*1 by taking court did abuse its discretion
judicial notice the FDIC insured status of jury Nor did it
the Bank. divest of its authority sole facts as arbiter because properly jury instructed the accord with 201(g).
Rule AFFIRMED. BRECHEEN,
Robert A. Petitioner-
Appellant, REYNOLDS, Dan Warden Penitentiary, Oklahoma State Respondent-Appellee.
No. 94-7084. Appeals, United States Court of Tenth Circuit.
Oct. *5 III, Inc.,
Gloyd McCoy Coyle L. of J.W. OK, Gordon, City, Oklahoma Jack Jr. of Gor- Gordon, Claremore, OK, petitioner. don for & (Susan Blalock, Atty. A. Diane Asst. Gen. Gen., Loving, Atty. Brimer with her on the OK, briefs), City, respondent. for Oklahoma EBEL, jury BALDOCK, imposed penalty the death glary.1 The BRORBY Before aggrava- it found the existence of one after Judges. Circuit circumstance, namely, Mr. ting Bre- BRORBY, Judge. Circuit knowingly great risk of cheen created appeals person. the denial to more than one See Okla. Allen Brecheen death Robert 701.12(2); corpus § for a writ of habeas tit. petition of his Stat. § denial along with the 28 U.S.C. under guilty killing Brecheen was found Mr. pursu- request stay for a of execution of his evening living her room one Marie Stubbs §§ Mr. Bre- ant to 28 U.S.C. bedroom, in March of 1983. From the her court failed to the district cheen contends husband, Stubbs, fall to Hilton saw her er- recognize asserted constitutional several gun his floor. He then reached for relating conviction murder rors from his bed the bedroom floor. rolled onto ap- In this corresponding death sentence. After the intruder came to the bedroom and upon those peal, to reexamine we are called empty bed, into the Mr. Stubbs fired at fired errors, the denial of a which include asserted exchanged fire the intruder. two once of the of motion fair trial because denial again the house as the intruder left prosecutorial change venue and because of could Though north. Mr. Stubbs headed misconduct, sentencing phase denial of fair intruder, identify the Brecheen was Mr. counsel, of ineffective assistance because by police approximately two found hundred instructions, mitigating over- insufficient house, yards severely north Stubbs’ aggravating factors. We application of broad trial, At Brecheen admitted wounded. § 1291 jurisdiction under 28 U.S.C. exercise present holding the house and for a grant request Mr. Brecheen’s and we explained Mrs. gun that killed He Stubbs. to 28 probable pursuant cause certificate to the house *6 he was forced Stubbses’ an grant § Finding 2253. no basis U.S.C. man forced him to car- unidentified who also
relief, however, we affirm
court’s
the district
argued
ry
gun
to the door. The defense
petition.
of Mr. Brecheen’s
denial
accidentally.
gun went off
BACKGROUND
appeal,
On direct
the Oklahoma Court
by jury
Appeals2
Brecheen
of
affirmed his conviction
Mr.
was convicted
Criminal
degree
murder
bur-
of
Brecheen
732
degree
of first
and first
and sentence
death.3
P.2d
(4) (5)
"breaking”
burglary;
described
this section are taken
dence of
element of
1. The facts
in
—
Appeals’
improper
concerning
"breaking”
from the Oklahoma Court of Criminal
instructions
affirming
element; (6)
misconduct;
opinion
(7)
on
juror
improper
Mr. Brecheen’s conviction
de-
State,
889,
appeal.
house; (8)
Brecheen v.
732 P.2d
improper
direct
of access to victim’s
nial
denied,
(Okla.Crim.App.1987),
892
909,
cert.
of
rebuttal evidence
film from television news
1085,
(Bre-
(1988)
108 S.Ct.
Observing the entire we find no manifest in error the state trial court’s denial fundamentally proceed- evidence of a unfair change of of venue.6 court, argument In improp- his before this Mr. Bre- cheen contends the district court federal 1352 by procedures employed the state trial court
B.
constitutionally adequate and that Mr.
were
half of Mr. Bre
The second
rights
not
There-
Brecheen’s
were
violated.
Oklahoma Court
argument
that the
cheen’s
fore,
assuming, arguendo, that the use
even
applied an unconstitu
Appeals
of Criminal
impossibility
of the virtual
standard could be
deciding
in
whether
tional standard
review
of
particular
a
of cir-
under
set
unconstitutional
his
denied
motion
properly
the trial court
911,108
cumstances,
at 1086-
see id. at
S.Ct.
Mr. Brecheen
change
Specifically,
venue.7
in
process
of due
were
87 minimal standards
impossibil
“virtual
use of the
asserts
the
case.
fact
to Mr. Brecheen in this
afforded
standard,8
applicable
ity”
was
at
which
Therefore,
the issue
what substantive
appeal,9 is
his
and his direct
time of
trial
by
was
employed
standard of review
unconstitutional.
this
Oklahoma courts is irrelevant because
Therefore,
fundamentally fair.
we
trial was
claim,
rejecting
we reiterate our
In
this
reject
assignment
error.
only
Mr. Brecheen’s
concern is whether
fed
impar
fair
right to a
eral constitutional
sum,
In
have
the actions of
we
measured
by
jury, guaranteed
him
the Four
tial
jury
concerning
se-
the state trial court
Amendment,
violated
this case.
teenth
was
change
process
issue
lection
of venue
422,
Mu’Min,
111
at
at
S.Ct.
See
500 U.S.
against
process
of due
that is
the standard
Murray,
(citing Turner v.
476 U.S.
1903-04
required by the United States Constitution.
1683,
(1986);
28,
1353
timely objection
finding
“adequate”
make a
of the com-
is deemed to be
if it is
claim,
forming
is,
for
applied “evenhandedly”;
“
ments
the basis
this
if it
is
”
Appeals’
‘strictly
Andrews,
Court of Criminal
review
regularly
Oklahoma
or
followed.’
appeal
deciding
was limited to
on direct
(quoting
The
of
habeas
preclude
procedural
depend
review of
on an antecedent
applies
federal
bar
adjudicated
law,
is,
that have
on the
claims
not been
deter-
ruling on federal
on the
by
noncompli
a state court because
merits
constitutional
mination of whether federal
procedural
E.g.,
a state
rule.
Cole
apply-
anee with
error
committed. Before
has been
2553;
man,
728, 111
501 U.S. at
S.Ct. at
ing
constitutional
the waiver doctrine to a
87,
Wainwright, 433
at
1355
your spine,
chills down
violation;
because it’s [sic]
al constitutional
“the narrow one of
talking
what it’s
about is
process,
the deliberate
due
and not the broad exercise of
intention of one
supervisory
human
to
from
power.”
take
Donnelly v. DeChristo
precious
have,
thing they
foro,
637, 642,
another the most
1868,
416
1871,
U.S.
94 S.Ct.
(1974);
and that’s their human
life.
L.Ed.2d 431
accord Darden v.
Wainwright,
168, 181,
477 U.S.
106 S.Ct.
2464, 2471-72,
(1986).
Counsel for Mr.
incor
urges.
Breeheen
Breeheen
Saffle,
See Coleman v.
rectly
(10th
directs
Cir.1989),
denied,
us to violations of state law F.2d
cert.
allegedly
caused
these
statements. Our 494 U.S.
108 L.Ed.2d
(1990).
review as a federal habeas court is for feder-
After
careful review of the
trial,
argued,
appeal,
we do
In his direct
Brecheen
totality
of circumstances
alia,
permitting
imposition
so
prosecutor
inter
find
the statements
penalty
knowingly
if the
petitioner as
the death
defendant
jury against the
prejudiced the
danger
great
more than
created
risk
deny
fundamental
fairness
him the
*13
law
the
person
one
under Oklahoma
violated
under
he is
the Constitution.
which
entitled
Eighth Amendment because was unconsti-
enough
prosecu
not
that the
“[I]t is
tutionally overbroad. The Oklahoma Court
uni
or even
remarks were undesirable
tor[’s]
rejected
challenge
Appeals
this
of Criminal
Darden,
at
versally
477 U.S.
condemned.”
existing precedent.
in
on its
See
reliance
181, 106
separately on
Writing
at 2471.
S.Ct.
I,
Brecheen
while we
determination
at
Mr. Brecheen does not
S.Ct.
2564-65.
courts
that the
of the state
before us
conduct
argue
prejudice
that he has shown cause and
unbecoming
prosecutor
to his office
instead,
default;
procedural
to override his
case,
needlessly
his
also
jeopardized
miscarriage
on
“fundamental
he relies
agree that
how
Mr. Brecheen has
shown
Carrier,
exception.
justice”
Murray
See
v.
remarks,
individually
these
either
or collec
478, 495,
2639, 2649, 91
477 U.S.
106 S.Ct.
tively,
right
process.
to due
violated
Harris,
(1986),
quoted
489
L.Ed.2d 397
1042-43;
at
at
see also
Sentencing
U.S.
109 S.Ct.
III.
Error
Coleman,
749-50,
Jury
111 S.Ct.
U.S.
Instructions
2564-65.
assigns
relating
next
error
Brecheen
recently
sentencing
Supreme Court
ex
given
to the instructions
to the
scope
excep-
jury.
pounded on
narrow
equivalent
petitioner
which a
pass
tion and indicated it is
to a show
habeas
must
to have
ing
his otherwise barred
of “actual innocence.” See Herrera v.
constitutional claim con
—
—
Herrera,
Collins,
U.S. —, —,
sidered on the
merits.”
S.Ct.
U.S. at
—,
862, 122
(1993);
added);
(emphasis
at 862
Sawyer v.
S.Ct.
see
L.Ed.2d 203
Whit
—
Carrier,
—,
Murray
also
—,
v.
477 U.S. at
ley,
2649-50;
(1992)
Steele,
S.Ct. at
2518-19,
F.3d at 1522 n.
(discussing
&
120 L.Ed.2d
Wilson,
436, 454,
Kuhlmann
(1986)
2616, 2627,
(plu
S.Ct.
91 L.Ed.2d
specific
of a sentencing
context
chal
rality opinion)). “The fundamental miscar
lenge,
Supreme
has
Court
held actual
riage
justice
‘only
exception
available
requires
innocence
petitioner
“by
to show
*14
prisoner supplements
where the
his constitu
convincing
clear and
evidence
but for
showing
tional claim with a colorable
of fac
error,
juror
constitutional
no reasonable
”
—
Herrera,
at —,
tual innocence.’
U.S.
him eligible
penalty
find
for the death
(emphasis
original) (quot
113 S.Ct. at
in
862
—
under
Sawyer,
law.”
[state]
U.S. at
Kuhlmann,
454,
ing
at
U.S.
S.Ct. at —,
by
S.Ct. at 2523. Persuaded
the
(plurality opinion)).
