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In the early morning hours of November 4, 2001, Brian Davis returned home after socializing with some friends at a local club, only to find his girlfriend, Stacey Sanford, and their three-year-old daughter missing. He telephoned Josephine “Jody” Sanford, Stacey’s mother, to ask if she had seen or knew of their whereabouts. Jody told Davis that she did not know where they were. Ten to fifteen minutes later, Davis again telephoned Jody and asked her to go and find them. When Jody could not locate her daughter and granddaughter, she went to Stacey’s and Davis’s apartment.

Davis made several conflicting statements about the events that followed once Jody arrived, including a different version during his trial testimony. However, with the exception of his first statement where he claimed to have no memory of what had happened, Davis admitted in his other statements that he fatally stabbed Jody. Jody’s body was discovered shortly after 9:00 a.m. when her daughter Stacey returned home. Stacey immediately called 911 and local police arrived to investigate. Meanwhile, Davis had been involved in a single-car accident while driving Jody’s van near the Salt Fork River Bridge. Davis was seriously injured after he was ejected from the van through the front windshield. Davis was transported to a local hospital for treatment. Because there was an odor of alcohol about him, Davis was placed under arrest and his blood alcohol level was tested and registered .09%.

Later on, Davis was transported to a Wichita hospital for further care. Detective Donald Bohon interviewed Davis around 5:49 p.m. that afternoon. In his first statement, Davis was able to recount his activities at the club the night before, but could not remember who drove him home. He recalled that Stacey and his daughter were not at home when he arrived and he remembered telephoning Jody. He could remember Jody being in the living room with him, but after that moment, he could not recall anything until he woke up in the field after the accident.

Two days later, Detectives Bohon and Bob Stieber interviewed Davis again. Initially, Davis repeated the story he had previously told Detective Bohon. As Stieber questioned Davis, his memory improved. He remembered Jody talking to him about religion and his commitment to Stacey. An angry Davis told Jody that there would be no commitment and the two argued. Davis claimed that Jody stood up while she continued her lecture and that he then stood up, got angry, accused her of being in his face and told her to “back up,” pushing her backwards. Davis claimed Jody grabbed a knife and cut him on his thumb. Davis then hit Jody on the chin (apparently causing the fracture to her jawbone) and tried to grab the knife, getting cut in the process. Davis said he got the knife from Jody and told her to get back, stabbing her in the stomach. He stated that he and Jody began to wrestle down the hallway and that he stabbed Jody in the leg. Once in the bedroom, Davis told Jody to stop and he put the knife down. Jody asked Davis to let her go to which he agreed, but then Jody ran towards the knife. He grabbed the knife first and stabbed Jody on the left side. She then told Davis that she could not breathe and Davis told her to lie down on the bed. Davis said he tried to wrap her up tightly in the bedspread so she would not bleed to death. He claimed he heard her stop breathing, but then fell asleep. When he awoke, he panicked and fled in Jody’s van so he could think about what to do. Shortly thereafter, the crash occurred.

When Stieber confronted him with physical evidence showing Jody was strangled/choked, Davis conceded that he may have choked her while they were wrestling. However, he adamantly denied having consensual or non-consensual sex with her. Davis told his girlfriend Stacey three different versions of what happened that morning. At first, he told her that he believed her mother was an intruder and that he instinctively fought with her to protect his family home. Several months later, he told Stacey that her mother came to their apartment and that the two of them argued because Davis believed Jody was lying about her knowledge of Stacey’s whereabouts. He claimed he pushed Jody and Jody went to the kitchen and retrieved a knife. Davis said that he got his thumb cut when he tried to take the knife from Jody, and that once he got the knife, he stabbed Jody once in the stomach. The argument continued and the two of them ended up in the bedroom where Jody said let’s end this and Davis put the knife down. He claimed that she grabbed the knife as she walked towards the door and that he took it from her and stabbed her again.

Two to three months later after DNA tests showed that Davis’ semen was found in Jody’s vagina, Stacey confronted Davis and he told her a third version of what had happened. In this third version, he said that Jody came to their apartment upset about her husband’s infidelity. He claimed that he tried to comfort her and they ended up having consensual intercourse. After their sexual encounter, Davis said he was lying on the floor in the front room while Jody was in the kitchen and that all of a sudden he was struck in the back of the head with some object. He did not elaborate on the details of the stabbing, indicating that the events unfolded from there.

At trial, Davis testified that Jody came to his apartment after she could not locate Stacey and talked to him about his need to commit to her. Davis claimed he responded by making a remark about Jody’s husband’s level of commitment and his rumored infidelity. He said that Jody became emotional and acknowledged that she knew about her husband’s affair. Davis said he felt badly about his remark and got up and sat beside Jody and tried to comfort her. He claimed that Jody kissed him and that they ended up going back to the bedroom and having sex on the bedroom floor for fifteen to twenty minutes. Afterwards Davis got up and stumbled between the hallway and bedroom. He said that Jody was saying something about the time and he said that the sex was not worth his time and that he understood why Jody’s husband was having an affair. He claimed that an angry Jody then hit him in the back of the head with a lotion dispenser, stunning him. As Jody walked by Davis, Davis got up and chased her down the hallway, tackling her and biting her ankle. Jody kicked Davis in the mouth and ran to the kitchen and grabbed a knife. Davis then ran to the living room and grabbed the Play Station II. Davis asked Jody “what the hell are you doing?” and hit her in the face. Davis said Jody “came back with a defensive position” and that he used the Play Station II as a shield. Now angrier, Davis hit Jody again and tossed the Play Station II into a nearby chair. He backed her down the hallway while she swung the knife wildly, cutting Davis on his arm. Davis went into the bathroom for a towel and Jody retreated to the bedroom. He said that when he exited the bathroom he saw Jody in the bedroom doorway and that he ran at her, grabbed her, pulled her down and hit her in the face two to three times. As they were fighting, Davis pushed Jody’s head against the wall and struck her until she finally relinquished the knife. Jody retreated into the bedroom and asked Davis to let her go. Davis claimed he told Jody to go and put the knife on the nightstand. He said that when Jody walked by, she grabbed the knife, which angered him because he believed the fight was over. He then grabbed her shirt, pulled her towards him and put his arm around her neck squeezing as tightly as he could until she dropped the knife. He said that he grabbed the knife, that he was angry and that he stabbed Jody in the back. Jody then “swung back,” struck him in the groin and he fell to one knee. He claimed Jody continued to hit him and that he stabbed her several times as he tried to fend off her attack. He maintained that he never intended to kill Jody.

Davis v. State, 103 P.3d 70 (Okla.Crim. App. 2004). (Direct Appeal)

Background: Defendant was convicted by jury in the District Court, Kay County, Leslie D. Page, Associate District Judge, of one count of first degree malice murder and one count of first degree rape. Defendant appealed.

Holdings: The Court of Criminal Appeals, Strubhar, J., held that: (1) trial court did not abuse its discretion in allowing rebuttal testimony of witnesses; (2) sufficient evidence proved beyond a reasonable doubt that defendant intended to kill victim, as required to support conviction; (3) trial court did not abuse its discretion in limiting defendant's questioning of witnesses; (4) sufficient evidence supported trial court's finding that defendant's waiver of rights and subsequent statements were voluntary and therefore admissible; and (5) sufficient evidence supported jury's finding that victim's murder was especially heinous, atrocious or cruel. Affirmed.

STRUBHAR, Judge.

¶ 1 Brian Darrell Davis, Appellant, was tried by jury in the District Court of Kay County, Case No. CF–2001–733, where he was convicted of one count of First Degree Malice Murder and one count of First Degree Rape, After Former Conviction of Two Felonies. The jury set punishment at death for the murder after finding the murder was especially heinous, atrocious or cruel FN1 and one hundred (100) years imprisonment for the rape. The Honorable Leslie D. Page, who presided at trial, sentenced Davis accordingly. From this Judgment and Sentence, he appeals.FN2 FN1. 21 O.S.2001, § 701.12(4). FN2. Davis' Petition in Error was filed in this Court on March 26, 2003. Appellant's brief was filed March 5, 2004, and the State's brief was filed July 9, 2004. The case was submitted to the Court on July 15, 2004. Oral argument was held October 26, 2004.

FACTS

¶ 2 In the early morning hours of November 4, 2001, Davis returned home after socializing with some friends at a local club, only to find his girlfriend, Stacey Sanford, and their three-year-old daughter missing. He telephoned Josephine “Jody” Sanford, Stacey's mother, to ask if she had seen or knew of their whereabouts. Jody told Davis that she did not know where they were. Ten to fifteen minutes later, Davis again telephoned Jody and asked her to go and find them. When Jody could not locate her daughter and granddaughter, she went to Stacey's and Davis's apartment.

¶ 3 Davis made several conflicting statements about the events that followed once Jody arrived, including a different version during his trial testimony. However, with the exception of his first statement where he claimed to have no memory of what had happened, Davis admitted in his other statements that he fatally stabbed Jody. Jody's body was discovered shortly after 9:00 a.m. when her daughter Stacey returned home. Stacey immediately called 911 and local police arrived to investigate.

¶ 4 Meanwhile, Davis had been involved in a single-car accident while driving Jody's van near the Salt Fork River Bridge. Davis was seriously injured after he was ejected from the van through the front windshield. Davis was transported to a local hospital for treatment. Because there was an odor of alcohol about him, Davis was placed under arrest and his blood alcohol level was tested and registered .09%. Later on, Davis was transported to a Witchita hospital for further care.

¶ 5 Detective Donald Bohon interviewed Davis around 5:49 p.m. that afternoon. In his first statement, Davis was able to recount his activities at the club the night before, but could not remember who drove him home. He recalled that Stacey and his daughter were not at home when he arrived and he remembered telephoning Jody. He could remember Jody being in the living room with him, but after that moment, he could not recall anything until he woke up in the field after the accident.

