Mitchell v. Ward (150 F. Supp. 2d 1194, 1999)

United States District Court for the Western District of Oklahoma 1999-08-27

Citations

Full opinion text

MEMORANDUM OPINION

RALPH G. THOMPSON, Senior District Judge.

Alfred Brian Mitchell (“Petitioner” or “Mitchell”) petitions the Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner appears through counsel and challenges his convictions and death sentence from the District Court of Oklahoma County, Case No. CRF-91-206. Respondent has responded to the petition and Petitioner has replied. The Court has reviewed the arguments and the law, as well as the state court record. In addition, the Court held an evidentiary hearing on August 6, 1999, during which testimony and exhibits were received and considered.

Petitioner was tried by a jury in June 1992. He was convicted of Count I: murder in the first degree; Count II: robbery with a dangerous weapon; Count III: larceny of an automobile; Count IV: rape in the first degree; and Count V: forcible anal sodomy. The jury recommended a sentence of death for Count I, 30 years imprisonment for Count II, 20 years imprisonment for Count III, 100 years imprisonment for Count IV and 20 years imprisonment for Count V. Petitioner was formally sentenced, in accordance with the jury’s recommendation, on July 10, 1992.

I. Factual Background.

Because 28 U.S.C. § 2254(e)(1) requires that this Court that presume all factual issues determined by the Oklahoma Court of Criminal Appeals are correct, the findings of the Oklahoma Court of Criminal Appeals will be relied upon as the factual background for this Memorandum Opinion. The following quoted factual background is from the Oklahoma Court of Criminal Appeals’ opinion on Petitioner’s direct appeal. Additional factual information is provided throughout this memorandum in connection with the legal issues to which the facts are relevant.

Mitchell was released from the Lloyd Rader Center juvenile correctional facility when he reached his 18th birthday on December 23, 1990. He returned to his family home in Oklahoma City, near the Pilot Recreation Community Center (“Center”). The Center served disadvantaged youth in the neighborhood of 1435 N.W. Second Street. Elaine Scott, a student at the University of Oklahoma, volunteered at the Pilot Center and was at work with the Center’s director, Carolyn Ross, on January 7, 1991. The Center’s roof was leaking badly due to earlier heavy rains and ice storms; the Center gym was closed. About 1:35 p.m., as Ross left the Center, she met Mitchell in the hallway. They had a brief discussion during which Ross explained she was leaving but that Scott could show Mitchell the Center library. Allen Biggs, an Oklahoma City (“City”) municipal roofing crew supervisor, arrived at the Center about 1:45 to check on the roof leaks. Mitchell met Biggs at the door and told him they were cleaning bathrooms, the Center was closed, and that a City crew had already placed trash buckets under the gym roof leaks. Biggs testified he felt Mitchell did not want him to enter the Center. Between 1:00 and 2:00 p.m., Velma Kibbey saw a black man in a red knit cap leave the Center in Scott’s car. Jessie Richards and another City worker reached the Center about 2:20; they entered the deserted Center, went straight to the gym, and spent about half an hour mopping and setting out buckets. Ross returned about 2:50 p.m. She noticed the door was not properly fastened, called out for Scott, and, through the glass in the office door, saw Scott’s nude body facedown in a pool of blood. Scott’s car was abandoned several blocks away.

During that day’s investigation Billy Tuimalu directed police to Mitchell, saying Mitchell, wearing white tennis shoes and a red or orange cap, had been at the Center that day.

Mitchell v. State, 884 P.2d 1186, 1191-92 (Okla.Crim.App.1994), cert. denied 516 U.S. 827, 116 S.Ct. 95, 133 L.Ed.2d 50 (1995).

II. Procedural History.

Following Petitioner’s sentencing, he filed his direct appeal with the Oklahoma Court of Criminal Appeals. That appeal became at issue on March 11, 1994. The judgment and sentence entered in the trial court was affirmed on October 18, 1994. Mitchell v. State, 884 P.2d at 1186, 1191. The United States Supreme Court denied certiorari on October 2, 1995. See, Mitchell v. Oklahoma, 516 U.S. 827, 116 S.Ct. 95, 133 L.Ed.2d 50 (1995). Petitioner filed his Application for Post-Conviction Relief in the Oklahoma Court of Criminal Appeals on July 1, 1996. His application was denied on February 27, 1997. Mitchell v. State, 934 P.2d 346 (Okla.Crim.App.1997). The Supreme Court denied certiorari on June 23, 1997. See, Mitchell v. Oklahoma, 521 U.S. 1108, 117 S.Ct. 2489, 138 L.Ed.2d 996 (1997).

On August 4, 1997, Petitioner filed his Petition for Writ of Habeas Corpus by a Person in State Custody in this Court. The petition contains eighteen grounds for relief. Petitioner later filed supplemental briefs, advancing three additional grounds for relief. The grounds advanced by Mitchell are:

1. Mr. Mitchell was found competent to stand trial under an unconstitutional standard of proof in violation of the Sixth, Eighth and Fourteenth Amendments;

2. Admission of Mr. Mitchell’s statement into evidence at trial violated his constitutional rights;

3. Mr. Mitchell’s due process rights were violated by the trial court’s instruction which permitted the jury to disregard the police’s failure to record a portion of his statement;

4. Evidence obtained pursuant to search and evidence obtained from blood, hair and saliva should have been suppressed;

5. Mr. Mitchell’s rights to present a defense, to a fair trial, and to a reliable determination of sentence were violated when a police officer was allowed to testify Mr. Mitchell was “disassociating” and Mr. Mitchell was not allowed to introduce contrary testimony;

6. The evidence was insufficient to establish the decedent was sexually assaulted;

7. Mr. Mitchell was denied his Sixth Amendment right to confrontation by the Trial Court’s refusal to permit counsel to impeach the State’s witness, Joyce Gilchrist;

8. Mr. Mitchell’s Sixth Amendment rights were violated when defense counsel was prohibited from cross examining State witness Michael Harjochee about his sexual relationship with the decedent;

9. Prosecutorial misconduct in both stages of trial violated Mr. Mitchell’s rights to a fair and impartial trial under the Fourteenth and Eighth Amendments to the United States Constitution;

