F I L E D

United States Court of Appeals

Tenth Circuit

PUBLISH

JUN 17 2002

UNITED STATES COURT OF APPEALS

PATRICK FISHER

TENTH CIRCUIT

Clerk

JACKIE LEE WILLINGHAM,

Petitioner-Appellant,
No. 01-6071

v.
MIKE MULLIN, Warden,
Oklahoma State Penitentiary,
Respondent-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. No. CIV-98-1379-T)
Fred L. Staggs, Oklahoma City, Oklahoma, for Petitioner-Appellant.
Robert L. Whittaker, Assistant Attorney General, Criminal Division (W.A. Drew
Edmondson, Attorney General of Oklahoma, with him on the brief), Oklahoma
City, Oklahoma, for Respondent-Appellee.

Before SEYMOUR , Circuit Judge, BRORBY , Senior Circuit Judge, and

BRISCOE , Circuit Judge.
BRORBY , Senior Circuit Judge.

Jackie Lee Willingham appeals from an order of the district court denying
his petition for a writ of habeas corpus under 28 U.S.C. 2254. Upon a thorough
review of the record and the arguments presented, we conclude Mr. Willingham is
not entitled to habeas relief.
In 1995, an Oklahoma jury found Mr. Willingham guilty of first degree
malice murder.

See Okla. Stat. tit. 21, 701.7. At the penalty phase, the jury

rejected the States allegation that Mr. Willingham posed a continuing threat to
society, see id. 701.12(7), but found that the murder was especially heinous,
atrocious, or cruel (HAC aggravator),

see id. 701.12(4). After weighing the

HAC aggravator against the evidence presented in mitigation, the jury determined
that Mr. Willingham should be put to death for the crime. The trial court formally
imposed the recommended sentence, and the Oklahoma Court of Criminal
Appeals (OCCA) affirmed both conviction and sentence on direct appeal.

See

Willingham v. State , 947 P.2d 1074 (Okla. Crim. App. 1997). The OCCA also
denied Mr. Willinghams subsequent application for post-conviction relief.

See

Willingham v. State , No. PC-97-389 (Okla. Crim. App. Mar. 19, 1998) (unpub.).
Mr. Willingham then commenced the instant habeas proceeding, alleging
fifteen grounds for relief. The district court denied the petition in its entirety, and
Mr. Willingham appealed. The district court granted a certificate of appealability
(COA) on ten issues.

See generally 28 U.S.C. 2253(c). Following the case

-2-

management conference, this court issued its standard order directing that, unless
Mr. Willingham submitted a motion to expand the COA within ten days, [t]he
issues to be raised in the opening brief are those set forth by the district court in
its order granting a [COA]. Case Management Order, April 18, 2001. No such
motion was filed. In accordance with the case management order and 2253(c),
we limit our consideration to the ten issues properly certified for review:

1.

Refusal to Instruct on Second Degree Murder;

2.

Use of Victim Impact Evidence;

3.

Ineffective Assistance of Counsel;

4.

Admission of Willinghams Post-Arraignment Statements;

5.

Prosecutorial Misconduct during Second Stage Closing Argument;

6.

Admission of Cumulative Photographs of the Victim;

7.

Admission of Willinghams Videotaped Statement at Crime Scene;

8.

Sufficiency of the Evidence Supporting the HAC Aggravator;

9.

Use of an Improper Reasonable Doubt Instruction; and

10.

Cumulative Error

We note Mr. Willingham indiscriminately briefed all of the issues

originally asserted in his habeas petition, appending a summary request for
a COA at the end of his discussion of the five uncertified claims. Appellate
review of these matters has been waived.
Romano v. Gibson , 278 F.3d 1145,
1155 (10th Cir. 2002); Cannon v. Gibson , 259 F.3d 1253, 1259 n.3 (10th Cir.
2001), cert. denied , 122 S. Ct. 1966 (2002).
1

-3-

FACTS
Most of the pertinent facts were established by Mr. Willinghams own trial
testimony and his earlier admissions to the police. On the day of the murder,
Mr. Willingham was selling perfume door to door in Lawton, Oklahoma.
Working his way through a downtown building, he came to the office occupied by
Mrs. Jayne Van Wey. Although she told him she did not wish to purchase any
perfume, he continued to press her, adhering to his standard sales procedure of
insisting on three no answers from a potential customer. The repeated
rejections that ensued led to an escalation of the situation to what Mr. Willingham
claims was a rude rebuff by Mrs. Van Wey and hostile vulgarity on both sides.
After calling on some other offices in the building, Mr. Willingham noticed
Mrs. Van Wey enter a restroom off the hallway near her office. Still angry over
their earlier confrontation, he eventually followed her into the restroom, pulled
her from a stall, and struck her several times in the face. As she continued to
struggle with him, he slammed her head into the wall and let her fall backward
onto the floor. When she rolled over and began to push herself up onto her hands
and knees, he kicked her in the face with his boot. At that point, all resistance
ceased, and he left. Mrs. Van Wey lost consciousness and died asphyxiating on
the blood from her injuries.

-4-

Shortly after the murder, the police found a sales brochure left at one of the
other offices Mr. Willingham had visited. Upon contacting the company and
speaking with a supervisor, the police learned that a sales team in Lawton would
be meeting at a local restaurant later that afternoon. The supervisor also indicated
that at least one member of the team, Kevin Longenecker, fit the suspects
description. The police proceeded to the restaurant and approached the group of
salesmen. Detective John Whittington asked about Mr. Longenecker and was told
by Mr. Willingham that he was not there. Detective Whittington noticed that
Mr. Willingham was extremely uneasy and had a fresh scratch on his neck. After
Mr. Willingham offered a facially implausible explanation of the scratch,
Detective Whittington asked him to come to the police station. The detective said
the entire group would need to come, and explained that the police were
investigating an attack on a woman (he did not say murder) downtown that day.
At the police station, Mr. Willingham was advised of his

Miranda rights, 2

which he waived in writing. He initially denied any involvement in the attack,

but after Detective Whittington pointed out what looked like blood on his boots
and asked him to tell his side of the story, Mr. Willingham admitted he had beaten
Mrs. Van Wey. However, some of the details of his version of the attack did not
fit the physical evidence, and he was asked to return to the scene and clarify his
2

See generally Miranda v. Arizona , 384 U.S. 436 (1966).

-5-

account. After again waiving his

Miranda rights, Mr. Willingham walked through

the crime scene describing the attack, somewhat differently, on videotape.