¶ 6 Two days later, Detectives Bohon and Bob Stieber interviewed Davis again. Initially, Davis repeated the story he had previously told Detective Bohon. As Stieber questioned Davis, his memory improved. He remembered Jody talking to him about religion and his commitment to Stacey. An angry Davis told Jody that there would be no commitment and the two argued. Davis claimed that Jody stood up while she continued her lecture and that he then stood up, got angry, accused her of being in his face and told her to “back up,” pushing her backwards. Davis claimed Jody grabbed a knife and cut him on his thumb. Davis then hit Jody on the chin (apparently causing the fracture to her jawbone) and tried to grab the knife, getting cut in the process. Davis said he got the knife from Jody and told her to get back, stabbing her in the stomach. He stated that he and Jody began to wrestle down the hallway and that he stabbed Jody in the leg. Once in the bedroom, Davis told Jody to stop and he put the knife down. Jody asked Davis to let her go to which he agreed, but then Jody ran towards the knife. He grabbed the knife first and stabbed Jody on the left side. She then told Davis that she could not breathe and Davis told her to lie down on the bed. Davis said he tried to wrap her up tightly in the bedspread so she would not bleed to death. He claimed he heard her stop breathing, but then fell asleep. When he awoke, he panicked and fled in Jody's van so he could think about what to do. Shortly thereafter, the crash occurred. When Stieber confronted him with physical evidence showing Jody was strangled/choked, Davis conceded that he may have choked her while they were wrestling. However, he adamantly denied having consensual or non-consensual sex with her.

¶ 7 Davis told his girlfriend, Stacey Sanford, three different versions of what happened that morning. At first, he told her that he believed her mother was an intruder and that he instinctively fought with her to protect his family home. Several months later, he told Stacey that her mother came to their apartment and that the two of them argued because Davis believed Jody was lying about her knowledge of Stacey's whereabouts. He claimed he pushed Jody and Jody went to the kitchen and retrieved a knife. Davis said that he got his thumb cut when he tried to take the knife from Jody, and that once he got the knife, he stabbed Jody once in the stomach. The argument continued and the two of them ended up in the bedroom where Jody said let's end this and Davis put the knife down. He claimed that she grabbed the knife as she walked towards the door and that he took it from her and stabbed her again.

¶ 8 Two to three months later after DNA tests showed that Davis' semen was found in Jody's vagina, Stacey confronted Davis and he told her a third version of what had happened. In this third version, he said that Jody came to their apartment upset about her husband's infidelity. He claimed that he tried to comfort her and they ended up having consensual intercourse. After their sexual encounter, Davis said he was lying on the floor in the front room while Jody was in the kitchen and that all of a sudden he was struck in the back of the head with some object. He did not elaborate on the details of the stabbing, indicating that the events unfolded from there.

¶ 9 At trial, Davis testified that Jody came to his apartment after she could not locate Stacey and talked to him about his need to commit to her. Davis claimed he responded by making a remark about Jody's husband's level of commitment and his rumored infidelity. He said that Jody became emotional and acknowledged that she knew about her husband's affair. Davis said he felt badly about his remark and got up and sat beside Jody and tried to comfort her. He claimed that Jody kissed him and that they ended up going back to the bedroom and having sex on the bedroom floor for fifteen to twenty minutes. Afterwards Davis got up and stumbled between the hallway and bedroom. He said that Jody was saying something about the time and he said that the sex was not worth his time and that he understood why Jody's husband was having an affair. He claimed that an angry Jody then hit him in the back of the head with a lotion dispenser, stunning him. As Jody walked by Davis, Davis got up and chased her down the hallway, tackling her and biting her ankle. Jody kicked Davis in the mouth and ran to the kitchen and grabbed a knife. Davis then ran to the living room and grabbed the Play Station II. Davis asked Jody “what the hell are you doing?” and hit her in the face. Davis said Jody “came back with a defensive position” and that he used the Play Station II as a shield. Now angrier, Davis hit Jody again and tossed the Play Station II into a nearby chair. He backed her down the hallway while she swung the knife wildly, cutting Davis on his arm. Davis went into the bathroom for a towel and Jody retreated to the bedroom. He said that when he exited the bathroom he saw Jody in the bedroom doorway and that he ran at her, grabbed her, pulled her down and hit her in the face two to three times. As they were fighting, Davis pushed Jody's head against the wall and struck her until she finally relinquished the knife. Jody retreated into the bedroom and asked Davis to let her go. Davis claimed he told Jody to go and put the knife on the nightstand. He said that when Jody walked by, she grabbed the knife, which angered him because he believed the fight was over. He then grabbed her shirt, pulled her towards him and put his arm around her neck squeezing as tightly as he could until she dropped the knife. He said that he grabbed the knife, that he was angry and that he stabbed Jody in the back. Jody then “swung back,” struck him in the groin and he fell to one knee. He claimed Jody continued to hit him and that he stabbed her several times as he tried to fend off her attack. He maintained that he never intended to kill her. Other facts will be discussed as they become relevant to the propositions of error raised for review.

¶ 10 In his first proposition of error, Davis claims the trial court abused its discretion in allowing the testimony of State's witnesses, William Parr and Russell Busby, in rebuttal because their identity had not been disclosed during pre-trial discovery. He maintains the Oklahoma Criminal Discovery Code FN3 (hereinafter “Code”) abrogated the common law “no notice” rule regarding rebuttal witnesses and requires disclosure and endorsement of all known or reasonably anticipated witnesses, including rebuttal witnesses. Accordingly, Davis maintains admission of Parr's and Busby's testimony was error.FN4 Because Davis objected to these witnesses on this basis, this claim has been preserved for review. FN3. 22 O.S.Supp.2002, § 2002. FN4. The record shows the State called five witnesses in rebuttal at the close of the defense's case-in-chief, three of which were endorsed as potential witnesses and are not the subject of this claim. Parr testified that he knew the victim for over ten years and that she had a peaceable character. Busby testified that he was qualified to conduct crime scene reconstruction and blood stain interpretation. Busby then gave his opinions about the crime scene, specifically contradicting certain portions of Davis' trial testimony.

¶ 11 Title 22 O.S.2002, § 2002(A)(1)(a) requires the State to disclose upon the defense's request “the names and addresses of witnesses which the State intends to call at trial, together with their relevant, written or recorded statement, if any, or if none, significant summaries of any oral statement.” Davis maintains that because the Code does not specifically exclude rebuttal witnesses from the State's compulsory disclosure duty and compels the defense to make known to the State the witnesses the defense intends to call at trial, § 2002(A)(1)(a) should be construed to require the State to include potential rebuttal witnesses in its endorsements and discovery materials to effectuate meaningful reciprocal discovery.

¶ 12 We have yet to consider the exact question presented, i.e., whether the Code has changed the common law rule and now requires the State to disclose the names and addresses of its rebuttal witnesses. To date, the Code's “intends to call at trial” language has been interpreted by this Court to include only those witnesses the State intends to call or reasonably anticipates calling in its case-in-chief to prove its case and to refute any known or anticipated defenses. In Short v. State, 1999 OK CR 15, 980 P.2d 1081, cert. denied, 528 U.S. 1085, 120 S.Ct. 811, 145 L.Ed.2d 683 (2000), the defendant sought to present a witness in his case-in-chief for whom no notice had been given under the Code. Short argued on appeal that the witness was a rebuttal witness for whom no notice was required as the witness was being offered to rebut testimony presented during the State's case-in-chief. Short, 1999 OK CR 15, ¶ 24, 980 P.2d at 1094. We found the witness was not a true rebuttal witness in the legal sense, noting every defense witness is a “rebuttal” witness to the State's case. Short, 1999 OK CR 15, ¶ 25, 980 P.2d at 1094. In so holding, we affirmed our position concerning notice of rebuttal witnesses, stating that “under usual trial proceedings, rebuttal is an opportunity for the State to present witnesses, for whom no notice is required, to rebut the defense case-in-chief.” Id. (emphasis added) Thus, the Short Court found no modification by the enactment of the Code of the long-standing rule that the State is not required to endorse rebuttal witnesses.

¶ 13 This same position was taken in Thornburg v. State, 1999 OK CR 32, ¶ 27, 985 P.2d 1234, 1245, cert. denied, 529 U.S. 1113, 120 S.Ct. 1970, 146 L.Ed.2d 800 (2000) (post-Code case) and Cheney v. State, 1995 OK CR 72, ¶ 70, 909 P.2d 74, 91 (a case tried after this Court's promulgation of almost identical discovery rules in Allen v. District Court of Washington County), when this Court held trial counsel was not ineffective in failing to object to rebuttal testimony based on lack of notice or surprise because the State is not required to endorse its rebuttal witnesses.

¶ 14 We take this opportunity to clarify this Court's position on the issue of the notice required under the Code. There is nothing in the Code that explicitly rejects or revokes the long-established rule that the State need not give notice of its rebuttal witnesses. That said, we emphasize this Court's condemnation of parties who are not forthcoming with their respective discovery obligations. The purpose of our reciprocal discovery code is to provide for the adequate exchange of information to facilitate informed pleas, to expedite trials, to minimize surprises/trial by ambush, to afford the parties the opportunity for effective cross-examination and to meet the requirements of due process. After all, the true purpose of a criminal trial is the ascertainment of the facts. We interpret the phrase “witnesses the State intends to call at trial” to mean a person or persons whom the State reasonably anticipates it is likely to call at trial, including those witnesses, especially experts, whose testimony is known or anticipated both prior to and after receipt of the defense's discovery materials.

¶ 15 No notice, however, is required for rebuttal witnesses. We recognize that a trial is not a scripted proceeding; rather, it is a process that ebbs and flows. Every lawyer and trial judge knows that during the trial process, things change and the best laid strategies and expectations may quickly become unsuitable: witnesses who have been interviewed vacillate or change their statements; events that did not loom large at preliminary hearing or throughout the pretrial proceedings may in reality become a focal point at trial. Thus, there must be some flexibility.

