GRANT v. STATE

GRANT v. STATE
2002 OK CR 36
58 P.3d 783
Case Number: D-2000-653
Decided: 11/18/2002
JOHN MARION GRANT, Appellant -vs- STATE OF OKLAHOMA, Appellee

O P I N I O N

LILE, JUDGE

¶1 Appellant, John Marion Grant, an inmate at the Oklahoma Department of Corrections (D.O.C.) Connor Correctional Center, was charged with the First Degree (malice) Murder

I. FACTS

¶2 On November 13, 1998, Grant savagely and repeatedly stabbed Gay Carter, a food service supervisor at the Connor Correction Center in Hominy, Oklahoma. Grant used a prison-made "shank" similar to a sharpened screwdriver. Grant was serving a total of one-hundred thirty (130) years for four separate armed robberies and had been in prison for about twenty years prior to this offense. On a previous stay at Connor Correctional Center, Grant had worked in the kitchen and he knew Carter; however, Grant lost this job because he was fighting with another inmate

¶3 The morning of and the morning before this murder, Grant and Carter argued over the breakfast tray served to Grant. The previous morning Grant told Carter, "I'll get you bitch," and the morning of the murder Grant stated, "Your mine." Inmates Jerry James and Ronald Kuykendall, who held jobs in the dining area, witnessed these arguments.

¶4 After the last argument, James and Kuykendall saw Grant loitering in a storage area where cleaning supplies were kept, adjacent to the main dining area. Carter left the dining area to go to another building where the kitchen was located. When she returned, Grant grabbed her and pulled her into a mop closet. Inside the closet, Grant stabbed Carter numerous times in the chest while holding her mouth closed.

¶5 Witnesses summoned Sergeant Daniel Gomez, the first Correctional Officer to arrive. Gomez saw Grant still struggling with Carter. Grant then stood up and faced Gomez, looked at him with a vacant stare, and ran across the dining hall to the storage room, while still carrying the shank in his hand. Grant shut the door, closing himself inside.

¶6 After Grant left the mop closet, medical personnel arrived to aid Carter. They found that she was not breathing, and they could not find any vital signs. Carter was transported to the hospital, but efforts to revive her were unsuccessful. Medical Examiner Robert Hemphill determined that Carter died as a result of sixteen stab wounds. Carter's aorta was punctured, causing rapid blood loss resulting in her death.

¶7 The storage room to where Grant fled, has a wire mesh ceiling through which Correctional Officer Tony Reeves observed Grant. Grant ignored orders to lie down on the floor. Grant held the shank to his chest and ran into the wall, apparently in an attempt to stab himself. A special team of correctional officers entered the storage room and Grant made stabbing motions toward the officers. The officers were able to subdue Grant with the use of an electrical shock device.

¶8 Grant raises fifteen propositions of error in his appeal. These propositions will be addressed as they arose at trial.

II. JURY SELECTION ISSUES

A.

¶9 Grant claims, in his first proposition, that the trial court committed reversible error by improperly denying his challenges for cause against two jurors who expressed a reluctance to consider all three punishment options. He claims that he was forced to accept other objectionable jurors because he had to use his peremptory challenges to remove these two jurors that should have been removed for cause.

¶10 We begin with the basic premise that the decision to excuse a prospective juror for cause rests within the sound discretion of the trial judge, whose decision will not be overturned unless an abuse of discretion is shown. Myers v. State,

¶11 Grant specifically claims that he lost two peremptory challenges because the trial court wrongfully denied his for-cause challenges to jurors Gee and Martin. Grant does not claim that jurors who were strongly biased toward the death penalty were allowed to sit on the jury. He claims that jurors Gee and Martin were unwilling to consider one or both of the two "non-death" punishment options. In Oklahoma, a defendant who disagrees with the trial courts refusal to remove a juror "for cause" must utilize a peremptory challenge in order to preserve his claim on appeal. Ross v. Oklahoma,

¶12 Furthermore, a defendant must show that the jury sitting in the trial was biased, because he exhausted his peremptory challenges by being forced to remove those that should have been removed for cause. Abshier v. State,

"Trial judges enjoy 'broad discretion in deciding which members of the venire possess actual bias and should be excused for cause.' Warner [v. State,]

Matthews v. State

¶13 Initially prospective juror Gee stated that if it were proven that the murder was "premeditated or planned" he would vote for the death penalty. After questioning by the prosecutor and the trial court, Gee insisted that he would follow the Court's instructions and consider all three sentencing options. Then defense counsel resumed questioning Gee by presenting the hypothetical that "the State has proven to you that he [Grant] intended to kill this woman, that he either thought about it for days or he just thought about it and did it, but he intended to kill this woman for no good reason . . . without hearing another thing, would you automatically give him the death penalty?" Gee replied that he would have to think about that one. After given the opportunity to think, Gee replied, "Yes." Defense counsel then started to ask about instructions by the judge and Gee interrupted the questions and stated, "I would go by his instructions." Gee admitted that he was nervous and that he got confused. He stated that he would weigh the evidence and give it his best shot.

¶14 Prospective Juror Martin initially stated that he would consider all three sentencing options. When defense counsel asked Martin what the appropriate punishment would be for someone that committed intentional murder, Martin responded that he "wouldn't go less than life without parole." After the prosecution explained the procedure during a punishment stage, Martin gave assurances that he would consider all three punishment options. Even after further questioning by defense counsel, Martin stated that he changed his mind and that he would even consider a life sentence for an intentional murder. Clearly the trial court did not abuse its discretion in failing to remove Martin.

¶15 The harder issue is whether the trial court abused its discretion in failing to remove Gee. However, Grant has not shown that the arguably erroneous ruling reduced [58 P.3d 790] the number of his peremptory challenges to his prejudice, and he has not shown that he was forced, over objection, to keep an unacceptable juror; therefore, we need not decide this issue.

¶16 In this case, after defense counsel exhausted his complement of peremptory challenges, counsel advised the trial court that if he had not been forced to use his peremptory challenges on Gee and Martin, he would have removed juror Hargrave. Defense counsel utilized his second peremptory challenge on prospective juror Gee and his ninth and final peremptory challenge on Martin.

¶17 After the individual in-camera voir dire of prospective juror Hargrave, Appellant exercised his sixth peremptory challenge, but not for Hargrave. He never sought to have Hargrave removed for cause. Appellant then exercised his seventh and eighth peremptory challenge without excusing juror Hargrave. Because, Grant excused three prospective jurors whom he did not challenge for cause after Hargrave was seated, and he did not move to strike Hargrave for cause, he has not shown that the jury was prejudiced against him. See Abshier,

¶18 In fact, Grant does not claim that the jury was biased. The focus must be on the prospective jurors who ultimately sat on the jury. Abshier,

B.