Thereafter, Mr. Willingham learned that Mrs. Van Wey had died. He was
interviewed again to clear up additional questions raised by the physical evidence,
and at this point finally admitted he had forcefully kicked Mrs. Van Wey in the
head before leaving the restroom. Finally, after two of Mrs. Van Weys credit
cards were found in the restaurant where Detective Whittington had first spoken
with Mr. Willingham, he was advised of his rights and questioned once more, to
explain this new development. He eventually admitted he had not immediately
followed Mrs. Van Wey into the restroom but had stopped in her office and taken
the cards from her purse first, to make it look like a robbery.
Mr. Willinghams only defense at trial was to challenge the States case
on the element of intent. Specifically, he testified that while he had attacked
Mrs. Van Wey out of anger over their prior confrontation, he had not intended to
kill or seriously injure her. Accordingly, the defense requested instructions on the
lesser offenses of heat-of-passion manslaughter and second degree depraved-mind
murder. The trial court granted the first instruction but denied the second. The
jury ultimately rejected Mr. Willinghams intent defense, finding him guilty of
first degree malice murder.

-6-

STANDARDS OF REVIEW
Mr. Willingham filed his habeas petition after the effective date of the
Antiterorrism and Effective Death Penalty Act of 1996 (AEDPA), which therefore
governs the proceeding.

See Williams v. Taylor , 529 U.S. 420, 429 (2000). This

court has summarized the significance of AEDPA for habeas review as follows:
Under AEDPA, if a claim was adjudicated on its merits in state court,
a petitioner is entitled to federal habeas relief only if he can establish
that the state court decision was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States or was
based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding. 28 U.S.C.
2254(d)(1), (2). Under 2254(d)(1), a federal court may grant
a writ of habeas corpus only if the state court reached a conclusion
opposite to that reached by the Supreme Court on a question of law,
decided the case differently than the Supreme Court has decided a
case with a materially indistinguishable set of facts, or unreasonably
applied the governing legal principle to the facts of the petitioners
case. See Williams [ v. Taylor , 529 U.S. 362, 412-13 (2000)].
Under 2254(d)(1)s unreasonable application clause . . ., a
federal habeas court may not issue the writ simply because that court
concludes in its independent judgment that the relevant state-court
decision applied clearly established federal law erroneously or
incorrectly. Rather that application must also be unreasonable.
Williams , [529 U.S. at 411]. In sum, 2254(d)(1) places a new
constraint on the power of a federal habeas court to grant a state
prisoners application for a writ of habeas corpus with respect to
claims adjudicated on the merits in state court.
Williams , [529 U.S.
at 412]. AEDPA also requires federal courts to presume state court
factual findings are correct, and places the burden on the petitioner
to rebut that presumption by clear and convincing evidence.
See
28 U.S.C. 2254(e)(1).
If[, however, a] claim was not heard on the merits by the state
courts, and the federal district court made its own determination in
-7-

the first instance, we review the district courts conclusions of law

de novo and its findings of fact, if any, for clear error.
LaFevers v.
Gibson , 182 F.3d 705, 711 (10th Cir. 1999). If the district courts
factual findings are based only on a review of the state court record,
we conduct an independent review.
See Smallwood v. Gibson ,
191 F.3d 1257, 1264 n.1 (10th Cir. 1999),
cert. denied , [531 U.S.
833] (2000).
Walker v. Gibson , 228 F.3d 1217, 1225 (10th Cir. 2000),

cert. denied , 121 S. Ct.

2560 (2001). With this review framework in mind, we turn to the claims raised
by Mr. Willingham, first addressing those related solely to his conviction and then
those implicating sentencing concerns.
I. Refusal to Instruct on Second Degree Murder
Mr. Willingham argues that he was improperly denied an instruction on
second degree depraved-mind murder, citing

Beck v. Alabama , 447 U.S. 625

(1980) (invalidating death sentence for first degree murder where jury was not
permitted to consider lesser included offense). In light of radical swings in state
law as to whether depraved-mind murder even qualifies as a lesser included
offense (LIO) of first degree malice murder, this is not simply a straightforward
Eighth Amendment claim under

Beck and its progeny. A brief history of the

pertinent Oklahoma case law will indicate why Mr. Willingham has joined ex post
facto and equal protection objections to his

Beck claim.

Prior to Mr. Willinghams direct appeal in 1997, the OCCA considered

second degree murder a LIO of first degree murder.
-8-

Hooks v. Ward , 184 F.3d

1206, 1233 n.25 (10th Cir. 1999) (quoting

Boyd v. Ward , 179 F.3d 904, 916

(10th Cir. 1999), cert. denied , 528 U.S. 1167 (2000)). However, his claim that
the trial court had violated

Beck by refusing to instruct on second degree murder

prompted the OCCA to take note of a 1976 amendment to the states murder
scheme that it had theretofore overlooked.

Willingham , 947 P.2d at 1081

(Apparently, our case law failed to recognize this change in the statutes.). In
light of that amendment, second degree depraved-mind murder now requires an
act imminently dangerous to another person, Okla. Stat. tit. 21, 701.8(1)an
element that malice murder, which turns on the intent to kill rather than on any
particular characterization of the means used to carry out that intent, does not
require, see Okla. Stat. tit. 21, 701.7. Consequently, pursuant to the statutory
elements test for identifying LIOs in Oklahoma at the time, the OCCA concluded
that depraved-mind murder was not a LIO of malice murder and, hence, could
not provide a basis for Mr. Willinghams

Beck claim. Willingham , 947 P.2d

at 1081-82.
Two years later, however, in

Shrum v. State , 991 P.2d 1032 (Okla. Crim.

App. 1999), the OCCA returned to the view that second degree murder is a LIO
of first degree malice murderthis time notwithstanding the 1976 statutory
changepursuant to a global reassessment of its approach to LIOs in the murder
context. Abandoning the elements test altogether, the OCCA held as a categorical
-9-

matter that all lesser forms of homicide are necessarily included and instructions
on lesser forms of homicide should be administered if they are supported by the
evidence. Gilson v. State , 8 P.3d 883, 917 (Okla. Crim. App. 2000)
(summarizing Shrum ), cert. denied , 121 S. Ct. 1496 (2001).
This is the legal backdrop against which Mr. Willingham claims
entitled him to a LIO instruction on second degree murder. Should his

Beck
Beck claim

fail based on the brief break in state law during which second degree murder was
not considered a LIO of malice murder, Mr. Willingham insists he must be
afforded relief under ex post facto and/or equal protection principles.
A. Beck Claim
In fact, the district court did rely on the window of unfavorable state LIO
law to deny Mr. Willinghams

Beck claim. Invoking Hopkins v. Reeves , 524 U.S.