¶ 16 To ensure fairness, our trial courts are vested with the responsibility to determine whether proposed rebuttal witnesses are truly being offered to rebut evidence presented by the defense during its case-in-chief which could not be reasonably anticipated. If the so-called rebuttal witness is not a bona fide rebuttal witness, but rather a witness who could and should have been called in the State's case-in-chief and for whom no notice was given, the trial court should exclude the witness's testimony upon proper objection. If the rebuttal witness is offered to rebut specific evidence presented by the defense, the trial court should admit the testimony. We acknowledge there are conceivable circumstances where a failure to name a witness might be found to be a willful act designed to circumvent discovery rules. However, our existing rules as outlined above resolve the issue as well as the concerns raised by Davis of the nefarious prosecutor who deliberately withholds the names of witnesses the State intends to call at trial by labeling these witnesses as rebuttal witnesses in an attempt to hide significant parts of the State's case and to ambush the defense. Moreover, any unfairness that results from a lack of notice of a true rebuttal witness can usually be remedied by a continuance. We have held that if an unendorsed witness' testimony will require a defendant to produce additional evidence or other rebuttal witnesses, the defendant is entitled to a continuance of sufficient time to prepare to defend against the rebuttal testimony. Griffin v. State, 1971 OK CR 492, ¶ 12, 490 P.2d 1387, 1389. Here, Davis did not request any continuance.

¶ 17 We must now decide if the trial court properly admitted Parr's and Busby's testimony in rebuttal. The State called both Parr and Busby specifically to rebut claims Davis made during his trial testimony of which the State had no notice and in which Davis repudiated his prior statements and gave yet a sixth version of the events that happened between Jody and him. At trial, Davis testified that Jody started the altercation by hitting him in the head with the lotion dispenser after he made disparaging remarks about her sexual performance. He portrayed Jody as the aggressor throughout much of the fight to support his self-defense and mutual combat theories. Such testimony made Parr's testimony of Jody's peaceable character relevant and admissible. Likewise, Busby's testimony was relevant to refute Davis' claims made for the first time during his trial testimony concerning the manner and locations of the knife attack that were different than his pre-trial statements. Based on this record, we find that the trial court did not abuse its discretion in allowing the rebuttal testimony of Parr and Busby. Therefore, no relief is required.

¶ 18 In his second proposition of error, Davis contends upholding and allowing the continuation of the long-standing “no notice” rule in modern criminal discovery violates a capital defendant's Sixth, Eighth and Fourteenth Amendment rights. According to Davis, it is unfair to allow the State to label an expert witness as a rebuttal witness when the expert's testimony can be reasonably expected or anticipated from the defense's disclosure duties under the Code. We agree that the State should disclose witnesses whose testimony is known or anticipated after the State receives the defense's discovery materials. However, that is not the situation presented in this case.

¶ 19 Davis notes in several instances in his brief that the defense is not required under the Code to give notice of the defendant's own anticipated testimony if he chooses to testify. Here, the State had not been given any notice or indication prior to trial that Davis would testify.FN5 Nor did the defense reveal which, if any, of his prior statements he would advocate at trial or whether he would present a different version of the fateful events as he did. Under these circumstances, the State could not reasonably anticipate what rebuttal evidence would be relevant until Davis testified. FN5. The record shows the prosecutor did not engage Busby to conduct any crime scene reconstruction/investigation until the second day of trial when defense counsel announced during voir dire that Davis would testify.

¶ 20 Interestingly, Davis maintains the State knew or should have reasonably anticipated that it would call a crime scene reconstructionist because Davis had made statements about the location and circumstances of the knife attack from the beginning. Yet, he claims unfair surprise by this same witness whose necessity should have been so obvious to the prosecution. He maintains that the defense was unprepared to refute Busby's qualifications and conclusions due to the lack of notice of such a potential rebuttal witness. We find this assertion somewhat disingenuous. The defense was well aware of the State's right to present rebuttal evidence and the very real possibility the State would attempt to rebut Davis' trial testimony. Had Davis not taken the stand or changed his story, Busby's testimony would have been inadmissible in rebuttal. Davis has no legitimate constitutional claim that his rights were violated when it was he who elected to take the stand and offer yet another version of the events that attempted to account for the State's evidence, but that the State could ultimately discredit in rebuttal. Based on this record, we find that Davis' constitutional rights were not violated by the lack of notice of Busby's testimony.

¶ 21 Davis claims in his third proposition that his first-degree murder conviction must be reversed because the trial evidence was insufficient to prove beyond a reasonable doubt that he intended to kill Jody Sanford. Davis relies on his trial testimony to argue the evidence showed that the parties engaged in mutual combat, that it was Sanford who introduced the knife into the fight and that, at most, he is guilty of heat of passion manslaughter.

¶ 22 In reviewing sufficiency challenges, we review the direct and circumstantial evidence, crediting all inferences that could have been drawn in the State's favor, to determine if any rational trier of fact could have found the essential elements of the charged crime beyond a reasonable doubt. Black v. State, 2001 OK CR 5, ¶ 34, 21 P.3d 1047, 1062, cert. denied, 534 U.S. 1004, 122 S.Ct. 483, 151 L.Ed.2d 396 (2001); Spuehler v. State, 1985 OK CR 132, ¶ 7, 709 P.2d 202, 203–04. “Pieces of evidence must be viewed not in isolation but in conjunction, and we must affirm the conviction so long as, from the inferences reasonably drawn from the record as a whole, the jury might fairly have concluded the defendant was guilty beyond a reasonable doubt.” Matthews v. State, 2002 OK CR 16, ¶ 35, 45 P.3d 907, 919–20, cert. denied, 537 U.S. 1074, 123 S.Ct. 665, 154 L.Ed.2d 570 (2002).

¶ 23 To prove malice aforethought murder, the State must show the defendant acted with a deliberate intention to take the life of the victim without justification. Black, 2001 OK CR 5, ¶ 35, 21 P.3d at 1062. This intent may be formed instantly before committing the homicidal act. 21 O.S.2001, § 703. The law infers a design to effect death from the fact of killing unless the circumstances raise a reasonable doubt that such design existed. 21 O.S.2001, § 702. When direct evidence of a person's intent is lacking, jurors must rely on circumstantial evidence to ascertain the person's intent at the time of the homicidal act. Black, 2001 OK CR 5, ¶ 35, 21 P.3d at 1062.

¶ 24 The record shows Davis received jury instructions on the lesser-related offense of first-degree heat of passion manslaughter and the defenses of self-defense and voluntary intoxication. The jury heard the evidence, including Davis' trial testimony, and rejected his claim that he was engaged in mutual combat and that he stabbed Sanford in a heat of passion. The jury's verdict is supported by the record. All of Davis' accounts of his encounter with Sanford that early morning were discredited in some form or fashion. At trial, Davis repudiated his five statements made prior to trial, claiming he had lied to spare/protect the Sanford family as well as his own family. He testified his trial version was the truth. However, Russell Busby, the crime scene reconstructionist, testified that the blood patterns in the back bedroom were inconsistent with Davis' trial version of the events that Sanford was standing in the back bedroom while she was being stabbed. The jury was free to consider the fact that Davis changed his story to fit the facts as he learned them in evaluating his credibility. The fact that Davis' statements and his trial testimony were inconsistent with each other and with the physical evidence was a relevant consideration in determining his truthfulness and ultimately his guilt. See McElmurry v. State, 2002 OK CR 40, ¶ 42, 60 P.3d 4, 19.

¶ 25 The uncontroverted evidence showed Davis called Sanford in the early morning hours of November 4th looking for Stacey and his daughter. Despite being told they were not there, he called again within fifteen minutes and thereafter Sanford left her home and ended up at Davis' apartment. Later that morning, Sanford was found dead, half-naked, bruised and stabbed multiple times. Around the same time, Davis was involved in a serious accident that occurred as he was driving Sanford's van some nine miles away from his apartment. The jury could easily have concluded the events unfolded more like Davis described in his second statement in which Davis admitted getting mad at Sanford after she lectured him on commitment and church. He started the fight with Sanford because he felt she was in his “face” and that she was not being truthful about Stacey's whereabouts. This statement provided the plausible motive in this case. The jury had legitimate reasons to disbelieve Davis' claims that he never intended to kill Sanford in light of the severity of her stab wounds and other injuries and his inconsistent stories about the events. Based on this record, we find the evidence was sufficient to sustain the verdict.

¶ 26 In his fourth proposition, Davis claims the trial court committed reversible error when it refused the uniform instructions he requested on the definition of circumstantial evidence and the need for circumstantial evidence to exclude reasonable theories of innocence. The record shows these instructions were not discussed during the instruction conference. Rather, defense counsel requested them just before the jury retired to deliberate and the trial court denied the request.

¶ 27 “An instruction on circumstantial evidence is only required when the State's evidence consists of entirely circumstantial evidence.” Wade v. State, 1992 OK CR 2, ¶ 19, 825 P.2d 1357, 1362. When the State relies on both direct and circumstantial evidence for its proof, the jury need not be specially instructed of circumstantial proof. Roubideaux v. State, 1985 OK CR 105, ¶ 24, 707 P.2d 35, 39. Here, the State's case was not entirely circumstantial as there was direct evidence Davis killed Sanford. Simply because one of the elements is proved by circumstantial evidence does not make the case an entirely circumstantial case. A review of the record shows the instructions given correctly stated the applicable law and included all of Davis' theories of defense. Accordingly, we find the trial court did not abuse its discretion in denying Davis' late request for these circumstantial evidence instructions.

¶ 28 In his fifth proposition of error, Davis claims the trial court abused its discretion when it prohibited him from questioning Tom Sanford, Stacey Sanford and Raymond Pollard, about Tom Sanford's alleged extra-marital affair, arguing such evidence was relevant to Jody Sanford's state of mind that fateful morning and would have supported his claim that the sexual encounter between them was consensual. He maintains the trial court's ruling denied him his constitutional right to confront witnesses against him and his right to compulsory process.

¶ 29 Before calling Tom Sanford to testify, the State moved in limine to prohibit the defense from questioning him about whether or not he had engaged in an extra-marital affair. The State argued that Tom Sanford's participation in any extra-marital affair was not relevant to the case. The defense argued it had the right to address the subject since the State had presented evidence of it through Stacey Sanford FN6 and such evidence was relevant to Jody Sanford's state of mind to show whether she would have given consent to have sex with Davis. The State responded that it had not offered evidence that an affair had actually taken place, only that Davis had told Stacey that her mother was upset about an affair. The trial court ruled that evidence of an actual affair was not relevant, but even if it were, the prejudicial effect outweighed any probative value it might have had. FN6. Stacey had earlier testified about Davis' third statement to her in which he admitted, after being confronted with DNA evidence, to having sex with her mother before he killed her. Davis told Stacey that her mother was upset about her husband cheating on her and that Davis' attempts to comfort her led to consensual sexual intercourse.

