Riding her bike in apt. complex, 7 yr old went to apt. she used to
live in, where defendant now lived, and said she was hungry.
She was choked and beaten, then had her head held
in a toilet bowl, then was stabbed repeatedly, then sexually molested.
Her body was later taken to nearby dumpster.
Victim is granddaughter of Johnny Cabrera,
Chairwoman of Oklahoma Coalition Against Death Penalty.
Medlock pled guilty and did not seek clemency.
Psychiatrist testified that Medlock suffers from a split personality.
Oklahoma Attorney General
W.A. Drew Edmondson, Attorney General - Six
Execution Dates Requested, Including Female
Attorney General Drew Edmondson today asked the
Oklahoma Court of Criminal Appeals to set execution dates for six
death row inmates following a denial of their final appeals earlier
Monday by the United States Supreme Court. Included in Edmondson's
request was Wanda Jean Allen of Oklahoma County, who would become the
first female to be executed since statehood.
Others for whom an execution date was requested
were: Floyd Allen Medlock, Canadian County; Phillip Dewitt Smith,
Muskogee County; Robert William Clayton, Tulsa County; Dion Athanasius
Smallwood, Oklahoma County; and Eddie Leroy Trice, Oklahoma County.
Allen, 41, murdered her roommate, Gloria Jean
Leathers, 29, in front of The Village Police Department in northwest
Oklahoma City on Dec. 1, 1988. Leathers had driven to the police
station following a domestic argument with Allen.
Allen followed her and fired a single gunshot into
her abdomen. Allen had previously received a four-year prison sentence
for first degree manslaughter in the shooting death of Detra Pettus on
June 29, 1981.
Medlock, 29, kidnaped, sexually assaulted and
stabbed to death Katherine Ann Busch, 7, on Feb. 19, 1990. Busch's
body was found early the next morning in a dumpster behind a shopping
center near the Woodoaks Apartments in Yukon, where she lived with her
On the afternoon of February 19, 1990, Medlock was
in his apartment watching cartoons on television when he heard someone
attempting to open his door.
On opening the door, he found Katherine Anne Busch,
a small girl with a bicycle, who walked into his apartment and told
him she once lived there.
When Medlock admonished her against barging into
his home, Kathy said simply that she was hungry and wanted something
Medlock gave her potato chips and began to prepare
macaroni and cheese. While cooking, he told the police, "this real
weird feeling" came over him. Precisely what Medlock did next is
unclear but the following is undisputed.
Medlock grabbed Kathy by the arm, she jerked away,
he grabbed her again, and she jerked away again. He wrestled with her
and covered her mouth when she began to scream, choking her until she
According to his confession, she regained
consciousness, and he dragged her to the bathroom and forced her head
into the toilet bowl for approximately ten minutes, during which time
she was gasping for breath.
Then, while she was still alive, he stabbed her in
the back of the neck with a steak knife and later with a hunting knife
until she died, holding her head in the toilet bowl again so that she
would not bleed on the floor.
After the bleeding ceased, he placed her in the
bathtub, removed her clothes, and attempted to sexually molest her
lifeless body. Finally, he wrapped her body in a blanket, placed it in
a box, and deposited the box and her bicycle into a dumpster behind a
nearby shopping center.
Judy Busch and Johnnie Cabrera remember where they
were in 1990 when they learned their 7-year-old granddaughter, Kathy,
had been murdered. And they know where they will be inside the
towering white concrete walls of the Oklahoma State Penitentiary,
where Kathy's killer, Floyd Medlock, is to be executed for the crime.
The 2 grandmothers won't be seated together, though.
They won't be there to comfort each other. They probably won't even
speak. They are victims of the same violent crime, but they disagree
sharply over Medlock's fate - Ms. Cabrera is chairwoman of the
Oklahoma Coalition Against the Death Penalty, and Ms. Busch is founder
of the Survivors of Homicide Support Group.
Ms. Busch wants Medlock dead; Ms. Cabrera does not.
The chasm is so great that the women - who say they were never close
even when their children were married - haven't spoken since a 1992
confrontation inside the Oklahoma Capitol, where Ms. Cabrera was
speaking against capital punishment and Ms. Busch rebuked her. "We
can't sit in the same room," said Ms. Cabrera, who will be seated
Tuesday night with Medlock's witnesses, on the opposite side of a
glass partition from Ms. Busch. "That's really a shame because she has
every right to her opinion and belief. It's not for her to say my
opinion and my belief is wrong." "I couldn't tell you today exactly
what she said,"
Ms. Busch said, "except that she was speaking
against the death penalty and how horrible it is and how her
granddaughter was murdered. That just absolutely devastated me that
she would do that. "It wasn't a pretty picture. Kathy lived with me
for a year and a half [when her parents separated and divorced].
Johnnie never called. Johnnie never came over to see Kathy. I told her,
'You didn't have anything to do with Kathy when she was alive and, by
God, I don't want you using her name now that she is dead.'"
For the grandmothers, Kathy's death and Medlock's
sentence helped crystallize their thinking on the death penalty. A
former stockbroker and longtime single mother, Ms. Busch, 58, said she
already knew she supported capital punishment after serving on a jury
in 1988 that sentenced two men to death. But Kathy's death steeled her
resolve, especially, she said, when she discovered that victims'
families often were the last to know anything about the investigation
On the advice of her counselor, Ms. Busch searched
for a support group for families of homicide victims. To her surprise,
she said, there wasn't one in the Oklahoma City area. So she decided
to start her own. Now, she said, her mailing list includes about 500
families affected by murder.
Her group travels to the state prison in McAlester
for each execution to hold a vigil for the victims. She also joined
the Oklahoma City Police Department in 1993 to serve as its homicide
victim liaison. "People who have had the death penalty imposed upon
them are the worst of murderers," Ms. Busch said, noting that the law
requires "aggravating" circumstances before capital punishment can be
applied. "Some people just need to be out of society and need to just
not live," she said. "Just because you leave them locked up doesn't
mean they won't kill again."
Ms. Cabrera was raised in a law enforcement family
in northern Minnesota. Her father was a judge, her brother a police
officer. The family's thinking, she said, was black and white: "What's
right is right, what's wrong is wrong. If you do the wrong thing, you
suffer the consequences. "When it [Kathy's murder] first happened, I
was so angry I probably could] have killed him myself," she said. But
her Presbyterian upbringing, Ms. Cabrera said, also left her with the
conviction that "only God has the right to take a life. He put us here,
and he's the only one who can take us away."
At the sentencing trial, Ms. Cabrera said that she
could see the pain on the face of Medlock's stepfather. She approached
him to say she did not blame him for Kathy's murder. And she became
convinced, she said, that the death penalty doesn't really solve
anything. "The death Kathy had was horrendous," Ms. Cabrera said. "When
we kill him, all he's going to do is go to sleep. I think he should
sit in his prison cell the rest of his life and think about what he's
done." Ms. Cabrera, a 65-year-old utility claims adjuster, joined the
Oklahoma Coalition to Abolish the Death Penalty and is now serving as
Both grandmothers said they plan to continue their
crusades after Medlock's execution - Ms. Busch helping victims'
families, Ms. Cabrera fighting to abolish the death penalty. And
neither said they expect any fireworks, should their paths cross
inside the state penitentiary on Tuesday. "I don't anticipate anything
bad happening," Ms. Busch said. "It's not going to be comfortable. But
there's nothing she can say that will change my feelings. And I can
probably never change her feelings."
Ms. Cabrera expressed sadness over the conflict. "She's
still so angry," she said. "The hate is just consuming her. You cannot
go on with your life with hate in your life. It will eat you up.
There'll never be a closure, because Kathy's not here. Executing him
is not going to close this thing. What does it accomplish? All you're
doing is making another family suffer grief."
Ms. Busch, though, said she expects Medlock's death
to provide "a certain amount of peace. Since March of 1991, I have
dealt with the possibility that some court or some judge or someone
would overturn this sentence and he would be out," she said. "I
anguished over every appeal. It's horrible, waiting to see that
decision upheld, because I feel he would do it again if he had that
opportunity. "When he's executed Tuesday night, I won't have that
Floyd Allen Medlock
January 16, 2001
OKLAHOMA - A man who fatally stabbed, beat and
sexually molested a 7-year-old girl in his apartment was executed by
fatal injection Tuesday night. Floyd Allen Medlock, 29, told police
police "something clicked" in his mind before he killed Katherine Ann
Busch in 1990. Medlock's execution was the 3rd in Oklahoma this month.
5 more scheduled over the next 3 weeks.