88, 95-100 (1998), for the principle that

Beck is not violated if a state court

refuses to instruct on an offense that, under state law, is not a LIO of first degree
murder, the district court held that the OCCAs construction of the second degree
murder statute on his direct appeal controlled and defeated his

Beck claim. We

agree. While Hopkins indicated that state courts may not frustrate the values
embodied in Beck through arbitrary interpretation of hierarchical murder schemes,
see Hopkins , 524 U.S. at 100;

see also Bagby v. Sowders , 894 F.2d 792, 794-95

(6th Cir. 1990) (en banc), no such impropriety has been demonstrated here. As
-10-

explained above, the OCCAs rejection of Mr. Willinghams

Beck claim was

grounded in a reasoned, albeit belated, application of the prevailing LIO standard

to the controlling statutory definitions of the offenses involved.
Before turning to Mr. Willinghams resultant ex post facto argument, we
briefly consider two other bases for rejecting his

Beck claim which would not

implicate any ex post facto problem. First, the state trial court did instruct the
jury on first degree heat of passion manslaughter, which suggests the district
court could have denied the

Beck claim because, under Schad v. Arizona , 501 U.S.

624 (1991), [t]he Beck requirement is satisfied so long as the jury had the option
of at least one lesser included offense, even if there are other lesser included
offenses also supported by the evidence.

James v. Gibson , 211 F.3d 543, 555

(10th Cir. 2000), cert. denied , 121 S. Ct. 886 (2001). However,

Schad s

qualification on Beck presumes that the LIO presented to the jury had evidentiary
support in the record, as otherwise it would not have provided a true third option
to obviate the death-or-acquittal dilemma

Beck was intended to resolve.

Ward , 219 F.3d 1222, 1242 (10th Cir. 2000),

cert. denied , 121 S. Ct. 1618 (2001);

see Schad , 501 U.S. at 648 (explaining that, while

by one LIO, [t]hat is not to suggest that

Valdez v.

Beck dilemma can be obviated

Beck would be satisfied by instructing

the jury on just any [LIO], even one without any support in the evidence);
cf. Roberts v. Louisiana , 428 U.S. 325, 334-35 (1976) (invalidating, as arbitrary,
-11-

state procedure allowing juries to avoid death penalty through use of LIOs
regardless of supporting evidence). Here, both the OCCA and the district court
held that the evidence did not warrant a heat of passion manslaughter instruction,
and the trial record bears out that determination. The minimal nature of the
alleged provocation, and the length of time between that provocation and the
murder, during which Mr. Willingham made other office calls showing nothing
remarkable in his demeanor, clearly undercut this LIO. Thus, we cannot rely
on Schad to provide an alternative rationale for rejecting Mr. Willinghams
Beck claim.
A second possibility is that the evidence simply did not warrant the second
degree murder instruction Mr. Willingham insists that he should have received.
The OCCAs opinion is unclear on this question. At one point the OCCA did
note, as one of three bases upon which

Beck can be distinguished from this

case, that Beck only requires an instruction on lesser included offenses when
the evidence supports such an instruction, but then went on to discuss the
inadequacy of the evidence solely with respect to the manslaughter instruction.
Willingham , 947 P.2d at 1082-83. The district court, which relied exclusively on
the Hopkins rationale cited above, also did not assess whether the trial evidence
would have warranted a second degree murder instruction in any event.

-12-

Our own review of the trial record leads us to conclude that, had a second
degree murder instruction otherwise been available under state LIO law, the
evidence was legally sufficient to warrant such a charge. The critical elements of
depraved-mind murder are that the death was caused by conduct which was
imminently dangerous to another person and that the conduct [was] not
done with the intention of taking the life of any particular individual.

Id.

at 1081. The former element is clearly established by the violent nature of

Mr. Willinghams physical assault on Mrs. Van Wey, and the latter element, while
ultimately rejected by the jurys verdict, was nevertheless a plausible option on
the evidenceindeed, as the OCCA noted, lack of intent to kill was the only
theory of defense at trial,

id at 1080.

Thus, the Hopkins analysis discussed above, which rests on the temporary
swing in Oklahoma LIO law conclusively disadvantageous to Mr. Willingham,
appears to be the only rationale available for rejecting the

Beck claim on

the merits. As a result, Mr. Willinghams ex post facto objection cannot be

avoided.

-13-

B. Ex Post Facto (i.e., Due Process

) Claim

It might appear that this claim, which arose only in response to the OCCAs
new construction of the amended second degree murder statute in its decision on
Mr. Willinghams direct appeal, has never been exhausted in state court.
However, Mr. Willingham raised it in a petition for rehearing from that decision,
which was denied without explanation by the OCCA. Under

Aycox v. Lytle ,

196 F.3d 1174, 1177-78 (1999), the latter disposition could still be entitled to
deference under 2254(d), even though it would be left to the federal courts to
articulate an appropriate rationale for the OCCAs summary decision. As it
happens, the OCCA explained in a later case why the change in LIO law effected
by its decision on Mr. Willinghams appeal did not violate any ex post facto
prohibition. In Phillips v. State , 989 P.2d 1017, 1034 (Okla. Crim. App. 1999),
the OCCA rejected an essentially identical claim for the following reason:
Although Willingham was handed down six (6) months after
the trial in this case, the law upon which the decision that second
degree depraved mind murder is not a lesser included offense of
malice murder was based was the 1976 amendment to the statute.
Therefore, as the statutory language upon which this Court relied for
its authority was in effect at the time of the murder and trial in this
case, it appears that no possible
ex post facto violation is present.
While the Constitutions Ex Post Facto Clause figures prominently in
[Mr. Willinghams] argument, strictly speaking the limitations on
ex post facto
judicial decisionmaking derive from the Due Process Clause, which does not
incorporate wholesale all the restrictions directly imposed on legislative action by
the former provision. Rogers v. Tennessee , 532 U.S. 451, 456-61 (2001).
3

-14-

The problem with this rationale, which might be upheld under 2254(d) in
the context of a retroactive legislative change as a reasonable application of
Ex Post Facto Clause jurisprudence, is that, as noted in footnote 3 above,
Mr. Willinghams claim arises, rather, under the Due Process Clause and is
therefore governed by somewhat different principles never considered by the
OCCA.
The Supreme Court recently clarified that due process limitations on the
retroactive application of judicial interpretations of criminal statutes apply to
those decisions that are unexpected and indefensible by reference to the law
which had been expressed prior to the conduct in issue.

Rogers , 532 U.S.

at 461 (quoting Bouie v. City of Columbia , 378 U.S. 347, 354 (1964) (quotation
omitted)). This court employed appropriate due process standards in this context
before Rogers clarification/reaffirmation of

Bouie . Of particular relevance here

is Fultz v. Embry , 158 F.3d 1101 (10th Cir. 1998), in which we held that a state
decision, much like Willingham , belatedly interpreting and applying legislative
amendments a number of years . . . after passage of these new laws was an
example of the sort of foreseeable decision whose retroactive application was
constitutionally permissible.