¶ 30 It is well established that the scope of cross-examination and the admission of evidence lie in the sound discretion of the trial court, whose rulings will not be disturbed unless that discretion is clearly abused, resulting in manifest prejudice to the accused. Williams v. State, 2001 OK CR 9, ¶ 94, 22 P.3d 702, 724, cert. denied, 534 U.S. 1092, 122 S.Ct. 836, 151 L.Ed.2d 716 (2002); Reeves v. State, 1991 OK CR 101, ¶ 30, 818 P.2d 495, 501. There is no such abuse of discretion in the present case. Whether Jody Sanford had heard a rumor of an affair and whether she believed it as true would not have been rendered more or less probable by the admission of evidence indicating whether or not Tom Sanford had actually engaged in an extra-marital affair. The issue was Jody Sanford's existing state-of-mind to which Davis testified. Davis repeated his claim under oath that Sanford was upset about her husband's alleged affair in support of his claim that they had consensual sex. Therefore, evidence from Sanford that he actually engaged in an affair was not relevant to the issues in controversy.

¶ 31 The same is true for Raymond Pollard and Stacey Sanford. The defense sought to question Pollard in its case-in-chief about seeing Tom Sanford in the company of a woman, not his wife. Such evidence was irrelevant to the issue of consent or Sanford's state of mind at the time of her death. Likewise, the defense wanted to ask Stacey if she had heard the rumors Davis had heard about her father being involved in an extra-marital affair and whether she knew if her mother had heard or knew of the rumors. Defense counsel did not indicate that he had any knowledge to support an offer of proof that Stacey knew her mother was aware of any alleged affair and was affected by it in the days before her death. Based on this record, it cannot be said the trial court abused its discretion in limiting defense counsel's questioning of these witnesses. Accordingly, we find this claim has no merit.

¶ 32 In his sixth proposition of error, Davis contends the introduction of his statements to Detective Bohon and Detective Stieber violated his Fifth Amendment rights because the State failed to prove by a preponderance of the evidence that he knowingly and voluntarily waived his right to remain silent/privilege against self-incrimination. He also claims, as he did below, that his statement was not voluntary within the meaning of the Due Process Clause of the Fourteenth Amendment due to the coercive police tactics utilized in obtaining the statement from a person in his condition.

¶ 33 Voluntariness of a confession is judged from the totality of the circumstances, including the characteristics of the accused and the details of the interrogation. Van White v. State, 1999 OK CR 10, ¶ 45, 990 P.2d 253, 267; Lewis v. State, 1998 OK CR 24, ¶ 34, 970 P.2d 1158, 1170, cert. denied, 528 U.S. 892, 120 S.Ct. 218, 145 L.Ed.2d 183 (1999). See also Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 1141, 89 L.Ed.2d 410, 421 (1986). For a waiver of rights to be effective, the State must show by a preponderance of the evidence that the waiver was the product of a free and deliberate choice rather than intimidation, coercion, or deception and that the waiver was made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it. Lewis, 1998 OK CR 24, ¶ 34, 970 P.2d 1158, 1170; Smith v. State, 1996 OK CR 50, ¶ 16, 932 P.2d 521, 529, cert. denied, 521 U.S. 1124, 117 S.Ct. 2522, 138 L.Ed.2d 1023 (1997).

¶ 34 The trial court held a Jackson v. DennoFN7 hearing to consider Davis' objection that his waiver of rights and subsequent statement were involuntary. It found, after considering the totality of the circumstances, that the question of the voluntariness of Davis' waiver was a fact question to be resolved by the jury and that a finding of involuntariness as a matter of law was not justified. This Court will not reverse a trial court's ruling where the trial court's decision to admit a statement is supported by competent evidence of the voluntary nature of the statement. Bryan v. State, 1997 OK CR 15, ¶ 17, 935 P.2d 338, 352, cert. denied, 522 U.S. 957, 118 S.Ct. 383, 139 L.Ed.2d 299 (1997). FN7. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964) established a defendant's right to an in camera hearing on the voluntariness of his confession.

¶ 35 The evidence supports the trial court's finding that Davis' waiver of rights and subsequent statements were voluntary and therefore admissible. At the Jackson v. Denno hearing, the State presented the testimony of both Detectives Bohon and Stieber. The State also provided the court with transcripts of both interviews. Detective Bohon testified that before he interviewed Davis the first time on November 4th, he consulted hospital medical staff about what, if any, medications Davis had been or was taking and the best time to speak with him to ensure Davis would be coherent and free from the influence of any medications. Bohon testified that prior to any questioning, he read Davis his Miranda warning from the standard printed sheet, including the two waiver questions. Bohon said that Davis responded affirmatively when asked if he understood his rights and appeared to do so. Davis then agreed to tell Bohon what he could remember. Bohon testified that during the interview Davis was conscious and did not appear to be under the influence of any type of drug or alcohol. His speech was not slurred and he gave understandable and reasonable responses to the questions posed. Furthermore, Davis appeared oriented to time and place. Bohon did not threaten, force, pressure or promise Davis anything in order to get him to make a statement. Bohon characterized the conversation as “cordial” and “pretty open.” A review of the transcript confirms Bohon's testimony.

¶ 36 Detectives Bohon and Stieber followed the same protocol when they interviewed Davis on November 6th. Bohon again conferred with hospital medical staff about Davis' medication regimen and its effects on him so Davis would be lucid and clear-headed during anticipated questioning. Prior to any questioning, Stieber read to Davis the Miranda warning from his Miranda card and asked Davis if he understood his rights and wanted to talk with him. Davis said that he understood his rights and that he would answer what he could. At no time during the interview did Davis indicate that he wanted to terminate the interview or consult a lawyer. Davis appeared to understand all questions asked and gave appropriate responses to the questions posed. The specificity of detail Davis was able to provide and the back and forth nature of the interview demonstrated that he was fully alert and comprehended what others said to him, thereby supplying strong evidence that he understood his rights as presented to him as well.

¶ 37 In addition, a review of both interviews shows that Davis' statements were not extracted or coerced by the exertion of improper influence. This is especially true of Davis' first statement since he did not confess and claimed he had no memory of what had happened. The record does reveal that during the second interview in which Davis ultimately confessed, Stieber did use phrases like “cold blooded killer” and “cold blooded bastard” to spur Davis to provide details of the events that culminated in Sanford's death. The comments complained of were not coercive in nature; the detectives neither threatened Davis nor implied promises of benefits or leniency. Rather, the detectives explained to Davis that the evidence showed that he was responsible for Sanford's death, leaving them to conclude that he either planned it and carried it out making him a cold blooded killer or that some unplanned fight erupted and Sanford was stabbed and killed. Only Davis could provide the answer and they encouraged him to do so. After reviewing the totality of the circumstances, we find the trial court did not err in its ruling. Accordingly, no relief is required.

¶ 38 In his seventh proposition of error, Davis contends the trial evidence was insufficient to support the jury's finding that Sanford's murder was especially heinous, atrocious or cruel. Acknowledging Sanford's injuries, he maintains that these wounds were inflicted either entirely or in large measure under circumstances of mutual combat and that the aggravating circumstance only applies to those acts which occur after the intent to kill is formed. Davis submits that because we cannot know at what moment the intent to kill was formed under the evidence presented, we must find the evidence of this aggravating circumstance insufficient. We disagree.

¶ 39 This Court upholds a jury's finding of this aggravating circumstance when it is supported by proof of conscious serious physical abuse or torture prior to death; evidence that a victim was conscious and aware of the attack supports a finding of torture. Black, 2001 OK CR 5, ¶ 79, 21 P.3d at 1074. As discussed in Proposition 3, supra, the evidence was sufficient for a rational jury to conclude that Davis intentionally killed Sanford, his statements notwithstanding. The jury rejected Davis' self defense and mutual combat theories. There was evidence of a struggle during which Davis stabbed Sanford six times penetrating vital organs. She later died from the blood loss associated with these wounds. Davis also beat Sanford, broke her jaw and attempted to choke her as evidenced by the petechiae in her eyes. Sanford was found naked from the waist down and her shirt and bra were pushed up over her breasts. She had a bite mark on her ankle and a possible bite mark on her thigh. Davis' sperm was found in her vagina and the jury concluded Davis raped Sanford at some point during the attack. In his many statements, Davis never claimed Sanford was unconscious until sometime after she had been stabbed. Evidence of such an assault and rape on a 52–year–old woman standing 4'11? by a young man standing 5'10? weighing 245 lbs. accompanied by Sanford's injuries would allow a rational jury to conclude that Davis intended to kill Sanford when he stabbed her six times and that he inflicted trauma causing conscious serious physical abuse or torture prior to Sanford's death. Therefore, we find the evidence, when viewed in the light most favorable to the State, was sufficient to find beyond a reasonable doubt that Sanford's murder was especially heinous, atrocious or cruel. Black, 2001 OK CR 5, ¶ 79, 21 P.3d at 1074.

¶ 40 In his eighth proposition of error, Davis claims he was denied a fair trial by the admission of prejudicial, irrelevant and privileged marital communications consisting of statements both oral and written he made to Stacey Sanford while awaiting trial. The record shows that Davis did not object to much of the evidence about which he now complains and that the trial court overruled the objections he did make, finding Davis had not proved the existence of a common law marriage.

¶ 41 The marital privilege, set forth at 12 O.S.2001, § 2504, applies equally to common law and ceremonial marriages. Blake v. State, 1988 OK CR 272, ¶ 4, 765 P.2d 1224, 1225 (quoting K. McKinney, Privileges, 32 Okla.L.Rev. 307, 326 (1979)). However, before an accused can take advantage of the marital privilege to exclude evidence, he or she must first prove, by clear and convincing evidence, the existence of a valid marriage. Blake, 1988 OK CR 272, ¶ 4, 765 P.2d at 1225. To establish a valid common law marriage, there must be evidence of an actual mutual agreement between the spouses to be husband and wife, a permanent relationship, an exclusive relationship—proved by cohabitation as man and wife, and the parties to the marriage must hold themselves out publicly as man and wife. Id.

