F I L E D

United States Court of Appeals

Tenth Circuit

PUBLISH

FEB 20 2002

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

PATRICK FISHER
Clerk

SCOTT ALLEN HAIN,

Petitioner-Appellant,
v.

No. 01-5014

GARY E. GIBSON, Warden,

Respondent-Appellee.

Appeal from United States District Court

for the Northern District of Oklahoma
(D.C. No. 98-CV-331-BU)
Steven Michael Presson (Robert W. Jackson with him on the brief), Jackson & Presson,
P.C., Norman, Oklahoma, for the appellant.
Robert L. Whittaker, Assistant Attorney General (W.A. Drew Edmondson, Attorney
General of Oklahoma, with him on the brief), Oklahoma City, Oklahoma, for the
appellee.
Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.
BRISCOE, Circuit Judge
Petitioner Scott Allen Hain, an Oklahoma state prisoner sentenced to death for two
counts of first degree murder, appeals the district courts denial of his 28 U.S.C. 2254

petition for writ of habeas corpus. We exercise jurisdiction pursuant to 28 U.S.C. 1291
and affirm.
I.
The following is a summary of the facts as set forth by the Oklahoma Court of
Criminal Appeals (OCCA) in disposing of Hains initial direct appeal:
During the early morning hours of October 6, 1987, Laura Lee
Sanders and Michael Houghton were seated in Sanders car outside a Tulsa
bar when they were approached by two men, later determined to be Scott
Allen Hain and Robert Wayne Lambert. Hain and Lambert were in the
parking lot, waiting to rob a nearby house when they saw Sanders and
Houghton talking in the car. Appellant and Lambert forced their way into
the car by threatening Houghton with a knife.
Hain drove the car away from the bar, then stopped and robbed
Houghton at gunpoint. When Houghton resisted the robbery, Appellant
forced him into the trunk of the car. A short while later, Appellant and
Lambert stopped and put Sanders in the trunk as well.
After robbing Houghton and getting the keys to his truck, the two
men decided to go back to the bar where the incident began and take
Houghtons truck as well as Sanders car. Lambert drove the truck away
from Tulsa toward Sand Springs. He stopped after driving down a rural
Creek County roadway. Appellant followed in Sanders car with Sanders
and Houghton in the trunk.
The two men took Sanders things, including some clothes, out of
her car and put them in the truck. One of them cut the gas line to the car
and set it on fire by putting lighted newspaper and a blanket under the
dripping fuel line. Houghton and Sanders were banging on the trunk and
yelling. Appellant and Lambert left the area, however, returned a short time
later to see if the fire was burning well.
The two men stopped at a friends house in Jennings and left a bag
of things belonging to the victims in the garage. They traveled to Wichita,
Kansas in Houghtons truck. After spending the five hundred and sixty-five
($565.00) dollars which they got from Houghton and Sanders, the two
returned to Tulsa, where they were apprehended on the evening of October
9, 1987.
2

Hain v. State, 852 P.2d 744, 746-47 (Okla. Crim. App. 1993) (Hain I).
On October 13, 1987, Hain was charged by complaint and information in the
District Court of Creek County, Oklahoma, with two counts of first degree murder, two
counts of kidnapping, two counts of robbery with firearms, one count of arson in the third
degree, and two counts of larceny of an automobile. The State subsequently filed a bill of
particulars alleging the existence of three aggravating factors: (1) that Hain knowingly
created a great risk of death to more than one person; (2) that the murders were especially
heinous, atrocious or cruel; and (3) the existence of a probability that Hain would commit
criminal acts of violence that would constitute a continuing threat to society.
The case proceeded to trial in May 1988. At the conclusion of the first-stage
proceedings, the jury found Hain guilty as charged. At the conclusion of the second-stage
proceedings, the jury, having found the existence of all three aggravating factors alleged
by the prosecution, sentenced Hain to death on both of the first degree murder counts.
The jury also sentenced Hain to ten years on each kidnapping count, one hundred years on
each robbery with firearms count, twenty years on each larceny of an automobile count,
and fifteen years on the third degree arson count.
On direct appeal, the OCCA affirmed Hains convictions for murder, kidnapping,
larceny of an automobile, and third degree arson. Hain I, 852 P.2d at 753. Because of the
possibility that the jury convicted Hain under a theory of felony murder, the OCCA
reversed on double jeopardy grounds Hains convictions for robbery with firearms. Id. at
3

752. Lastly, because the trial court failed to instruct the jury with respect to the potential
punishment alternative of life without parole, the OCCA vacated Hains death sentences
and remanded for new sentencing proceedings. Id. at 753.
The resentencing proceedings commenced on September 22, 1994. The
prosecution alleged the existence of the same three aggravating factors alleged in the
original second stage proceedings, i.e., that Hain knowingly created a great risk of death
to more than one person, that the murders were especially heinous, atrocious or cruel, and
the existence of a probability that Hain would commit criminal acts of violence that
would constitute a continuing threat to society. To establish the first two factors, the
prosecution presented evidence outlining the nature of the murders. To support the third
factor, the prosecution presented evidence indicating that Hain and his co-defendant
Lambert had engaged in three violent crimes in the months leading up to the murders (the
assault and rape of a woman in her rural Kansas home, the kidnapping and rape of a
Wichita woman, and the robbery and attempted murder of a Tulsa couple, which included
the kidnapping and rape of the woman). In addition, the prosecution presented expert
psychiatric testimony indicating that Hains personality and psychological make-up made
him prone to violence. Lastly, the prosecution presented evidence indicating that Hain
had escaped from his jail cell while awaiting resentencing.
Hain attempted to counter the prosecutions evidence by presenting expert
testimony from two psychologists and a social worker, all of whom opined that Hain was
4

not prone to violence. In addition, Hain alleged and attempted to prove the following
mitigating circumstances: (1) his youth at the time of the crime; (2) his emotional,
psychological and mental age; (3) his blameworthiness; (4) the fact that he was dominated
by Lambert, his co-defendant; (5) his history of drug usage; (6) the State of Oklahomas
failure to provide appropriate treatment at earlier stages of his development; (7) a [f]ear
reaction to finding himself in a fugitive/captive situation; (8) the lack of personal
participation in the actual criminal acts (in comparison to the alleged participation of his
co-defendant); (9) his attempts to physically absent himself from the scene of the crime as
much as possible; (10) the lack of violence involved in his alleged escape attempt from
jail; (11) his attained educational level; and (12) his family history. State Record, Vol. 2
at 182 (resentencing proposed instr. No. 16). At the conclusion of the resentencing
proceedings, the jury found, with respect to both murder counts, the existence of all three
aggravating factors alleged by the prosecution and Hain was sentenced to death on both
counts.
Following his resentencing, Hain again filed a direct appeal with the OCCA. The
OCCA affirmed Hains death sentences. Hain v. State, 919 P.2d 1130 (Okla. Crim. App.
1996) (Hain II). Hain filed a petition for writ of certiorari which was denied by the
Supreme Court. Hain v. Oklahoma, 519 U.S. 1031 (1996). Hain filed an application for
post-conviction relief and the OCCA denied relief on May 1, 1998. Hain v. State, 962
P.2d 649 (Okla. Crim. App. 1998) (Hain III).
5

