F I L E D

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

United States Court of Appeals

Tenth Circuit

JUN 9 2000

PATRICK FISHER
Clerk

MARILYN KAY PLANTZ,

Petitioner-Appellant,
v.
NEVILLE MASSIE, Warden;
ATTORNEY GENERAL OF
THE STATE OF OKLAHOMA,

No. 99-6075
(D.C. No. 97-CV-963-R)
(W.D. Okla.)

Respondents-Appellees.
ORDER AND JUDGMENT *
Before BRORBY, PORFILIO, and LUCERO, Circuit Judges.

Petitioner Marilyn Kay Plantz was convicted in Oklahoma of first degree

murder, solicitation to commit murder, third degree arson, and conspiracy to
commit murder. She received the death penalty for first degree murder,
100 years imprisonment for solicitation, fifteen years imprisonment and
a $10,000 fine for arson, and ten years imprisonment and a $5000 fine for

This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

conspiracy. 1 The Oklahoma Court of Criminal Appeals affirmed petitioners

convictions and sentences, see Plantz v. State, 876 P.2d 268 (Okla. Crim. App.
1994), cert. denied, 513 U.S. 1163 (1995), and affirmed the state district courts
denial of post-conviction relief, see Plantz v. State, 936 P.2d 339 (Okla. Crim.
App. 1997).
Thereafter, petitioner filed a petition for habeas corpus relief in federal
district court. In a very thorough and careful opinion, that court denied habeas
relief. We affirm.
The facts in this case are set forth in this courts opinion in Bryson v. Ward,
187 F.3d 1193, 1197-99 (10th Cir. 1999), cert. denied, 120 S. Ct. 1566 (2000):
Bryson first met his co-defendant Marilyn Plantz in late 1987
or early 1988 when he was sixteen and she was in her late twenties
and married. In the spring of 1988, they became romantically
involved and sexually intimate. Plantz allowed Bryson to drive her
car, entertained him and his friends at her home while her husband
worked at night, and either provided Bryson with money to purchase
alcohol and crack cocaine or purchased them for him.
Also in the spring of 1988, Bryson became acquainted with codefendant Clinton McKimble. Like Bryson, McKimble was a
teenager. McKimble knew that Bryson and Plantz were romantically
involved. Bryson and Plantz asked McKimble to help them kill
Mr. Plantz.

Petitioner was tried jointly with her co-defendant William Clifford Bryson,
who was convicted of the same offenses and received the same sentences. A third
co-defendant, Clinton McKimble, pleaded guilty to first degree murder and was
sentenced to life imprisonment.

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Having indicated that Mr. Plantz was abusive and that she
wanted to kill him to obtain life insurance proceeds, Marilyn Plantz
initiated several plans to kill him. She gave Bryson a gun to kill
Mr. Plantz, but Bryson either sold or pawned it. Another time,
Marilyn Plantz suggested that she lure her husband home from work
and that Bryson and McKimble ambush him when he arrived. A third
suggestion was that Bryson and McKimble push Mr. Plantz off a boat
while fishing and let him drown. None of these schemes was carried
out.
On August 17, 1988, one of Marilyn Plantzs schemes was
carried further but ultimately failed. Bryson, McKimble, and Rory
Jenkins, aided by Marilyn Plantz, stole a car they planned to use to
run Mr. Plantz off the road. Although they followed Mr. Plantz from
his workplace, they were unable to carry out the plan because
Mr. Plantz took an unexpected route home and Jenkins did not want
to go through with the plan.
McKimble offered Roderick Farris $7000 to help kill
Mr. Plantz. Farris refused the offer. Subsequently, Bryson offered
Farris $40,000 if he would kill Mr. Plantz without Brysons
involvement. When asked by Farris how he intended to kill
Mr. Plantz, Bryson indicated that he could catch Mr. Plantz coming
home from work, beat him with a bat, and set him on fire in his
truck. A few days later, Bryson introduced Farris to Marilyn Plantz.
At that time, Bryson offered Farris $10,000 to kill the victim.
Marilyn Plantz explained that the killing had to look like an accident.
Later that night, Farris was arrested for unrelated reasons.
On August 25, 1988, Plantz, Bryson, and McKimble were
together. She withdrew money from her bank, purchased crack
cocaine and beer for them, and drove them around until Mr. Plantz
had gone to work. The three then went back to her house. Bryson
and McKimble drank the beer, smoked the crack cocaine, and fell
asleep in the front room. The sound of keys in the front door
awakened them. Bryson and McKimble hid in the kitchen with
baseball bats supplied by Marilyn Plantz. When Mr. Plantz entered
the kitchen, Bryson struck him on the back of the head with the bat.
McKimble joined in the beating, while Marilyn Plantz waited in her
bedroom. The two men carried Mr. Plantz to his pickup parked in
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front of the house and placed him in the truck bed. Marilyn Plantz
told them that Mr. Plantz must be burned to make the death look like
an accident because Mr. Plantz was beaten so badly. At that time,
Mr. Plantz was insured for approximately $299,000.
Bryson and McKimble drove the truck and Marilyn Plantzs
car to an isolated area. They placed Mr. Plantzs body in the cab of
the truck. McKimble placed a rag in the trucks gas tank and lit it,
attempting to cause an explosion. When that did not work, Bryson
poured gas in and around the truck and lit it. The truck and
Mr. Plantz ignited. Mr. Plantz was alive, but perhaps unconscious,
when Bryson and McKimble placed him in the truck and ignited it.
Bryson and McKimble returned to the Plantz home and found
Marilyn Plantz cleaning up the blood. . . .
Over the next two days, Bryson and McKimble told some
friends about the murder. Bryson told one friend that he planned to
move out of town with Marilyn Plantz and purchase a house.
McKimble said that he had expected to be paid for the murder.
Bryson was interviewed by police detectives two times after
the murder. Although he initially denied involvement, he later
confessed. In the second interview, he admitted his relationship with
Marilyn Plantz and his drug habit.
I. STANDARDS OF REVIEW
Contrary to petitioners assertion, the provisions of the Antiterrorism and
Effective Death Penalty Act (AEDPA) apply to this case, because petitioner filed
her habeas petition after AEDPAs effective date. See Williams v. Taylor,
120 S. Ct. 1479, 1486 (2000).
The scope of this courts review of the district courts decision depends on
whether a particular claim was decided on its merits in state court. If the claim
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was not heard on the merits by the state courts, and the federal district court made
its own determination in the first instance, [this court] review[s] 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 state courts
adjudicated the claim on its merits, petitioner is not entitled to habeas relief
unless the state courts ruling 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).
Under the contrary to clause, a federal habeas court may grant the
writ if the state court arrives at a conclusion opposite to that reached
by [the Supreme] Court on a question of law or if the state court
decides a case differently than [the Supreme] Court has on a set of
materially indistinguishable facts. Under the unreasonable
application clause, a federal habeas court may grant the writ if the
state court identifies the correct governing legal principle from [the
Supreme] Courts decisions but unreasonably applies that principle to
the facts of the prisoners case.
Williams v. Taylor, 120 S. Ct. 1495, 1523 (2000). State court determinations of
factual issues are presumed correct. See 28 U.S.C. 2254(e)(1). The petitioner
has the burden of rebutting the presumption by clear and convincing evidence.
See id.

