Derosa v. Workman (679 F.3d 1196, 2012)

BRISCOE, Chief Judge.

Petitioner James DeRosa, an Oklahoma state prisoner, was convicted of two counts of first-degree felony murder and sentenced to death on both counts. The two murders that were the subject of his convictions occurred on October 2, 2000. DeRosa unsuccessfully challenged his convictions and sentences on direct appeal, as well as in an application for state post-conviction relief. DeRosa then sought federal habeas relief by filing a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court denied his petition but granted a certificate of appealability (COA) as to one issue. We, in turn, granted a COA on two additional issues. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we now affirm the decision of the district court.

I

Factual background

The Oklahoma Court of Criminal Appeals (OCCA), in addressing DeRosa’s direct appeal, outlined the relevant background facts of DeRosa’s crime:

Around 9:00 p.m. on Monday, October 2, 2000, James L. DeRosa and John Eric Castleberry talked their way into the rural Poteau home of Curtis and Gloria Plummer and then robbed them, stabbed them, and cut their throats, leaving them dead on the floor. DeRosa and Castleberry then stole approximately $73 and left in the Plummers’ tan 1998 Chevrolet pickup truck. The Plummers knew DeRosa, because he had previously worked for them on their ranch. He and Castleberry were apparently allowed into the home, which had a security system, on the pretense of looking for a further work opportunity.

DeRosa worked for the Plummers during the summer of 1999. He apparently began plotting to rob them sometime in the spring of 2000. Chris Ford testified that during March or April of 2000, while DeRosa was renting a room in his home, DeRosa approached him about an elderly couple in Monroe for whom he had worked. DeRosa said they would be an “easy target” and asked Ford to drop him off at their house, and then DeRosa would go in and rob them.

On Saturday, September 30, 2000, DeRosa brought up the idea of robbing the Plummers to Eric Castleberry and Scotty White. The three men were hanging out in a bowling alley parking lot that night, when DeRosa asked White if he would go with him to a house in Howe, which belonged to people for whom he had previously worked, and help him rob the owners. When White declined, DeRosa asked Castleberry, and Castleberry agreed. DeRosa claimed that the people “always carried a bunch of money on‘em.” Castleberry testified that he and DeRosa needed money in order to move to Corpus Christi, Texas, to find work. DeRosa spoke to Castleberry again the next day, and Castleberry again agreed to go into the house with DeRosa. They talked about using guns, but decided to use knives when they were unable to obtain guns.

On Monday, October 2, 2000, while DeRosa, Castleberry, and White were driving back to Poteau from Fort Smith, Arkansas (where they had been visiting a friend in the hospital), DeRosa told the others, “we’re going to do it tonight.” They agreed that White would drop DeRosa and Castleberry off at the house, where they would rob the Plummers and steal their old truck, and then White would meet them at the top of Sugarloaf Mountain, where they would abandon the truck. After attempting to track down Mavis Smith, a sister of the friend in the hospital, and getting pulled over for speeding, the men went to their various homes to prepare for the robbery. DeRosa obtained a white batting glove or golf glove from his home, but when he couldn’t find “the other one,” he got a sock to wear on his other hand. He told the others that he was going to get his mother’s gun, but then decided against it, since it was registered in her name. Castleberry already had two knives in his car, and they decided to use those instead. Castleberry also had thick black rubberized gloves for himself in his car.

DeRosa gave White, who was by then driving Castleberry’s car, directions to the Plummer home, and they arrived at approximately 9:00 p.m. DeRosa told White to check back in about ten to fifteen minutes, in case someone else was in the home. White did so, and after seeing lights on throughout the home and no sign of his friends, drove on to Sugarloaf Mountain. Meanwhile, DeRosa and Castleberry, who were not wearing disguises or masks, rang the bell at the Plummer home and were allowed in by Mrs. Plummer, in order to talk to Mr. Plummer about possible work opportunities. Mr. Plummer was in the den watching Monday Night Football. After chatting in their den for a few minutes, DeRosa pulled out his knife, held it to the neck of Mr. Plummer, and told him to sit still. When Mrs. Plummer grabbed the cordless phone and started trying to dial, Castleberry yanked the base of the phone out of the wall, pulled out his knife, held it to Mrs. Plummer’s neck, and told her to sit still.