This
rule is
“eligibility” test of
Fifth and
the
Eleventh
“grounded
‘equitable
in the
discretion’ of ha- Circuits, the Court
the correct
held
focus is
beas courts to see that federal constitutional
on “those elements which render a defendant
errors do not result in the incarceration of
eligible
penalty,
for the death
not on
—
Herrera,
at —,
persons,”
innocent
U.S.
mitigating
additional
which
pre
evidence
(citing McCleskey,
plained of state habeas denial preventing ... the relit- upon fact a rule igation habeas claims raised on on state circumstance, even appeal. direct In that preventing rule relit Oklahoma’s posit the though presumption does not proceedings of postconviction in state igation denial, real the later it does reason for appeal raised decided on direct claims (‘looking produce through’ to the a result bar procedural to feder does not constitute decision) the correct last reasoned that is Ylst, 797, 111 al review. habeas one habeas for federal courts. Since Supreme Court considered S.Ct. upon ineligibili- later based state decision unexplained state court orders the effect ty [does not] rest[] state review court state order on an earlier reasoned for further upon ... procedural its [a] purposes of habeas review. federal default effect upon availability is habeas noted a state court’s sub Court that because of federal precisely accorded nil —which “not sequent unexplained order is meant effect *15 by ‘look-through’ presumption. the convey anything to the reason for the as (em 803, decision,” at id. 111 S.Ct. 2594 at 3, (empha- Id. at 804 n. 111 at n. 3 S.Ct. 2595 through” original), that phasis in a “look rule added). sis unexplained later decision “no ef gives the Thus, footnote, if the Ylst a state under nearly the role that such fect” most reflects particular court the merits a addresses of 804, play. to decisions are intended Id. at appeal, on as it did here federal claim direct (foot (emphasis original) in 111 at S.Ct. 2595 Eighth Mr. respect with Brecheen’s omitted). look-through the practice, note In claim, subsequent then its refus- Amendment ignore a court to the rule tells federal habeas grant appli- al to “further” state in an review upon last unexplained and focus the order giv- cation relief be postconvietion should 803, Id. at 111 reasoned state court decision. proce- en no and does not a effect constitute 2594; Church, at In at 942 F.2d S.Ct. of purposes dural bar for federal habeas places doing, the habeas court so federal 3, corpus at n. 111 review. Id. 803-04 & if position in the reason itself a to determine Therefore, at n. are S.Ct. 2594-95 & 3. we “ ‘fairly opinion in ing used that state court aspect free to the merits this examine upon appear[s] primarily federal rest Eighth chal- Brecheen’s Amendment ” Ylst, 802, law,’ 111 at S.Ct. at 2594 U.S. lenge, posits “great which that risk of 737, Coleman, at (quoting 501 U.S. 111 S.Ct. aggravating is death others” circumstance 2558), proper, review at such that habeas is provide unconstitutional because does not or if the state decision rested on an court rationally the sentencer with reviewable i.e., adequate ground, independent state we that this standard. Because conclude Ylst, 802, procedural 501 U.S. at bar. with aggravating circumstance is consistent S.Ct. at 2594. Supreme interpre- the dictates of the Court’s Amendment, reject Eighth tation of the subsequent unex- presumption that this claim of error. plained given no is a orders should be effect in relatively cases. accurate barometer most (“The 804, 111 Id. at at 2595 maxim is S.Ct. 238, Georgia, ... In Furman v. 408 U.S. implies
that silence
consent
and courts
(1972),
2726,
L.Ed.2d
generally
accordingly, affirming with-
92 S.Ct.
behave
Supreme
they
opinions of the
Court estab
agree,
out further discussion when
various
Eighth
that the
Amend
they disagree,
given
principle
lished the
when
reasons
below.”).
ability
footnote,
in
limitations on the
imposes
As
noted
ment
some
the Court
however,
recurring
impose
punishment
only
States
circumstance
in
tenet was adhered to
presumption
is the
death. This core
where
unrealistic
2909,
153,
us,
Gregg Georgia,
v.
428 U.S.
96 S.Ct.
presently
situation
before
where
(1976),
plurality of
degree
particular
statutory
in fact
that must
“whether
lan-
penalty
receive
determine
death
should
lesser sentence is
guage defining
or whether some
itself too
sentence
the circumstance is
—
at —,
Tuilaepa,
U.S.
any guidance
warranted. See
vague
provide
to the sen-
important
tencer.”).
is
at the
at 2635. “What
114 S.Ct.
must now
Okla.Stat.
We
measure
stage
determi
701.12(2)
is an individualized
21,
selection
against
require-
§
tit.
these
of the
on the basis of
character
nation
ments.
and the circumstances of
individual
Zant,
879,
103
at
crime.”
462 U.S.
S.Ct.
a.
(emphasis
original), quoted
in
in
2743-44
concluding
aggra
trouble
this
We have no
—
at —,
Tuilaepa,
S.Ct. at 2635.
U.S.
vating
comports
the “sub
circumstance
satisfy
In
this individualized deter
order
requirement.
aggravating
class”
The
factor
requirement, the sentencer must be
mination
imposition
in the
of the death
resulted
opportunity
to “consider rele
afforded
penalty
applies
case
if it is shown that
mitigating
of the
evidence
character
vant
“knowingly
great
defendant
created
of the
and the circum
record
defendant
person.”
risk of
to more
one
death
than
at —,
Tuilaepa,
of the crime.”
stances
21,
701.12(2).
§
tit.
This factor
Okla.Stat.
Blystone
Pennsylva
(citing
at 2635
S.Ct.
every
reasonably
apply
cannot
said
be
nia,
299, 307,
110 S.Ct.
1083-
murder,
defendant convicted of
as in the case
(1990)).
Arave v. U.S. 113 murder, fendant of we find that convicted 1534, (1993) (“If 1542, 188 S.Ct. 123 L.Ed.2d particular properly is limited to a subclass fairly the sentencer could that an conclude the and is therefore constitutional under aggravating applies every circumstance Amendment, in Tui- Eighth interpreted as eligible penalty, defendant for the death the laepa and Arave. constitutionally circumstance infirm.” is “Second, (Emphasis in original.)). aggra the b. vating may circumstance not be unconstitu — com tionally at —, respect vagueness vague.” Tuilaepa, With U.S. Arizona, 2635; ponent inquiry, we Brecheen’s 114 v. find Mr. S.Ct. Walton 497 654, 3047, 639, 3057-58, argument panel’s to note that the deci- U.S. 110 S.Ct. 111 fails
1361
Cartwright,
prece
which is still
require
sion
valid
Oklahoma courts does not
Cartwright
review,12
dent after en banc
see
person.
death of more than one
only
It
2, rejected
precise
F.2d at
n.
822
1478
II.
requires
by
an act or
acts
the defendant
vagueness
claim
re
advanced here with
risk
create the
of death to another who is in
spect
specific aggravating
to this
circum
proximity
killing
close
to the
itself in terms
Cartwright
Maynard,
v.
See
802
stance.
Snow,
time, location,
and intent.
876 P.2d
(10th Cir.1986) (Cart
1203, 1221-22
F.2d
at 297.
alia,
I)
wright
(citing, inter
v. Flori
Proffitt
da,
242, 256,
2968,
2960,
428 U.S.
96 S.Ct.
49
case,
jury
In this
found Mr. Brecheen
(1976) (upholding
L.Ed.2d 913
the Florida
Stubbs,
gun
killed Mrs.
fired a
several times
similarly
courts’
of a
construction
worded
Stubbs,
empty
into the
bed of Mr.
and then
factor)).
aggravating
Reviewing Oklahoma
fire into
returned
the Stubbses’ residence as
1986,
prior
case law
we found the con
he fled. The sentencer’s ultimate conclusion
by
“great
risk” factor
Okla
struction
“great
this conduct constitutes a
risk of
provided
guidance
homa courts
consistent
danger to
person”
entirely
more than one
jury
limit
so as to
its discretion and
consistent with both
the facts
this case and
thereby
Eighth
withstand
Amendment
the Oklahoma courts’ construction of this
Cartwright
See
challenge.
F.2d at
802
factor. Because
vagueness
“our
review is
1222. We find
from
conclu
no deviation
—
quite deferential,” Tuilaepa,
U.S. at
See,
State,
e.g.,
Snow v.
since that
sion
time.
—,
2635,
114 S.Ct. at
and because this
Ellis v.
(Okla.Crim.App.1994);
IV.
appeal,
argues
12-18.
Mr.
the
On
Brecheen
assignment of
is
final
error
Mr. Brecheen’s
failing
grant
in
federal district court erred
assistance of
he
ineffective
a claim received
evidentiary hearing
a
this
separate
him
on
sentencing phase of his
trial counsel at the
issue,
finding
proeedurally
this claim
in
of
claim
procedural posture
this
trial. The
dismissing it
barred and in
on the merits.
requires some elaboration.
in
claims
turn.
We address these
this
on
Brecheen
not raise
claim
Mr.
did
post-
appeal.
application
In his
for
his direct
A.
Brecheen,
relief,
new
Mr.
with
conviction
counsel, raised
issue before the state
this
agree
court that
We
with
district
granted an
court. The state court
district
Mr.
not
an addition
Brecheen was
entitled to
evidentiary
hearing in which
Brecheen
evidentiary hearing
al
in
court be
federal
testimony evaluating
expert
trial
offered
hearing
cause he
a full
fair
received
sentencing phase conduct. The
counsel’s
v. Blodgett,
state court.
5 F.3d
See Jeffries
ultimately
on
district court
concluded
state
—
(9th
1180,
Cir.1993),
denied,
cert.
1188
was no Sixth Amend-
the merits that there
(1994).
—,
1294
U.S.
114 S.Ct.
review,
postconviction
ment violation. On
however,
of
Court
Oklahoma
Criminal
Brown,
In Parks v.
F.2d 1496
this
on the
Appeals did not resolve
issue
(10th Cir.1987), we stated
is no abso
there
Instead,
it concluded
was
merits.
issue
right
evidentiary
every
hearing
lute
an
“in
§
judicata under
1086 because it was
res
of
of
involving
case
a claim ineffectiveness
during
appeal,
direct
“not raised
notwith-
Rather,
counsel.”
at 1509.
the determi
Id.
standing
allegations
respect
similar
evidentiary hearing
nation of
is
whether
stage proceedings.
compelling
first
No
application
involves
of a two-
mandated
raising
for
explanation
the late
offered.”
First,
pronged
petitioner
test.
bears
II,
P.2d at 119 n.
Brecheen
which,
“alleg[ing]
proved,
burden of
facts
if
reviewing
v.
Mr. Brecheen’s federal habe- would entitle him to relief.” Townsend
Sain,
757,
293, 312,
petition, the
court found the inef-
as
district
S.Ct.
barred,
(1963);14
Kerby,
proeedurally
L.Ed.2d 770
fective assistance claim
Lucero
(10th Cir.1993).
caution,”
but,
peti
of
If
out of an “overabundance
F.3d
burden,
court
and dismissed the issue
tioner carries this
then an evidentia-
considered
presentation
mitigating
of
Those cases all involved situations where the
absolute manner
was,
reasons,
Carolina,
evidence,"
variety
prevented
McKoy
v. North
sentencer
1227, 1240,
precluded
considering
mitigat-
or
ing
from
relevant
L.Ed.2d 369
(1990)
J.,
example,
concurring),
(Kennedy,
quoted
evidence.
Woodson and Rob-
For
irt John-
son,
at-,
(majority
involved state statutes that excluded all miti-
erts
S.Ct.
-U.S.
at 2666
gating
authority
evidence from the sentencer's consider-
opinion), we find that entire line of
ation; Lockett and Green involved state statutes
inapposite
the case before
us.
mitigating
type
Therefore,
that limited the
evidence that
we
was no
while
conclude there
introduced; Eddings
be
could
involved
trial
Eighth
regard
Amendment violation
judge's
interpretation
existing pre-
decision,
erroneous
below whether
selection
discuss
prohibited
cedent which he believed
from
him
there
Sixth Amendment violation
evidence;
considering
types mitigating
certain
right to
effective assistance
counsel
sentenc-
Skipper
involved a
and Dutton
trial court’s
ing
regard
to the decision
to introduce
excluding
mitigating
act
affirmative
relevant
mitigating evidence.