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II. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL

Petitioner argues her trial counsel was ineffective for failing to adequately
investigate mitigating evidence concerning her background and childhood, and
failing to request a mental health expert to evaluate her.
A. PROCEDURAL BAR
Petitioner first raised ineffective assistance of trial counsel in state
post-conviction proceedings. The Oklahoma Court of Criminal Appeals
determined the claim was waived. See Plantz, 936 P.2d at 341. The federal
district court, however, concluded the claim was not procedurally barred.
Respondent does not argue procedural bar. We therefore proceed to the merits,
see Moore v. Gibson, 195 F.3d 1152, 1178 (10th Cir. 1999) (citing Hooks v.
Ward, 184 F.3d 1206, 1216-17 (10th Cir. 1999)), cert. denied, No. 99-8812, 2000
WL 343946 (U.S. May 30, 1999), reviewing the district courts decision de novo,
see LaFevers, 182 F.3d at 711.
B. MERITS
Ineffective assistance of counsel claims are mixed questions of law and
fact. See Williamson v. Ward, 110 F.3d 1508, 1513 (10th Cir. 1997). To obtain
habeas relief for ineffective assistance of counsel, petitioner must establish both
that her attorneys representation was deficient and that she was prejudiced by
that deficiency. See Strickland v. Washington, 466 U.S. 668, 687 (1984).
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An ineffective assistance claim may be resolved on either performance or

prejudice grounds alone. Fox v. Ward, 200 F.3d 1286, 1295 (10th Cir. 2000).
1. INADEQUATE INVESTIGATION
Petitioner argues counsel should have discovered and presented mitigating
evidence that she was forced to masturbate her brother, she was beaten on the legs
by her father on one occasion with thorn branches resulting in bleeding, and she
was raped by Mr. Plantz at age fifteen, before her marriage to him. Also, she
argues trial counsel should have informed the jury of her difficult and
impoverished childhood and her fathers racial prejudice and strictness, causing
his children to leave home as soon as possible.
The federal district court determined petitioner failed to show either that
counsels performance was deficient or that she was prejudiced. The court
rejected the allegations of childhood poverty, and petitioners fathers strictness
and racial prejudice, as remote and insufficient mitigating evidence. The court
also rejected the more serious allegations of childhood sexual abuse and rape, if
supported, as too remote in time and of doubtful value as mitigating evidence.
Without considering whether counsels failure to investigate and present
potential mitigating evidence was deficient performance, we conclude
petitioner has failed to show a reasonable probability the mitigating evidence
she now points to would have changed the jurors sentencing determination.
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See Strickland, 466 U.S. at 695. Petitioner merely makes a conclusory assertion
that she was prejudiced. See Appellants Br. at 20. Although her childhood was
relevant mitigating evidence, petitioner fails to present any evidence indicating
that these specific childhood events had a continuing effect on her ability to
conform her conduct to noncriminal behavior. See Stafford v. Saffle, 34 F.3d
1557, 1565 (10th Cir. 1994). On numerous occasions, this court has determined
evidence of a troubled childhood does not outweigh evidence supporting the
conviction and evidence supporting aggravating circumstances. See Foster v.
Ward, 182 F.3d 1177, 1189 (10th Cir. 1999), cert. denied, 120 S. Ct. 1438 (2000).
Petitioners case is not an exception. Cf. Williams, 120 S. Ct. at 1514-16
(discussing mitigating evidence which was prejudicial). In light of the nature of
the crime and the strength of the States case at both stages of trial, it is not
reasonably probable the additional mitigating evidence petitioner now points to
would have affected the outcome at the sentencing stage. See Clayton v. Gibson,
199 F.3d 1162, 1179 (10th Cir. 1999), petition for cert. filed, (U.S. May 20, 2000)
(No. 99-9630).

