Lead Opinion
OPINION
¶ 1 Appellant, Napoleon Lewis, Jr., was convicted of First Degree Murder (Count I) and Child Abuse (Count II) in the District Court of Oklahoma County, Case No. CF-95-2135, after a jury trial held before the Honorable Richard W. Freeman. As to the First Degree Murder charge, the State filed a Bill of Particulars alleging three aggravating circumstances: 1) that Appellant knowingly created a great risk of death to more than one person; 2) that the murder was especially heinous, atrocious, or cruel; and 3) the existence of a probability Appellant would commit criminal acts of violence that would constitute a continuing threat to society. The jury found the existence of two aggravating circumstances
FACTS
¶ 2 On March 28, 1995, after Anita Beb-out had picked up her six-year-old daughter, Tressa, from elementary school, Appellant followed her in his orange pick-up truck. As Anita drove, Appellant bumped her car with his truck. Anita drove into the office parking lot of a mobile home park along Shields Avenue in Oklahoma City and Appellant followed. Anita got out of her car, picked up Tressa and was walking rapidly toward the office when Appellant got out of his truck, poured gasoline into a cup and then approached Anita and Tressa and threw gasoline on them. He ignited the gasoline, ran back to his truck and drove away.
¶3 The men in the mobile home office helped put out the fires on Anita and Tressa and called 911. Anita identified Appellant as the person who had thrown gasoline on them and set them on fire before she and Tressa were transported to the hospital by rescue workers.
¶4 The police located Appellant at his mother’s house within the hour after the assault. When they arrived, Appellant ran from them. When he was apprehended, it was noted by police that Appellant smelled of gasoline. Appellant’s truck was found parked behind his mother’s house.
¶ 5 When police arrived at the police station with Appellant several reporters were already there. While he was being escorted inside, one reporter asked Appellant why he had done it. Appellant responded, “because I love her, and I caught her with another man.” Appellant gave a video-taped confession to the police a short time later after he had been apprised of his Miranda
¶ 6 Anita Bebout died from her burn injuries on April 14, 1995. Tressa Bebout suffered severe burns but did not die.
PRE-TRIAL ISSUES
¶ 7 Appellant argues in his eighth proposition that three errors of constitutional magnitude occurred during voir dire. He first complains that when the trial court conducted voir dire of the potential jurors, the judge indicated his opinion that Appellant should be sentenced to the death penalty. During voir dire, the trial court advised the jurors that “[t]he law in Oklahoma provides that Murder in the First Degree is punishable, has three punishments. One is life, one is life without the possibility of parole and the third is death.”
¶ 8 Appellant next complains that error occurred when during voir dire the prosecutor asked a prospective juror if he could “vote for the death penalty without doing violence to his conscience.”
¶ 9 The record in the present ease reflects that this prospective juror was excused only after extensive questioning by the trial court, the prosecutor and defense counsel. In response to questions asked by the trial court and prosecutor, the prospective juror repeatedly stated that it would be extremely difficult for him to consider imposing the death penalty. Defense counsel then asked him, “if you become a juror in this case and the guilt is established beyond a reasonable doubt and the State of Oklahoma presents all the evidence that they have and it becomes apparent that if there ever was a death penalty case, this is a death penalty case, would you be able to vote for the death penalty under those circumstances?” In response to this question the prospective juror answered, “I don’t believe I could.”
¶ 10 Appellant also argues that the prosecutor’s use of peremptory challenges to remove two jurors was racially motivated and accordingly violated his constitutional rights. The United States Supteme Court addressed the steps to be followed in determining whether a jury has been constitutionally selected in a race-neutral manner in Batson v. Kentucky,
¶ 11 In the present case, defense counsel objected to the State’s use of peremptory challenges to remove prospective Jurors Hogg and Pang. The prosecutor explained that he removed Mr. Hogg because he worked as a counselor at the Department of Corrections and dealt extensively with mental health professionals. The prosecutor was also concerned because Mr. Hogg’s wife ran a half-way house and worked with persons convicted of crimes. The prosecutor stated that he exercised a peremptory challenge to remove Ms. Pang because he had extreme difficulty understanding her and he was concerned that she would not be able to communicate frankly and openly with the other jurors. The trial judge noted that he, too, could hardly understand what Ms. Pang was saying. After considering the reasons given by the prosecutor for removing these two prospective jurors, the trial court found the concerns to be racially neutral. Because we agree with the trial court’s finding that these explanations were racially neutral, this proposition of error must fail.
