules and procedure. It is the responsibility of the judges of this Court to preserve the rights of the State of Oklahoma to establish and administer its rules of procedure, not relinquish those rights. C. JOHNSON, JUDGE, specially concurring.

¶ 1 I specially concur in the well-reasoned decision by the Court. I personally have a problem with the application of procedural bar, and the use of such terms as “procedural bar,” “bar” and “waiver,” which strictly prohibit consideration of legal issues raised on appeal. I am troubled by the use of these procedural rules which keep this Court from reviewing potentially meritorious claims involving factual innocence, and ineffective assistance of counsel when counsel at trial and on appeal are the same or counsel on appeal and post-conviction counsel are the same.

¶ 2 I recognize that a criminal defendant is entitled to a fair trial—not a perfect trial. Lahey v. State, 1987 OK CR 188, ¶ 29, 742 P.2d 581, 585. A fair trial requires effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 696, 104 S.Ct. 2052, 2069, 80 L.Ed.2d 674 (1984)(“In every case the court should be concerned with whether, despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results.”) This Court has a responsibility under the separation of powers doctrine to review ineffective assistance of counsel claims or other matters raised on appeal, even where the legislature seemingly has precluded review of those claims by legislating what power this Court may exercise.

 
 

Davis v. Workman, 695 F.3d 1060 (10th Cir. 2012). (Habeas)

Background: After his state convictions of first degree murder and rape were affirmed on direct appeal, 103 P.3d 70, petitioner sought federal habeas relief. The United States District Court for the Western District of Oklahoma denied petition. Certificate of appealability (COA) was granted and petitioner appealed.

Holdings: The Court of Appeals, Hartz, Circuit Judge, held that: (1) state court's determination that defendant knowingly and intelligently waived his Miranda rights was not contrary to clearly established federal law; (2) state court's determination that defendant's custodial statements were not coerced was not contrary to clearly established federal law; (3) petitioner was not prejudiced by counsel's failure to present at trial additional evidence of defendant's impairment during police interviews; (4) counsel's failure to argue at trial that police officers coerced defendant into making inculpatory statements while he was hospitalized by withholding pain medication was not ineffective assistance; and (5) Oklahoma law requiring prior notice of expert witnesses to be called at criminal trial did not create a federal due-process right, and thus could not form basis of a federal habeas claim. Affirmed.

HARTZ, Circuit Judge.

An Oklahoma jury convicted Defendant Brian Darrell Davis of the first-degree murder and rape of Josephine “Jody” Sanford, the mother of his girlfriend Stacey Sanford. On the recommendation of the jury, Defendant received a 100–year prison sentence for the rape and a death sentence for the murder.

After unsuccessfully appealing to the Oklahoma Court of Criminal Appeals (OCCA), see Davis v. State, 103 P.3d 70, 83 (Okla.Crim.App.2004), and pursuing postconviction relief in state court, see Davis v. State, 123 P.3d 243, 249 (Okla.Crim.App.2005), Defendant unsuccessfully sought relief under 28 U.S.C. § 2254 in the United States District Court for the Western District of Oklahoma. The district court denied a certificate of appealability (COA) but this court granted a COA on two issues: whether Defendant's statements to police officers while he was hospitalized were knowing, intelligent, and voluntary; and whether his counsel was ineffective in failing to present scientific evidence that he was impaired while making those statements. See 28 U.S.C. § 2253(c)(1)(A) (requiring a COA to appeal the denial of a § 2254 application). We affirm on these issues because the OCCA did not unreasonably determine the facts or unreasonably apply federal law in rejecting these claims. We also deny Defendant's Motion for Additional Issues in COA because no reasonable jurist could dispute the district court's resolution of the issues raised in the motion. We do, however, grant a COA on a claim that Defendant apparently thought was encompassed by our prior grant of a COA—namely, the claim that his counsel was ineffective for failing to argue that police officers coerced him into making his hospital statements by withholding pain medication. But we affirm the denial of the claim.

I. BACKGROUND

A. Factual Background

The OCCA's decision on direct appeal offers a detailed description of the pertinent events: In the early morning hours of November 4, 2001, Davis returned home after socializing with some friends at a local club, only to find his girlfriend, Stacey Sanford, and their three-year-old daughter missing. He telephoned Josephine “Jody” Sanford, Stacey's mother, to ask if she had seen or knew of their whereabouts. Jody told Davis that she did not know where they were. Ten to fifteen minutes later, Davis again telephoned Jody and asked her to go and find them. When Jody could not locate her daughter and granddaughter, she went to Stacey's and Davis's apartment. Davis made several conflicting statements about the events that followed once Jody arrived, including a different version during his trial testimony. However, with the exception of his first statement where he claimed to have no memory of what had happened, Davis admitted in his other statements that he fatally stabbed Jody. Jody's body was discovered shortly after 9:00 a.m. when her daughter Stacey returned home. Stacey immediately called 911 and local police arrived to investigate.

Meanwhile, Davis had been involved in a single-car accident while driving Jody's van near the Salt Fork River Bridge. Davis was seriously injured after he was ejected from the van through the front windshield. Davis was transported to a local hospital for treatment. Because there was an odor of alcohol about him, Davis was placed under arrest and his blood alcohol level was tested and registered .09%. Later on, Davis was transported to a Witchita [sic] hospital for further care. Detective Donald Bohon interviewed Davis around 5:49 p.m. that afternoon. In his first statement, Davis was able to recount his activities at the club the night before, but could not remember who drove him home. He recalled that Stacey and his daughter were not at home when he arrived and he remembered telephoning Jody. He could remember Jody being in the living room with him, but after that moment, he could not recall anything until he woke up in the field after the accident.

Two days later, Detectives Bohon and Bob Stieber interviewed Davis again. Initially, Davis repeated the story he had previously told Detective Bohon. As Stieber questioned Davis, his memory improved. He remembered Jody talking to him about religion and his commitment to Stacey. An angry Davis told Jody that there would be no commitment and the two argued. Davis claimed that Jody stood up while she continued her lecture and that he then stood up, got angry, accused her of being in his face and told her to “back up,” pushing her backwards. Davis claimed Jody grabbed a knife and cut him on his thumb. Davis then hit Jody on the chin (apparently causing the fracture to her jawbone) and tried to grab the knife, getting cut in the process. Davis said he got the knife from Jody and told her to get back, stabbing her in the stomach. He stated that he and Jody began to wrestle down the hallway and that he stabbed Jody in the leg. Once in the bedroom, Davis told Jody to stop and he put the knife down. Jody asked Davis to let her go to which he agreed, but then Jody ran towards the knife. He grabbed the knife first and stabbed Jody on the left side. She then told Davis that she could not breathe and Davis told her to lie down on the bed. Davis said he tried to wrap her up tightly in the bedspread so she would not bleed to death. He claimed he heard her stop breathing, but then fell asleep. When he awoke, he panicked and fled in Jody's van so he could think about what to do. Shortly thereafter, the crash occurred. When Stieber confronted him with physical evidence showing Jody was strangled/choked, Davis conceded that he may have choked her while they were wrestling. However, he adamantly denied having consensual or non-consensual sex with her.