DeRosa stayed in the den with the Plummers while Castleberry began going through bedrooms looking for things to steal. While he was in the second bedroom, he heard DeRosa yell for him to come back and help him. ' Castleberry ran back to the den and observed DeRosa, now standing near the door to the kitchen, struggling with the Plummers. Castleberry testified that he saw DeRosa stabbing at both of them and that he saw blood “all over” Mrs. Plummer. Castleberry also observed blood on the front and the side of Mr. Plummer and saw DeRosa stab Mr. Plummer in the chest.

Castleberry testified that he then went up behind Mrs. Plummer, stuck his knife to her throat, slit her throat, and pulled her backwards and threw her down on the loveseat. Castleberry then stabbed Mr. Plummer “a couple of times” in the back. DeRosa then pushed Mr. Plummer back toward the love seat and the television. Castleberry testified that Mr. Plummer picked up the cordless phone, which was on the floor, and begged the men to let him call an ambulance for his wife, saying he would give them anything they wanted if they would just let him get help for his wife. DeRosa responded by picking up a marble-topped end table and throwing it at him. The table hit Mr. Plummer on the head, and he fell to the ground. DeRosa then walked over and slit his throat, from ear to ear, and left him laying on the floor. Castle-berry then pulled Mrs. Plummer down off the loveseat and left her facedown on the floor, near Mr. Plummer.

The men then began ransacking the house looking for cash and other valuables, but they found only Mr. Plummer’s wallet and Mrs. Plummer’s purse. DeRosa took the cash out of the wallet, and Castleberry dumped the purse onto the laundry room floor and took the cash. When they couldn’t find the keys for the older white pickup parked outside, they decided to take the much newer, tan Chevrolet pickup that was parked in the garage. DeRosa drove the truck to the top of Sugarloaf Mountain, but decided not to leave it there, thinking it would be “too obvious.” They met White on their way back down. DeRosa told White to wait for a few minutes and then meet them at the Poteau City Lake.

Castleberry testified that when they got to the City Lake, they “[p]ut the truck in the water and got in the water and rinsed the blood off us and changed clothes.” White testified that as he pulled up, he could see the back of the truck and its taillights, as the truck sank into the lake. DeRosa and Castleberry put their wet, bloody clothing into a black plastic garbage bag and put on fresh clothing, from out of Castleberry’s car. Castleberry testified that he put all of his wet clothing into the bag except his underwear, which he couldn’t find, and that he threw his gloves and his knife into the lake. DeRosa put his knife into the bloody sock that he had worn on his hand and threw it into the water too.

The three men then got back in Castleberry’s car, drove to Taco Bell, and bought themselves tacos using the money they had stolen. Before dropping White off later that night, Castleberry told White that they “ended up having to kill 'em.” White was also told that Castleberry and DeRosa were leaving for Corpus Christi the next morning.

Castleberry and DeRosa later went to a campground area and burned the clothing in the garbage bag, after spraying lighter fluid on it. They were afraid that DeRosa’s combat boots would not burn fully, so they dropped them over a bridge near Keota Landing. Later that night Castleberry told their friend Justin Wingo, in DeRosa’s presence, that they had just killed two people and how they had done it. The next day Castleberry and DeRosa drove to Corpus Christi, Texas, to the home of Castleberry’s father.

The Plummer bodies were discovered the morning of October 3, 2000. On the morning of October 4, 2000, Scotty White, who was eighteen years old and a high school senior at the time, informed a teacher at his high school that he knew who killed the Plummers. Later that morning he met with Sheriff Kendall Ballew and investigator Shawn Ward, in the principal’s office, and told them that DeRosa and Castleberry had killed the Plummers, how they did it, what they did with the Plummers’ truck, and that they had left for Texas. After the interview the officers discovered the truck in the Poteau City Lake, right where White said it would be.