On July 30, 1998, Hain filed a petition for writ of habeas corpus asserting fourteen
grounds for relief, and the district court subsequently authorized Hains counsel to add an
additional claim to the petition. The district court denied Hains petition on December
18, 2000. The district court granted Hain a certificate of appealability (COA) with
respect to three of the issues raised in his habeas petition: (1) the propriety of the trial
courts decision to instruct on alternative theories of malice aforethought and felony
murder; (2) ineffective assistance of counsel; and (3) whether the International Covenant
on Civil and Political Rights prohibited the execution of juveniles. This court granted a
COA on two additional issues: whether the trial court erred in admitting victim impact
testimony and whether the trial court violated Hains right against self-incrimination by
ordering him to answer the prosecutors questions about unadjudicated crimes that
occurred in the State of Kansas.
II.
Because Hains federal habeas petition was filed after the effective date of the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), it is governed by the
provisions of the AEDPA. Wallace v. Ward, 191 F.3d 1235, 1240 (10th Cir. 1999), cert.
denied, 530 U.S. 1216 (2000). Under the AEDPA, the appropriate standard of review for
a particular claim is dictated by the treatment of that claim by the state courts. If a claim
was not decided on the merits by the state courts (and is not otherwise procedurally
barred), we may exercise our independent judgment in deciding the claim. See LaFevers
6

v. Gibson, 182 F.3d 705, 711 (10th Cir. 1999). In doing so, we review the federal district
courts conclusions of law de novo and its findings of fact, if any, for clear error. Id. If a
claim was adjudicated on its merits by the state courts, the petitioner will be 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, 28 U.S.C. 2254(d)(1), or was based on an
unreasonable determination of the facts in light of the evidence presented in the State
court proceeding. Id. 2254(d)(2). Thus, we may grant the writ if we find the state
court arrived at a conclusion opposite to that reached by the Supreme Court on a question
of law; decided the case differently than the Supreme Court has on a set of materially
indistinguishable facts; or unreasonably applied the governing legal principle to the facts
of the prisoners case. Van Woudenberg v. Gibson, 211 F.3d 560, 566 (10th Cir. 2000)
(citing Williams v. Taylor, 529 U.S. 362, 413 (2000)), cert. denied, 531 U.S. 1161 (2001).
III.
Felony murder instructions
Hain contends his due process rights were violated during the first-stage
proceedings because, even though he was charged with malice aforethought murder, the
trial court instructed the jury on alternative theories of malice aforethought and felony
murder. Hain argues that the trial courts actions resulted in a constructive amendment of
the complaint and information and deprived him of fair notice and an opportunity to
7

defend against the charges of felony murder.

As noted by Hain, the complaint and information charged him, in pertinent part,
with two counts of first degree malice aforethought murder.1 The complaint and
information did not specifically allege or otherwise mention first degree felony murder,
but did allege other crimes, including kidnapping and armed robbery. During the first
stage proceedings, the district court proposed instructing the jury on alternative theories
of first degree malice aforethought murder and first degree felony murder. Defense
counsel objected, arguing the State should be required to elect one theory or the other.
The prosecution argued that the court should instruct on any theory of the law that was
applicable to the evidence presented at trial. Defense counsel argued, in response, that
the killings were not an anticipated end to the robbery, and thus the theory of felony
murder was inapplicable. The trial court overruled defense counsels objections and

Count One, for example, charged as follows:

That the said defendants in the County and State aforesaid, on
the day and year aforesaid, while acting in concert each with
the other, with malice aforethought, did then and there
wilfully, unlawfully and feloniously, without authority of law,
effect the death of LAURA LEE SANDERS, by means of
burning, to-wit: by placing the victim in the trunk of a vehicle
and by means of a flammable substance setting fire to the said
vehicle, then and thereby inflicting mortal wounds in the body
of said LAURA LEE SANDERS, from which mortal wounds
the same LAURA LEE SANDERS did languish and die.
State Record, Doc. 1.
1

instructed the jury on both theories.2 Because the trial court used only general verdict
forms, it is unclear which theory the jury ultimately relied on in finding Hain guilty of the
two murder counts.
Hain first asserted the argument now raised in his application for post-conviction
relief.3 The OCCA concluded the argument was waived due to Hains failure to assert it
on direct appeal. Hain III, 962 P.2d at 651-52. The OCCA also rejected Hains argument
that appellate counsel was ineffective for failing to raise the issue on direct appeal. Id. at
653.
Hain does not contest the fact that the OCCAs procedural bar ruling rests on an
independent and adequate state procedural ground. See Hale v. Gibson, 227 F.3d 1298,
1328 (10th Cir. 2000) (holding that Oklahomas procedural bar rule, applicable to most
For example, Instruction Number 10 stated:
You are instructed that the statutes of the State of Oklahoma
provide in pertinent part:
A. A person commits murder in the first degree when he
unlawfully and with malice aforethought causes the death of another
human being.
B. A person also commits the crime of murder in the first degree
when he takes the life of a human being, regardless of malice, in the
commission of robbery with a dangerous weapon or in the
commission of kidnapping.
State trial record at 557. Other instructions set forth the specific elements of each theory.
2

In his initial direct appeal, Hain argued that error occurred when the jury was
not required to specify whether the guilty verdict was based on malice aforethought
murder or felony murder. Hain I, 852 P.2d at 752. The OCCA rejected that argument,
concluding [t]he verdict was proper and there [wa]s no error with regard to the murder
conviction. Id.
3

claims not raised on direct appeal, is independent and adequate default rule), cert. denied,
121 S. Ct. 2608 (2001). Instead, he attempts to establish cause and prejudice excusing the
procedural default by arguing that his appellate counsel was ineffective for failing to
assert the issue on direct appeal. See Coleman v. Thompson, 501 U.S. 722, 750 (1991)
(holding constitutionally ineffective assistance can establish cause excusing procedural
default).
Hains claim of ineffective assistance is governed by the familiar two-part test
announced in Strickland v. Washington, 466 U.S. 668 (1984). Under that test, Hain must
establish that (1) counsels performance fell below an objective standard of
reasonableness and (2) there is a reasonable probability that, but for counsels errors, the
outcome of the proceedings would have been different. Id. at 688, 694; see also
Kimmelman v. Morrison, 477 U.S. 365, 375 (1986). More specifically, in the context of
this appeal, Hain must establish that appellate counsel was objectively unreasonable in
failing to assert the claim on direct appeal, and that there is a reasonable probability that,
but for counsels failure to raise the issue, Hain would have prevailed in challenging his
murder convictions on direct appeal. See Neill v. Gibson, 278 F.3d 1044, 2001 WL
1584819 at *8 (10th Cir. 2001). In order to properly address these issues, we must look
to the merits of the omitted issue. Id. (quoting Hooks v. Ward, 184 F.3d 1206, 1221
(10th Cir. 1999)).
Before turning to the merits of the omitted issue, we note that our resolution of
10