Davis told his girlfriend, Stacey Sanford, three different versions of what happened that morning. At first, he told her that he believed her mother was an intruder and that he instinctively fought with her to protect his family home. Several months later, he told Stacey that her mother came to their apartment and that the two of them argued because Davis believed Jody was lying about her knowledge of Stacey's whereabouts. He claimed he pushed Jody and Jody went to the kitchen and retrieved a knife. Davis said that he got his thumb cut when he tried to take the knife from Jody, and that once he got the knife, he stabbed Jody once in the stomach. The argument continued and the two of them ended up in the bedroom where Jody said let's end this and Davis put the knife down. He claimed that she grabbed the knife as she walked towards the door and that he took it from her and stabbed her again.

Two to three months later after DNA tests showed that Davis' semen was found in Jody's vagina, Stacey confronted Davis and he told her a third version of what had happened. In this third version, he said that Jody came to their apartment upset about her husband's infidelity. He claimed that he tried to comfort her and they ended up having consensual intercourse. After their sexual encounter, Davis said he was lying on the floor in the front room while Jody was in the kitchen and that all of a sudden he was struck in the back of the head with some object. He did not elaborate on the details of the stabbing, indicating that the events unfolded from there.

At trial, Davis testified that Jody came to his apartment after she could not locate Stacey and talked to him about his need to commit to her. Davis claimed he responded by making a remark about Jody's husband's level of commitment and his rumored infidelity. He said that Jody became emotional and acknowledged that she knew about her husband's affair. Davis said he felt badly about his remark and got up and sat beside Jody and tried to comfort her. He claimed that Jody kissed him and that they ended up going back to the bedroom and having sex on the bedroom floor for fifteen to twenty minutes. Afterwards Davis got up and stumbled between the hallway and bedroom. He said that Jody was saying something about the time and he said that the sex was not worth his time and that he understood why Jody's husband was having an affair. He claimed that an angry Jody then hit him in the back of the head with a lotion dispenser, stunning him. As Jody walked by Davis, Davis got up and chased her down the hallway, tackling her and biting her ankle. Jody kicked Davis in the mouth and ran to the kitchen and grabbed a knife. Davis then ran to the living room and grabbed the Play Station II. Davis asked Jody “what the hell are you doing?” and hit her in the face. Davis said Jody “came back with a defensive position” and that he used the Play Station II as a shield. Now angrier, Davis hit Jody again and tossed the Play Station II into a nearby chair. He backed her down the hallway while she swung the knife wildly, cutting Davis on his arm. Davis went into the bathroom for a towel and Jody retreated to the bedroom. He said that when he exited the bathroom he saw Jody in the bedroom doorway and that he ran at her, grabbed her, pulled her down and hit her in the face two to three times. As they were fighting, Davis pushed Jody's head against the wall and struck her until she finally relinquished the knife. Jody retreated into the bedroom and asked Davis to let her go. Davis claimed he told Jody to go and put the knife on the nightstand. He said that when Jody walked by, she grabbed the knife, which angered him because he believed the fight was over. He then grabbed her shirt, pulled her towards him and put his arm around her neck squeezing as tightly as he could until she dropped the knife. He said that he grabbed the knife, that he was angry and that he stabbed Jody in the back. Jody then “swung back,” struck him in the groin and he fell to one knee. He claimed Jody continued to hit him and that he stabbed her several times as he tried to fend off her attack. He maintained that he never intended to kill her. Davis, 103 P.3d at 73–75.

B. Proceedings Below

Defendant's § 2254 application asserted 14 claims: (1) that Defendant did not understand his Miranda waiver and that his later statements to the police at the hospital were coerced by officers calling him a cold-blooded killer; (2) that his counsel was ineffective in failing to present scientific evidence that Defendant was impaired while making statements to the police; (3) that Defendant's counsel was ineffective in failing to argue that his hospital statements to police were the product of coercion caused by withholding of pain medication; (4) that the State's presentation of rebuttal witnesses without pretrial notice violated due process; (5) that presentation of the rebuttal witnesses violated his rights under the Sixth, Eighth, and Fourteenth Amendments; (6) that the conviction of first-degree murder was not supported by sufficient evidence; (7) that the state court's refusal to give instructions on circumstantial evidence violated the Sixth, Eighth, and Fourteenth Amendments; (8) that the court denied his right to confront witnesses and to compulsory process by restricting evidence of the affair of the victim's husband; (9) that the cumulative impact of errors rendered the state-court proceedings fundamentally unfair; (10) that the jury's finding that the murder was especially heinous, atrocious, or cruel was not supported by sufficient evidence; (11) that his counsel was ineffective in failing to challenge the discriminatory use of peremptory challenges during jury selection; (12) that the state court erred in failing to make adequate findings after its hearing on the motion to suppress Defendant's statements to the police, and that his counsel was ineffective in failing to assert that the lack of adequate findings violated due process; (13) that the state court erred in allowing the introduction of Defendant's privileged communications to Stacey Sanford; and (14) that the state court did not have jurisdiction to consider the aggravating circumstances set forth in a bill of particulars because they were not properly charged. In this court Defendant sought a COA on claims 1 to 12, and we granted a COA on claims 1 and 2: “[w]hether [Defendant's] statements made to police officers while hospitalized were knowingly, intelligently, and voluntarily made”; and “whether [Defendant] was denied effective representation by counsel in the trial court when counsel did not present scientific evidence that appellant was impaired and unable to understand the events surrounding the making of those statements.” Case Management Order at 1, Davis v. Workman, No. 11–6022 (10th Cir. May 3, 2011). He then renewed his request for a COA, but only on claims 4 to 9, although, as we discuss more fully later, he apparently thinks that he obtained a COA on claim 3. We affirm the district court's rulings on claims 1 and 2; grant a COA on claim 3 but deny relief; and again deny a COA on claims 4 to 9. We will address the claims in that order after first stating our standard of review.