2. MENTAL HEALTH EVALUATION

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Petitioner argues counsel failed to seek a mental health expert to evaluate

her before trial. Dr. Fischers affidavit, presented at the state post-conviction
proceedings, indicated petitioner has a full scale IQ of 76, suggesting borderline
intelligence. Dr. Fischer believed that, given petitioners limited intellectual
functioning, her submissive, dependent personality style, and her disorganized
thought processes, it was highly improbable she was capable of creating
a scheme to murder her husband. Furthermore, due to Mr. Plantzs dominant role
and his perception of petitioner as stupid and inferior, Dr. Fischer believed it was
unlikely petitioner knew the details of Mr. Plantzs personal business.
Petitioner maintains this evidence was relevant and should have been presented
at both stages of trial because it showed she lacked the ability to form the
necessary intent to mastermind first degree murder and because it would have
been mitigating evidence.
The federal district court determined (1) no indicia of incompetence or
mental illness were apparent prior to trial; (2) petitioner and her counsel had
discussions during the trial and counsel never questioned her mental state during
trial; (3) she never informed counsel of a mental impairment, and she does not
suggest either counsel or the trial court should have recognized she was mentally
impaired; (4) even if counsel had attempted to obtain a mental health expert,
counsel could not have made the required showing for an expert; (5) petitioner
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failed to show any likelihood the outcome of the proceedings would have been
different if a mental health expert had been appointed; and (6) Dr. Fischers
opinion was highly speculative and contrary to the weight of the evidence at trial
indicating petitioner initiated the murder scheme, actively planned the murder,
and hid evidence.
Again, we proceed directly to prejudice. We agree with the district court
that it is doubtful the trial court would have appointed a mental health expert even
if counsel had requested one. Nothing in the record suggests that petitioners
mental state or sanity at the time of the offense could have been a significant
factor at either stage of trial or that her mental condition was a potentially
mitigating factor. See Ake v. Oklahoma, 470 U.S. 68, 74 (1985); Mayes v.
Gibson, 210 F.3d 1284, 1289 n.3 (10th Cir. 2000); Smith v. Gibson, 197 F.3d 454,
463 (10th Cir. 1999), petition for cert. filed, (U.S. May 19, 2000) (No. 99-9652).
The evidence showed petitioner devised most of the schemes to murder her
husband. None of the schemes was complex. Nothing in the record suggests she
did not know the difference between right and wrong or that she would not
understand the consequences of her acts. See Jones v. State, 648 P.2d 1251, 1254
(Okla. Crim. App. 1982). Rather, Dr. Fischer indicated petitioner was oriented to
time, place, and date. At no time during court proceedings was her behavior
inappropriate. Her in camera testimony regarding her decision not to testify or to
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allow her children to do so was coherent and rational. Additionally, her low IQ
does not outweigh evidence supporting both aggravating circumstances. See
Smith, 197 F.3d at 463. Considering the totality of the evidence, there is no
reasonable probability the jury would have determined petitioner was not involved
in planning the murder and therefore not guilty of first degree murder. See Boyd
v. Ward, 179 F.3d 904, 914 (10th Cir. 1999), cert. denied, 120 S. Ct. 1188 (2000).
Also, in light of the strength of the States case, it is doubtful any mental health
testimony would have changed the outcome at sentencing. See Moore v.
Reynolds, 153 F.3d 1086, 1098 (10th Cir. 1998), cert. denied, 526 U.S. 1025
(1999).
III. REFUSAL TO GRANT SEVERANCE
Petitioner argues she was denied a fair trial when the trial court refused to
sever her trial from co-defendant Brysons. Petitioner maintains their defenses
were mutually antagonistic and inconsistent, she was unable to cross-examine
Bryson about his hearsay statements, and Bryson presented improper second
stage evidence.
A. ANTAGONISTIC DEFENSES
Petitioner argues she and Bryson had mutually antagonistic and inconsistent
defenses because Brysons defense was that she lured him into committing the
crime and her defense was that she was uninvolved. On direct criminal appeal,
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the Oklahoma Court of Criminal Appeals determined the co-defendants did not
present mutually antagonistic defenses, such that each attempted to exculpate
himself or herself by inculpating the other. See Plantz, 876 P.2d at 273. The
federal district court found that, although the co-defendants attempted to shift
blame, neither offered evidence which would have required the jury to disbelieve
the defense presented by the other. Accordingly, the court concluded petitioner
and Bryson did not offer mutually antagonistic defenses requiring separate trials.
Generally, severance is a question of state law not cognizable on habeas.
See Fox, 200 F.3d at 1292 (citing Cummings v. Evans, 161 F.3d 610, 619
(10th Cir. 1998), cert. denied, 119 S. Ct. 1360 (1999)). There is no constitutional
right to severance without a strong showing of prejudice caused by the joint trial.
See id. Severance is not necessary merely because theories conflict or because
one defendant is attempting to cast blame on another.