¶ 42 Although Stacey Sanford and Davis lived and had children together, Stacey Sanford described her relationship with Davis as boyfriend and girlfriend. She testified that it was Davis who told her parents she was pregnant with their second child because she was afraid her parents would be angry with her for getting pregnant again without her and Davis being married. She further testified that Davis had talked with her mother about marrying her. In his November 6th interview with detectives, Davis told them Sanford came to his apartment and started lecturing him about the need for Davis and Stacey to commit. He and Stacey were having some problems at that time, but Davis said they were working things out and were “going to get married and all of that.” At trial, Davis described Stacey as his fiancé and mother of his children. When asked if the two of them had held each other out as husband and wife, Davis stated “[j]ust as—as far as engagement, that's about it, common law married.” Later in his testimony, Davis testified that he and Stacey were having problems and that they had been engaged in the past, but were not at the time of Sanford's death. The foregoing testimony presented at trial was insufficient to establish the elements of a valid common law marriage by clear and convincing evidence. Accordingly, we find the trial court did not err in allowing evidence of Davis' statements to Stacey Stanford at trial over Davis' marital privilege objection.

¶ 43 In addition, Davis' claim that the evidence was irrelevant and unduly prejudicial is without merit. Davis' pre-trial statements explaining the events of that morning to Stacey and his letters to her urging her to stand by him were unquestionably relevant to the issues in dispute and to Davis' credibility. Such evidence was not unfairly prejudicial. Accordingly, we find the trial court did not abuse its discretion in admitting the complained-of evidence. Williams, 2001 OK CR 9, ¶ 94, 22 P.3d at 724.

¶ 44 In his final proposition of error, Davis claims his death sentence should be vacated or modified because the aggravating circumstances were not charged in an information or indictment, were not subjected to adversarial testing at a preliminary hearing, and were therefore not determined to probably exist by a neutral and detached magistrate. Thus, Davis claims the District Court never acquired jurisdiction over the aggravating circumstances.

¶ 45 Davis relies upon the United States Supreme Court's holdings in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Under these cases and the Supreme Court's interpretation of them in Sattazahn v. Pennsylvania, 537 U.S. 101, 123 S.Ct. 732, 154 L.Ed.2d 588 (2003), Davis maintains aggravating circumstances “operate as the functional equivalent of an element of a greater offense.” See Ring, 536 U.S. at 609, 122 S.Ct. at 2443, quoting from Apprendi, 530 U.S. at 494, n. 19, 120 S.Ct. 2348. Thus, Davis contends, aggravating circumstances-as the functional equivalent of an element of a greater offense-must be charged in an indictment or information and then be presented and established at a preliminary hearing for a death sentence to be constitutionally sound.

¶ 46 We have previously rejected this claim. Primeaux v. State, 2004 OK CR 16, ¶ 14–16, 88 P.3d 893, 899–900, cert. denied, 543 U.S. 944, 125 S.Ct. 371, 160 L.Ed.2d 257 (2004). See also Thacker v. State, 2004 OK CR 32, ¶ 9–23, 100 P.3d 1052. We find these cases dispositive. Accordingly, no relief is required.

MANDATORY SENTENCE REVIEW

¶ 47 Pursuant to 21 O.S.2001, § 701.13(C), we must now determine (1) whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor; and (2) whether the evidence supports the jury's finding of aggravating circumstances as enumerated in 21 O.S.2001, § 701.12. In regard to the first inquiry, we find that Davis' death sentence did not result from passion, prejudice or other arbitrary factor. In regard to the second inquiry, the jury was instructed on the three aggravating circumstances alleged and found the existence of only one aggravating circumstance: (1) that the murder was especially heinous, atrocious or cruel. FN8 As discussed in Proposition 7, we find that this aggravating circumstance is supported by sufficient evidence. Additionally, the jury was instructed on ten (10) specific mitigating circumstances FN9 and instructed to consider any other mitigating circumstances that were present. Upon reviewing the record, we find that the aggravating circumstance outweighed the mitigating circumstances and that Davis' death sentence is factually substantiated and appropriate. Accordingly, the Judgment and Sentence of the trial court is AFFIRMED.

FN8. The jury rejected the following aggravators: 1) Davis committed the murder for the purpose of avoiding or preventing a lawful arrest or prosecution; and 2) the existence of a probability that Davis would commit criminal acts of violence that would constitute a continuing threat to society. 21 O.S.2001, §§ 701.12(5) & (7) FN9. These included: 1) Davis did not have any significant history of prior violent criminal activity; 2) Davis' capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law; 3) Davis was under the influence of mental/emotional disturbance; 4) Davis acted under circumstances which tended to justify, excuse or reduce the crime; 5) Davis is likely to be rehabilitated; 6) Davis cooperated with authorities; 7) Davis' age; 8) Davis' character; 9) Davis' emotional/family history; and 10) Davis was a model inmate while in jail and has positively influenced other inmates.

JOHNSON, P.J., LUMPKIN and CHAPEL, JJ.: concur. LILE, V.P.J.: concur in result.

Davis v. State, 123 P.3d 243 (Okla.Crim. App. 2005). (PCR)

Background: Following appellate affirmance of convictions for first degree murder and first degree rape and imposition of death penalty, 103 P.3d 70, 2004 OK CR 36, defendant sought post-conviction relief.

Holdings: The Court of Criminal Appeals, A. Johnson, J., held that: (1) ineffective assistance of trial counsel claims in post-conviction petition would not be barred when appellate counsel and trial counsel were the same; (2) trial counsel's failure to object to State's alleged gender discrimination in use of peremptory challenges was not deficient assistance; (3) and defendant failed to establish ineffective assistance of counsel. Application denied. C. Johnson, J., concurred specially and filed opinion. Lumpkin, V.P.J., concurred in part, dissented in part, and filed opinion.

OPINION DENYING APPLICATION FOR POST–CONVICTION RELIEF, MOTION FOR DISCOVERY AND REQUEST FOR EVIDENTIARY HEARING

A. JOHNSON, Judge.

¶ 1 Brian Darrell Davis, Petitioner, was convicted by jury of First Degree Murder and First Degree Rape in the District Court of Kay County, Case No. CF–2001–733. The district court followed the jury's verdict and sentenced Davis to death for murder and one hundred years imprisonment for rape. Davis appealed and this Court affirmed his Judgment and Sentence in Davis v. State, 2004 OK CR 36, 103 P.3d 70.

¶ 2 Davis now seeks post-conviction relief in this Court, raising five propositions of error. Under the Capital Post–Conviction Procedure Act, only those claims that “[w]ere not and could not have been raised in a direct appeal” and that also “[s]upport a conclusion either that the outcome of the trial would have been different but for the errors or that the defendant is factually innocent” can be raised. 22 O.S.Supp.2004, § 1089(C)(1) & (2). “This Court will not consider issues which were raised on direct appeal and are barred by res judicata, or issues which have been waived because they could have been, but were not, raised on direct appeal.” Cummings v. State, 1998 OK CR 60, ¶ 2, 970 P.2d 188, 190. The burden is on the applicant to show that his claim is not procedurally barred. See 22 O.S.Supp.2004, § 1089(C). For purposes of post-conviction, a claim could not have been previously raised if: 1) it is a claim of ineffective assistance of trial counsel involving a factual basis that was not ascertainable through the exercise of reasonable diligence on or before the time of the direct appeal, or 2) it is a claim contained in an original timely application for post-conviction relief relating to ineffective assistance of appellate counsel. 22 O.S.Supp.2004, § 1089(D)(4)(b)(1) & (2).

¶ 3 In Proposition I, Davis claims trial and appellate counsel were ineffective for failing to challenge at trial and on direct appeal the prosecutor's use of eight peremptory challenges to remove women from the jury, claiming the State engaged in a pattern of gender discrimination that violated his rights to due process and equal protection. Davis contends this claim could not have been raised on direct appeal because appellate counsel also served as trial counsel and the Oklahoma Indigent Defense System has a policy prohibiting a member of the trial team, serving as appellate counsel, from raising a claim of ineffective assistance of trial counsel on direct appeal.

¶ 4 In Neill v. State, 1997 OK CR 41, ¶ 7, 943 P.2d 145, 148, we held that under 22 O.S.Supp.1995, § 1089(D)(4)(b)(1), the fact that trial and appellate counsel may be the same did not excuse appellate counsel from raising a claim of ineffective assistance of trial counsel on direct appeal. The Neill court found that the language in the amended Capital Post–Conviction Procedure Act overruled our previous decisions in Roberts v. State, 1996 OK CR 7,>¶ 12, 910 P.2d 1071, 1078–79; Fowler v. State, 1995 OK CR 29, ¶ 3, 896 P.2d 566, 569; and Webb v. State, 1992 OK CR 38, ¶ 11, 835 P.2d 115, 117, holding appellate counsel who was trial counsel in the same case was not required to raise a claim of ineffective assistance regarding his own performance below and that claims of ineffective assistance of trial counsel would be considered on collateral review. Neill, 1997 OK CR 41, ¶ 6, 943 P.2d at 148 n. 2. See also McCracken v. State, 1997 OK CR 50, ¶ 6, 946 P.2d 672, 676. This Court followed a minority position requiring a criminal defendant to raise ineffective assistance of trial counsel claims on direct appeal or forfeit them.FN1 See Cannon v. Mullin, 383 F.3d 1152, 1159 (10th Cir.2004).

FN1. The Tenth Circuit has declined to apply Oklahoma's procedural bar to collateral review of ineffective assistance of trial counsel claims, finding Oklahoma's rule that such claims must be raised on direct appeal or forfeited was inadequate and denied defendants meaningful review of their ineffective assistance of trial counsel claims in certain circumstances. Hooks v. Ward, 184 F.3d 1206, 1213–15 (10th Cir.1999). While the Tenth Circuit found there was no rigid constitutional rule prohibiting Oklahoma from requiring the presentation of ineffective assistance of trial counsel claims on direct appeal, it held that given the importance of the Sixth Amendment right to counsel it would not apply Oklahoma's procedural bar where a petitioner had the same counsel at trial and on appeal, or where the ineffectiveness claim could not be resolved solely on the basis of the trial record. See Turrentine v. Mullin, 390 F.3d 1181, 1206 (10th Cir.2004); Hooks, 184 F.3d at 1214; McCracken v. State, 268 F.3d 970, 977 (10th Cir.2001); English v. Cody, 146 F.3d 1257, 1264 (10th Cir.1998).

