FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN
DISTRICT OF OKLAHOMA (D.C. No. 5:08-CV-00470-R)
M. Jernigan, Assistant Federal Public Defender (Patti Palmer
Ghezzi, Assistant Federal Public Defender, Oklahoma City,
Oklahoma, and Robert R. Nigh, Jr., Tulsa, Oklahoma, with her
on the briefs), Oklahoma City, Oklahoma, for
L. Lockett, Assistant Attorney General (E. Scott Pruitt,
Attorney General of Oklahoma, with him on the brief),
Oklahoma City, Oklahoma, for Respondent-Appellee.
KELLY, BRISCOE and HARTZ, Circuit Judges.
Pavatt was convicted by an Oklahoma jury of first-degree
murder and conspiracy to commit first-degree murder. He was
sentenced in accordance with the jury's recommendations
to death on the first-degree-murder conviction and ten
years' imprisonment on the conspiracy conviction. After
exhausting his state-court remedies, he filed an application
for relief under 28 U.S.C. § 2254. The district court
denied the application, and also denied a certificate of
appealability (COA). See 28 U.S.C. § 2253(c)(1)
(requiring COA to appeal denial of relief under § 2254).
Mr. Pavatt sought from this court and was granted a COA on
several issues. Exercising jurisdiction under 28 U.S.C.
§ 1291, we affirm the district court's denial of
relief with respect to his conviction, but we reverse the
denial of relief with respect to his sentence and remand to
the district court for further proceedings.
Oklahoma Court of Criminal Appeals (OCCA) summarized the
[Pavatt] and his co-defendant, Brenda Andrew, were each
charged with conspiracy and first-degree capital murder
following the shooting death of Brenda's husband, Robert
("Rob") Andrew, at the Andrews' Oklahoma City
home on November 20, 2001. [Pavatt] met the Andrews while
attending the same church, and [Pavatt] and Brenda taught a
Sunday school class together. [Pavatt] socialized with the
Andrews and their two young children in mid-2001, but
eventually began having a sexual relationship with Brenda.
Around the same time, [Pavatt], a life insurance agent,
assisted Rob Andrew in setting up a life insurance policy
worth approximately $800, 000. [Pavatt] divorced his wife in
the summer of 2001. In late September, Rob Andrew moved out
of the family home, and Brenda Andrew initiated divorce
proceedings a short time later.
Janna Larson, [Pavatt's] adult daughter, testified that
in late October 2001, [Pavatt] told her that Brenda had asked
him to murder Rob Andrew. On the night of October 25-26,
2001, someone severed the brake lines on Rob Andrew's
automobile. The next morning, [Pavatt] and Brenda Andrew
concocted a false "emergency, " apparently in hopes
that Rob would have a traffic accident in the process.
[Pavatt] persuaded his daughter to call Rob Andrew from an
untraceable phone and claim that Brenda was at a hospital in
Norman, Oklahoma, and needed him immediately. An unknown male
also called Rob that morning and made the same plea. Rob
Andrew's cell phone records showed that one call came
from a pay phone in Norman (near Larson's workplace), and
the other from a pay phone in south Oklahoma City. The plan
failed; Rob Andrew discovered the tampering to his car before
placing himself in any danger. He then notified the police.
One contentious issue in the Andrews' divorce was control
over the insurance policy on Rob Andrew's life. After his
brake lines were severed, Rob Andrew inquired about removing
Brenda as beneficiary of his life insurance policy. However,
[Pavatt], who had set up the policy, learned of Rob's
intentions and told Rob (falsely) that he had no control over
the policy because Brenda was the owner. Rob Andrew spoke
with [Pavatt's] supervisor, who assured him that he was
still the record owner of the policy. Rob Andrew then related
his suspicions about [Pavatt] and Brenda to the supervisor.