¶ 12 Appellant argues in his ninth proposition that the trial court erred when it refused defense counsel’s request to voir dire the jurors individually on the extensive media coverage of the case. Appellant notes that this Court has held “there is no right to sequestered, individualized questioning during jury selection although such may be allowed at the discretion of the trial court.” McCarty v. State,
¶ 13 Appellant argues that because he was not allowed individualized voir dire, he did not receive fair and impartial jurors. In support of this contention, he notes that the two jurors who did acknowledge that they had been influenced by pretrial publicity were excused from the case. Appellant claims the remaining jurors were sent the message that if they wanted to remain on the jury panel they could not admit to having been influenced by media coverage of the case. This argument is purely speculative and in no way supports a finding that Appellant was actually denied fair and impartial jurors. As Appellant has not presented evidence to support a conclusion that the trial court abused its discretion in denying his motion for individual voir dire, this proposition is denied.
FIRST STAGE ISSUES
¶ 14 The defense requested jury instructions on the lesser crimes of second degree murder and first degree manslaughter. The trial court declined to give these requested instructions and Appellant, in his first proposition, alleges’that this decision constituted reversible error.
¶ 15 Appellant initially characterizes second degree murder and first degree manslaughter as lesser included offenses of first degree malice aforethought murder. Recently, this Court reaffirmed that “an offense is a lesser included one only where the greater offense cannot be committed without necessarily committing the lesser.” Willingham v. State,
¶ 16 Appellant also argues the trial court erred in refusing to instruct on the lesser crime of first degree manslaughter. A homicide is heat of passion first degree manslaughter “[w]hen perpetrated without a design to effect death, and in a heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon_”
¶ 17 Appellant’s defense at trial was that he was legally insane at the time of the assault. To support his defense, Appellant offered the expert testimony of Dr. Philip Murphy. In rebuttal, the State called its own expert, Dr. John Call. While questioning Dr. Call on direct examination, the prosecutor asked him about the information upon which he had relied in forming his opinion that Appellant was not legally insane at the time of the crime. Appellant argues in his second proposition that much of the information Dr. Call testified he had relied upon was unsubstantiated hearsay and improper character evidence which would otherwise have been inadmissible at trial.
¶ 18 During direct examination, Dr. Call testified that he based his opinion, in part, upon information that in 1988 Appellant had thrown liquid on his first wife, Vicky Sanders Lewis, and told her it was gasoline. The source of this information was not disclosed at trial. He also relied upon information from a 1993 hospital report alleging Appellant had assaulted Bebout and tried to run her off the road. In addition, Dr. Call testified about information regarding Appellant that he had gained from talking with Dr. Charles Smith and Sergeant Jerry Smith. Finally, the prosecutor questioned Dr. Call about his consideration of threats allegedly left by Appellant on Bebout’s answering machine. The answering machine tapes were not admitted into evidence. Appellant alleges that the admission of this evidence was improper under the Oklahoma Evidence Code. In analyzing whether the expert’s testimony about the information upon which he based his opinion was improperly admitted, it is important to note that no objection to this evidence was made at trial. Accordingly, we will review only for plain error. Charm,
¶ 19 The Oklahoma Evidence Code places few restrictions on the information an expert may rely upon to form his or her opinions. In referring to such information, 12 O.S.1991, § 2703 specifically provides that “[i]f of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.” Accordingly, under section 2703 an expert may rely upon information considered to be hearsay if this information is of a type reasonably relied upon by experts in forming their opinions. The Code also provides, “[t]he expert may testify in terms of opinion or inference and give his reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may be required to dis
¶ 20 Upon review of the testimony at issue, we find that much of it concerned the type of information reasonably relied upon by psychological experts in evaluating claims of insanity; Dr. Call reasonably relied upon hospital records and information imparted to him by the doctor and police officer who had prior contact with Appellant. We do question, however, the reasonableness of Dr. Cah’s reliance on the threatening phone messages allegedly left by Appellant on Bebout’s answering machine and the information that Dr. Call considered regarding past instances of abuse allegedly committed by Appellant against his first wife. This information is questionable because it is not clear from the record that Appellant was properly identified as the person who left the threatening messages or that the information regarding the instances of past abuse came from a reliable source. As Appellant suggests, the record provides no assistance in evaluating the reasonableness of Dr. Call’s reliance on this information. However, although Dr. Call’s testimony regarding the answering machine tapes and Appellant’s alleged treatment of his first wife was admitted in error, it was not met with objection and therefore, we must find it harmless unless it had a “substantial influence” on the outcome of the trial, or we have “grave doubt” as to whether it had such an effect. Simpson v. State,
¶21 We note that while the expert’s testimony regarding information he relied upon to form his opinion of Appellant’s mental state was not reversible error in this case, it was problematic. In an effort to avoid similar problems in the future, we direct trial courts, upon request of either party, to hold an in camera hearing to determine whether an expert’s reliance on particular information is reasonable. The necessity of such a hearing is not limited to expert witnesses who testify in the case-in-chief, but is also extended to expert witnesses in rebuttal.