¶ 5 The Legislature amended the Capital Post–Conviction Procedure Act in 2004. The Act now provides that “[a]ll claims of ineffective assistance of counsel shall be governed by clearly established law as determined by the United States Supreme Court.” 22 O.S.Supp.2004, § 1089(D)(4). In Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986), the Supreme Court explained why the procedural bars applied to other habeas claims were not suitable for ineffective assistance of counsel claims: Because collateral review will frequently be the only means through which an accused can effectuate the right to counsel, restricting the litigation of some Sixth Amendment claims to trial and direct review would seriously interfere with an accused's right to effective representation. A layman will ordinarily be unable to recognize counsel's errors and to evaluate counsel's professional performance; consequently a criminal defendant will rarely know that he has not been represented competently until after trial or appeal, usually when he consults another lawyer about his case. Indeed, an accused will often not realize that he has a meritorious ineffectiveness claim until he begins collateral review proceedings, particularly if he retained trial counsel on direct appeal. Were we to ... hold that criminal defendants may not raise ineffective-assistance claims that are based primarily on incompetent handling of Fourth Amendment issues on federal habeas, we would deny most defendants whose trial attorneys performed incompetently in this regard the opportunity to vindicate their right to effective trial counsel ... Id., 477 U.S. at 378, 106 S.Ct. at 2584–85 (citation omitted).

¶ 6 We recognize the importance of applying our rules of procedural bar uniformly and consistently to effectuate finality of judgment. By amending the Act as it did, the Legislature implicitly overruled the approach adopted by this Court in WalkerFN2 to review ineffective assistance of counsel claims on post-conviction and instead requires this Court to review these claims under the standards in established Supreme Court precedent. Requiring appellate counsel to evaluate his or her own performance and decisions at trial or forfeit a claim of ineffective assistance of trial counsel does not comport with Kimmelman because post-conviction applicants are not provided the opportunity to consult with separate counsel on appeal in order to obtain an objective assessment of trial counsel's performance. In light of Kimmelman, we find that the importance of the Sixth Amendment compels us to consider all claims of ineffective assistance of trial counsel raised in a timely application for post-conviction relief and no longer apply a procedural bar when appellate counsel and trial counsel were the same. This procedure adequately protects a criminal defendant's ability to vindicate his or her constitutional right to the effective assistance of counsel. FN2. Walker v. State, 1997 OK CR 3, 933 P.2d 327.

¶ 7 We now consider Davis's claim of ineffective assistance of trial counsel. Claims of ineffective assistance of counsel are mixed questions of law and fact which we review de novo. See Hanes v. State, 1998 OK CR 74, ¶ 4, 973 P.2d 330, 332. These claims are governed by the two-part Strickland test that requires a petitioner to show: [1] that counsel's performance was constitutionally deficient; and [2] that counsel's performance prejudiced the defense, depriving the petitioner of a fair trial with a reliable result. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). To prove deficient performance, Davis must overcome the strong presumption that counsel's conduct falls within the wide range of reasonable professional conduct and demonstrate that counsel's representation was unreasonable under prevailing professional norms and that the challenged action could not be considered sound trial strategy. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. Judicial scrutiny of counsel's performance is highly deferential. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065; Patterson v. State, 2002 OK CR 18, ¶ 17, 45 P.3d 925, 929. If Davis demonstrates that counsel's performance was deficient, he still must show prejudice before this court may rule in his favor. Lockett v. State, 2002 OK CR 30, ¶ 15, 53 P.3d 418, 424. To show prejudice, Davis must demonstrate “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Lockett, 2002 OK CR 30, ¶ 15, 53 P.3d at 424. This Court may address the performance and prejudice components in any order and need not address both if a petitioner fails to make the requisite showing for one. See Lockett, 2002 OK CR 30, ¶ 15, 53 P.3d at 424; Davis v. State, 1999 OK CR 16, ¶ 38, 980 P.2d 1111, 1120.

¶ 8 Generally, a trial attorney's actions during jury selection are considered matters of trial strategy. See Roberts, 1996 OK CR 7, ¶ 20, 910 P.2d at 1080; Cheney v. State, 1995 OK CR 72,>¶ 69, 909 P.2d 74, 91. The record here shows that after questioning by the attorneys and numerous for-cause challenges, a panel of thirty potential jurors was passed for cause, consisting of fourteen women and sixteen men. Each side then exercised their nine peremptory challenges, leaving a jury of 12 consisting of nine men and three women. Davis is correct that the State exercised eight of its nine allotted peremptory challenges to remove women from the panel. Because of these numbers, it is Davis's theory that women were systematically excluded from the jury.

¶ 9 It is well established that the Equal Protection Clause forbids the use of peremptory challenges to exclude jurors solely on the basis of their gender or race. J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994); Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); Ezell v. State, 1995 OK CR 71, ¶ 4, 909 P.2d 68, 70. “The very idea of a jury is a body ... composed of the peers or equals of the person whose rights it is selected or summoned to determine; that is, of his neighbors, fellows, associates, persons having the same legal status in society as that which he holds.” Batson, 476 U.S. at 86, 106 S.Ct. at 1717 ( quoting Strauder v. West Virginia, 100 U.S. 303, 308, 10 Otto 303, 25 L.Ed. 664 (1879)).

¶ 10 Davis claims that trial counsel was ineffective because he did not object to the allegedly deliberate exclusion of female jurors from the jury panel. Given our highly deferential scrutiny of counsel's performance, we cannot find that counsel's failure to challenge the State's use of peremptory challenges was not sound trial strategy. In Sorensen v. State, 6 P.3d 657, 662–63 (Wyo.2000) and State v. Wilson, 117 N.M. 11, 868 P.2d 656, 663–64 (App.1993), the Wyoming Supreme Court and the New Mexico Court of Appeals respectively rejected an ineffective assistance of counsel claim based on failure to make a Batson challenge. Both of these courts were unwilling to second guess defense counsel, reasoning that defense counsel might have had sound reasons related to the defendant's theory of the case for not opposing the prosecutor's use of the State's peremptory challenges. It was equally conceivable to those courts that the defense lawyers were satisfied that the final jury selected was a fair cross-section of the community and that the defendant's chances for a favorable outcome would not improve with any changes and might instead lessen. See Sorensen, 6 P.3d at 663. We agree with this reasoning because it reflects fitting deference to defense counsel, who had an eyewitness view of the venire, in deciding to make, or refrain from making, a Batson/J.E.B. challenge.

¶ 11 Defense counsel here is a seasoned capital trial attorney who raised two Batson challenges during the State's exercise of its peremptory challenges. There is no evidence before us to show counsel was unaware of the expansion of Batson in J.E.B. A review of the jury selection in this case supports a finding that defense counsel's decision not to raise a J.E.B. challenge was strategic and that gender-neutral reasons for the removal of the majority of the women were readily apparent. Based on this record, we find no ineffectiveness on this ground. FN3. Having rejected Davis's claim of ineffective assistance of trial counsel on the merits, he necessarily cannot prevail on his claim of ineffective assistance of appellate counsel on this same basis and we need not address this claim further.

¶ 12 In Proposition II, Davis claims trial counsel was ineffective for failing to present scientific evidence and supporting witness statements to show Davis did not knowingly and intelligently waive his rights to remain silent and to counsel. He further claims appellate counsel was ineffective for failing to raise on direct appeal a claim of ineffective assistance of trial counsel on this same basis. As discussed in Proposition I, we will consider Davis's claim of ineffective assistance of trial counsel on the merits on post-conviction and no longer apply a procedural bar where trial and appellate counsel were the same.

¶ 13 The record shows defense counsel filed a motion to suppress Davis's November 4th and November 6th statements to the police, arguing that the effects of the medication administered to him on the days of the interview prevented Davis from fully understanding his rights and knowingly and voluntarily waiving them.FN4 The issue was litigated in a Jackson v. DennoFN5 hearing prior to trial and the trial court found that Davis's waiver of rights was not involuntary as a matter of law. Appellate counsel on direct appeal challenged the trial court's ruling and admission of Davis's statements at trial. We held that the evidence supported the trial court's ruling and that the trial court did not err in admitting Davis's statements. Davis, 2004 OK CR 36, ¶ 35, 103 P.3d at 80–81. FN4. Davis did not confess in his November 4th interview; rather, he claimed he could not remember anything. See Davis, 2004 OK CR 36, ¶ 37, 103 P.3d at 81. FN5. Jackson v. Denno, 378 U.S. 368, 380, 84 S.Ct. 1774, 1783, 12 L.Ed.2d 908 (1964) established a defendant's right to an in camera hearing on the voluntariness of his confession.

¶ 14 Davis now claims that his medical records, his expert's report and affidavits of his family members contained in the appendices to his application compel a finding that his waiver of rights was involuntary and that trial counsel was ineffective for not presenting this evidence. See Appendices 4 through 15. We disagree and find that he cannot prevail on his ineffective assistance of trial counsel claim. The material neither leads to a conclusion that the trial court's ruling would have been different had counsel presented the information to the court nor that the outcome of his trial would have been different had the information been presented to the jury. At best, the medical records and expert's report show there was a “potential for impairment” from the medications Davis received. The affidavits concerning Davis's clarity were refuted not only by the detectives who interviewed Davis, but by his own medical records.FN6 See Appendix 6 (Nov. 4th “Nurses Notes” state that Davis was answering questions appropriately and following commands shortly after his interview on November 4th.) We find trial counsel was not ineffective on this ground. FN6. All but one of the affidavits address Davis's clarity on November 4th when Davis did not confess, but only claimed he could not remember what had happened.

¶ 15 In Proposition III, Davis claims trial and appellate counsel were ineffective for failing to object at trial and argue on direct appeal that the trial court's findings following the Jackson v. Denno hearing did not comport with constitutional requirements and denied Davis due process. Davis argues the trial court did not make the necessary factual findings as required by Jackson v. Denno, supra, and Sims v. Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593 (1967).