When [Pavatt] learned of this, he became very angry and
threatened to harm Rob for putting his job in jeopardy. At
trial, the State presented evidence that in the months
preceding the murder, [Pavatt] and Brenda actually attempted
to transfer ownership of the insurance policy to Brenda
without Rob Andrew's knowledge, by forging his signature
to a change-of-ownership form and backdating it to March
On the evening of November 20, 2001, Rob Andrew drove to the
family home to pick up his children for a scheduled
visitation over the Thanksgiving holiday. He spoke with a
friend on his cell phone as he waited in his car for Brenda
to open the garage door. When she did, Rob ended the call and
went inside to get his children. A short time later,
neighbors heard gunshots. Brenda Andrew called 911 and
reported that her husband had been shot. Emergency personnel
arrived and found Rob Andrew's body on the floor of the
garage; he had suffered extensive blood loss and they were
unable to revive him. Brenda Andrew had also suffered a
superficial gunshot wound to her arm. The Andrew children
were not, in fact, packed and ready to leave when Rob Andrew
arrived; they were found in a bedroom, watching television
with the volume turned up very high, oblivious to what had
happened in the garage.
Brenda was taken to a local hospital for treatment. Her
behavior was described by several witnesses, experienced in
dealing with people in traumatic situations, as
uncharacteristically calm for a woman whose husband had just
been gunned down. One witness saw Brenda chatting giddily
with [Pavatt] at the hospital later that night.
Rob Andrew was shot twice with a shotgun. A spent shotgun
shell found in the garage fit a 16-gauge shotgun, which is a
rather unusual gauge. Andrew owned a 16-gauge shotgun, but
had told several friends that Brenda refused to let him take
it from the home when they separated. Rob Andrew's
shotgun was missing from the home when police searched it.
One witness testified to seeing Brenda Andrew engaging in
target practice at her family's rural Garfield County
home about a week before the murder. Several 16- gauge
shotgun shells were found at the site.
Brenda told police that her husband was attacked in the
garage by two armed, masked men, dressed in black, but gave
few other details. Brenda's superficial wound was caused
by a .22-caliber bullet, apparently fired at close range,
which was inconsistent with her claim that she was shot at
some distance as she ran from the garage into the house.
About a week before the murder, [Pavatt] purchased a
.22-caliber handgun from a local gun shop. On the day of the
murder, [Pavatt] borrowed his daughter's car and claimed
he was going to have it serviced for her. When he returned it
the morning after the murder, the car had not been serviced,
but his daughter found a .22-caliber bullet on the
floorboard. In a conversation later that day, [Pavatt] told
Larson never to repeat that Brenda had asked him to kill Rob
Andrew, and he threatened to kill Larson if she did. He also
told her to throw away the bullet she had found in her car.
Police also searched the home of Dean Gigstad, the
Andrews' next-door neighbor. There they found evidence
that someone had entered the Gigstads' attic through an
opening in a bedroom closet. A spent 16-gauge shotgun shell
was found on the bedroom floor, and several .22-caliber
bullets were found in the attic itself. There were no signs
of forced entry into the Gigstads' home. Gigstad and his
wife were out of town when the murder took place, but Brenda
Andrew had a key to their home. The .22-caliber bullet found
in Janna Larson's car was of the same brand as the three
.22-caliber bullets found in the Gigstads' attic; the
.22-caliber bullet fired at Brenda and retrieved from the
Andrews' garage appeared consistent with them in several
respects. These bullets were capable of being fired from the
firearm that [Pavatt] purchased a few weeks before the
murder; further testing was not possible because that gun was
never found. The shotgun shell found in the Gigstads'
home was of the same brand and odd gauge as the 16-gauge
shell found in the Andrews' garage. Ballistics comparison
showed similar markings, indicating that they could have been
fired from the same weapon. Whether these shells were fired
from the 16-gauge shotgun Rob Andrew had left at the home was
impossible to confirm because, as noted, that gun also turned
In the days following the murder, [Pavatt] registered his
daughter as a signatory on his checking account, and asked
her to move his belongings out of his apartment. He obtained
information over the Internet about Argentina, because he had
heard that country had no extradition agreement with the
United States. Larson also testified that after the murder,
Brenda and [Pavatt] asked her to help them create a document,
with the forged signature of Rob Andrew, granting permission
for the Andrew children to travel with Brenda out of the
Brenda also asked Larson to transfer funds from her bank
account to Larson's own account, so that Larson could
wire them money after they left town. Brenda Andrew did not
attend her husband's funeral. Instead, she and [Pavatt]
drove to Mexico, and took the Andrew children with them.
