This death penalty appeal arises out of the 1992 killings of four employees of Lee’s Famous Recipe Chicken Restaurant in Tulsa, Oklahoma. In the course of a robbery in which Corey Hamilton participated, the employees were placed in a food locker and forced to kneel at gunpoint. Hamilton shot each in the head. A jury convicted Hamilton of four counts of first-degree murder and one count of robbery with a firearm.
At sentencing, the jury found four aggravating circumstances as to each murder. Accordingly, upon the jury’s recommendation, the trial court imposed the death penalty. The Oklahoma Court of Criminal Appeals (OCCA) affirmed the murder convictions and death sentence on direct appeal but reversed the robbery conviction.
See Hamilton v. State,
On appeal, Hamilton argues five issues merit habeas relief: (1) prosecutorial misconduct during closing argument violated his right to a fair trial; (2) the state trial court’s exclusion of testimony and jury instructions defining the life without parole sentencing option violated due process; (3) the trial court’s failure to instruct the jury on use of victim impact evidence violated due process; (4) the state presented insufficient evidence to support the heinous, atrocious or cruel aggravating circumstances; and (5) the individual errors at the guilt and sentencing phases together warrant reversal.
Our jurisdiction arises under 28 U.S.C. §§ 1291 and 2253. Having thoroughly reviewed the record and applicable law, we conclude Hamilton is not entitled to habeas relief. Accordingly, we affirm the district court’s denial of the petition.
I. Background
The background facts are not in dispute and are set forth in the OCCA’s opinion on direct appeal.
See Hamilton,
An OHahoma jury convicted Hamilton of four counts of first-degree murder and recommended that the trial court impose the death penalty. The jury made its sentencing recommendation after finding four *1186 aggravating circumstances as to each murder: (1) Hamilton had knowingly created a great risk of death to more than one person; (2) each murder was especially heinous, atrocious or cruel; (3) Hamilton committed each murder for the purpose of avoiding or preventing a lawful arrest or prosecution; and (4) Hamilton would constitute a continuing threat to society.
II. AEDPA Standard of Review
We begin our analysis by discussing the applicable standard of review under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254(d). We then proceed to the merits of Hamilton’s claims.
Because Hamilton filed his § 2254 petition after AEDPA’s 1996 effective date, its provisions apply to this appeal.
See Smallwood v. Gibson,
A state court decision is “contrary to” Supreme Court precedent in two circumstances: (1) when “the state court applies a rule that contradicts the governing law set forth in [the Court’s] cases”; or (2) when “the state court confronts a set of facts that are materially indistinguishable from a decision of [the] Court and nevertheless arrives at a result different from” that reached by the Court.
Williams v. Taylor,
Finally, a state prisoner seeking habeas relief based on alleged erroneous factual determinations must overcome by clear and convincing evidence the presumption of correctness afforded state court factual findings.
See
28 U.S.C. § 2254(e)(1);
Smith v. Mullin,
III. Discussion
Hamilton’s death penalty trial was divided into two stages. The first stage required the jury to determine his guilt or innocence. The second stage required the jury to recommend a penalty. Hamilton argues the trial court committed error at both stages of his trial.
A. Prosecutorial Misconduct
Hamilton makes one claim of error arising from the guilt phase of his trial. He argues that the government engaged in prosecutorial misconduct, citing a number of comments by the lead prosecutor during closing argument. Hamilton argues one statement disparaged his Fifth Amendment right to remain silent, and two addi *1187 tional statements wrongfully stripped him of the presumption of innocence. While two of the prosecutor’s comments crossed the line of permissible closing argument, we agree with the OCCA that the statements as a whole did not undercut the fundamental fairness of Hamilton’s trial.
When a defendant asserts claims of prosecutorial misconduct in a habeas petition, those claims are reviewed for a violation of due process.