¶19 During the jury selection process, prospective jurors were asked to give their own personal definition of the legal concept "beyond a reasonable doubt." Grant complains, in proposition two, this constituted impermissible questioning. Not one time during trial did defense counsel object to the jurors being asked their personal definition of this burden of proof. In fact, defense counsel told the jurors that all of their definitions were good, and he specifically expressed approval of the jurors who stated, "You have to be sure." As we said in Simpson v. State,

¶20 In this case, there is no plain error. The main concern is whether the inquiry lowered the standard of proof necessary in a criminal case. See Sullivan v. Louisiana,

C.

¶21 In all criminal cases, potential jurors are routinely asked about their own personal experiences with criminal activity and the criminal justice system. Potential jurors, in this case, were asked how they had been impacted by crime and the criminal justice system. Grant complains, in proposition six, that one juror's response went too far and tainted the entire jury pool. This particular juror expressed anger over the fact that the person who murdered her father served only seventeen years of a forty-[58 P.3d 791]-five year sentence. Defense counsel requested a mistrial based on the statements arguing that the statements improperly introduced the possibility of parole and early release to the other prospective jurors. This potential juror was struck for cause by agreement of the parties.

¶22 The next day an in camera hearing was held on the issue. During the hearing defense counsel specifically objected to an admonishment by the court or to any questioning of the jurors regarding the impact of the statements on them. Counsel felt that this would only serve to reinforce the statements on the minds of the jurors.

¶23 In Mays v. State,

The legislature's actions in making life without parole a viable sentencing option in first degree murder cases has obviously modified this Court's previous rulings insofar as they mandate a blanket prohibition against the jury's considering parole in deciding which sentence is appropriate. By its actions, the Legislature has created a specialized area of the law which mandates the jury must consider the possibility of parole in determining whether a defendant convicted of first-degree murder must live or die.

¶24 While jurors must consider the possibility of parole in a first-degree murder prosecution where "life without parole" is one of the sentencing options, a trial court must refrain from trying to define the parameters of parole with regard to a certain defendant. Mays,

¶25 We are of the opinion that the statements of this potential juror did not taint the jury pool, and a mistrial was not required. This potential juror stated that the defendant in her Father's case pled guilty, and she did not know to which crime he pled guilty. When reviewing the voir dire on whole, we find that these comments did not create reversible error.

D.

¶26 Correctional officers closely guarded Grant, who was in the custody of the Department of Corrections during trial. Grant complains, in proposition seven, that the method in which these officers were escorting him to and from the courtroom, violated the presumption of innocence. In this case, the prospective jury panel saw Grant being escorted from the courtroom, locked arm in arm with prison guards. At trial, Grant objected to this treatment, arguing that it was tantamount to placing him in handcuffs or shackles and made him look like an animal. He raises the same issue here.

¶27 Title 22 O.S.2001, § 15, provides, in part, "in no event shall [a person . . . be tried before a jury while in chains or shackles." This statute is designed to allow a defendant the "unrestrained use of his limbs," the freedom from "any physical bonds or burdens which might tend to confuse or embarrass his mental faculties," and to prevent prejudice against the defendant from interfering with the presumption of innocence. French v. State,

¶28 However, this Court has clearly distinguished between the use of armed guards in a courtroom and being tried while in "chains and shackles." Vavra v. State,

¶29 The prospective jurors, in this case, were fully aware that Grant was in prison on unrelated charges when this crime occurred. The trial court informed the jurors that the Department of Corrections officers were there because Grant was in prison when this "alleged" crime took place. After defense counsel objected to the treatment of Grant, [58 P.3d 792] the trial court asked the guards to refrain from locking arms, and from that point on there were no more objections from defense counsel.

¶30 We find that the method of escorting Grant to and from the courtroom did not violate Section 15 of Title 22, nor did it undermine the presumption of innocence. The human restraint was not the equivalent of using chains, handcuffs or shackles. Grant was not restrained during trial, and the human restraint was limited to the time he was being escorted to and from the courtroom. There is no error here.

III. FIRST STAGE ISSUES

A.

¶31 The State called two fellow inmates who testified against Grant. In proposition three, Grant argues that one of these inmates' identification of Grant as the one who threatened Carter on the day of the murder was not sufficiently reliable to be admissible.

¶32 Inmate Jerry James was working next to Carter, in the dining hall, serving breakfast on the morning of Carter's murder. He testified that on that morning another inmate who he did not know (but whom he identified at preliminary hearing and at trial as Grant) tried to take a tray other than his. Carter told him to "take the damn tray and go on." The inmate responded, "You're mine." James also testified that he saw Grant in the dining area after breakfast and that he saw Grant stabbing Carter.

¶33 Grant first complains that James's viewing of the inmate that was involved in the confrontation with Carter was too brief to support identification. Grant claims that the identification by James was especially damaging because it showed ill will between himself and Carter and negated the possibility that he did not know the consequences of his actions on the day of the murder. Grant disputes James's identification with the use of inmate Kuykendall who testified that he never saw Grant in the line that day even though he too was working next to Carter. Kuykendall testified that Grant threatened Carter the day before, and not the day of the murder.

¶34 Grant alleges that the preliminary hearing identification was the first time that James identified him as the one who threatened Carter on the day of the murder. He claims that an OSBI agent who told James that John Grant was the one who attacked Carter tainted this identification, and the identification was unreliable because Grant was the only black man sitting at the defense table.

¶35 This Court has held, on more than one occasion, that an in court identification need not be excluded, even if there is impermissibly suggestive pretrial identifications, when there is independent indicia of reliability. Young v. State,

¶36 In the present case, James had sufficient time to view Grant in the serving line to later identify him at trial. More importantly, he saw Grant loitering around the dining room and later saw him stabbing Carter. James said that there was no doubt in his mind that Grant was the one who told Carter, "You're mine," and the one who later attacked Carter. Even though six months had elapsed between the crime and the initial identification, this event was one that would have left quite an impression on James.

¶37 Furthermore, defense counsel thoroughly cross-examined James on his identification pointing out the facts that there was no photographic line-up, that he initially told investigators that the inmate who threatened Carter was a medium built black man, which described five other men in the room at the time, and that an OSBI agent had told him at preliminary hearing that John Grant was the one he saw. [58 P.3d 7963]

¶38 The record as a whole fully supports the admissibility of James's identification of Grant as the one who threatened Carter the morning of her murder. The trial court did not abuse its discretion in allowing the identification testimony.

B.

¶39 Grant complains about the introduction of a photograph, which he describes as irrelevant and highly prejudicial in proposition eight. The photograph, State's exhibit 13, depicts a portion of the victim's nude body. The photograph shows cleaned puncture wounds and bruising to Carter's torso. The State initially sought to introduce three such pictures during an in-camera hearing, but the trial court, after careful review, only allowed the State to introduce one of the photographs. Grant now complains that the photograph was cumulative to the medical examiner's report that contained a chart showing the location of the wounds.