Police said Katherine Busch spent her last evening
alive pedaling her tiny bicycle around the apartment complex where she
lived with her mother, Gina Ford. As she rode, police said, she saw
Medlock in an apartment where she and her mother used to live, and
stopped to talk. He made her macaroni and cheese. About 6 1/2 hours
later, police found Busch's nude body -- raped, beaten, stabbed -- in
a drugstore garbage bin 3 blocks away.
Medlock turned himself in and later pleaded guilty
to 1st-degree murder. At his sentencing, therapists claimed Medlock
had a split personality and that his alter ego -- an enraged 12-year-old
named Charlie -- was to blame for Katherine Busch's death. Medlock did
not request a clemency hearing and filed no emergency appeals to try
and stop his execution.
Medlock becomes the 3rd condemned inmate to be put
to death in Oklahoma this year, and the 33rd overall since the state
resumed capital punishment in 1990. Medlock becomes the 5th condemned
inmate to be put to death this year in the USA and the 688th overall
since America resumed executions on January 17, 1977.
Floyd Allen Medlock
McAlester, Okla., January 16, 2001 - A man who told
police that "something clicked" in his mind before he fatally beat,
stabbed, and sexually assaulted a 7-year-old girls faced execution
Floyd Allen Medlock, 29, was scheduled to die of a
poisonous injection shortly after 9 p.m. Tuesday at the Oklahoma State
Penitentiary in McAlester. He pleaded guilty to the February 19, 1990,
murder of Katherine Ann Busch at his Yukon apartment.
Medlock's execution will be the third in Oklahoma
this month, with 5 more scheduled in the next 3 weeks. Dion Smallwood
faces the death chamber Thursday night. Last week, the state was the
focus of national attention and a spate of protests over the execution
of two-time killer Wanda Jean Allen, the first black woman executed in
the United States since 1954.
Medlock's execution is marked by a more private
dispute between the grandmothers of his victim, Johnnie Cabrera and
Judy Busch, who are on opposite sides of the death penalty issue. Judy
Busch is an ardent death penalty advocate who founded a support group
for homicide survivors, and plans to watch Medlock's execution with
other members of her family who want him dead.
Cabrera is chairwoman of the Oklahoma Coalition to
Abolish the Death Penalty and considers execution murder. "We're doing
the same thing he (Medlock) did," Cabrera said of his scheduled
execution. She plans to watch the execution as a guest of Medlock,
with whom she exchanged letters while he was in prison so she could
get answers about the crime.
Such actions by Cabrera are offensive to Judy Busch,
who hasn't spoken to Cabrera since confronting her at an anti-death
penalty rally years ago. "It really appalls me that she fights for
this person's life, that did all the horrible things he did to Kathy,"
Cabrera denies Busch's contention that she harbors
sympathy for Medlock. In fact, Cabrera wants Medlock to be forced to
live out his life in prison because she considers it a worse fate than
a quick, painless death.
While Medlock awaited his death in a cramped
holding cell, police said that Katherine Busch spent her last evening
alive pedaling her tiny bike around the Woodoaks Apartments where she
lived with her mother, Gina Ford.
During Busch's ride, police said that she saw
Medlock in an apartment where she and her mother used to live, and
stopped to talk. About 6 hours later, police found Busch's nude body
-- raped, beaten, stabbed and wrapped in a sheet and blanket -- in a
drugstore garage bin three blocks away.
Medlock himself called police to confess to killing
the girl and later pleaded guilty to first-degree murder.
At his sentencing, therapists claimed Medlock had a
split personality and that his alter ego -- an enraged 12-year-old
named Charlie -- was to blame for Busch's death. Cabrera said the
state is playing right into Medlock's hands by killing him. "He told
me in one letter that he was thankful for what I've done (trying to
abolish the death penalty), but he was just thankful it didn't happen
in his lifetime," Cabrera said. "I just think he's ready to let go.
And the state is going to provide that for him."
(Source: The Oklahoman)
Medlock Executed for the Murder of 7-year-old
McALESTER, Okla. (AP) -- A man who made a curious
7-year-old girl macaroni and cheese in his apartment, then fatally
stabbed, beat and sexually molested her was executed Tuesday night at
the Oklahoma State Penitentiary.
Floyd Allen Medlock, 29, was pronounced dead at
9:20 p.m. after receiving a lethal injection. He confessed and pleaded
guilty to the Feb. 19, 1990, murder of Katherine Ann Busch, who lived
near Medlock with her mother at a Yukon apartment complex.
Medlock's execution was the third in Oklahoma this
month, with five more scheduled over the next three weeks. Last week,
the state was the focus of national attention and a spate of protests
over the execution of two-time killer Wanda Jean Allen, the first
black woman executed in the United States since 1954.
Medlock's execution drew interest from a number of
newspapers and television stations, as well as two dozen protesters on
both sides of the death penalty issue. In Oklahoma City, about 40
people stood in the sleet outside the Governor's Mansion in protest of
the execution and support of a death penalty moratorium.
But Medlock's execution was marked by a more
private dispute between the grandmothers of his victim, Johnnie
Cabrera and Judy Busch, who have opposite opinions about capital
punishment. Judy Busch is an ardent death penalty advocate who founded
a support group for homicide survivors.
Cabrera is chairwoman of the Oklahoma Coalition to
Abolish the Death Penalty and considers execution murder. Both were at
the prison Tuesday night to watch the execution. Busch headed up a
group there on Katherine Busch's behalf, while Cabrera was there as a
guest of Medlock, saying she was extended no invitation to be a
witness for her granddaughter.
Cabrera exchanged letters with Medlock while he was
in prison, hoping to get answers about the crime. She said her
acceptance of Medlock's invitation was in no way a show of support for
the man who murdered her granddaughter, but Judy Busch said she was "completely
confused" by Cabrera's actions.
Police said Katherine Busch spent her last evening
alive pedaling her tiny bicycle around the Woodoaks Apartments where
she lived with her mother, Gina Ford. During Busch's ride, police said
she saw Medlock in an apartment where she and her mother used to live,
and stopped to talk. About 6 1/2 hours later, police found Busch's
nude body -- raped, beaten, stabbed and wrapped in a sheet and blanket
-- in a drugstore garbage bin three blocks away.
Arnold Shapiro Productions
MSNBC INVESTIGATES: DEATH ROW DIARY tells the story
of Oklahoma death row inmate Floyd Allen Medlock, sentenced to die for
the brutal murder of 7-year-old Kathy Busch. Leading up to his
execution on January 16, 2001, Medlock kept a video diary, given
exclusively by his family to MSNBC INVESTIGATES and Arnold Shapiro
In these tapes, Medlock discusses his crime, his
incarceration, and his impending death. In the wake of his sentencing,
Kathy's family is divided: One of her grandmothers has become an
activist favoring the death penalty, and the other fights to abolish
it – and, remarkably, has developed a friendship with Medlock. We
follow both grandmothers as they prepare to witness Medlock's
execution - one with the victim's family, and the other as a friend to
Girl's Murder Pits Grandmothers Against Each
One Wants Killer's Execution; the Other, His
By Robert Anthony Phillips - APBNews.com
May 12, 2000
OKLAHOMA CITY (APBnews.com) - Lying in a pink
coffin beside her favorite teddy bear, the 7-year-old child whose
murder made enemies of her grandmothers is buried in Rest Haven
cemetery. She has been there for more than a decade.
The tire swing she used to play on has been taken
down. Her parents have married others and moved away. She has brothers
and sisters she never met. Photographs of her first and last
Christmases trigger happy and painful memories. But Katherine Busch's
grandmothers remain divided, one praying for her killer to live and
the other yearning to watch him die.
"They both had overpowering love for my daughter,"
said Gina Ford, Katherine's mother. "Sometimes I wish they'd let her
lie in peace." Should Floyd Medlock, who murdered an innocent child,
live or die? That is the conflict that has made bitter enemies of
Katherine's grandmothers, Judy Busch and Johnnie Cabrera.
Busch and Cabrera have become leaders and activists
on opposite sides of one of the most emotional conflicts in America:
the death penalty issue. They dislike one another, refusing to speak
or even be in the same room together. In Oklahoma, they are often
referred to simply as "the grandmothers."
In the name of justice and the law, Busch wants
Medlock executed and supports the death penalty. In the name of God,
Johnnie Cabrera campaigns to abolish the death penalty so that Medlock
and others now sitting on death rows across the United States may live.
Busch, Katherine's paternal grandmother, is a
leader of the victim's rights movement in Oklahoma and a full-time
employee of the Oklahoma City Police Department, where she works with
relatives of homicide victims. She has been instrumental in the
passage of victim's rights laws in Oklahoma, using Katherine's murder
as a lynchpin for her campaign.
Cabrera, the child's maternal grandmother, is the
leader of the Oklahoma City chapter of the state Coalition to Abolish
the Death Penalty. She frequently stands in front of the governor's
mansion in protest when executions take place -- and plans to protest
when her grandchild's murderer is executed.