Although White initially tried to minimize his own involvement, saying that the other men just told him about what had happened, the investigating officers were suspicious about the extent of his knowledge, and took him to the district attorney’s office for further interviewing. Shortly after 1:00 p.m. that afternoon, after White was Mirandized, he told the investigating officers additional details about what had happened, including the fact that he had dropped the others off at the Plummer home. In a third interview, conducted after a break of only a few minutes (in order for White to look at an atlas), White told them that DeRosa and Castleberry had gone to Corpus Christi.

Castleberry and DeRosa were arrested by local officers in Corpus Christi, outside the home of Castleberry’s father, that same evening. When the arresting officer informed DeRosa that he was being arrested on two counts of first-degree murder in an Oklahoma case, DeRosa said, “Yeah, I heard about what happened to those people. We had just visited ‘em so my prints are probably out there.” Sheriff Ballew and Shawn Ward arrived in Corpus Christi on October 5, 2000, to transport DeRosa and Castleberry back to Oklahoma. After being advised of his Miranda rights and agreeing to waive them, Castleberry agreed to talk with Ballew and Ward. Though he initially denied involvement in the Plummer killings, Castleberry then relented, and in a tape-recorded interview, told Ballew and Ward essentially the same detailed story that he testified to at trial.

DeRosa v. State, 89 P.3d 1124, 1129-1133 (Okla.Crim.App.2004) (DeRosa I).

The state trial proceedings

On October 4, 2000, DeRosa was charged by information in the District Court of LeFlore County, Oklahoma, Case Number CF-00-635, with two counts of first-degree felony murder. The prosecution subsequently filed a bill of particulars alleging that DeRosa “should be punished by death due to the following aggravating circumstances”: (1) the murders were especially heinous, atrocious, or cruel; and (2) the murders were committed for the purpose of avoiding or preventing lawful arrest or prosecution. State ROA at 101, 105, 220.

Three attorneys from the Oklahoma Indigent Defense System (OIDS) were appointed to represent DeRosa: James Rowan, Jason Spanich, and James Lockard.

The case proceeded to trial on October 15, 2001. At the conclusion of the first-stage evidence, the jury found DeRosa guilty of both counts of first-degree felony murder. The case proceeded immediately to the sentencing phase of trial. At the conclusion of the second-stage evidence, which incorporated by reference all of the first-stage evidence, the jury found the existence of both alleged aggravating circumstances with respect to each of the counts of conviction. The jury in turn fixed DeRosa’s punishment at death for each of the two counts of conviction.

On October 19, 2001, the state trial court formally sentenced DeRosa to death for each of the two murder convictions. Judgment in the case was entered on November 30, 2001.

DeRosa’s direct appeal

DeRosa’s lead trial attorney, OIDS attorney James Rowan, filed a notice of intent to appeal on his behalf. James Lockard, one of the OIDS attorneys who was appointed to represent DeRosa at trial, continued to represent DeRosa on direct appeal and filed an appellate brief asserting nine propositions of error.

On April 22, 2004, the OCCA issued an opinion affirming the convictions and sentences. DeRosa I, 89 P.3d at 1158. DeRosa, after unsuccessfully seeking a rehearing from the OCCA, filed a petition for writ of certiorari with the United States Supreme Court. That petition was denied on January 10, 2005. DeRosa v. Oklahoma, 543 U.S. 1063, 125 S.Ct. 889, 160 L.Ed.2d 793 (2005).

DeRosa’s application for state post-conviction relief

On March 25, 2004, DeRosa, represented by private counsel, filed an application for state post-conviction relief and a verified motion for evidentiary hearing on his post-conviction claims. In his first proposition of error, DeRosa alleged that his trial counsel was ineffective for failing to (a) rehabilitate a prospective juror regarding her willingness to consider the death penalty; (b) object to the district attorney’s efforts to limit the jury’s consideration of mitigating evidence; and (c) request that the state trial court instruct the jury regarding DeRosa’s right not to testify. In his second proposition of error, DeRosa argued that his appellate counsel was ineffective for failing to raise the four distinct issues on direct appeal, In his third proposition of error, DeRosa asserted a claim of cumulative error, arguing that the combination of errors raised in his direct appeal and on post-conviction rendered his death sentences unconstitutional.