¶ 16 As noted above, trial counsel filed a motion to suppress Davis's statements to police. The trial court held a Jackson v. Denno hearing and found, after reviewing the totality of the circumstances, that the statements were not involuntary as a matter of law. Stated in the positive, the trial court found that the statements were voluntary and admissible.FN7 Trial judges need not make formal findings of fact or write opinions concerning their rulings on the voluntariness of a defendant's confession. Sims, 385 U.S. at 544, 87 S.Ct. at 643. The only requirement is that a finding that a confession is voluntary appear in the record with “unmistakable clarity.” Id. Davis's contention that the trial court should have made specific findings of fact concerning the voluntariness of Davis's statement is ill-founded because such a finding was implicit in the court's decision that the confession was voluntary. The trial court's ruling here satisfied the requirements of Jackson and Sims. See Chatham v. State, 1986 OK CR 2, ¶ 5, 712 P.2d 69, 71; Fogle v. State, 1985 OK CR 50, ¶ 5, 700 P.2d 208, 210; Harger v. State, 1983 OK CR 30, ¶ 11, 665 P.2d 827, 830. Because the trial court's ruling complied with Jackson and Sims, Davis cannot show that trial and appellate counsel were ineffective in failing to challenge the ruling on this basis. We find no ineffectiveness of trial or appellate counsel on this ground. FN7. This Court reviewed the record on direct appeal and found that the evidence supported a finding that Davis knowingly waived his rights and that his statements were voluntary and admissible. Davis, 2004 OK CR 36, ¶ 35, 103 P.3d at 80–81.

¶ 17 In Proposition IV, Davis claims trial and appellate counsel were ineffective for failing to argue that Davis was denied a fair trial due to the admission of Davis's statements given while he was injured and under the influence of medication administered as part of his medical treatment. While this claim was not raised in this exact manner below, the substance of the claim was litigated both at trial by trial counsel and on direct appeal by appellate counsel. As we stated in Turrentine v. State, 1998 OK CR 44, ¶ 12, 965 P.2d 985, 989, “[t]hat post-conviction counsel raises the claims in a different posture than that raised on direct appeal is not grounds for reasserting the claims under the guise of ineffective assistance of appellate counsel. The doctrine of res judicata does not allow the subdividing of an issue as a vehicle to relitigate at a different stage of the appellate process.” Because this claim was raised and decided on direct appeal, it is barred by res judicata.

¶ 18 In Proposition V, Davis claims the cumulative impact of the errors identified in the preceding propositions renders the result of his trial unreliable. We have reviewed each of Davis's claims and found that he has failed to meet his burden to show he is entitled to relief under the Capital Post Conviction Procedure Act. Consequently, when these alleged errors are considered cumulatively, they do not require relief.

¶ 19 We turn finally to Davis's motions for an evidentiary hearing, discovery and supplementation of the record.FN8 A post-conviction applicant is not entitled to an evidentiary hearing unless “the application for hearing and affidavits ... contain sufficient information to show this Court by clear and convincing evidence the materials sought to be introduced have or are likely to have support in law and fact to be relevant to an allegation raised in the application for post-conviction relief.” Rule 9.7(D)(5), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2005). Davis has failed to make this clear and convincing showing or to overcome the presumption of regularity both in his post-conviction application and appendices and his motion for evidentiary hearing. As for Davis's discovery request, he has failed to show this Court why additional discovery is necessary and has failed to overcome the presumption of regularity. Rule 9.7(D)(3), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2005). His requests for an evidentiary hearing and discovery are denied. FN8. Davis requests this Court to issue an order supplementing the record with the material contained in the appendices filed with the verified application. Rule 9.7(D), Rules of the Court of Criminal Appeals, Title 22, Ch. 18, App. (2005), provides that the record on capital post-conviction consists of the original application and any affidavits and material filed along with the original application. Because the material contained in the appendices is part of the record, there is no need to issue an order supplementing the record. The request is DENIED.

DECISION

¶ 20 After reviewing Davis's application for post-conviction relief and motion for evidentiary hearing and discovery, we conclude: (1) there exist no controverted, previously unresolved factual issues material to the legality of Davis's confinement; (2) Davis's grounds for review which are properly presented have no merit or are barred by res judicata; and (3) the Capital Post–Conviction Procedure Act warrants no relief. Accordingly, Davis's Application for Post–Conviction Relief and Motion for Evidentiary Hearing and Discovery are DENIED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2005), the MANDATE is ORDERED issued upon the delivery and filing of this decision. CHAPEL, P.J. and LEWIS, J.: concur. C. JOHNSON, J.: specially concur. LUMPKIN, V.P.J.: concur in part/dissent in part. LUMPKIN, P.J.: concur in part, dissent in part.

¶ 1 Unfortunately, the Oklahoma Legislature provided little or no insight into the reason(s) why it suddenly amended the Capital Post–Conviction Act in 2004 to state that “[a]ll claims of ineffective assistance of counsel shall be governed by clearly established law as determined by the United States Supreme Court.” While I agree the focus of the Opinion is correct when it states this language “implicitly overruled” the approach adopted by this Court in Walker v. State, 1997 OK CR 3, 933 P.2d 327, concerning the method of analyzing ineffective assistance of counsel claims, I believe the Opinion paints with too broad a brush in applying the limited purpose of the language.

¶ 2 It seems to me that the Legislature's only intent was to do away with the Walker method of reviewing post-conviction ineffective assistance claims. Therefore, I am inclined to agree with the Opinion to the extent it holds, in regards to post-conviction claims of ineffective assistance of trial counsel, that this Court should apply the procedure required by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). But I believe it goes too far when it states we will “no longer apply a procedural bar when appellate counsel and trial counsel were the same.”

¶ 3 The Opinion reads too broadly on this point. That is, the Opinion suggests, whether intentionally or not, that this Court can no longer set its own rules and procedures for reviewing post-conviction ineffective assistance of counsel claims arising from the direct appeal, but must simply defer to the United States Supreme Court. Insofar as the Opinion takes that position or interprets the statute in that manner, I dissent. See Behrens v. Patterson, 1997 OK CR 76, ¶ 3, 952 P.2d 990, 991 (finding the Supreme Court's application or interpretation of a federal rule of appellate procedure “is not controlling as to the construction, application, or interpretation of any Oklahoma rule of appellate procedure”).

¶ 4 I do not believe either the language of the statutory amendment or the intent of the Legislature was to make sweeping changes in the way this Court does business to the extent the opinion advises. Indeed, the Supreme Court has recognized a State's authority to establish and apply procedural waiver rules on this very issue. See Stewart v. Smith, 536 U.S. 856, 122 S.Ct. 2578, 153 L.Ed.2d 762 (2002) (disallowing federal habeas review of a state procedural rule that is independent of federal law). Thus, it appears to me the statutory amendment is nothing more than a confirmation of the analysis in my Walker dissent, which focused on the fact that Strickland should be our guide for reviewing ineffective assistance of counsel claims, not the newly formulated Walker process.

¶ 5 I find it reasonable and appropriate to restrict this new statutory language to exactly that. Our other rules regarding how and when we will accept and rule on ineffective assistance of counsel claims do not need to be “federalized.” Oklahoma can and should retain our tried and proven procedures of review, while applying Strickland, just as we did prior to Walker. But I cannot join in a wholesale relinquishment of the authority held by the State of Oklahoma and this Court to set our own rules and procedure. It is the responsibility of the judges of this Court to preserve the rights of the State of Oklahoma to establish and administer its rules of procedure, not relinquish those rights. C. JOHNSON, JUDGE, specially concurring.

¶ 1 I specially concur in the well-reasoned decision by the Court. I personally have a problem with the application of procedural bar, and the use of such terms as “procedural bar,” “bar” and “waiver,” which strictly prohibit consideration of legal issues raised on appeal. I am troubled by the use of these procedural rules which keep this Court from reviewing potentially meritorious claims involving factual innocence, and ineffective assistance of counsel when counsel at trial and on appeal are the same or counsel on appeal and post-conviction counsel are the same.

¶ 2 I recognize that a criminal defendant is entitled to a fair trial—not a perfect trial. Lahey v. State, 1987 OK CR 188, ¶ 29, 742 P.2d 581, 585. A fair trial requires effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 696, 104 S.Ct. 2052, 2069, 80 L.Ed.2d 674 (1984)(“In every case the court should be concerned with whether, despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results.”) This Court has a responsibility under the separation of powers doctrine to review ineffective assistance of counsel claims or other matters raised on appeal, even where the legislature seemingly has precluded review of those claims by legislating what power this Court may exercise.

Davis v. Workman, 695 F.3d 1060 (10th Cir. 2012). (Habeas)

Background: After his state convictions of first degree murder and rape were affirmed on direct appeal, 103 P.3d 70, petitioner sought federal habeas relief. The United States District Court for the Western District of Oklahoma denied petition. Certificate of appealability (COA) was granted and petitioner appealed.

Holdings: The Court of Appeals, Hartz, Circuit Judge, held that: (1) state court's determination that defendant knowingly and intelligently waived his Miranda rights was not contrary to clearly established federal law; (2) state court's determination that defendant's custodial statements were not coerced was not contrary to clearly established federal law; (3) petitioner was not prejudiced by counsel's failure to present at trial additional evidence of defendant's impairment during police interviews; (4) counsel's failure to argue at trial that police officers coerced defendant into making inculpatory statements while he was hospitalized by withholding pain medication was not ineffective assistance; and (5) Oklahoma law requiring prior notice of expert witnesses to be called at criminal trial did not create a federal due-process right, and thus could not form basis of a federal habeas claim. Affirmed.

HARTZ, Circuit Judge.

An Oklahoma jury convicted Defendant Brian Darrell Davis of the first-degree murder and rape of Josephine “Jody” Sanford, the mother of his girlfriend Stacey Sanford. On the recommendation of the jury, Defendant received a 100–year prison sentence for the rape and a death sentence for the murder.