"They both have the same blood that was flowing
throughout that little girl," said Gina Ford, who has now remarried
and moved to Missouri. "Both can put aside their differences to
remember ... if just for one day, and I think everyone can do that."
But they probably never will. "When you do the ultimate crime, you pay
the ultimate price," Busch said. "You can forgive him, but he still
has to pay the price. You know, it's Kathy's place to forgive him." "I
feel every time we execute a person, we're going against God's will,"
Cabrera said. "I don't see that as closure. Seeing someone else die,
that's not closure."
Busch, 56, says Cabrera doesn't want Medlock
executed because Cabrera did not love the child as much as she did.
She accuses Cabrera of using Katherine's murder to further the anti-death
penalty cause and once screamed at her during a protest rally. "Someone
has to be there for Kathy," Busch said. "She can't be here. ... You
know, I took care of Kathy when she was born. I took care of Kathy all
of her life, and I still have to be there for Kathy. I'm not a
vengeful person. I don't feel vengeance at all. I feel like it's our
law. It's what our law says. When you do something really bad, then
you have to pay the price."
Cabrera, 63, admits she didn't have a good
relationship with her daughter, Gina, as Katherine was growing up and
didn't visit her grandchild on a regular basis. Cabrera also said she
never liked Gina's husband, Kenneth Busch, and kept away from their
It was Busch who took care of Katherine after her
parents separated and later divorced. Katherine lived with Busch for
more than a year. Looking back, Cabrera said that she might even have
been envious of the close relationship Busch had with Katherine. But
Cabrera said that she is hurt by Busch's claim that she didn't love
the child as much as Busch did.
Cabrera said that after Katherine was murdered, she
had to let go of the hate she had for Medlock. Cabrera said that if
she didn't, the hate would have consumed her and probably resulted in
her committing suicide. "I forgive him for the evil he did," Cabrera
said. "But I have not forgotten what he did. I had to do that in order
to go on. I could not dwell in and be consumed with the death of Kathy.
It's not that I didn't love her -- I love her dearly."
The grandmothers share good memories of Katherine.
But they share them separately. Busch stands at a table in a
conference room at the Oklahoma City Police Department, where she
works in the Homicide Victim Services Unit, spreading out pictures of
She knows when and where each one was taken. She
smiles as she points to each photograph. "This was Kathy's really
first Christmas," Busch said, gently lifting the photograph from the
pile. "She was about a year and half old, and that's her little riding
doggy she was on. That's her daddy and momma and her aunt. "This was
her last birthday. This was at my house, and she's opening her
birthday presents just with the family. I think that was a shell
necklace. Those were popular back then. She was really happy. "That
was Kathy as the little prissy girl," Busch said, looking at a picture
of the child in a dress. "She loved pretty dresses, frilly dresses and
loved twirling dresses. She loved to pose." There was another photo of
Katherine clutching her teddy bear. "That bear is still with her today,"
Cabrera says she remembers baking cookies with her
granddaughter and teaching the child to crochet. She remembers the
time she told Katherine not to pick the prize roses growing in her
back yard. Katherine disobeyed, picked one and brought it to her
grandmother, explaining that God told her to do it.
Why was Katherine murdered? She walked into the
apartment of Medlock, who psychiatrists said suffered from a split
personality. One side of him was a "teddy bear," the other described
as a sadistic, enraged child that told him to kill. On Feb. 19, 1990,
Katherine went into his apartment and met her killer. Medlock later
explained to police that a voice he called "Charlie" told him to kill
Katherine. So Medlock prepared food for Katherine, stabbed her, turned
himself in and confessed. He was sentenced to death and awaits
Busch says she can still envision a helpless,
terrified child, her head pushed into a toilet by Medlock so he could
more easily stick the blade into the back of Katherine's neck. And
Cabrera can still see a tire swing in her yard that stood so still, it
After Katherine's murder, Cabrera's then-husband,
who had put in the swing for the child, would sit staring at it.
Katherine spent hours swinging back and forth as the family dog ran
and dodged underneath the tire. Cabrera said that one day, she saw her
husband just staring at that tire swing. He then took it down.
The last time Busch and Cabrera met, Busch screamed
at Cabrera for using their granddaughter's name to try to abolish the
death penalty. The confrontation occurred here in the halls at the
state capital in the early 1990s. Busch came to lobby for the death
penalty. Cabrera was there to speak against it. "It just didn't set
right with me," Busch said. "Because I knew Johnnie had never been
close to Kathy. And I resented her using Kathy now. ... She had never
really done anything for her when she was alive. So when she got
through, I did go up to her. ... I just told her I didn't like her
using Kathy's name. I resented her using Kathy's name. I didn't ever
want her to do it again. I said, 'You didn't take care about her. ...
You didn't have an active part in her life when she was alive, so
don't use her name when she's dead.'" "She came up to me screaming,
telling me I was using Kathy's name, and I tried to explain to her
that I didn't use her name, and she said that I never loved her,"
Cabrera recalled. "And that really hurt."
During their children's marriage, Busch and Cabrera
had a friendly relationship but were never close. The women recalled
going to several social functions together, and Cabrera went to
Busch's home for dinner, but that was about it. The women said the
only thing they really had in common was Katherine.
Busch said that during Medlock's trial in 1991, she
resented seeing Cabrera sit on the side of the courtroom with the
Medlock family and also forgiving the killer's father for what his son
had done. Cabrera said she sat on the Medlock side of the courtroom
because there was no other place to view the testimony.
She also said that she approached Medlock's
stepfather after seeing the "pain" in his face and told him that she
did not blame him for the murder of her grandchild. "What about the
pain that was in our eyes?" said Kenneth Busch. "What about the pain
that was in there because of our close bond to Kathy? What drove her
to stay on that side? Nobody shunned her away. No one said she was not
welcome to sit there. You have a killer who killed one of her own
During the trial, a psychotherapist testified that
Medlock had been abused and beaten as a child. "She made friends with
Medlock's family, and she sat in the courtroom with his mother part of
time. ... That really bothered me," Busch said. "This is a blood
relative of Johnnie's," Kenneth Busch said. "This guy grotesquely and
brutally took my daughter's life with no regard to her or her family.
How can she forgive him?" Church gives Cabrera peace Cabrera said that
after the murder she avoided driving on the streets near the Dumpster
where Medlock had left Katherine's body. "I don't know what happened,
but one day ... I didn't even realize I was near [the Dumpster] and I
couldn't look to the left because I saw the Dumpster," Cabrera said.
"So I looked to the right, and I saw the Presbyterian church that I
used to go to and I knew somebody was trying to tell me something."
Cabrera said that following the murder, she
couldn't go to work or even put on makeup. She also had just learned
that she had breast cancer. "I just sat there and thought about all
the things that could have been," Cabrera said. But when she saw the
church, Cabrera said things changed for her. "I went to church, and I
talked with the pastor there, and he talked to me for hours," she said.
"I was to the point where I wanted to end everything because I had
found out I had breast cancer. I just thought everything was just
going downhill real fast. And I've now come to accept that breast
cancer. "God allowed me to have that breast cancer so I would focus on
myself rather than focusing on what happened to Kathy."
Church members told Cabrera that the time would
come when she would forgive the man who killed her granddaughter. "My
pastor told me I had to let go," Cabrera said. "It was just like a
burden was lifted from me. I just knew I had to forgive this man. You
can't have that pain in your life. Hate will consume that life."
Busch said her anger at the judicial system led her
to become a victim's rights advocate. And the anger began when
Katherine was first reported missing. Busch said that Gina Ford called
police at about 7 p.m. to say her daughter was missing, but officers
in the small Yukon Police Department said they were too busy and
didn't have time to immediately search for the child.
Police started the search several hours later,
Busch said. She publicly criticized the police at the time for not
starting the search sooner. And after Katherine's body was found in
the Dumpster, police and prosecutors didn't tell her details of the
child's death, Busch said. "The news media is what told me how my
granddaughter died," Busch said. "The police came to us and just [told
us] her body had been found. ... But the next morning at 6 a.m. the
news had a little girl in Yukon had been beaten, stabbed and raped."
At Medlock's trial, she became angrier when the
suspect decided to plead guilty and allow a judge to decide whether he
should serve a life sentence or be executed. "I wanted him to go to
trial," Busch said. "I wanted 12 Oklahomans to sentence him. It was
fine of him to plead guilty, but you know it really angered me that he
could dictate how they were going to go."
It was not until the sentencing phase of the trial
that Busch said she learned all the details of Katherine's murder.
Busch said it was then she decided that, if she ever had the chance,
she would work to help other crime victims. "I wanted to know why. I
wanted to know how. I wanted to know Kathy's last moments of life, and
I didn't know that," she said. "I'm angry that he could make that
decision on when and what I heard."