*19
additional
that
wished to
In
evidence
the defendant
offer.
case, however,
present
there is
14. We
Townsend v.
is still valid
the
no evidence
note that
Sain
except
applies
precedent
the
the
the
in the record
state law or
trial court
extent
that
"knowing
bypass”
stan-
“excluded”
that the
"deliberate
waiver"
evidence
defendant wished
dard,
consideration,
prejudice
opposed
cause
and
from
in
as
to the
and
to offer
the sentencer's
standards,
above;
miscarriage
justice
of
contravention of the cases described
rath-
fundamental
er,
finding
petitioner’s
supports
for a
fail-
the evidence
that Mr. Bre-
establish an excuse
habeas
develop
state court
cheen and his
made a
ure
a material fact in
trial counsel
tactical deci-
-
Keeney Tamayo-Reyes,
forego
proceedings. See
sion to
the introduction of additional miti-
1715, 1719,
-,
-,
gating
proge-
112 S.Ct.
118
evidence. Because Lockett and its
U.S.
Townsend,
(1992) (overruling
ny
only
part
proposition
L.Ed.2d
stand
for the
that a State
318
not,
act,
317,
759).
may
by
judicial
S.Ct. at
statute or
"cut off in an
1363
“
hearing
required
appli
durally
ry
is
‘if the habeas
barred. The district court concluded
not
a full
evidentia-
cant did
receive
and fair
that
of
Appeals’
the Court
Criminal
decision
court,
hearing
the state
at the
ry
either
rejecting
postconviction ap-
Mr. Brecheen’s
proceed
of the trial or in a collateral
time
peal of
claim
this
rested on his failure to
Church,
(emphasis
ing.’”
B. develop a claim of assess and ineffective counsel, coupled fact Mr. Brecheen next claims the dis assistance of with the finding proce- may require opportunity erred in trict court this claim that such claims (10th "Explicit implicit Mondragon, findings state trial Case v. 887 F.2d denied, 1989), appellate presumed S.Ct. and correct,' courts 'shall be to be Cir. cert. omitted); 2254(d), (1990) (citations § 28 U.S.C. one of seven unless 108 L.Ed.2d *20 2254(d) present, Lonberger, listed in v. factors section are or see also Marshall 843, 849-50, 431-32, the court concludes that state court S.Ct. 74 L.Ed.2d federal the (1983). findings fairly supported by are not the record.” c. facts,16 con- compel the develop additional to claims assistance that “ineffective clusion thrust of inef- primary The Mr. Brecheen’s collateral- may brought for the first time be argument is that defense counsel fectiveness 622; Osborn, An- accord ly.” 861 F.2d at mitigating present to additional evi- failed drews, indi- F.2d 1192-93. Osborn during sentencing phase his dence by the inter- that this result is dictated cates purport- Trial counsel’s trial. ineffectiveness factors: need for additional play of two investigation his edly stemmed from lack of permit fact-finding, along with the need to preparation mitigating as to the available coun- separate petitioner consult To demonstrate this lack of inves- evidence. objective in appeal on order to obtain an sel Brecheen, attempt tigation, in his performance. as to trial assessment counsel’s relief, postconvietion numerous obtain filed Osborn, F.2d at friends, family, from and coworkers affidavits they appeared who contend would have represented Although Mr. Brecheen was testify they his behalf been called. on had appeal, a by separate counsel his direct on the state district court held an eviden- Osborn, After he distinguishing this case from fact hearing issue, tiary on this it concluded that: opportunity nonetheless did have an See benefit this determination merits, Appeals refused to for not practical effect because appeal, with ultimately process since Brecheen either state law his ing. Yet on however, given do not available at the counsel’s develop postconvietion Brecheen believe it is an of additional even having been any it concluded ground performance in the direct review denied after a additional facts II, 835 new appeal, evidentiary hearings are this on appellate petition, this provides counsel but raise this claim opportunity review hearing fact-finding, raised the merits P.2d at 119 n. rejecting the Court of Criminal ruling adequate claim was waived and his this claim on the an on direct level. had taken relating to trial is to force Mr. “independent” this when he filed after a hear- without the basis. The claim was claim, 1. While on direct He have the appeal. place, was, un- op. at 1-2 Order of Feb. the defendant and made dant Strickland at the er, causes the Court stances, conduct Time of trial counsel. (1984). In current counsel this opportunity to call option context of the was evidentiary hearing, (20th is but one falls below the Court is not convinced adequately represented. hindsight regarding so 10,1989, voluntary Judicial Washington, deciding [2052] discussed However, scrutinizing aid the then No. of the factors determine the defen- the standard District, mitigating witnesses. as decision to with his CRF-83-127, slip existing the trier of fact when viewed the Court defendant and L.Ed.2d 674 the conduct Oklahoma). evidence attorney circum- Howev- set forego which finds [668] agreed under This Hob- The district court with the state claim forfeited state law. adequate choice cannot court’s conclusion. The district court first son’s constitute ground controlling under case law that Mr. introduced state concluded Brecheen deprives mitigating during Mr. Brecheen of some evidence the sentenc- because namely, meaningful ing phase, guilt phase mitigating review assis- of his ineffective progeny incorporated claim. What and its that was into the sen- tance Osborn evidence tencing phase. to raise then found give opportunity Mr. Brecheen —the district court claim on trial counsel’s to limit collateral review —the Court decision away by mitigating intro- Appeals effectively takes amount of evidence to be Criminal Therefore, sentencing a reason- finding phase the claim we do duced at the waived. decision, barred, light procedurally especially not find this claim able tactical request forego accordingly, we turn to deter- Mr. Breeheen’s that counsel to the merits mitigating trial evi- mine whether counsel was ineffective. the introduction additional See, Osborn, 623; e.g., fact-finding assis- Beaulieu v. for additional on ineffective 861 F.2d States, (10th Cir.1991) § 2255 tance of counsel claims in the context of claim). United F.2d (noting the need when the record is insufficient
1365
(1994),
may
address the district court’s con- L.Ed.2d 435
dence. We
and therefore
not be
“
enunciating
legal
predicated
stan-
on
distorting
clusion after first
‘the
effects of hind-
Parks,
sight.’”
govern
(quoting
that
our review of this issue.
840 F.2d at
dards
1510
Strickland,
689,
questions
we
of law
Owens,
gating circumstances.18
F.2d
v.
882
'novo.”
States
United
(10th Cir.1989), quoted in
1493,
n. 16
1501-02
sentencing
of the
In the context
Whalen,
1346, 1347
976 F.2d
v.
United States
case,
agree
phase
capital
of a
we
with our
(10th
Haddock,
Cir.1992);
12 F.3d at
also
see
emphasize that “[a]n
sister
attor
circuits
Miller,
994,
955;
F.2d
v.
907
United States
ney
duty
a
a reasonable
has
to conduct
inves
Porter,
(10th Cir.1990);
14
at 558.
F.3d
997
tigation, including
investigation
an
of the de
challenge
“in
federal habeas
Accordingly,
a
possible mitigating
background,
fendant’s
for
judgment, a
court
to a
criminal
state
state
Dugger, 849
evidence.” Middleton v.
F.2d
as
that counsel rendered effective
conclusion
(11th Cir.1988)
added)
491,
(emphasis
493
finding
binding
of fact
on the
not a
sistance is
Wainwright, 787
(citing Thompson v.
F.2d
by 28
to the extent stated
federal court
(11th Cir.1986),
denied,
1447, 1451
cert.
481
Strickland,
2254(d).”
at
§
466 U.S.
U.S.C.
1042,
1986,
U.S.
107 S.Ct.
do not
that this
is boundless. To
contrary,
required
attorney
“is not
an
2.
investigate
long
all leads” as
as
decision
lead,
pursue
pursue
or to
particular
not to
a
a.
far,
particular
only
a
lead
so
reasonable
Bolender,
gravamen of Mr.
ar
under the circumstances. See
Brecheen’s
cases); Harris,
(citing
at
gument
the merits is that trial counsel’s F.3d
1557 & n. 11
on
Strickland,
(citing
at
performance during
sentencing phase
874 F.2d
2066-67).
lack
preparation
was ineffective due to his
S.Ct. at
)
{i.e.,
representation
prong
supplemental
18.
also asserts in
the first
Strickland
Mr. Brecheen
{i.e.,
necessarily proof
alleged
right
pres-
brief that his
waiver of the
ineffectiveness
Strickland).
prongs
mitigating
the first
ent
evidence
invalid
and second
additional
was
knowingly, intelligently
it was not made
because
view,
Lightboume
In our
from
the statement
below,
voluntarily.
For reasons enunciated
appears
Strickland
more consonant with
in that
relating
we do not believe that this subissue
inadequate
inadequate investigation,
tion,
prepara-
validity
purported
of the
vel non
waiver is
both,
not,
facto,
ipso
mean that
should
analysis.
appropriate to our
showing
counsel
"ineffective” absent
was
believe,
Therefore,
prejudice.
boume,
Light-
as in
circumstances,
petition-
that the
Bolender states
failure to conduct
such
that under
establishing
investigation may
that he
reasonable
render counsel’s
er still retains the burden
Bolender,
prejudiced
of counsel's
assistance "ineffective.”
F.3d at
as a result
failure
Sanders,
Bolender, however,
investigation.
Lightboume,
See
relies on
conduct
reasonable
decision,
("the
to conduct a rea-
Circuit
21 F.3d
failure
earlier Eleventh
for
fact,
perfor-
Lightboume
investigation
deficient
proposition.
sonable
mance.”).
constitutes
states that the
may
investigate
failure to
constitute deficient
case,
unpersuaded by
witnesses,
proposed
In this
we are
were also taken
argument
that his trial counsel
Breeheen’s
Although
may
into account.
others
choose to
inadequately prepared
investigated
differently,
do
that is not the standard of our
*23
sentencing phase
trial.
Our review of
Moreover,
review.
recognizing
fact-spe
evidentiary hearing
and the entire record
cific
inquiry,
nature of this
we believe our
supports
findings
in this case
of the
conclusion that trial counsel was not ineffec
that trial
district court
counsel did
fact
entirely
tive here is
consistent
pre
with our
prepare
present
mitigating
and
some
evi-
holding
cedents
that trial counsel was inade
sentencing phase.
dence at the
Mr. Bre-
quate based on
complete
his
her
lack of
counsel,
part
general prep-
cheen’s trial
as
investigative
Saffle,
efforts. See
Stafford
trial,
investigation
aration for the
directed an
(10th Cir.1994)
reasonable,
prerogative
not the
it is
by putting on additional
delay
proceeding
*25
the
second-guess it.
to
federal courts
jury,
instructed the
The trial court
evidence.
stated,
then,
rele
the
As we have
presence, to consider evi-
in Mr. Brecheen’s
trial counsel’s deci
inquiry is whether
vant
mitigation
present-
that was
relative to
dence
decision that
informed tactical
was an
guilt
sion
during the
on the defendant’s behalf
ed
of
circumstances
under the
was reasonable
not
the defendant did
phase of trial because
appropriate
Having
the
delineated
the case.
any further evidence.
present
to
wish
that
framework,
important to note
“it is
legal
preferable for
might
it
have been
While
“strategy” does
incantation of
‘the mere
interview Mr. Bre-
trial court to
the state
review; an
attorney
from
behavior
insulate
sentencing phase, as was
prior to the
eheen
present
not to
attorney
chosen
must have
counsel,
ad-
by trial
the evidence
suggested
having investigated
after
mitigating evidence
eviden-
during
postconviction
the state
duced
that choice
background, and
the defendant’s
trial counsel and
tiary hearing shows both
circum
under the
have been reasonable
must
opportunity
full
to
given
Breeheen were
” Bolender,
(quot
mitigating
attempt
persuade
in an
factors
one-sided,
mitigating
cant
evidence creates a
jury
spare
Mr. Brecheen from the
sentencing hearing.
non-adversarial
Such a
ultimately imposed.
sentence that it
Under
sentencing hearing
proper
undermines the
circumstances,
these
cannot
conclude Mr.
functioning of
process
the adversarial
deprived
Brecheen was
of his constitutional
erodes
confidence
the outcome of the
right to effective assistance of counsel.23
Seidel, Right
case.” Ronnie
As-
Effective
Capital
sistance
Sentencing:
Counsel at
CONCLUSION
Fulcomer,
Frey
66 Tem.L.Rev.
of a
among
Review
death sentence is
(1993).