Id. at 1103-04.

Of course, the question whether the OCCAs decision in

Willingham was

unexpected and indefensible also depends on the merit or plausibility of its

-15-

holding in light of the legal principles and statutory language on which it was
based. In that regard, it should be clear from what has been said above that the
OCCAs application of its statutory elements test to the amended second degree
murder statute cannot be characterized as indefensible, even if the OCCAs
prior failure to acknowledge the statutory change made its sudden attention to the
matter unexpected. Further, the OCCAs later reversal of position in

Shrum

reflected a global reassessment of its approach to the LIO questionresulting in

its abandonment of the straightforward but inflexible elements test for a broader
approach permitting instruction on any lesser homicide offense supported by the
trial recordand, thus,

Shrum s contrary result does not suggest that the OCCAs

analysis in Willingham was indefensible on its own terms. In sum, we hold that
Mr. Willingham has failed to make out a due process violation under the
Rogers -Bouie standard.
C. Equal Protection Claim
Mr. Willingham argues that when the OCCA restored the law preceding
Willingham , in Shrum, but left out in the cold those few cases [denying LIO
claims] which had begun with
the protections mandated by

Willingham , the OCCA irrationally denied [him]

Beck and afforded Oklahoma capital defendants both

before and after him, thereby violating his right to equal protection under the
law. Aplt. Br. at 25-26. This contention merits little comment. In light of the
-16-

preceding discussion of the OCCAs reasoning in

Willingham and Shrum , the

charge of irrational discrimination is unfounded. Moreover, as Mr. Willingham

concedes, he did not raise this equal protection issue below (nor has he exhausted
it in the state courts).
II.

Admission of Post-Arraignment Statements

Immediately upon his arrest, Mr. Willingham waived his Fifth Amendment

rights and confessed to the attack on Mrs. Van Wey. He does not challenge that
confession. Rather, he objects on Sixth Amendment grounds to the admission of
two statements he gave shortly after his arraignment, which he later recanted,
relating to (1) his pre-murder theft of Mrs. Van Weys credit cards, from a purse
she had left in her office, to deflect suspicion for the ensuing attack by making it
look like a robbery (but which had the unintended effect of supporting the States
case on intent, since such a cover made no sense if he planned to leave her alive
to tell the police about the attack); and (2) an assault on an officer in the Marines
years earlier (relevant to the continuing threat aggravator). At trial, he insisted he
stole the credit cards only after the attack on Mrs. Van Wey (for no plausible
reason he could explain), and simply denied the latter assault.
Mr. Willinghams right to counsel had certainly attached when he made the
statements in question, i.e., after the initiation of adversary judicial criminal
proceedings . . . by way of . . . arraignment.
-17-

United States v. Baez-Acuna

54 F.3d 634, 637 (10th Cir. 1995) (quotation omitted). However, he does not
dispute police testimony that repeated

Miranda (Fifth Amendment) waivers were

effected at this time. Such waivers can suffice for Sixth Amendment purposes as
well, depending on two further factual considerations: whether the later contact
was initiated by the police or the suspect, and whether the suspect expressly
invoked his right to counsel before that contact. Under
475 U.S. 625 (1986), and

Michigan v. Jackson ,

Patterson v. Illinois , 487 U.S. 285 (1988), the Sixth

Amendment permits re-initiation of police questioning pursuant to

Miranda

procedures if the suspect has not requested the professional representation to

which he is entitled, but, once he has made such a request, subsequent contact is
permitted only if the suspect initiates it himself, even if the police otherwise
adhere to Miranda safeguards.
Thus, the district court properly focused on whether Mr. Willingham
requested counsel during his arraignment. The court noted that the OCCA had
addressed the two statements made by [Mr. Willingham] after his initial
appearance, but before he filled out and submitted his [formal, post-arraignment]
application for appointed counsel, and had concluded that [t]he record indicates
[Mr. Willingham] did not request counsel until [his subsequent written
application].

Willingham , 947 P.2d at 1079. The district court deemed this

a factual finding presumptively correct under 2254(e)(1), and then considered

-18-

whether Mr. Willinghams affidavit averring that he asked the judge to appoint
counsel at his arraignment constituted the clear and convincing evidence
necessary to rebut the presumption. This is a difficult question, because the
arraignment was not recorded and there is no evidence in the record to counter
Mr. Willinghams account (the OCCA denied his request for an evidentiary
hearing on post-conviction, when he first submitted his affidavit).
The district court ultimately elected to resolve the matter through harmless
error analysis.

With respect to the assault in the Marines, the district court held

it was merely cumulative to other admissions Mr. Willingham had made about
fighting and, thus, was harmless. We agree. Moreover, we note that the primary
focus of this evidencethe continuing threat aggravatorwas not found by the jury
in any event.
In contrast, the timing and, by inference, purpose of Mr. Willinghams theft
of the credit cards was clearly relevant to the crucial element of intent for first

The district court used the harmless beyond a reasonable doubt standard
of Chapman v. California , 386 U.S. 18, 24 (1967), instead of the substantial and
injurious effect or influence habeas standard from
Brecht v. Abrahamson ,
507 U.S. 619, 637 (1993) (quotation omitted) which we have held still controls in
post-AEDPA cases where, as here, there is no state court
Chapman determination
to defer to under 2254(d).
See Hale v. Gibson , 227 F.3d 1298, 1324-25 (10th
Cir. 2000), cert. denied , 121 S. Ct. 2608 (2001); see also Herrera v. Lemaster ,
225 F.3d 1176, 1179 & n.3 (10th Cir. 2000),
reopened & rehg granted en banc
(Feb. 28, 2002). However, our conclusion on harmless error does not turn on
which of these standards applies.
4

-19-

degree murder. However, the district court held that the physical evidence led to
the inescapable conclusion that Mr. Willingham stole the cards before the attack,
so his admission to the same effect was harmless. The court was referring to the
fact that, despite the large quantity of blood in the washroom, and associated
stains on the doorknob, hallway carpet, and Mr. Willinghams clothes, there was
no blood in Mrs. Van Weys office or on her purse. Two additional points
support the district courts analysis. First, testimony from a witness in the
building independently pointed to the pre-murder theft of the cards, by indicating
that several minutes passed between her seeing Mr. Willingham walk by in the
direction of the washroom and her hearing the noise of the ensuing attack.
Second, regardless of the whole credit card scenario, the sheer brutality of the
attack, especially the forceful kick to the head with which it concluded, weighed
heavily in favor of a finding of intent to kill. Under the circumstances, the
district courts determination of harmless error was correct.
III. Admission of Videotaped Statement Given at the Crime Scene
Mr. Willingham objects to admission of the videotaped statement he gave at
the crime scene, asserting that this reenactment of the assault was so prejudicial,
demeaning and cumulative that [he] was denied a fair trial, due process of law
and a reliable sentencing proceeding. Aplt. Br. at 63. On his direct appeal, the
OCCA held the videotape was merely a walk through of the crime scene with
-20-

[Mr. Willingham] telling his version of the events, and, as such, did not involve
any identifiable error.