Busch started a support group for homicide
survivors, to take care of their emotional needs, and lobbied for
legislation that allowed victims to make impact statements in court
and to be present for executions. She pushed for the grant that
allowed her to establish the Homicide Victim Services Unit in the
police department, where Busch and volunteers care for the emotional
needs of families whose loved ones have been killed.
Busch also criticized the state for using more than
$50,000 in grant money to pay for inmate education. Now the money is
used to help educate "law-abiding citizens," Busch said.
And, Busch says, she's done it all to keep the
memory of Kathy alive. All that's left Busch, along with her mother
and father, and Cabrera are the only family around to visit Katherine
in the cemetery now. Katherine's mother and father have married other
people, moved out of state and are trying to rebuild their lives. They
have other children now and remember an unhappy marriage together.
Medlock sits on death row as state prosecutors move
relentlessly through the courts to kill him. Prosecutors say that if
he loses all his appeals, Medlock could be executed this year. "He's
already been in jail longer than my daughter was alive," Kenneth Busch
On a late October day, Busch stands at Katherine's
grave. She says that sometimes when she visits, she'll talk to
Katherine. She asks Katherine if she is growing, what happened when
she left the earth, or she just tells her she misses her.
She remembers the pretty lace dress that she bought
for Katherine for her burial. Katherine always liked to twirl and pose
in lace dresses while she was alive. Busch also bought lace gloves and
a veil for the child to cover up the marks Medlock left on her body in
her struggle for life.
Busch said she plans to watch from a window inside
Oklahoma State Penitentiary if and when Medlock is executed. It is her
right under state law. Busch has other grandchildren, but says she
will never love them as much as she loved Katherine. And that was
ripped away from her. She can't understand how anyone who loved that
child would not want to see Medlock die. "It will complete a chapter
of my life," Busch said. "But it's something I have to do for Kathy.
"I can't think of any [people] I've dealt with that didn't believe in
the death penalty when they've lost someone," Busch said. "And that's
why I couldn't understand" why Cabrera was against the death penalty.
On Dec. 2, Cabrera stood outside the governor's
mansion waiting for Cornel Cooks to be executed. Cabrera held a banner
that said, "Don't Kill for Us." Cooks was executed by lethal injection.
Cooks and another man were convicted of raping and
suffocating an 87-year-old woman during a burglary. Police said the
woman died a slow, agonizing death as Cooks and another man wrapped
gauze around her head. But Cooks should not have died for the crime,
Cabrera said. He was a pathetic man who never really had a chance in
life, she said. He had an I.Q. of about 75, was abused as a child,
suffered head injuries that made him potentially violent, began using
drugs at 13 and stole food to feed his brothers, Cabrera said. Cooks
was black; the other man who took part in the murder was white and was
given a life sentence.
Cabrera said she would feel equally as sad for
Medlock if he is executed. She will also stand outside the governor's
mansion for him. She also says she plans to meet with Medlock before
he is executed, but doesn't know what she'll say to him. She says
taking a life is against God's will.
She also worries that innocent people are being
sentenced to death. Cabrera says Medlock is not one of the innocent.
Yes, he murdered her grandchild. He confessed. But she says she feels
sadness for him. "I'll feel the same," she said. "I'm going to feel
sad that another life had been taken in the name of justice."
The Monster in Apartment 406
When Kathy Busch Knocked, Voice Told Floyd Medlock
By Robert Anthony Phillips - APBNews.com
May 12, 2000
YUKON, Okla. Katherine Busch did not know a monster
was lurking in apartment 406. His name was Floyd Medlock. Physically
and emotionally abused as a child, Medlock, then 19, said he shared
his troubled mind with the enraged voice of "Charlie," a dominating
presence who demanded that he beat, rape and murder others.
It's not clear exactly what happened that February
day in 1990, how 7-year-old Katherine found herself inside Medlock's
apartment. Medlock says she jiggled the doorknob and told him she was
hungry. He said he fixed her macaroni and cheese as they watched
Members of her family doubt the introverted girl
would have approached a stranger, even one who lived in her former
apartment. They believe Medlock forced her inside. In any case, once
Katherine was in the apartment, Medlock says his inner voice took over.
"Charlie" was angry, and he wanted Medlock to kill the girl.
Katherine and her mother, Gina, had recently moved
from apartment 406 to a two-bedroom place in the complex, known as
Woodoaks Apartments, in Yukon, about 10 miles northwest of Oklahoma
Katherine was an only child, and her parents had
divorced. Kenneth Busch had gone to prison for forgery after stealing
a relative's money, and he and his ex-wife have said their seven-year
marriage was not a happy one. "I will say I was a horrible husband,
but I loved Kathy with all my heart," said Kenneth Busch, who now
lives in Arizona. "I tried to provide the best I could. A lot of
people point a finger, saying I was bad father because I was in prison."
At one time, Katherine had lived with her fraternal grandmother, Judy
Busch, for more than a year when her mother went to Texas to look for
a job. But after regaining custody of Katherine, Gina Busch settled
down with her daughter in Yukon.
Katherine had gone out on the afternoon of Feb. 19,
1990, to ride her pink and white bicycle. Police said that in the past
Katherine had sometimes gone off on her own for hours, disappearing
and frightening her mother. She would later be found at a nearby pond,
where she fed ducks bread, or visiting a school.
But this time, when Katherine did not return by 7
p.m., Gina Busch called police. Officers in the small Yukon police
department were too busy and didn't have time to immediately begin a
search for the child, said Judy Busch, and they didn't start until
several hours later -- something she publicly criticized them for at
When the search did get under way, Detective Maj.
Jim McDaniel, who led the investigation, set up a command post near
the apartment building.
This time Katherine did not turn up at the duck
pond or school, and officers were fanning out around Yukon. The first
break came when a deputy officer, searching behind a drug store three
blocks from the apartment building, spotted the child's bicycle near a
McDaniel went to the scene and was the first to
approach the trash bin. McDaniel, who has since retired, still has
vivid memories of that moment, reaching into the Dumpster, seeing the
body, reaching out to touch the cold, lifeless arm of the child. "I
think of that scene in my mind," McDaniel said. "Three or four of us
standing over the body, poking at evidence. Here she is exposed and
all. I thought about that."
The slaying was the talk of Yukon. Small towns
don't experience many slayings, especially any this brutal. Katherine
had been stabbed, beaten and molested, and then tossed away like a
piece of trash.
The story was splashed across local newspapers, and
the public was fuming over the crime. Medlock, who returned to work
the next day, later told McDaniel that he had overheard two fellow
workers saying that if the killer was not caught, he would probably
A fellow restaurant worker also told him that
whoever killed the child should be "nailed to a stump." Medlock, who
said he was remorseful and feared that he would kill again, then left
the restaurant and called police from a telephone booth at a
convenience store near the apartment complex.
When the police officers arrived at the store, they
found Medlock standing at the side of the building. Medlock told the
officers he was the person they were looking for. He was carrying the
knife he had used to kill Katherine and he gave it to the police.
McDaniel said he got his first look at Medlock
about 45 minutes after he was brought to the police station. Medlock
was courteous and chain-smoked cigarettes, McDaniel said. He admitted
killing the child.
He detailed everything he had done from the moment
Katherine had knocked on his door to dumping her body in the trash bin.
"It was almost like I was talking to my son and him telling me
something," McDaniel said. "I didn't see any remorse." Medlock also
told McDaniel about "Charlie."
In his videotaped confession to the crime, Medlock
said he was at home watching cartoons when he heard his doorknob
jiggle. He opened the door and found a little girl standing outside.
She said she used to live in the apartment, and that she was hungry.
He invited her in and prepared macaroni and cheese,
serving it to Katherine with potato chips. But Katherine was only in
the apartment five to 10 minutes when Medlock's other personality,
Charlie, surfaced with all the hate and abuse he had suffered
throughout his life.
A psychotherapist testified at Medlock's trial that
Charlie was an alternate personality, a 12-year-old boy who was the
product of Medlock being sexually and emotionally abused as a child.
There was testimony that Medlock was locked in a
closet as a child by his mother and frequently shut in the basement by
a baby sitter. He told of being beaten with a garden hose by his
stepfather. He had attempted suicide at least twice.
Once, when he was 10, he tried to kill himself with
a shotgun, but after loading the weapon and pulling the trigger the
cartridges did not fire. He also attempted to slash his wrists as a
teenager. Later, a psychiatrist placed Medlock under hypnosis and
In recounting the murder, Charlie kept referring to
Katherine as "him" or, in several cases, as "Norm." Norm is the name
of Medlock's stepfather, authorities said, who he claimed had abused
Medlock later said that when Charlie took over it
was almost as if he were watching himself on television. And he
recounted the crime as one would describe a scene from a show.