[Pavatt] called his daughter several times from Mexico and
asked her to send them money. Larson cooperated with the FBI
and local authorities in trying to track down [Pavatt] and
Brenda. In late February 2002, having run out of money,
[Pavatt] and Brenda Andrew re-entered the United States at
the Mexican border. They were promptly placed under arrest.
Pavatt v. State (Pavatt I), 159 P.3d 272,
276-78 (Okla. Crim. App. 2007) (paragraph numbers and
November 29, 2001, nine days after the murder, an information
was filed in state court charging Mr. Pavatt and Brenda
Andrew with first-degree murder. An amended information was
filed on July 19, 2002, charging them with one count of
first-degree murder and one count of conspiracy to commit
first-degree murder. The prosecution also filed a bill of
particulars alleging three aggravating circumstances for Mr.
Pavatt: (1) that he committed the murder for remuneration or
the promise of remuneration or employed another to commit the
murder for remuneration or the promise of remuneration (the
remuneration aggravator); (2) that the murder was especially
heinous, atrocious, or cruel (the HAC aggravator); and (3)
that he constituted a continuing threat to society.
Pavatt was tried separately from Ms. Andrew (who was also
convicted on both counts and sentenced to death). His trial,
which began on August 25, 2003, included a guilt phase
followed by a sentencing phase. The jury found him guilty on
both counts and found the remuneration and HAC aggravators.
It also found that these aggravating circumstances outweighed
the mitigating circumstances, and it recommended that Mr.
Pavatt be sentenced to death on the first-degree-murder
Pavatt filed a direct appeal asserting 18 propositions of
error. On May 8, 2007, the OCCA rejected Mr. Pavatt's
arguments and affirmed his convictions and sentences. See
Pavatt I, 159 P.3d at 297. Mr. Pavatt's petition for
rehearing was denied by the OCCA on June 26, and the United
States Supreme Court denied his petition for a writ of
certiorari on February 19, 2008. See Pavatt v.
Oklahoma, 552 U.S. 1181 (2008).
April 17, 2006, while his direct appeal was pending, Mr.
Pavatt filed with the OCCA an application for postconviction
relief asserting three propositions of error (one of which,
ineffective assistance of appellate and trial counsel,
included 23 subpropositions). On April 11, 2008, the OCCA
issued an unpublished opinion denying the application.
See Pavatt v. State (Pavatt II), No.
PCD-2004-25 (Okla. Crim. App. Apr. 11, 2008).
Pavatt initiated his § 2254 proceedings on May 5, 2008,
by filing a motion for appointment of counsel, which the
district court granted. On April 1, 2009, his counsel filed a
§ 2254 application asserting 15 grounds for relief. The
application conceded that some of the claims were "newly
developed" and "m[ight] require further
exhaustion." R. Vol. 3 at 335. For that reason, Mr.
Pavatt requested that his application "be held in
abeyance so that he [could] return to state court to
accomplish any necessary exhaustion." Id. But
the district court declined to stay the case or otherwise
hold it in abeyance. Briefing in the case was completed on
October 14, 2009, when Mr. Pavatt filed a reply brief in
support of his application.
on September 2, 2009, Mr. Pavatt filed with the OCCA a second
application for postconviction relief asserting six
propositions of error. On February 2, 2010, the OCCA issued
an unpublished opinion denying the application. See
Pavatt v. State (Pavatt III), No. PCD-2009-777
(Okla. Crim. App. Feb. 2, 2010).