See Patton v. Mullin,
In some circumstances, however, when “prosecutorial misconduct directly affects a specific constitutional right,” as is alleged here, “a habeas petitioner need not establish that the entire trial was rendered unfair, but rather that the [specific]
constitutional guarantee
was so prejudiced that it effectively amounted to a denial of that right.”
Torres v. Mullin,
1. The Right to Remain Silent
The evidence at trial disclosed that a short time after the murders, Hamilton received a ride in a friend’s car from his girlfriend’s house to a motel. The motel was next door. Discussing this evidence during his closing argument, the prosecutor rhetorically raised the following questions:
[W]e ask you to use your common sense about people’s behavior. WHiat are they doing? What’s he doing? What is the explanation for calling someone to take you across the street?
Tr. at 1202. Hamilton argues this statement was a comment on his Fifth Amendment right to remain silent, because the proffered questions could be answered only by Hamilton himself, and he had chosen not to testify.
Our precedent holds that “[t]he state may not use a defendant’s exercise of his right to remain silent to obtain his conviction.”
Jones v. Stotts,
2. The Presumption of Innocence
During closing argument, the prosecutor also made two statements regarding Hamilton’s right to a presumption of innocence. In the first instance he said:
When we started with this case, the defendant was presumed to be not guilty. You said you could do that. This evidence now strips the cloak of innocence from him.
Tr. at 1139. Counsel’s objection to this statement was overruled. Id. Following these remarks, the prosecutor argued:
Have we proved what we said we could prove? Yes. I submit to you, as I said a few minutes ago, the cloak of innocence is stripped away.
Tr. at 1168. Counsel’s objection to this statement was also overruled. Id.
Hamilton argues that in
Miller v. State,
In Mahomey, we held the comments violated the defendant’s constitutional rights and were not harmless error. “[T]he jury,” we explained, “was basically presented with two relatively credible, competing stories related by the complaining witness and the accused, neither of which was conclusively confirmed or disproportionately discredited by extrinsic evidence ... [and] we cannot say that the constitutional infirmity in petitioner’s criminal trial was harmless.” Id. at 474.
Recognizing the objectionable nature of the remarks in light of its own precedent, the OCCA acknowledged in Hamilton’s state appeal it had reversed other cases with similar commentary. The court went on to explain, however, “in light of the overwhelming uncontradicted evidence of guilt in this case,” any error was harmless
*1189
beyond a reasonable doubt.
Hamilton,
We recently had occasion to examine prosecutorial comments that were strikingly similar to the ones made here. In
Patton v. Mullin,
The Defendant is presumed innocent. He is presumed innocent until you consider all of the evidence in this case and you make the decision to strip that presumption away from him and leave him with what he is, which is guilty. What has to be proved to you before you can strip that cloak of innocence from him is proof beyond a reasonable doubt of each and every material element of the crime charged and we talked about that. The State of Oklahoma always has the burden of proof. But we have the burden of proof to show you beyond a reasonable doubt each and every element of the crimes charged.
Id. at 812 (emphasis added). During the closing argument of the sentencing phase, the prosecutor also stated:
Mr. Patton is to be presumed innocent unless and until the State proves to you beyond a reasonable doubt one or more of the aggravating circumstances. And at that time you are authorized to strip that cloak away and punish this Defendant as he is worthy of being punished.
Id. In context, we found the prosecutor’s comments plainly reminded the jury that it was the state’s burden to prove its case beyond a reasonable doubt. In light of the prosecutor’s recognition of that burden, and in light of the entire record in that case, “the OCCA did not unreasonably apply federal law in ruling that these comments did not deprive [defendant] of a fair trial.” Id.
We have some similar contextual statements here. During the closing argument in Hamilton’s trial, for example, the prosecutor stated:
Question, have we proved it? Counsel said you’ll want to be able to walk up there and put your finger on it. I agree. Have we done that, though? Have I proved what I said we could prove? Has the evidence convinced you beyond a reasonable doubt that the man is guilty of these crimes? Yes.