After fixing the meal and sitting down on the sofa
to watch cartoons, Medlock -- on Charlie's orders -- suddenly grabbed
Katherine and dragged her into the bedroom, where he began to choke
and punch her. She cried out -- "OK! OK! OK!" -- as he overpowered her
and pulled her into the bathroom.
He then shoved her head into the toilet bowl,
trying to drown her. She struggled for her life, pulling her head out,
gasping for breath.
It was then that Medlock grabbed a steak knife and
attacked the girl, stabbing her in the back of the neck and in the eye
before breaking the weapon in his rage. It is not known if Katherine
was still alive, but Medlock took no chances.
He said he then went to his bedroom, where he kept
a hunting knife under a pillow, and brought it to the bathroom. There
he pushed the child's head down and rammed the blade into the back of
After killing the child, Medlock said, he washed
her body in the bathtub. He also said he attempted to molest the
child's lifeless body.
When he finally placed the body in a large
television box, Medlock said, the inner voice of Charlie was satisfied
and left him alone. Later that night, Medlock took the box and
Katherine's bicycle to a nearby Dumpster. He tossed the child in the
trash and left the bicycle on the side.
At the trial, it became evident that this was not
an isolated event for Medlock. The monster that killed Katherine had
come out before, only he had been unable to carry through with his
One day in November 1987 while living in Nevada,
Medlock told police in his taped confession that he had dressed in a
Ninja costume -- which he said gave him a feeling of power -- and
sought out a neighbor's 10-year-old daughter.
If she had been home, he told police, he would have
raped her. But when he could not find the girl inside the house, he
spread gasoline and set the building on fire.
Medlock also talked of having lived in his sister's
house in Fresno, Calif., and of being afraid he was going to injure
her two daughters. In a taped statement, Medlock said he left because
Charlie kept telling him to rape or kill the girls. Medlock said he
moved out because of those feelings.
Ten months later, Katherine came to his door. "He
thought of her as an abandoned child, like him, and by killing her he
was putting her out of her misery," said Stephen Jones, Medlock's
lawyer. A psychiatrist later said that Medlock wasn't really killing
Katherine but a stepfather who had abused him.
For McDaniel, no psychological explanation could
explain such a horrible act. "It was just unfortunate that she knocked
on the wrong door," he said. With the taped confession and
proliferation of evidence pointing to his guilt, Medlock pleaded
guilty and allowed Canadian County Judge Edward Cunningham to decide
whether he should live or die. Cunningham sentenced Medlock to death.
The judge did not return repeated calls for comment.
Medlock has now been on death row at Oklahoma State
Penitentiary since March 28, 1991. Only five other death row inmates
have been there longer. Medlock did not respond to a letter requesting
The murder has had a profound effect on all who
knew Katherine, even 10 years later. "It was horrible because I know
how she was," said Judy Busch, Katherine's paternal grandmother. "To
get a splinter out of her finger, it took two people. She was a wiry
little kind of spitfire, you know. ... She was very active and didn't
tolerate pain well. ... To hear those details ... to think of him
hitting her in the bedroom, dragging her into the bathroom and holding
her head ... in the toilet." Judy Busch continues to fight for
Medlock's execution, while Johnnie Cabrera -- Katherine's maternal
grandmother -- forgives the murderer and prays that he lives.
Both of Katherine's parents have moved on. Her
mother, now Gina Ford, has remarried and moved to Missouri. Ford now
has an 8-year-old son, Matthew. She said that when the boy was about
2, she walked past his room and heard him talking to someone. "OK, OK,
Kathy," she heard Matthew say. "You're so silly." Ford said she froze.
She had never told Matthew about his sister or what
happened to her. "I asked him one day if he remembered talking to a
girl named Kathy," Ford said. "My son said he did. I asked him if she
was here, and he said that she's sleeping in heaven." Do you know who
she is? Gina Ford asked her son. "She's my friend," Matthew told his
mother. "My sister."
In life, Katherine liked Barbie dolls and once
watched a movie, The Velveteen Rabbit, 28 times in a row. She last
slept on Mickey Mouse bed sheets. In death, she lies in a pink casket.
She is buried with her favorite teddy bear, placed there by Judy Busch.
Cabrera placed a tea leaf corsage on her dress.
Katherine is buried in Rest Haven Cemetery in Oklahoma City. A simple
flat marker on her grave states that she was born July 15, 1982, and
died Feb. 19, 1990. On the marker it reads: "Daddy's Little Girl is
Now Playing in God's Garden."
"Kathy was always daddy's little girl," said
Kenneth Busch, who has now been married five times. "In her eyes daddy
could do no wrong. Daddy could fix anything. During the attack, I'm
sure she cried out to daddy, and he couldn't be there. But her father
came and took her home. "The only thing I have to live for is knowing
that God stepped in and this child will never be suffering again."
United States Court of Appeals
For the Tenth Circuit
FLOYD ALLEN MEDLOCK, Petitioner - Appellant,
RON WARD; DREW EDMONDSON, Attorney General of the State of Oklahoma,
Respondents - Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF OKLAHOMA. D.C. No. 96-CV-2035-C
KELLY, BRISCOE and LUCERO, Circuit Judges.
Floyd Allen Medlock, a prisoner
challenging a death sentence in Oklahoma, sought habeas review in
federal district court of his state conviction and sentence, pursuant
to 28 U.S.C. 2254. Medlock brings numerous claims before us after the
denial of his petition and the issuance of a certificate of
appealability by the district court.
His claims are duplicative, and we
reduce them to three: the district court erred in concluding the
Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA")
applies to Medlock's habeas petition; the district court should have
granted habeas relief based on the state trial court's
unconstitutional use of aggravating and mitigating circumstances; and
the district court should have found Medlock was denied effective
assistance of counsel in violation of the Sixth Amendment.
We exercise appellate jurisdiction
pursuant to 28 U.S.C. 1291 & 2253 and conclude that, because AEDPA
applies and Medlock fails to meet its threshold for granting a writ of
habeas corpus, and because his ineffective assistance of counsel claim
is procedurally barred, the district court was correct in its denial
of his petition. See 28 U.S.C. 2254(d).
* The district court adopted, as do
we, the following undisputed facts from the decision of the Oklahoma
Court of Criminal Appeals, Medlock v. State, 887 P.2d 1333, 1337-38 (Okla.
Crim. App. 1994).
On the afternoon of February 19,
1990, Medlock was in his apartment watching cartoons on television
when he heard someone attempting to open his door. See id. at 1337. On
opening the door, he found Katherine Ann Busch, a small girl with a
bicycle, who walked into his apartment and told him she once lived
there. See id.
When Medlock admonished her against
barging into his home, Kathy said simply that she was hungry and
wanted something to eat. See id. Medlock gave her potato chips and
began to prepare macaroni and cheese. See id. While cooking, he told
the police, "this real weird feeling" came over him. Id. at 1338.
Precisely what Medlock did next is
unclear, see id., but the following is undisputed. Medlock grabbed
Kathy by the arm, she jerked away, he grabbed her again, and she
jerked away again. See id. He wrestled with her and covered her mouth
when she began to scream, choking her until she passed out. See id.
According to his confession, she
regained consciousness, and he dragged her to the bathroom and forced
her head into the toilet bowl for approximately ten minutes, during
which time she was gasping for breath. See id. Then, while she was
still alive, he stabbed her in the back of the neck with a steak knife
and later with a hunting knife until she died, holding her head in the
toilet bowl again so that she would not bleed on the floor. See id.
After the bleeding ceased, he placed
her in the bathtub, removed her clothes, and attempted to sexually
molest her lifeless body.
See id. Finally, he wrapped her body in a blanket, placed it in a box,
and deposited the box and her bicycle into a dumpster behind a nearby
shopping center. See id.
The police found Kathy's body in the
dumpster early the next morning. See id. at 1337. Later that day,
Medlock called the police to confess to the murder before he was a
suspect. See id. He explained that he feared harming others in the
future. See id. at 1349. He told the police that the incident seemed
dream-like and that he had trouble remembering it. See id. at 1338.
When asked what caused him to do what he did, he answered that he had
been hearing voices in his head since the age of twelve. See id.
In February 1990, Medlock was
charged with the first-degree malice murder of Kathy Busch in Oklahoma
state district court, to which he entered a plea of not guilty by
reason of insanity. Accompanying the indictment, the State filed a
Special Bill of Particulars alleging two aggravating circumstances:
the murder was "especially heinous, atrocious, or cruel," and there
was a probability that Medlock would commit criminal acts of violence
such that he would remain a "continuing threat to society." Okla. Stat.
tit. 21, 701.12.