1, 2014, the federal district court issued an order denying
Mr. Pavatt's § 2254 application, entered final
judgment in the case, and issued an order denying a COA with
respect to all issues raised in the application.
Pavatt filed a notice of appeal on June 2, 2014. In a
case-management order issued on November 24, 2014, we granted
Mr. Pavatt a COA on the following issues:
A.  Whether there was sufficient evidence to support the
"especially heinous, atrocious, or cruel"
aggravator . . . and  whether the trial court's
failure to provide an adequate instruction to the jury that
it must find "conscious physical suffering" beyond
a reasonable doubt before finding that the murder was
"especially heinous, atrocious, or cruel" violated
Mr. Pavatt's constitutional rights to a fair trial, a
reliable sentencing determination, and due process . . .
B. Whether there was constitutionally ineffective assistance
of trial counsel regarding the investigation of mitigating
evidence or the presentation of a meaningful case for life
imprisonment . . . [, ] and whether appellate counsel was
constitutionally ineffective in failing to raise a claim that
trial counsel was ineffective in these regards; and
C. Whether trial counsel provided constitutionally
ineffective assistance of counsel regarding the introduction
of a camping video, live photographs of the victim, or
testimony regarding the victim's good traits . . . and
whether appellate counsel was constitutionally ineffective in
failing to raise a claim that trial counsel was ineffective
in these regards.
(Case Management Order, Nov. 24, 2014). Because we reverse on
issue A, we need not address issues A and B. We affirm
on issue C.
STANDARD OF REVIEW
challenge to a state-court conviction under § 2254,
"the appropriate standard of review depends upon whether
a claim was decided on the merits in state court."
Stouffer v. Trammell, 738 F.3d 1205, 1213 (10th Cir.
2013) (citation omitted). When, as here, the claims we must
resolve on the merits were addressed on the merits, our
standard of review is governed by 28 U.S.C. § 2254(d),
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
28 U.S.C. § 2254(d).
state-court decision is contrary to [Supreme Court] precedent
if the state court arrives at a conclusion opposite to that
reached by [the Supreme Court] on a question of law, "
or "if the state court confronts facts that are
materially indistinguishable from a relevant Supreme Court
precedent and arrives at a result opposite to the [Supreme
Court's]." Williams v. Taylor, 529 U.S.
362, 405 (2000). "On the other hand, a run-of-the-mill
state-court decision applying the correct legal rule from
[Supreme Court] cases to the facts of a prisoner's case
would not fit comfortably within § 2254(d)(1)'s
'contrary to' clause." Id. at 406.
the "unreasonable application" clause of §
2254(d)(1), the Supreme Court has said, "A state-court
decision that correctly identifies the governing legal rule
but applies it unreasonably to the facts of a particular
prisoner's case certainly would qualify as a decision
involving an unreasonable application of clearly established
Federal law." Id. at 407-08 (brackets and
ellipsis omitted) (internal quotation marks omitted).
"[A] federal habeas court making the 'unreasonable
application' inquiry should ask whether the state
court's application of clearly established federal law
was objectively unreasonable." Id. at 409.
Notably, "an unreasonable application of
federal law is different from an incorrect
application of federal law." Id. at 410. Thus,
"a federal habeas court may not issue the writ simply
because that court concludes in its independent judgment that
the relevant state-court decision applied clearly established
federal law erroneously or incorrectly." Id. at
PAVATT'S CHALLENGES TO VERDICT OF GUILTY
Pavatt's sole challenge to his conviction is that his
trial counsel was ineffective in failing to object to the
admission of three categories of evidence allegedly designed
to evoke sympathy for the victim, Rob Andrew: (1) a videotape
showing Mr. Pavatt and Mr. Andrew on a hunting trip, (2)
"glowing accounts" of Mr. Andrew from his friends
and family, and (3) four photographs of him taken before his
death. Aplt. Br. at 49. The first two claims are procedurally
barred, and the third lacks merit.
claim of inadequate assistance with respect to the first two
categories of evidence was not adequately raised in federal
district court. The only challenge at all related to category
1 in Mr. Pavatt's amended petition under § 2254 was
headed: "Counsel Failed to Object to the Admission of
Live Photographs of Rob Andrew." App., Vol. 3 at 317.