¶40 In order to be admissible photographic evidence must be relevant, and photographs are admissible unless the probative value is substantially outweighed by the danger of unfair prejudice. 12 O.S.1991, §§ 2402-2403; Myers,

¶41 This photograph was relevant because it more closely depicted the nature and extent of some of the stab wounds on Carter's body than any other evidence available, including the medical examiner's depiction of the wound locations on a chart. The best evidence would have been to allow the jurors to see the crime as it was occurring. Second best would be to allow the jurors to view the victim's body just after she was stabbed. These two possibilities do not exist in this case. However, this evidence would have been more gruesome and prejudicial than the sterile, clinical photograph of Carter's body. See Myers,

C.

¶42 In proposition seven, Grant argues that his constitutional right to confront and cross-examine witnesses against him was violated when the trial court limited his cross-examination of Dr. Frederick Smith. Dr. Smith was called by the State as a rebuttal witness. Dr. Smith testified that he reviewed all of Grant's medical and mental health records maintained by the Department of Corrections, including a report by Dr. Elliot Mason. Dr. Smith concluded that he did not see any evidence of mental illness present with Grant.

¶43 On cross-examination, Grant attempted to question Dr. Smith about a portion of the report by Dr. Mason which contained Grant's statement to Dr. Mason that he thought the security people were contaminating his food. Defense counsel, before objection by the State, attempted to ask Dr. Smith if he just missed that part of the report. The trial court ruled that the questioning was beyond the scope of direct examination.

¶44 Part of Dr. Smith's testimony dealt directly with the issue of whether Grant exhibited any signs of having delusions. Smith testified that he had reviewed Dr. Mason's report before reaching his conclusions. The statement by Grant in Dr. Mason's report contradicted part of Dr. Smith's opinion that Grant exhibited no signs of having delusions. "The extent of cross-examination rests in the discretion of the trial court and reversal is only warranted where there is an abuse of discretion resulting in prejudice to the defendant." Parker v. State,

"

Smith v. State

¶45 Applying these general rules to the present case, we find that the attempted cross-examination was not beyond the scope of direct examination, and the trial court should have allowed the inquiry. However, prejudice must be shown. There was no prejudice to Grant resulting from the trial court's ruling in this case.

¶46 There had been no history of delusional behavior in the seventeen years that Grant had been in D.O.C. custody. The failure to allow cross-examination on this single, self-serving statement made three days after Grant murdered the kitchen worker and contained in a second-hand report had no impact on the jury's determination of guilt or the sentence in this case. Therefore, we find that the trial court's ruling was harmless beyond a reasonable doubt.

IV. FIRST STAGE INSTRUCTIONS

¶47 Grant claims, in proposition four, that the trial court committed error by failing to instruct the jury on lesser-included offenses. Grant argues that the trial court should have instructed on the lesser offenses of second-degree murder and first-degree manslaughter. His argument is based on evidence of his mental illness that, he claims, precluded him from forming the specific element of malice aforethought necessary for a first-degree murder conviction. At trial, Grant only requested that the jury be instructed on the lesser offense of first-degree manslaughter.

¶48 It is the trial courts duty to instruct the jury on all lesser related offenses that are supported by the evidence, even absent a request from a defendant. Schrum v. State,

¶49 A defendant cannot be convicted of second-degree murder if the evidence establishes that he acted with a premeditated intent to kill. 21 O.S.1991, § 701.8(1); Williams v. State,

¶50 First-degree manslaughter requires that a person act with a "heat of passion" caused by "adequate provocation." 21 O.S.2001, § 711. No evidence exists to support either of these elements. Therefore, the trial court did not err in failing to give this requested instruction.

¶51 Within this proposition, Grant urges this Court to recognize a "diminished capacity" defense to first degree murder wherein a defendant is incapable of forming the specific intent due to mental illness, yet something less than complete insanity. He compares this type of defense to the intoxication defense.

¶52 By accepting this defense, Grant argues that the diminished capacity would lessen the offense to Second Degree "depraved mind" Murder or First Degree Manslaughter. We need not reach the issue of a "diminished capacity" defense in this case, as Grant's evidence regarding his mental illness did not show that he suffered mental infirmities that would have rendered him incapable of forming the specific intent necessary. Cf. Jackson v. State,

V. SECOND STAGE ISSUES

¶53 Grant complains in proposition eleven that the use of his prior convictions to prove two aggravating circumstances, "prior [58 P.3d 795] violent felony" and "murder committed by a person incarcerated on conviction of a felony," resulted in duplicitous aggravating circumstances which skewed the weighing process. We addressed this issue in Green v. State,

¶54 Grant claims, in proposition twelve, that the "continuing threat" aggravating circumstance is unconstitutionally vague and does not serve the proper narrowing process. We have repeatedly upheld the constitutionality of this aggravating circumstance and will not revisit this issue here. Myers,

VI. VICTIM IMPACT EVIDENCE

¶55 Victim impact evidence, in this case, consisted of two statements written by Carter's daughter and brother respectively. Carter's sister read the first statement and Carter's friend read the second. In his ninth proposition, Grant complains about the method in which victim impact evidence was presented. Grant did not object to the reading of the first statement, but he did object to the second statement being read by a "non-family member" in violation of 22 O.S.1991, § 984.

¶56 On Appeal, Grant argues that his Sixth Amendment right of confrontation and his Sixth Amendment right to effective counsel was violated by the introduction of the hearsay statements. He also argues that his Fourteenth Amendment Due Process rights were violated because mitigation evidence and witnesses are given stricter treatment under the evidence code than are victim impact witnesses. Finally Grant argues that the introduction of victim impact evidence violates the Eighth Amendment right to a reliable sentencing proceeding. To the extent that there are different issues raised on appeal than those raised at trial, we will review for plain error only. Plain error is error that deprives a defendant of a constitutional or statutory right, and goes to the foundation of the case. Stemple v. State,

¶57 The contents of the statements are not at issue here, except for a portion in which there is a recommendation of sentence, which we will discuss later. Suffice it to say that the content of these statements complies with the limitations on victim impact statements set forth in our case law and legislation.

¶58 We have previously held that victim impact evidence, which meets the narrowly defined definition, is relevant in a first-degree murder prosecution. Cargle v. State,

"[V]ictim impact evidence should be restricted to those unique characteristics which define the individual who has died, the contemporaneous and prospective circumstances surrounding that death, and how those circumstances have financially, emotionally, psychologically, and physically impacted on members of the victim's immediate family."