Willingham , 947 P.2d at 1083-84. When Mr. Willingham

resumed his objection on habeas, the district court noted that he did not advance
any specific reasons why the videotape was inadmissible or identify what
particular material contained therein could give rise to actionable prejudice.
Thus, the district court summarily denied relief because Mr. Willingham had
failed, as a threshold matter, to develop an argument sufficient for federal review.
Mr. Willinghams claim fails for both reasons identified above. On appeal,
he makes no attempt to shore up the basic argumentative deficiencies noted by the
district court. On the contrary, his appellate briefing is essentially a verbatim
copy of the conclusory allegations presented in his habeas petition. In any event,
upon review of the videotaped statement, we agree with the OCCAs description
of its content; Mr. Willinghams attempt to characterize it as a provocative
reenactment of the murder is sheer hyperbole.
IV. Admission of Photographs of the Victim
Mr. Willingham claims that the trial court improperly admitted twenty-two
photographs of Mrs. Van Weys body, which he contends were unduly prejudicial
to the defense at both stages of trial. Where no particularized constitutional
guarantees are directly implicated, such an evidentiary objection is cognizable on
habeas only if the alleged error was so grossly prejudicial that it fatally infected
-21-

the trial and denied the fundamental fairness that is the essence of due process.
Fox v. Ward , 200 F.3d 1286, 1296 (10th Cir.) (quotation omitted),

cert. denied ,

531 U.S. 938 (2000). With this federal standard in mind, we conclude that
the OCCAs resolution of this matter was not unreasonable and, therefore,
Mr. Willingham is not entitled to relief under 2254(d).

See Thomas v. Gibson ,

218 F.3d 1213, 1225 (10th Cir. 2000).

On Mr. Willinghams direct appeal, the OCCA explained that [t]he test for
admissibility of photographs is not whether they are gruesome or inflammatory,
but whether their probative value is substantially outweighed by the danger of
unfair prejudice, and held that the victim photographs were properly admitted at
the guilt phase for their relevance to the critical element of intent to kill and at
the penalty phase for their relevance to the serious physical abuse requirement of
the HAC aggravator.

Willingham , 947 P.2d at 1083 (also holding photographs

depicted sufficiently different aspects of victims injuries to undercut any

challenge on ground they were cumulative). The district court agreed that the
photographs were properly admitted for these important purposes, and held that
Mr. Willingham therefore could not demonstrate a due process violation
warranting habeas relief.
Mr. Willinghams appellate argument on this issue fails to come to grips
with the primary basis for the rulings of the district court and OCCA. He simply
-22-

repeats his charge that the photographs are gruesome, without addressing their
obvious facial relevance to critical elements of the States case at both stages of
trial. We note one additional point, for clarification. When a victim dies or loses
consciousness early on in an assault, photographs of all of her injuries might
involve irrelevant and/or unduly prejudicial material at the penalty phase, since
the HAC aggravator focuses on the

conscious suffering of the victim.

Cf. Powell

v. State , 906 P.2d 765, 780 (Okla. Crim. App. 1995) (holding admission of victim
photographs during penalty phase came very close to reversible error for just
this reason). Here, however, there is no such concern; Mr. Willinghams own
testimony described Mrs. Van Wey as conscious and struggling to defend herself
throughout the fatal beating.
V. Reasonable Doubt Instruction
In Cage v. Louisiana , 498 U.S. 39 (1990), and

Estelle v. McGuire , 502 U.S.

62 (1991), the Supreme Court held that a jury instruction is unconstitutional if

there is a reasonable likelihood that the jury understood the instruction to allow
conviction without proof beyond a reasonable doubt.

Tyler v. Cain , 121 S. Ct.

2478, 2480 & n.1 (2001). Invoking this body of law, Mr. Willingham objects to
the reasonable doubt instruction given at his trial, which stated in part:
[I]f you find and believe beyond a reasonable doubt under the law
and the evidence herein that the said defendant did commit the
offense of murder in the first degree as charged in the complaint and
information herein, you will find the defendant guilty of said offense
-23-

and so state by your verdict. However, if you fail to find and believe
the defendant guilty or if you entertain a reasonable doubt as to his
guilt, then in either case you should return a verdict of not guilty.
Trial Tr. Vol. III at 150-51 (emphasis added). He argues that replacement of the
clearly mandatory will, used where the instruction relates the lack of reasonable
doubt to a guilty verdict, with the allegedly more permissive should, used where
the instruction relates the presence of reasonable doubt to a not guilty verdict,
allowed the jury some discretion to convict even if they harbored a reasonable
doubt about his guilt.
Rejecting this claim, the OCCA explained [t]he term should, when used
as it was used by the trial court, is defined as expressing an obligation or duty.
Should is never placed on the level with may, which is clearly permissive.
Willingham , 947 P.2d at 1082. Indeed, the Supreme Court has never indicated
that the mandatory force inherent in the term should is insufficient to properly
guide a jurys application of the reasonable doubt standard. Moreover, we note
that the trial court referred to reasonable doubt at several other points in its
charge, repeatedly directing that a not guilty verdict must follow if the jury
harbored a reasonable doubt about the defendants innocence. The OCCAs
conclusion that the instructions, read as a whole, adequately stated the jurys
duty to determine if the State has proven its case beyond a reasonable doubt,

id.

at 1083, was neither contrary to nor an unreasonable application of the clearly

-24-

established law summarized in

Tyler . Accordingly, habeas relief on this claim is

foreclosed by 2254(d)(1).
VI. Evidence Supporting HAC Aggravator
Mr. Willingham challenges the sufficiency of the evidence supporting the
HAC aggravator. The controlling constitutional test is whether any rational
trier of fact could have found the aggravator beyond a reasonable doubt.

Hale ,

227 F.3d at 1334-35. This court has not decided, for AEDPA purposes, whether
such issues of evidentiary sufficiency are legal and hence governed by
2254(d)(1), or factual and hence governed by 2254(d)(2), (e)(1); in any
event, however, the critical question is whether the OCCAs decision [affirming
the HAC finding] was reasonable.

McCracken v. Gibson , 268 F.3d 970, 981

(10th Cir. 2001). In our view, it clearly was.