10. Mr. Mitchell’s constitutional rights were violated when the trial court refused his requested instructions on lesser-included offenses of manslaughter and murder in the second degree;

11. The “continuing threat” aggravating circumstances is unconstitutionally vague in its statutory definition and in the instructions given to Mr. Mitchell’s jury;

12. The “heinous, atrocious or cruel” aggravating circumstance continues to operate outside constitutional bounds;

13. The “avoid arrest” aggravating circumstance is constitutionally infirm;

14. Fundamental error in the sentencing instructions deprived Mr. Mitchell of his constitutional rights to an individualized sentencing proceeding, to be free from the arbitrary imposition of the death penalty, and to a meaningful appellate review of his death sentence;

15. Admission of the victim impact evidence in this case violated the Ex Post Facto clause and other provisions of the Constitution;

16. Mr. Mitchell’s constitutional rights were violated when the Trial Court refused to give the jury a cautionary instruction on informer testimony as requested by the defense;

17. The Trial Court’s denial of Mr. Mitchell’s request for allocution violated his constitutional rights under the Sixth, Eighth, and Fourteenth Amendments;

18. The Trial Court erred in not granting the defense motion to quash the jury panel where certain cognizable classes of citizens were directly or indirectly excluded from the pool of jurors in violation of the Constitution.

19. Mitchell’s nineteenth ground is contained in a supplemental brief, filed on May 26, 1998. Mitchell did not title this ground for relief, but it is based on the argument that the State violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) when it did not disclose exculpatory information regarding the rape and sodomy charges.

20. Sentencing evidence was double counted improperly in support of two aggravating circumstances.

21. The sentencing jury was not informed adequately of the meaning of the life without parole sentencing option, in violation of Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187 (1994).

III. Application of the AEDPA to the . Review of the State Court Decision.

The AEDPA Applies to the Present Case. The Antiterrorism and Effective Death Penalty Act of 1996 (the “AEDPA”) became law on April 24, 1996. The AED-PA significantly changed 28 U.S.C. § 2254, which governs the scope of this Court’s review of the Oklahoma Court of Criminal Appeals’ findings and decision.

Petitioner argues that, because the alleged constitutional violations for which he seeks relief occurred prior to April 24, 1996, and because he filed his appeal in the Oklahoma Court of Criminal Appeals prior to April 24, 1996, the AEDPA does not apply to his case. Respondent claims that, because Petitioner’s petition was filed after the effective date of the AEDPA, the AEDPA governs this Court’s review and decision. Although Respondent cites no law in support of his claim in this regard, the United States Supreme Court’s opinion in Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), clearly supports Respondent’s argument.

In Lindh, the Supreme Court decided the AEDPA does not apply to federal ha-beas cases which were pending at the time the act was passed. In the course of its discussion and decision on this issue, the Court repeatedly noted that the provisions of the AEDPA apply to habeas cases filed after the AEDPA took effect. Id. at 326, 327, 334, 117 S.Ct. 2059. Thus, there is no question that the provisions of the AEDPA guide and govern this Court’s decision on the issues raised by Petitioner. See also, LaFevers v. Gibson, 182 F.3d 705 (10th Cir.1999).

The Effect of the AEDPA. Section 2254(d) provides the standards for this Court’s review of the Court of Criminal Appeals’ decision and now provides:

(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; or

(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.

While many of the circuit courts have extensively analyzed the AEDPA and reached various conclusions, the Supreme Court has not yet addressed the interpretation and application of the AEDPA. The Supreme Court has, however, granted certiorari on the issue. See, Williams v. Taylor, 163 F.3d 860 (4th Cir.1998), cert. granted, 526 U.S. 1050, 119 S.Ct. 1355, 143 L.Ed.2d 516 (1999).

Although the Tenth Circuit has been reluctant to address the interpretation and application of the AEDPA, a panel of the court recently provided some guidance in LaFevers v. Gibson. There, the Court of Appeals held:

A state court decision is “contrary to, or involves an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” if: (1) the state court decision is in square conflict with Supreme Court precedent which is controlling on law and fact or (2) if its decision rests upon an objectively unreasonable application of Supreme Court precedent to new facts. Quite simply, the “AED-PA increases the deference to be paid by the federal courts to the state court’s factual findings and legal determinations.” Houchin v. Zavaras, 107 F.3d 1465, 1470 (10th Cir.1997).

LaFevers, 182 F.3d 705, 711.

With these guidelines in mind, this Court will attempt to apply the mandates of Section 2254(d) in the present case.

IV. Grounds for Relief.

A. Constitutionality of Finding of Competency to Stand Trial.

Petitioner raises as his first ground for relief a claim that he was deemed competent to stand trial under an unconstitutional standard. In addition, he claims that, when his competency was evaluated, he was being inappropriately 'medicated with anti-psychotic drugs. Mitchell argues that the fact that he was medicated renders the results of the competency examination wholly unreliable.

The Competency Determination. On April 29,1991, nearly four (4) months after Petitioner’s arrest, the trial court entered an order requiring that Petitioner’s competency be evaluated. The trial court’s order includes a determination

that there is a doubt as to the present competency of the said Defendant by reason of personal observation of the Defendant by this Court, and testimony regarding Defendant’s ability to understand the proceedings against the Defendant and the Defendant’s capability of aiding his attorney in preparation for trial.

O.R. 51. The trial court therefore ordered that the Petitioner be examined to determine (1) whether he was able to appreciate the nature of the charges filed against him; (2) whether he was able to consult with his attorney and rationally assist in the preparation of his defense; (3) if the answer to either of the previous questions was no, whether the Petitioner could attain competency within a reasonable time if provided with a course of treatment, therapy or training; (4) whether the Petitioner was a mentally ill person or a person requiring treatment as defined in 43A O.S. § 3; and (5) if the Petitioner was released without treatment, therapy or training, would he probably pose a significant threat to the life or safety of himself or others. O.R. 52.