Cargle

¶59 In Ledbetter v. State,

¶60 With these thoughts in mind, we struggle with the process of introducing a written victim impact statement to the jury. Usually when written statements are introduced, some method of sponsorship must be utilized. Either the person who prepared the document or someone who can identify and authenticate the document must testify. See 12 O.S.2001, § 2901. Alternatively, the parties may stipulate to the authenticity of the statements and allow the introduction without objection.

¶61 In this case, the statements were prepared by members of the victim's family and read in court by designees, because there was some indication that the family members would not be able to get through the statements without breaking down emotionally. There was no evidence that the readers had any independent knowledge of the facts in the statements. There is also no evidence about whether the family members that wrote the statement were in attendance at the sentencing.

¶62 We find that the reading of the statements by third parties did not comport with the provisions of either 21 O.S.2001, § 701.10 or 22 O.S.2001, §§ 984 & 984.1 or with our prior case law cited above. Grant could not, if he had chosen to do so, test the validity of the statements through meaningful cross-examination; therefore, his right of confrontation was hindered and error occurred.

¶63 Nevertheless, Grant chose not to challenge the content of the victim impact evidence presented in this case even after an in-camera hearing in which all parties reviewed the statements and knew that the statements would be read by third parties. Grant merely objected, during the in-camera hearing, that the second reader, Larry Young, was not a "member of the immediate family" as defined in 22 O.S.2001, § 984. The trial court chose to wait and rule on this issue at a more appropriate time, but Grant raised no objection to either reader, including Young, at the time the victim impact evidence was presented.

¶64 As a strategic choice, this may have been a rather wise move. If the respective authors of the statements had testified, the jury would have surely been witnesses to highly emotional outbursts. Grant's choice in allowing the statements to be read by these parties allowed the statements to be presented in a less prejudicial manner.

¶65 Many times this Court has found that improperly introduced victim impact evidence is harmless. Usually this is due to the fact that evidence of aggravating circumstances is overwhelming, evidence of the aggravating circumstances clearly outweighs the mitigation evidence, and the victim impact statements are "extremely short, far less emotional than the factual details of the death already in evidence, and of little or no weight in and of themselves."

¶66 The same is true here, Grant, a prison inmate, serving sentences for violent felonies, violently stabbed a prison employee over some type of dispute about his breakfast tray. The three aggravating circumstances were clear and they obviously outweighed the mitigating evidence.

¶67 In fact, Grant does not object to the content of the victim impact statements, nor does he say how he would have cross-examined the witnesses who wrote the statements. He does not claim that the statements are untrue or that the writers are insincere. He has shown no prejudice or harm by the way the victim impact evidence was presented here. In fact, the method in which it was presented may have been the least harmful method available except for the mere presentation of the written statement to the jury. Therefore, any error in this method was harmless beyond a reasonable doubt.

¶68 Further, the jury was properly instructed on the use of victim impact evidence. The jury was instructed, pursuant to OUJI CR (2d) 9-45 (2000 Supp.), that victim evidence may only be considered after they "first find the existence of one or more aggravating circumstance has been proven beyond a reasonable doubt by evidence independent from the victim impact evidence and find that the aggravating circumstance(s) found outweigh the finding of one or more mitigating circumstances." This instruction properly channeled the jury's sentencing decision, and we find that the jury properly followed the instructions.

¶69 Grant's further assertion that he was denied due process because victim impact evidence is given less scrutiny than mitigation evidence is also unpersuasive. Victim impact evidence has historically been viewed with close scrutiny and we have always applied the rules of evidence to victim impact evidence. Namely, because victim impact evidence is intended to remind the sentencer that "the victim is an individual whose death may represent a unique loss to society and the family[,]" and that victim impact evidence may be considered in determining the appropriate punishment. OUJI CR (2d) 9-45 (2000 Supp.). Furthermore, Grant's argument does not deal with the specific facts of his case. Therefore, he cannot show that his due process rights were violated.

¶70 Lastly he claims that the introduction of victim impact evidence violates the Eighth Amendment right to a fair sentencing proceeding. We have held numerous times that properly presented victim impact evidence does not violate the Eighth Amendment. We further find that the method in which the evidence was presented here did not violate the Eighth Amendment.

¶71 As stated before, Grant does complain about the request for the sentence of death in each of the statements. We review these types of claims with a heightened degree of scrutiny. Taylor v. State,

¶72 This Court has previously held that a victim impact statement that contains a belief that the defendant should receive death penalty is admissible, but it must be a simple statement of the recommended sentence without amplification. Conover,

¶73 Grant has presented no argument regarding the victim impact evidence in this case that requires relief.

VII. SECOND STAGE INSTRUCTIONS

¶74 Grant claims, in proposition fourteen, that the instructions on mitigation permitted the jurors to ignore mitigation and diminished the effect of the mitigating evidence presented in his case.

"We have consistently rejected the claim that instructing the jury they 'may consider' mitigating evidence creates a doubt as to the jury's constitutional duty to consider such evidence and recently reaffirmed [58 P.3d 798] those holdings in Welch v. State,

Pickens v. State

VIII. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS

¶75 No family members were called to provide mitigation evidence on Grant's behalf. In proposition thirteen, Grant claims that the failure to call certain family members in the second stage constituted ineffective assistance of counsel. An evidentiary hearing was held pursuant to Rule 3.11 , Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2001), wherein the record in this case could be supplemented with the evidence regarding this issue. Pursuant to this rule, the trial court made written findings of fact and conclusions of law. We give strong deference to the findings of fact and conclusions of law of the trial court in determining the propositions; however, we shall determine the ultimate issue regarding effective assistance of counsel. Rule 3.11 .

¶76 During the evidentiary hearing, trial counsel was asked why he did not call family members as mitigation witnesses. He testified that there were two main reasons. First, Grant told him that he basically had no contact with his family since he left home at the age of fifteen and was incarcerated since the age of nineteen. Grant indicated that he did not know where his family was located other than somewhere in Oregon. Grant told him that he didn't want his family involved in the proceedings. Regardless, Bowen did ask his investigators to try and contact Grant's family. One investigator testified that he was unable to locate Grant's family before trial. Appellant, John Grant, did not testify at this hearing.

¶77 Secondly, Bowen testified that because the family members had no close contact with Grant in some twenty years, their testimony would be of little help. He felt like if they testified about their relationship, they would be vulnerable on cross-examination because they hadn't had any contact with him since he had been incarcerated.

¶78 The trial court found, and we concur, that the family members could have been contacted with the use of information located in Grant's prison records and they would have been willing to testify at trial. The trial court also found that the witnesses' testimony would have been cumulative to each other and would not have had a positive impact on the jury. We agree.