The OCCA summarized the evidence supporting the HAC aggravator as
follows:
Appellants own testimony reveals that he punched Mrs. Van Wey in
the face at least three times, then he slammed her head into the wall
causing her to fall to the ground on her back. Mrs. Van Wey was
still conscious at that point because she was able to roll over and rise
to her hands and knees before being kicked in the face by Appellant.
Circumstantially, it was at that point that she lost consciousness and
aspirated her own blood which caused her death. Certainly this
evidence supports a finding that Mrs. Van Wey was subjected to
serious physical abuse . . . .
Along with Appellants testimony, the medical examiner
testified that there were at least four violent blows to the victims
-25-

head. This evidence combined with Appellants testimony can lead

one to conclude that some of these blows occurred prior to the loss of
consciousness. Circumstantial evidence and common sense would
lead a reasonable jury to believe that this killing was successfully
designed to inflict a high degree of pain on the victim. Therefore,
there was sufficient evidence to show that the murder was especially
heinous, atrocious or cruel.
Willingham , 947 P.2d at 1085.
Mr. Willingham does not take issue with the factual accuracy of that
summary, which the trial record clearly bears out. Rather, he contends Mrs. Van
Wey was beaten to unconsciousness so quickly that she suffered little longer than
had [he] walked in and shot her. Aplt. Br. at 66. He does not cite any authority,
and we know of none, to support his cavalier equation of the extended, brutal
beating suffered by Mrs. Van Wey with a single, mercifully swift gunshot. The
district court correctly rejected this contention as wholly without merit.
He also insists this case is controlled by

Thomas v. Gibson , 218 F.3d 1213,

which invalidated a HAC finding that had been based solely on evidence of
multiple blows and the inference that a murderer would [not] continue striking
a murder victim if the first landed blow rendered the victim unconscious.

Id. at

1228. Thomas is inapposite. In that case there was no evidence that a struggle
had taken place, that [the victim] had defensive wounds, or that [the defendant]
had any wounds on his body consistent with a struggle when he was arrested
shortly after the murder.

Id. Moreover, a witness close enough to observe

-26-

many details . . . did not testify to hearing any noises, voices, or screams.

Id.

Here, in contrast, we have Mr. Willinghams own description of Mrs. Van Weys
conscious struggle until the final violent blow was landed, which is consistent
with the injuries inflicted and further corroborated by the fresh scratch on
Mr. Willinghams neck at the time of his arrest. We also have testimony from a
witness who heard banging noises and a scream coming from the direction of the
womens washroom at the time in question. Clearly, the kind of inference
questioned in Thomas was not needed by the OCCA to affirm the HAC finding in
this case.
VII. Victim Impact Evidence
Mr. Willingham claims that victim impact evidence presented at the penalty
phase was unduly emotional, impermissibly contradicted substantive evidence of
the circumstances of the murder, and included improper opinions about the
crime, the defendant, and the appropriate sentence.

Hain v. Gibson , 287 F.3d

1224, 1238 (10th Cir. 2002) (quotation omitted). On direct appeal, the OCCA
Mrs. Van Weys family described her as a loving wife, caring mother and
generous person, properly indicating the human loss caused by her death. But
some family members injected speculative, inflammatory details about the crime
and the commensurate retribution it demandedone daughter suggested that Mr.
Willingham be confined in a small area, beaten, and made to crawl [to] try to get
away, beg for his life and choke on his own blood. Some also contradicted
trial evidence regarding the asserted provocation for the crime, denying that Mrs.
Van Wey was capable of the rude vulgarity Mr. Willingham attributed to her. All
three children asked the jury to impose a death sentence.

-27-

(1) summarized the evidence and acknowledged some of it was indeed improper,
see Willingham , 947 P.2d at 1085-86, 1088, (2) noted the absence of a trial
objection, but stated it would consider the matter under [its] statutorily mandated
sentence review to determine whether the statements caused [Mr. Willingham] to
be sentenced to death for improper reasons,

id. at 1086, and (3) ultimately

concluded that even absent the improper victim impact evidence, the result
would have been the same,

id. at 1088-89. The district court followed

essentially the same approach, noting the improper testimony but denying relief in
light of the overwhelming evidence of guilt in the first stage and of aggravation in
the penalty phase. We agree with both the OCCA and the district court, though it
is important to clarify the harmless error standard underlying our conclusion that
habeas relief is not warranted here.
While the OCCA appears to have applied a species of harmless error
analysis, denying relief for recognized error due to lack of prejudice, there is no
indication that it employed the harmless beyond a reasonable doubt standard of
Chapman v. California , 386 U.S. at 24. Consequently, we consider the question
of harmless error de novo under the general standard established for habeas cases
in Brecht v. Abrahamson , 507 U.S. 619, asking whether the objectionable victim
impact evidence had substantial and injurious effect or influence in determining
the jurys [death penalty] verdict,

id. at 637 (quotation omitted).

-28-

See Sallahdin

v. Gibson, 275 F.3d 1211, 1230 (10th Cir. 2002)

; Hale , 227 F.3d at 1324-25;

Herrera , 225 F.3d at 1179.

Several factors convince us that the victim impact evidence in question had
no such effect or influence. The jury properly found that the brutal, demeaning
attack on Mrs. Van Wey was especially heinous, atrocious or cruela finding
effectively compelled by Mr. Willinghams own description of the crime quite
apart from the few speculative embellishments in the victim impact testimony.
Mr. Willingham was admittedly responsible for the attack, which, moreover, the
jury had already found during the guilt phase was carried out with a fatal intent,
thus rejecting his primary extenuating plea that he never meant to inflict serious
harm. Finally, the provocation cited for the attack, that Mrs. Van Wey was rude
to him when he persisted in clearly unwanted sales advances, was so ludicrously
disproportionate, and temporally remote, to his violent response that any indirect
refutation (or substantiation) on the point could hardly have mattered to the jury.
Under the circumstances, we are confident that the improper aspects of the victim
impact evidence did not play any substantial role in the jurys assessment of the
death penalty in this case.

See Hain , 287 F.3d at 1239-40 (holding admission of

comparable victim impact evidence harmless for similar reasons).

-29-

VIII. Prosecutorial Misconduct

Mr. Willingham claims several remarks made by the prosecutor to the jury
were improper and entitle him to relief under the fundamental fairness standard
that generally governs such claims on habeas.
1044, 1058 (10th Cir. 2001),

See Neill v. Gibson , 278 F.3d

petition for cert. filed , (U.S. May 6, 2002) (No. 01-

10121). The OCCA concluded none of the remarks rose to the level of actionable
prosecutorial misconduct.