The case was set for jury trial, but
before the jury was empaneled, Medlock entered a "blind" plea of
guilty, not having reached an agreement with the State on the
punishment it would recommend. Following a hearing, the court accepted
the plea. See Medlock v. State, 887 P.2d at 1338-39.
At the subsequent sentencing hearing,
Medlock presented mitigation evidence, including that of expert
witnesses--a licensed clinical social worker, a professor of
psychology at Oklahoma City University, and a retired clinical
psychologist specializing in multiple personality disorder ("MPD").
See id. at 1340. Those experts testified that Medlock suffered from
MPD with atypical features, explaining that his second personality was
a violent twelve-year-old named "Charley" who had been in control of
Medlock at the time of the murder. See id. at 1340-41.
Appellant's experts added that MPD
is treatable and Medlock's prognosis was good if he received therapy.
See id. In rebuttal the State called its own expert witness, a
clinical psychologist, who raised the possibility that Medlock was
malingering and questioned his credibility. See id. The State's
psychologist also opined that Medlock demonstrated a pattern of
increasingly anti-social behavior. See id.
After the close of the sentencing
hearing, but before the court entered its sentence, Medlock filed a
motion to withdraw his plea. The court denied the motion and, upon
finding that the aggravating circumstances outweighed the mitigating
circumstances, imposed the death penalty. See id. at 1341-45.
On direct appeal the Oklahoma Court
of Criminal Appeals affirmed Medlock's conviction and sentence. See
Medlock v. State, 887 P.2d 1333, reh'g denied, 889 P.2d 344 (Okla.
Crim. App. 1995), cert. denied sub nom. Medlock v. Oklahoma, 516 U.S.
918 (1995). In September of 1996 Medlock filed an application for
state post-conviction relief, which the Oklahoma Court of Criminal
Appeals denied as well. See Medlock v. State, 927 P.2d 1069 (Okla.
Crim. App. 1996), overruled on other grounds by Walker v. State, 933
P.2d 327, 334 n.6 (Okla. Crim. App. 1997).
The following June, Medlock filed a
timely petition for a writ of habeas corpus in United States District
Court for the Western District of Oklahoma, the denial of which, as
noted, is the subject of this appeal.
As a threshold matter,
our Circuit has already settled the question of AEDPA's applicability
to this case. We have stated that "AEDPA applies to [a petitioner's]
case because he filed his 2254 petition after April 24, 1996, the
effective date of the Act." Braun v. Ward, 190 F.3d 1181, 1184 (10th
Cir. 1999) (citing Hooks v. Ward, 184 F.3d 1206, 1213 (10th Cir.
1999)). AEDPA thus applies to Medlock's June 1997 petition.
Because the Oklahoma state courts
have addressed on its merits Medlock's claim of unconstitutional use
of aggravating and mitigating circumstances, we review the state
courts' rulings under the AEDPA standard enunciated in 28 U.S.C. 2254.
Under that section, a federal court
is precluded from granting habeas relief on any claim adjudicated on
the merits by the state court, unless the state proceeding "resulted
in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court," 28 U.S.C. 2254(d)(1), or "resulted in a decision that
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)(2). All factual findings of the state court are presumed
correct unless the petitioner can rebut this presumption by clear and
convincing evidence. 28 U.S.C. 2254(e)(1).
We examine first
Medlock's various challenges to the use of aggravating and mitigating
circumstances by the Oklahoma trial court and Court of Criminal
Appeals and afterwards his claim of ineffective assistance of trial
* With regard to the
facial constitutionality of the aggravators used by the trial court,
Medlock's challenges to Oklahoma's "heinous, atrocious, or cruel" and
"continuing threat" aggravators are meritless. To be acceptable under
the Eighth Amendment, the aggravating circumstance must furnish a
sentencer with a principled means of guiding its discretion. See
Maynard v. Cartwright, 486 U.S. 356, 361-64 (1988). Our Circuit has
repeatedly upheld the facial constitutionality of these aggravators as
"narrowed" by the State of Oklahoma, and we are bound by that body of
precedent. See, e.g., Nguyen v. Reynolds, 131 F.3d 1340, 1352-54 (10th
Cir. 1997); Hatch v. State, 58 F.3d 1447, 1468-69 (10th Cir. 1995).
With respect to the
evidence used to prove the aggravators, Medlock contends that the
Oklahoma court unconstitutionally relied on duplicative and cumulative
sentencing factors. We disagree. "[D]ouble counting of aggravating
factors, especially under a weighing scheme, has a tendency to skew
the weighing process and creates the risk that the death sentence will
be imposed arbitrarily and thus, unconstitutionally." United States v.
McCullah, 76 F.3d 1087, 1111 (10th Cir. 1996).
Contrary to Medlock's contention,
these aggravating circumstances are not duplicative. In Cooks v. Ward,
165 F.3d 1283, 1289 (10th Cir. 1998) (quoting McCullah, 76 F.3d at
1087, 1111-12), cert. denied, (1999) (U.S. Oct. 4, 1999) (No.
98-9420), we explained that, to overlap impermissibly, one aggravating
circumstance must "'necessarily subsume'" another. It is not
impermissible for "certain evidence [to be] relevant to both
aggravators." Id. Thus, Medlock is incorrect that use of evidence of
his criminal record to find both the "continuing threat to society"
and "heinous, atrocious, or cruel" aggravating circumstances renders
those aggravators duplicative. Cf. McCullah, 76 F.3d at 1111-12.
The aggravators do not "necessarily
subsume" one another under McCullah: The "continuing threat"
aggravator goes to Medlock's future dangerousness, while the "heinous,
atrocious, or cruel" aggravator goes to the nature of Medlock's crime.
The former involves future conduct; the latter involves the nature of
the act for which Medlock was convicted. Under these circumstances the
elements of one aggravator do not necessarily subsume those of the
As support for the aggravating
circumstance of "continuing threat to society," the Oklahoma district
court relied on Medlock's statement to the police that he feared
hurting someone in the future. Medlock argues that the court's
reliance on this potentially mitigating evidence rendered the
aggravating circumstance unconstitutional by violating the requirement
"that the sentencer in capital cases must be permitted to consider any
relevant mitigating factor." Eddings v. Oklahoma, 455 U.S. 104, 112
On direct appeal, the Oklahoma Court
of Criminal Appeals held that "Medlock's statement that he feared he
would hurt someone in the future should not have been relied upon to
find continuing threat." Medlock v. State, 887 P.2d at 1349. Rather,
it held the statement "demonstrates Medlock's willingness and ability
to remove himself from society to minimize his threat to society" and
thereby was not permissible support for the aggravator. Id. The court
nonetheless sustained the finding of the aggravator based on evidence
of the callousness of Medlock's crime and his prior convictions for
arson and burglary. See id.
It is well established that "the
fundamental respect for humanity underlying the Eighth Amendment . . .
requires consideration of the character and record of the individual
offender and the circumstances of the particular offense as a
constitutionally indispensable part of the process of inflicting the
penalty of death." Eddings, 455 U.S. at 112 (quoting Woodson v. North
Carolina, 428 U.S. 280, 304 (1976)) (internal quotations omitted); see
Lockett v. Ohio, 438 U.S. 586 (1973).
The Lockett principle prohibits a
state from excluding from the sentencer's consideration, and prohibits
the sentencer itself from refusing to consider, "any relevant
mitigating evidence." Eddings, 455 U.S. at 114.
The sentencing court
in Medlock's case did not indicate that it was excluding from
consideration the mitigating effect of Medlock's expressed desire to
minimize his threat to society, which would have contravened Lockett
and Eddings. The fact that the court may have relied on his statement
as aggravating evidence does not necessarily render its sentence
constitutionally invalid. See Johnson v. Texas, 509 U.S. 350, 368
(1993) (holding that "the fact that a juror might view [particular
evidence] as aggravating, as opposed to mitigating, does not mean that
the rule of Lockett is violated" (citing Graham v. Collins, 506 U.S.
461, 475-76 (1993))); see also Penry v. Lynaugh, 492 U.S. 302, 324
(1989) (recognizing that mitigating evidence can function as a "two-edged
sword" during sentencing, in effect operating as both mitigating and
aggravating evidence); Eddings, 455 U.S. at 114-115 ("The sentencer,
and the Court of Criminal Appeals on review, may determine the weight
to be given relevant mitigating evidence.").