¶ 22 As part of his first proposition Appellant also challenges the instructions given by the trial court instructing the jury on how to utilize the evidence admitted in support of the expert opinions. The jury was instructed on how to assess information supporting expert testimony in Instruction 16A:
You have heard witnesses qualified as experts testify as to their opinions. These witnesses also testified as to information relied upon in reaching their conclusions. This information was admitted solely for the purpose of enabling you to evaluate the expert testimony and is not to be considered by you for any other purpose in*1168 reaching a verdict.10
In the next instruction, Instruction 17, the jury was instructed on other crimes evidence:
Evidence has been received that the defendant has allegedly committed offenses or misconduct other than that charged in the Information. You may not consider this evidence as in any way tending to prove the guilt or innocence of the defendant of the specific offense charged in the Information. This evidence has been received solely on the issue of the defendant’s alleged motive, opportunity, intent, preparation, and plan. This evidence is to be considered by you only for the limited purpose for which it was received.11
Appellant does not complain that Instruction 16A was incorrect or unwarranted. In fact, a limiting instruction clarifying that the evidence can only be used to evaluate the credibility of the testifying expert’s opinion is required. See Ake v. State,
¶23 Finally, Appellant claims the introduction of this otherwise inadmissible evidence denied him his constitutional right of confrontation. While this issue has not yet been addressed by this Court, the Tenth Circuit Court of Appeals has held that the confrontation clause was not violated where the defendant had access to the information relied upon by the expert and had opportunity to cross examine the expert. United States v. Affleck,
¶ 24 Appellant complains in his third proposition that the testimony of the State’s expert, Dr. Call, regarding the information upon which he relied in forming his opinion, was evidence of other crimes. Appellant contends the introduction of this other crimes evidence was improper because he was not notified prior to trial of the State’s intent to introduce other crimes evidence to prove motive, opportunity, intent, preparation or plan.
¶ 25 It appears that in fact the State did not introduce the evidence of Appellant’s prior bad acts to prove motive, opportunity, intent, preparation or plan. All of the prior bad acts were introduced through the testimony of Dr. Call specifically for the purpose of supporting his expert opinion regarding Appellant’s mental state at the time of the crime. As discussed in the preceding proposition, all prior crimes or bad acts were intended to have been introduced pursuant to 12 O.S.1991, §§ 2703 and 2705. Accordingly, it was not incumbent upon the State to have given notice of intent to introduce other crimes evidence under 12 O.S.1991, § 2404(B). Further, since this evidence was not offered to prove motive, opportunity, intent, preparation or plan, an instruction on other crimes evidence was not warranted. However, because no objection was made to the giving of this instruction, all but plain error has been waived. We do not find plain error here.
¶26 Appellant claims in Proposition VI that error occurred because the jury instructions on child abuse were contradictory and confusing. It should initially be noted
¶27 The jury was properly instructed that in order to find Appellant guilty of child abuse, they had to find beyond a reasonable doubt that Appellant had:
1. Wilfully [sic] or maliciously;
2. Causing;
3. Injury, torture, maiming, or use of unreasonable force;
4. Upon a child under the age of eighteen years.12
Appellant argues that the problem arose when the trial court also instructed the jury that “willful” was defined as:
Purposeful. “Willful” is a willingness to commit the act or omission referred to, but does not require any intent to violate the law, or to injure another, or to acquire any advantage.13
Appellant argues that these instructions were confusing and contradictory as they allowed the jury to convict him of child abuse without finding that he acted intentionally toward Tressa Bebout.