See Willingham , 947 P.2d at 1084. In denying habeas

relief, the district court (1) set out the allegedly objectionable remarks; (2) noted
the conclusory nature of Mr. Willinghams objection to them, but nevertheless
evaluated their impact in light of the record as a whole, including the strength of
the States case on guilt and aggravation; (3) concluded none of the remarks,
individually and/or cumulatively, deprived Mr. Willingham of a fundamentally
fair trial; and (4) upheld the OCCAs decision denying relief on this claim
pursuant to 2254(d).
On appeal, Mr. Willingham does not really address the district courts
opinion, much less attempt to identify specifically any error in its rationale. In
fact, his appellate briefing does little more than restate, essentially verbatim, the
allegations originally set out in his habeas petition. In any event, we have
reviewed the comments and the trial record, which lead us to the same conclusion
reached by the district court.
-30-

Mr. Willingham objects to the prosecutors personal prayer for a first

degree murder verdict during closing argument in the guilt phase:
The evidence is overwhelming. Theres only one verdict, and I pray
youre strong enough, . . . however long it takes, set in there, talk
this case over, discuss this case, but I pray there be only one verdict,
and thats guilty of murder in the first degree.
Trial Tr. Vol. III at 180. He also objects to the following exhortatory remarks by
the prosecutor during closing argument in the penalty phase:
Id like to put this, if I may, in perspective. Most of you, if you had
a stray dog that had its head busted up, the dog is dying, the dog is
wallering down trying to get up, most human beings could not kick
that stray dog in the face hard enough to break a nose, shove it back
into the eyelids, knock out teeth, split lips and watch that dog gurgle
and die, or turn around and walk off while it was in the throes of
death. Most people cannot do that. That should tell you something
about a human being that has the ability to do that to an old woman
and walk out.
....
How many of you will ever be able to get this vision of that
bathroom and this womans face out of your mind. Its going to
haunt you for months. Its going to change every one of you to some
degree thats been affected with this case. You cant help it if youre
a normal human being.
....
I want to get back to this . . . life without parole, make him think
about it day in and day out. I submit to you this man wouldnt think
about it past the day of his judgment and sentence. Correlate the two
for you, if I may; [Mrs.] Van Wey is not ever going to see another
Christmas. Life without parole, hes going to see them year after
year after year . . . [Mrs.] Van Wey will never celebrate another
birthday. Life without parole, hell celebrate it every year.
-31-

....
Every one of you told me that you could give the death penalty. A
number of you told me that you would not take the easy way out.
Now the easy way out is to say I just cant do this or its too great,
I dont want to have to deal with this. Lets just do life without
parole and go to the house. Thats the easy way out in this case.
....
[T]he evidence in this case is overwhelming overwhelming. I pray
you be strong. I pray you members of the jury be strong. Theres
only one verdict. Anything less will be the second travesty in this
case.
Trial Tr. Vol. IV at 116-117, 128-131.
Comparableindeed, substantially more inflammatoryremarks have not
warranted habeas relief under the fundamental fairness standard in prior cases
before the Supreme Court and this circuit.
477 U.S. 168, 178-83 (1986);

See, e.g. , Darden v. Wainwright ,

Pickens v. Gibson , 206 F.3d 988, 1000 (2000);

Hopkinson v. Shillinger , 866 F.2d 1185, 1205-11 (10th Cir. 1989),

other grounds as recognized by

overruled on

Davis v. Maynard , 911 F.2d 415, 417 (10th Cir.

1990). Further, the obvious strength of the States evidence at both phases of
trial undercuts Mr. Willinghams claim that the few remarks noted above played
any significant role in the proceedings. In sum, we cannot conclude that these
remarks, alone or considered together, rendered [Mr. Willinghams] trial
fundamentally unfair. The [OCCAs] decision denying . . . relief on these claims
was, therefore, not unreasonable.

Pickens , 206 F.3d at 1000 (quotation omitted).

-32-

IX. Ineffective Assistance of Counsel

None of Mr. Willinghams allegations of ineffective assistance were raised
on direct appeal. On state post-conviction, the OCCA held those relating to trial
were procedurally defaulted and those relating to appeal failed for lack of facts to
support a finding of deficient performance.

Willingham v. State , No. PC-97-389

(Okla. Crim. App. March 19, 1998). The district court approached the matter as
follows. First, it upheld the OCCAs denial of the appellate ineffectiveness claim
as reasonable under 2254(d). Second, it held that all of the trial ineffectiveness
allegations, except those relating to counsels failure to develop mental health and
related mitigation evidence, could have been pursued on direct appeal by separate
counsel and, thus, were properly barred under

English v. Cody , 146 F.3d 1257,

1263 (10th Cir. 1998). Finally, it reviewed the claim relating to the mental health
and mitigation evidence under

Strickland v. Washington , 466 U.S. 668 (1984),

and held that (1) the failure to obtain treatment records which counsel had been
told did not exist was not deficient performance, and (2) the failure to call certain
witnesses in mitigation, even if deficient, was not prejudicial.
Despite the significance of the district courts procedural bar holding, on
appeal Mr. Willingham does not mention, let alone meaningfully challenge, the
courts analysis in that regard. Rather, his appellate brief simply recites his
numerous complaints about counsel, many in very conclusory fashion, as if there
-33-

had been no procedural bar ruling undercutting most of them. We shall focus on
the primary claim decided on the merits by the district court, regarding the mental
health and mitigation evidence Mr. Willingham insists his counsel should have
developed and presented at trial. For procedural and substantive reasons, none of
his other allegations warrant specific comment.

Mr. Willingham cites three types of evidence in this regard: records of his
treatment for depression as a child; potential expert testimony regarding the
psychological consequences of his abusive upbringing; and lay testimony further
describing his troubled childhood. As for the treatment records, the district court
properly held two points undercut Mr. Willinghams claim. First, he admitted that
his counsel requested such records but were informed they did not exist. Second,
he did not suggest what counsel could have done differently to obtain the records
nor did he indicate what was contained in the records which could have altered
the outcome of his trial. Mr. Willinghams cursory discussion of the matter on
appeal does not in any way undermine the district courts analysis.
Mr. Willingham complains about two different categories of potential
expert testimony. The first involves certain experts who did not evaluate

Mr. Willingham has also summarily asserted ineffective assistance of

counsel in connection with many of the substantive claims addressed throughout
this opinion. As we have rejected these other matters on the merits, separate
consideration of the associated ineffective assistance claims is unnecessary.