Hains ineffective assistance claim is circumscribed by the OCCAs own resolution of

that claim. As previously noted, Hain asserted the identical ineffective assistance claim in
his application for post-conviction relief, and the OCCA resolved it against him on the
grounds that appellate counsels performance was not deficient. Hain III, 962 P.2d at
653. Under the AEDPA standards of review, we are bound by that determination unless
we conclude the OCCA unreasonably applied Strickland in reaching this determination.
See 28 U.S.C. 2254(d)(1).
Hain bases his substantive argument on the Supreme Courts statement in Jackson
v. Virginia, 443 U.S. 307, 314 (1979), that a conviction upon a charge not made . . .
constitutes a denial of due process. This principle in turn rests on the broader premise
that a person cannot incur the loss of liberty for an offense without notice and a
meaningful opportunity to defend. Id.; see Stirone v. United States, 361 U.S. 212, 217
(1960) (noting that a court cannot permit a defendant to be tried on charges that are not
made in the indictment against him); Cole v. Arkansas, 333 U.S. 196, 201 (1948)
(holding that notice of the specific charge, and a chance to be heard in a trial of the
issues raised by that charge, if desired, are among the constitutional rights of every
accused in a criminal proceeding in all courts, state or federal); Johnson v. Gibson, 169
F.3d 1239, 1252 (10th Cir. 1999) (A charging instrument may violate the Sixth
Amendment by failing to provide a defendant with adequate notice of the nature and
cause of the accusations filed against him.); Hunter v. State of New Mexico, 916 F.2d
11

595, 599 (10th Cir. 1990) (noting that the specific inquiry in deciding whether a
constructive amendment of the indictment has occurred is whether the jury was
permitted to convict the defendant upon a set of facts distinctly different from that set
forth in the indictment) (internal quotation omitted). To determine whether a state
habeas petitioner has been convicted of a crime not set forth in the charging instrument,
courts look to the law of the state where the petitioner was convicted. See Jones v. Smith,
231 F.3d 1227, 1233 (9th Cir. 2001) (noting that the difference between a constructive
amendment and a mere variance . . . hinge[s] on whether the crime specified in the
indictment/information and the crime for which the defendant was convicted are separate
offenses under state law); Jenkins v. Nelson, 157 F.3d 485, 498-99 (7th Cir. 1998);
Cokeley v. Lockhart, 951 F.2d 916, 919 (8th Cir. 1991).
Oklahoma statutes have long defined the offense of murder4 or first degree
murder as encompassing both malice aforethought murder and felony murder. E.g.,
Tucker v. State, 92 P.2d 595, 597 (Okla. Crim. App. 1939) (outlining the provisions of
the 1931 version of the Oklahoma murder statute). Consistent therewith, the OCCA has
characterized malice aforethought murder and felony murder as different theories for the

The 1931 version (as well as earlier versions) of the Oklahoma murder statute
did not distinguish between degrees of murder. Instead, malice aforethought, felony
murder, and what would now be characterized as second degree murder all fell within the
single offense of murder. This was consistent with the common-law crime of murder.
See Schad v. Arizona, 501 U.S. 624, 648 (1991) (Scalia, J., concurring).
4

12

same general offense of first degree murder,5 and has held that a defendant charged with
malice aforethought murder can be convicted at trial of felony murder if the evidence
supports such a conviction. E.g., Wilson v. State, 983 P.2d 448, 463 (Okla. Crim. App.
1998) (referring to different theories of first degree murder); Munson v. State, 758 P.2d
324, 332 (Okla. Crim. App. 1988) (noting long-standing Oklahoma law that where an
information charges first degree malice aforethought murder, a conviction may be had for
felony-murder if supported by the evidence); Evinger v. State, 45 P.2d 552, 559 (Okla.
Crim. App. 1935) (noting that where an information charges first degree malice
aforethought murder, a conviction may be had, if warranted by the evidence, under the
other subdivisions of the first degree murder statute); Ware v. State, 288 P. 374, 383
(Okla. Crim. App. 1930) (noting the accused may be charged with the crime of murder
alleged to have been committed with premeditated design to effect death under the first
subdivision of the [1931 murder] statute, and a conviction had under the proof of killing,
in the commission of a felony as proved under the third subdivision of the statute); see
also Easley v. State, 143 P.2d 166, 167 (Okla. Crim. App. 1943) (noting [t]hat when an
information for murder charges that the homicide was unlawfully committed with a

This view appears to be consistent with that embraced by at least a plurality of

the Supreme Court. See Schad, 501 U.S. at 649 (Scalia, J., concurring) (noting that most
States [now] have a single crime of first-degree murder that can be committed by killing
in the course of a robbery as well as premeditated killing and rejecting the notion that
the Due Process Clause of the Fourteenth Amendment requires the subdivision of that
crime into (at least) premeditated murder and felony murder).
5

13

premeditated design to effect the death of the deceased, it includes every character and
degree of unlawful homicide).
In light of this authority, we conclude the information filed against Hain
reasonably placed him on notice that he could be convicted at trial of first degree felony
murder. As noted, the information alleged that he and co-defendant Lambert effected the
death of the two victims by placing them in the trunk of a vehicle and setting fire to the
vehicle. The information further alleged that Hain and Lambert committed seven
additional felonies, all of which occurred on the same date and were part of a common
scheme. Under Oklahoma law, we believe these allegations were sufficient to reasonably
place Hain on notice that he could be convicted at trial under alternative theories of
malice aforethought or felony murder.
Several additional factors bolster our conclusion that Hains due process rights
were not violated. First, after examining the trial transcript, we note that the evidence
presented by the prosecution at trial was entirely consistent with the set of facts alleged in
the information. In other words, it is clear from the record that Hains murder convictions
were not based on an entirely separate uncharged set of facts. Jenkins, 157 F.3d at 498.
Second, Hains trial counsel did not argue lack of notice or prejudice at the time the trial
court proposed instructing the jury on the theory of felony murder, nor is there any
indication in the trial transcript that trial counsel attempted to defend Hain under the
assumption that felony murder would not be at issue. Indeed, we note that trial counsel
14

relied primarily on an insanity defense,6 which, under Oklahoma law, is applicable to both
malice aforethought and felony murder. See Ullery v. State, 988 P.2d 332, 351 (Okla.
Crim. App. 1999). Third, our review of the record leads us to conclude the evidence
presented at trial was more than sufficient to support Hains convictions under either
theory of first degree murder.
Although Hain attempts to draw support from the OCCAs resolution of his codefendants direct appeal, we conclude the two cases are not, as Hain suggests, identical.
Hains co-defendant was tried separately before the same trial judge. As in Hains trial,
the trial court instructed the jury on alternate theories of malice aforethought murder and
felony murder, even though the complaint and information charged Lambert only with
malice aforethought murder. Lambert was found guilty of the murder charges but, as
with defendant Hain, the use of general verdict forms prevented a determination of the
specific theory relied on by the jury in reaching its verdicts. On direct appeal, the OCCA
reversed Lamberts murder convictions. Lambert v. State, 888 P.2d 494, 504 (Okla.