¶ 28 In Bannister v. State,
¶29 Appellant also argues in his sixth proposition that the evidence was insufficient to support a finding that he intended to harm Tressa Bebout. While it is true that the record only reflects Appellant’s animosity toward Anita Bebout, it does not preclude the jury’s finding that he intended to injure Tressa Bebout when he threw gasoline on her and her mother and set them on fire. When Appellant’s actions are viewed in the light most favorable to the State, a rational trier of fact could have found that Appellant intended to injure Tressa Bebout. Spuehler v. State,
¶ 30 Appellant contends in his seventh proposition that error occurred because the trial court allowed three defense witnesses to be impeached with out-of-court statements they had made to the prosecutor. He also claims this error was compounded by the trial court’s failure to instruct the jury that this testimony could not be used as substantive evidence of guilt. It is first significant to note that of the specific instances of misconduct alleged, only one was met with contemporaneous objection and the nature of that objection is not entirely clear. Further, although Appellant asserts that the trial court erred in not giving the jury an instruction limiting the use of this evidence to impeachment, none was requested by Appellant at trial. Accordingly, as to these allegations, we need only review for plain error. Howell v. State,
¶ 31 This Court has held that inconsistent statements given to the police or a district attorney, whether sworn or unsworn, which were not made during a trial, hearing or other proceeding, or deposition, are not admissible as substantive evidence of guilt. Omalza v. State,
¶33 Appellant argues in his tenth proposition that the admission into evidence of his videotaped confession was error because there was insufficient evidence to conclude that he knowingly and intelligently waived his Fifth Amendment rights to remain silent and to counsel. Appellant acknowledges that defense counsel did not object to the admission of this evidence at trial and accordingly, this Court will only review for plain, reversible error on appeal. Mansel v. State,
¶ 34 In Moran v. Burbine,
First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the “totality of the circumstances surrounding the interrogation” reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.
See also Schneckloth v. Bustamonte,
¶ 35 Appellant contends that even though the police apprised him of his Miranda rights before questioning him about the crime, he was suffering from the aftershocks of a mental breakdown which rendered him unable to understand his rights and the consequences of his decision to waive them. We find from a review of the video taped confession that Appellant displayed no inability to understand his Miranda rights. To the contrary, he appeared coherent and responsive to the questioning of the police officers. He appeared to answer questions willingly and toward the end of the interview he even inquired about the charges that would be filed against him. Absent an objection by defense counsel, the trial court would have had no reason to suspect, from viewing this taped confession, that Appellant had not knowingly and voluntarily waived his right to remain silent and his right to an attorney. Accordingly, we find no error in the trial court’s decision to admit this videotaped confession into evidence.
¶ 36 Appellant also complains in this proposition that an unwarned custodial statement was improperly admitted against him at trial. When the prosecutor questioned the police officer who apprehended Appellant, he asked the officer what had happened. The officer stated that he had Appellant place his hands against a wall and he patted Appellant down. The officer then asked Appellant if he was Napoleon Lewis and if he knew why the police were there. The officer testified that Appellant had responded, “probably so.”
¶ 38 Appellant complains in his eleventh proposition that he was improperly forced by the trial court to submit to an examination by a psychologist chosen by the State. He acknowledges that when sanity is raised at trial, a defendant may be compelled to submit to an examination by a psychologist appointed by the court so that the State can have the opportunity to rebut the defendant’s claim of insanity. See Hain v. State,
¶39 While Appellant has acknowledged that a criminal defendant claiming an insanity defense may be required to submit to an examination by the State’s expert, he further asserts that the defendant’s Fifth Amendment rights may be violated if he is forced to reveal details of the crime. This assertion is correct, as this Court held in Traywicks v. State,
¶ 40 Conversely, in the present case, there is no evidence from the record that the State’s mental health expert questioned Appellant about the details of the assault. Dr. Call did testify that Appellant seemed uncomfortable at first because he perceived him to be “the enemy,” but that Appellant eventually began to communicate with him. While Dr. Call testified that Appellant had told him about his use of cocaine, this information was relevant to the doctor’s evaluation of Appellant’s mental state; it was not a detail of the crime itself. Accordingly, we find no violation of Appellant’s Fifth Amendment right against self-incrimination to have occurred in this case.