Ohio,
See Lockett v.
most serious examinations
court of law 602-06,
2954, 2963-65,
57 L.Ed.2d
given
ever undertakes. We have
exhaustive
(1978);
*26
973
ABA
Appoint-
Guidelines for the
and serious consideration to Mr. Brecheen’s
ment and Performance of Counsel in Death
claims, as have each of the state and federal
Cases,
Penalty
11.4.1(A)
(C)
Guideline
&
us,
preceding
recognition
courts
in
of the fact
(1989) (As
begins
soon as
capital
counsel
duty
that “[o]ur
to search for constitutional
case he or she “should conduct independent
painstaking
error with
care is never more
investigations relating
guili/innocence
to the
exacting
capital
than it is in a
Burger,
case.”
phase
penalty phase....
and to the
The
785,
EBEL, Judge, dissenting. Circuit penalty if such evidence had been before it. my This is a difficult case and We have Sleeper’s representation decision to to decide if dissent is a I agree close one. with much of fell below the standard of Strickland v. majority Indeed, what opinion says. 668, my Washington, 2052, 466 U.S. 80 1990) ("[A] Because we find no constitutional in analysis error cumulative-error should claims, of Mr. reject Brecheen's only must also evaluate effect matters determined to error, final claim of cumulative error. See United be not the cumulative effect [of non-er- Rivera, 1462, (10th rors].”). States v. 900 F.2d 1471 Cir.
1371
and,
so,
performed up
required
to the standards
(1984),
Bre-
sel
if
whether
L.Ed.2d
by
consulting
the Constitution
thereby prejudiced.
eheen was
making
put
client and
the decision not
is,
coun
on further evidence. That
it is the
by
Performance
Counsel
I. Deficient
that is
scrutinized
sel’s conduct
performance
counsel’s
prove
To
majority finds
ineffective counsel claim. The
deficient,
bears
the burden
Brecheen
put
on
support for counsel’s decision not
v.
two-prong test of Strickland
meeting the
further evidence from the fact that Brecheen
2052,
668, 104
Washington, 466 U.S.
S.Ct.
mitigating
be
asked that no further
evidence
Strickland,
(1984).
L.Ed.2d
However,
majority
as
advanced.
ob
(1)
must show:
that a defendant
Court held
served,
approach to be taken at the miti
performance was deficient”
“that counsel’s
many
gation stage
capital
of a
trial involves
prevailing professional
with reference
complicated considerations be
technical and
(2)
norms,
perfor
“that
the deficient
yond
understanding
experience
687,
at
prejudiced the defense.” Id.
mance
weight
given
The
to be
most clients.
Rivera,
2064;
States v.
104 S.Ct. at
United
put
on
or to
chent’s wishes either
evidence
Cir.1990).
(10th
Preju
900 F.2d
putting
depend
on
will
refrain from
evidence
demonstrating that “there is
dice is shown
and on the
on how well informed the client is
that,
for coun
probability
but
a reasonable
adequacy
lawyer’s
to the client
of the
advice
errors,
unprofessional
the result
sel’s
Singletary,
regard.
in this
Blanco v.
different.”
would have been
proceeding
(11th Cir.1991)
(“lawyers
F.2d
694, 104
2068;
Strickland,
466 U.S.
S.Ct.
may
blindly
follow” clients’ commands
Rivera,
to be like the acted and did. CONCLUSION questions. He would ask them He wanted Oddfellow, be a Junior but we moved and we I am firm left with the belief that there is lived so far out that carry we could not him that, probability a reasonable but for coun- meetings. to the errors, unprofessional jury sel’s Robert was a cub scout and made all have concluded that the balance of the one medals, and I was his den mother. aggravating When his mitigating factor and the evi- go dad and I would off on an Therefore, Oddfellow dence did not warrant death. I meeting, ready he was willing respectfully must take DISSENT.
care of the smaller children. His dad and belonged Legion to the American and the APPENDIX Legion Auxilliary, American and he liked to Exhibit 1No. hang Legionaires around the as much as he could. State of Oklahoma big garden. We raised a And if there was County of Carter garden, someone that didn’t have a he would always vegetables want to take to them. He BRECHEEN, age MAMIE of lawful generous way. was so He would share duly oath, first upon sworn do anything that he had with those that were swear and state as follows: without. I am Robert Brecheen’s mother. Robert always Robert was helping interested is the sixth child of ten children. always me to can and he wanted to see that gave any Robert never me trouble. He the flowers were great tended to. He took a always willing anything was to do every- pride deal of in our Every home. blade of thing I asked him to do. gave And he never grass away had to cut be from the fences. If any always his dad He was trouble. interest- animal, he would come across a hurt bird or learning anything ed in daddy new that his put he would take it cage it in a feed and doing. got was along Robert with all of his water it and take get care of it until it could brothers and always willing sisters and was on its own. Then he go. would let it He help anything they them do had to do. anyone would never hear of robbing a bird’s sick, If one of them always Robert was nest. squabble He would even with me the one who wanted to wait on them. Even about the nesting muddobbers in the eaves of child, nothing when he was but a he would say, mother, the house. they’ve He would get up night at all hours of the to see after gotta place have a to build their nest. his brothers and sisters. If he ever made He raised a calf for the 4-H. He would any money, always brought he it home to me. literally go sleep out and with that calf at always Sunday He wanted to have School night. parties at our home and he would do jobs, kind of mowing eemetary, odd my cut- gilliam When husband became ill with brush, ting fences, (a helping to picking *30 build numbing brarre disease caused severe up pecans, money infection), to make extra for these staff I called Robert and told him parties. always He would ask if his dad he he would have to come and take his dad to lowboy could use his and could Anthony’s Hospital he have two St. in City. the That was opportunity
I would have welcomed the to jury Robert and I tell about would wel- up us and there in 1983. Robert went today. But opportunity come that I was room, stayed but not leave his dad’s he would testify asked to at the trial. never home, we came right with him. When there just person Robert is not kind of to of in He care moved with us. took Robert anything. have killed He couldn’t stand the bath; had he daddy. He seen that he a his sight thought and of blood couldn’t stand hold into the with him and get would bathtub anything All of my hurt or killed. kids ask up him. He would him while he bathed were raised in the church and raised to know hungry through day, if he was his dad all wrong from and would right Robert not steal give to him whatever thirsty. He wanted certainly would kill. and he not time, a had taken he At this Robert wanted. dad, so could be with his
leave from work he saieth Further affiant not. day night. Mamie Brecheen /s/ Mamie Brecheen any mon- I that Robert did not need know robbery/mur- sworn before ey Subscribed and to me this at the time the so-called $2,000 day my April, had in check- 27th der he over because to given He ing at time. had account Billing Karen /s/ him, he a keep to for because had such me Notary Public tendency give anyone to who needed mon- to My Expires: Commission ey- 2/22/89 any if he at His had told him that ever dad Exhibit No. any money, time to let us know. We needed back, pay it I know he knew Robert would so of Oklahoma State any money. I this to did need told not County of Carter him attorney and even showed Robert’s trial income account. It was Robert’s the bank LAROCHE, age lawful MAMIE money every two tax he saved return duly upon do being first sworn oath swear paycheck. He been sav- weeks from his had and state as follows: ing money long for a time. He did draw I am the of ten Brecheen children. oldest at money get a set out to us television brother; sixth my he is the child. Robert Christmas, control, there with remote but Robert years I was old when is born. $2,000 of this was over at the time still very quiet a child. He would Robert was money to happening. part of the We used laugh to lay in his and coo and himself. crib attorney. pay for Robert’s trial part time. was I took care of him He Sleeper only spoke to Robert twice He very loving playful Mr. child. liked a me trial. He never talked to all and would sit for play before the with trucks of kinds up hours, until his except making push one He didn’t tell us roads and trucks for time. have criminal to occu- day trial that he was not a and down his roads. He would play did Sleeper to tes- his older brother lawyer. py never asked me himself as much, a Rob- very he was kind of loner. tify my naturally I have been as for son. would kids a lot because there were willing testify. I liked to ert liked school more than nose got he broken play kind with. Once jury a chance tell the what have had hit boy going a was little school Why, Robert wouldn’t even because of a son I had. stepped squirrels, girl large with a rock. Robert even a go kill his dad mess of girl hurt. getting little from keep though them and Robert front his dad wanted done, Robert’s nose he was The rock broke was and would have knew his dad sick days. hospital Robert was do, for two just anything his dad asked about did Robert that grade that time. I told squirrels kill 4th But he couldn’t those him. thing to do very foolish thought that was told his dad he would reason. He Snookie, boy “But get squirrels for him. and Robert said find friend to *31 if
pressed fighting someone was and he could up. not convince them to make He would girl, going little and I couldn’t let to hurt that always try family get the try members to it happen.” to talk out their differences. my Springer moved to Okla- When folks little, the When kids were there would Comanche, homa from Robert was about 13 always squabble some kind be about not years person never seen a old. He had black candy. Robert, enough always who had in before. But the school Graham was made job money, some kind odd to make extra fact, up entirely almost of blacks. In Robert bought huge bag candy a so the kids would boy only was in the Never- the white school. quit fighting. candy There much was so theless, right prob- no Robert fit and had began get the kids sick from eating candy. making played lem He friends. basketball said he candy Robert wanted them to eat good and became friends with all his class- they they until were sick so would never mates. fight candy again. over high from school graduated After Robert many were living There kids in the began working, help and Robert would often area, Graham but Robert attended church at house, parents by working out around our or Baptist regularly Milo Church and was active by getting things they for our folks that getting going. get activities He would all needed. he organize kids could find and would school, joined high After Robert the Na- They for activities them. would borrow tional Guard and transferred to Airborn truck, hay they someone someone and else’s National Guard in Pasadena Texas. He was go hay would all on a get ride. Robert would paratrooper. working a He was also at full a preacher or some other adult to drive job time at that time. saw Robert fre- they and then would at meet someone’s meat, quently bring at that time. He would Everyone’s house a for weenie roast. moth- chips My dips pop. and and beer and hus- weenies, pack er would donate a some my my grand- band and I and three kids and buns, they good and would have time. parents barbeque. would have a Robert cemetary Robert would mow the lawn for $10 provide majority would of the food for or He $15. would come home and want to get-togethers really enjoyed these and we all white, party have a for the Black kids. or it each company. fishing others’ alsoWe went Robert, spend didn’t matter to he would spent just and visiting a lot time and money barbeque own on some kind playing cards. activity. weenie roast or some Every kind of community Robert returned to and kid be Graham would invited. began working Pride for Well Service. big Robert loves football a Wash- always ington daughter
Robert came to eat Redskin My the Christmas fan. was a and Thanksgiving turkey Cowboy Tammy our house. He Dallas fan. He and would night would spend good naturedly come over the games. before and fuss over football He night. rageous We would come would make out over to mother’s with bets her and holidays, usually he always always pay but would come would lose. up, He would my bet, over to supper my though Tammy house later to eat when won the Robert house. pay. never her asked peace very
Robert was a maker. loving Whenever the Robert was and loved children. girls tiff, get try would into all nephews Robert would He loved his nieces and to ease disagreement talking spend each would all of fortune on them for trying up to convince them to make Christmas. He would come then over to stop fighting. peace spend playing Robert still is mak- thehouse hours with the er. keep everybody Still happy tries to even like kids. Sometimes looked he came to from death row. kids visit the more than the adults.