During the first-stage proceedings, Hains trial counsel presented testimony from
a clinical psychologist who opined that Hain, due to his emotional problems and
personality make-up, was very likely not conscious of any potential consequences of his
behavior or actions during the crime, Tr. at 734, and could be seen as not understanding
the nature nor the consequences of any acts or acts of omission. Id. at 736. During firststage closing arguments, Hains trial counsel addressed both theories of first degree
murder, arguing that Hain did not intend to kill anybody and that the deaths of the victims
were not the approximate or expected result of the other charged felonies. Id. at 919, 921.
Ultimately, however, Hains trial counsel asked the jury to find Hain not guilty by reason
of insanity. Id. at 930.
6

15

Crim. App. 1994). In doing so, the OCCA concluded that Lambert was prejudiced by the
failure to charge felony murder in the information because he had testified at trial that he
committed the robbery and kidnapping but never intended to kill anyone and that he
objected when Hain allegedly set fire to the vehicle. More specifically, the OCCA agreed
with Lambert that he had demonstrated prejudice resulting from the failure to specify
felony murder in the information, in that he would never have willingly admitted to the
jury that he committed a crime which would have resulted in his receiving the death
penalty.7 Id.
Notably, in reversing Lamberts murder convictions, the OCCA specifically stated
that Hain was not entitled to relief on the same issue:
We find it necessary to clarify that the same problem did not arise in the
case of [Lamberts] co-defendant, Scott Allen Hain, F-88-466. Mr. Hain
did not testify at trial, and is therefore unable to show any prejudice from
the failure to charge felony murder in the information, as is present in
[Lamberts] case.
Id. at 504 n.1.
For these reasons, we believe the OCCA reasonably applied Strickland in
concluding Hains appellate counsel did not perform deficiently by failing to raise the

In Lambert, the OCCA stated, in part, that the trial court instructed on a crime
[felony murder] not charged in the information. 888 P.2d at 503. This statement
appears to be clearly inconsistent with the Oklahoma criminal statutes and the pre- and
post-Lambert authority outlined above. In any event, it appears clear that the controlling
factor in Lambert was that Lambert demonstrated, to the OCCAs satisfaction, that the
information misled him in the presentation of his defense.
7

16

issue on direct appeal. Not only does the record fail to establish a violation of Hains due
process rights, we are confident the OCCA would not have granted relief on the issue had
it been raised by Hains appellate counsel. Thus, we in turn conclude that Hain cannot
establish cause and prejudice sufficient to overcome the OCCAs procedural bar ruling on
the merits of his substantive due process claim.

Admission of victim impact testimony

Hain contends the admission of victim impact testimony during the resentencing
proceedings was so far out of permissible constitutional bounds . . . as to deprive him of
a fair sentencing hearing and due process of law. Hains Opening Br. at 33. To properly
address Hains contention, we begin by reviewing the relevant events that transpired
during the sentencing proceedings.
Prior to trial, five of the victims family members prepared written victim impact
statements. Those statements were reviewed and redacted in part by the prosecution and
the trial court. During the resentencing proceedings, the prosecution, over the objection
of defense counsel, presented each of the five family members and had them read their
redacted statements to the jury.
William Sanders, the brother of victim Laura Lee Sanders, testified in pertinent
part:
The extremely violent nature of this crime and the total lack of
respect for human life have shocked shocked me. Absolutely everyone is
17

brought up knowing the difference between right and wrong, and murder is
wrong. Once a crime of this magnitude has been com committed, a
person must expect to be punished to the fullest full extent of the law.
Life, life without [parole], and death; these are the choices? All I can say
for sure is that I know my sister was not given a choice between life or
death. It has been seven years since my sister was murdered, and Im still
looking forward to the time when I can remember who she was and not the
horrific images portrayed of her during these during the various court
proceedings.
The guilt has been established, and I feel strongly that the
punishment should reflect the severity of the crime.
Vol. I of Resentencing Proceedings (9/26/94) at 211-12. Carol Lee Sanders, Laura Lee
Sanders mother, testified in pertinent part:
It is very difficult for me to find words to express the horror, anger
and disbelief that we felt and still feel, knowing that Laura Lee was put in
the trunk of a car and burned alive while the ones who lit the fire listened to
their screams for help, and yet only made sure that the car was burning good
before they left. Add to that the fact that Laura Lee and Mike had done
nothing to deserve this and had no idea who the people were that took it
upon themselves to murder them. It is hard for us to imagine that anyone
could have that much hate and meanness in them. These things make it
even more difficult for us to accept her death.
In the past seven years, we have been trying to deal with not only the
loss of Laura Lee, but also with the heinous manner in which she was
murdered. We know how very scared she must have been from the time she
was kidnapped and put in the trunk of her car. It hurts every time I think of
the horror that she must have felt during her last minutes on this earth with
the smell of gasoline, followed by the smoke, and then the heat of the
flames, and having no way to escape. Every time I see a picture of a
burning car on television or in a movie, it feels like someone has just kicked
me in the stomach.
Several months ago, I had to have both of our dogs put to sleep. As I
held them while the doctor gave them a shot, I saw them die very peacefully
in my arms. I couldnt help but think of Laura Lee and Mike again and
wish that they had been able to die that peacefully.
***
In order for true justice to be done in this case, I feel that Scott Hain
18

should also be sentenced to death. Somebody with his mind-set should not
be allowed to get off with anything less than the death penalty. There is
absolutely no reason why anyone else should ever be subjected to his
heinous acts of violence and to go through the pain and suffering that our
families have had to endure for the past seven years.
Id. at 214-17.
Tena Houghton, victim Michael Houghtons wife, testified in pertinent part:
I cannot watch a t.v. show or a movie with a fire scene in it, without
closing my eyes or turning away, because these scenes bring back the
pictures in my mind of Michaels body kicking and struggling and
searching for a way out of that trunk. The heat, the fear, the pain that
Michael suffered, I cant even begin to comprehend. The mental pictures of
this man that I loved so deeply being burnt alive to the point of being
unrecognizable are almost unbearable.
Id. at 220.
Scott Hain was fully aware that he was taking the life of two young
and beautiful people, so aware, in fact, that he went back to the burning car,
not to stop this horrible thing but to make sure it was going to do the job
and make sure that Michael and Laura Lee would die. He heard Michael
and Laura Lee screaming with pain and terror, saw the car burning, but still
did nothing to stop the horrible set of events which he had set into motion.
Id. at 223. Delma Houghton, Michael Houghtons mother, testified: Ive tried holding a
lighted match to my finger, but I jerked it away. I tried touching the electric element in
my stove, but I couldnt. I wanted to hurt myself and take away some of Mikes pain.
Id. at 226. She further testified
I never had a chance to say goodbye to Mike. His body was so
charred, he had to be buried in a plastic bag. His beautiful hair was burned
off, his nimble fingers were burned off. The medical examiner says his
sparkly and gentle eyes were like hardboiled eggs, and he tried until he
could try no more to beat the trunk open.
19