Cf. United States v.

Dirden , 38 F.3d 1131, 1141 (10th Cir. 1994) (direct criminal appeal). Rather, a
petitioner must show real prejudice.

See Fox , 200 F.3d at 1293. Such . . .

prejudice is shown if the defenses are truly mutually exclusive, such that the jury
could not believe the core of one defense without discounting entirely the core of
the other. Id. (quoting Dirden , 38 F.3d at 1141). Mutually antagonistic
defenses are not prejudicial

per se . Zafiro v. United States , 506 U.S. 534, 538

(1993).
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Here, the defenses of noninvolvement and of lesser culpability due to

intoxication and influence were not mutually antagonistic.

See Ochoa v. State,

963 P.2d 583, 596 (Okla. Crim. App. 1998) (casting blame on another defendant
is not enough for separate trials), cert. denied, 526 U.S. 1023 (1999); Spunaugle
v. State, 946 P.2d 246, 251 (Okla. Crim. App. 1997) (deciding defenses are
antagonistic only if each defense is complete defense to guilt and involuntary
intoxication and influence are not complete defenses to guilt). Thus, petitioner
failed to show the joint trial was prejudicial.

We conclude the Oklahoma Court

of Criminal Appeals decision was not unreasonable.

Petitioner argues Brysons voir dire and guilt stage opening statement show
antagonistic defenses. During voir dire, Brysons attorneys asked Doesnt make
you wonder what shes doing with an 18-year old black kid? Tr. vol. II at 516.
We agree with the district court that this question did not inculpate petitioner.
She also complains about remarks Brysons attorney made in opening statements
regarding petitioners relationships with other black men and her attempting to
solicit them to kill her husband. Again, we agree with the district court that
petitioner failed to show how these remarks were so prejudicial that she was
entitled to a separate trial.

Even assuming a risk of prejudice, the instructions, which the jury

presumably followed, see Richardson v. Marsh , 481 U.S. 200, 206 (1987),
sufficed to cure any possibility of prejudice.
See Zafiro , 506 U.S. at 539, 540-41.
The trial court instructed the jury that petitioner and Bryson were innocent unless
the State proved guilt beyond a reasonable doubt, the jury could return different
verdicts for the two, and the jury must give separate consideration to each
defendant. See Tr. vol. V at 1459-60, 1474.
3

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B. HEARSAY
Petitioner argues that joinder permitted introduction of much incriminating
hearsay evidence admissible only against Bryson and that she was denied her right
to confront Bryson about his incriminating statements. The Supreme Court held
in Bruton v. United States , 391 U.S. 123 (1968), that a defendant is deprived of
[her] rights under the Confrontation Clause when [her] codefendants
incriminating confession is introduced at their joint trial, regardless of any
limiting instructions given the jury.

Cruz v. New York , 481 U.S. 186, 187-88

(1987). Statements that are probative of the existence of a conspiracy and of

both defendants participation in the conspiracy, however, are properly admitted.
Cf. Bourjaily v. United States , 483 U.S. 171, 181-82 (1987).
Even if statements implicate the defendant directly, their admission,
under the facts of the case, may be harmless error.

See Brown v. United States ,

411 U.S. 223, 231 (1973) ( Bruton errors are harmless if erroneously admitted
testimony was cumulative to other overwhelming uncontroverted evidence
properly before jury);

United States v. Glass , 128 F.3d 1398, 1403 (10th Cir.

1997) ( Bruton violation is harmless if, considering totality of evidence and

context of challenged testimony, properly admitted evidence of defendants guilt
is overwhelming and prejudicial effect of co-defendants statement was
insignificant by comparison).
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First, petitioner objects to the testimony of Detective Gibson, who

interviewed Bryson. Detective Gibson testified that Bryson confessed to having
a romantic relationship with petitioner, using illegal drugs during the relationship,
and being involved in the murder. On direct criminal appeal, the Oklahoma Court
of Criminal Appeals determined Detective Gibsons testimony did not deny
petitioner her right to confrontation.

See Plantz , 876 P.2d at 279-80. The federal

district court agreed.