On July 3, 1991, the trial court held a post-examination competency hearing, during which the court noted that it had received a report from Kelly Shannon, Ph.D. 7/3/91 Trans., p. 3. The court invited Mitchell to call his first witness, at which time Mitchell’s counsel stated “basically, Judge, we agree with the findings of Dr. Shannon that Brian Mitchell is presently competent and can be — have criminal proceedings against him resumed.” Id. The court then addressed Petitioner and asked: “Mr. Mitchell, you’ve heard comments made by your counsel. Do you agree with those comments?” Id. Petitioner responded: “Yes.” Id. No evidence was presented by Mitchell during this hearing. After reviewing Dr. Shannon’s report on the record, the trial court entered its Order to Resume Proceedings, which states “there is no doubt as to the defendant’s competency.” Id., pp. 4-5; O.R. 73.

The Supreme Court’s Decision in Cooper v. Oklahoma. At the time Petitioner’s competency hearing was held, Oklahoma law required criminal defendants to prove their incompetence to stand trial by “clear and convincing evidence.” 22 O.S. § 1175.4(B). The Supreme Court decided Cooper v. Oklahoma, 517 U.S. 348, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996), after Petitioner was convicted and his direct appeal had been filed. In Cooper, the Supreme Court held Oklahoma’s requirement that a criminal defendant prove a claim of incompetency by clear and convincing evidence violated the right to due process under the Fourteenth Amendment. As a result, the burden of proof applicable at the time the trial court deemed Mitchell competent to stand trial was unconstitutional.

If an incorrect standard of proof was used to determine competency in state court, the court’s determination is not entitled to a presumption of correctness. This situation would be analogous to Mitchell having had no competency hearing at all. Walker v. Attorney General, 167 F.3d 1339, 1345 (10th Cir.1999); Barnett v. Hargett, 174 F.3d 1128, 1135 (10th Cir.1999). If Mitchell had no competency hearing at all, he would be entitled to relief only if he demonstrated “that the trial court ignored facts which raised a ‘bona fide doubt’ regarding [his] competency to stand trial.” Rogers v. Gibson, 173 F.3d 1278, 1290 (10th Cir.1999) (citing Walker). Considerations in this inquiry include “evidence of a defendant’s irrational behavior, his demeanor at trial, and any prior medical opinion on his competence to stand trial.” Id.

Procedural Bar. Respondent chose not to respond to the merits of Petitioner’s claim. Rather, Respondent argues only that Petitioner’s claims are procedurally barred.

A procedural bar applies to, and habeas relief is generally unavailable for, federal claims “defaulted in state court on an adequate and independent state ground.” Barnett, 174 F.3d at 1134. “The law of procedural defaults thus applies to preclude federal habeas review of claims that have not been adjudicated on the merits by a state court because of noncompliance with a state procedural rule.” Brecheen v. Reynolds, 41 F.3d 1343, 1354 (10th Cir.1994).

The Oklahoma Court of Criminal Appeals considered this claim on post-conviction and, contrary to Respondent’s argument, did not apply a procedural bar. Rather, the court simply declined to consider Mitchell’s claim that the clear and convincing standard applied in the trial court’s competency determination violated his right to due process. The Court of Criminal Appeals did not determine that Mitchell had not complied with state law. The court simply refused to apply the Supreme Court’s holding in Cooper in the case before it: “We decline to apply Cooper retroactively on post-conviction review. This proposition is denied.” Mitchell, 934 P.2d at 349. In support of this statement, the court cited its opinion in Walker v. State, 933 P.2d 327 (Okla.Crim.App.1997), where it held that a similar claim, grounded on the Supreme Court’s Cooper decision, was procedurally barred.

The Court of Criminal Appeals gave no indication that Mitchell’s claim was denied because Mitchell defaulted on an adequate and independent state ground. In fact, the court’s indication is to the contrary. While the court gave no reason for its refusal to apply the Cooper decision to the case before it, the court stated it would not consider issues which were raised on direct appeal and therefore barred by res judica-ta or were not raised on direct appeal, but could have been, and were therefore waived. The court specifically discussed a number of issues in these categories, but did not mention the issue of Mitchell’s competency determination. Mitchell, 934 P.2d at 348.

Furthermore, the Tenth Circuit Court of Appeals recently held that the Court of Criminal Appeals’ application of a procedural bar in Walker was incorrect. The Tenth Circuit determined that Walker was “not procedurally barred from seeking habeas relief on his Cooper claim by his failure to raise it in his first state post-conviction petition.” Walker v. Attorney General, 167 F.3d 1339, 1345 (10th Cir.1999). Even if the Court of Criminal Appeals had applied a procedural bar to Mitchell’s claim, which is based on the same grounds as was Walker’s, the procedural bar would not be valid. See, Barnett, 174 F.3d at 1134-35.

The Merits of Mitchell’s Claim. Mitchell’s claim that he was denied his right to a competency hearing because an unconstitutional burden of proof is unpersuasive in light of the facts. Mitchell cannot identify any evidence which raises bona fide doubt regarding his competency to stand trial and which was ignored by the trial court. He presented no evidence supporting his claim of incompetency in the trial court. The trial court, therefore, could not have applied an unconstitutional burden of proof in the competency determination. No weighing or evaluation of the evidence was necessary. Mitchell was examined by a doctor and determined competent. Mitchell agreed with the competency report presented by the state. He presented no evidence of irrational behavior. This Court has thoroughly reviewed the transcripts of the preliminary hearing, the trial, and the sentencing in this matter. Mitchell testified during each phase. There is no indication, either in Mitchell’s testimony or from any statements by trial counsel, that Mitchell did not fully understand the proceedings against him or was not able to assist in his defense. Mitchell’s conduct at trial and his sentencing appears from the record to have been appropriate.

In a belated attempt to support his procedural competency claim, Mitchell claims he was medicated with anti-psychotic drugs during an eleven-month period, ending approximately seven months before his trial. Notably, however, the lawyer/psychiatrist who presented an affidavit in support of this claim does not state that his research and examination of Mitchell indicates Mitchell was incompetent at the time of trial.

There is no indication in the record, or in Mitchell’s briefs filed in this Court, that Mitchell’s trial counsel or the trial court had any question regarding his competency at any time after the competency hearing. Mitchell did not request a second competency hearing at any time during the year between the competency hearing in July 1991 and the trial in June 1992. Mitchell has failed to present any evidence to this Court which indicates “that the trial court ignored facts which raised a ‘bona fide doubt’ regarding his competency to stand trial.” Habeas relief on this ground is therefore denied.