Id. at 228.
I do want justice for all of us who loved him, but mostly for Michael
and Laura Lee, who are not here to speak for themselves. I believe Scott
Allen Hain should be sentenced to death. He did not know Mike or Laura
Lee, nor did he care who they were. He wanted to kill someone. We had to
have our 10-year-old Golden Retriever put to sleep. I held her while the
lethal injection was administered. She quivered a little and went gently to
sleep. All I could think of was that I wished Mike and Laura Lee could
have met death so gently.
Until the death penalty is carried out, there is always the chance he
could be released. I believe if you take a life, your life should be taken
unless it is self-defense or to save the life of another. The only true justice
would be to have Mike and Laura Lee returned to us. We know that cannot
be. I feel our families have been serving a death sentence for almost seven
years. Mike and Laura Lee received the death penalty without a trial, with
no appeals, with no mercy and for no reason; they had committed no crime.
Id. at 229. Ashley Houghton, Michael Houghtons father, testified in part:
All that I, Michael and his family want is justice. I believe that the
death sentence is deserved. The brutal way Michael was murdered, the
brutal way the murder was carried out and the suffering that Michael and
Laura Lee went through in the trunk of the car shows the total disregard for
for life that Scott Hain has. He deserves the death penalty.
Id. at 234.
Hain challenged the admission of this testimony in his direct appeal following the
resentencing proceedings.8 The OCCA concluded that two portions of the challenged

Hain specifically highlighted only three of these statements: Delma Houghtons

statement she wished her son could have died a gentle death, as the family dog had
experienced who was given a lethal injection, quivered a little and went to sleep;
[William] Sanders opinion death was the only appropriate punishment for Appellant and
Tena Houghtons references to the unbearable pain of burning to death. Hain II, 919
P.2d at 1144.
8

20

testimony should not have been admitted, but were nevertheless harmless:
Title 22 O.S.Supp.1993, 984 provides victim impact evidence
should be limited to the financial, emotional, psychological, and physical
effects, or impact of the crime itself on the victim's survivors; as well as
some personal characteristics of the victim. As long as these personal
characteristics show how the loss of the victim will financially, emotionally,
psychologically, or physically impact on those affected, it is relevant, as it
gives the jury a glimpse of the life which the defendant chose to
extinguish. However, these personal characteristics should constitute a
quick glimpse, and its use should be limited to showing how the victims
death is affecting or might affect the victims survivors, and why the victim
should not have been killed. At trial, objections to victim impact evidence
are to be based upon its relevance to the guidelines set forth in 984.
Objections such as those made in the present case, while legitimate
concerns, are not proper and do not provide sufficient ground to exclude
any evidence.
Reviewing the challenged comments, we find only one improper.
Section 984(1) defines victim impact statements and allows for the victims
opinion of a recommended sentence. We find this includes the opinion of a
member of the victims immediate family as defined in 22 O.S.Supp.1993,
984(2) regarding a recommended sentence. Therefore, Mr. Sanders
opinion of the appropriateness of the death penalty was in accordance with
the statutory provisions. (Footnote omitted.)9
Section 984(1) also provides for information about the manner in
which the crime was committed. Tena Houghtons statement was therefore
relevant. However, Delma Houghtons comment was not relevant to the
manner in which the crime was perpetrated, nor was it relevant to the
financial, emotional, psychological, or physical impact of the crime on the
victim's survivors. It was purely an emotional plea which is not statutorily
permitted. The consequences of the improper admission of this statement is
addressed in the Mandatory Sentence Review.

In the omitted footnote, the OCCA acknowledged that the evidence may not
pass scrutiny by the United States Supreme Court in light of its decision in Payne v.
Tennessee, 501 U.S. 808, 830 (1991). Hain II, 919 P.2d at 1144 n.3. The OCCA
nevertheless concluded that [a]ny error in the admission of the evidence [wa]s
harmless. Id.
9

21

Hain II, 919 P.2d at 1144 (internal citations omitted).

Upon our review of the record and careful weighing of the
aggravating circumstances and the mitigating evidence, we find the
sentence of death to be factually substantiated and appropriate. Under the
record before this Court, we cannot say the jury was influenced by passion,
prejudice, or any other arbitrary factor contrary to 21 O.S. Supp. 1987,
701.13(C), in finding that the aggravating circumstances outweighed the
mitigating evidence. Any improper victim impact evidence admitted was
harmless beyond a reasonable doubt. There was sufficient evidence,
independent of the victim impact evidence, to support the aggravating
circumstances.
Id. at 1149.
In Booth v. Maryland, 482 U.S. 496, 501-02 (1987), the Supreme Court addressed
the question of whether the Eighth Amendment prohibits a capital sentencing jury from
considering victim impact evidence. The petitioner in Booth had been convicted of two
counts of first-degree murder and sentenced to death. During the sentencing phase of his
trial, the prosecution, consistent with Maryland law, presented a written victim impact
statement (VIS) that provided the jury with two types of information. First, it described
the personal characteristics of the victims and the emotional impact of the crimes on the
family. Second, it set forth the family members opinions and characterizations of the
crimes and the defendant. Id. at 502. The Supreme Court, by a 5-4 majority, concluded
that victim impact evidence was per se inadmissible during the sentencing phase of a
capital trial, except to the extent that it related directly to the circumstances of the
crime. Id. at 507 n.10. With respect to the first type of information contained in the
VIS, the Court determined it might be wholly unrelated to the blameworthiness of a
22

particular defendant, id. at 504, and, in any event, create[d] an impermissible risk that
the capital sentencing decision w[ould] be made in an arbitrary manner. Id. at 505. As
for the second type of information contained in the VIS (family members opinions and
characterizations of the crimes), the Court concluded it could serve no other purpose
than to inflame the jury and divert it from deciding the case on the relevant evidence
concerning the crime and the defendant. Id. at 508.
In 1989, the Court extended the rule announced in Booth to statements made by a
prosecutor to a capital sentencing jury regarding the personal qualities of the victim. See
South Carolina v. Gathers, 490 U.S. 805 (1989).
In 1991, the Court revisited these issues, and partially reversed course, in Payne v.
Tennessee, 501 U.S. 808 (1991). The petitioner in Payne was sentenced to death for the
murders of a 28-year-old woman and her 2-year-old daughter. During the sentencing
phase of trial, the prosecution presented testimony from the adult victims mother, who
testified about the physical and emotional impact the murders had on the adult victims 3year-old son (who had also been assaulted by the defendant but had survived). The
prosecutor commented on this testimony during closing arguments in the sentencing
phase and emphasized the continuing effects of the boys experience. The Court,
expressly overruling its decisions in Booth and Gathers, held that if the State chooses to
permit the admission of victim impact evidence and prosecutorial argument on that