While the Oklahoma
Court of Criminal Appeals found this evidence improper for supporting
the continuing threat aggravator, the court nevertheless upheld the
sentencing court's finding of that aggravator. Contrary to Medlock's
assertion, the Court of Criminal Appeals was under no obligation, as a
matter of constitutional law, to reweigh the aggravating and
The sentencer's finding of the continuing threat aggravating
circumstance was upheld by the Oklahoma Court of Criminal Appeals;
that court simply disapproved of one proffered reason for the finding,
which in itself does not violate Lockett. See Johnson, 509 U.S. at
Apart from his facial
challenge to the continuing threat aggravator and his claim that
consideration of mitigating evidence in support of the aggravator
violated Lockett, Medlock does not otherwise challenge on appeal the
sufficiency of the evidence to support the district court's finding of
the continuing threat aggravator.
the "heinous, atrocious, or cruel" aggravator not only facially but
also as applied. He argues that the State presented insufficient
evidence that Medlock's conduct fell within Oklahoma's "narrowed," and
therefore constitutional, construction of the aggravator.
In Maynard v. Cartwright, 486 U.S.
356, 363-64 (1988), the Supreme Court determined that Oklahoma's "especially
heinous, atrocious, or cruel" aggravator was vague and overbroad
unless construed sufficiently narrowly. Oklahoma has since adopted a
constitutional narrowing construction of the aggravator, which
provides that the victim's murder--to be deemed "especially heinous,
atrocious, or cruel"--must have been "preceded by torture or serious
physical abuse." Turrentine v. State, 965 P.2d 955, 976-77 (Okla. Crim.
App. 1998); see also Hatch, 58 F.3d at 1468-69 (holding the narrowing
construction to be constitutional).
Torture includes "the infliction of
either great physical anguish or extreme mental cruelty." Turrentine,
965 P.2d at 976 (citing Berget v. State, 824 P.2d 364, 373 (Okla. Crim.
App. 1991)). With respect to the physical anguish branch of the
Oklahoma test, "[a]bsent evidence of conscious physical suffering by
the victim prior to death, the required torture or serious physical
abuse standard is not met." Cheney v. State, 909 P.2d 74, 80 (Okla.
Crim. App. 1995) (quoting Battenfield v. State, 816 P.2d 555, 565 (Okla.
Crim. App. 1991)) (internal quotations omitted).
We have held that the
"heinous, atrocious, or cruel" aggravating circumstance as narrowed by
the Oklahoma courts after Maynard to require torture or serious
physical abuse characterized by conscious suffering can provide a
principled narrowing of the class of those eligible for death. See,
e.g., Hatch, 58 F.3d at 1468-69.
Medlock fails to demonstrate that Oklahoma has applied its narrowing
construction in an unconstitutional manner.
Medlock argues that
the evidence--even examined in the light most favorable to the
prosecution--is insufficient to support the narrowed "heinous,
atrocious, or cruel" aggravator because evidence regarding conscious
suffering by the victim is absent. See Turrentine, 965 P.2d at 976-77
(finding inconsistent evidence failed to support the aggravator
because it was unclear whether the victims experienced conscious
suffering). Whether we treat this challenge as a legal determination
under 28 U.S.C. 2254(d)(1), or one of fact under 28 U.S.C. 2254(d)(2),
the result is the same. See Moore v. Gibson, 195 F.3d 1152, 1177 (10th
Medlock fails to demonstrate that a
rational factfinder could not conclude that his crime, occurring in
several gruesome phases, involved torture or serious physical abuse
characterized by conscious suffering. The evidence, including
Medlock's confessions, suggests that he repeatedly grabbed his victim
by the arm, wrestled with her, struck her in the face, threw her onto
his bed, and covered her mouth when she began screaming. See Medlock
v. State, 887 P.2d at 1338, 1348.
He choked her until she temporarily
passed out, then dragged her to the toilet and stuck her head into the
bowl while she was conscious and gasping for air, keeping her there
for ten minutes until she passed out again. See id. at 1338. When he
noticed she was still breathing and alive, he used a steak knife to
stab her in the back of the neck and, when that knife bent, took a
hunting knife and stabbed her in the back of the neck again until she
died. See id.
This body of evidence
is sufficient to fall within the narrowed scope of the "especially
heinous, atrocious, or cruel" aggravator. Taking the facts together,
we conclude it was neither "an unreasonable determination of the facts
in light of the evidence presented" nor an "unreasonable application
of clearly established federal law" for the sentencer to conclude that
conscious suffering was present. We also recognize that "the AEDPA
increases the deference to be paid by the federal courts to the state
court's factual findings and legal determinations." Houchin v. Zavaras,
107 F.3d 1465, 1470 (10th Cir. 1997). In light of the foregoing, we
conclude there was sufficient evidence of conscious suffering to
preserve the constitutionality of the Oklahoma court's application of
the "heinous, atrocious, or cruel" aggravating circumstance.
Medlock sought to raise an
ineffective assistance of counsel claim in his federal habeas petition,
the basis of which was not raised in his application for state post-conviction
relief. The federal district court alluded to the possibility that
Medlock's ineffective assistance of counsel claim may have been
procedurally barred. But the court chose not to decide the question of
procedural bar, instead denying Medlock's petition on the merits,
pursuant to 28 U.S.C. 2254(b)(2), which states that "[a]n application
for a writ of habeas corpus may be denied on the merits,
notwithstanding the failure of the applicant to exhaust the remedies
available in the courts of the state."
The district court thus acted
pursuant to statute when it chose to deny Medlock's ineffective
assistance claim on the merits. However, we elect instead to deny his
claim due to procedural bar, with regard to which Medlock has not
shown cause for failing to exhaust his state remedies.
petitioners must exhaust available state court remedies before seeking
federal habeas relief. See 28 U.S.C. 2254(b)(1); Smallwood v. Gibson,
191 F.3d 1257, 1267 (10th Cir. 1999). In the present case, Medlock
"has not . . . raised before the state courts any of the bases upon
which his current ineffective assistance of counsel claim rel[ies]."
Smallwood, 191 F.3d at 1267. Therefore, he has failed to exhaust his
ineffective assistance claim.
In Coleman v. Thompson, 501 U.S.
722, 735 n.1 (1991), the Supreme Court held that if "the petitioner
failed to exhaust state remedies and the court to which the petitioner
would be required to present his claims in order to meet the
exhaustion requirement would now find the claims procedurally barred,"
petitioner's claims are procedurally defaulted for purposes of federal
habeas corpus relief. Oklahoma deems waived claims that were not
raised in an initial application for post-conviction relief in a death
penalty case. See Okla. Stat. tit. 22, 1086, 1089(D)(2).
Medlock did not raise his present
ineffective assistance claim, involving the failure of his counsel to
investigate and present at sentencing his family's history of mental
illness, in his application for state post-conviction relief, and
therefore it is barred under Oklahoma law. See Smallwood, 191 F.3d at
We may not consider issues raised in
a habeas petition "that have been defaulted in state court on an
independent and adequate procedural ground, unless the petitioner can
demonstrate cause and prejudice or a fundamental miscarriage of
justice." English v. Cody, 146 F.3d 1257, 1259 (10th Cir. 1998) (citing
Coleman, 501 U.S. at 749-50; Steele v. Young, 11 F.3d 1518, 1521 (10th
Despite the especially vigilant
scrutiny we apply in examining procedural bars to ineffective
assistance claims, we have held that Oklahoma's procedural bar to
claims not raised on initial post-conviction review is independent and
adequate. See Moore v. Reynolds, 153 F.3d 1086, 1097 (10th Cir. 1998),
cert. denied, 119 S.Ct. 1266 (1999). Thus, Medlock's claim is
defaulted unless he can show cause and prejudice or a fundamental
miscarriage of justice. See English, 146 F.3d at 1259.
With regard to "cause" for his
procedural default, Medlock was represented by different counsel on
direct appeal and on application for post-conviction relief than at
trial and sentencing. We can discern no reason for his failure to
raise in state proceedings the grounds for his claim of ineffective
assistance of trial counsel, and he provided no insight into that
failure in his briefs or during oral argument.
Because Medlock furnishes no
explanation for his failure to raise his ineffective assistance claim
in the state courts, he has not shown the requisite "cause" for
overcoming his procedural default. See Coleman, 501 U.S. at 750.
Neither has he met the high threshold required to show a "fundamental
miscarriage of justice." Demarest v. Price, 130 F.3d 922, 941 (10th
Cir.1997) (stating that to meet the "fundamental miscarriage of
justice" standard, the petitioner must supplement his habeas claim
with a colorable showing of factual innocence).
Even if his ineffective assistance
claim were not procedurally barred, under the facts of this case
Medlock would not be entitled to an evidentiary hearing on that claim.
If a habeas petitioner fails to develop the factual basis of his
habeas claim in state court, he is not entitled to a federal
evidentiary hearing unless he initially shows that the claim relies on
a "new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable" or "a factual predicate that could not have been
previously discovered through the exercise of due diligence," 28 U.S.C.