¶79 Ruth Grant, Appellant's mother, testified that she was a single mother who raised Appellant and six of his siblings in impoverished conditions. She testified that they moved to Oklahoma City when Appellant was five years old. She testified that he started getting into trouble when he was nine. She testified that he spent time in boys' homes and finally spent time in two juvenile prisons. She moved to Oregon in 1979 while Appellant was incarcerated. She testified that she visited Appellant for about one hour each year while he was in prison.

¶80 Several of Appellant's siblings testified. They all testified that Appellant was not violent toward them or toward anyone in the household. They testified that Appellant grew up with no father figure, except for an uncle, Clayton Black, who lived nearby. They also testified that they would have asked the jury to spare his life. Appellant's biological father testified that he had no contact with Appellant, but would have asked the jury to spare his life.

¶81 In order to show that counsel was ineffective for failing to present this evidence at trial, Grant must show both deficient performance and prejudice. Strickland v. Washington,

¶82 To establish prejudice, Grant must show that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine the confidence in the outcome." Strickland,

¶83 In the context of a capital sentencing proceeding, the relevant inquiry is "whether there is a reasonable probability that, absent the errors, the sentencer . . . would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Strickland,

¶84 We find that counsel's performance was not deficient. The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. Strickland,

Although trial counsel has an independent duty to investigate and make a case in mitigation, counsel also has to be responsive to the wishes of his client, see Wallace [v. Ward], 191 F.3d [1235] at 1247-48 (holding counsel's performance during capital sentencing proceeding was not deficient, where counsel acquiesced in petitioner's wishes not to present any mitigating evidence or challenge State's evidence).

Romano

¶85 Trial counsel did present some mitigating evidence including Grant's own testimony and a prison psychiatrist. The prison psychiatrist testified that Grant had never been treated for any mental illness or syndromes.

¶86 Grant testified about his childhood, that he had eight brothers and sisters and that he left home, for the first time, at the age of twelve. He testified that he had been in and out of institutions since his teen years. He testified that when he reached the age of seventeen he was sentenced to adult prison and served one year. He testified that once he got out he committed the robberies for which he was incarcerated when this crime took place. He apologized to the family of the victim. The mitigating evidence Grant now claims his attorney was ineffective for not presenting would have repeated Grant's own account of his childhood.

¶87 Considering all of the evidence presented at trial and at the evidentiary hearing, we do not believe that trial counsel's conduct was "outside the wide range of professionally competent assistance." Strickland,

¶88 Grant has made no showing that the failure to find his family members and present their testimony at trial was the result of deficient performance, or that the failure rendered his sentence unreliable. See Burger v. Kemp,

¶89 Finally, Grant claims that counsel's failure to preserve certain errors constituted ineffective assistance of counsel. He first claims that the failure to object to jury questioning regarding their personal definitions of reasonable doubt constituted ineffective assistance. In our discussion of proposition two, we determined that the questioning was more analogous to attempts to distinguish between the "beyond a reasonable doubt" standard and a "beyond all doubt" standard, which we have stated is perfectly acceptable. [58 P.3d 800] Therefore, counsel's failure to object did not amount to deficient performance.

¶90 Grant also claims that the failure of his counsel to make proper objections to the victim impact evidence constituted ineffective assistance. We dealt with counsel's performance with regard to the victim impact evidence in our discussion of proposition nine. Our conclusion was that trial counsel made reasonably strategic decisions; therefore, his performance was not deficient. Grant has not shown that trial counsel's conduct fell below reasonable standards of professionally competent assistance in any area.

IX. CUMULATIVE ERROR

¶91 Grant urges us to consider his proposed errors in a cumulative fashion in proposition fifteen, if we find that none of them individually necessitate reversal of his conviction and sentence. We have reviewed the case to determine the effect, if any, of Grant's alleged accumulation of error. We find, even viewed in a cumulative fashion, the errors we identified do not require relief. Woods v. State,

X. MANDATORY SENTENCE REVIEW.

¶92 Title 21 O.S.1991, § 701.13, requires this Court to determine "[w]hether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor; and whether the evidence supports the jury's or judge's finding of a statutory aggravating circumstance." Sufficient evidence existed to support the finding of the three statutory aggravating circumstances. Grant was in prison serving a sentence for conviction of a felony; he had been convicted of felonies involving violence; and based on his prior violent past and the violence of this crime, the jury could reasonably conclude that there was the existence of a probability that the Grant would commit criminal acts of violence that would constitute a continuing threat to society.

¶93 After reviewing the entire record in this case, we find that the sentence of death was not imposed because of any arbitrary factor, passion, or prejudice. The facts of this case and the overwhelming evidence of the aggravating circumstances simply warranted the penalty of death.

¶94 We find no error warranting reversal of Grant's conviction or sentence of death for first-degree murder, therefore, the Judgment and Sentence of the trial court is, hereby, AFFIRMED.

AN APPEAL FROM THE DISTRICT COURT OF OSAGE COUNTY
BEFORE THE HONORABLE J. R. PEARMAN, DISTRICT JUDGE

JOHN MARION GRANT

APPEARANCES AT TRIAL

APPEARANCES ON APPEAL

JAMES BOWEN
AMY McTEER
INDIGENT DEFENSE SYSTEM
CAPITAL TRIAL DIVISION
610 S. HIAWATHA
SAPULPA, OK 74066
ATTORNEYS FOR DEFENDANT

WILLIAM H. LUKER
SANDRA MULAIR CINNAMON
JAMES LOCKARD
APPELLATE DEFENSE COUNSEL
CAPITAL DIRECT APPEALS DIVISION
INDIGENT DEFENSE SYSTEM
1660 CROSS CENTER DRIVE
NORMAN, OK 73019
ATTORNEYS FOR APPELLANT

LARRY STUART
DISTRICT ATTORNEY
KEITH SIMS
ASSISTANT DISTRICT ATTORNEY
OSAGE COUNTY COURTHOUSE
P.O. BOX 147
PAWHUSKA, OK 74056
ATTORNEYS FOR THE STATE

W. A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA
DAVID M. BROCKMAN
ASSISTANT ATTORNEY GENERAL
112 STATE CAPITOL BUILDING
OKLAHOMA CITY, OK 73105
ATTORNEYS FOR APPELLEE

OPINION BY: LILE, J.
LUMPKIN, P.J.: CONCURS
JOHNSON, V.P.J.: CONCURS
CHAPEL, J.: DISSENTS
STRUBHAR, J.: CONCURS

RA

FOOTNOTES

CHAPEL, JUDGE, DISSENTING:

¶1 On November 13, 1998, John Marion Grant killed Gay Carter by laying in wait for her, grabbing her, dragging her into a tiny room at the Connor Correctional Center, and repeatedly and brutally stabbing her to death. Grant had previously worked for Carter, who was a civilian cafeteria supervisor. According to Grant she had always been kind to him, and he considered her his "friend." Grant's only prior dispute with Carter was a disagreement relating to his breakfast tray on the day before the murder and again on the day of the murder. On both occasions, however, he threatened Carter; and after breakfast was over on the second day, he killed her.