B. Constitutionality of Interrogation and Validity of Confession.

Petitioner bases his second ground for relief on his interrogation by the police and resulting statement/confession. Petitioner claims that he requested an attorney after the police placed him in custody, but his request was denied. Police and the respondent have steadfastly maintained that Petitioner was not a suspect when his interrogation began and when he was Mirandized. Petitioner became a suspect at about the half-way point in the daylong interrogation. Although the officers told Petitioner he was in custody at that point, he was not re-Mirandized. Petitioner argues that this failure to give a Miranda warning after he was placed in custody renders all statements and evidence obtained via the subsequent interrogation inadmissible. Finally, Petitioner argues his confession was involuntary because of the totality of the circumstances which surrounded it.

The Interrogation and Confession. Mitchell initially spoke with Oklahoma City Police Detective Maddox and Sergeant Paige the day of the murder. Trans., Jackson v. Denno hearing, 6/12/92, p. 35. During the conversations he had with the officers,

Mitchell confirmed that he had been [at the Center] and told police he had seen two older black men at the Center “messing with” Scott. Mitchell accompanied police to the Oklahoma City Police Department drunk tank and various homeless shelters, trying to identify the men. Mitchell denied being in the Center’s office, gave the officers his white Troop tennis shoes for testing, and agreed to come with his mother to the police station the next morning to give a formal statement and further descriptions of the men. At Mitchell’s request, officers transported the two to the station on January 8. While his mother waited, Mitchell waived his Miranda rights, repeated his information from the previous day, then over several hours gave several stories to the officers. These stories culminated in admissions of presence at the scene and guilt which stopped short of confessing to murder; Mitchell insisted that another man who acted with him had killed Scott and denied any sexual acts. Forensic evidence connecting Mitchell to the crime included: (1) bloody footprints matching his tennis shoes (from Scott’s blood), (2) hair and fiber evidence, (3) sperm and various types of blood evidence. Mitchell’s finger had a recent injury, and he admitted injuring it at the scene.

Mitchell’s January 8 statements began at about 11:00 a.m. and were videotaped. The first tape, which is four hours long, ends abruptly as Mitchell and Officer Maddox discuss body sample and search waivers. The second tape begins with Mitchell’s final story regarding the events at the Center. Testimony at trial and in the Jackson-Denno hearing estimated a gap of perhaps 45 minutes between the two, during which a forensic chemist obtained body samples from and three officers had a brief conversation with Mitchell.

Although he was given, and waived, his Miranda rights at the outset, the record shows that Mitchell was not a suspect when questioning began. Over the course of the first tape his status changed as his stories kept changing and as officers became aware of forensic evidence linking Mitchell to the scene. Near the end of the first tape Maddox told Mitchell that although he was still considered a witness he was too involved to be allowed to leave and would be jailed in connection with the homicide. Maddox and Mitchell’s testimony agreed that, after that tape ended, Mitchell asked, “Do I need an attorney?” or “Do you think I need an attorney?” Maddox testified he replied that the decision was Mitchell’s and he could not advise him. Mitchell’s Jackson-Denno testimony was that Maddox told him he did not need an .attorney because they would work out a deal; at trial he testified Maddox told him he did not need an attorney because he was too deep in the crime.

Mitchell v. State, 884 P.2d at 1192-93.

Validity of Claimed Request for Counsel During Interrogation. Petitioner argues that his question to the officers “Do I need an attorney” or “Do you think I need an attorney” constituted a request for counsel which required that the officers cease questioning until he was provided an attorney. Petitioner claims that, because he was denied his right to counsel, the evidence obtained after the request (his videotaped testimony/confession as well as samples of his hair and saliva) were inadmissable at trial.

The Oklahoma Court of Criminal Appeals addressed Mitchell’s argument on his direct appeal. The court, relying on a decision of the Supreme Court, rejected Mitchell’s claim:

The Supreme Court has recently held that after a knowing and voluntary waiver of Miranda rights, law enforcement officers may continue questioning through equivocal statements until a suspect clearly requests an attorney; although the [Supreme] Court suggests it is good police practice to clarify any equivocal statement, this is not required. We need not reach this issue as Mitchell’s statement does not rise to the level of an equivocal request for counsel.

Mitchell’s question “Do I need an attorney?” is not a request for counsel. Under certain circumstances this question could amount to a request for counsel— if the defendant is young, inexperienced or unfamiliar with the criminal justice system, of low intelligence, mentally disabled or ill, or overwhelmingly upset or overwrought. None of those concerns are relevant here. Mitchell had just turned 18 but he was familiar with the criminal justice system through the juvenile courts. He was twice picked up for offenses before his arrest and adjudication on the rape charge, he had the benefit of counsel for that charge, and he had been given Miranda warnings at that time. His taped statements clearly indicate that he was in over his head during questioning. However, his statements do not support his claim that he wanted a lawyer or that he did not wish to continue talking when he made the statements on the second tape. Trial testimony showed Mitchell is of at least average intelligence, has completed his GED, and has some writing ability. There was no indication of mental problems. The circumstances here indicate that the statement was neither equivocal nor ambiguous, was certainly not an unequivocal request for counsel, and did not invoke Mitchell’s right to counsel.

Mitchell, 884 P.2d at 1193.

Federal Law as Determined by the Supreme Court. In Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994), the Supreme Court announced the standard on which the Oklahoma Court of Criminal Appeals relied in its decision. The Supreme Court held:

[I]f a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning .... Rather, the suspect must unambiguously request counsel. As we have observed, “a statement either is such an assertion of the right to counsel or it is not.” .... [The suspect] must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. If the statement fails to meet the requisite level of clarity, Edwards[ v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981)] does not require that officers stop questioning the suspect.

Of course, when a suspect makes an ambiguous or equivocal statement it will often be good police practice for the interviewing officers to clarify whether or not he actually wants an attorney .... But we decline to adopt a rule requiring officers to ask clarifying questions. If the suspect’s statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him.

Id. at 459, 461-62, 114 S.Ct. 2350.

As the Court of Criminal Appeals recognized, it would have been good practice for the officers to clarify Petitioner’s ambiguous request for counsel. The Supreme Court has, however, clearly decided that such a practice is not required. As a result, the Court of Criminal Appeals’ decision was not contrary to, or an unreasonable application of, federal law as determined by the Supreme Court. Petitioner’s claim in this regard is without merit and habeas relief on this ground is denied.

Effect of Officers’ Failure to Re-Mir-andize Petitioner After He was Placed in Custody. Despite the fact that he was not a suspect, and was not in custody, Petitioner was informed of his Miranda rights when he was taken to the police station on the morning of January 8, 1991. He was presented with a document titled “INTERROGATION ADVICE OF YOUR RIGHTS,” which he signed before the interrogation began. Trans. Jackson v. Denno hearing, 6/12/92, pp. 49-51; State’s Ex. 1. He was not reminded of those rights at any other time during the interrogation on January 8 — even after he unquestionably became a suspect and even after the interrogation changed from a non-custodial to a custodial interrogation, in the eyes of the interrogators. Petitioner now argues that he was required to be informed of his Miranda rights again after he had been questioned for several hours and was told he would not be allowed to leave the police station.

Court of Appeals’ Decision. The Court of Criminal Appeals did not address this issue on the merits, as it was not raised in Petitioner’s direct appeal. On post-conviction, the court determined the issue was procedurally barred as a result of Mitchell’s failure to raise it on direct appeal. Mitchell, 934 P.2d at 348, n. 9. In applying the procedural bar, the Court of Criminal Appeals relied on the Oklahoma Post Conviction Procedure Act which was amended after Mitchell’s direct appeal was filed. The court held:

Under Oklahoma’s post-conviction statutes, the only issues that can be raised on post-conviction are those which: “(1) [w]ere not and could not have been raised in a direct appeal; and (2)[s]up-port a conclusion either that the outcome of the trial would have been different but for the errors or that the defendant is factually innocent.” 22 O.S. Supp.1995, § 1089(C). On review, this Court must determine: “(1) whether controverted, previously unresolved factual issues material to the legality of the applicant’s confinement exist; (2) whether the applicant’s grounds were or could have been previously raised; and (3) whether relief may be granted ....” 22 O.S. Supp.1995, § 1089(D)(4)(a). The Post-Conviction Procedure Act is not intended to provide a second appeal. This Court will not consider an issue which was raised on direct appeal and is therefore barred by res judicata, nor will we consider an issue which has been waived because it could have been raised on direct appeal but was not. We will not address Mitchell’s propositions which are barred by waiver or res judicata

Id. at 348 (internal citations to cases omitted). The court determined the present issue was waived because it “could have been raised on direct appeal.” Id. at 348, n. 9.

Procedural Bar. As previously-discussed, a procedural bar may be applied only where “the procedural rule used to bar consideration of a claim [has] been ‘firmly established and regularly followed’ by the time as of which it is to be applied.” Walker, 167 F.3d at 1344 (citations omitted). While the Court of Criminal Appeals cited and quoted the amended Post Conviction Procedures Act in support of its application of the procedural bar in the present case, the rule on which it relied has long been “firmly established and regularly followed.” The Oklahoma Court of Criminal Appeals has consistently refused to consider claims first raised on post-conviction which could have been raised on direct appeal or in a previous post-conviction proceeding. See, 22 O.S. § 1086; Harrell v. State, 493 P.2d 461 (Okla.Crim.App.1972) (court could not grant post conviction relief where application raised no issue which could not have been raised on direct appeal and no constitutional issues); Coleman v. State, 693 P.2d 4, 5 (Okla.Crim.App.1984) (“res judicata bars consideration in post-conviction proceedings of issues which have been or could have been raised on direct appeal.”); Banks v. State, 810 P.2d 1286 (Okla.Crim.App.1991) (propositions waived because they could have been raised on appeal or on the first post-conviction application (citing 22 O.S. § 1086)); Rojem v. State, 829 P.2d 683 (Okla.Crim.App.1992) (issues which could have been raised on direct appeal, but were not, are waived (citing 22 O.S. § 1086)); Mann v. State, 856 P.2d 992 (Okla.Crim.App.1993) (same). The rule applied by the Court of Criminal Appeals is therefore adequate. Moore v. Reynolds, 153 F.3d 1086, 1097 (10th Cir.1998).

This Court is of the opinion that the Tenth Circuit-Court of Appeals’ decision in Walker is distinguishable from and inapplicable to the present procedural bar analysis. In Walker, the Court of Appeals reversed the application of a procedural bar because the bar arose from the amended Post Conviction Procedures Act. The Court noted:

A defendant cannot be expected to comply with a procedural rule that does not exist at the time, and should not be deprived of a claim for failing to comply with a rule that only comes into being after the time for compliance has passed.

Walker, 167 F.3d at 1345 (citations omitted). The present situation is distinguishable. While the Court of Criminal Appeals in Mitchell cited only the amended act in support of its application of the procedural bar, the amended act did not change the law. In contrast to Walker, the procedural rule on which the Court of Criminal Appeals relied in Mitchell existed at the time the direct appeal was filed.

Mitchell’s claim that he should have been re-Mirandized after he was actually placed in custody is procedurally barred.

Ineffective Assistance of Counsel. Anticipating the validity of the procedural bar applied by the Court of Criminal Appeals, Petitioner argues that he may nevertheless proceed with his claim because it was waived due to the ineffectiveness of his counsel. He claims the failure of his counsel to raise the issue on direct appeal demonstrates cause and prejudice sufficient to overcome the procedural bar. The Court of Criminal Appeals considered and denied Mitchell’s claim of ineffective assistance of appellate counsel on the merits. Mitchell, 934 P.2d at 348 n. 9, 350-51.

“A habeas petitioner may establish cause for his procedural default by showing that he received ineffective assistance of counsel in violation of the Sixth Amendment.” Banks v. Reynolds, 54 F.3d 1508, 1514 (10th Cir.1995), citing Murray v. Carrier, 477 U.S. 478, 488-89, 106 S.Ct. 2639, 2645-46, 91 L.Ed.2d 397 (1986); United States v. Cook, 45 F.3d 388, 392 (10th Cir.1995); Hardiman v. Reynolds, 971 F.2d 500, 505-06 (10th Cir.1992).

A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a .conviction or death sentence has two components. First, the defendant must show that his counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). To show that a trial result is not reliable, the defendant must “show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. at 2067.

If the defendant cannot meet the burden of proving the result of his trial would have been different but for the alleged error, it is not necessary to determine whether counsel’s performance was deficient. “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” Id. at 697, 104 S.Ct. at 2069.

Because, as is discussed below, Petitioner’s underlying claim lacks merit, Petitioner’s ineffective assistance claim is also without merit. Petitioner was not prejudiced by his counsel’s failure to raise a meritless claim.

The Merits of Petitioner’s Argument. Petitioner relies on the Supreme Court’s Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), decision to support his argument that he was entitled to a second Miranda warning after he was placed in custody. Miranda does not, however, extend as far as Petitioner would like. Miranda requires

the exclusion of incriminating statements obtained during custodial interrogation unless the suspect fails to claim the Fifth Amendment privilege after being suitably warned of his right to remain silent and of the consequences of his failure to assert it.

Minnesota v. Murphy, 465 U.S. 420, 430, 104 S.Ct. 1136, 1144, 79 L.Ed.2d 409 (1984).

The Supreme Court has recognized that there are competing, compelling interests at play when a suspect is subjected to a custodial interrogation. Admissions of guilt are “essential to society’s compelling interest in finding, convicting, and punishing those who violate the law.” Moran v. Burbine, 475 U.S. 412, 426, 106 S.Ct. 1135, 1143, 89 L.Ed.2d 410 (1986). On the other hand, a suspect is entitled to protection from the risk that “police will inadvertently traverse the fine line between legitimate efforts to elicit admissions and constitutionally impermissible compulsion.” Id. (citations omitted). A suspect’s Fifth Amendment right is adequately protected if the suspect adequately understands that, at any time, he can bring a proceeding to a halt or, short of that, call in an attorney to give advice and monitor the conduct of his interrogators. Id., 475 U.S. at 426-27, 106 S.Ct. at 1144. “[F]ull comprehension of the rights to remain silent and request an attorney are sufficient to dispel whatever coercion is inherent in the interrogation process _” Id., 475 U.S. at 427, 106 S.Ct. at 1144.

In support of his argument, Petitioner relies on various decisions which hold that Miranda warnings are not required until a suspect is placed in custody. See, U.S. v. Hocking, 860 F.2d 769 (7th Cir.1988); U.S. v. Feather, 801 F.2d 157 (4th Cir.1986); U.S. v. Flitcraft, 868 F.2d 842 (5th Cir.1988). These cases do not, however, go so far as to be helpful to Petitioner. Petitioner has not cited, and this Court has been unable to find, any case which requires a person in Petitioner’s situation to be re-Mirandized.

Mitchell was given, and waived, his Miranda rights before he was questioned, but before he was technically in custody. Mitchell, 884 P.2d at 1192. He was questioned for several hours. Id. Officers then told Mitchell he would not be released, but would be jailed in connection with the homicide. Id. There was no break in the questioning, no reason Petitioner would be under the impression that the rights' of which he had been informed, and which he had waived, a few hours earlier were not still applicable and available to him. The requirement that Mitchell be informed of his rights and given the opportunity to exercise them or waive them was met in this case.

Voluntariness of Statement. In his third claim regarding his statement/confession, Mitchell argues his confession was not freely and voluntarily given. In rejecting this claim, the Oklahoma Court of Criminal Appeals stated:

In proposition three Mitchell claims the trial court erred in finding Mitchell’s confessions were knowingly, intelligently and voluntarily given and in permitting the jury to hear evidence of the confessions. The proposition seems to go only to that portion of the confession taped after Mitchell asked if he needed an attorney. During the second tape Mitchell abandoned his story of two black men who did everything, and admitted participation in a robbery and assault on Scott, while insisting that another man (not mentioned in the first tape) bore the greater responsibility and delivered the fatal blows. Insofar as the proposition relies on the theory that Mitchell requested counsel before the second taped statement, it must fail.

Mitchell also argues more generally that his confession was the product of coercion. A confession is voluntary if it is the product of the maker’s free and unconstrained choice, and courts should look to the totality of the circumstances surrounding the confession, including the character of the defendant and the details of the interrogation. The trial court must determine whether a defendant actually invoked his right to counsel; if so, any response to further questioning will be admissible only if the defendant initiated further discussion and knowingly and intelligently waived the right he had invoked.

Mitchell did not invoke Ms right to counsel between the first and second taped statements, nor did he request counsel when he was informed of his Miranda rights before questioning began. Mitchell concedes that when he was read his rights, signed a waiver, and agreed to talk to police, he was not a suspect and was free to leave. As the interview progressed Maddox asked Mitchell at least twice if he wanted time to think, and left Mitchell alone in the interview rooms two or three times. Mitchell always insisted he did not want time to think. He persisted in giving the officers explanations and became angry when they would not let him finish or interrupted him. Several times he said he did not know or understand what the officers wanted, but this was always in response to their comments that they believed he was lying. Although Mitchell’s demean- or is somewhat more subdued on the second tape, it is much shorter than the first and his moods changed throughout the course of the first tape.

Mitchell’s argument must finally fail because he cites no instances of coercion, relying only on a picture of a pitifully confused defendant. Even were this description correct, any confession is voluntary absent coercion. Mitchell’s worst accusation here appears to be continued interrogation. This simply is not coercion and cannot be used to support this claim.

Mitchell, 884 P.2d at 1194-95.

Petitioner argues that the Court of Criminal Appeals’ interpretation and determination of the facts relating to his voluntariness claim are inaccurate. Petitioner relies on his interpretation of the facts presented with his post-conviction application and claims that the facts, as interpreted by him, support a conclusion that his confession was not voluntary. Petitioner’s personal rendition of the facts is not enough, however, to rebut the presumption that the Court of Criminal Appeals’ determination of the facts is correct. 28 U.S.C. § 2254(e)(1). Mitchell bears the burden of rebutting the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Mitchell’s argument that the Court of Criminal Appeals is wrong, with nothing more than an alternate interpretation, does not meet this burden.

This Court is not free to re-evaluate the facts and second-guess the Oklahoma Court of Criminal Appeals’ factual determination, as Petitioner urges. Petitioner cites no Supreme Court case which is controlling on law and fact. This Court cannot say, and, in fact, Petitioner does not argue, that the Court of Criminal Appeals’ decision is contrary to, or involves an unreasonable application of, Federal law as determined by the Supreme Court. Habe-as relief on this ground is denied.

C. Constitutionality of Jury Instruction Excusing the Police Failure to Record a Portion of Petitioner’s Custodial Interrogation.

The police officers interrogated Mitchell for several hours on January 8, 1991. All but about 45 minutes of the interrogation was videotaped. Trans. Jackson v. Denno hearing, 6/12/92, pp. 100-101. Petitioner bases his third ground for relief on a claim that his due process rights were violated by the jury instruction excusing the police failure to videotape this segment of the interrogation. The jury was instructed:

You are instructed that there is no duty upon law enforcement officials to videotape statements or interviews between subjects and law enforcement officers.

O.R. 402. Petitioner claims that the trial court erred in giving this instruction. Petitioner’s argument is grounded on his interpretation of the facts and Oklahoma law. Petitioner claims the jury instruction violated his “rights to due process under the Fifth and Fourteenth Amendments to the United States Constitution.”

Procedural Bar. On post-conviction, the Oklahoma Court of Criminal Appeals determined this claim was procedurally barred as a result of Mitchell’s failure to present it in his direct appeal. Mitchell, 934 P.2d at 348. Mitchell does not argue the claim is not procedurally barred but, instead, focuses on his claim of ineffective assistance of counsel based on counsel’s failure to raise the claim on direct appeal.

Initially, this Court holds that the Oklahoma Court of Criminal Appeals’ application of the procedural bar was proper, based on the analysis at pages 18-19, above.

Ineffective Assistance of Counsel. The Oklahoma Court of Criminal Appeals addressed the merits of Mitchell’s claim that the failure to raise the present issue on appeal constituted ineffective assistance of counsel. The court determined the claim was without merit. Mitchell, 934 P.2d at 346.

Again, this Court’s assessment of the ineffective assistance of counsel claim can be made by determining whether Mitchell was prejudiced as a result of his counsel’s alleged ineffectiveness. Because, as is explained below, Petitioner’s underlying argument is without merit, his ineffective assistance of counsel claim must fail.

The Merits of Petitioner’s Argument. A petitioner in a habeas proceeding attacking a state court judgment on the basis of an erroneous jury instruction has a great burden. Maes v. Thomas, 46 F.3d 979 (10th Cir.1995).

A state conviction may only be set aside in a habeas proceeding on the basis of erroneous jury instructions when the errors had the effect of rendering the trial so fundamentally unfair as to cause a denial of a fair trial.

Id. at 984 (quotation marks and citations omitted); see also, Nguyen v. Reynolds, 131 F.3d 1340, 1357 (10th Cir.1997), cert. denied, 525 U.S. 852, 119 S.Ct. 128, 142 L.Ed.2d 103 (1998).

“The burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court’s judgment is even greater than the showing required to establish plain error on direct appeal.” Henderson v. Kibbe, 431 U.S. 145, 153, 97 S.Ct. 1730, 1737, 52 L.Ed.2d 203 (1977). The question is whether the instruction complained of “by itself so infected the entire trial that the resulting conviction violates due process, not merely whether the instruction is undesirable, erroneous, or even ‘universally condemned.’ ” Id. (quoting Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973)). The fact that the instruction was allegedly incorrect under state law is not a basis for habeas relief. Estelle v. McGuire, 502 U.S. 62, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). Federal courts are not free to grant habe-as relief simply because an instruction was based on an incorrect interpretation or application of state law. Id.

Petitioner claims the jury instruction at issue was an improper statement of Oklahoma law. Even if true, such an argument does not help Petitioner here. Although Petitioner claims that “the obvious effect” of the jury instruction was to undermine “any confidence that Mr. Mitchell received a fair, reliable, and constitutional trial,” he cites no law which supports this statement. Despite the Respondent’s failure to address the merits of Petitioner’s claim at all, Petitioner is unable to meet the formidable burden with which he is faced. It certainly cannot be said that the challenged instruction deprived him of a fair trial or deprived him of due process of law. The instruction was not in square conflict with Supreme Court precedent which is controlling on law and fact, and was not an objectively unreasonable application of existing precedent to new facts. Habeas relief on this ground must therefore be denied.

D. Validity of Waiver Through Which Police Obtained Blood, Hair and Saliva Evidence.

Petitioner signed a document titled “Oklahoma City Police Department Waiver of Search of Body” on January 8, 1991. State Ex. 2. By Mitchell’s own admission, he signed the waiver voluntarily. Tr. Trans., p. 1286. Police then obtained blood, saliva and hair samples from Petitioner which were used by the State at trial. Petitioner claims he consented to the search and to allow the police to obtain the samples after he made his request for counsel. Therefore, Petitioner claims, the search violated his constitutional rights and the evidence obtained via the search should have been suppressed.

The Oklahoma Court of Criminal Appeals’ Decision. The Court of Criminal Appeals rejected this argument on Mitchell’s direct appeal:

Mitchell claims that because the body samples were taken and search waiver signed after his question, “Do I need an attorney?”, the search evidence should be suppressed .... The question at issue did not invoke Mitchell’s right to counsel, therefore his subsequent waiver and consent were not tainted and this proposition must fail.

Mitchell, 884 P.2d at 1193-94.

For the reasons set forth at section IV(B), above, this Court rejects Mitchell’s argument, as well. Habeas relief on this ground is denied.

E. Police Officer’s Testimony Regarding “Disassociation” and Trial Court’s Refusal to Allow Mitchell to Present Rebuttal Testimony ¡Evidence.

The Factual Background and Court of Criminal Appeals’ Decision. During the officers’ interrogation of Mitchell, Mitchell “told a series of stories in which he admitted watching some of the violence at the scene. Officer Maddox told Mitchell he believed Mitchell was experiencing disassociation ....” Mitchell, 884 P.2d at 1197. Maddox believed Mitchell was disassociating because he was relating an experience in which he had participated as though he had been a witness, rather than a participant. Id. “At trial Maddox reiterated the definition of disassociation and explained why he believed Mitchell was disassociating during questioning.” Id.

The Oklahoma Court of Criminal Appeals presented the following analysis of this testimony:

Mitchell now claims that this amounted to a lay person giving a medical diagnosis and was thus improper. This contention is unpersuasive. Even if it had merit, Mitchell did not raise this objection at trial: he objected vigorously on the grounds that Maddox was improperly bolstering the taped statements and asked that he be allowed to present his own witness who could interpret Mitchell’s body language on the videotape. When a defendant objects on a specific ground at trial, this Court will not entertain an objection on appeal which differs from the trial objection.

Mitchell’s claim in proposition nine fails with the previous argument. Mitchell argues the trial court erred in not allowing him to offer evidence to rebut the testimony of Officer Maddox concerning Mitchell’s alleged psychological “disassociation”. In the first stage, Mitchell wanted to call a developmental psychologist, Wanda Draper, to interpret his attitude and body language and the interview mechanisms throughout the course of the tapes. During an ex parte hearing the trial court correctly told counsel this evidence was inadmissible in the first stage as it would invade the jury’s fact-finding province. After Mitchell’s testimony concluded, defense counsel made an offer of proof that, if called in the first stage, Draper would testify about Mitchell’s developmental history and its effect on his responses. Furthermore, defense counsel expected Draper to explain Mitchell’s body language throughout the course of the tapes in order to counter Maddox’s observation that Mitchell was lying during the interview. The trial court again determined that Draper’s testimony would usurp the jury’s role by giving her opinion as to Mitchell’s guilt or innocence. The weight and credibility of witnesses is the exclusive domain of the jury. In the first stage of trial Mitchell wanted Draper, an expert, to interpret and explain Mitchell’s actions and motives on the tapes, which is exactly what the jury was required to do in determining the weight and credibility to afford Mitchell’s statements. Mitchell argues that the State opened the door for this through Maddox’s comments about disassociation and his testimony that he watched Mitchell’s body language as one clue that he was lying. As the trial court noted, Maddox was not offering those opinions as expert aids to the jury. Maddox’s testimony was not error and Draper’s testimony would have infringed on the jury’s responsibility. There was no abuse of discretion.

Id.

The following excerpt from the trial transcript demonstrates what actually occurred during trial after the first part of the videotaped interrogation (State Ex. 81) was viewed by the jury:

Q: Now you referred to disassociation on the tape.

MR. ROWAN: Judge, may I approach the bench?

THE COURT: Yes.

(WHEREUPON, the following proceedings were had at the bench with the Court and counsel present and out of the hearing of the jury:)

MR. ROWAN: Your Honor, I object to this line of questioning in that it’s going through and bolstering the videotape. He is going through and commenting and certainly giving his interpretation of things that the jury has seen. I think that’s improper, Judge.

MR. DEUTSCH: There is no law. We’re not — this is not cumulative evidence. We’re asking the witness to explain what happened. This would be the same if we had an undercover drug tape that we had played for the jury and get the witness to explain various terms and things that are happening. This is not cumulative evidence. We’re not going through this again.

There is no law that I’m aware of that does not allow a witness to explain what is happening in an interview anymore than a crime scene, Judge.

THE COURT: Objection will be overruled.

MR. ROWAN: Well, then, Your Honor, we would allow — we would ask, then, to be allowed to have someone who has viewed this videotape go through and explain, who is an expert in body language and the development of Brian Mitchell. Go through and — when it becomes the defense’s turn to also go through and explain body language and the mechanisms that are going through the interview. What is good for the prosecution is good for the, defense, Judge.

MR. DEUTSCH: We’ve not asked to explain body language or anything of that nature. What we have asked is where certain terms were used and what happened — my questions now are going into the blank portions.

Mr. Rowan, in his opening statement, referred to the defendant as being like a hostage in Vietnam, blinking the eyes. We must show the confession is voluntary. We have the burden of explaining what happened in that room.

THE COURT: I understand, Mr. Deutsch, but what you are also doing is asking this officer to interpret the thinking processes of this defendant and what is going on by watching his mannerisms and the behavior of the defendant during the course of the interview.

MR. DEUTSCH: That’s taken a little bit out of context. What I asked him was, was there anything that he said— that was my next question was going to when this officer says disassociation what does he mean by that term.

After that, Your Honor, I’m going into the blank section on the tape to explain — to lay a predicate for the second — introduction of the second tape. Again, I’m aware of no law, and if counsel has any, that would prohibit this type of testimony. It’s certainly relevant.

MR. ROWAN: Your Honor, I think the question of Mr. Maddox about mood changes and, you know, the various interpretations of how he was thinking. So certainly that opens the door in order to further testimony along those lines.

MR. DEUTSCH: If I may, the defense brought this up in their opening statement. We certainly—

THE COURT: I overruled the objection, Mr. Deutsch.

(WHEREUPON, the bench conference was concluded; after which the following proceedings were had with the defendant and all parties present in open court:)

Q: My question was you used the term disassociation two or three times. What does that refer to?

A: Disassociation is when someone tells you about an incident they have been involved in but they are telling it like they are watching someone else participate in it.

Q: We — at one point we hear the word they. The defendant says why did they kill her when you’re out of the room. Is that what you’re referring to?

A: Yes, sir, it would be.

Tr. Trans., pp. 1174-1177.

Petitioner argues that Maddox’s testimony constituted an improperly admitted clinical diagnosis, as well as Maddox’s opinion that Petitioner was guilty of the acts charged. The testimony undermined Petitioner’s defense that, although he participated in the assault on the victim, he did not actually kill her. Petitioner argues he was denied the fair trial to which he is guaranteed by the Constitution as a result of the trial court’s erroneous rulings.

Procedural Bar. Respondent again elects not to address the merits of Petitioner’s claim of error in the admission of Maddox’s testimony. Instead, Respondent rests his argument on a claim of procedural bar. The Oklahoma Court of Criminal Appeals did not apply a procedural bar in this case. The court rejected the merits of Mitchell’s argument by stating Mitchell’s “contention is unpersuasive.” Mitchell, 884 P.2d at 1197. The court went on to say that, “even i