23

subject, the Eighth Amendment erects no per se bar. Id. at 827.10 Instead, the Court
held, the only constitutional limitation on such evidence is if it is so unduly prejudicial
that it renders the trial fundamentally unfair. Id. at 825. In such an event, the Court
indicated, the Due Process Clause of the Fourteenth Amendment provides a mechanism
for relief. Id.
Importantly, Payne left one significant portion of Booth untouched. Unlike Booth,
Payne did not involve any testimony or statements from the victims family members
regarding their opinions and characterizations of the crimes and the defendant. Booth,
482 U.S. at 502. Thus, although the Court expressly overruled Booth, it stated in a
footnote:

In reaching this conclusion, the Court specifically outlined why victim impact
evidence was relevant to a capital jurys sentencing decision:
We are now of the view that a State may properly conclude that for the jury
to assess meaningfully the defendants moral culpability and
blameworthiness, it should have before it at the sentencing phase evidence
of the specific harm caused by the defendant. [T]he State has a legitimate
interest in counteracting the mitigating evidence which the defendant is
entitled to put in, by reminding the sentencer that just as the murderer
should be considered as an individual, so too the victim is an individual
whose death represents a unique loss to society and in particular to his
family. Booth, 482 U.S., at 517, 107 S. Ct. at 2540 (WHITE, J.,
dissenting). By turning the victim into a faceless stranger at the penalty
phase of a capital trial, Gathers, 490 U.S., at 821, 109 S. Ct. at 2216
(O'CONNOR, J., dissenting), Booth deprives the State of the full moral
force of its evidence and may prevent the jury from having before it all the
information necessary to determine the proper punishment for a first-degree
murder.
Id. at 825.
10

24

Our holding today is limited to the holding[] in Booth . . . that evidence . . .

relating to the victim and the impact of the victims death on the victims
family [is] inadmissible at a capital sentencing hearing. Booth also held
that the admission of a victims family members characterizations and
opinions about the crime, the defendant, and the appropriate sentence
violates the Eighth Amendment. No evidence of the latter sort was
presented at the trial in this case.
Payne, 501 U.S. at 830 n.2. To date, three circuits, including our own, have expressly
recognized that the portion of Booth prohibiting family members of a victim from stating
characterizations and opinions about the crime, the defendant, and the appropriate
sentence during the penalty phase of a capital trial survived the holding in Payne and
remains valid. See Parker v. Bowersox, 188 F.3d 923, 931 (8th Cir. 1999), cert. denied,
529 U.S. 1038 (2000); United States v. McVeigh, 153 F.3d 1166, 1217 (10th Cir. 1998);
Woods v. Johnson, 75 F.3d 1017, 1038 (5th Cir. 1996); Robison v. Maynard, 943 F.2d
1216, 1217 (10th Cir. 1991); but see Alley v. Bell, 101 F. Supp. 2d 588, 648 n.46 (W.D.
Tenn. 2000) (Petitioner argues that Payne left portions of Booth intact, but this Court
does not read Payne as so limited.).
Turning to Hains arguments, we agree that some of the testimony he now
challenges was improperly admitted and resulted in the violation of his Eighth
Amendment rights. Most significantly, four of the five witnesses (William Sanders, Carol
Lee Sanders, Delma Houghton and Ashley Houghton) expressed their views of the
appropriate punishment for Hain, all stating (or at least strongly implying) they thought he
should receive the death penalty. This testimony was clearly contrary to Payne and Booth
25

and resulted in a violation of Hains Eighth Amendment rights. Further, four of the
witnesses (Carol Lee Sanders, Tena Houghton, Delma Houghton and Ashley Houghton)
commented in one way or another on Hain and the crime (e.g., stating it was hard to
imagine that anyone could have that much hate and meanness in them, criticizing Hain
for being fully aware that he was taking the life of two young and beautiful people, for
returning to the car to make sure it was going to do the job and make sure that Michael
and Laura Lee would die, and for failing to do anything to stop the horrible set of
events which he had set into motion). Again, this testimony was contrary to Payne and
Booth, and violated Hains Eighth Amendment rights.
The remaining question is whether the error was harmless, or instead requires the
reversal of Hains death sentences. The OCCA addressed this point in disposing of
Hains direct appeal following resentencing, concluding that any constitutional errors
arising out of the admission of the victim impact testimony were harmless. Hain II, 919
P.2d at 1144 n.3. Under the AEDPA, our task is to decide whether the OCCAs
conclusion was reasonable.11 See 28 U.S.C. 2254(d)(1).
The decision in Booth does not expressly indicate whether the Court believed
such errors to be trial errors subject to harmless error review, or structural error requiring
automatic reversal. Further, the Courts language remanding the case to the Maryland
state courts is somewhat cryptic and could conceivably be construed either way. See 482
U.S. at 509 (The decision of the Maryland Court of Appeals is vacated to the extent that
it affirmed the capital sentence. The case is remanded for further proceedings not
inconsistent with this opinion.). Nevertheless, we do not believe the OCCA
unreasonably applied Booth in concluding that such errors are subject to harmless error
review. See Clemons v. Mississippi, 494 U.S. 738, 754 (1990) (indicating it is
11

26

After carefully examining the transcript of the resentencing proceedings, three

factors convince us that the OCCAs conclusion was reasonable under 2254(d)(1).
First, the horrific nature of the murders was uncontroverted. Indeed, Hains defense
counsel conceded, and the jury specifically found, that the murders were especially
heinous, atrocious or cruel under Oklahoma law. Second, the evidence of Hains guilt
was substantial. At best, Hain was a knowing and willing participant in a robbery and
kidnapping scheme that resulted in the arson of a stolen vehicle and the deaths of two
victims. At worst, Hain intended to cause the deaths of the two victims, and not only
assisted in setting fire to the stolen vehicle, but stood by and watched as the victims
screamed for help, and subsequently returned to the scene of the crime to ensure that the
vehicle was still burning. Finally, substantial evidence supports the jurys finding that
Hain was a continuing threat to society. In particular, the prosecution presented evidence
that Hain and co-defendant Lambert committed a string of violent crimes, including
rapes, sexual assault, kidnapping, and attempted murder, between July and September
1987. In sum, we conclude beyond a reasonable doubt that the jury would have imposed
a sentence of death even absent the improper victim impact testimony.
constitutionally permissible for a state appellate court to engage in reweighing or
harmless-error analysis when errors have occurred in a capital sentencing proceeding);
Rose v. Clark, 478 U.S. 570, 579 (1986) ([I]f the defendant had counsel and was tried by
an impartial adjudicator, there is a strong presumption that any other [constitutional]
errors that may have occurred are subject to harmless-error analysis.); United States v.
McVeigh, 153 F.3d 1166, 1203 (10th Cir. 1998) (applying harmless error review where
trial court may have abused its discretion in admitting certain victim impact testimony).
27