¶2 The vicious and unprovoked attack was observed by eyewitnesses, and Grant was apprehended afterward still holding the murder weapon. Thus there was never any doubt that it was Grant who killed Carter. In addition, because Grant had no significant history of mental illness, nor did any doctor ever determine that he was insane, an insanity defense had no realistic chance for success at trial. Furthermore, because Grant committed the murder while serving a 130-year prison sentence for four armed robbery convictions, two of the three aggravating circumstances alleged in his capital trial were essentially incontrovertible (i.e., prior violent felony conviction(s) and that the murder was committed while serving a felony prison sentence), and the third was practically a given as well (i.e., that he posed a continuing threat of future violence). [58 P.3d 801]

¶3 Consequently, the essential task of Grant's assigned counsel at trial, though difficult to be sure, should have been patently clear: give the jury a reason to spare his life. Counsel was certainly obligated to hold the State to its burden of proof throughout and to defend the case to the best of his ability. Yet the circumstances of the crime and Grant's history compel the conclusion that effective assistance could only be provided in this case by attempting to give the jury (or at least a single juror) some reason to spare Grant's life.

¶4 The goal of persuading jurors to spare the life of a person that they have already convicted of first degree murder can be pursued at trial through any number of different approaches, such as attempting to "humanize" the defendant, suggesting that he deserves some sympathy or mercy because of the circumstances of his life history, presenting friends or family to plead for his life, etc., either alone or in combination. Yet almost all of these approaches have one thing in common; they rely on the presentation of mitigating evidence relating to the individual defendant. Hence the centrality of mitigating evidence within a capital trial has been repeatedly recognized by the United States Supreme Court, this Court, and courts throughout the country.

¶5 Such mitigating evidence can only be presented if it is first discovered. Hence the Supreme Court, this Court, and other courts have likewise insisted that effective assistance of counsel at trial requires that defense counsel diligently seek to obtain and develop mitigating evidence regarding the defendant.

¶6 Although a naked plea for mercy could possibly constitute effective assistance in a particular case (such as where a diligent investigation did not reveal viable mitigating evidence), such an approach can only be chosen after counsel first seeks to obtain mitigating evidence relating to the individual defendant. It is a cardinal rule of capital defense (and logic) that counsel cannot be exercising his or her "discretion" in neglecting to present particular mitigating evidence if counsel does not know that such evidence exists. Similarly, counsel cannot "reasonably" decide not to present a particular type of mitigating evidence-such as evidence involving a defendant's childhood and family history-if counsel does not first discover and develop such evidence to some degree, such that its potential impact can be understood and realistically evaluated.

¶7 Although an attorney is entitled to make reasonable strategic decisions about which leads to investigate and how far to pursue particular investigations, strategic decisions made after incomplete investigations will be evaluated according to the reasonableness of the attorney's decision to limit his or her investigation, under all the circumstances of the case.

¶8 In his thirteenth proposition of error, Grant claims that his trial counsel was ineffective for failing to adequately investigate and present mitigating evidence from members of his family.

¶9 Although this Court gives strong deference to district court findings that are supported by the record, the majority opinion correctly recognizes that this Court retains the ultimate authority to determine whether trial counsel's performance constituted ineffective assistance of counsel.

¶10 All nine of the family members whose affidavits were attached to Grant's application for an evidentiary hearing testified at the evidentiary hearing. These family members are related to Grant as follows: Ruth L. Grant (mother), Walter Grant (father), Clayton Black (maternal uncle), Ronnie Grant (older brother), LaRonda Hovis (oldest sister), Ruth Ann Grant Burley (older sister), Andrea Grant (younger half-sister), Gregory Grant (younger half-brother), and O.C. Frazier (youngest half-brother). Of these nine family members, six traveled from their homes in Portland, Oregon to attend the hearing.

¶11 Ruth, LaRonda, Ruth Ann, Andrea, Gregory, and O.C. testified that they were living in Portland during the time from the November 1998 killing of Gay Carter through Grant's February/March 2000 trial. Ronnie testified that he was living in Los Angeles during that time. Yet the district court specifically found that all nine family members "were findable and would have testified at trial if they had been asked." This factual finding is amply supported by evidence presented at the evidentiary hearing, and today's Court majority states that "we concur that the family members could have been contacted with the use of information located in Grant's prison records and [that] they would have been willing to testify at trial." The district court also found that "trial counsel did little to develop the mitigating evidence" that these persons could have offered. This finding is likewise amply supported by the record and is not disputed by today's majority.

¶12 Nevertheless, the district court also concluded that "[n]ot calling family members to testify at trial was trial strategy and not an oversight on trial counsel's part." The district court did not make a specific finding [58 P.3d 804] about whether trial counsel's performance in this regard constituted "reasonably effective assistance,"

¶13 Yet the district court found that Grant did not waive the presentation of mitigating evidence from members of his family.

¶14 In general, both the district court and today's majority opinion appear to confuse and conflate two distinct issues: (1) defense counsel's obligation to investigate and develop mitigating evidence regarding a capital defendant's background and family history, and (2) the subsequent strategic decision about what mitigating evidence to present to the jury. Grant's counsel did not make a strategic decision to not present the mitigating background and family history evidence that came out at the evidentiary hearing. Grant's counsel totally failed to discover this evidence, because he failed to contact anyone from Grant's family. Hence the district court's finding that defense counsel's failure to present the family testimony "was trial strategy and not an oversight on trial counsel's part" does not make sense and is not supported by the evidence. [58 P.3d 805]

¶15 If trial counsel had made reasonable efforts to locate and interview members of Grant's family and then decided not to present that testimony (i.e., after first determining what that testimony was likely to be), a decision not to present the testimony could possibly have been a reasonable trial strategy.

¶16 The closer question, in my opinion, is the issue of prejudice.

¶17 Although the district court emphasized that it hesitated to predict what a jury would do in any particular case, it concluded that Grant had not established prejudice from the failure to present the family testimony in his case. Specifically, the district court found (1) that the family testimony was "cumulative," (2) that it "would have had no positive effect on the jury," and (3) that it "would have had no effect on the jury's sentencing determination as the evidence of the three aggravating circumstances was overwhelming." After thoroughly reviewing the evidence presented by members of Grant's family at the evidentiary hearing (summarized below), I conclude that the district court's findings in this regard are not supported by the record.

¶18 The family members painted a rather depressing picture of the circumstances into which Grant was born and in which he grew up. John Marion Grant was the sixth of nine children and the last fathered by his mother's former husband, Walter Grant.