After unsuccessfully appealing to the Oklahoma Court of Criminal Appeals (OCCA), see Davis v. State, 103 P.3d 70, 83 (Okla.Crim.App.2004), and pursuing postconviction relief in state court, see Davis v. State, 123 P.3d 243, 249 (Okla.Crim.App.2005), Defendant unsuccessfully sought relief under 28 U.S.C. § 2254 in the United States District Court for the Western District of Oklahoma. The district court denied a certificate of appealability (COA) but this court granted a COA on two issues: whether Defendant's statements to police officers while he was hospitalized were knowing, intelligent, and voluntary; and whether his counsel was ineffective in failing to present scientific evidence that he was impaired while making those statements. See 28 U.S.C. § 2253(c)(1)(A) (requiring a COA to appeal the denial of a § 2254 application). We affirm on these issues because the OCCA did not unreasonably determine the facts or unreasonably apply federal law in rejecting these claims. We also deny Defendant's Motion for Additional Issues in COA because no reasonable jurist could dispute the district court's resolution of the issues raised in the motion. We do, however, grant a COA on a claim that Defendant apparently thought was encompassed by our prior grant of a COA—namely, the claim that his counsel was ineffective for failing to argue that police officers coerced him into making his hospital statements by withholding pain medication. But we affirm the denial of the claim.

I. BACKGROUND

A. Factual Background

The OCCA's decision on direct appeal offers a detailed description of the pertinent events: In the early morning hours of November 4, 2001, Davis returned home after socializing with some friends at a local club, only to find his girlfriend, Stacey Sanford, and their three-year-old daughter missing. He telephoned Josephine “Jody” Sanford, Stacey's mother, to ask if she had seen or knew of their whereabouts. Jody told Davis that she did not know where they were. Ten to fifteen minutes later, Davis again telephoned Jody and asked her to go and find them. When Jody could not locate her daughter and granddaughter, she went to Stacey's and Davis's apartment. Davis made several conflicting statements about the events that followed once Jody arrived, including a different version during his trial testimony. However, with the exception of his first statement where he claimed to have no memory of what had happened, Davis admitted in his other statements that he fatally stabbed Jody. Jody's body was discovered shortly after 9:00 a.m. when her daughter Stacey returned home. Stacey immediately called 911 and local police arrived to investigate.

Meanwhile, Davis had been involved in a single-car accident while driving Jody's van near the Salt Fork River Bridge. Davis was seriously injured after he was ejected from the van through the front windshield. Davis was transported to a local hospital for treatment. Because there was an odor of alcohol about him, Davis was placed under arrest and his blood alcohol level was tested and registered .09%. Later on, Davis was transported to a Witchita [sic] hospital for further care. Detective Donald Bohon interviewed Davis around 5:49 p.m. that afternoon. In his first statement, Davis was able to recount his activities at the club the night before, but could not remember who drove him home. He recalled that Stacey and his daughter were not at home when he arrived and he remembered telephoning Jody. He could remember Jody being in the living room with him, but after that moment, he could not recall anything until he woke up in the field after the accident.

Two days later, Detectives Bohon and Bob Stieber interviewed Davis again. Initially, Davis repeated the story he had previously told Detective Bohon. As Stieber questioned Davis, his memory improved. He remembered Jody talking to him about religion and his commitment to Stacey. An angry Davis told Jody that there would be no commitment and the two argued. Davis claimed that Jody stood up while she continued her lecture and that he then stood up, got angry, accused her of being in his face and told her to “back up,” pushing her backwards. Davis claimed Jody grabbed a knife and cut him on his thumb. Davis then hit Jody on the chin (apparently causing the fracture to her jawbone) and tried to grab the knife, getting cut in the process. Davis said he got the knife from Jody and told her to get back, stabbing her in the stomach. He stated that he and Jody began to wrestle down the hallway and that he stabbed Jody in the leg. Once in the bedroom, Davis told Jody to stop and he put the knife down. Jody asked Davis to let her go to which he agreed, but then Jody ran towards the knife. He grabbed the knife first and stabbed Jody on the left side. She then told Davis that she could not breathe and Davis told her to lie down on the bed. Davis said he tried to wrap her up tightly in the bedspread so she would not bleed to death. He claimed he heard her stop breathing, but then fell asleep. When he awoke, he panicked and fled in Jody's van so he could think about what to do. Shortly thereafter, the crash occurred. When Stieber confronted him with physical evidence showing Jody was strangled/choked, Davis conceded that he may have choked her while they were wrestling. However, he adamantly denied having consensual or non-consensual sex with her.

Davis told his girlfriend, Stacey Sanford, three different versions of what happened that morning. At first, he told her that he believed her mother was an intruder and that he instinctively fought with her to protect his family home. Several months later, he told Stacey that her mother came to their apartment and that the two of them argued because Davis believed Jody was lying about her knowledge of Stacey's whereabouts. He claimed he pushed Jody and Jody went to the kitchen and retrieved a knife. Davis said that he got his thumb cut when he tried to take the knife from Jody, and that once he got the knife, he stabbed Jody once in the stomach. The argument continued and the two of them ended up in the bedroom where Jody said let's end this and Davis put the knife down. He claimed that she grabbed the knife as she walked towards the door and that he took it from her and stabbed her again.

Two to three months later after DNA tests showed that Davis' semen was found in Jody's vagina, Stacey confronted Davis and he told her a third version of what had happened. In this third version, he said that Jody came to their apartment upset about her husband's infidelity. He claimed that he tried to comfort her and they ended up having consensual intercourse. After their sexual encounter, Davis said he was lying on the floor in the front room while Jody was in the kitchen and that all of a sudden he was struck in the back of the head with some object. He did not elaborate on the details of the stabbing, indicating that the events unfolded from there.

At trial, Davis testified that Jody came to his apartment after she could not locate Stacey and talked to him about his need to commit to her. Davis claimed he responded by making a remark about Jody's husband's level of commitment and his rumored infidelity. He said that Jody became emotional and acknowledged that she knew about her husband's affair. Davis said he felt badly about his remark and got up and sat beside Jody and tried to comfort her. He claimed that Jody kissed him and that they ended up going back to the bedroom and having sex on the bedroom floor for fifteen to twenty minutes. Afterwards Davis got up and stumbled between the hallway and bedroom. He said that Jody was saying something about the time and he said that the sex was not worth his time and that he understood why Jody's husband was having an affair. He claimed that an angry Jody then hit him in the back of the head with a lotion dispenser, stunning him. As Jody walked by Davis, Davis got up and chased her down the hallway, tackling her and biting her ankle. Jody kicked Davis in the mouth and ran to the kitchen and grabbed a knife. Davis then ran to the living room and grabbed the Play Station II. Davis asked Jody “what the hell are you doing?” and hit her in the face. Davis said Jody “came back with a defensive position” and that he used the Play Station II as a shield. Now angrier, Davis hit Jody again and tossed the Play Station II into a nearby chair. He backed her down the hallway while she swung the knife wildly, cutting Davis on his arm. Davis went into the bathroom for a towel and Jody retreated to the bedroom. He said that when he exited the bathroom he saw Jody in the bedroom doorway and that he ran at her, grabbed her, pulled her down and hit her in the face two to three times. As they were fighting, Davis pushed Jody's head against the wall and struck her until she finally relinquished the knife. Jody retreated into the bedroom and asked Davis to let her go. Davis claimed he told Jody to go and put the knife on the nightstand. He said that when Jody walked by, she grabbed the knife, which angered him because he believed the fight was over. He then grabbed her shirt, pulled her towards him and put his arm around her neck squeezing as tightly as he could until she dropped the knife. He said that he grabbed the knife, that he was angry and that he stabbed Jody in the back. Jody then “swung back,” struck him in the groin and he fell to one knee. He claimed Jody continued to hit him and that he stabbed her several times as he tried to fend off her attack. He maintained that he never intended to kill her. Davis, 103 P.3d at 73–75.

B. Proceedings Below

Defendant's § 2254 application asserted 14 claims: (1) that Defendant did not understand his Miranda waiver and that his later statements to the police at the hospital were coerced by officers calling him a cold-blooded killer; (2) that his counsel was ineffective in failing to present scientific evidence that Defendant was impaired while making statements to the police; (3) that Defendant's counsel was ineffective in failing to argue that his hospital statements to police were the product of coercion caused by withholding of pain medication; (4) that the State's presentation of rebuttal witnesses without pretrial notice violated due process; (5) that presentation of the rebuttal witnesses violated his rights under the Sixth, Eighth, and Fourteenth Amendments; (6) that the conviction of first-degree murder was not supported by sufficient evidence; (7) that the state court's refusal to give instructions on circumstantial evidence violated the Sixth, Eighth, and Fourteenth Amendments; (8) that the court denied his right to confront witnesses and to compulsory process by restricting evidence of the affair of the victim's husband; (9) that the cumulative impact of errors rendered the state-court proceedings fundamentally unfair; (10) that the jury's finding that the murder was especially heinous, atrocious, or cruel was not supported by sufficient evidence; (11) that his counsel was ineffective in failing to challenge the discriminatory use of peremptory challenges during jury selection; (12) that the state court erred in failing to make adequate findings after its hearing on the motion to suppress Defendant's statements to the police, and that his counsel was ineffective in failing to assert that the lack of adequate findings violated due process; (13) that the state court erred in allowing the introduction of Defendant's privileged communications to Stacey Sanford; and (14) that the state court did not have jurisdiction to consider the aggravating circumstances set forth in a bill of particulars because they were not properly charged. In this court Defendant sought a COA on claims 1 to 12, and we granted a COA on claims 1 and 2: “[w]hether [Defendant's] statements made to police officers while hospitalized were knowingly, intelligently, and voluntarily made”; and “whether [Defendant] was denied effective representation by counsel in the trial court when counsel did not present scientific evidence that appellant was impaired and unable to understand the events surrounding the making of those statements.” Case Management Order at 1, Davis v. Workman, No. 11–6022 (10th Cir. May 3, 2011). He then renewed his request for a COA, but only on claims 4 to 9, although, as we discuss more fully later, he apparently thinks that he obtained a COA on claim 3. We affirm the district court's rulings on claims 1 and 2; grant a COA on claim 3 but deny relief; and again deny a COA on claims 4 to 9. We will address the claims in that order after first stating our standard of review.