¶41 In his twelfth proposition of error, Appellant contends numerous photographs of Anita and Tressa Bebout were improperly introduced at trial as their probative value was substantially outweighed by their danger of causing unfair prejudice. 12 O.S.1991, § 2403. The photographs in question depict the charred face and legs of Anita Bebout at the time of her death and the injuries suffered by Tressa Bebout. Appellant acknowledges that these photos may
¶ 42 Decisions regarding the introduction of photographs are within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. Hooks v. State,
¶ 43 Appellant also argues that error occurred when the jury was allowed to hear the 911 telephone call that was made immediately after the incident. This Court has held that 911 telephone calls can be relevant to corroborate witnesses’ testimony and to illustrate what actually took place. Pickens v. State,
ISSUES AFFECTING BOTH STAGES OF TRIAL
¶44 Appellant alleges in his fourth assignment of error that prosecutorial misconduct during both stages of trial deprived him of a fundamentally fair trial and a reliable sentencing proceeding. He complains that during the first stage of trial the prosecutors expressed personal opinions on the evidence and the justice system, referred to facts not in evidence and misstated the evidence, defined reasonable doubt, denigrated defense witnesses and Appellant, and argued that the jury had a moral duty to convict. None of these comments were objected to at trial. Accordingly, as to these remarks, all but plain error has been waived. Smith v. State,
¶ 45 One of the first stage comments Appellant complains of on appeal was objected to at trial and overruled by the trial court. This occurred when the prosecutor referred to the information Dr. Call had relied upon in forming his expert opinion and argued this evidence as substantive proof of Appellant’s guilt. This information, that Appellant had threatened Bebout over the telephone, had been introduced for the sole purpose of supporting the expert’s opinion. Accordingly, it was error for the prosecutor to argue it for any other purpose, especially as substantive evidence of guilt. However, in light of the totality of evidence presented at trial, we do not find that this error requires reversal. See Ledbetter v. State,
¶ 46 Appellant also complains that prosecutors made several improper comments during the second stage proceedings. He argues that they misstated the law regarding aggravating and mitigating circumstances, denigrated mitigating circumstances, referred to facts not in evidence, expressed personal opinions on punishment and the justice system and argued mitigating evidence as aggravating evidence. Again, most of the comments now at issue were not objected to at trial and accordingly, all but plain error has been waived. Smith,
, ¶47 One of the second stage comments which was met with timely objection occurred when the prosecutor argued to the jury that justice required them to impose
¶ 48 Appellant alleges in his fifth proposition that trial counsel made several errors during both stages of trial which denied him effective assistance of counsel. To show ineffective assistance of counsel, a defendant must meet the two-pronged test set out in Strickland v. Washington,
¶ 49 Appellant first alleges that trial counsel was ineffective because he did not adequately object to the admission of much of the information relied upon by the State’s expert in forming his opinion regarding Appellant’s mental state. Appellant notes that trial counsel argued that the jury be instructed to only consider this evidence in evaluating the expert’s opinion, but contends that this was not sufficient. He argues defense counsel should have attacked the reliability and admissibility of the information underlying Dr. Call’s opinion as well. As we noted in our discussion of Proposition II, although the reliability of some of the information considered by Dr. Call was not established at trial, other information was reliable and proper for his consideration. Further, although upon proper and timely objection, the trial court should have precluded Dr. Call from testifying about his consideration of some of the information at issue,, other of this information was properly considered by the jury in evaluating Dr. Call’s expert opinion. Accordingly, while it would have been prudent for counsel to have objected to the admission of this evidence, it is unlikely that his objections would have been entirely successful. Counsel’s failure to object to the admission of this evidence was ill-advised but not so egregious that this Court can find he was not functioning as the counsel guaranteed by the Sixth Amendment. Further, since some of the testimony at issue would undoubtedly have been properly admitted over objection, we cannot find that Appellant was prejudiced by the deficient performance.