-34-

Mr. Willingham until their recruitment by post-conviction counsel. His

allegations of ineffective assistance in this regard are explicitly derivative of his
complaint about counsels failure to obtain his childhood treatment recordsi.e.,
he argues that competent counsel would have obtained such evaluations

if

[t]imely edified by the treatment records. Aplt. Br. at 38. Because, as just
explained, counsel lacked those records through no fault of their own, the district
court reasonably rejected this aspect of Mr. Willinghams claim on the ground
that he had not suggested any viable basis for concluding that counsel should have
sought out the additional psychological evaluations.
Mr. Willingham also asserts that counsel were ineffective for failing to
call Phillip J. Murphy, Ph.D., to testify. Doctor Murphy had interviewed
Mr. Willingham prior to trial and concluded he was not typically a continuing
threat to society, especially in prison where there is a typical absence of older
females who are most likely to trigger his unresolved anger with his mother.
Post-Conviction App. Vol. 3, Psychological Report by Dr. Murphy at 2 (report
prepared for post-conviction proceeding but reciting pre-trial finding). Because
the continuing threat aggravator was ultimately rejected by the jury in any event,
the district court held Mr. Willingham could not show any prejudice in that
respect. As for counsels failure to call Dr. Murphy for more general mitigation
purposes, the district court held counsel could reasonably have concluded that his
-35-

testimony would not have been especially significant, or even favorable, to the
defense. We have reviewed Dr. Murphys report, and agree with that assessment.
Moreover, as the report indicates, and Mr. Willingham acknowledges in his
appellate brief, Dr. Murphys opinions about Mr. Willinghams post-traumatic
stress disorder and his love-hate relationship with his mother were dependent
upon Dr. Murphys review of the same treatment records discussed above, which
were not available to counsel.
Finally, Mr. Willingham argues that counsel should have called additional
lay witnesses to testify about his abusive upbringing by his mother. The district
court disposed of this aspect of his claim on

Strickland s prejudice prong. The

court noted that Mr. Willinghams mother testified for the defense regarding the
deplorable conditions under which he was raised, including their poverty and his
exposure to the abusive, drug-dependent men she dated. She also admitted she
was verbally and physically abusive to him, and would neglect him while she
stayed out all night at the bars. Since the other witnesses could have done little to
add to the substance of what Mr. Willinghams mother had said, the district court
concluded, correctly in our view, that no reasonable probability existed that their
testimony would have changed the outcome of the sentencing proceedings.
See generally Strickland , 466 U.S. at 695.

-36-

X. Cumulative Error
The OCCA rejected a cumulative error claim on Mr. Willinghams direct
appeal on the basis that hav[ing] found no single error requiring reversal, we
cannot find that the proceedings, as a whole, were unfair.

Willingham , 947 P.2d

at 1088. This rationale, taken on its face, would render the cumulative error
inquiry meaningless, since it indicates that cumulative error may be predicated
only upon individual error already requiring reversal. Instead, the proper inquiry
aggregates all the errors that individually might be harmless [and therefore
insufficient to require reversal], and it analyzes whether their cumulative effect
on the outcome of the trial is such that collectively they can no longer be
determined to be harmless.

United States v. Wood , 207 F.3d 1222, 1237

(10th Cir. 2000) (quotation omitted). We therefore consider Mr. Willinghams

cumulative error claim de novo, applying the controlling federal standard. S

ee

Herrera , 225 F.3d at 1179. The crux of our review is whether the defendants
substantial rights were affected.

Wood , 207 F.3d at 1237 (quotation omitted).

As indicated at various points throughout this opinion, the strength of the

States case on both guilt and aggravation effectively undercuts Mr. Willinghams
assertion of actionable prejudice in connection with the few errors which may
have occurred during the proceedings. Now, [c]onsidering [any such] errors in
the aggregate, we conclude upon review of the entire record that the cumulative
-37-

[effect] is harmless as well.

United States v. Becker , 230 F.3d 1224, 1233

(10th Cir. 2000), cert. denied , 121 S. Ct. 1666 (2001);

see also Moore v. Gibson ,

195 F.3d 1152, 1175 (10th Cir. 1999).

Accordingly, the judgment of the district court is AFFIRMED.

-38-

No. 01-6071, Willingham v. Gibson

BRISCOE, Circuit Judge, concurring:
I write only to address the issue of refusal to instruct on second-degree
murder. I would reach the same conclusion on the issue as the majority, but
would reach that conclusion by a different route.
The state trial court concluded the evidence was insufficient to support the
second-degree murder instruction. This decision by the state trial court is entitled
to deference under the AEDPA. See 28 U.S.C. 2254(d)(1).
Mr. Willinghams sole defense during the guilt phase of the trial was that,
although he brutally assaulted Mrs. Van Wey with the intent of injuring her, he
did not intend to kill her. That evidence is clearly overborne by the physical
evidence of the severity of Mrs. Van Weys injuries. The first police officer to
arrive at the scene testified that although he knew Mrs. Van Wey, he did not
recognize her because of the significant swelling and bruising of her face.
Dr. Chai Choi, who performed the autopsy, gave vivid testimony concerning
the severity of injuries to Mrs. Van Weys head and body. 1 The doctor
Dr. Choi testified that Mrs. Van Wey sustained the following injuries:
(1) a bruise on the top of her head, which could only have been caused by
violent, hard contact, (2) a bruise in the center of her skull above the eye
socket, which again could only have been caused by violent contact, (3) a broken
nose, (4) torn upper and lower lips, (5) a broken upper tooth, (6) bruises on her
upper and lower gums, (7) a bruise and scratch above her left eyebrow, caused
by some forcible rubbing onto some object, (8) a bruise on the left eye socket;
(9) a bruise on the lower left side of her cheek, which showed some pattern of
(continued...)

concluded these injuries were caused by repeated and violent blows.

I would give the trial courts decision the deference we are to give it
under the AEDPA and conclude in light of that deference that no reasonable jury
could have found that, in light of the severity of Mrs. Van Weys injuries,
Mr. Willingham did not intend to kill her.

(...continued)
something, doughnut shaped, double things, that kind of forced against, struck
onto such a fashion object (i.e., an impression was left on her face from the
object that struck her), (10) pinpoint hemorrhages underneath the skin across the
bridge of her nose and in the eye sockets, indicating some type of compression to
this region of her face (likely caused by placing a hand over her face), (11) at
least four separate injuries to her brain, each of which could have been caused by
some type of violent blow or contact, (12) a bruise on the inner part of her right
thigh and leg, (13) a bruise on the inside of her left arm, (14) bruises on her
mid-chest and breast area, (15) a bruise on the back of her right arm, and
(16) a scratch and a tear with a bruise just at the margin of the hymen, likely
caused by some type of strike. Tr. II at 7-27. Dr. Choi concluded that the injuries
would have resulted in Mrs. Van Weys airwell fill[ing] with . . . blood, in turn
causing her to drown[] in her own blood.
Id. at 32. The doctor further opined
that had she not drowned in her own blood, the injuries to her head likely would
have been sufficient to kill her.
Id. at 33.
1

-2-