Tr. at 1145.
The prosecutor also said:
I have no problem telling you this evidence is more than enough. It’s beyond a reasonable doubt that this man is involved in the killing of these four people.
Tr. at 1169. Finally, we have the following instruction to the jury regarding the presumption of innocence:
The defendant is presumed innocent of the crime charged, and the presumption continues unless, after consideration of all of the evidence, you are convinced of his guilt beyond a reasonable doubt. The State has the burden of presenting the evidence that establishes guilt beyond a reasonable doubt. The defendant must be found not guilty unless the State produces evidence which convinces you beyond a reasonable doubt of each element of the crime.
Jury Instruction 1, ROA Vol. V at 711.
Even with these clarifications, the prosecutor’s statements regarding presumption of innocence test the bounds of permissibility. This case is unlike
Patton,
where the prosecutor made abundantly clear the State of Oklahoma bore the burden of proof beyond a reasonable doubt. The statements here are closer to the facts of
Mahomey,
where we considered whether
*1190
the presence of a jury instruction on the presumption of innocence mitigated the prejudice of improper prosecutorial comments. There, we determined that prejudice persisted despite the instruction because “the trial court’s overall charge on the presumption of innocence and burden of proof was not sufficiently specific to preserve that presumption in light of the prosecutor’s specific statement that it had been extinguished from the case.”
Mahorney,
We need not reach the same conclusion in this context, however. Even if there were a due process violation, as with any constitutional error, we must still review for harmlessness.
See Pickens,
In sum, Hamilton is not entitled to habe-as relief based on statements made during the prosecutor’s closing argument.
B. Life Without Parole
Under Oklahoma law, a prisoner sentenced to life without parole is not entitled to be released from prison. Hamilton argues the state trial court violated his right to due process at sentencing by denying his requests (1) to allow witness testimony, and (2) to submit an instruction explaining to the jury that he would not be parole-eligible. The OCCA rejected the claim on direct appeal. Interpreting the Supreme Court’s holding in
Simmons v. South Carolina,
The Supreme Court in
Simmons
addressed whether due process required a state trial court “to instruct the jury in the penalty phase of a capital trial that under state law the defendant was ineligible, for parole.”
Simmons,
We have already examined Oklahoma’s capital sentencing scheme in the wake of
Simmons
and subsequent Supreme Court authority. In
Mayes v. Gibson,
Recognizing he can meet only the first two of these factors, Hamilton acknowledges his claim does not satisfy
Mollett.
Instead, he asserts our cases misconstrue the Supreme Court’s holding in
Kelly v. South Carolina, supra,
and should be revisited. In
Kelly
(construing South Carolina law), the Supreme Court reversed a death sentence where the trial court did not adequately explain parole eligibility when the prosecutor raised the defendant’s future dangerousness. We disagree with Hamilton’s argument for two reasons. First, the
Mollett
court in fact examined Oklahoma’s three-option sentencing scheme in light of
Kelly
and found it inapplicable.
Mollett,
Two final considerations influence our conclusion. First, our review of the record shows that Hamilton’s counsel never sought to argue the implications of the life without parole option during closing argument. The court’s earlier preclusion of witness testimony did not necessarily preclude comment at the argument stage. Additionally, the record discloses that Hamilton’s counsel made a variation of this argument by stating, “Cory Hamilton is going to die in the penitentiary.” This could only suggest to the jury that the life without parole option would keep him in prison until death.
In the end, Hamilton’s argument is, at best, a matter for our en banc review or *1192 certiorari review by the Supreme Court. Under existing precedent, capital defendants must show that the jury asked for clarification of the meaning of life imprisonment or the judge’s instructions created the possibility of jury misunderstanding. Since Hamilton cannot establish either element, the OCCA’s decision does not unreasonably apply Supreme Court law. He is therefore not entitled to habeas relief on this issue.