Detective Gibsons testimony did not incriminate petitioner. Even if it had,
it was cumulative, and therefore harmless, because both McKimble and Michael
Kendrick testified through personal knowledge about petitioners and Brysons
relationship, McKimble testified from his personal knowledge that petitioner
purchased alcohol and drugs on numerous occasions, and McKimble testified
about petitioners involvement in the murder. Thus, the Oklahoma Court of
Criminal Appeals determination--that petitioner was not denied her constitutional
right of confrontation by the admission of Detective Gibsons testimony--was not
contrary to or an unreasonable application of Supreme Court precedent.
Petitioner next complains that first stage witnesses Terry Norman, Derrick
Jones, Kendrick, and Ricky John Dunn all testified about incriminating hearsay
statements Bryson made about petitioners and his involvement in the murder.
On direct criminal appeal, the Oklahoma appellate court determined most of the
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statements related to petitioners relationship with Bryson and his planning and
commission of the crime. The court, however, found that certain testimony of
Norman and of Kendrick was improperly admitted against petitioner in violation
of Bruton . See Plantz , 876 P.2d at 280. The court declined to reverse, however,
because petitioner did not object to the statements and because any error was
harmless beyond a reasonable doubt.

See id. (citing Chapman v. California ,

386 U.S. 18 (1967)). The court concluded [t]he improperly admitted statements
were merely cumulative of other overwhelming and largely uncontroverted
evidence of [petitioners] role in the conspiracy and murder properly before the
jury. Id. The federal district court agreed, and further concluded much of the
other complained of testimony fell under the co-conspirator hearsay exception,
did not incriminate petitioner, or was harmless in light of the cumulative
testimony of McKimble.
On appeal, petitioner specifically complains only of testimony by Norman
that petitioner told him we had committed the murder and testimony by
Kendrick that petitioner provided clothes to Bryson after the murder.

She

maintains this testimony was not in furtherance of the conspiracy. We agree.

On appeal, petitioner does not make specific complaints regarding Jones

and Dunns testimony. We have reviewed their testimony and the testimony of
Norman and Kendrick in full and conclude none of the testimony violates
petitioners right to confrontation.

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Normans testimony, however, does not specifically incriminate petitioner.

Evidence of guilt, established by McKimbles testimony, showed the testimony
of both Norman and Kendrick was harmless. We conclude the Oklahoma Court
of Criminal Appeals determinations were not contrary to or an unreasonable
application of Supreme Court precedent.
C. BRYSONS SECOND STAGE EVIDENCE
Petitioner argues that because she was required to present her mitigation
evidence first she was not allowed an opportunity to defend herself against the
attacks made by Bryson during the presentation of his mitigating evidence.
Although asserted on direct appeal, the Oklahoma Court of Criminal Appeals did
not discuss this issue. Thus, we review the district courts determination

de novo .

As the district court noted, petitioner did not ask for an opportunity to present
additional mitigating evidence after Bryson presented evidence, and at no time
has she indicated what evidence she would have offered to rebut Brysons second
stage evidence. In any event, most of Brysons second stage evidence focused on
his family background and his mental state and did not implicate petitioner in any
way. Also, petitioner complains she had no notice she would have to defend
against aggravating evidence presented by Bryson. She, however, cites no
authority indicating entitlement to such notice.

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For alleged attacks by Bryson, petitioner points to the testimony of

Brysons father indicating that he had advised Bryson to break off his relationship
with petitioner. Although asked by Brysons attorney whether Bryson came to
him regarding the killing, the trial court would not allow Brysons father to
answer. He was only allowed to testify that Bryson was troubled by a statement
petitioner had made to Bryson and that he had advised Bryson to stay away from
petitioner. Even if this testimony could be characterized as incriminating, it is
harmless because it is less incriminating than the testimony presented during the
first stage of trial. Petitioner was aware of the first stage evidence and made no
attempt to rebut it at the second stage.
Petitioner further complains that Brysons mental health expert testified
that petitioner represented the bad mother to Bryson. After the witness was told
to confine his testimony to Bryson, he clarified that he was only referring to
Brysons perceptions. We agree with the district court that this testimony did not
incriminate petitioner.
IV. DENIAL OF PEREMPTORY CHALLENGES
Petitioner argues that she was denied a fair trial and an impartial jury
because she was required to share peremptory challenges with Bryson despite
their allegedly inconsistent defenses.

See Okla. Stat. tit. 22, 655 (1981)

(providing that when two first degree murder defendants have inconsistent
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defenses, each is entitled to nine peremptory challenges; otherwise, they share

peremptory challenges). She contends she was prejudiced because she was
unable to challenge three jurors--Nellie Fay Haynie, Pamela K. Crownover, and
Sherman I. Roberts--who served on the jury.
On direct appeal, the state appellate court held petitioner was not entitled
to nine peremptory challenges because 655 applies only to inconsistent legal
defenses presented at the first stage and any inconsistencies arose only during
the second stage.

See Plantz , 876 P.2d at 276-77. The federal district court

determined petitioner failed to prove a constitutional claim. Because only the

federal district court reviewed for federal constitutional error, our review is
de novo .
Petitioner received the peremptory challenges to which she was entitled
under state law.