Hain also argues that the trial court erred in failing to instruct the jury regarding
the proper use of the victim impact testimony. Hains defense counsel did not raise this
issue at trial, however, and it does not appear that Hain attempted to present the issue to
the OCCA. Because the claim is unexhausted and would be procedurally barred under
Oklahoma law if Hain now attempted to present it to the OCCA, see Okla. Stat. tit. 22,
1086, we need not address it as no cause and prejudice has been alleged, and Hain
cannot establish that a fundamental miscarriage of justice would occur if the claim is not
addressed. See Coleman, 501 U.S. at 735 n.1.

Violation of Hains Fifth Amendment rights

Hain contends the trial court violated his Fifth Amendment rights when, during his
sentencing phase testimony, it compelled him to answer questions from the prosecutor
regarding unadjudicated crimes he may have committed in the State of Kansas. In
seeking to establish the continuing threat aggravator, the prosecution presented evidence
of both adjudicated and unadjudicated crimes committed by Hain. With respect to
adjudicated crimes, the prosecution presented evidence that, on September 24, 1987, in
the City of Tulsa, Hain and Lambert robbed, kidnapped and attempted to murder Derek
Wunsch and Heather Rogers (Hain pled guilty to these crimes). With respect to
unadjudicated crimes, the prosecution presented evidence of two offenses committed by
Hain and Lambert in the State of Kansas. The first of these was the July 10, 1987,
28

abduction, rape and sodomy of Wichita resident Mary Hofford. The second was the
September 5, 1987, assault and rape by instrumentation of Goddard resident Phyllis
Comstock. In all three of these instances, the prosecution presented testimony from the
victims of the crimes.
The OCCA described Hains response to this evidence and the subsequent chain of
events:
Prior to the introduction of this evidence, Appellant objected,
arguing that such evidence forced him either to let the evidence go
unanswered or give up his Fifth Amendment right to silence and respond to
the evidence. The trial court ruled that if Appellant needed to respond to
the evidence, he would be granted immunity from prosecution for the
unadjudicated offenses.
During the defense case-in-chief, Appellant took the witness stand.
He testified to his childhood, the 1987 robbery, kidnaping and attempted
murder of Derek Wunsch and Heather Rogers (crimes for which Appellant
pled guilty), and the circumstances surrounding the Houghton and Sanders
murders. On cross-examination, the prosecution asked Appellant if he had
committed a rape and burglary against Ms. Comstock. Appellant denied
committing the offenses. There was not a timely objection to this first
question. However, after Appellants response, defense counsel objected
on grounds the evidence was an unadjudicated offense, and Appellant was
being forced to give up his Fifth Amendment right to silence. Counsel
informed the court he was going to advise Appellant not to answer the
question and not to answer any questions pertaining to the Comstock and
Hofford matters. The trial court overruled the defense objection, granted
Appellant immunity from prosecution in the Comstock and Hofford matters
and directed Appellant to answer questions on those matters or be held in
contempt of court. When asked about the rape and sodomy committed
against Ms. Hofford, Appellant denied commission of those offenses.
Hain II, 919 P.2d at 1140-41.
In his direct appeal following resentencing, Hain complained about the trial court
29

forcing him to respond to the prosecutions questions. The OCCA agreed that the trial
courts actions were improper, but concluded the resulting error was harmless:
[W]e find the trial court erred in granting Appellant immunity in exchange
for his testimony concerning the unadjudicated offenses. The trial court had
no authority to grant Appellant immunity from the prosecution of offenses
committed in the State of Kansas. The legal authority of judges in the State
of Oklahoma extends only to offenses committed in the State of Oklahoma.
20 O.S. 1991, 91.1. Criminal offenses committed in other states [are]
beyond the purview of the Oklahoma state judicial system.
This erroneous grant of immunity resulted in the admission of
testimony in violation of the Fifth Amendment Self-Incrimination Clause.
This error, albeit constitutional, is subject to a harmless error analysis as it
was an error in the trial process itself, and not a defect affecting the entire
framework of the trial. . . .
***
In the present case, evidence of the unadjudicated offenses, as
testified to by Ms. Hofford and Ms. Comstock, was properly admitted.
When asked about those unadjudicated offenses at trial, Appellant denied
them. The jury had no more information before it in deciding the existence
of the continuing threat aggravator than if Appellant had remained silent
on the issue. In fact, Appellants denial may have been more to his benefit
since his silence could have invited negative inferences from the jury.
Appellants testimony on the unadjudicated offenses had little if any impact
on the jurys consideration of the continuing threat aggravator.
Therefore, we find admission of Appellants testimony concerning the
unadjudicated offenses harmless beyond a reasonable doubt. This
assignment of error is denied.
Hain II, 919 P.2d at 1141-42.
The Fifth Amendment provides that [n]o person . . . shall be compelled in any
criminal case to be a witness against himself. Ohio v. Reiner, 532 U.S. 17, 121 S. Ct.
1252, 1254 (2001) (quoting U.S. Const., Amdt. 5). [T]his privilege extends not only to
answers that would in themselves support a conviction . . . but likewise embraces those
30

which would furnish a link in the chain of evidence needed to prosecute the claimant.
Id. (quoting Hoffman v. United States, 341 U.S. 479, 486 (1951)). [I]t need only be
evident from the implications of the question, in the setting in which it is asked, that a
responsive answer to the question or an explanation of why it cannot be answered might
be dangerous because injurious disclosure could result. Id. (quoting Hoffman, 341 U.S.
at 486-487). The Supreme Court has given the privilege a broad scope, explaining that it
protects against any disclosures which the witness reasonably believes could be used in a
criminal prosecution or could lead to other evidence that might be so used. Kastigar v.
United States, 406 U.S. 441, 444-45 (1972) (footnote omitted). Consistent with this
broad interpretation, the Court has held that this privilege serves to protect the innocent
who otherwise might be ensnared by ambiguous circumstances. Slochower v. Board of
Higher Ed. of New York City, 350 U.S. 551, 557-558 (1956).
Despite the Courts broad interpretation of the privilege, it has long been held that
a criminal defendant can waive the privilege by taking the stand in his own behalf. See
McGautha v. California, 402 U.S. 183, 215 (1971). In such circumstances, the defendant
is subject to cross-examination on matters reasonably related to the subject matter of his
direct examination. Id.
Here, the OCCA was clearly correct in concluding that the trial court exceeded its
authority when it purportedly granted Hain immunity from prosecution on the
unadjudicated crimes. Although the OCCA in turn concluded that this resulted in a
31