But that section of the 216-page petition (which served as
the brief in support) does not claim ineffective assistance
with respect to the video. Indeed, it begins with the
sentence, "Trial counsel objected to the admission of
the video recording of the hunting trip." Id.
In this court Mr. Pavatt argues that the trial objection to
the video was inadequate; but that claim was not made below.
category 2, one sentence in the "Live Photographs"
section of the petition states, "A review of his conduct
further reveals that trial counsel allowed multiple
witnesses, who were friends and family of Rob Andrew, to
testify to entirely irrelevant matters that could only raise
sympathy in the minds of jurors. See Grounds 2, 7,
infra." Id. at 318. But this one
sentence, which is not developed further, and which is buried
in a section whose heading does not encompass the point, does
not adequately preserve this ineffectiveness issue. The
district court, not perceiving it as an issue, did not
address it in the 112-page opinion denying relief.
the only ineffectiveness claim relating to the guilt phase of
the trial that was preserved in federal district court is
that trial counsel did not adequately object to the admission
of the photographs (and that appellate counsel did not raise
on appeal this deficiency of trial counsel). Mr. Pavatt has
not argued that admission of this evidence during the guilt
phase violated any federal constitutional right. The alleged
ineffectiveness was only counsel's failure to argue that
the evidence should have been excluded under Oklahoma law.
This ineffectiveness challenge clearly fails with respect to
one of the pictures (State's Exhibit 219). In his first
state postconviction petition, Mr. Pavatt argued that his
trial and appellate counsel should have objected to the
admission of the exhibit. But the OCCA rejected the argument,
holding that the claim was barred by res judicata and noting
that it had sustained the admissibility of a similar
photograph in a prior case. See Pavatt II, No.
PCD-2004-25 at 6 n.6. A claim of ineffective assistance of
counsel for failure to object to evidence cannot be sustained
if the objection was doomed to fail. See Williams v.
Trammell, 782 F.3d 1184, 1198 (10th Cir. 2015).
leaves only a challenge to the failure to object to three
other photographs taken of Mr. Andrew during his life. But
even if competent counsel should have objected to the
evidence, Mr. Pavatt's ineffectiveness claim fails for
lack of prejudice. To prevail on such a claim, he must show
that "there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the [guilt
phase] would have been different." Id. at
1197-98 (internal quotation marks omitted). We are at a total
loss to see how, in light of the compelling evidence of
guilt, the three photographs could have been a significant
factor in the verdict; and Mr. Pavatt offers no argument in
support. We therefore reject this portion of the claim on the
"HEINOUS, ATROCIOUS, OR CRUEL" (HAC)
conclusion of the second-stage proceedings the jury found the
murder to be "especially heinous, atrocious, or
cruel."  The jury instruction on the HAC
aggravating circumstance defined the terms as follows:
As used in these instructions, the term "heinous"
means extremely wicked or shockingly evil;
"atrocious" means outrageously wicked and vile;
"cruel" means pitiless, or designed to inflict a
high degree of pain, utter indifference to, or enjoyment of,
the sufferings of others.
The phrase "especially heinous, atrocious, or
cruel" is directed to those crimes where the death of
the victim was preceded by torture of the victim or serious
R. Vol. 1 at 188. According to Mr. Pavatt, the evidence
presented at his trial was "constitutionally
insufficient" to establish the HAC aggravator, Aplt. Br.
at 21, and the OCCA's determination to the contrary was
"contrary to or an unreasonable application of Supreme
Court law, " id. at 36.
assess the sufficiency of the evidence, we first determine
the elements of the offense and then examine whether the
evidence suffices to establish each element."