See Hammon v. State , 898 P.2d 1287, 1301 (Okla. Crim. App.

1995) (providing that where inconsistency goes to the level of each defendants
culpability, co-defendants may be required to share peremptory challenges).
Therefore, any constitutional challenge to the number of peremptory challenges
she received fails.

See Ross v. Oklahoma , 487 U.S. 81, 88, 89, 91 (1988);

see also Cummings , 161 F.3d at 619 (The number of peremptory challenges is
a matter of state law that raises no constitutional concerns.).

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Nonetheless, she had a right to an impartial jury.

See Ross , 487 U.S. at 85;

see also Batson v. Kentucky , 476 U.S. 79, 91 (1986) (peremptory challenges are
means of assuring selection of qualified, unbiased jury). As the district court
found, petitioner did not show her jury was partial.
Although Ms. Haynie believed Oklahoma is too lax with the death penalty
and it should be reserved for the worst cases where there is no choice, we agree
with the district court that Ms. Haynies responses were invited by petitioners
counsels inquiry. Further, at no time did she indicate she would not be fair.
The district court correctly determined that Ms. Crownover had not given
serious consideration to her views on the death penalty before she arrived for jury
duty. This, however, did not indicate she would not give fair consideration to
each of the possible punishments. Indeed, she presumed the co-defendants were
innocent of the charges until proven guilty, could agree to impose any of the three
possible punishments, would apply the law as instructed, would consider all
possible mitigating evidence, needed to hear both sides before making up her
mind whether a defendant should receive the death penalty, and was sure there
could be things she had not really thought about which could persuade her life
or life without parole would be the appropriate sentence.
Mr. Roberts volunteered he formerly worked with the trial judges sister but
it would have no affect on his serving as a juror, complained that he did not know
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the rules about when he could use the restroom, had facial pain controlled by
medication which did not affect his judgment, and was recovering from back
surgery. He also indicated he could consider all possible punishments and give
the defendants a fair and impartial trial. Again, we agree with the district court
that nothing indicated Mr. Roberts would not be a fair and impartial juror.
V. FAILURE TO REMOVE JURORS FOR CAUSE
Petitioner argues the trial courts failure to remove two jurors--C.O. Pouder
and Loretta C. Mess--for cause denied her a fair trial. Petitioner and Bryson
removed these jurors with peremptory challenges. Petitioner argues the trial
courts failure to remove these jurors required her to use peremptory challenges
that could have been used to remove Ms. Haynie, Ms. Crownover, or Mr. Roberts.
On direct appeal, the Oklahoma appellate court determined any error with respect
to Mr. Pouder was waived because petitioner failed to challenge him for cause.
See Plantz , 876 P.2d at 277. Concerning Ms. Mess, the court determined that the
record showed she would be a fair and impartial juror.
Wainwright v. Witt , 469 U.S. 412, 424 (1985);

See id. at 277-78 (citing

Morgan v. Illinois , 504 U.S. 719,

733-36 (1992)). The court therefore concluded petitioner was not unfairly forced
to remove these two prospective jurors with peremptory challenges.

See id.

at 278. The federal district court found that petitioner failed to show the views
expressed by either of these two would have required the trial court to disqualify
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them, and, even if they were partial, peremptory challenges to achieve their
removal did not violate petitioners right to an impartial jury.
It is settled that a juror may not be challenged for cause based on his
views about capital punishment unless those views would prevent or substantially
impair the performance of his duties as a juror in accordance with his instructions
and his oath.

Witt , 469 U.S. at 420 (quoting

Adams v. Texas , 448 U.S. 38, 45

(1980)) (emphasis omitted). A trial judges determination of a potential jurors

bias under this standard is a factual finding entitled to a presumption of
correctness.

Moore , 195 F.3d at 1168. The trial judge assesses the credibility of

the prospective juror, something an appellate court cannot easily do based upon
a record. See id.
Although the state appellate court determined an objection to Mr. Pouder
was waived, respondent does not argue procedural bar. Accordingly, this court
may proceed to the merits.

See Moore , 195 F.3d at 1178.

When Brysons counsel questioned Mr. Pouder about punishment, he

responded as follows:
PROSPECTIVE JUROR POUDER: I feel like thatwell, an
eye for an eye. You know, thats the way I feel about it.
MRS. BAUMANN: Okay. And to you an eye for an eye
means if you kill someone then you should die for what you did?
PROSPECTIVE JUROR POUDER: I feel like I should, I
guess, yes. Ifyes.
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Tr. vol. II at 272. He, however, later stated that he would consider everything
in making a decision, he did not have a preconceived idea about guilt, he was
open-minded, and he would consider all punishments. On the whole,
Mr. Pouders voir dire testimony indicated his views would not have prevented
or substantially impaired the performance of his duties as a juror.
Ms. Mess stated that if the defendants are guilty I feel like they need to
pay for it, id. at 504, and need to die or be punished to the fullest extent. Also,
she stated
Well, sometimes in my mind I feel like they need to get the
same thing that they give that man. Maybe Im too harsh on people,
but thats whats wrong with the system. They let these people get
by with stuff and they put them off in the penitentiary for the rest of
their life and we pay taxes and feed them and they sit there and get
educated and -Id. at 505. Although Ms. Mess indicated that at the time she first learned of the
crime she believed the perpetrator(s) should receive the death penalty, she
continually stated that she would need to listen to the evidence to make a decision
as to which punishment would be appropriate. She believed she could be fair and
consider all possible punishments and was not predisposed to one. Petitioner has
failed to rebut with clear and convincing evidence the trial courts factual finding
that Ms. Mess would be a fair and impartial juror. The Oklahoma Court of
Criminal Appeals determination that she would be a fair and impartial juror was
not contrary to or an unreasonable application of Supreme Court precedent.
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Even if Mr. Pouder and Ms. Mess should have been removed for cause,
petitioners use of a peremptory challenge to achieve an impartial jury caused no
constitutional error.