C. Victim Impact Evidence
Hamilton next argues that the failure of the trial court to instruct the jury on how to use victim impact evidence during its sentencing deliberations violated due process. At trial, Hamilton did not request such an instruction. Nor did he object to the trial court’s failure to give such an instruction. On direct appeal to the OCCA, Hamilton argued the absence of the jury instruction constituted structural error — an error so fundamental to the trial process that a retrial is required.
See Hamilton v. State,
Abandoning the structural error argument on appeal, Hamilton argues that the OCCA’s harmless error determination was unreasonable as a matter of federal law. He claims the absence of an instruction allowed the jury to rely on the victim impact evidence to bolster its findings of four aggravating circumstances. In support of this argument, Hamilton points to the fact the OCCA in a subsequent case established that jury instructions are necessary to clarify the difference between victim impact evidence and evidence of aggravating circumstances.
See Cargle v. State,
victim impact evidence in determining the appropriateness of the death penalty only if you first find that the existence of one or more aggravating circumstance has been proven beyond a reasonable doubt by evidence independent from the victim impact evidence, and find that the aggravating circumstanee(s) found outweigh the finding of one or more mitigating circumstances.
Id. at 829.
In sum, Hamilton argues the victim impact evidence improperly prejudiced the jury’s weighing of the evidence as to each of the four aggravating circumstances. Since the OCCA rejected Hamilton’s arguments on the merits, our review is directed to whether its decision was inconsistent with federal law. 2
*1193
The Supreme Court has made clear that “[a] State may legitimately conclude that evidence about the victim and about the impact of the murder on the victim’s family is relevant to the jury’s decision as to whether or not the death penalty should be imposed. There is no reason to treat such evidence differently than other relevant evidence is treated.”
Payne v. Tennessee,
The OCCA concluded that no jury instruction was required. Hamilton did not ask for one; the jury moreover received detailed instructions as to how to consider the aggravating factors in their deliberations. The court then concluded “[i]n this case, the fact that the jury found four aggravating circumstances is sufficient to find the error harmless beyond a reasonable doubt.”
Hamilton v. State,
We agree with the district court that even if we accept Hamilton’s contention that the jury inappropriately considered the victim testimony in the context of finding aggravating circumstances, any error was harmless. At worst, the evidence characterized the crime in a way that could have influenced a finding only as to two of the four aggravating factors:
(1) the murders were especially heinous, or
(2) Hamilton could constitute a continuing threat to society.
The evidence could not have influenced a finding as to the other two aggravators:
(3) Hamilton knowingly created a great risk of death to more than one person, and
(4) that he committed the murders for the purpose of avoiding or preventing a lawful arrest or prosecution.
We therefore cannot conclude the OCCA unreasonably applied federal law. The absence of a victim impact jury instruction, even if constitutionally necessary, was harmless.
D. Aggravating Circumstances
Hamilton’s last challenge to the penalty phase of his trial contests the sufficiency of the evidence presented at trial in support of one of the four aggravating circumstances found by the jury. Under Oklahoma law, a jury is entitled to consider the “especially heinous, atrocious or cruel” circumstances of the crime. Okla. Stat. tit. 21 § 701.12.4. Hamilton asserts the prosecution failed to present sufficient evidence of conscious physical suffering by the victims or “extreme mental cruelty” as required by the aggravator. At trial, the jury found the aggravator with respect to all four victims.
*1194
When reviewing the sufficiency of the evidence on a habeas corpus petition, we ask “whether, after viewing the evidence in the light most favorable to the prosecution,
any
rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia,
The OCCA rejected Hamilton’s sufficiency challenge on the merits, and we look to AEDPA for the appropriate degree of deference to the state court decision. We have not yet settled whether a challenge to the sufficiency of the evidence on a habeas petition is a question of fact or a question of law, and therefore whether 28 U.S.C. § 2254(d)(1) or § 2254(d)(2) should apply.