¶19 During the three years following Walter's departure and Grant's birth, Ruth had three more children (Andrea, Gregory, and O.C.), the last of which was named after their father, O.C. Frazier. O.C. Frazier never lived in Ruth's home with the children, and John never experienced having a male role model in the family home. Instead, the two oldest sisters in the family were expected to play very substantial roles in running the home and raising and disciplining the younger children, including Grant, even while they were still children themselves.

¶20 Ruth's only sources of income to support her large family were Aid to Dependent Children and some part-time work cleaning people's homes. LaRonda described their family as "dirt poor, extremely poor." The first family home in Ada had only three rooms and no indoor plumbing, and the family did not own a car. When Grant was approximately five years old, the family moved to Oklahoma City, where they lived next door to Ruth's brother, Clayton Black. Black lived across the street from some apartment buildings that were known as "the projects," and Ruth and the children eventually moved into these apartments. Family members testified that things got even worse in the new neighborhood, which was poor, tough, crime-ridden, run down, and dangerous, particularly in the projects. In 1979, Ruth and the children who were still in the home moved to Portland, Oregon to escape the neighborhood. Grant was unable to go with the family, however, because he was confined to a juvenile facility at the time.

¶21 The family members described Grant as being "sweet," "loving," "quiet," "sensitive," and "gentle" when he was a child. He loved animals and pets, especially dogs. Some of Grant's sisters testified that he did not get much attention from their mother and that he needed more love than he got. Many of the family members remembered Grant crying a lot as a child. Ruth noted that Grant first started having problems and getting into trouble when the city started busing the children to schools outside the neighborhood. Some of Grant's siblings testified that when Grant first started stealing as an adolescent, he was stealing things like clothing and shoes for the younger children in the family.

¶22 Grant's younger siblings testified that he was very protective of them and that he would come to the aid of his younger brothers when older boys in the neighborhood threatened them or tried to fight them. Gregory testified that Grant gave him "quite a bit of advice growing up" and that Grant attempted to steer him away from some of the "badder guys" in the neighborhood. He stated that even though Grant did not follow his own good advice, "he pretty much wanted to make sure that the people who were younger or his beloved brothers didn't get into the type of lifestyle he got into." Andrea testified that Grant was her "favorite brother" and that they were very close as children. O.C. likewise described Grant as a "cool brother" who was always there for him and who helped him out a lot.

¶23 LaRonda testified that Grant once helped her escape from an abusive boyfriend [58 P.3d 807]and that she was very touched by the concern he showed for her and her children at that time. Gregory testified that Grant always loved small children, particularly his nieces and nephews. And all of the family members testified that Grant was never violent or verbally abusive within the family, even as an adolescent.

¶24 The family members also testified that they stilled loved Grant and that they would like the opportunity to maintain or renew their relationships with him. Some expressed regret about their failure to provide Grant with more support. All of the family members testified that if they had been given the opportunity to testify at Grant's trial, they would have asked the jury to spare his life.

¶25 The exact meaning of the district court's finding that the family testimony was "cumulative" is unclear. To the extent that the district court was finding that this testimony was cumulative in relation to the evidence put on during the second stage of Grant's trial, this finding is clearly contradicted by the record in this case. The only testimony relating to Grant's childhood and family life that was put on during the second stage of his trial was his own testimony that he had five brothers and three sisters, among which he was "somewhere in between." Grant also acknowledged that he was in a number of juvenile institutions during his teen years and that he left home at the age of seventeen. Grant's minimal description of the number of children in his family and some of his placements as a teenager certainly does not make the vast array of mitigating evidence presented by members of his family merely "cumulative."

¶26 I likewise conclude that the district court's findings that the family testimony would have had "no positive effect on the jury" and also "no effect" on its ultimate sentencing determination were erroneous and unreasonable. As the district court itself conceded, predicting what would and would not have mattered to a jury is necessarily a dubious and highly imprecise exercise. The district court refuses to countenance even the possibility that the extensive information provided by Grant's family about his difficult and deprived childhood, his personality and behavior within the family, some of the circumstances surrounding his initial delinquent behavior, some of his positive qualities, etc. (along with the pleas for mercy on their son, brother, and nephew), could have touched the hearts of one or more jurors to spare Grant's life. To me, this seems to deny the possibility for human compassion and mercy, even in the context of the "overwhelming" aggravating circumstances in the current case. I find the omitted mitigating evidence to be substantial and powerful, and I believe that one or more jurors could have been affected by it as well.

¶27 Even if this Court could feel somewhat confident in making a judgment (as we are here obligated to do) about whether a jury would care about Grant's background and deprived childhood, I do not understand why we would choose to err on the side of sending a man more quickly to his death, based upon speculation about what a hypothetical jury would do, rather than allow an actual jury to make that determination, equipped with all of the information that should rightfully be put before it. I conclude that Grant has established that there is a reasonable probability that at least one juror at his trial would have been affected by the omitted family evidence, so as not to vote for the death penalty in his case. Hence I find that the failure of defense counsel to investigate and present mitigating evidence from members of Grant's family constituted constitutionally ineffective assistance of counsel and that Grant was prejudiced by this fail-[58 P.3d 808]-ure. This case should be remanded for a resentencing proceeding on this basis, and I dissent from the majority's refusal to do so.

¶28 The critical importance of the jury's decision about whether to spare the life of a capital defendant or sentence him to death is also at the heart of another issue upon which I dissent from today's majority opinion. In his first proposition of error, Grant challenges the trial court's denial of his for-cause challenges of prospective jurors Gee and Martin, based upon their unwillingness to consider one or both of the "non-death" sentencing options under Oklahoma law (i.e., life and life without parole). Grant maintains that the court's failure to excuse these jurors for cause necessitated their removal through peremptory challenges, thereby prejudicially denying him the use of two of his nine statutory peremptory challenges.

¶29 It is important to understand that Grant does not complain that a juror who was strongly biased toward the death penalty was allowed to serve in his case. Rather, he complains that his for-cause challenges of Gee and Martin were wrongfully denied, thereby forcing him to use two of his peremptory challenges to remove these persons from the jury.

¶30 Grant properly preserved this claim at trial by asserting that the denials of his for-cause challenges of Gee and Martin were improper, using all nine of his peremptory challenges, requesting additional peremptory challenges, and specifically naming a juror (juror Hargrave) that he considered undesirable but whom he was unable to remove due to the necessity of using peremptory challenges on both Gee and Martin.

¶31 The majority opinion does assert, however, that Grant "has not shown that he was forced, over objection, to keep an unacceptable juror" and then concludes that it "need not decide" the issue of whether the trial court abused its discretion in failing to remove juror Gee.