On May 3, 2004, less than one month after it denied DeRosa’s direct appeal, the OCCA issued an order denying DeRosa’s application for post-conviction relief and his motion for an evidentiary hearing. The OCCA concluded that all of DeRosa’s claims of ineffective assistance of trial counsel were procedurally barred due to DeRosa’s failure to assert them on direct appeal. The OCCA in turn rejected DeRosa’s ineffective assistance of appellate counsel claims on the grounds that the failure of DeRosa’s appellate counsel to raise the issues identified by DeRosa did not constitute deficient performance. Lastly, the OCCA concluded that DeRosa’s claim of cumulative error was barred by res judicata.

DeRosa’s federal habeas proceedings

DeRosa initiated these federal habeas proceedings on May 13, 2005, by filing motions for appointment of counsel and to proceed in forma pauperis. The district court granted those motions and appointed counsel to represent DeRosa.

On December 23, 2005, DeRosa’s appointed counsel filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition asserted twelve grounds for relief: (1) that trial counsel’s failure to investigate fully and to present readily available evidence in mitigation denied DeRosa effective assistance of counsel and a fair sentence procedure; (2) the denial of DeRosa’s change of venue motion deprived DeRosa of a fair trial; (3) DeRosa’s right to a fair jury was violated when the trial court excused improperly a prospective juror who was able to consider all sentencing options; (4) the improper actions of the prosecutor denied DeRosa a fair trial and reliable sentencing; (5) the irrelevant and inadmissible comments of witness Janet Tolbert denied DeRosa a fair trial and sentencing determination; (6) admission of the victim-impact evidence denied DeRosa a fair trial; (7) DeRosa was deprived of a fair sentencing determination due to the trial court’s failure to instruct the jury that it had to find beyond a reasonable doubt that the aggravating circumstances found to exist outweighed the mitigating circumstances, and DeRosa’s appellate counsel was ineffective for failing to present this claim on direct appeal; (8) the murder-to-avoid-arrest aggravating circumstance was not established by sufficient evidence and was unconstitutional as applied to DeRosa; (9) the heinous, atrocious, or cruel aggravating circumstance was not properly defined; (10) the jury was not told that DeRosa had a constitutional right not to testify; (11) the cumulative effect of numerous errors denied DeRosa a fair trial under the Eighth and Fourteenth Amendments; and (12) the lethal injection protocols proposed to be used by the State of Oklahoma violate the Fifth, Eighth, and Fourteenth Amendments.

On September 27, 2010, the district court issued an opinion and order denying DeRosa’s petition. Judgment was entered in the case that same day.

DeRosa filed a timely notice of appeal and a motion for COA. On November 1, 2010, the district court granted DeRosa a COA with respect to his ineffective assistance of trial counsel claim, but denied DeRosa’s motion with respect to all of the other issues asserted in the petition.

We subsequently granted DeRosa a COA with respect to two additional issues: (1) whether the cumulative effect of the improper comments of the prosecuting attorney made during both phases of trial was harmless; and (2) whether allowing the jury to hear the responses of two victim-impact witnesses who testified during the penalty phase of trial was harmless constitutional error.

II

Our review of DeRosa’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.

Ill

Ineffective assistance of trial counsel

In Proposition One of his appellate brief, DeRosa contends that his trial counsel was constitutionally ineffective for failing to contact and present during the second stage of trial “crucial, obvious witnesses available and willing to testify” on DeRosa’s behalf. Aplt. Br. at 9. In support, DeRosa argues “that the entire mitigation effort [at trial] flowed from, and was shaped by, [his] mother Cassie (Naydan) DeRosa.” Id. at 14. But, he argues, “Cassie DeRosa was, in truth, a raging sociopath with an unimaginably destructive effect on [him],” and “[t]his is a horror story, both biologically and environmentally, that the jury should have heard.” Id. In turn, DeRosa contends that his counsel should have located and presented as witnesses during the second-stage proceedings (a) his maternal grandmother, Connie Naydan Carroll, (b) his father, James Money, (c) his maternal uncle, Michael Naydan, (d) his high school counselor, Virginia Poe, and (e) his high school track coach, Stan Stone.