Anderson-Bey v. Zavaras, 641 F.3d 445, 448 (10th
Cir. 2011). Due process requires that the evidence presented
at trial, viewed in the light most favorable to the
prosecution, be sufficient to allow a "rational trier of
fact [to] have found the essential elements of the crime
beyond a reasonable doubt." Jackson v.
Virginia, 443 U.S. 307, 319 (1979). In a capital case
the aggravating factors necessary for imposition of the death
penalty "operate as the functional equivalent of an
element of a greater offense." Ring v. Arizona,
536 U.S. 584, 609 (2002) (internal quotation marks omitted).
elements of a state offense are ordinarily purely a matter of
state law. In reviewing a state conviction under § 2254,
we do not second guess whether the state courts have
correctly interpreted their law. See Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991) ("[I]t is not
the province of a federal habeas court to reexamine
state-court determinations on state-law questions.").
But States do not have a totally free hand in deciding how to
define their aggravating circumstances for capital cases. The
United States Constitution sets some limits. Since the
Supreme Court held in Furman v. Georgia, 408 U.S.
238 (1972), that then-current capital-sentencing procedures
were unconstitutional, the underlying principle guiding
Supreme Court doctrine has been that "the Eighth and
Fourteenth Amendments cannot tolerate the infliction of a
sentence of death under legal systems that permit this unique
penalty to be . . . wantonly and . . . freakishly
imposed." Lewis v. Jeffers, 497 U.S. 764, 774
(1990) (brackets, ellipsis, and internal quotation marks
omitted). To prevent that intolerable result, discretion in
imposing the death penalty "must be suitably directed
and limited so as to minimize the risk of wholly arbitrary
and capricious action." Id. (internal quotation
marks omitted). The State must "channel the
sentencer's discretion by clear and objective standards
that provide specific and detailed guidance, and that make
rationally reviewable the process for imposing a sentence of
death." Id. (internal quotation marks omitted).
Supreme Court therefore has required federal courts to
examine a State's aggravating circumstances to see if
they pass muster. For example, the Court in Gregg v.
Georgia, 428 U.S. 153 (1976), considered Georgia's
outrageously-or-wantonly-vile aggravator, which included any
murder that was "'outrageously or wantonly vile,
horrible or inhuman in that it involved torture, depravity of
mind, or an aggravated battery to the victim, '"
id. at 210 (White, J., concurring) (quoting Georgia
statute). The prevailing plurality stated that it was
"arguable that any murder involves depravity of mind or
an aggravated battery." Id. at 201 (joint
opinion of Justices Stewart, Powell, and Stevens). But, in
the view of those Justices, the aggravator's
"language need not be construed in this way, " and
they would not invalidate the aggravator because "there
[was] no reason to assume that the Supreme Court of Georgia
[would] adopt such an open-ended construction."
Id.; see Lewis, 497 U.S. at 775 (construing
this as the holding in Gregg).
however, in Godfrey v. Georgia, 446 U.S. 420 (1980),
the Court took another look at the State's application of
the aggravator. The prevailing plurality (two other Justices
would have set aside the death sentence on broader grounds)
framed the issue before the court as "whether, in
affirming the imposition of the sentences of death in the
present case, the Georgia Supreme Court has adopted such a
broad and vague construction of the [pertinent] aggravating
circumstance as to violate the Eighth and Fourteenth
Amendments to the United States Constitution."