Robert was violent go never and disliked ar- Sulphur picnic We would often for a guments and fights. get day He spend playing de- would Robert all
Exhibit No. 3 kids, softball, kinds of chase and all State of Oklahoma up. make games he would County of Carter depressed, Robert anyone sad or If was FREEMAN, age lawful LOYCE M. of try to them be the first one to cheer would oath, duly upon first sworn do and any of the partiality never to up. He showed and follows: swear state as always themequally so treated all kids and my Robert older and I Brecheen is brother any bickering. there wouldn’t be my I have known him all life. and Robert deathrow, Once, was on he while Robert always very to have been close. went We one of the some his allowenee to traded Sunday together. church and school We inmates, made flowers. crocheted other who Association) (Christian were involved in C.A. bouquet a of crocheted He made each of us participated regularly. rallies and Robert bought a ladies and flowers Robert bottle many get would see how kids could We we they would cologne spray to on the flowers so up rounded to come to church. You would good. smell many get you awards for how could kids bring to church we won awards. and several thoughtful, generous Robert was and is a youth Baptist at Robert was director Milo hard person. kind He worked and hearted orga- for years. two Robert would Church family and never help all his life to out activities, youth kinds as nize all such complain. would roasts, youth sings hayrides, weenie and Gary me Sleeper, asked lawyer, Robert’s orga- it all. organize Robert would Robert trial. Of testifying in his behalf at the about year program an Easter one about the nized course, him. Mr. I have testified for would called Lives”. resurrection Christ “Christ my I emo- Sleeper asked me if could contain everyone enjoyed biga it. It was success testify my hus- enough asked tions to night. organized youth would meet He a We testify. work We get if he off band could Wednesday night every one month. On on But Mr. thought testifying. we be would Night, would have a service Youth we every person he could Sleeper said that for youth organize it it on. put would Robert, say things put good on to about sermon, sing hymns. Rob- We would have a say put on Robert prosecution would more to part every- assign a different for ert would So, Sleeper put not to bad. decided was put on the one and we would service. Robert. any testify of us on stand to for family, very were all close. We As we p.m. 7:00 guilt stage ended about played togeth- always worked hard and hard stage Everyone went to eat and the second something that was Whenever there er. night. late started done, it into be Robert would make needed to I to testi- would have testified wanted get could most done a contest to see who testify I fy Robert. I would now because always willing help the fastest. He was got a and I believe fair trial don’t Robert or work that needed out with chores any mur- Robert commited don’t believe that usually like doing, and he make it seem could person it is not gentle He is a der. kind fun. living thing. hurt a in his character person. He was very is a sensitive Robert saieth not. Further affiant help always I him to there whenever needed Mamie Laroche /s/ falling I out my problems. If with had me Laroche Mamie boyfriend or fight with momma or a down, feeling stand Robert couldn’t was me this sworn to before Subscribed and cry. walk out to “feed me would see We day April, 27th where creek. That was chickens” across the Billing Karen /s/ Robert talking. our would do a lot of Notary Public me, always cry, don’t it will be tell used My Expires: Commission always say be okay. He there would would better, boyfriends, your grades get will other 2/22/89 paid house give for. He knew would money him always if he needed it. He paid problem, try whatever the he *33 me back whatever he had I borrowed. know that it comfort me and convince me would that Robert would not killed have another get better. money. man good job for He had a at the played Robert basketball and he with loved Company time with Lincoln Rock and was goodbasket- He school team. was a real planning getting bills, on He married. had ball. played pasture He also baseball but paying he was them. He didn’t need in the summertime. All of would us be out money that bad. there playing baseball. I know Robert that would not have killed a always everyone Robert has been nice to grew man. He up had morals. He in the he ever I don’t knew. believe he ever met a right church and he wrong. knew from We stranger. got myme boy He first date. The all did. is a real spirtual community This day, was class at and Robert’s school one and all taught way. we were the same Robert he had told me someone he wanted me to meet. IWhen asked him who it was At all happened, this time Robert was me, well, hope you told I I Robert said living at most of stayed home the time. He go don’t to out want me with him. It was a with a some of friend the time because of his boy go I I knew and didn’t want to out with job. He would ride to work with him. But him, him. Robert me to to told be nice to be he would come home work after to see if him, courteous to because Robert liked him. daddy anything. needed He would walk dad- So, dating, we went out and when we started dy, him, and bathe be with him and take care Robert was thrilled about But I really it. of him and momma. Robert, did it to as a favor because he had asked me to. Gary all Sleeper, We asked Robert’s trial lawyer, to us testify call to the stand to for always good Robert was kids. with He Robert as character witnesses. We were all they loved kids and loved him. He was during there most of time the trial and always them, playing taking places them Sleeper could have testified. Mr. said that buying toys all treats and for his nieces for person ever one he call say could that nephews. younger All the kids loved for good Robert boy, was a old the State would Robert to them take with him to feed the call say sorry boy. 50 to he was a old So he exciting cows. That was real for them. said anyone. figured he wouldn’t call We time, storm, during a big One ice Robert Mr. Sleeper lawyer was the and he knew Phillip, nephew took with him out to feed doing what he was had and we never had pond the cows. was covered with ice. law, trouble with any- so we didn’t know hold, First he tested it make it would sure thing. family But all of the would have done did, Phillip and when it Robert and went anything help at all to if Robert we could. skating pond. Phillip all over remem- they day. the fun bers had that I would opportunity testify welcome the for Robert now. always Robert looking bargains was for things to make our lives easier. He Further affiant saieth not. good especially took care of us all and mom Loyce and dad. M. Freeman /s/ Loyce M. Freeman I don’t commit believe Robert would robbery really he didn’t money. because need me, Subscribed and sworn to before any problems, Robert if he knew that had he day April, 27th 1988.. my sister, Joyce, any could come to me or Billing Karen /s/ help of us. He we would him. knew Robert Notary Public money had borrowed from me before— $2,000 savings. he knew that I had He —and My Expires: Commission just also knew any that I could about borrow money amount of I my wanted to because 2/22/89 well, going get he
stuff. He said remote them with a control so neither T.V. No. 4 Exhibit get up them have to to turn the State of Oklahoma get channel. he asked Then me what time, kids. have at the didn’t children County of Carter get presents he for all the but wanted SKELTON, age of lawful M. JOYCE generous He nephews. nieces and was so oath, upon duly first sworn do spent money buying presents a lot of on and state as follows: swear family. for his *34 I my older brother and Robert Breeheen is time, hog daddy bought One momma and a my him life. known all have put up to the butcher to meat for freezer.. all the idea. momma and We hated And I who done most and were the ones Robert daddy said, kill hog, it’s time to that because would work around the house. We gotta they we Robert down eat. So sent wood, yard and do other chores split mow the hog, there to kill the and come back and he in were Future around the house. We asked, you hog. kill momma did that Robert 4-H America and Club. He had Farmers of no, momma, hog, I looked and I said at that County put that he in the Fair a steer do to can’t it. momma had to be the one So He the steer there at the fair Ardmore. sold always go hog. kill that down there and We give man money pay to the who and used he kill that teased Robert because couldn’t money and kept steer him the for the hog. how he made his extra remainder. That’s sheep money I had and Robert time. against pop and Momma and kool-aid sheep. help groom me He would would they buy it for us kids. But Robert wouldn’t people tips for on go around and ask other money and would and make some work extra sheep and them groom to make how go flag to the road someone he would out and help Loyce hogs with her prettier. He would up carry down them to us to the and ask fair, in it. every all and we were bring pop. store he would us a and everyday. I His played all in the summertime attended Robert’s trial We baseball go testifying at lawyer to me pasture. Robert would out and never talked about in the type, I enough quiet so could I am the but pasture mow the far back we Robert’s trial. daddy if I had momma would trial play baseball. When and have testifed Robert’s going peo- groceries, thats We were church go get into to been asked to. would town church, ple and raised and play. we would And was how we were when wrong. right to know from kept eye on us kids. all were raised Robert gone that house Robert never have to could play time to didn’t have a lot of be- We My and I had people. to rob those sister to there was a lot of work do. There cause money have amount and could borrowed cut, yard and garden to to was wood and And Rob- money might have needed. he tend, animals to care for. ert that. knew yrs homebody I was old. I I was a until my put myself I tried best to have goor much. Robert used to didn’t date out step by step, gone I have place, and Robert’s try encourage get me out. He would to to could just possible if it is that Robert see getting boy- getting into out and talk me always thing, I come have and done such friend, take out dating. He would me negative. just know Robert could up I himself, I riding the town. around When has convicted what he been have done married, I finally met the man that Robert doing. good told I had made a choice. knew and me I wanted things would have These are Christmas, year hap- all At before jury about Robert. tell that my house. He asked pened, Robert came to saieth not. Further affiant daddy get momma and me what Joyce M. Skelton daddy I him mom were Christmas. told /s/ Joyce M. Skelton buy they had much for because so hard very Robert and I were close. We were age close in tomboy since I was a Subscribed sworn to before me this football, played liked to basketball and other day April, 27th games. I problem, When have a would Billing Karen /s/ go to usually help Robert he could Notary Public always easy wasn’t me. He on me and would My Expires: Commission speak harshly often get me tome straighten up. always He treated me well 2/22/89 and with love. Exhibit No. 5 I graduated high school, When from Rob- all way ert came from Houston to me see State of Oklahoma graduate. My other brothers and sisters County big didn’t think was a Carter deal and didn’t have much time to a fuss. make But Robert DURHAM, THERESA DIANE of law- brought me jewelry which I box still have age duly sworn, oath, ful first upon *35 today. day very special He made that to me do swear and state as follows: and I forget will never it. my Robert Brecheen older and I brother I testify was never asked to but I would my very have known him life. a all Robert is I my have if had had the chance. Robert is person. honest has He never been a selfish brother and I love him I and know he would person. respects the feelings He of others. not ever hurt being. another human I would type He is the person help who wants testify if now I jury could and ask the they others if hurt or in are need. Robert my spare brother’s life. always very was well liked and had a lot of sayeth Further affiant not. loving friends. He happy was fun and and everything anyone shared he ever had with Theresa D. Durham /s/ generous time, that needed. He was with his Theresa D. Durham money property. and Subscribed and sworn to before me this young Robert was a sensitive man who day April, 23rd time, anything hated to hurt. see One when Billing Karen /s/ was I about 13 and Robert was about he Notary Public back, hunting. went deer After got he a My Expires: Commission friend got asked him if he had a deer. Rob- 2/22/89 no, ert said that he had seen a buck deer and enough it