See United States v. Martinez-Salazar

, 120 S. Ct. 774, 777

(2000); Ross , 487 U.S. at 88.

VI. FAILURE TO EXCUSE JUROR FOR CAUSE
Petitioner argues the trial courts failure to excuse prospective juror
Deborah Hicks for cause deprived her of a fair trial. Petitioner again contends
she was unable to remove Ms. Haynie, Ms. Crownover, or Mr. Roberts since
she was required to use a peremptory challenge to remove Ms. Hicks.
Ms. Hicks stated during voir dire that she previously worked with the
victims father and attended the victims funeral out of respect for the victims
father, although she did not know the victim. Bryson moved to excuse Ms. Hicks
for cause. The trial court overruled the motion in light of Ms. Hicks answers
that she could be fair. Petitioner used a peremptory challenge to remove Ms.
Hicks. The Oklahoma Court of Criminal Appeals, on direct appeal, concluded
petitioner waived any error by passing Ms. Hicks for cause.

See Plantz , 876 P.2d

at 278. The federal district court determined that even if the trial court erred in
failing to remove Ms. Hicks for cause, the failure did not violate petitioners
constitutional rights because Ms. Hicks did not actually sit on the jury.

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Respondent does not argue procedural bar. This court may consider this
issue on its merits.

See Moore , 195 F.3d at 1178. Reviewing

de novo , and

assuming that Ms. Hicks should have been removed, despite her assurances of
open-mindedness , we agree with the district court that there was no constitutional
error when petitioner used a peremptory challenge to achieve an impartial jury.
See Martinez-Salazar, 120 S. Ct. at 781-82; Ross, 487 U.S. at 88.
VII. IMPROPER REMOVAL OF THREE JURORS FOR CAUSE
Petitioner argues the trial court violated her constitutional rights by
improperly removing three jurors--Celam Vaughn, Cheryl K. Morgan, and
Thomas J. Maciula--for cause at the States request. On direct criminal appeal,
the Oklahoma appellate court concluded the trial court properly excused these
jurors for cause because Mr. Vaughn was irrevocably opposed to the death
penalty, Ms. Morgan continually expressed doubts about her ability to be
impartial in light of her personal experiences, and Mr. Maciulas religious views
prevented him from being fair and impartial. See Plantz, 876 P.2d at 278-79.
The federal district court agreed.
Mr. Vaughn initially stated he could not agree to a verdict imposing the
death penalty, but he could possibly consider it, even though he did not believe in
taking the life of another person. After further questioning, he stated he did not
believe he could give equal consideration to the law. Brysons attorney requested
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and was given an opportunity to rehabilitate Mr. Vaughn. During that

questioning, Mr. Vaughn indicated that to the best of his ability he would follow
the law and listen to the evidence, but he would be opposed to the death penalty
and following the law would depend on his personal beliefs, which he did not
believe the State could persuade him to change. Finally, he conceded that his
mind was made up. The record is clear that Mr. Vaughn would listen to the
evidence but he would not consider imposing the death penalty. See Morgan, 504
U.S. at 728 (holding juror who would not vote for death penalty is not impartial
and must be removed for cause).
Ms. Morgans husband was in prison for rape and robbery. She expressed
concern over her husbands well being, apparently with respect to Bryson. At one
time, she indicated that she was open-minded and would consider all possible
punishments. Later, however, she stated she would try to be fair but would be
sympathetic towards the defendants. Ms. Morgans concern for her husbands
welfare, as well as her sympathy for the defendants, would have prevented or
substantially impaired performance of her duties as a juror.
Mr. Maciula initially expressed religious concerns about the death penalty,
but indicated he could consider and impose the death penalty in an appropriate
case. Later, he stated that he was not certain he could consider the death penalty
and he could not consider all three punishments. It is clear that Mr. Maciulas
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religious beliefs precluded him from considering the death penalty. See Morgan,
504 U.S. at 728.
Petitioner has failed to rebut the presumption of correctness afforded to the
trial courts finding that these prospective jurors views would have prevented or
substantially impaired his or her performance of the duties of a juror. The
Oklahoma Court of Criminal Appeals determination was not contrary to or an
unreasonable application of Supreme Court precedent.
VIII. OTHER VOIR DIRE ISSUES
Petitioner argues the trial courts refusal (1) to allow her to voir dire
potential jurors concerning their views of mitigating evidence and (2) to permit
individual voir dire concerning views on capital punishment denied her a fair
trial. The Oklahoma Court of Criminal Appeals, on direct criminal appeal, noted
that there was no evidence petitioners voir dire was restricted in any way.
See Plantz, 876 P.2d at 279. The court concluded, based on state law, that the
trial court properly limited Brysons counsels open-ended inquiries about
possible mitigating evidence. See id. Also, the court rejected any argument that
the trial court mismanaged voir dire. See id. at 282. After summarizing three
days worth of voir dire, the federal district court concluded that the limitations
imposed on Brysons counsel did not deprive petitioner of a qualified, unbiased
jury. With respect to individual voir dire, the district court found no error,
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because many of the remarks petitioner complained of were invited by petitioners