¶ 50 Appellant also contends that trial counsel’s performance fell below objective standards of effective counsel because he argued inconsistent defenses and conceded the existence of aggravating circumstances. In support of his position, Appellant first directs this Court’s attention to a segment of defense counsel’s first stage closing argument wherein he tried to explain the relevance of Appellant’s admission that he messed up his life but he had to do it. Regarding this remark defense counsel stated:
*1174 What we’ve got doesn’t prove any intent. It doesn’t even address the intent as to Tressa. Does it talk about intent? Yeah, it talks about intent on Anita, on the attack on her. That’s what they’re clearly talking about here. Malice aforethought as to Anita? Yes. Premeditation? No. Sanity? No. It gives us something to think about on that issue.15
When viewed separate from the rest of closing argument this isolated statement seems at worst to be confusing. However, when viewed in conjunction with the rest of defense counsel’s first stage closing argument, this Court cannot find this statement rendered counsel’s performance deficient. Counsel reiterated several times throughout closing argument that there was no evidence to support a finding that Appellant acted with premeditation or malice aforethought or that he was sane at the time of the crime.
¶ 51 It is also argued that defense counsel was ineffective because he told the jury that Appellant had hostility toward Anita Bebout and that Appellant was sane during his interview with the police. By telling the jury that Appellant had hostility toward Anita but not Tressa, defense counsel in no way conceded that Appellant demonstrated malice aforethought or an intent to kill Anita Bebout. Aso, by conceding that Appellant may have been sane during the interview, defense counsel did not denigrate the defense of insanity at the time the crime was committed. Accordingly, defense counsel cannot be found ineffective for making these two comments.
¶ 52 In his second stage opening statement defense counsel conceded one of the alleged aggravating circumstances: that the murder was especially heinous, atrocious or cruel. Later, in his closing argument defense counsel again referred to this aggravating circumstance and acknowledged that its existence opened the door for consideration of the death penalty and then acknowledged that the death penalty was appropriate for the jury’s consideration. Appellant also takes issue with defense counsel’s statement to the jury that Appellant had created a risk of death to more than one person. However, defense counsel followed this by saying that Appellant did not create this risk knowingly.
¶ 53 While it may not have been sound trial strategy to concede all of one aggravator and part of another, we are hesitant to say that by doing so defense counsel’s performance was so deficient that he was not functioning as the counsel guaranteed by the Sixth Amendment. However, even if we did conclude that these comments rendered defense counsel’s performance deficient, under the evidence presented in this case we would not be able to find that this error prejudiced Appellant. There is no question but that even absent these remarks by defense counsel the jury would have found the existence of the two aggravating circumstances in question. The aggravating circumstances that the murder was especially heinous, atrocious or cruel and that Appellant knowingly created a great risk of death to more than one person were overwhelmingly supported by the evidence presented in this case.
¶ 54 Next, it is alleged that trial counsel was ineffective because he made no motion to suppress Appellant’s confession and other inculpatory remarks. Appellant argues that by not challenging the statements, defense counsel waived his right to have a judge determine whether he had made the statements voluntarily, knowingly and intelligently. He claims that even if the motion to exclude was unsuccessful, a hearing could have produced testimony helpful to his insanity defense at trial. There is nothing in the record which supports a finding that defense counsel’s decision not to challenge the statements was error or that Appellant was actually prejudiced by this decision.
¶ 55 Finally, Appellant alleges that defense counsel was ineffective because he did not object to the dismissal for cause of a prospective juror who had said it would be difficult to vote for the death penalty. As noted previously in Proposition VIII, the juror in question was properly dismissed for cause after he clearly indicated that he would be unable to consider imposing the death
¶56 In addition to the ineffective assistance of counsel claims raised by Appellant in his brief in chief, he filed an Application for an Evidentiary Hearing asserting five additional claims which he contends are supported by evidence not in the record but which was available to defense counsel at the time of trial. In this application Appellant requests an evidentiary hearing on 1) the failure of defense counsel to challenge allegations supporting expert testimony used at trial with information available; 2) failure of defense counsel to adequately cross-examine, or present any testimony in response to the State’s rebuttal witness; 3) failure of defense counsel to present relevant mitigating evidence in the second stage of trial; 4) failure of defense counsel to produce readily available evidence on the voluntariness of Appellant’s confession; and 5) counsel’s failure to adequately consider and present evidence of alternative defense theories supported by the facts. Appellant requests this evidentiary hearing based upon Rule 3.11(B)(3)(b), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (1997). This rule allows an appellant to request an evidentiary hearing when it is alleged on appeal that trial counsel was ineffective for failing to “utilize available evidence or adequately investigate to identify evidence which could have been made available during the course of trial_” Once an application has been properly submitted along with supporting affidavits, this Court reviews the application to see if it contains “sufficient evidence to show this Court by clear and convincing evidence there is a strong possibility trial counsel was ineffective for failing to utilize or identify the complained-of evidence.” Rule 3.11(B)(3)(b)(i), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (1997).