II. STANDARD OF REVIEW

Under the Antiterrorism and Effective Death Penalty Act (AEDPA), our review in a § 2254 proceeding is highly deferential. See Cullen v. Pinholster, ––– U.S. ––––, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011). For claims adjudicated on the merits in state court, a federal court can grant relief only if the state-court decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1), (2). As the Supreme Court has explained: Under the “contrary to” clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts. Under the “unreasonable application” clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case. Williams v. Taylor, 529 U.S. 362, 412–13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). “[A]n unreasonable application of federal law is different from an incorrect application of federal law.” Renico v. Lett, ––– U.S. ––––, 130 S.Ct. 1855, 1862, 176 L.Ed.2d 678 (2010) (internal quotation marks omitted). “Indeed, a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” Id. (internal quotation marks omitted). In addition, AEDPA requires deference to the state court's findings of fact. We presume those findings to be correct, and “[t]he applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

III. ISSUES ON WHICH WE PREVIOUSLY GRANTED A COA

A. Admissibility of Statements During Hospitalization

On November 4, 2001, the same day that Jody Sanford was found dead in Defendant's home in Ponca City, Oklahoma, Defendant was seriously injured in a one-car accident and transported to a hospital for treatment. He was placed under arrest for driving under the influence of alcohol before being transferred to a regional hospital in Wichita, Kansas. He arrived by 12:40 p.m. and was interviewed about five hours later by Detective Donald Bohon. Two days later, on November 6, Detectives Bohon and Bob Stieber interviewed him again. At the beginning of each interview, he received Miranda warnings and waived his rights. The State does not contest that Defendant was in custody while he made statements to the police on these two occasions. Statements to the police during a custodial interrogation are inadmissible if the defendant did not waive his Miranda rights knowingly and voluntarily. See Berghuis v. Thompkins, ––– U.S. ––––, 130 S.Ct. 2250, 2260, 176 L.Ed.2d 1098 (2010). Whether the waiver was valid is a mixed question of law and fact. See Mitchell v. Gibson, 262 F.3d 1036, 1059 (10th Cir.2001). “The inquiry has two distinct dimensions.” Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986). As the Supreme Court explained: First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the totality of the circumstances surrounding the interrogation reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived. Id. (internal quotation marks omitted). Defendant advances two arguments to contest the validity of his Miranda waiver. We first address his argument that his narcotic medication prevented him from knowingly and intelligently waiving his rights. We then address his coercion argument.

1. Effects of Medication

Defendant contends that his morphine medication kept him from being fully aware of the rights being abandoned during the second hospital interview. He points out (1) that he testified at trial that he was “half-asleep” with his eyes closed when the police read him his Miranda rights at the beginning of the interview, Aplt. Br. at 61; (2) that one of the officers acknowledged the possibility that Defendant was in a “medicated sleep” when he was approached for the interview, id. at 62; and (3) that an affidavit submitted in postconviction proceedings by a defense expert, Dr. Thomas Kupiec, states that “it is certainly plausible to expect an effect on an individual's cognitive function following a post-accident administration of morphine....” Verified Appl. for Post–Conviction Relief, App. 12 at 4, Davis v. Oklahoma, Case No. PCD–2003–686 (Okla.Crim.App. Mar. 4, 2005). Defendant asserts that “ ‘[p]lausible to expect’ is a quantitative measure meaning at least more than 50% or a reasonable probability,” Aplt. Br. at 44 n. 11; but he does not cite any testimony or other authority to support the assertion.

On direct appeal the OCCA upheld Defendant's waiver, stating: Prior to any questioning, [Officer] Stieber read to Davis the Miranda warning from his Miranda card and asked Davis if he understood his rights and wanted to talk with him. Davis said that he understood his rights and that he would answer what he could. At no time during the interview did Davis indicate that he wanted to terminate the interview or consult a lawyer. Davis appeared to understand all questions asked and gave appropriate responses to the questions posed. The specificity of detail Davis was able to provide and the back and forth nature of the interview demonstrated that he was fully alert and comprehended what others said to him, thereby supplying strong evidence that he understood his rights as presented to him as well. Davis, 103 P.3d at 81. Later, on appeal in the postconviction proceedings, the OCCA held that Dr. Kupiec's affidavit (and other new defense evidence) would have made no difference. It said: The material neither leads to a conclusion that the trial court's ruling would have been different had counsel presented the information to the court nor that the outcome of his trial would have been different had the information been presented to the jury. At best, the medical records and expert's report show there was a “potential for impairment” from the medications Davis received. The affidavits concerning Davis's clarity were refuted not only by the detectives who interviewed Davis, but by his own medical records. Davis, 123 P.3d at 247 (footnote omitted).

What Defendant presents to us on appeal fails to overcome the deference owed to the OCCA decision. The expert report is hardly definitive; it merely states that there was a possibility of impairment. And even if Defendant was groggy when the officers arrived, there was ample evidence that he soon became alert. Officer Stieber testified that Defendant was “fully lucid and alert” and understood the rights read to him. R., Vol. 2, State Court Records: Tr. of Jackson v. Denno Proceedings at 55. Further, the interview transcript shows that he gave relevant responses to each question asked. Perhaps most indicative of his mental capacity were his responses immediately after being read his rights: Stieber: Okay, having these rights in mind, are you willing to visit with us a little bit and answer a few questions? [Defendant]: I'll answer what I can. Stieber: Okay. That's all we're asking for. [Defendant]: Okay Stieber: A (pause) one of the things that I do while I'm here is get some oral swabs from ya, I brought with me some oral swab sticks and all they are is a long Q-tip Brian. [Defendant]: Um-huh Stieber: (getting swabs) and what I would like to do if your willing is take, see it ain't nothin but a long Q-tip. I'd like to get four (4) of these and get oral swabs from inside your mouth and your saliva. Would that be okay with you? [Defendant]: What is that for? Stieber: Well, it's to do some comparison later on down the road on DNA, you know they get DNA from a lot of sources, but the easiest way for the lab is just straight from saliva, spit. [Defendant]: I got to see what the Dr. says because I been taking all this medication and stuff. Stieber: I asked the nurse out there just a few minutes ago and they said that you haven't taken anything this morning that would affect this at all. [Defendant]: Okay. Stieber: That be okay with you? [Defendant]: uh-huh Stieber: okay, it's painless and real simple. We'll do them one at a time and then when I put back in the envelope I'll get you to initial them a just little bit for me. If you'll just open your mouth, can you get it open any wider than that? Okay. I'll get around on the inside of your jaw, that's not too far back is it? [Defendant]: uh-uh Stieber: (getting samples) There's one. Halfway done. Okay, I'm going to do the other side over here on this one. One more. Okay, this one has two in it Brian, so I'll just go ahead and do another one while I'm here. [Defendant]: You said four, tastes nasty, mmm Id., Pl.'s Ex. 2 at 1–2. Defendant was functioning well enough to ask about the medical consequences of the swab testing and to recall that the officers had initially said that there would be four samples. We hold that the state court did not unreasonably determine the facts or unreasonably apply clearly established federal law in concluding that Defendant knowingly and intelligently waived his rights.

2. Alleged Coercion

Defendant next argues that his waiver of Miranda rights was not the product of a free and deliberate choice because the officers coerced him into confessing to the murder by calling him a “ ‘cold-blooded killer.’ ” Aplt. Br. at 68. The OCCA determined that although Officer Stieber “use[d] phrases like ‘cold blooded killer’ and ‘cold blooded bastard’ ” during the second interview, Defendant's statements were not coerced. Davis, 103 P.3d at 81. It stated: The comments complained of were not coercive in nature; the detectives neither threatened Davis nor implied promises of benefits or leniency. Rather, the detectives explained to Davis that the evidence showed that he was responsible for Sanford's death, leaving them to conclude that he either planned it and carried it out making him a cold blooded killer or that some unplanned fight erupted and Sanford was stabbed and killed. Only Davis could provide the answer and they encouraged him to do so. Id.