that was close for Robert to look Exhibit No. eyes. his gun into Robert said he his had ready dear, and was to shoot the but instead State of Oklahoma cry Robert started to and was not able to County of Carter pull trigger. He described incident detail, telling looked, me in how the hill LAROCHE, DAVID of lawful age and how the deer looked and how he felt being duly first upon sworn oath do swear time. Robert had an never interest in hunt- and state as follows: ing after that I only and believe that was I known have Robert Brecheen for over 23 time Robert went hunting although ever years. brother-in-law, my He is I and have hunting passtime was a popular among boys opportunity had grow him up. to watch age. Robert, I the time have known I never argue
Robert never fight liked or temper saw him lose his and always he was anyone just away and would as soon easy-going. to walk young Even when he was fight. from a It play didn’t bother him. I never he would football with some of the older temper. him saw lose his He guys. was mellow games get pret- Sometimes the would easy going anyone ty and didn’t rough. like to see A lot young get kids would mad fight argue. got them, when the wind out knocked but my I
Robert Brecheen is uncle and have my known him all life. just get back shake off Robert would having of Robert game. I never knew in the loving person. fun Uncle Robert was a real him a police or of trouble with always good He was to me. Whenever Rob- I knew disciplinary problem in school. never usually bring would ert would visit he some very Robert. He was anybody to not like candy kind of or treat. He would take us to many had friends. young man and likeable Sulphur to the National Park where we family many times. helped out Robert our just picnic, swim and have fun. He particular was after I had had a time in ONe joke try with us and would tease I for a in 1977. was off work heart attack throw in the water. us financially having a hard we were while and always good was in a mood Uncle Robert bought a 30-30 rifle from me. time. Robert hardly anyone. I him ever saw mad him, get rifle for he told I went to When someone, If he ever was made at he would that he didn’t like keep me to and said .it just joke of it. make a out hunting. He had guns didn’t care for simply help us out. bought the rifle big fan and would Robert was football on an oil Sundays I with Robert one time worked over to our house on for din- come my supervisor for about 6 rig. Washington Robert He liked the Redskins and ner. time, I him to During that observed months. Cowboys. I liked the Dallas We would al- saw him very hard worker and never be ways get into discussions about who was the temper. lose his best football team. We would make bets on *36 won, games if I and he would have to teenager, a he would do When Robert was iron his shirts or do some other kind chore money. jobs community for extra odd won, pay him. But if I he would have to for money always spend part of the on He would money. always paid nearly he me He and niece, Tammy. He would nev- treats for his always I almost won. candy went broke because bringing er come to our home without hardly also told all us He ever won. Robert for the babies. give money every A kids that he would us for attorney by any and I was never contacted nearly we made in school. He went broke testify in court on Robert’s behalf asked with that too. why I could understand Robert and never any lawyer call character witnesses. did not me, sister, time, my Deb- One Robert took testify if glad I have been I had would friend, Monroe, bie, my Michele to Ard- today if I it testify been called and would shopping. We went to more to do Christmas necessary. were and Robert cashed the Stubbs Western Store sayeth affiant not. Further looking pair a paycheck. Robert was for going my LaRoche for me which was to be David of boots
/s/ present. David LaRoche Christmas to before me this Subscribed sworn stores in Ardmore and We went to several day April, 23rd 1988. gone day. were late were almost all We Billing Karen /s/ having such a coming because we were home Notary Public lost track of the time. good time that we parents weren’t worried because Michele’s My Expires: Commission they they knew she was with Robert 2/22/89 care of us. knew he would take Exhibit No. 7 fun He a lot of to be with. Robert was having State Oklahoma always joking good a time. was was to know when he It was sometimes hard County of Carter play with us all. would tease and serious. He LAROCHE, of lawful TAMMY LYNN just always about there for duly upon oath Robert was age being first sworn do Although I never anyone who needed him. swear and state as follows: any got along trouble at all. Robert everyone. I problems, had serious know that I murder, Before Robert was arrested go anytime he
could to Robert and he would getting had come to me and said he was help ifme he could. going get place married and was over in regularly I write to Robert now and he Sulphur put a trailer on it. He said he me I have him at McAl- writes back. visited going was rent baekhoe and he wanted ester several times. dig septic me to run it to tank. I I said only junior high I would do for him. school when on, going I Robert’s trial was but would have I by anyone was never contacted about testify glad been trial if I Robert’s could trial, testifying anyone if Robert’s but had jury I have. would have wanted to tell the me, glad asked testify would have been person that Robert not the kind of to have testify today and I if oppor- would I had the they commited the crime said he committed tunity. they only if and that knew what a kind and Further affiant saieth not. was, good person they Robert then Dwight A. Anderson /s/ they know that he could have done what Dwight A. Anderson said. Subscribed and sworn to before me this testify I would if I opportuni- now had the day April, 25th ty- Billing Karen /s/ Further affiant saieth not. Notary Public Tammy Lynn LaRoche /s/ My Expires: Commission Tammy Lynn LaRoche 2/22/89 Subscribed and sworn to before me this Exhibit No. 9 day April,
23rd Billing Karen State Oklahoma /s/ *37 Notary Public County of Carter My Expires: Commission I, ANDERSON, THEODORE of lawful age oath, being duly upon first sworn do 2/22/89 swear and state as follows: I was the custodian at Graham School. Exhibit No. 8 years For three Robert Brecheen worked very with of Oklahoma me. He was a hard State worker. He do, would do I whatever asked him to clean- County of Carter ing, mopping, waxing, painting, repairs, any- thing. gave He never no trouble of kind. I, ANDERSON, age DWIGHT A. of lawful always good job. He worked hard and adid oath, being duly upon first sworn do depend I could on him. swear and state as follows: I was shocked to hear of Robert’s trouble I have known Robert Brecheen since his day and still to this I don’t it. believe family Springer. moved from Comanche to attorney Robert’s never contacted me or was, younger He was I much than but we testify asked me to in his I behalf. would became friends. He would come our willing testify have been because Robert my family. house and visit with He was a good gave greatest was a kid. He me the friendly guy very and nice and I was sur- respect, glad and I would have been to talk prised to hear that he had been arrested for willing testify for him. I would still be murder. I cannot believe he committed such given opportunity. Robert if I were friendly. a crime. Robert was real We go over to black clubs and there wasn’t Further affiant saieth not.
Subscribed and sworn to before me this day April, 27th Theodore Anderson /s/ Theodore Anderson Billing Karen /s/ Notary Public and sworn to before me this Subscribed day April, 25th My Expires: Commission Billing Karen /s/
Notary Public 2/22/89 My Expires: Commission Exhibit 11No. 2/22/89 State Oklahoma No. 10 Exhibit State of Oklahoma County of Carter County of Carter I, ANDERSON, age GILBERT of lawful being duly upon first sworn oath do ANDERSON, CLAUDETTE of lawful swear and state as follows: oath, duly age upon first sworn do and state as follows: swear I through my met Robert Brecheen broth- I first met Robert Brecheen 1969 when ers who went to school with him. I never I worked as a teacher at Graham School. anything knew bad about Robert. He was higher grades taught in the Robert was friendly, loving, known fun working as a hard grades, the lower but often I was called into Everytime my fellow. I saw Robert with the other his class to relieve teacher. Robert brothers, they always laughing, joking were always very respectful to me. While enjoying company. each other’s might try get away of the other kids some substitute, something they had a when I never knew Robert to be violent or just always Robert never did. He would do any type kind of trouble. He was the whatever was asked of him. person everyone, who was a friend black anyone and white alike. I never knew who Robert often came our home to visit didn’t like Robert. us, family. play with our He would eat with really friendly boy. with our kids and was during I was never contacted Robert’s trial really helpful anything He was and would do testifying about as a character witness for help any way out that was needed. *38 willing I Robert. But would have been to very surprised I to hear of murder testify I charac- as to what know of Robert’s just charge against really Robert. I couldn’t if I ter I had been asked to do so. would be believe it. glad testify opportunity. if I to now had being type I don’t see Robert as violent not. Further affiant saieth person per- who could have killed another son. Gilbert Anderson /s/ Anderson Gilbert attorney
I contacted or was never testify asked to Brecheen as a Robert and sworn me this Subscribed to before asked, character witness. If I had been I day April, 23rd 1988. glad testify would have been Robert’s testify willing I behalf. would be Billing Karen /s/ time, if asked to do so. Notary Public Further affiant saieth not. My Expires: Commission Claudette Anderson /s/ Anderson
Claudette 2/22/89 friendly, always
Robert. He was so he would up you come and talk to and he was a lot of Exhibit No. 12 basketball, played fun to be around. We State of Oklahoma fishing, talking. Every went and did a lot of Robert, stop time I would see he would County of Carter talk me and with visit. I, BROWN, age being of lawful OTTO Robert would often come to our house to oath, duly upon first sworn do swear and mostly just visit. We would sit around and state: talk about whatever was on our minds. I first met Robert Brecheen when he be- n very surprised I was hear Robert my I gan go to school with kids. would charged had been with murder. I never school, ballgames him see around the could anything believe Robert would do so on. friendly, smiling, like that. Robert awas reliable, friendly, respectable Robert was a happy person. I never saw him lose his person. good my boys. He was friends temper get fights anyway or behave in our home. He would come over to He was that was violent. It is hard to believe that always willing help my pigs me collect got Robert was convicted and sentenced to they got when loose. death. very surprised I was when I learned that testify No one ever asked me to for Robert just arrested for I Robert had been murder. trial, so, at his but I would if I have done had though I couldn’t believe it. never Robert testify been I hearing asked. at a type surprised to do violence. I was also today, if I could. given that he was convicted and the death Further affiant saieth not. penalty. Larry D. Brown /s/ I would have testified as a character wit- Larry D. Brown Robert, it, I ness for if had been asked to do Subscribed and sworn to before me this but no one ever contacted me about it. day April, 25th now, willing testify if would be there were Billing hearing. Karen /s/ Notary Public Further affiant saieth not. My Expires: Commission Otto Brown /s/ Otto Brown 2/22/89 Subscribed and sworn to before me this Exhibit No. 14 day April,
25th Billing Karen /s/ State Oklahoma Notary Public County of Carter My Expires: Commission BROWN, age LILLIE of lawful 2/22/89 oath, duly upon first sworn do swear and state as follows: *39 Exhibit No. 13 I first met Robert Brecheen when he went State Oklahoma my to school in with Graham kids. Robert very friendly and would often come to County of Carter our house. He would come over and sit and I, BROWN, age LARRY D. of lawful and school, fishing talk with me about or whatev- oath, being duly upon first sworn do swear er was on his mind. Whenever I would see and as state follows: town, always him about he would come over I I met Robert Brecheen at Graham School. and visit with me. loved Robert. He was Robert, years always polite I was a few but we and courteous and never ahead of help became You like friends. couldn’t but trouble. person living thing.