counsel, the prospective jurors making the remarks only expressed their own
views and did not serve on the jury, and the remarks were not so prejudicial as to
violate due process.
A defendants right to an impartial jury includes the right to an adequate
voir dire to identify unqualified jurors. See Morgan, 504 U.S. at 729. The trial
court retains great latitude in conducting voir dire. See MuMin v. Virginia,
500 U.S. 415, 424, 427 (1991). Here, the voir dire was adequate to determine
whether a prospective juror was qualified to serve. See Moore, 195 F.3d at 1170.
The trial courts exercise of its discretion to disallow inquiry regarding mitigating
evidence or individual voir dire did not render petitioners trial fundamentally
unfair. Cf. Morgan, 504 U.S. at 730 & n.5. Accordingly, we conclude the
Oklahoma Court of Criminal Appeals determinations were not contrary to or an
unreasonable application of Supreme Court precedent.

IX. HEINOUS, ATROCIOUS, OR CRUEL AGGRAVATOR

Petitioner argues the heinous, atrocious, or cruel aggravator is
unconstitutionally vague and therefore denied her a fair trial. This court has
repeatedly upheld this aggravator as narrowed by the trial court. See, e.g.,
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Medlock v. Ward, 200 F.3d 1314, 1319 (10th Cir. 2000) (citing cases). Also,
this court has determined this aggravator has been consistently applied by the
Oklahoma courts. See, e.g., LaFevers, 182 F.3d at 721.
X. MURDER FOR REMUNERATION
Petitioner argues there was insufficient evidence to support the jurys
finding of the murder for remuneration aggravator. She contends there was no
evidence showing her awareness of the amounts of money in the joint bank
accounts or the value of the insurance. She further contends the jurys decision
was based on Brysons hearsay statements she had no opportunity to cross
examine. The Oklahoma Court of Criminal Appeals, on direct appeal, decided
there was evidence this crime was motivated by financial gain. See Plantz,
876 P.2d at 281. The federal district court found ample evidence showing both
that petitioners involvement in the murder of her husband was motivated by the
expectation of recovering the proceeds from his life insurance and that petitioner
recruited McKimble and attempted to recruit others to kill her husband for
remuneration.
After reviewing all of the evidence in the light most favorable to the State,
a rational factfinder could have found the existence of this aggravating factor
beyond a reasonable doubt. See Lewis v. Jeffers, 497 U.S. 764, 780-82 (1990).
Petitioner planned the murder of her husband in order to collect the insurance
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proceeds. She was present when Bryson offered to pay Farris if he would kill Mr.
Plantz. She promised McKimble money from the life insurance proceeds if he
would help with the murder. Regardless of any hearsay, the evidence was
sufficient to support the jurys finding of this aggravator. The Oklahoma
appellate courts determination that sufficient evidence supported this aggravator
was not unreasonable.
XI. INSTRUCTION ON MITIGATING EVIDENCE
Petitioner argues the trial court limited the mitigating circumstances the
jury could consider. Respondent correctly argues this claim is unexhausted.
Federal courts, however, may deny habeas relief on the merits of unexhausted
claims. See 28 U.S.C. 2254(b)(2). This court has considered and rejected
an argument similar to petitioners. See Bryson, 187 F.3d at 1209-10. We rely on
that same analysis to deny petitioners claim here.

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XII. EVIDENTIARY HEARING

Petitioner argues the district court erred in failing to hold an evidentiary
hearing on her claim of ineffective assistance of counsel. Petitioner sought and
was denied an evidentiary hearing in state court. Thus, AEDPAs limitations on
evidentiary hearings, see 28 U.S.C. 2254(e)(2), do not apply. See Mayes, 210
F.3d at 1287 n.2. Because petitioners claim can be resolved on the record, we
conclude the district court did not err in denying an evidentiary hearing. See
Trice v. Ward, 196 F.3d 1151, 1159 (10th Cir. 1999), petition for cert. filed, (U.S.
May 10, 2000) (No. 99-9518).
The judgment of the United States District Court for the Western District of
Oklahoma is AFFIRMED.

Entered for the Court

Wade Brorby
Circuit Judge

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