Id. at 423. Godfrey murdered his wife and
mother-in-law after his wife, who had moved in with her
mother, had ended a telephone conversation by telling him
that reconciliation would be impossible. The Court described
the facts of the murder as follows:
At this juncture, the petitioner got out his shotgun and
walked with it down the hill from his home to the trailer
where his mother-in-law lived. Peering through a window, he
observed his wife, his mother-in-law, and his 11-year-old
daughter playing a card game. He pointed the shotgun at his
wife through the window and pulled the trigger. The charge
from the gun struck his wife in the forehead and killed her
instantly. He proceeded into the trailer, striking and
injuring his fleeing daughter with the barrel of the gun. He
then fired the gun at his mother-in-law, striking her in the
head and killing her instantly.
Id. at 425. The Georgia Supreme Court rejected
Godfrey's challenge to the aggravator as
unconstitutionally vague, noting its prior rejection of such
challenges and stating that the evidence supported the
jury's finding of the aggravating circumstances. See
id. at 427.
United States Supreme Court reversed. Although it
acknowledged that in prior cases the Georgia Supreme Court
had applied constitutionally valid narrowing constructions of
the aggravator, it said that there was no evidence that the
Georgia court had applied a narrowing construction in that
case. See id. at 429-32; Lewis, 497 U.S. at
775 (paraphrasing Godfrey). In particular, the state
court had upheld the death sentence even though, in contrast
to prior cases in which the sentence had been upheld, there
was no claim of torture and no evidence that the defendant
had "committed an aggravated battery upon [either
victim] or, in fact, caused either of them to suffer any
physical injury preceding their deaths." 446 U.S. at
432. The prevailing plurality said that there was "no
principled way to distinguish this case, in which the death
penalty was imposed, from the many cases in which it was
not." 446 U.S. at 433; see also id. at 428-29
("a person of ordinary sensibility could fairly
characterize almost every murder as 'outrageously or
wantonly vile, horrible and inhuman.'")
Supreme Court's standard was succinctly stated in
Zant v. Stevens, 462 U.S. 862, 877 (1983):
"[A]n aggravating circumstance must genuinely narrow the
class of persons eligible for the death penalty and must
reasonably justify the imposition of a more severe sentence
on the defendant compared to others found guilty of
murder"; see also Lewis, 497 U.S. at 776
("aggravating circumstances must be construed to permit
the sentencer to make a principled distinction between those
who deserve the death penalty and those who do not").
The Court held that the two aggravating circumstances in that
case (the defendant had escaped from lawful confinement and
had a prior conviction for a capital felony) "adequately
differentiate this case in an objective, evenhanded, and
substantively rational way from the many Georgia murder cases
in which the death penalty may not be imposed." 462 U.S.
particular significance to this appeal is Maynard v.
Cartwright, 486 U.S. 356, 359 (1988), affirming
Cartwright v. Maynard, 822 F.2d 1477 (10th Cir.
1987) (en banc), which considered Oklahoma's HAC
aggravator. The operative language of the aggravator was the
same as for this case-"especially heinous, atrocious, or
cruel." And the jury had been instructed that
"'the term "heinous" means extremely
wicked or shockingly evil; "atrocious" means
outrageously wicked and vile; "cruel" means
pitiless, or designed to inflict a high degree of pain, utter
indifference to, or enjoyment of, the sufferings of
others.'" Cartwright, 822 F.2d at 1488. The
Supreme Court said that in applying the aggravator, the OCCA
"simply had reviewed all the circumstances of the murder
and decided whether the facts made out the aggravating
circumstance." 486 U.S. at 360. It held that the
OCCA's approach did not satisfy the Eighth Amendment (1)
because the statutory language "fail[ed] adequately to
inform juries what they must find to impose the death penalty
and as a result [left] them and appellate courts with the
kind of open-ended discretion which [had been] held invalid
in [Furman], " 486 U.S. at 361- 62, and (2)
because the OCCA had not construed the HAC aggravator in a
manner sufficient "to cure the unfettered discretion of
the jury and to satisfy the commands of the Eighth Amendment,
" id. at 364. "Court precedents, " it