another or He was a good person. easy go- real likeable He was when Robert was I couldn’t believe ing very generous money with I saw Robert charged murder. never with property. money If a friend had no way. in a temper or behave violent lose his they money, Robert had then both had mon- always had a smile for so nice and He was ey. always willing anything He was to share me. anyone. with glad testify at I have been Rob- trial, I contacted ert’s but was never I Lindsay was Robert’s boss for a time at I anyone asked to come to the trial. I him dependa- Well Service. found to be a now, hearing willing testify at a would be ble, working employee. Everyone hard liked opportunity if the came. working him. He had several others under good got along him and he was a leader and Further affiant saieth not. good well with his crew. He had control and Lillie Brown /s/ keep working by joking was able to them Lillie Brown goofing around with them. The crew wanted and sworn to before me this Subscribed they to work well for Robert because liked day April, 25th him. Billing Karen
/s/ very all We were shocked to hear that he Notary Public charged had been I murder. cannot My Expires: imaging Commission that he could commit a crime. such very tempered. I He was even don’t remem- 2/22/89 seeing get fights. him him ber ever even into No one ever contacted me to ask me to Exhibit No. 15 trial, testify for at his if Robert but someone State Oklahoma me, gladly had ever asked I would have spoken for Robert Brecheen. I would be County of Carter happy opportunity testify to have an as to his character. BROWN, age and JACK E. of lawful oath, duly upon first sworn do swear sayeth Further affiant not. and state as follows: E. Brown Jack /s/ I have known Robert Brecheen since 1968 E. Brown Jack family when his moved from Comanche and began go together. we to school We to before me this Subscribed sworn friends, good together became ran around day April, 23rd Later, together. and went to town Billing place Hamp worked at the same Baker Karen /s/ Ray Well Construction Co. Clour Service Notary Public Lindsay Well Service. My Expires: Commission person. I to be a never knew Robert mean anything hurt never felt he would do 2/22/89
Exhibit No. 16
Exhibit No. 17 *42 very polite respectful
Robert was everyone. good He loved to have a time and Exhibit No. 18 he liked to see others have fun. He would Affidavit up gorilla in a at often dress suit intermission just at the I to entertain others dance. State of Oklahoma drunk or of line. never saw Robert out County of Carter testify I was never asked to as a character although at trial I witness Robert’s attended I, Brown, 2, Graham, Bertha P.O. Box OK every day. the trial I will- would have been age being duly of lawful first ing testify, willing I and would be oath, upon do swear and state that the sworn testify today opportunity. if I had matters set forth below are true and correct. Further affiant saieth not. I have known Robert Breeheen for about Doris Chatham years. my He went to school with son /s/ Doris Chatham quite and was around our home a bit. Rob- any good caused trouble and was a ert never Subscribed and sworn to before me this boy. day April, 23rd I I did not attend the trial but do not Billing Karen /s/ any believe there were character witnesses Notary Public I called for Robert. would have testified for My Expires: Commission I Robert but was never contacted Rob- 2/22/89 attorney. trial ert’s sayeth affiant not.
Further Exhibit No. 20 Bertha Brown /s/ State of Oklahoma Bertha Brown Subscribed and sworn to before me this County of Carter day April, 23rd I, Chatham, City, Verdell of Ratliff Okla- Billing Karen homa, /s/ age being duly of lawful first Notary Public oath, upon sworn do swear and state as follows: My Expires: Commission approx- I have known Robert Breeheen for
2/22/89 imately years. my Robert’s father and son, deceased, together who is now worked Exhibit No. 19 Company. Gulf Oil State of Oklahoma very Robert was a likeable kid. It would keep liking always be hard to from him. He County of Carter always had a smile on his face and was hard CHATHAM, age DORIS of lawful and working good I natured. knew Robert’s duly being upon first sworn oath do swear employer, Gene Smith at Lincoln Rock Com- and state as follows: pany I reputation knew Robert had the year I have known Robert since about a good got and hard worker who through my his trial. I met him before along people real well. Robert had husband, time, Verdell Chatham. asked me for work at one but I had no had, If openings. I I would have hired him fun-loving young I remember Robert as good I him because knew to be a worker. man. We often would see Robert and his girlfriend any the Arbuekle Ballroom. I He never knew Robert be trouble every anyway loved to dance and would dance almost or to behave in that was offensive to' great anyone. He was a dancer and could do never saw him drink hard dance. joe, Jones, two-step, eyed liquor, cotton Paul him never saw drunk. We socialized country and all the other dances. some with him at Arbuekle Ballroom and
er and he play would come to our home to games. cards and other board *43 always dancing joking Robert was and and I do not believe that Robert eommited having fun. murder as it is not in his character. He did P not in am sure Robert was need always have mean streak and I found money always at the time of the murder. I generous him to good. be If he had large money had a sum of on me and did at money money, friend had no he would that time. I know that Robert would -have share. money come to me if he needed and I would I attorney was never contacted Robert’s glad him. have been to lend testify or asked to aas character witness. I always good company I Robert was would him if have testified for I had been people, never saw him with low class testify asked to. I would now if I had the always respect- or hoodlems bums. He was opportunity. ful and courteous. sayeth Further affiant not. testify I was never asked to at Robert’s George A. Dean /s/ certainly I would so if I trial but have done George A. Dean had I if I been asked. would do so now had Subscribed and sworn to before me this opportunity. day April, 23rd I was shocked to hear the trouble Rob- Billing Karen /s/ very ert was accused of and find it hard to Notary Public believe Robert Brecheen could have commit- (cid:127) My crime, Expires: especially Commission ted such a since the motive supposed money. was to be for 2/22/89
Further affiant saieth not. Exhibit No. 22 Verdell Chatham /s/
Verdell Chatham Affidavit Subscribed and sworn to before me this State Oklahoma day April, 23rd County of Carter Billing Karen /s/ I, DEAN, 21109, Healdton, Box LOYCE Notary Public Oklahoma, age being duly lawful first My Expires: Commission oath, upon sworn do swear and state that the matters set forth below are true and correct. 2/23/89 I approx- have known Robert Brecheen for Exhibit No. 21 imately years, 20 to 25 as he attended school my younger brother and often in was State of Oklahoma Later, my our home. Robert worked with Also, husband in oil field business. Rob- County of Carter employed ert was with the Pride Well Ser- DEAN, GEORGE ANTHONY of lawful employed vice Co. while I was also there. age duly upon first sworn oath do I happy, found Robert to be a carefree swear and state as follows: young very popular man who was and well I approximately have known Robert for I liked. never knew Robert to be violent or years. I through first met Robert Jack any way way I cruel and there is no could Brown when the two' of them were school. cold-bloodedly that he kill ever believe could Ray Later I worked with Robert Clours someone. He was never even involved in the Well Service. arguments fights usual or as a kid. Robert courteous, I loving guy. knew Robert to a full always polite, be I was and kind heart- temper get never saw him I lose his or mad at ed. was shocked when I learned of the anything. played togeth- charges against We also basketball him and even more shocked if I give the fish to me would take them. guilty. I could not be- found when he was penalty when so man, death given young he was who
lieve Robert was a fine given a murderers are many very friendly helpful. other admitted I was con- never testify life sentence. tacted asked to as a character witness, but if I had been would have been during before or I was never contacted testify glad testify. glad I would be by any testify or asked to Robert’s trial opportunity. if now I had the glad have been attorney, I would *44 but contacted. I testify if I had been for Robert sayeth Further affiant now. trial. get a fair
know he didn’t Douglas Miles /s/ sayeth not. affiant Further Douglas Miles Loyce Dean /s/ and to before me this Subscribed sworn Loyce Dean day April, 23rd to before me this Billing Subscribed and sworn Karen /s/ day April, 23rd Notary Public Billing Karen /s/ 2/22/89 Notary Public Exhibit No.
My Expires: Commission 2/22/89 State of Oklahoma County of Carter
Exhibit No. 23 I, Johnson, Lynn age Gregory of lawful State of Oklahoma oath, being duly upon do and first sworn state as follows: swear and County of Carter in DOUGLAS, I met Robert Brecheen when we were I, age of lawful and MILES grade, family 7th moved to when duly upon oath swear being first sworn do Springer from Comanche. We became follows: and state as right away as he was the kind of friends for I have known Robert Brecheen about quickly liking person you could take a to. family years, he and his moved ever since very good Robert was a student and never I Springer was Robert’s from Comanche. school, any problems in or had with teachers from about 1971 until 1974. school bus driver any Everyone kids. liked with of the other time, any During that I never had trouble got along him he with them all. I from Robert. never heard Robert ever together. spent Robert and I a lot of time having anyone. for He was a harsh word together projects, on a lot of always helpful We worked polite respectful and was including building a bunkhouse on the Bre- During go would out on the bus. recess he property. built a rent house anyone cheen We also sweep out the bus without ever played Dan and Roberts. We help Velma asking him to do so. He often would was a together. Robert hard younger off the bus. basketball children and onto I talked a lot about worker. Robert and take the smaller kids across Often he would sports, mostly and football. We basketball the road. times, fishing mostly went a few but being I never heard of Robert trou- together after and in the sum- worked school law or at school. He often came ble with the and the up mertime. We cleaned the schools by my doing, I house and whatever work was money. grounds for a little extra yard gardening, or carpentry, work Robert could commit just helping I cannot believe that Robert right start to work me just in his just because it was not make- out. Robert would come if he had murder fish, thing. such a fishing caught any up personality to do been and had he
Exhibit No. 26 Robert and were involved 4-H Club State Oklahoma years. graft
for several We learned to trees County of Carter get larger pecans. in order to thenWe did demonstrations at other clubs to show how it NEEDHAM, age THERESE of lawful was done. oath, duly first upon sworn do swear and state as follows: and I
Robert were also involved track. long Robert was a distance runner and was I met Robert Brecheen when he worked pretty good. had a track We meet at least my with Lindsay husband at Well Service. year always once a and we looked forward to stop by my He would our house to visit with that. always happy go lucky husband. He was
fellow, jolly tempered. even I trusted him today my and would trust him life. Exhibit No. 25 helped Robert often out around our house *45 State of Oklahoma with whatever chores needed be done. He wood, help anyway would cut or out in he County of Carter always could. He was there when we needed I, MIMS, just by him. stop say Often he would age being JAMES of lawful oath, anything doing. hello and see if duly needed upon first sworn do swear and state as follows: glad testify I have been as a Robert, character witness for but I was nev- While Robert Brecheen was in the Carter by anyone er contacted about it. I would be trial, County awaiting happened Jail I to be glad testify possible. if now it were jail. placed arrested for DUI and in the same recognized my Robert me as he knew broth- Further, sayeth affiant not. er, jail overnight Alvie Mims. I was in Therese Needham /s/ long I Robert and had a conversation. He Therese Needham gave cigarettes me some and he told me he Subscribed and sworn to before me this did not commit the crime he had been ac- day April, 23rd 1988. cused of. Billing Karen /s/ IWhile was there I never saw Robert in Notary Public
any jailers kind trouble with the or My Expires: Commission guards. 2/22/89
I slightly had know Robert before this happened as he would come down on Main Exhibit No. 27 me, pool.