¶32 This Court has repeatedly held that "prejudice" in this context is established by showing that the defendant was injured by the trial court's improper denial of his for-cause challenge, because he was forced to use a peremptory challenge to get rid of the biased juror, which would otherwise have been available to strike another potential juror that the defendant considered "unacceptable" or "undesirable."

¶33 Grant's claim is not that Hargrave was removable for cause, but that she was an "undesirable juror" that he could have removed with the last of his nine peremptory challenges, if he had not been forced to use a peremptory challenge to remove juror Gee (who should have been struck for cause).

¶34 It does not matter that Grant chose to strike persons other than Hargrave; nor does it matter that none of the persons that he struck through peremptory challenges (with the exception of juror Gee) were removable for cause. We have never previous-[58 P.3d 810]-ly required that a claimant in this context show anything more than that he used up all of his peremptory challenges and that he was still left with an "undesirable" juror; and we have never questioned a defendant's right to choose to strike one undesirable juror over another.

¶35 Although the majority fails to determine whether the trial court abused its discretion in failing to strike juror Gee for cause, I address the issue herein in order to show that Grant should have been granted a resentencing on this jury selection claim, as well as on the ineffective assistance claim addressed above.

¶36 The standard for evaluating whether a potential capital juror should be excused for cause based upon the juror's views on punishment is "whether the juror's views would 'prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'"

¶38 During subsequent questioning the prosecutor explained that premeditation sufficient to constitute first-degree murder can be formed in an instant and summarized the type of aggravating and mitigating evidence that could be put on during the sentencing stage of a capital trial. After Gee then re-[58 P.3d 811]-asserted that he would follow the court's instructions and consider all three sentencing options, the State maintained that Gee was "rehabilitated" and that he had simply been confused.

¶39 Defense counsel then began re-questioning Gee, and the following exchange occurred:

Counsel: Let's pretend that you have already found Mr. Grant guilty. You heard all of the evidence and you found him guilty. You are convinced beyond a reasonable doubt that he's guilty of First Degree Murder, okay?

Gee: (Nodded head.)

Counsel: You got that?

Gee: Uh-huh.

Counsel: And part of that is that the State, part of that idea is that the State has proven to you that he intended to kill this woman, that he either thought about it for days or he just thought about it and did it, but he intended to kill this woman for no good reason. Okay?

Gee: (Nodded head.)

Counsel: Without hearing another thing, would you automatically give him the death penalty?

Gee: Now, I am going to have to think about.

Counsel: Okay. Think about it.

Gee: I'll have to think about that one.

Counsel: Think about it and give me your answer.

Gee: Yes.

Counsel: Yes you would?

Gee: Yes.

Counsel: Now, what if the Judge gave you other instructions that that happened-

Gee: I would go by his instructions.

From that point on Gee maintained that he would follow the Court's instructions, and defense counsel's questioning concluded as follows:

Counsel: Okay. So even though you were convinced that Mr. Grant here murdered somebody and intended to do that, it was not an accident or anything, intended to kill them and killed them, you would consider, you would follow the Court's instructions and consider giving him something less than the death penalty?

Gee: If the Court ordered, if the Court has asked us to do that.

¶40 Defense counsel renewed his challenge for cause, but the trial court denied it, stating, "And that request will be denied. As I stated when we started this re-questioning[,] I think he was confused and I think that he cleared that up. Now [he] fully understands what he's talking about." Gee then volunteered that he was "nervous" and that he "just lived out in the country too long, I guess." When the court asked if he felt like he now understood, Gee answered, "I think I understand it now. I got confused there for a while and I think I understand it. I'll go in there and weigh both sides and give it my best shot. That's all I can do." The trial court agreed, and Gee was returned to the jury box.

¶41 Whether Gee was biased in favor of the death penalty such that the district court should have struck him for cause is a close call. Even though Gee consistently maintained that he would follow the trial court's instructions and consider all three sentencing options, he also repeatedly and emphatically stated that, in his opinion, anyone who committed premeditated/intentional murder should get the death penalty. In Morgan v. Illinois,

¶42 It appears quite possible that Gee was a juror of this type. He repeatedly admitted that he was confused; and even at the conclusion of his extensive questioning, he does not appear to have understood that his stated belief that the death penalty was the only appropriate penalty for a premeditated murder was inconsistent with his promise to follow whatever the Court ordered the jury to do.

¶43 Although the questioning of Gee did not make it "unmistakably clear" that he would be biased in favor of the death penalty, this kind of certainty is not required in this context. I conclude that Gee's repeated assertion that the death penalty is the only appropriate sentence for a premeditated murder should have been adequate to cause the district court to strike Gee for cause. While I acknowledge that the question of whether the district court abused its discretion by refusing to strike Gee is a close call, this Court should abide by its prior holdings that doubts regarding juror impartiality should be resolved in favor of the accused. There was good reason to doubt Gee's impartiality regarding sentencing, and Grant should not have been forced to use a peremptory challenge to keep Gee off his jury.

¶44 Thus Grant has established (1) that he was required to use a peremptory challenge to remove a juror who should have been struck for cause, (2) that he used all of his remaining peremptory challenges, and (3) that an undesirable juror was left on his jury panel. Consequently, Grant it entitled to relief on his jury selection claim, as well as on the ineffective assistance claim addressed above. Because both of these claims relate only to the jury's sentencing determination, however, they do not affect the legitimacy of Grant's first-degree murder conviction.

FOOTNOTES

The only evidence in the record that Grant "waived" the opportunity to present testimony from his family is the evidentiary hearing testimony of his trial counsel that Grant "indicated to me that he really didn't want his family to be involved" and that family testimony "was not something that [Grant] was interested in pursuing." On the other hand, the following evidence in the record strongly suggests that Grant did not waive the presentation of family testimony: (1) the fact that trial counsel and his investigators acknowledged having conversations with Grant about his family members and where they could be found; (2) the fact that counsel and the investigators do not suggest that Grant refused to provide family information, but rather that he provided what information he possessed; (3) the fact that counsel testified that he was familiar with the requirements for a waiver hearing in the event that a defendant desired to waive the presentation of mitigating evidence, but that he never considered seeking such a hearing in Grant's case; and (4) the fact that during the trial Grant provided counsel with a letter from his mother bearing a local return address.

In addition, the record in this case could not possibly support a finding that any waiver by Grant was "knowing and intelligent," since trial counsel acknowledged that he had no specific recollection of discussing with Grant (1) what the second stage of a capital trial was about, (2) the potential role and importance of family testimony in a capital trial, or (3) the fact that family members could be important sources of information in a capital trial, even if they did not testify.

The opinion cites Abshier v. State,

The dicta of Abshier did not change the "long standing rule in Oklahoma," as articulated in Hawkins and its progeny, for establishing prejudice in this context. See cases cited supra in note 28. Grant is not required to show that the jury that decided his case was not impartial.