See Turrentine,
When applying the Supreme Court’s sufficiency standard in
Jackson,
we look to Oklahoma substantive law to determine the elements of the “heinous, atrocious, or cruel” aggravator.
See, e.g., Turrentine,
In its review of this case, the OCCA addressed whether the evidence supported the death penalty and explained that “the murder was especially heinous, atrocious or cruel, in that the employees were forced to kneel in the back room uncertain of their fate, while each but the first listened to his co-workers being killed.”
Hamilton,
The prosecution in this case did not attempt to argue, through medical testimony or otherwise, that the victims in this case were subjected to serious physical abuse. With this limitation, we examine the evidence solely for evidence of mental torture. We have previously stated that the evidence must support anguish that goes beyond “that which necessarily accompanies the underlying killing.”
Jones v. Gibson,
The OCCA has also recognized that the presence of fellow victims in a multiple homicide, with each of the victims realizing they might be the next to die, satisfied the heinousness requirement. In
Neill v. State,
Hamilton counters this authority with the OCCA holding in
Davis v. State,
On this record, the jury’s finding of the “heinous, atrocious or cruel” aggravator in this case was reasonable. The OCCA’s decision, therefore, was neither contrary to nor an unreasonable application of federal law; nor was it based on an unreasonable determination of the facts in light of the evidence presented. Habeas relief on this ground is accordingly denied.
E. Cumulative Error
Hamilton’s final argument is that the cumulative effect of trial errors in this case justifies habeas relief. The OCCA rejected this claim because it found any errors to be harmless.
See Hamilton,
Contrary to the OCCA’s analysis, however, our eases explain that “[cjumulative-error analysis merely aggregates all the errors that individually have been found to be harmless, and therefore not reversible, and it analyzes whether their cumulative effect on the outcome of the trial is such that collectively they can no longer be determined to be harmless.”
Workman v. Mullin,
Because the OCCA did not consider in the aggregate the prejudicial effect of the individual errors, we review Hamilton’s cumulative error claim de novo.
See Malicoat v. Mullin,
Even under the de novo standard, we conclude Hamilton has failed to demonstrate the cumulative effect of the individual errors deprived him of a fair trial. In light of the overwhelming evidence against him, we see nothing to suggest the prosecutor’s remarks influenced the jury’s finding of guilt. The lawyer’s rhetorical flourish at closing pales in comparison to the physical and testimonial evidence of guilt introduced at trial. Likewise, the omission of a victim impact instruction in the context of the instructions as a whole also could only have minimally affected the jury’s consideration of the aggravated nature of the quadruple homicide. Moreover, the victim impact evidence bore on only two of the four aggravating circumstances found by the jury, any one of which was sufficient to support the death penalty. Even together, the weight of these alleged errors did not rob Hamilton of a fair trial.
We thus conclude Hamilton has failed to establish that individual harmless errors should collectively justify habeas relief.
IV. Conclusion
Accordingly, for the reasons set forth above, we AFFIRM the district court’s decision denying Mr. Hamilton’s 28 U.S.C. § 2254 petition for a writ of habeas corpus.
Notes
. At oral argument, Hamilton's counsel stated that the excluded evidence also violated his right to present mitigating circumstances under the Supreme Court's holding allowing such evidence.
See Skipper v. South Carolina,
. At the federal district court level, Hamilton argued that the inflammatory nature of the victim impact testimony violated his due process rights under
Payne v. Tennessee,
. For instance, one relative of a victim testified "God only knows the fear and sheer terror and pain and the intense agony those last few moments of his life brought him. How ... cold he must have been in that freezer.” Tr. at 1243. Another testified "There is no greater crime than murder. It violates very human right.” Tr. at 1244. A third described one of the killings as "senseless” and stated one of the victim's "was shot in the head like an animal and killed in cold blood without mercy.” Tr. at 1247.
.
See Jones v. Gibson,