said, "have insisted that the channeling and limiting of
the sentencer's discretion in imposing the death sentence
is a fundamental constitutional requirement for sufficiently
minimizing the risk of wholly arbitrary and capricious
action." Id. at 362. The Court compared the
language of the Oklahoma aggravator to the "outrageously
or wantonly vile, horrible and inhuman" language
considered in Godfrey, where the Court had said:
"There is nothing in these few words, standing alone,
that implies any inherent restraint on the arbitrary and
capricious infliction of the death sentence. A person of
ordinary sensibility could fairly characterize almost every
murder as 'outrageously or wantonly vile, horrible and
inhuman.'" Id. at 363 (internal quotation
marks omitted). The vague language of the aggravator resulted
in there being "no principled way to distinguish this
case, in which the death penalty was imposed, from the many
cases in which it was not." Id. (internal
quotation marks omitted). The Court further rejected
"[t]he State's contention that the addition of the
word 'especially' somehow guides the jury's
discretion, even if the term 'heinous' does
not." Id. at 364. The contention was
"untenable" because "[t]o say that something
is 'especially heinous' merely suggests that the
individual jurors should determine that the murder is more
than just 'heinous, ' whatever that means, and an
ordinary person could honestly believe that every
unjustified, intentional taking of human life is
'especially heinous.'" Id. The Court
indicated, however, that Oklahoma could cure the problem by
providing a limiting construction of the statutory language.
It mentioned that this court had noted cases stating that
imposing a requirement of torture or serious physical abuse
is adequate but the Court left open the possibility that
other limiting instructions could also suffice. See
id. at 364-65.
response to this court's Cartwright opinion, the
OCCA narrowed its construction of the HAC aggravator. It
required that "the murder of the victim [be] preceded by
torture or serious physical abuse, which may include the
infliction of either great physical anguish or extreme mental
cruelty." Cheney v. State, 909 P.2d 74, 80
(Okla. Crim. App. 1995); see Medlock v. Ward, 200
F.3d 1314, 1324 (10th Cir. 2000) (Lucero, J., concurring)
(summarizing Oklahoma law). "Absent evidence of
conscious physical suffering of the victim prior to death,
the required torture or serious physical abuse standard is
not met." Cheney, 909 P.2d at 80 (internal
quotation marks omitted). As for extreme mental cruelty,
"torture creating extreme mental distress must be the
result of intentional acts by the defendant" and
"must produce mental anguish in addition to that which
of necessity accompanies the underlying killing."
the HAC aggravator "contemplates a two-step
analysis." Nuckols v. State, 805 P.2d 672, 674
(Okla. Crim. App. 1991). The first step requires the jury to
determine whether the "death of the victim was preceded
by torture or serious physical abuse." Id.
(internal quotation marks omitted). "Once this
foundational assessment is made, . . . the jury may apply the
definitions given to them . . . to measure whether or not the
crime can be considered to have been heinous, atrocious or
two-step analysis is reflected in the uniform jury
instruction set forth in DeRosa v. State, 89 P.3d
1124 (Okla. Crim. App. 2004), decided after Mr. Pavatt's
trial. The instruction-to "be used in all future capital
murder trials" in which the HAC aggravator is
The State has alleged that the murder was "especially
heinous, atrocious, or cruel." This aggravating
circumstance is not established unless the State proves
beyond a reasonable doubt:
First, that the murder was preceded by either
torture of the victim or serious physical abuse of the
Second, that the facts and circumstances of this
case establish that the murder was heinous, atrocious, or
You are instructed that the term "torture" means
the infliction of either great physical anguish or extreme
mental cruelty. You are further instructed that you
cannot find that "serious physical abuse" or
"great physical anguish" occurred unless you also
find that the victim experienced conscious physical suffering
prior to his/her death.
In addition, you are instructed that the term
"heinous" means extremely wicked or shockingly
evil; the term "atrocious" means outrageously
wicked and vile; and the term "cruel" means
pitiless, designed to inflict a high degree of pain, or utter
indifference to ...