As shown by the transcript of the hospital interview,FN1 the OCCA decision did not unreasonably determine the facts or unreasonably apply clearly established federal law. Defendant cites no Supreme Court authority suggesting that it is coercive to tell a suspect truthfully that the evidence would imply that he was guilty of a heinous crime unless he gives an explanation. As the OCCA stated, the officers did not threaten Defendant or promise leniency. FN1. The interview began with lengthy questioning of Defendant's social activities and other events before the victim arrived at his apartment. Then, Officer Stieber turned to the question of her death: Stieber: What we found in the apartment is Jody, and she's been stabbed and she's dead. [Defendant]: That's Mr. Bohon said the other night. Stieber: Cause if I wanted to be mean to ya I could've brought you an ugly ass Polaroid of her body laying there bleeding. [Defendant]: Uh-huh. Stieber: I didn't want to do that to you, okay. (Pause) Jody's laying there in your apartment, she's laying there in the living room floor, she's been stabbed, she's very dead. [Defendant]: Uh-huh. Stieber: You tell us there's nobody else in that apartment, but you and her, and then you a little bit later, are in a bad car wreck, south of town, in her van. We're here to try to figure out what happened in that apartment between you and Jody Sanford [Defendant]: Right Stieber: for things to go to shit and end up this way. [Defendant]: I know that. Stieber: Okay, but it's one of two choices. Since you two are the only ones' in the apartment and she's dead it's obvious that you are the one that is responsible for her death. It's one choice or the other Brian, it's either that you are a cold blooded killer, which I don't believe you are, and you planned this thing for whatever reason, or something ugly and bad happened in that apartment and you and Jody got into some type of fight for whatever reason, and the thing went to shit and the end result, was unintentional on your part, but she ended up getting stabbed and she died. Now you tell us. [Defendant]: It's like Stieber: No, you tell us Brian, was this, are you a cold-blooded bastard and this thing was planned? [Defendant]: No, Bob I didn't think so, me and her always, she always do stuff for me. Stieber: Okay [Defendant]: It's like you know, whatever, you know how I get marks like this on my thumb and then marks like this across my arm. I don't know. I'm thinking is it from me going through the windshield of the van like this, or what, I don't know. Stieber: Let's talk about that. You just made the motion with your hand up in front of you face going through the windshield, but your hand isn't cut up that way. [Defendant]: Did I do that or, I don't know. Stieber: Okay, let's go back to my original question. Either you're a cold blooded bastard and you planned on killing her for whatever reason, or things went to shit and this was the bad result of things getting ugly. Did you plan on killing her when you called her and she came over her that night? [Defendant]: No, I didn't plan that. I, from our relationship we always had cool, everything's been cool between us. Stieber: Okay so we can just, we can forget about that theory. Am I right? [Defendant]: Yeah. Cause I'm not a cold blooded killer, I'm, there's a lot of people that I don't feel like Tyrone and them, the stuff that happened to me when I, you know with Shaliya and Stacy. Yeah, I'd love to get them back for that but, they; justice was served on them. Stieber: Okay, so you're not a cold-blooded killer and you didn't plan on killing her so we can just forget about that. [Defendant]: Just forget about that, yes. Stieber: So, let's look at the other option. The other option is something happened there between you two and you guys got into it for whatever reason and you ended up, maybe it's self-defense. I don't know. [Defendant]: What I know is that she was talking to me and that's when I had my hands up on my head. R., Vol. 2 State Court Records: Tr. of Jackson v. Denno Proceedings, Pl.'s Ex. 2 at 20–21 (emphasis added). We affirm the district court's decision upholding the state court's determination that Defendant's statements were admissible.

B. Trial Counsel's Failure to Present Scientific Evidence of Impairment

Defendant argues that his trial counsel was ineffective in failing to present scientific evidence that would have shown his mental impairment when he gave his statements at the hospital.FN2 Although Dr. Kupiec testified as a defense expert at trial that the Versed and morphine given to Defendant are both sedatives and analgesics, Defendant complains that trial counsel failed to give Dr. Kupiec the medical records, including medication charts, that would have enabled Dr. Kupiec to speak more precisely about Defendant's condition while being interviewed. FN2. Defendant's opening brief complains of the failure of “trial or appeal counsel [to] provide[ ] [Defendant's] medical records to Dr. Kupiec.” Aplt. Br. at 42 (emphasis added). But the brief never explains what more his state appellate counsel could have done. Because the appellate-counsel issue has not been adequately briefed, we do not address it.

To succeed on an ineffectiveness-of-counsel claim, Defendant must make two showings: “that counsel's representation fell below an objective standard of reasonableness,” Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), rendering his or her performance deficient, see id. at 687, 104 S.Ct. 2052; and that the deficiency prejudiced the defense through errors “so serious as to deprive the defendant of a fair trial, a trial whose result is reliable,” id. To demonstrate prejudice, a defendant “must show that there is a reasonable probability that, but for counsel's unprofessional errors,” id. at 694, 104 S.Ct. 2052, the jury “would have had a reasonable doubt respecting guilt.” Id. at 695, 104 S.Ct. 2052. When reviewing a state court's application of Strickland, we must be especially attuned to the deference required by § 2254(d). In particular, we review the state court's decision regarding prejudice only to determine whether it “unreasonably concluded that [Defendant] was not prejudiced.” Cullen, 131 S.Ct. at 1408. To try to establish prejudice, Defendant relies on an affidavit of Dr. Kupiec submitted in his postconviction proceedings. He cites Dr. Kupiec's statement that “repeated dose administration appears to result in an enhanced analgesic effect of morphine, and if administered this way, it would also have more effects on cognition and psychomotor performance.” Verified Appl. for Post–Conviction Relief, App. 12 at 3 (footnote omitted), Davis v. Oklahoma, Case No. PCD–2003–686. He also notes the doctor's testimony that “[t]he elimination half-life of morphine ranges from 1.5 to 4.5 [hours,]” id., to argue that he was impaired during the interview on November 6, when he received a morphine injection at 5 a.m., about three hours before the start of the interview. Defendant implicitly suggests that this evidence would have caused the trial judge or the jury to exclude his hospital statements as involuntary. (The jury was instructed that it should not consider a statement by Defendant unless it found that the statement was voluntary.) The OCCA rejected the argument in Defendant's postconviction proceedings. See Davis, 123 P.3d at 247–48. As previously noted, the court said that, at the most, the medical records and expert's report showed a “potential for impairment” from the medications. Id. at 247 (internal quotation marks omitted). It ruled that the outcome of the trial would not have been different if the evidence had been presented.

Defendant has not made the necessary showing that the OCCA “unreasonably concluded that [he] was not prejudiced” by counsel's failure to present at trial the additional evidence of impairment. Cullen, 131 S.Ct. at 1408. We note at the outset that even if the hospital records and expert report would have led to exclusion of his November 4 statement, the verdict would not have changed. In that statement Defendant said that he did not remember what happened. The prosecution made no attempt to exploit that statement at trial, and we fail to see how it could have prejudiced Defendant. As for the second interview, Dr. Kupiec's new statements merely recite some general principles about how morphine functions in the body, but do not specify how Defendant would have been affected on that particular day. The OCCA could properly decide that the additional evidence would not have overcome the contrary evidence already considered in our earlier discussion of whether the Miranda waiver was knowing and voluntary. We cannot say that the OCCA unreasonably ruled that the new evidence would not likely have convinced the trial judge or jury to exclude Defendant's November 6 statement. In the alternative, Defendant requests an evidentiary hearing to present additional evidence that his statements should have been excluded. But we have already considered all the evidence that he presented to the Oklahoma courts, and under AEDPA our review of the OCCA decision on this issue must be confined to the state-court record. See id. at 1398 (“[R]eview under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.”); Black v. Workman, 682 F.3d 880, 895 (10th Cir.2012) (“[E]ven if a federal-court evidentiary hearing is not barred by [28 U.S.C.] § 2254(e)(2), the evidence so obtained is inadmissible in reviewing a claim adjudicated on the merits in state court.”).

IV. ADDITIONAL ISSUE ON WHICH WE GRANT COA—FAILURE OF COUNSEL TO ARGUE COERCION BY WITHHOLDING MORPHINE

Defendant contends that his trial and appellate counsel were ineffective for failing to present evidence and argue that his hospital statements were coerced by the officers' refusing to allow him to receive morphine for his pain until they had completed their questioning. The parties dispute whether we have granted a COA on this claim. We think the State has the better of the argument. But Defendant's reply brief alternatively requests a COA, which we grant. Although our doing so at this stage could prejudice the State, because it has not briefed (and would not be expected to have briefed) the merits of the issue, we find no merit to the claim, eliminating any prejudice. Before we turn to the merits of the claim, we address two more procedural issues. We hold that the claim is not procedurally barred and that our standard of review is de novo. To reach these conclusions, we must examine the proceedings before the OCCA.

In Defendant's appeal to the OCCA of the denial of postconviction relief, he raised the claim that his counsel had been ineffective by failing to argue that the detectives coerced him into making his statements by withholding the administration of morphine. The OCCA denied relief without discussing the merits, stating that its decision on direct appeal had already decided the substance of this coercion argument, and therefore the principle of res judicata barred Defendant from relitigating the same claim in the guise of an ineffective-assistance-of-counsel argument. See Davis, 123 P.3d at 248. A state court's invocation of res judicata does not, however, create a procedural bar to relief under § 2254. See Cone v. Bell, 556 U.S. 449, 129 S.Ct. 1769, 1781, 173 L.Ed.2d 701 (2009) (“When a state court declines to review the merits of a petitioner's claim on the ground that it has done so already, it creates no bar to federal habeas review.”). Moreover, contrary to the OCCA's belief, the record of Defendant's direct appeal to the OCCA discloses that Defendant never argued, and the OCCA never considered, a claim, either directly or in the course of an ineffective-assistance claim, that his hospital statements were coerced by the withholding of morphine. Because there has been no state-court adjudication on the merits of the claim, AEDPA's § 2254(d) does not apply. See Byrd v. Workman, 645 F.3d 1159, 1166 (10th Cir.2011). Further, the district court did not address the merits. No prior court having addressed the merits, our review is necessarily de novo.

Now, to the merits. To assess Defendant's ineffective-assistance-of-counsel claim, we first examine the strength of the claim omitted by his counsel—the claim that he was coerced by the withholding of morphine. Defendant bases that claim on the following evidence and argument. First, he cites two pieces of evidence that he was told on November 4 that he would not receive any morphine until his interview was over. One is a hospital nurse's note at 5:30 p.m. on November 4 saying that he was told by a nurse that an “officer wanted to talk [with him] prior to any pain meds being administered[.]” Verified Appl. for Post–Conviction Relief, App. 6 at 2, Davis v. Oklahoma, Case No. PCD–2003–686. The other is the following exchange with Detective Bohon during the 25–minute interview (which began about 20 minutes after the nurse's note): [Defendant]: I'm telling the truth. That's all I can remember I wish I could, but I can't. All I remember is being by those trees and then those people surrounding me picking me up and putting me in the ambulance. I hardly remember talking to the Highway Patrol when they came because they had me on morphine. Bohon: put you on some medication yeah [Defendant]: Yeah Bohon: Yeah, that's why I waited for awhile because I wanted to make sure the medicine had worn off because I wanted you to be able to remember the best you can and understand what I was saying. [Defendant]: I understand what you're saying. Bohon: As soon as we get done here they will help you out with somemore, but I had to have you as clear headed as I could for this. R., Vol. 2, State Court Records: Tr. of Jackson v. Denno Proceedings, Pl.'s Ex. 1 at 10 (emphasis added). Defendant contends that from the statements by the nurse and Bohon, he “was trained ... that the only way he could end the interview was to be submissive, answer the questions and he got morphine.” Aplt. Br. at 61. Second, although Defendant never testified expressly that he spoke to the officers only to get morphine for his pain (indeed, when asked at trial whether Detective Stieber threatened him in any way, he answered, “Just the comment.... Either you're a cold-blooded killer or a mean mother fucker.” R., Vol. 2 State Court Records: Tr. of Jury Trial, Vol. 7–A at 16), he argues that he implied this on the following two occasions during his cross-examination: Q. Are you telling this jury, in any way, that your statement to Detective Stieber [on November 6] was not voluntary? A. At one point it wasn't, at the beginning, but I have to be submissive in the hospital cause of being treated and things like that. Id. at 15–16 (emphasis added). Q. Mr. Davis, when Bob Stieber came to see you on the 6th and probably when Bohon came on the 4th, were you scared about what was going to happen to you? A. No, I wasn't scared. I was just tired and I was hurting, I wanted to be left alone, but had to be submissive to get treatment. Id., Vol. 7–B at 52 (emphasis added). Defendant also points to the occasions during his November 6 interview when Bohon and Stieber continued to question him despite his complaints that he was in pain. His first indication of pain was about an hour and a half into the interview: Stieber: The knife that was laying there by that towel, that's the one that both of you ended up getting cut with? It's the same one? [Defendant]: Yeah. Stieber: Okay, [Defendant]: ? ? ? ? ? [sic] It was a big long knife. (Sighs) Can I get some shot now, cause I'm in pain? Stieber: Yeah, we're just about done. [Defendant]: (sighs) ? ? ? ? [sic] something for pain. Stieber: Yeah, I'm trying to think of any other details. Id., Tr. of Jackson v. Denno Proceedings, Pl.'s Ex. 2 at 58. A nurse entered the room about two minutes later and remained for two minutes, during which the nurse administered antinausea and blood-thinner medication and discussed with the officers the procedures for taking a photograph of Defendant's arm wounds. The nurse returned about nine minutes later with a consent form for taking the photograph. On neither of these occasions did Defendant ask the nurse for pain medication. Then, about two minutes after the nurse's return, an orthopedic surgeon came to check on Defendant: [Doctor]: Now, they'll be coming to get you a pretty soon, for [hip surgery]. How ya doin? Is there a lot of pain or are you doing okay? [Defendant]: My back is hurtin. [Doctor]: Your back is hurting. But your legs not so much. [Defendant]: Well, if I move it yeah. [Doctor]: Yeah, but when your laying still it's okay? [Defendant]: but my back's botherin me. [Doctor]: Low back? [Defendant]: yeah. [Doctor]: There are no fractures there, it's probably from just laying in bed and not being able to move very much. [Defendant]: yeah [Doctor]: Unfortunately [Defendant]: Okay ... [Doctor]: Okay, well I'll let them finish that's all I needed to check on right now. [Defendant]: Well, can I, am I going to be able to some medication after this or [Doctor]: Pain medication [Defendant]: Okay Stieber: We are just about through, [Doctor]: It's fine with me, whatever you need to do. Id. at 69–70. Finally, Defendant notes his trial testimony that when the officers read him his Miranda rights at the start of the November 6 interview, he was, “Tired, in pain, wanting to sleep.” Id., Tr. of Jury Trial, Vol. 7–B at 61.

Defendant's claim that he was coerced by the withholding of morphine is flawed on many levels. First, the evidence that Defendant felt coerced by the withholding of morphine is very weak, if not nonexistent. The only statements that he points to regarding his state of mind are two ambiguous comments during his cross-examination. Asked whether he was testifying that his statement to Stieber on November 6 was not voluntary, he responded: “At one point it wasn't, at the beginning, but I have to be submissive in the hospital cause of being treated and things like that.” Id., Vol. 7–A at 15–16 (emphasis added). And asked if he was afraid about what was going to happen to him when the officers came to interview him, he answered: “No, I wasn't scared. I was just tired and I was hurting, I wanted to be left alone, but had to be submissive to get treatment.” Id., Vol. 7–B at 52 (emphasis added). Nothing in the record expands upon those statements, which make no reference to morphine.

Second, Defendant's claim is conceptually confusing, almost incoherent. Ordinarily, when one thinks of a coerced confession, one thinks of law-enforcement officers telling the suspect that he must confess, or else. That, however, is not Defendant's claim, and nothing in the record even hints at such a communication from the officers to Defendant. Defendant points to the November 4 statements by the nurse and Bohan that he would not receive any morphine until the interview was over. But the evidence regarding that interview shows the opposite of such alleged coercion: the sooner he quit talking, the sooner he would get morphine. Bohan left after 25 minutes, shortly after Defendant said, “I'm hurting and I'm tired,” id., Tr. of Jackson v. Denno Proceedings, Pl.'s Ex. 1 at 11, even though Defendant had been saying that he could remember nothing about the victim's death. What Defendant would learn from this encounter is that he could get his morphine quickly if he feigned a lack of memory, so the officer would give up and leave. (We say “feigned” advisedly, because Defendant testified at trial that he actually remembered everything when he was interviewed on November 4. See id., Tr. of Jury Trial, Vol. 7–A at 12–14.). And nothing changed the rules for the November 6 interview. No one told Defendant that the officers would not leave until he confessed. To the contrary, the only time that Defendant indicated that he did not want to talk—saying, “I, I don't have to tell ya nothin, I don't have to,” id., Tr. of Jackson v. Denno Proceedings, Pl.'s Ex. 2 at 74—Stieber agreed, stating, “I know you don't have to,” id. Perhaps Defendant could (but does not) claim that he was coerced into silence on November 4 because the only way to get morphine was to quit talking; but that must be an unprecedented claim of coercion, and even if his feigning memory loss was coerced, Defendant was not prejudiced because, as noted earlier, the prosecutor did not attempt at trial to exploit Defendant's alleged lack of memory on November 4.

Third, there is no evidence in the record that Defendant was suffering significant pain during the critical part of the November 6 interview. His first mention of pain was about 90 minutes into the interview. What he said after that point would not have affected the outcome of the trial; he had already described his struggles with the victim. Given Defendant's willingness to mention his pain at that point, it would be surprising if he had kept silent while suffering earlier in the interview, particularly when, as Stieber testified, medical personnel entered the room during the interview to check on Defendant four or five times.

For Defendant to prevail on his claim of ineffective assistance of counsel, he must establish that any competent attorney would have raised the morphine-coercion claim and that he was prejudiced by the failure of his attorneys to do so. See Strickland, 466 U.S. at 687–88, 104 S.Ct. 2052. But the coercion claim was so far-fetched that Defendant fails on both counts. His attorneys were not acting unreasonably in failing to pursue the claim, and there is no reasonable chance that his hospital statements would have been suppressed (and a different verdict rendered) if they had done so.

In his opening brief in this court, Defendant suggests that he should be granted an evidentiary hearing on this coercion claim. He argues in a footnote: If Petitioner was granted a state evidentiary hearing he could have cross-examined the officers using the records that were not submitted until post-conviction. He could have asked Dr. Kupiec or one of the doctors from the hospital to compare audio tapes of Brian Davis' voice patterns from the trial when he was in pain and under the influence of morphine to the tapes of his interviews in the hospital to determine his level of impairment and distress. He could have called the nurses and doctors as witnesses to reveal their conversations with the officers as they constructed their plan to suspend Petitioner Pain medication. Aplt. Br. at 34 n. 8. Because the OCCA did not address this coercion issue on the merits and § 2254(d) therefore is inapplicable, evidence from a federal-court evidentiary hearing could be considered in resolving the issue. It does not necessarily follow, however, that Defendant is entitled to an evidentiary hearing. We have said that “[d]istrict courts are not required to hold evidentiary hearings in collateral attacks without a firm idea of what the testimony will encompass and how it will support a movant's claim.” United States v. Cervini, 379 F.3d 987, 994 (10th Cir.2004). Defendant's presentation to this court may not satisfy this standard. We need not resolve the matter, however, because Defendant forfeited the issue by not seeking an evidentiary hearing on the morphine-withholding coercion claim in district court. Although he moved for an evidentiary hearing below, his motion contains no reference to this claim; it relates only to the contention that he was too impaired to waive his Miranda rights. Defendant presents no “reason to deviate from the general rule that we do not address arguments presented for the first time on appeal.” United States v. Moya, 676 F.3d 1211, 1213 (10th Cir.2012) (internal quotation marks omitted).

V. REQUEST FOR COA ON ADDITIONAL ISSUES

A COA will issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires “a demonstration that ... includes showing that reasonable jurists could debate whether (or, for that matter, agree that) the [application] should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (internal quotation marks omitted). In other words, the applicant must show that the district court's resolution of the constitutional claim was either “debatable or wrong.” Id. And for those of Applicant's claims that the OCCA adjudicated on the merits, “AEDPA's deferential treatment of state court decisions must be incorporated into our consideration of [his] request for [a] COA.” Dockins v. Hines, 374 F.3d 935, 938 (10th Cir.2004). We now turn to Defendant's request for a COA on claims 4 to 9.

A. Claims 4 & 5: Rebuttal Witness Testimony

Defendant requests a COA on two related claims challenging the admission of the rebuttal testimony of Russell Busby, who was not disclosed on the state's pretrial list of witnesses. Busby, the chief investigator for the District Attorney, testified as an expert to rebut Defendant's trial version of events. Based on his review of photographs and reports of the crime scene, as well as consultations with the medical examiner's office, he expressed his opinion (1) that the absence of blood stains on the bedroom carpet showed that all the knife wounds to the victim could not have been inflicted, as Defendant testified, while she was standing in the bedroom by the bathroom door, and (2) that the two parallel wounds on his arm did not appear to be defensive wounds. Defendant contends (1) that the lack of pretrial notice of the intention to call Mr. Busby deprived him of a due-process right created by Oklahoma law requiring prior notice of the expert witness, as well as of the fundamental fairness that is the essence of due process, see Donnelly v. DeChristoforo, 416 U.S. 637, 642, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974); and (2) that permitting the State not to disclose such a witness violated due-process principles articulated in Wardius v. Oregon, 412 U.S. 470, 475, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973) (“[I]n the absence of a strong showing of state interests to the contrary, discovery must be a two-way street. The State may not insist that trials be run as a ‘search for truth’ so far as defense witnesses are concerned, while maintaining ‘poker game’ secrecy for its own witnesses.”). The OCCA held that Busby's testimony was admissible, stating that it “was relevant to refute Defendant's claims made for the first time during his trial testimony concerning the manner and locations of the knife attack that were different than his pre-trial statements.” Davis, 103 P.3d at 77. The district court agreed, reasoning that the state was previously unaware of the version presented at trial.

We agree that AEDPA requires affirmance. First, the Oklahoma notice requirement did not create a federal due-process right. See Elliott v. Martinez, 675 F.3d 1241, 1244–45 (10th Cir.2012) (a state-created procedural right is not a liberty interest protected under the Constitution's Due Process Clause). Therefore, even if the state rule was violated, Defendant cannot obtain relief on that ground under § 2254, which limits review to claims based on federal law. See Turrentine v. Mullin, 390 F.3d 1181, 1195–96 (10th Cir.2004) (“[A] federal court under § 2254 may not grant relief unless there was an error of federal law, in other words, unless this error amounted to a violation of the federal constitution.”).

Second, there is nothing so unfair as to violate due process in permitting the government to put on a rebuttal witness to challenge defense testimony that could not be anticipated before trial. And Defendant has cited no Supreme Court decision suggesting that such a rebuttal witness must be disclosed before trial. Wardius, which dealt with a notice-of-alibi rule, did not address rebuttal testimony. Defendant argues that the OCCA unreasonably determined the facts in saying that his testimony could not have been reasonably anticipated and that Busby was therefore a proper rebuttal witness. He relies on Stacey Sanford's trial testimony that in the second of three versions of events conveyed to her by Defendant (and presumably reported to the state before trial), he said that one of the stabbings occurred in the bedroom. But this evidence is hardly clear and convincing evidence that the OCCA got it wrong. See 28 U.S.C. § 2254(e)(1) (determination of factual issue by state court is presumed correct and presumption can be overcome only by clear and convincing evidence). The second version recited by Stacey was too vague to be contradicted by the physical evidence testified to by Busby. Busby's testimony was useful only because of the specificity of Defendant's trial version of the stabbings. Moreover, Defendant has not cited to any Supreme Court decision clearly establishing that due process requires the state to disclose expert testimony before trial when the defendant has not been required to disclose its witnesses on the same subject. The holding in Wardius is only that the government cannot require the defendant to disclose an alibi defense witness unless the government will also disclose its witnesses rebutting that defense. Defendant was not required to provide any pretrial discovery regarding the locations of the stabbings. No reasonable jurist could debate the district court's conclusion that Defendant is not entitled to relief on this claim.

B. Claim 6: Sufficiency of the Evidence of First Degree Murder

Defendant argues that there was insufficient evidence to support a finding of guilt if his statements to the police or Busby's rebuttal testimony is held to be inadmissible. But (1) we have rejected his challenges to the admission of the evidence; and (2) when considering a challenge to the sufficiency of the evidence, we consider all evidence admitted at trial, even if admitted improperly, see Lockhart v. Nelson, 488 U.S. 33, 40–41, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988) (a reviewing court should consider erroneously admitted evidence in determining whether double jeopardy bars retrial due to insufficient evidence). No reasonable jurist could debate the district court's rejection of this claim.

C. Claim 7: Jury Instruction on Circumstantial Evidence

Defendant argues that because the evidence of malice aforethought was entirely circumstantial, he had a due-process right to the following requested jury instruction: The State relies in part for a conviction upon circumstantial evidence. In order to warrant conviction of a crime upon circumstantial evidence, each fact necessary to prove the guilt of the defendant must be established by the evidence beyond a reasonable doubt. All the facts necessary to such proof must be consistent with each other and with the conclusion of guilt the State seeks to establish. All of the facts and circumstances, taken together, must be inconsistent with any reasonable theory or conclusion of a defendant's innocence. All of the facts and circumstances, taken together, must establish to your satisfaction the guilt of the defendant beyond a reasonable doubt. OUJI–CR 9–5, Vernon's Okla. Forms 2d 456 (2003 ed.) (brackets omitted). See Riley v. State, 760 P.2d 198, 199 (Okla.Crim.App.1988) ( “[C]onvictions based entirely upon circumstantial evidence cannot be sustained unless the evidence presented excludes every reasonable hypothesis except that of guilt.”). The OCCA rejected the argument on the ground that there was both direct and circumstantial evidence of guilt. See Davis, 103 P.3d at 79. The district court agreed and found no error. In any event, even if state law required the instruction, a violation of a state rule is not in itself a ground for relief under § 2254. See Turrentine, 390 F.3d at 1195–96. And Defendant has not directed our attention to any decision of the United States Supreme Court requiring a circumstantial-evidence instruction as a matter of constitutional law. No reasonable jurist could debate the district court's rejection of this claim.

D. Claim 8: Evidence of Affair of Victim's Husband

Defendant argues that his rights to confrontation and compulsory process were violated when the trial court did not allow him to question witnesses about an alleged affair of the victim's husband. He maintains that evidence of the affair would have supported his testimony that the victim was crying over her husband's affair, Defendant tried to comfort her, they engaged in consensual sex, and she (already feeling rejected by her husband) attacked him when he criticized her sexual performance. The OCCA rejected the argument, writing: Before calling Tom Sanford[, the victim's husband,] to testify, the State moved in limine to prohibit the defense from questioning him about whether or not he had engaged in an extra-marital affair. The State argued that Tom Sanford's participation in any extra-marital affair was not relevant to the case. The defense argued it had the right to address the subject since the State had presented evidence of it through Stacey Sanford 6 and such evidence was relevant to Jody Sanford's state of mind to show whether she would have given consent to have sex with Davis. The State responded that it had not offered evidence that an affair had actually taken place, only that Davis had told Stacey that her mother was upset about an affair. The trial court ruled that evidence of an actual affair was not relevant, but even if it were, the prejudicial effect outweighed any probative value it might have had.