¶ 57 Upon review of the application and supporting affidavits we find Appellant has shown this Court that trial counsel could well have utilized other options at trial and that it may have been prudent for him to do so. However, Appellant has not shown by clear and convincing evidence a strong possibility that defense counsel was ineffective for failing to utilize or identify the complained-of evidence. Accordingly, we decline to grant Appellant’s application for an evidentiary hearing.
SECOND STAGE ISSUES
¶ 58 The State alleged and the jury found that Appellant had created a great risk of death to more than one person and that the death of Anita Bebout was especially heinous, atrocious or cruel. Appellant argues in his thirteenth proposition that these two aggravating circumstances are unconstitutional. He acknowledges that this Court has repeatedly rejected attacks on the constitutionality of these aggravating circumstance. See Willingham,
¶59 In his next proposition Appellant sets forth three arguments previously rejected by this Court in order to preserve such for appellate review. He first argues that the instructions regarding the manner in which the jury was to weigh aggravating circumstance set forth an improper burden of proof. Again, he acknowledges that this standard has been repeatedly approved by this Court. See Mitchell v. State,
¶ 60 Appellant next contends that the instructions given to the jury on the issue of mitigation permitted the jurors to ignore mitigating evidence altogether, and seriously diminished the effect of the mitigating evidence presented in this case. We note that the same or similar instructions to those given in
¶ 61 Finally, Appellant complains the jury instructions, taken together, implied that jury findings regarding mitigating circumstances must be unanimous, and that the jury should have been instructed that its findings do not have to be unanimous. This issue has previously been addressed by this Court and on prior occasions relief has been denied. See Harjo v. State,
¶ 62 In his fourteenth proposition Appellant argues that Oklahoma’s amended capital sentencing statute has opened the floodgates for the introduction of highly emotional and irrelevant evidence. It is his position that victim impact evidence has no place in Oklahoma’s death penalty scheme as our statutes require a balancing test of aggravating circumstances and mitigation and victim impact evidence is relevant to neither. He argues that victim impact evidence operates as irrelevant, improper, nonstatutory “super-aggravator” which will be present in every capital case. Appellant recognizes that this Court recently addressed these concerns in Cargle,
ACCUMULATION OF ERROR
¶ 63 In his final proposition, Appellant contends the accumulation of errors in this case so infected the trial and sentencing proceedings that he was denied due process of law and a reliable sentencing proceeding in violation of his rights under the Fourteenth and Eighth Amendments. This Court has held that where there is no error present, there can be no accumulation of error. Bryan v. State,
MANDATORY SENTENCE REVIEW
¶ 64 In accordance with our statutory duty, we must now determine whether the death sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor, and also whether the evidence supports the jury’s finding of the alleged statutory aggravating circumstances. See 21 O.S.1991, § 701.13(C). We are satisfied that neither passion, prejudice nor any other arbitrary factor contributed to the jury’s sentencing determination. After carefully reviewing the evidence presented, we also find that it supported the jury’s finding of the aggravating circumstances.
¶ 65 Finding no error warranting reversal or modification, Appellant’s Judgment and Sentence is AFFIRMED.
. The jury found that Appellant had created a great risk of death to more than one person (21 O.S.1991, § 701.12(2)) and that the murder was
.Appellant’s Petition in Error was filed in this Court on July 25, 1996. His Brief-in-Chief was filed on February 3, 1997, and the State's Response Brief was filed on June 3, 1997. The case was submitted to this Court on June 9, 1997, and oral argument was heard on September 30, 1997.
. Trial Transcript I, 65.
. Trial Transcript I, 65.
. Trial Transcript III, 19.
. Trial Transcript III, 20-21.
.Trial Transcript III, 21-22.
. Such a hearing is advocated by the Tenth Circuit Court of Appeals. See Head v. Lithonia Corp. Inc.,
. Original Record, 569 (emphasis added).
. Original Record, 570 (emphasis added).
. Original Record, 560.
. Original Record, 560.
. Trial Transcript V, 49.
. Trial Transcript VIII, 95.
Concurrence Opinion
specially concur.
¶ 1 I concur in the Court’s excellent opinion affirming the judgment and sentence in this case.
¶ 2 However, it should be noted the criteria set out in Strickland v. Washington, 466