2254(e)(2)(A)(i) and (ii), or else demonstrates by clear and
convincing evidence that "but for constitutional error, no reasonable
factfinder" would have found him guilty, 28 U.S.C. 2254(e)(2)(B).
Medlock has made no such showing here. Therefore, he is not entitled
to an evidentiary hearing on his ineffective assistance of counsel
Because Medlock has not set forth a
claim that his sentence is unconstitutional sufficient to warrant
federal habeas relief under AEDPA, and because his ineffective
assistance of counsel claim is procedurally barred, we AFFIRM the
district court's denial of his habeas petition.
Although we have indicated we are relating
undisputed facts, there was dispute in the evidence regarding whether
the victim was in fact dead when Medlock attempted to molest her.
As previously stated, the AEDPA requires our
application of Supreme Court precedent in determining whether the
state court proceeding violated clearly established federal law. See
28 U.S.C. 2254(d)(1). We assume then, for purposes of argument only,
that Medlock can rely upon a circuit court case such as McCullah.
The Oklahoma Court of Criminal Appeals did conduct
a mandatory review of Medlock's death sentence, pursuant to Okla. Stat.
tit. 21, 701.13(C). See Medlock v. State, 887 P.2d at 1351. This
review does not represent a full reweighing of aggravating and
Medlock cites Clemons v. Mississippi, 494 U.S. 738
(1990), for the proposition that the state appeals court was
constitutionally required to reweigh the aggravating and mitigating
circumstances after finding the sentencing court improperly relied on
Medlock's statement to support the continuing threat aggravating
circumstance. His reliance on Clemons is misplaced. That case stands
for the proposition that a death sentence imposed based on a
constitutionally invalid aggravating circumstance is unconstitutional
absent either "reweighing of the aggravating and mitigating evidence"
or "harmless error review" by the appellate court. Id. at 741. Unlike
in Clemons, the application of the continuing threat aggravating
circumstance in this case has never been invalidated. Neither the
Supreme Court, nor any decision of which we are aware, has held that a
state court's rejection of one of several grounds for finding an
aggravating circumstance at the same time as it otherwise upholds the
finding of that circumstance, would trigger the reweighing or harmless
error review contemplated by Clemons.
Although the Supreme Court has suggested that the
condition of torture or serious physical abuse characterized by
conscious suffering is not the only permissible narrowing construction
for this aggravating circumstance, see Maynard, 486 U.S. at 365, we
are faced with no alternative narrowing construction today.
Whether Section 2254(d)(1) or 2254(d)(2) applies to
our review of the sufficiency of the evidence to support an aggravator
is unsettled in our Circuit because we have applied both in the past,
sometimes analyzing the sufficiency of the evidence as a factual
question and sometimes as a legal question. See Moore v. Gibson, 195
F.3d 1152, 1176-77 (10th Cir. 1999).
Medlock argues that the Oklahoma district court
improperly relied on evidence concerning the condition of the victim's
underwear during the sentencing phase of the trial to support the
existence of the "heinous, atrocious, or cruel" aggravating
circumstance. Even if the court improperly admitted that evidence,
however, the remaining body of evidence was in itself so overwhelming
that the allegedly erroneous admission constituted, at most, harmless
We consider a state's ground for procedural bar to
be adequate only if it is "'strictly or regularly followed' and
applied 'evenhandedly to all similar claims.'" Duvall v. Reynolds, 139
F.3d 768, 797 (10th Cir. 1998) (quoting Hathorn v. Lovorn, 457 U.S.
255, 263 (1982)), cert. denied, 119 S.Ct. 345.
LUCERO, Circuit Judge,
I join the majority
opinion. I am in agreement that the victim in the present case, Kathy
Busch, experienced conscious suffering sufficient to meet the "torture
or serious physical abuse" standard required to prove the "heinous,
atrocious, or cruel" aggravating circumstance, particularly under the
deferential AEDPA standard we apply when reviewing the Oklahoma
sentencer's findings of fact. I write separately, however, to note
that, in order to conduct a proper analysis of the sentencer's
application of the "heinous, atrocious, or cruel" aggravator, I think
it essential to set forth the Oklahoma test for conscious suffering we
have found to satisfy the requirements of the Eighth Amendment. Thus,
to evaluate whether the "heinous, atrocious, or cruel" aggravating
circumstance was properly applied, we must examine the state court's
findings as to the duration of conscious suffering on the part of the
Under the Eighth Amendment, applying
the narrowing construction of the aggravating circumstance in a manner
that permitted Oklahoma courts to find "torture or serious physical
abuse" based merely on the brief period of conscious suffering
necessarily present in virtually all murders would fail to narrow the
sentencer's discretion as required by Godfrey v. Georgia, 446 U.S. 420
(1990), and Maynard v. Cartwright, 486 U.S. 356 (1988), leaving the
sentencer "with the kind of open-ended discretion which was held
invalid in Furman v. Georgia, 408 U.S. 238 (1972)." Maynard, 486 U.S.
at 361-62. In interpreting the limiting construction we approved in
Hatch v. State, 58 F.3d 1447, 1468-69 (10th Cir. 1995), the Oklahoma
Court of Criminal Appeals ("OCCA") has identified two kinds of cases
in which "torture or serious physical abuse" is present: those
characterized by the infliction of "great physical anguish" and those
characterized by the infliction of "extreme mental cruelty". Cheney v.
State, 909 P.2d 74, 80 (Okla. Crim. App. 1995). In the mental cruelty
context, the OCCA has emphasized that the torture required for finding
the "heinous, atrocious, or cruel" aggravator "must produce mental
anguish in addition to that which of necessity accompanies the
underlying killing." Turrentine v. State, 965 P.2d 955, 976 (Okla.
Crim. App. 1998) (quoting Berget v. State, 824 P.2d 364, 373 (Okla.
Crim. App. 1991)). As the majority notes "[w]ith respect to the
physical anguish branch of the Oklahoma test, '[a]bsent evidence of
conscious physical suffering by the victim prior to death, the
required torture or serious physical abuse standard is not met.'
Cheney, 909 P.2d at 80 (quoting Battenfield v. State, 816 P.2d 555,
565 (Okla. Crim. App. 1991)) (internal quotations omitted)." (Maj. Op.
There must be conscious suffering of
more than the brief duration necessarily accompanying virtually all
murders. See Turrentine, 965 P.2d at 976; see also Brown v. State, 753
P.2d 908, 913 (Okla. Crim. App. 1988) (refusing to find the aggravator
where it could not be ruled out that the victim might have "only
survived a few minutes at most" after being attacked) (internal
Were this not so, the narrowing construction would not have the
discretion-limiting effect required by Godfrey and Maynard.
The Eighth Amendment therefore
requires us to determine whether the state sentencer's finding of the
"heinous, atrocious, or cruel" aggravator represents the application
of a permissible narrowing construction: one requiring evidence of
torture or serious physical abuse characterized by conscious suffering
on the part of the victim.
Absent such evidence, application of
the aggravator either would "result in a decision that 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)(2), or, if
sufficiency of the evidence is treated as a legal question, would "result
in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court," 28 U.S.C. 2254(d)(1). See Moore v. Gibson, 195 F.3d
1152, 1176-1177 (10th Cir. 1999).
In either case, we review whether
the sentencer properly found sufficient evidence of torture or serious
physical abuse under the deferential "'rational factfinder' standard
established in Jackson v. Virginia, 443 U.S. 307 (1979)" by asking "whether,
'after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the [aggravating
circumstance] beyond a reasonable doubt.'" Moore, 195 F.3d at 1176 (quoting
Jackson, 443 U.S. at 319) (internal quotations and further citations
Whether we apply 28 U.S.C.
2254(d)(1) or (d)(2), I am in agreement that a rational factfinder
could conclude that Medlock's crime involved torture or serious
physical abuse characterized by a meaningful period of conscious
suffering. The aggravating circumstance thus was properly applied in
While the OCCA in Berget, 824 P.2d at 373 (quoted
in Turrentine, 965 P.2d at 976), stated in the mental torture
context that the duration of mental anguish is "irrelevant," that
opinion indicated that the level of tension created between the
killer and his victim, rather than duration, is the proper focus of
analysis: "Analysis must focus on the acts of the defendant toward
the victim and the level of tension created." Berget, 824 P.2d at
373. But, for there to be such tension, there obviously must be some
meaningful period of conscious suffering on the victim's part.
As the majority correctly notes, "[w]hether Section
2254(d)(1) or 2254(d)(2) applies to our review of the sufficiency of
the evidence to support an aggravator is unsettled in our Circuit
because we have applied both in the past, sometimes analyzing the
sufficiency of the evidence as a factual question and sometimes as a
legal question. See Moore v. Gibson, 195 F.3d at 1176-77." (Maj. Op.
at 1321 n.6.)