It is well established that the scope of cross-examination and the admission of evidence lie in the sound discretion of the trial court, whose rulings will not be disturbed unless that discretion is clearly abused, resulting in manifest prejudice to the accused. There is no such abuse of discretion in the present case. Whether Jody Sanford had heard a rumor of an affair and whether she believed it as true would not have been rendered more or less probable by the admission of evidence indicating whether or not Tom Sanford had actually engaged in an extra-marital affair. The issue was Jody Sanford's existing state-of-mind to which Davis testified. Davis repeated his claim under oath that Sanford was upset about her husband's alleged affair in support of his claim that they had consensual sex. Therefore, evidence from Sanford that he actually engaged in an affair was not relevant to the issues in controversy. The same is true for Raymond Pollard[, a friend of Defendant,] and Stacey Sanford. The defense sought to question Pollard in its case-in-chief about seeing Tom Sanford in the company of a woman, not his wife. Such evidence was irrelevant to the issue of consent or Sanford's state of mind at the time of her death. Likewise, the defense wanted to ask Stacey if she had heard the rumors Davis had heard about her father being involved in an extra-marital affair and whether she knew if her mother had heard or knew of the rumors. Defense counsel did not indicate that he had any knowledge to support an offer of proof that Stacey knew her mother was aware of any alleged affair and was affected by it in the days before her death. Based on this record, it cannot be said the trial court abused its discretion in limiting defense counsel's questioning of these witnesses. Accordingly, we find this claim has no merit. Davis, 103 P.3d at 79–80 (citations and footnote omitted). Footnote 6 states: Stacey had earlier testified about Davis' third statement to her in which he admitted, after being confronted with DNA evidence, to having sex with her mother before he killed her. Davis told Stacey that her mother was upset about her husband cheating on her and that Davis' attempts to comfort her led to consensual sexual intercourse. Id. at 79 n. 6.

The district court analyzed Defendant's constitutional claims as follows: The Confrontation Clause of the Sixth Amendment “guarantees the right of an accused in a criminal prosecution to be confronted with the witnesses against him.” Davis v. Alaska, 415 U.S. 308, 315 [94 S.Ct. 1105, 39 L.Ed.2d 347] (1974) (internal quotation omitted). “[A] primary interest secured by [the Confrontation Clause] is the right of cross-examination.” Id. (citation omitted). “[A] defendant's right to confrontation may be violated if the trial court precludes an entire relevant area of cross-examination.” Richmond v. Embry, 122 F.3d 866, 871 (10th Cir.1997) (internal quotation omitted). However, the right to cross-examination is not unlimited. “[T]rial judges retain wide latitude ... to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679 [106 S.Ct. 1431, 89 L.Ed.2d 674] (1986). There is no recognized constitutional right for criminal defendants to “present evidence that is not relevant and not material to his defense.” United States v. Solomon, 399 F.3d 1231, 1239 (10th Cir.2005).

Petitioner's claim also involves the Compulsory Process Clause of the Sixth Amendment. (Pet. at 80–84.) “A defendant's right to due process and compulsory process includes the right to present witnesses in his or her own defense.” Richmond, 122 F.3d at 871 (citing Washington v. Texas, 388 U.S. 14, 18–19 [87 S.Ct. 1920, 18 L.Ed.2d 1019] (1967)). “[T]he state may not arbitrarily deny a defendant the ability to present testimony that is ‘relevant and material and ... vital to the defense.’ ” Id. at 872 (quoting United States v. Valenzuela–Bernal, 458 U.S. 858, 867 [102 S.Ct. 3440, 73 L.Ed.2d 1193] (1982)). A party seeking to establish a violation of the right to compulsory process must establish that the exclusion of the proffered testimony resulted in fundamental unfairness. Id. As the Tenth Circuit explained: In order to establish a violation of his due process right to present evidence, a defendant must show that the evidence excluded by the trial court's ruling might have affected the trial's outcome; in other words, he must show that the evidence, if admitted, would have created reasonable doubt that did not exist without the evidence. Patton v. Mullin, 425 F.3d 788, 797 (10th Cir.2005) (citing Valenzuela–Bernal, 458 U.S. at 868 [102 S.Ct. 3440]).

The Court finds the OCCA's determination is a reasonable application of clearly established federal law. The evidence in question was, at best, marginally relevant to Petitioner's case. That Tom Sanford had an affair, or whether other witnesses were aware of rumors of an alleged affair, may tend to support Petitioner's version of events, in the sense that Jody may have been distraught over allegations of her husband's infidelity. However, the connection is tenuous. The proffered testimony would not indicate whether Jody had actual knowledge of a possible affair or rumors of an affair. In other words, it was not relevant to Jody's state of mind on the night in question. The OCCA's determination that the trial court was within its discretion is not unreasonable. Moreover, the evidence fails to meet the “materiality” standard required for a constitutional violation. Richmond, 122 F.3d at 872; see also Patton, 425 F.3d at 798 (holding that petitioner failed to establish the materiality of excluded evidence). In the context of all the evidence presented at trial, including Petitioner's own admissions to the stabbing, Busby's testimony refuting Petitioner's last version of events, and the physical evidence of Jody's homicide, the exclusion of allegations of an alleged affair of Tom Sanford did not render Petitioner's trial fundamentally unfair. Testimony suggesting Mr. Sanford had an affair would not have created reasonable doubt where none existed before. Richmond, 122 F.3d at 872. As the evidence was marginally relevant and not material to Petitioner's defense, the Court finds the OCCA's determination is not contrary to, nor an unreasonable application of, clearly established federal law. R., Vol. 1 pt. 3 at 432–34. In our view, no reasonable jurist could debate the district court's conclusion that Defendant was not entitled to relief on this claim.

E. Claim 9: Cumulative Error

Finally, Defendant contends that the cumulative impact of errors rendered the state-court proceedings fundamentally unfair. See Workman v. Mullin, 342 F.3d 1100, 1116 (10th Cir.2003) (“Cumulative error is present when the cumulative effect of two or more individually harmless errors has the potential to prejudice a defendant to the same extent as a single reversible error.” (internal quotation marks omitted)). The OCCA ruled that cumulative error did not render Defendant's trial unfair. See Davis, 123 P.3d at 248. Discerning no error, the district court agreed. No reasonable jurist could debate the district court's conclusion that the OCCA did not unreasonably apply federal law or unreasonably find facts in rejecting this claim.

VI. CONCLUSION

We AFFIRM the district court's denial of claims 1, 2, and 3. For all other claims for which Defendant has sought a COA from this court, we DENY the request.

 

 

 
 
 
 
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