Street in Ardmore and To shoot friendly person. he seemed like a I nice State of Oklahoma any him in never saw trouble and I never way. saw him behave in a mean County of Carter NEEDHAM, Further, RICHARD LEE of lawful affiant saieth not. oath, age duly upon sworn do first Mims James /s/ swear and state as follows: James Mims I I met Robert Brecheen 1976 when Subscribed and sworn to me before Hampshire. to Oklahoma from New moved day April, 23rd began Lindsay I to work for Well Service Billing I and Robert and worked the same crew. Karen /s/ very Notary supervisor and was a Public Robert He was well liked all the hard worker. My Expires: Commission temper picked crew and never lost his or any fights. I never saw him to show violent 2/22/89 point to us at least once ways make it a visit older, usually at Christ- year after he was him knew to have I never tendencies. mastime. anyone. trouble with attorney by Robert’s I was never contacted often together and out of town We worked testify in I would his behalf. or asked working. were when we shared a motel room testify if I called glad to had been have been time, joke good have a Robert liked to testify I now if could. and would go out fun. We would around and have young man and I still good is a Robert good time. together pretty have a he it and I don’t think think he did get mad don’t get any fights, never saw him penalty. got the death should have anything. about Further, saieth not. affiant my parents would often knew Robert at a for several hours visit in their home Ray Needham Glen /s/ time, visiting. also just talking and He Ray Glen Needham the house with whatever helped out around me this and sworn before Subscribed needed to be done. April, day of 23rd for Robert at I would have testified Billing Karen /s/ so, I was if I been asked to do but trial had Notary Public asked to come to the trial. never contacted or Expires: My Commission testify now if I could. I would 2/22/89 sayeth not. Further affiant *46 Richard Needham Lee
/s/ Exhibit No. 29 Lee Needham Richard State of Oklahoma and sworn to before me this Subscribed day April, 1988. County of Carter Billing Karen /s/ Needham, age I Robert of lawful Glenn Notary Public oath, being duly upon do and first sworn Expires: My Commission as swear and state follows: 2/22/89 My family Hampshire in moved from New I met Robert 1976 to Graham Oklahoma.
Exhibit No. 28 my started when brother Richard Breeheen working Lindsay Robert Well Service. of Oklahoma State place people one of the first to visit our was County of Carter help get helped He cut and and us settled. helped dig septic tank firewood and our stack Needham, I, Ray of HC Box Glen always ready was hole and lateral lines. He Oklahoma, Graham, age being of lawful anything needed to be help to whenever oath, duly upon do swear first sworn done. state as follows: older, was Robert would Even when he in Hampshire I New moved from by time always our house at Christmas come went to work as a mechanic. Oklahoma and say and visit. hello I Breeheen when we both met Robert Lindsay Service. Robert worked Well if at Robert’s trial I would have testified very reliable rig operator. was a Robert was me, did. I anyone but noone ever had asked temper dependable and never lost his testify if I asked to do so. now was fights. always I Robert as a got into knew affiant saieth not. Further boy. good jolly, happy He was a friend Robert Needham Glenn /s/ always willing help if folks out needed. Robert Needham Glenn house, many helped He us times around sworn to before me this type helping any other Subscribed cutting wood or day April, doing. would al- of chore that needed He 23rd oath, duly upon first sworn do swear and follows: state as Billing Karen /s/ Notary Public I known Robert Brecheen since 1965 have my church with as he attended school and My Expires: Commission children in Milo. He often visited our home 2/22/88 overnight. I have never known Robert to any always quiet, cause trouble. He was No. 30 Exhibit very well-behaved and courteous. of Oklahoma State attorney I was never contacted Robert’s County Carter testify I or asked to at his trial. If had been Oklahoma, Pickens, Ardmore, Simel asked, testify in willing I would have been duly upon sworn age lawful first I Robert’s behalf. would have wanted to tell state as follows: oath do swear and jury that even if Robert committed this crime, person he is a kind and deserves a years, Robert Brecheen for I have known second chance. my were in school Gra- since he and son good boy, good together. Robert was a ham Further, sayeth affiant not. I any trouble. never natured and never Springer Dovie /s/ violent any him to be trouble or be knew Springer Dovie way. often and Robert came to our house me, and sworn to before Subscribed up help house to Robert work came to their April, day of 22nd always available to garden. Robert was Signature /s/ help I needed or whenever help me whenever Notary Public help. I asked for My Expires: Commission testify me to as a No one ever asked if I would have done so character witness but May 22, 1991 willing I would be I had been contacted. *47 I if I a chance. testify today for Robert had No. 32 Exhibit surprised I learned of Robert’s when type to Robert is not the
troubles because of Oklahoma State they say I think he he done. have done what it. I don’t think he did was framed because County of Carter sayeth affiant not. Further WRIGHT, I, TRAVIS of lawful LESSIE Pickens Simel /s/ being duly upon sworn oath do age and first Pickens Simel and state as follows: swear me this and sworn before Subscribed day April, 1988. 28rd Robert Brecheen and I when remember Billing Springer, they family moved to his first Karen
/s/ began my Robert near to home and Notary moved Public boys. my Robert would going to school with My Expires: Commission my play with over to our house and come 2/22/89 Robert, he was the boys. Every time I met every time. He was real nice. person same No. 31 Exhibit fight or lose him to be in a I never knowed Affidavit pitch always willing to temper. He was my boys help whatever chore in and with State of Oklahoma wood, unloading cutting doing, were County of Carter always polite or whatever. He was trucks very good natured SMITHERS, respectful. He was I, Box and P.O. DOVIE good mood. always to be in a Oklahoma, being seemed age and Springer, of lawful why could lead other individuals and that is I putting considered him into business. I very I when heard about the felt bad fact, three other businessmen here in Dallas just charge. I couldn’t believe that murder very myself who are successful were thing. Robert would do such buy planning completion rig ap- at an testify at I would wanted to Robert’s have $500,000 proximate put cost of Robert Robert, help I trial if I knew it would but into business. would We have done so had gladly I to do so. was never asked the bottom not fallen out of the oil business opportunity. testify now if I had the comple- at about that time and the need for Further affiant saieth not. rigs thought tion believe it at I this time. enough personally that I Robert drove to Wright Lessie Travis /s/ jail Ardmore to visit him in talk and to Wright Lessie Travis did, Knowing his mother. Robert as I I still to before me this Subscribed sworn impossible find to believe that he could be day April, 25th thing. involved such a Billing Karen /s/ gladly I would have testified as a character Notary Public trial, witness at Robert’s but I was never My Expires: Commission contacted his trial counsel. 2/22/89 sayeth Further affiant not. B. Brian III Leitch /s/
AFFIDAVIT B. Brian Leitch III State of Oklahoma Attorney at Law Adolphus Tower ___ County of 1412 Main Street Leitch, III, age B. Brian lawful Dallas, TX 75202 oath, duly upon first sworn do swear Subscribed and sworn to before me this and state that forth the matters set below June, day 30th are true and correct. Ann Francis /s/ years, approximately For several from Notary Public early through part summer of 1978 My Expires: Commission 1982,1 got person- to know Robert Brecheen ally, got fact to know his mother and September 30, 1988 very spent a lot of father well. time with Oklahoma,
them in both on business and AFFIDAVIT *48 socially. State of Oklahoma time, During that I in was involved drilling Sulphur of some oil wells between County of Carter Davis, Oklahoma, time, I one I, Fuller, being age, David of lawful after contemplating purchase completion of a sworn, being duly first hereby do state the rig putting Robert into business. following: always Robert struck me as the kind of I with worked Robert A. Brecheen at Lin- get along individual who could well with both charged coln Rock. After he was with mur- working type the blue collar of individual and der, county jail. I him in visited Prior to type the white collar executive of individual. arrest, guest my Robert had in been He seemed to be confident and relaxed in played home. We often cards and dominoes mingle social situation and was able to together. my Robert was liked both wife very and socialize well with all of us. Robert my and child. Robert had visited in home president traveled me and the eight seven or times. company private airplane in our from Dallas trial, completion rigs. During to Houston to look at I Rob- Robert’s wanted to let him day ert struck me as the kind of individual who know that I was still his friend. On the Signature /s/ Notary Public jury imposed the guilty and the was found he sentence, present I was at the Carter death My expires: commission for his trial. On County Courthouse if I attorney, Gary Sleeper, asked me day, his 11-30-88 attorney I testify Robert. told the' for not a testify that Robert was that I would AFFIDAVIT my had visited person and that he
violent my family. I by me and and was liked home County of Carter that, despite fact that Gary Sleeper told disagreement on one I had had a Robert State Oklahoma supposed to check an about who was occasion Smithers, I, legal age, well, being him friend and do I considered Patricia oil still Sleeper he was a killer. Mr. solemnly did not believe swear and state as follows: testify. did not call me I met Robert Brecheen at the Milo first Gloyd telephone conversation with In a 1969; spring my Baptist Church attorney, present McCoy, Brecheen’s Robert just I moved to Milo to live sisters and had I Robert Brecheen I related that believed grandmother, we sat with her with our I told Mr. “god-fearing man”. also was a church; “youth group” I sat to- noticed the money at the McCoy that if I had had the pews; gether in in the back three the back Brecheen, I would the trial of Robert time of them, join he Robert asked us [Brecheen] attorney. given it to Robert to hire have fellow; real nice we had ice cream was a sayeth not. Further affiant youth feasts and ral- socials and watermelon Fuller, lies; well; him got David to know real he and his
/s/ David Fuller come to our house brothers and sisters would my pizza spaghetti; sisters for homemade to before me this 10 and sworn Subscribed too; dinner, go and I would to their house day August, backyard, played alot of basketball Signature /s/ barn; some of the goal was nailed to the Notary play my little sister to kids did not want Expires: My Commission retarded, mentally but Robert because she play; make them let her [Brecheen] would March her, making from fun of he keep he’d them good play; of fair had a sense AFFIDAVIT County of Harris good to his char- I would have testified as attorney had asked me to do acter if his trial State of Texas so. Oglesby, legal age, do R.W. solemnly and state as follows: Further affiant saith not. swear who has known I am a retired store owner *49 Patricia Smithers /s/ is, life; Allen Brecheen all his he Robert (Name) man; been, I upstanding a fine always has to me on this the and sworn trial Subscribed to his character at would have testified November, day 1986. so. 24th of attorney if had asked me to do his affiant saith not. Further Elaine Harrison /s/ Oglesby Notary Public R.W. /s/ (Name) expires: My commission on this the and sworn me Subscribed November, 10-31-89 day of 1986. 26th known Allen Breeheen for have Robert past eighteen years; we went to school
n AFFIDAVIT together, many and also of attended of_ County functions; I same church would have testi- attorney trial if fied his behalf his his of Oklahoma State had me to do so. asked Stevenson, I, being legal age, of do S.M.
solemnly and state as follows: not. swear Further affiant saith I am a retired minister who has known Sandra Babcock /s/ (Name) past for the thirteen Robert Allen Breeheen years; always he has conducted himself Subscribed and sworn to me on this the manly fashion; wonderfully I would have tes- November, day 30th of 1986. tified to his fine character at trial if his Sandra G. Babcock /s/ attorney had asked me to do so. Notary Public affiant saith not. Further My expires: commission S.M. Stevenson /s/ 3-7-87 (Name) and sworn to me on this the
Subscribed November, day 24th 1986. Teresa Johnson
/s/
Notary Public My expires: commission 3-6-89 Peggy Neece, NEECE and Buel H. J. AFFIDAVIT Plaintiffs-Appellants, of_
County v. State Oklahoma INTERNAL REVENUE SERVICE OF the Larry Babcock, legal age, do America; UNITED STATES United solemnly swear and state as follows: America; States of and First National I have known Robert Allen Breeheen for Turley, N.A., Defendants-Appel Bank of years; good I would have testified his lees. attorney if character at trial had asked me to do so. Peggy Neece, J. NEECE and Buel H. Plaintiffs-Appellants,
Further affiant saith not. Larry Babcock /s/ (Name) INTERNAL REVENUE SERVICE OF the Subscribed and sworn to me on this the America; UNITED STATES of United day November, 30th America; States First National Turley, N.A., Defendants-Appel Sandra G. Babcock Bank of /s/ Notary Public lees.
My expires: commission 93-5127, Nos. 94-5075.
3-7-87 Appeals, United States Court of Tenth Circuit.
AFFIDAVIT of_ County Nov.
State Oklahoma Babcock, legal age, Sandra do solemnly swear and state as follows: