Full opinion text
BRISCOE, Circuit Judge. Petitioner Donald Lee Gilson, an Oklahoma state prisoner convicted of first degree child abuse murder and sentenced to death, appeals the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm. I. BACKGROUND The pertinent facts of this case were well summarized by the Oklahoma Court of Criminal Appeals (OCCA) in resolving Gilson’s direct appeal: On February 9, 1996, the skeletal remains of eight (8) year old Shane Coff-man were found in an abandoned freezer located next to a mobile home formerly rented by his mother, Bertha Jean Coff-man. A subsequent search of the mobile home revealed a photograph of [Gil-son], On February 11, 1996, authorities from the Cleveland County Sheriffs Office met with [Gilson] at his mobile home. Living in the mobile home with [Gilson] was Bertha Jean Coffman and her four children, twelve (12) year old Isaac, ten (10) year old Tia, eleven (11) year old Tranny and seven (7) year old Crystal. The children were immediately removed from the trailer and taken to Children’s Hospital in Oklahoma City. [Gilson] and Bertha Jean Coffman were detained by the deputies. Examinations of the children conducted in the emergency room revealed Tranny and Crystal were healthy with a few small scars on each. However, Isaac and Tia were malnourished and emaciated. Tia’s feet were swollen and she had difficulty walking. She had gangrenous tissue on her right foot. On her right buttocks was a large open ulcer. Isaac was in the worst condition, emaciated and needing assistance to walk. He was malnourished and had several injuries, in various stages of healing, and scars throughout his body. In their initial interview with police, [Gilson] and Coffman both denied any knowledge as to the manner in which Shane died. They stated he had run away from home during the early part of November and they had found him dead in the weeds near Coffman’s trailer. They decided that putting him in the freezer would be the best thing to do. However, in subsequent interviews both [Gilson] and Coffman recanted this story and admitted to knowing more about the circumstances surrounding Shane’s death. From interviews with [Gilson], Coffman, the Coffman children and other witnesses, the following picture emerged. The four Coffman children mentioned above, along with the murder victim in this case, and another brother, thirteen (13) year old Jeremy, lived with their mother Bertha Jean Coffman, in a mobile home. During the fall of 1994, the Cleveland County Sheriffs Department received complaints of sexual abuse committed upon one of the Coffman children by Coffman’s then boyfriend (not [Gilson]). The investigating detective visited Coffman’s mobile home and found the conditions deplorable and unsanitary. The children were removed from Coffman’s home until conditions improved. It was about this time that Bertha Jean Coffman met [Gilson]. They were both working as janitors at Little Axe Schools. [Gilson] fixed up Coffman’s trailer so she could get her children back. The children were subsequently returned to their mother. Thereafter, [Gilson] began spending more and more time with Coffman and was given the authority to discipline the children. In June of 1995, the oldest child, Jeremy, ran away [as a result of his mistreatment by Gilson], The next month, Coffman and her children walked to [Gilsonjs trailer for a visit and never returned to their home. Whatever possessions they had were left at Coffman’s trailer. [Gilson]’s trailer had only 2 bedrooms; [Gilson] and Coffman slept in one room and the other room contained [Gilson]’s leather working material. As a result, all five children were forced to sleep on blankets in the living room. They were not permitted to go outside, but had to remain inside the trailer at all times. The children were taken out of school and claimed to be homeschooled by Coffman, although no evidence of homeschooling was ever found. The children were also not permitted to go to church. [Gilson] and Coffman both disciplined the children. This discipline took several forms, including standing at the wall, sometimes for hours at a time, and beatings with a bamboo stick, a belt, boards, wooden rulers, metal ruler, and a bullwhip. The children were also made to sit in the bathtub, often for hours at a time. Food was withheld, particularly from Isaac and Tia, as punishment. The abuse inflicted upon Shane Coffman resulted in his death on August 17, 1995. At trial, Tranny testified that he last saw his brother Shane sitting in the bathtub. Tranny said Shane had gotten in trouble for going to the bathroom on the living room carpet. He said that before Shane was put into the bathtub, [Gilson] beat him with a board. Tranny said Shane received several beatings with the board, all over his body. After the beating, [Gilson] put Shane into the bathtub. After a couple of hours, Shane was let out of the bathtub. He then got into trouble again. Tranny said [Gilson] and Coffman then took Shane outside the trailer. Tranny did not know what happened to Shane while he was outside, but he said he could hear Shane screaming. [Gilson] and Coffman carried Shane back inside the trailer. Tranny said Shane’s arms were swollen, he was breathing “weird”, and he had a soft spot on his head. Pursuant to [Gilson]’s “house rules”, the other children were not permitted to talk to Shane. [Gilson] then carried Shane to the bathroom and placed him in the bathtub. Tranny said he and the other children heard a few more screams and banging noises. He said both [Gilson] and Coffman were with Shane when they heard the screams. The children then decided to try and go to sleep. He said they were awakened some time later by [Gilson] and Coffman and told that Shane had run away, and that [Gilson] and Coffman were going to look for him. Isaac testified [Gilson] first sent Shane to stand at the wall for wetting the bed. While he was standing at the wall, [Gilson] hit him with a board. [Gil-son] and Coffman eventually took Shane to the bathroom and put him in the bathtub. Isaac said [Gilson] made all the other children go to the bathroom and tell Shane what a bad boy he was. He said that both [Gilson] and Coffman remained in the bathroom with Shane while the children watched television. He said they could hear Shane crying. Isaac further stated that later that night, [Gilson] and Coffman told them Shane had run away. In a statement made to police shortly after his arrest, and admitted at trial as State’s Exhibit 2, [Gilson] stated that on August 17,1995, he had put Shane in the bathtub as punishment. [Gilson] said he was trying to teach Shane a lesson, so he spanked him and put him in the bathtub where he was to remain until he stopped the disruptive behavior. He said the water in the bathtub was initially warm to help the pain from the spanking, but then he changed it to a cold bath. [Gilson] said Shane was crying as Coffman talked to him about his behavior. He said he then laid down on the couch to watch television with the rest of the kids where he eventually fell asleep. Coffman was in and out of the bathroom talking to Shane before she went to the bedroom to lay down. A while later, Coffman came into the living room in tears and told [Gilson] to come to the bathroom. He said Coffman had taken Shane out of the bathtub and laid him on the floor. Shane’s lips were blue and he was not breathing. [Gilson] said he performed CPR for approximately an hour to an hour and half. When his efforts were unsuccessful, [Gilson] took the comforter off of his bed, wrapped Shane up and placed him back in the bathtub. [Gilson] said he and Coffman discussed what to do next. He said Coff-man was worried that the Department of Human Services (hereinafter DHS) would take her kids away if the authorities found out Shane had died. So they left Shane in the bathtub, waiting until the other children had gone to sleep to remove him from the house. [Gilson] said they carried Shane outside and placed him in the back of a truck. He said they discussed “just dumping him somewhere” or “buryfing] him out in the middle of the boonies.” But they decided neither of those options were right and “even though he wasn’t alive he would still be part of the family bein (sic) on her property, ... thought about putting him in the freezer, it wouldn’t hurt him and then concreting it over. And making a flower bed out of it.” So [Gilson] and Coffman took Shane’s body to the freezer located next to Coffman’s trailer and put him inside. [Gilson] said he and Coffman told the other children Shane had run away. Bertha Jean Coffman testified at trial to disciplining her children by making them stand at the time-out wall, and spanking them, only on their bottoms, with a cloth belt or a wooden paddle. She also testified that [Gilson] disciplined her children by spanking them with the wooden paddle, but at various places on their bodies. Coffman stated [Gilson] had a quick temper and did not want the children tearing up his trailer. In her statement to police on August 17, 1995, Coffman said she and [Gilson] found Shane sexually assaulting his younger brother. As punishment, they made him stand at the time-out wall, then Coffman paddled him. When Shane refused to stand at the wall, Coff-man spanked him again. When Shane still would not do as Coffman directed, she screamed at him. Shane then fainted. When Coffman could not get a response from Shane, she put a piece of ice on his chest. When he still did not respond, Coffman picked him up and took him to the bathroom where she placed him in a tub of cool water. She said Shane eventually came to and wanted to get out of the tub. She said he slipped and hit his head on the faucet. Coffman stated she pushed on Shane’s shoulders to keep him in the bathtub. They struggled, and the shower doors were knocked off their railing. Coffman called for [Gilson] to come and fix the doors. [Gilson] left the living room where he had been watching television with the other children and put the doors back on their railings. [Gilson] left the bathroom. Coffman and Shane struggled again. [Gilson] returned to the bathroom to see what the noise was about. He saw the doors had fallen off again so he took them and set them on the floor. Coffman said she remained in the bathroom with Shane while [Gilson] went back to the living room. After a while, [Gilson] stepped into the bathroom and told Coffman to leave Shane alone for a while. So Coffman left the bathroom to get Shane dry clothes and prepare lunch. When she saw that [Gilson] had already prepared lunch, Coffman laid down on her bed. She was awakened by a noise in the bathroom and saw [Gilson] coming out of the bathroom. When asked how Shane was, [Gilson] responded he was fine and that he was blowing bubbles. Coffman sat down to have a cup of coffee, then decided to check on Shane. She found him quiet but not breathing. She called for [Gilson] and they pulled Shane out of the bathtub and gave him CPR. She said they waited until the other children were asleep before taking the body to the freezer. Coffman also stated that once Shane died, Isaac and Tia began receiving the brunt of the discipline from [Gilson], Shane’s skeletal remains were not found until approximately six (6) months after his death. Therefore, the medical examiner, Dr. Balding, was not able to make a determination as to the cause of death. The medical examiner did testify to injuries to certain bones which were evident upon his examination of the remains. The injuries included a fracture to the right jawbone. The injury was determined to be “acute” as it showed no signs of healing, and therefore was probably less than a week old at the time of death. Another fracture was also found on the left side of the skull. Dr. Balding testified the two fractures were the result of two different blunt force blows. A tooth was missing from the right jaw. Fractures were also found in the collarbone, shoulder blades, numerous ribs, both legs, and several vertebrae in the spine. All the fractures were ruled acute, and not the result of normal childhood play. [Gilson] and Bertha Jean Coffman were jointly charged with first degree murder by child abuse in the death of Shane Coffman, and one count of injury to a minor child for the abuse suffered by each of the remaining children. They were also jointly charged with conspiracy to unlawfully remove a dead body and unlawful removal of a dead body. [The State filed a bill of particulars asserting that Gilson and Coffman should be sentenced to death in connection with the first degree murder charge on the basis of two aggravating factors: (1) that the murder was especially heinous, atrocious and cruel; and (2) the existence of a probability that they would commit criminal acts of violence that would pose a continuing threat to society.] On August 20, 1997, approximately eight (8) months prior to [Gil-son]’s trial, Coffman entered Alford [footnote omitted] pleas to all counts. [Gilson] was subsequently tried and convicted on all charges except he was found not guilty of committing injury to a minor child as to Jeremy, Tranny and Crystal. Gilson v. State, 8 P.3d 883, 895-98 (Okla.Crim.App.2000) (Gilson I) (internal paragraph numbers omitted). The jury, in connection with the two injury to a minor child convictions, concluded Gilson’s sentence should be life imprisonment. At the conclusion of the second-stage proceedings, which were conducted as a result of Gilson’s murder conviction, the jury found the existence of both aggravating factors alleged by the State and recommended a death sentence. Gilson was formally sentenced by the state trial court at a later hearing. Gilson filed a direct appeal challenging his convictions and sentences. On July 26, 2000, the OCCA, with one judge dissenting, affirmed Gilson’s convictions and sentences. Gilson I, 8 P.3d at 929. The OCCA subsequently denied Gilson’s request for rehearing. Gilson filed a petition for writ of certiorari with the United States Supreme Court. That petition was denied by the Supreme Court on April 2, 2001. Gilson v. Oklahoma, 532 U.S. 962, 121 S.Ct. 1496, 149 L.Ed.2d 381 (2001). While his direct appeal was still pending before the OCCA, Gilson, in accordance with Oklahoma procedural rules, filed an application for post-conviction relief with the OCCA. The OCCA denied the application for post-conviction relief on September 1, 2000, in an unpublished opinion. On August 20, 2001, Gilson initiated this federal habeas corpus action by filing a pro se motion to proceed in forma pauperis and a motion for appointment of counsel. Gilson’s motion for appointment of counsel was granted and, on March 29, 2002, Gil-son filed his federal habeas corpus petition asserting eleven grounds for relief. ROA, Doc. 13. On August 9, 2006, the district court issued an opinion and order denying Gilson’s petition. Id., Doc. 29. The district court granted Gilson a certificate of appealability on six issues, and we subsequently granted Gilson a certificate of ap-pealability on one additional issue. II. STANDARD OF REVIEW Our review of Gilson’s appeal is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Snow v. Sirmons, 474 F.3d 693, 696 (10th Cir.2007). Under AEDPA, the standard of review applicable to a particular claim depends upon how that claim was resolved by the state courts. Id. If a claim was addressed on the merits by the state courts, we may not grant federal habeas relief on the basis of that claim unless the state court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,” id. § 2254(d)(2). “When reviewing a state court’s application of federal law, we are precluded from issuing the writ simply because we conclude in our independent judgment that the state court applied the law erroneously or incorrectly.” McLuckie v. Abbott, 337 F.3d 1193, 1197 (10th Cir.2003). “Rather, we must be convinced that the application was also objectively unreasonable.” Id. “This standard does not require our abject deference, ... but nonetheless prohibits us from substituting our own judgment for that of the state court.” Snow, 474 F.3d at 696 (internal quotation marks omitted). If a claim was not resolved by the state courts on the merits and is not otherwise procedurally barred, our standard of review is more searching. That is, because § 2254(d)’s deferential standards of review do not apply in such circumstances, we review the district court’s legal conclusions de novo and its factual findings, if any, for clear error. McLuckie, 337 F.3d at 1197. III. ANALYSIS Split verdict on theories underlying child abuse murder conviction Gilson was charged with first degree child abuse murder in violation of Okla. Stat. tit. 21 § 701.7(C). That statute provides as follows: A person commits murder in the first degree when the death of a child results from the willful or malicious injuring, torturing, maiming or using of unreasonable force by said person or who shall willfully cause, procure or permit any of said acts to be done upon the child pursuant to Section 7115 of Title 10 of the Oklahoma Statutes. It is sufficient for the crime of murder in the first degree that the person either willfully tortured or used unreasonable force upon the child or maliciously injured or maimed the child. Okla. Stat. tit. 21 § 701.7(C). According to the record, the State alleged two alternative theories of how Gilson violated § 701.7(C), i.e., that Gilson either was directly responsible for willfully or maliciously injuring, torturing, maiming or using unreasonable force upon Shane, or that he knowingly permitted Bertha Jean Coff-man to do so. At trial, the State submitted a verdict form for the murder charge that listed not only the option of guilty or not guilty, but also stated: FURTHER, we make the following finding of fact as to the basis for our verdict of guilty: [ ] Unanimous as to child abuse murder [ ] Unanimous as to permitting child abuse murder [] Divided as to the underlying theory Gilson I, 8 P.3d at 898-99. Gilson objected to the underlying instruction that informed the jury “that while their verdict of guilt as to first degree murder must be unanimous, they need not unanimously agree as to the theory under which they arrived at their verdict.” Id. at 899. The state trial court overruled Gilson’s objection and adopted the verdict form submitted by the State. “When the jury con-eluded its deliberations and returned its verdicts, in addition to finding [Gilson] guilty, the last box listed above (‘divided as to the underlying theory’) was checked....” Id. In these federal habeas proceedings, Gilson argues that his “conviction for capital murder, based on a divided jury verdict as to whether he was guilty of ‘committing’ the child abuse that led to Shane’s death, or of ‘permitting’ such abuse, is in violation of his constitutional right to due process.... ” Aplt. Br. at 22. a) Schad v. Arizona The “clearly established federal law” that Gilson cites in support of his argument is the Supreme Court’s decision in Schad v. Arizona, 501 U.S. 624, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991). The petitioner in Schad, Edward Schad, Jr., was charged in Arizona state court with first-degree murder. During Schad’s trial, the prosecutor advanced alternative theories of premeditated and felony murder, while Schad himself claimed that, at most, he was guilty of mere theft. The jury rejected Schad’s assertions and, in a general verdict, convicted him of first-degree murder. Schad was subsequently sentenced to death in connection with this conviction. On direct appeal, Schad argued that the state trial court erred in not requiring the jury to agree on a single theory of first-degree murder. The Arizona Supreme Court rejected that argument and affirmed Schad’s conviction and sentence. Schad subsequently sought and was granted a petition for writ of certiorari by the United States Supreme Court on that issue. Although Schad urged the Supreme Court “to decide th[e] case by holding that the Sixth, Eighth, and Fourteenth Amendments require a unanimous jury in state capital cases,” 501 U.S. at 630, 111 S.Ct. 2491, the Court declined to do so. More specifically, the Court noted that it “ha[d] never suggested that in returning general verdicts in such cases the jurors should be required to agree upon a single means of commission, any more than the indictments were required to specify one alone.” Id. at 631, 111 S.Ct. 2491. Instead, the Court concluded that Schad’s “real challenge [wa]s to Arizona’s characterization of first-degree murder as a single crime as to which a verdict need not be limited to any one statutory alternative. ...” Id. at 630-31, 111 S.Ct. 2491. In other words, the Court concluded that the constitutional issue presented by Schad was “one of the permissible limits in defining criminal conduct, as reflected in the instructions to jurors applying the definitions,” and “not one of jury unanimity.” Id. at 631, 111 S.Ct. 2491. Addressing that constitutional issue head-on, the Court acknowledged that there was a “point at which differences between means become so important that they may not reasonably be viewed as alternatives to a common end, but must be treated as differentiating what the [Due Process Clause] requires to be treated as separate offenses.” Id. at 633, 111 S.Ct. 2491. For example, the Court noted, “nothing in [its] history suggested] that the Due Process Clause would permit a State to convict anyone under a charge of ‘Crime’ so generic that any combination of jury findings of embezzlement, reckless driving, murder, burglary, tax evasion, or littering ... would suffice for conviction.” Id. In “attempting] to define what constitutes an immaterial difference as to mere means and what constitutes a material difference requiring separate theories of crime to be treated as separate offenses subject to separate jury findings,” id., the Court indicated it would afford substantial deference to a state court’s interpretation of its own state statutes. Specifically, the Court stated that “[i]f a State’s courts have determined that certain statutory alternatives are mere means of committing a single offense, rather than independent elements of the crime, [it] simply [would] not [be] at liberty to ignore that determination and conclude that the alternatives [we]re, in fact, independent elements under state law.” Id. at 636, 111 S.Ct. 2491. In Schad’s case, the Court noted, “by determining that a general verdict as to first-degree murder [wa]s permissible under Arizona law, the Arizona Supreme Court ha[d] effectively decided that, under state law, premeditation and the commission of a felony [we]re not independent elements of the crime, but rather [we]re mere means of satisfying a single mens rea element.” Id. at 637, 111 S.Ct. 2491. That still left, however, the issue of “whether Arizona’s choice [wa]s unconstitutional.” Id. In resolving this issue, the Court began by stating that its “sense of appropriate specificity [wa]s a distillate of the concept of due process with its demands for fundamental fairness ... and for the rationality that is an essential component of that fairness.” Id. Continuing, the Court stated that, “[i]n translating these demands for fairness and rationality into concrete judgments about the adequacy of legislative determinations, [it would] look both to history and wide practice as guides to fundamental values, as well as to narrower analytical methods of testing the moral and practical equivalence of the different mental states that m[ight] satisfy the mens rea element of a single offense.” Id. “The enquiry,” the Court held, “is undertaken with a threshold presumption of legislative competence to determine the appropriate relationship between means and ends in defining the elements of a crime.” Id. at 637-38, 111 S.Ct. 2491. The Court held that “[t]he use ... of due process as a measurement of the sense of appropriate specificity assumes the importance of history and widely shared practice as concrete indicators of what fundamental fairness and rationality require.” Id. at 640, 111 S.Ct. 2491. Expanding on this notion, the Court explained: Where a State’s particular way of defining a crime has a long history, or is in widespread use, it is unlikely that a defendant will be able to demonstrate that the State has shifted the burden of proof as to what is an inherent element of the offense, or has defined as a single crime multiple offenses that are inherently separate. Conversely, a freakish definition of the elements of a crime that finds no analogue in history or in the criminal law of other jurisdictions will lighten the defendant’s burden. Id. Applying these principles to the circumstances presented by Schad’s case, the Court concluded it was “significant that Arizona’s equation of the mental states of premeditated murder and felony murder as species of the blameworthy state of mind required to prove a single offense of first-degree murder f[ound] substantial historical and contemporary echoes.” Id. From a historical perspective, the Court noted that at common law, “[t]he intent to kill and the intent to commit a felony were alternative aspects of the single concept of ‘malice aforethought.’ ” Id. From a contemporary perspective, the Court noted that most state statutes “retained premeditated murder and some form of felony murder ... as alternative means of satisfying the mental state that first-degree murder presupposes.” Id. at 641, 111 S.Ct. 2491. Further, the Court, citing a series of state-court decisions issuing from 1903 through the date of the Court’s decision, concluded “there [wa]s sufficiently widespread acceptance of the two mental states as alternative means of satisfying the mens rea element of the single crime of first-degree murder to persuade [it] that Arizona ha[d] not departed from the norm.” Id. at 642, 111 S.Ct. 2491. “Such historical and contemporary acceptance of Arizona’s definition of the offense and verdict practice,” the Court noted, “[wa]s a strong indication that they d[id] not of-fen[d] some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental....” Id. (internal quotation marks omitted). The Court also considered “the function that differences of mental state perform in defining the relative seriousness of otherwise similar or identical criminal acts.” Id. at 643, 111 S.Ct. 2491. According to the Court, “[i]f ... two mental states are supposed to be equivalent means to satisfy the mens rea element of a single offense, they must reasonably reflect notions of equivalent blameworthiness or culpability, whereas a difference in their perceived degrees of culpability would be a reason to conclude that they identified different offenses altogether.” Id. Applying these principles to Schad’s case, the Court noted that “[t]he question ... [wa]s whether felony murder [could] ever be treated as the equivalent of murder by deliberation, and in particular whether robbery murder as charged in [Schad’s] case [could] be treated as thus equivalent.” Id. at 644, 111 S.Ct. 2491. Citing its decision in Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987), the Court concluded that “[w]hether or not everyone would agree that the mental state that precipitates death in the course of robbery is the moral equivalent of premeditation, it [wa]s clear that such equivalence could reasonably be found, which [wa]s enough to rule out the argument that this moral disparity bar[red] treating them as alternative means to satisfy the mental element of a single offense.” Id. b) The OCCA’s rejection of Gilson’s Schad-based argument Gilson first raised his due process, &c/ia.d-based argument on direct appeal. The OCCA purported to reject the argument on the merits. In doing so, the OCCA offered the following lengthy explanation for its decision: In the second part of his argument, [Gilson] asserts his right to a unanimous verdict was violated by the verdict forms allowing the jury to return a “divided as to underlying theory” guilty verdict. [Gilson] argues that as he was charged in the alternative with child abuse murder by the commission of child abuse or by the permitting of child abuse which resulted in first degree murder, the jury’s verdict showed a disagreement as to “just what [he] did.” [citation and footnote omitted]. [Gilson] acknowledges this Court has said that a general verdict of guilt satisfies due process and unanimity concerns where a defendant is charged in the alternative with malice aforethought and felony murder, so long as a prima facie case is made for each alternative. See James v. State, 637 P.2d 862, 866 (Okl.Cr.1981). However, he asserts his case is distinguishable by its unique circumstances. [Gilson] submits that the jury disagreement in his case went to the legal, rather than the factual, basis of the crime charged, “because 1) ‘committing’ and ‘permitting’ child abuse murder are conceptually distinct crimes and 2) these alternative theories of guilt are fundamentally repugnant to each other.” [citation omitted]. [Gilson] argues the contradictory nature of the alternative crimes charged is illustrated by the differing actus reus requirements for each crime. The State argues in response that committing and permitting child abuse are merely different means by which child abuse murder may be committed. Citing cases from this Court, the State argues the jury was not required to agree on the specific means by which the crime was committed, only that the defendant committed the crime charged. Both [Gilson] and the State cite to Schad v. Arizona, 501 U.S. 624, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991). [Gilson] argues that Schad supports a finding that first degree murder by the commission of child abuse and first degree murder by permitting child abuse are separate offenses containing independent elements upon which the jury must be in unanimous agreement. The State relies on Schad for the proposition that where there are alternatives to proving the actus reus of the offense, there is no general requirement that the jury reach a unanimous agreement on the preliminary factual issues which underlie the verdict. In Schad, the Supreme Court addressed the constitutionality of the Arizona Supreme Court’s holding that a general verdict as to first-degree murder is permissible under Arizona law as premeditation and the commission of a felony are not independent elements of the crime, but rather are mere means of satisfying a single mens rea element. In its analysis, the Court looked “both to history and wide practice as guides to fundamental values, as well as to narrower analytical methods of testing the moral and practical equivalence of the different mental states that may satisfy the mens rea element of a single offense.” 501 U.S. at 637-38, 111 S.Ct. at 2500. The Court found the language of the Arizona first-degree murder statute was identical in all relevant respects to the language of the first statute defining murder by differences of degree, passed by the Pennsylvania Legislature in 1794. 501 U.S. at 641, 111 S.Ct. at 2502. The Court also looked to decisions from other state courts which agreed “ ‘it was not necessary that all the jurors should agree in the determination that there was a deliberate and premeditated design to take the life of the deceased, or in the conclusion that the defendant was at the time engaged in the commission of a felony, or an attempt to commit one; it was sufficient that each juror was convinced beyond a reasonable doubt that the defendant had committed the crime of murder in the first degree as that offense is defined by the statute.’ ” Id., quoting People v. Sullivan, 173 N.Y. 122, 127, 65 N.E. 989, 989-990 (1903). [footnote omitted]. Although recognizing the state courts were not unanimous in this respect, the Supreme Court decided there was sufficient widespread acceptance of the two mental states of premeditation and felony-murder as alternative means of satisfying the mens rea element of the single crime of first-degree murder to persuade the Court that Arizona had not departed from the norm. 501 U.S. at 641, 111 S.Ct. at 2502. Having made these determinations, the Court stated “[t]he question, rather, is whether felony murder may ever be treated as the equivalent of murder by deliberation, and in particular whether robbery murder as charged in this case may be treated as thus equivalent.” 501 U.S. at 644, 111 S.Ct. at 2503. The Supreme Court concluded: Whether or not everyone would agree that the mental state that precipitates death in the course of robbery is the moral equivalent of premeditation, it is clear that such equivalence could reasonably be found, which is enough to rule out the argument that this moral disparity bars treating them as alternative means to satisfy the mental element of a single offense. Id. at 501 U.S. at 644, 111 S.Ct. at 2503-4. While recognizing that their “considerations [did not] exhaust the universe of those potentially relevant to judgments about the legitimacy of defining certain facts as mere means to the commission of one offense”, the Supreme Court found the Arizona law “did not fall beyond the constitutional bounds of fundamental fairness and rationality.” 501 U.S. at 645, 111 S.Ct. at 2504. In the present case we are not concerned with the alternatives of premeditated and felony murder, but with those of child abuse murder by permitting child abuse and child abuse murder by the commission of child abuse. [Gilson] was charged under 21 O.S.1991, § 701.7(C) which provides: C. A person commits murder in the first degree when the death of a child results from the willful or malicious injuring, torturing, maiming or using of unreasonable force by said person or who shall willfully cause, procure or permit any of said acts to be done upon the child pursuant to Section 7115 of Title 10 of the Oklahoma Statutes. It is sufficient for the crime of murder in the first degree that the person either willfully tortured or used unreasonable force upon the child or maliciously injured or maimed the child. This section of the first degree murder statute sets out different ways in which the offense of first degree murder by child abuse may be committed. It may be committed by the willful or malicious injuring, torturing, maiming, or using of unreasonable force by the defendant upon a child, or by the defendant’s willfully causing, procuring or permitting the acts of child abuse. This section specifically states that “a person commits murder in the first degree when the death of a child results ...” from either “willful or malicious injury” or “willfully permitting” those acts to be done. Therefore, under the statutory language the crime of first degree murder by child abuse is committed under either circumstance. This provision is not unlike the felony-murder provisions of section 701.7(B) which set forth alternative ways of committing felony-murder. [Gilson] is correct in his argument that including the intent to commit child abuse into the first degree murder statute is a relatively recent enactment, see Tucker v. State, 675 P.2d 459, 461 (Okl.Cr.1984), and that the crime of child abuse murder by permitting child abuse did not exist prior to 1982. See 1982 Okla. Sess. Laws c. 279 § 1. However, the fact that the legal culpability of a defendant whose abuse of a child results in that child’s death or who permits a child to be abused to the extent that death results has only recently been acknowledged by this State does not mean the Legislature cannot define first degree child abuse murder to have been committed either by the actual commission of the acts of abuse or by the willful permitting of the acts to abuse to occur. With the enactment of § 701.7(C) the Legislature has clearly stated its intention to punish as first degree murder the use of unreasonable force upon a child or the permitting of unreasonable force to be used upon a child when the death of a child results. Having found the commission of child abuse and the permitting of child abuse to be alternative means to committing the crime of first degree murder by child abuse, “[t]he constitutional requirement of a unanimous jury verdict applies only to the ultimate issue of the appellant’s guilt or innocence of the crime charged, not the alternative means by which the crime was committed.” Rounds v. State, 679 P.2d 283, 287 (Okl.Cr.1984). In Powell v. State, 906 P.2d 765, 775-76 (Okl.Cr.1995), this Court stated: [T]his Court has reaffirmed its prior holdings that failure of a jury to indicate the basis of their finding of guilt was not error where there was but a single crime charged, i.e. first degree murder. “Whether or not [murder] was committed with malice aforethought, or during the commission of a felony goes to the factual basis of the crime.” When the jury verdict is unanimous that a defendant committed murder in the first degree, such a verdict satisfies due process. Further, there is no due process violation when all of the elements of the crime charged were proven, (citations omitted). See also Neill v. State, 896 P.2d 537, 552-53 (Okl.Cr.1994), cert. denied, 516 U.S. 1080, 116 S.Ct. 791, 133 L.Ed.2d 740 (1996); Crawford v. State, 840 P.2d 627, 640 (Okl.Cr.1992); Newsted v. State, 720 P.2d 734, 737-38 (Okl.Cr.), cert. denied, 479 U.S. 995, 107 S.Ct. 599, 93 L.Ed.2d 599 (1986); James v. State, 637 P.2d 862, 865 (Okl.Cr.1981). The evidence in the present case showed a prima facie case was made and all of the elements were proven to support a finding of guilt as to either child abuse murder by the commission of child abuse or child abuse murder by permitting child abuse. The evidence supporting the conclusion that [Gilson] was the perpetrator of the abuse inflicted upon Shane came from the other Coffman children who testified that both [Gilson] and their mother beat Shane the day of the murder, carried him to the bathtub, and stayed with him in the bathroom while he cried and screamed. Supporting evidence can also be found in Coffman’s statement that she saw [Gil-son] coming out of the bathroom and then found Shane in the bathroom not breathing. Evidence supporting a conclusion that [Gilson] permitted the abuse comes from Coffman’s statement that she was in the bathroom struggling with Shane when the shower doors fell down. [Gilson] entered the bathroom, not once but twice to attend to the shower doors. [Gilson]’s own statement supports the conclusion that he was aware that Coff-man was abusing Shane in the bathroom. The jury’s verdict of guilt indicating it was divided as to the underlying theory was a disagreement as to the factual basis of the offense and as to the manner in which the crime was committed. As the Supreme Court stated in Schad: We have never suggested that in returning general verdicts in such cases the jurors should be required to agree upon a single means of commission, any more than the indictments were required to specify one alone. In these cases, as in litigation generally, “different jurors may be persuaded by different pieces of evidence, even when they agree upon the bottom line. Plainly there is no general requirement that the jury reach agreement on the preliminary factual issues which underlie the verdict.” (citation omitted). Id. at 501 U.S. at 631-32, 111 S.Ct. at 2497. Here, there was a single crime charged-first degree murder by child abuse. Whether or not it was committed through the commission of child abuse or through the permitting of child abuse goes to the factual basis of the crime. The jury verdict was unanimous that [Gilson] committed the crime. Such a verdict satisfies due process. See Plunkett v. State, 719 P.2d 834, 841 (Okl.Cr.), cert. denied, 479 U.S. 1019, 107 S.Ct. 675, 93 L.Ed.2d 725 (1986). The enactment of § 701.7(C), a separate provision within the first degree murder statute to address the death of a child as a result of child abuse, is indicative of the Legislature’s intent within the last two decades to draft legislation aimed specifically at the protection and welfare of children. See 10 O. S.Supp. 1993, § 401 et. seq. (Oklahoma Child Care Facilities Licensing Act); 10 O.S. Supp.1995, § 7001-1.1 et. seq. (the Oklahoma Children’s Code); and, 10 O. S.Supp.1995, § 7101 et. seq. (Oklahoma Child Abuse Reporting and Prevention Act). Although specifically directed at situations where child abuse has resulted in death, by enacting 21 O.S.1991, § 701.7(C) the Legislature has merely created another way of committing first degree murder. The language of the statute, setting forth alternative means of committing the crime of child abuse murder, makes it analogous to the crime of felony-murder. Under 21 O.S.1991, § 701.7(B) felony-murder is committed when a death results from a defendant’s commission of any of several specifically listed underlying felonies. In a felony-murder prosecution, proof of the underlying felony is needed to prove the intent necessary for a felony murder conviction. Fields v. State, 923 P.2d 624, 634 (Okl.Cr.1996), cert. denied, 520 U.S. 1216, 117 S.Ct. 1704, 137 L.Ed.2d 829 (1997). Further, when the crime is charged in the alternative, with more than one felony charged as the underlying felony, a constitutionally unanimous verdict is required only with respect to the ultimate issue of the defendant’s guilt or innocence of the crime charged and not with respect to alternative means by which the crime was committed. Blackwell v. State, 663 P.2d 12, 16 (Okl.Cr.1983). We find the child abuse murder statute should be interpreted in the same manner as § 701.7(B). Proof of the underlying act of child abuse is needed to prove the intent necessary for a child abuse murder conviction. See Fairchild v. State, 998 P.2d 611, 618-19 (Okl.Cr.1999) (holding crime of first degree murder by child abuse is a general intent crime). A constitutionally unanimous verdict is required only with respect to the ultimate issue of the defendant’s guilt or innocence of the crime charged and not with respect to alternative means by which the crime was committed. Gilson I, 8 P.3d at 900-03 (internal paragraph numbers omitted). c) Gilson’s entitlement to federal habeas relief on this claim The above-quoted language makes apparent that the OCCA properly conducted the first part of the Schad analysis. Specifically, it concluded as a matter of state law that, “[w]ith the enactment of § 701.7(C), the [Oklahoma] Legislature ha[d] clearly stated its intention to punish as first degree murder the use of unreasonable force upon a child or the permitting of unreasonable force to be used upon a child when the death of a child results.” Gilson I, 8 P.3d at 902. Unfortunately, however, the OCCA failed to conduct the second, and arguably more important, part of the Schad analysis, i.e., determining whether the Oklahoma Legislature’s decision to treat “the commission of child abuse and the permitting of child abuse [as] alternative means to committing the crime of first degree murder by child abuse” was consistent with principles of due process. In place of this analysis, the OCCA simply reviewed the evidence presented at trial and concluded that “a prima facie case was made and all of the elements were proven to support a finding of guilt as to either child abuse murder by the commission of child abuse or child abuse murder by permitting child abuse.” Id. at 902. Conducting the second part of the Schad analysis de novo, we conclude that Oklahoma’s choice is consistent with principles of due process. To be sure, Oklahoma’s decision to directly include both the commission and permission of abuse resulting in the death of a child in its definition of first-degree murder appears to be unique among the states. That said, however, there is contemporary support from other states for the notion of treating the willful commission and willful permission of child abuse as alternative means of satisfying the actus reus requirements of a single offense. In particular, several other states treat willful commission and willful permission as alternative means of satisfying the actus reus requirement of lesser criminal offenses. E.g., Cal.Penal Code § 11165.3 (defining the crime of “Willful harming or endangering of child” to include “a situation in which any person willfully causes or permits any child to suffer, or inflicts thereon, unjustifiable physical pain or mental suffering”); Conn. GemStat. § 53-21 (defining the crime of “Injury or risk of injury to, or impairing morals of, children” to include any person who “wilfully or unlawfully causes or permits any child ... to be placed in such situation that the life or limb of such child is endangered”); Idaho Code Ann. § 18-1501 (defining the crime of “Injury to children” to include “[a]ny person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer”); 720 111. Comp. Stat. 5/12-21.6 (defining the crime of “Endangering the life or health of a child” to include any person who “willfully cause[s] or permit[s] the life or health of a child under the age of 18 to be endangered”); Nev.Rev.Stat. § 200.508 (defining the crime of “Abuse, neglect or endangerment of child” to include both “wilfully causing]” and “permit[ting] or allowing]”); Va.Code. Ann. § 40.1-103 (defining the crime of “Cruelty and injuries to children” to include “willfully ... causing] or permitting] the life of [a] child to be endangered”); Wyo. Stat. Ann. § 6-4-405 (defining the crime of “Endangering children” to include “willfully causing] or permit[ting]”). As noted by the Supreme Court in Schad, it is “unlikely” that such relatively common legal definitions would “retain wide acceptance” if they were “at odds with notions of fairness and rationality sufficiently fundamental to be comprehended in due process.” 501 U.S. at 642, 111 S.Ct. 2491. Moreover, Gilson has not established that the two means at issue, i.e., willful commission and willful permission, for proving the actus reus requirement of the first-degree murder charge at issue here “are so disparate as to exemplify two inherently separate offenses.” Id. at 643, 111 S.Ct. 2491. Thus, we conclude Gilson is not entitled to federal habeas relief on this issue. Enmund/Tison violation Gilson next argues, citing the Supreme Court’s decisions in Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140, (1982), and Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987), that the imposition of the death penalty violates his Eighth Amendment rights because the jury in his case did not unanimously find either that he personally participated in the killing of Shane Coff-man or that he possessed the requisite intent to make him eligible for the death penalty. a) The decisions in Enmund and Tison In Enmund and Tison, the Supreme Court explored the degree of culpability necessary for the imposition of capital punishment in cases involving felony-murder convictions. In doing so, both cases looked to the Cruel and Unusual Punishments Clause of the Eighth Amendment, which prohibits “punishments which by their excessive length or severity are greatly disproportioned to the offenses charged.” Enmund, 458 U.S. at 788, 102 S.Ct. 3368 (internal quotation marks omitted). In Enmund, the Court “explicitly dealt with two distinct subsets of all felony murders. ...” Tison, 481 U.S. at 149, 107 S.Ct. 1676. “At one pole was [defendant] En-mund himself; the minor actor in an armed robbery, not on the scene, who neither intended to kill nor was found to have had any culpable mental state.” Id. “The Court held that capital punishment was disproportional in these cases,” and thus violative of the Eighth Amendment. Id. at 150, 107 S.Ct. 1676. At the other pole was “the felony murderer who actually killed, attempted to kill, or intended to kill.” Id. The Court held that the Eighth Amendment posed no hurdle to the imposition of capital punishment in such cases. In Tison, the Court expanded on the principle of proportionality by addressing two related cases that fell between the categories of felony-murder expressly addressed in Enmund. The petitioners in Tison, two brothers, had assisted their inmate father and another convict in escaping from prison. During the course of the escape, the group’s car broke down and one of the brothers flagged down a passing car which contained a family of four. The group proceeded to kidnap and rob the family. While the brothers were nearby, the father and the other convict shot and killed all four members of the kidnapped family. Neither brother attempted to assist the victims before, during, or after the shooting. Moreover, both brothers continued on with the two escapees and the group was not apprehended until several days later. Id. at 151-52, 107 S.Ct. 1676. The Supreme Court concluded that although neither petitioner actually killed or specifically intended to kill any of the victims, the Eighth Amendment did not prohibit them from being subjected to the death penalty. In reaching this conclusion, the Court noted that “[a] critical facet of the individualized determination of culpability required in capital cases is the mental state with which the defendant commits the crime.” Id. at 156, 107 S.Ct. 1676. “Deeply ingrained in our legal tradition,” the Court noted, “is the idea that the more purposeful is the criminal conduct, the more serious is the offense, and, therefore, the more severely it ought to be punished.” Id. In turn, the Court noted that “the reckless disregard for human life implicit in knowingly engaging in criminal activities known to carry a grave risk of death represents a highly culpable mental state, a mental state that may be taken into account in making a capital sentencing judgment when that conduct causes its natural, though also not inevitable, lethal result.” Id. at 157-58, 107 S.Ct. 1676. Ultimately, the Court held that “major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement.” Id. at 158, 107 S.Ct. 1676. Although not cited by Gilson, the Supreme Court’s decision in Cabana v. Bullock, 474 U.S. 376, 106 S.Ct. 689, 88 L.Ed.2d 704 (1986), is also relevant to our Enmund/Tison analysis. Cabana was a procedural case in which the Court “determine[d] in whose hands the [Enmund/Tison-mandated] decision that a defendant possesses the requisite degree of culpability properly lies.” 474 U.S. at 378, 106 S.Ct. 689. In addressing that issue, the Court emphasized that its “ruling in En-mund d[id] not concern the guilt or innocence of the defendant” and “establishe[d] no new elements of the crime of murder that must be found by the jury.” Id. at 385, 106 S.Ct. 689. Continuing, the Court noted that “[t]he decision whether a particular punishment — even the death penalty — is appropriate in any given case is not one that [it] ha[d] ever required to be made by a jury.” Id. To the contrary, the Court noted, “the decision whether a sentence is so disproportionate as to violate the Eighth Amendment in any particular case, like other questions bearing on whether a criminal defendant’s constitutional rights have been violated, has long been viewed as one that a trial judge or an appellate court is fully competent to make.” Id. at 386, 106 S.Ct. 689. Thus, the Court stated, “Enmund does not impose any particular form of procedure upon the States.” Id. If a criminal defendant’s conduct satisfies the Enmund or Tison requirements for imposition of the death penalty, the Court held, “the Eighth Amendment itself is not violated by his or her execution regardless of who makes the determination of the requisite culpability....” Id. In other words, “[a]t what precise point in its criminal process a State chooses to make the Enmund determination is of little concern from the standpoint of the Constitution.” Id. Thus, the Court held, “when a federal habeas court reviews a claim that the death penalty has been imposed on one who” does not meet the Enmund or Tison requirements for imposition of the death penalty, “the court’s inquiry cannot be limited to an examination of jury instructions. Rather, the court must examine the entire course of the state-court proceedings against the defendant in order to determine whether, at some point in the process, the requisite factual finding as to the defendant’s culpability has been made.” Id. at 387, 106 S.Ct. 689. “If it has,” the Court held, “the finding must be presumed correct by virtue of 28 U.S.C. § 2254(d), ... and unless the habeas petitioner can bear the heavy burden of overcoming the presumption, the court is obliged to hold that the Eighth Amendment as interpreted in Enmund [and Tison ] is not offended by the death sentence.” Id. at 387-88, 106 S.Ct. 689. b) The OCCA’s rejection of Gilson’s En-mund/Tison claim Gilson first raised his Enmund/Tison claim on direct appeal. The OCCA rejected the claim on the merits, stating as follows: [Gilson] contends in his second assignment of error that his death sentence violates the Eighth and Fourteenth Amendments, as well as Article II, § 9, of the Oklahoma Constitution because his conviction under 21 O.S.1991, § 701.7(C), failed to establish eligibility for the death sentence. In the first of several subpropositions, [Gilson] argues the State failed to prove he in fact killed, attempted to kill or was a major participant in a felony showing reckless indifference to human life. He contends that his death sentence can stand only if each of the theories underlying his murder conviction constitutionally justifies the imposition of a capital sentence. The State argues in response that the facts in this case are sufficient to support a finding that [Gilson] was eligible for the death sentence. Initially we note the record shows that after the verdicts were rendered, defense counsel moved to strike the Bill of Particulars arguing that [Gilson] was no longer constitutionally eligible for the death penalty because the jury failed to find unanimously that he committed any intentional act which led to the death of the victim. This objection has properly preserved the issue for appellate review. As addressed in Proposition I, the verdict in this case was a general verdict of guilt for first degree murder with the jury disagreeing as to the underlying factual basis. Therefore, we will review that factual basis in light of the applicable law to determine death eligibility. In Wisdom v. State, 918 P.2d 384 (Okl.Cr.1996), we held that a defendant convicted of First Degree Murder by Child Abuse who actually killed the victim by his/her own hand was eligible for the death sentence. [Gilson] acknowledges this ruling but urges reconsideration. We decline the offer, (citation omitted). Here, the evidence supports a finding that [Gilson] actually killed the victim. [Gilson] participated in beating the victim prior to the time he was taken to the bathroom. [Gilson] was in the bathroom with the victim and Coffman, and after Coffman left the room, was seen exiting the bathroom immediately before Shane was found dead. This evidence certainly renders [Gilson] eligible for the death sentence. This Court has not previously ruled on whether a defendant convicted of First Degree Child Abuse Murder by permitting child abuse is death eligible. Both [Gilson] and the State direct us to Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987) for the application of the death penalty to a defendant who does not kill by his/her own hand. In Tison, a felony-murder case in which the defendant himself did not kill, the Supreme Court held that a defendant who did not actually commit the act which caused death, but who was a major participant in the felony and who had displayed reckless indifference to human life, may be sufficiently culpable to receive the death penalty. 481 U.S. at 158, 107 S.Ct. at 1688. The Supreme Court stated: Similarly, we hold that the reckless disregard for human life implicit in knowingly engaging in criminal activities known to carry a grave risk of death represents a highly culpable mental state, a mental state that may be taken into account in making a capital sentencing judgment when that conduct causes its natural, though also not inevitable, lethal result. Id. at 481 U.S. at 157-58, 107 S.Ct. at 1688. Tison modified the Supreme Court’s holding in Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), that the Eighth Amendment forbids the imposition of the death penalty on “one ... who aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed.” Id., 458 U.S. at 797, 102 S.Ct. at 3376. Although this Court has held that an Enmund/Tison analysis does not apply in the case of the actual killer, (citation omitted), we find it does apply in a case where the defendant was not the actual killer, (citation omitted). In as much as one of the underlying theories of this case is murder by the permitting of child abuse, we apply the analysis used in Enmund and Tison. Here, the evidence shows [Gilson] was a major participant in the felony. Acting jointly with Coffman, he took Shane outside the trailer and was party to conduct which elicited screams from the child. He and Coffman took Shane back inside the trailer, they both took him back to the bathroom and they both remained with him in the bathroom for periods of time. This evidence clearly supports the conclusion that his participation was major and substantial. [Gilson] argues that, at worst, his conduct was that of an omission-of failing to protect the victim from a potentially dangerous situation-and not that of knowingly permitting the abuse to occur. To the contrary, [Gilson]’s conduct was not merely the nonperformance of what ought to be done, as in cases of criminal omissions, (citation omitted). His active participation in the abuse occurring inside his small trailer is very different from a passive act of failing to provide what is required by law. We next determine whether [Gilson] displayed reckless indifference to human life. In discussing this term in Tison, the Supreme Court stated “[a] critical facet of the individualized determination of culpability required in capital cases is the mental state with which the defendant commits the crime.” 481 U.S. at 157, 107 S.Ct. at 1687. The Court further stated: A narrow focus on the question of whether or not a given defendant “intended to kill,” however, is a highly unsatisfactory means of definitively distinguishing the most culpable and dangerous of murderers. Many who intend to, and do, kill are not criminally liable at all-those who act in self-defense or with other justification or excuse ... On the other hand, some nonintentional murderers may be among the most dangerous and inhumane of all-the person who tortures another not caring whether the victim lives or dies, or the robber who shoots someone in the course of the robbery, utterly indifferent to the fact that the desire to rob may have the unintended consequence of killing the victim as well as taking the victim’s property. This reckless indifference to the value of human life may be every bit as shocking to the moral sense as an “intent to kill.” ..