violation of Hains Fifth Amendment rights, we disagree. We instead agree with the
federal district court that Hain made at least two remarks during his direct examination
that opened the door for the prosecution to cross-examine him regarding the two
unadjudicated Kansas crimes. First, Hain testified on direct examination that he did not
meet Lambert until early September 1987. Resentencing Tr., Vol. II at 370. Obviously,
this testimony contradicted Hoffords testimony that she was abducted, kidnapped, and
sexually assaulted by Hain and Lambert in Wichita on July 10, 1987. Second, and
perhaps most importantly, Hain testified on direct exam that he had never committed a
violent act prior to the September 24, 1987, attack on Wunsch and Rogers. Id. at 383.
Clearly, this testimony was contradictory to the testimony of both Hofford and Comstock.
Thus, the prosecutions questions to Hain regarding whether he was involved in the
Comstock and Hofford crimes was reasonably related to the subject matter of Hains
direct examination, and no violation of Hains Fifth Amendment rights occurred as a
result of those questions.

Propriety of imposing death sentence on juvenile offender

Hain argues that, because the murders for which he was convicted occurred when
he was seventeen years old, the International Covenant on Civil and Political Rights
(ICCPR), which the United States ratified on September 8, 1992, prohibits him from
being put to death for those crimes. Although Hain acknowledges that the United States
32

Senate, in ratifying the ICCPR, placed a reservation on the specific provision (Article 6
paragraph 5) prohibiting imposition of the death penalty on juveniles, he argues this
purported reservation was invalid and ineffective because the Constitution does not give
the Senate authority to make reservations to treaties, the reservation is specifically
prohibited by the terms of the ICCPR itself, the reservation violates the object and
purpose of the ICCPR, and in any event the prohibition against executing juveniles is a
peremptory norm of international law, or jus cogens, that is accepted and recognized by
the international community and that cannot be derogated.
It is debatable whether Hain sufficiently presented these arguments to the
Oklahoma courts. In his direct appeal following resentencing, Hain asserted generally
that the imposition of the death penalty for juveniles was an international human rights
issue and that the United States was a signatory to the Geneva Convention and two other
treaties which prohibit[ed] the execution of persons under the age of 18. See Hains Br.
filed 9/18/95, at p.18. Hain did not, however, specifically cite the ICCPR. In rejecting
Hains direct appeal, the OCCA did not address Hains arguments. The district court, in
considering Hains federal habeas petition, concluded that Hain had fairly presented his
arguments to the OCCA and thus had satisfied the exhaustion requirements.
Assuming, arguendo, that Hain adequately presented his arguments to the OCCA,
we find no merit to them. In 1992, the United States Senate ratified the ICCPR with
various reservations, understandings, [and] declarations. Beazley v. Johnson, 242 F.3d
33

248, 263 (5th Cir.), cert. denied, 122 S. Ct. 329 (2001); see Buell v. Mitchell, 274 F.3d
337, 371 (6th Cir. 2001) (same). Included among these was the following proviso:
[T]he United States reserves the right, subject to its Constitutional
constraints, to impose capital punishment on any person (other than a
pregnant woman) duly convicted under existing or future laws permitting
the imposition of capital punishment, including such punishment for crimes
committed by persons below eighteen years of age.
138 Cong. Rec. S4783 (1992). Thus, contrary to Hains arguments, Article 6 paragraph 5
of the ICCPR does not prohibit Oklahoma from imposing capital punishment for crimes
committed by a person under eighteen years of age.
Even if, as suggested by Hain, the above-quoted reservation were void (for any of
the reasons suggested by Hain), it is clear that the ICCPR is not binding on the federal
courts. See Buell, 274 F.3d at 372. Courts in the United States are bound to give effect
to international law and to international agreements, except that a non-self-executing
agreement will not be given effect as law in the absence of necessary authority. Id.
(quoting Restatement (Third) of Foreign Relations Law 111 (1987)). When the Senate
ratified the ICCPR, it specifically declared that the provisions thereof were not selfexecuting. 138 Cong. Rec. S4784. And, since that time, Congress has never enacted
implementing legislation for the ICCPR. Buell, 274 F.3d at 372; see Beazley, 242 F.3d
at 267-68 (citing cases and other sources indicating that the ICCPR is not self-executing).
Finally, there appears to be no basis for granting Hain federal habeas relief on the
grounds that imposition of the death penalty for crimes committed while a juvenile would
34

violate jus cogens norms of international law. It is far from certain that abolition of the
death penalty for juveniles is a customary norm of international law that has risen to the
level that the international community as a whole recognizes it as jus cogens, or a norm
from which no derogation is permitted. Buell, 274 F.3d at 373. Instead, it appears the
countries that have abolished the death penalty in these instances have done so for
moral or political reasons (as opposed to any sense of legal obligation). Id. Even
if the abolition of the death penalty for juveniles could be considered a customary norm
of international law or jus cogens, this does not appear to be a sufficient basis to
invalidate Hains death sentences. Id. In Stanford v. Kentucky, 492 U.S. 361, 380
(1989), a majority of the Supreme Court held that the imposition of capital punishment on
an individual for a crime committed at sixteen or seventeen years of age does not
constitute cruel and unusual punishment under the Eighth Amendment. Although the
dissent in Stanford argued that, [w]ithin the world community, the imposition of the
death penalty for juvenile crimes appears to be overwhelmingly disapproved, id. at 390
(Brennan, J., dissenting), the majority implicitly rejected this argument in holding the
practice constitutional and in noting that no modern societal consensus forbids the
imposition of the death penalty on individuals age sixteen or seventeen. In light of
Stanford, which essentially authorizes the imposition of the death penalty upon a criminal
defendant such as Hain, the determination of whether customary international law
prevents [the] State [of Oklahoma] from carrying out the death penalty . . . is a question
35

that is [properly] reserved to the executive and legislative branches of the United States
government, as it [is] their constitutional role to determine the extent of this countrys
international obligations and how best to carry them out. Buell, 274 F.3d at 376.

Cumulative error
Although Hain has asserted a cumulative error argument, it is without merit since
he has failed to identify multiple constitutional violations arising at trial. See Moore v.
Reynolds, 153 F.3d 1086, 1113 (10th Cir. 1998) (Cumulative error analysis applies
where there are two or more actual errors; it does not apply to the cumulative effect of
non-errors.).
The judgment of the district court is AFFIRMED.

36