a) Exhaustion of state court remedies

It is undisputed that DeRosa never presented his claim of ineffective assistance of trial counsel to the Oklahoma state courts for review. Generally speaking, we may not review a claim for federal habeas relief unless “the applicant has exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). AEDPA, however, allows for a “State, through counsel, [to] expressly waive[ ] the [exhaustion] requirement.” 28 U.S.C. § 2254(b)(3). And respondent in this case has done precisely that. Accordingly, we shall proceed to review de novo the merits of DeRosa’s claim.

b) Applicable federal law

DeRosa’s claim is governed by the standards outlined in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Strickland, the Supreme Court held that “[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.” Id. at 687, 104 S.Ct. 2052. “First,” the Court noted, “the defendant must show that counsel’s performance was deficient.” Id. “This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. “Second,” the Court noted, “the defendant must show that the deficient performance prejudiced the defense.” Id. “Unless a defendant makes both showings,” the Court held, “it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.” Id.

Notably, the Supreme Court has “declined to articulate specific guidelines for appropriate attorney conduct and instead ha[s] emphasized that ‘[t]he proper measure of attorney performance remains simply reasonableness under prevailing professional norms.’ ” Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052). There is a strong presumption that “an attorney acted in an objectively reasonable manner and that an attorney’s challenged conduct might have been part of a sound trial strategy.” Bullock v. Carver, 297 F.3d 1036, 1046 (10th Cir.2002) (emphasis omitted). And, because “[t]here are countless ways to provide effective assistance in any given case,” “[e]ven the best criminal defense attorneys would not defend a particular client in the same way.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052.

c) The merits of DeRosa’s claim

As a threshold matter, it is well established that “insufficient preparation of the mitigation case can constitute ineffective assistance of counsel.” Wilson v. Sirmons, 536 F.3d 1064, 1142 (10th Cir. 2008) (citing Williams v. Taylor, 529 U.S. 362, 395, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). “But this is so only if the investigation fails to ... uncover significant mitigating evidence.” Id. at 1143. And, even if counsel’s performance is determined to have been deficient, DeRosa must further establish that the deficient performance prejudiced his defense. Strickland, 466 U.S. at 691, 104 S.Ct. 2052 (“An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.”).

In order to assess both prongs of the Strickland test, we shall begin by reviewing the mitigating evidence that was actually presented by DeRosa’s trial counsel. We will then review the additional mitigating evidence that DeRosa now contends should have been presented.

Mitigating evidence presented at trial:

At the sentencing phase of trial, DeRosa’s appointed counsel presented testimony from the following five witnesses:

Jason DeRosa — Jason is DeRosa’s older half-brother (they have the same mother, but different fathers). Jason testified at length about DeRosa’s unstable and painful childhood, including the fact that, when DeRosa was approximately three years old, their mother Cassie, in order to facilitate her own military training, left them in a full-time daycare center for a lengthy period of time, at the end of which their maternal grandmother retrieved them and took them to Dallas to live with her for approximately three years. From there, Jason testified, DeRosa was taken in by his biological father, James Money, Sr. (Money), and DeRosa lived with Money and his new family for approximately five years. At the approximate age of eleven, DeRosa moved to Indianapolis to live with his mother, her new husband, James DeRosa Sr. (DeRosa Sr.), and Jason. In 1992, DeRosa Sr. died while on active duty in the military. Jason testified that “[tjhere was no structure to [DeRosa’s] life, through the ... whole childhood and up until he was an adult,” Tr. at 602, and that DeRosa “felt like he didn’t belong a lot of times,” id. at 603. Jason further testified that he loved DeRosa and he asked the jury to spare DeRosa’s life.

Cassie DeRosa—Cassie, DeRosa’s mother, testified that DeRosa was born on March 17, 1977, in Irving, Texas, and that at the time of his birth their family included herself, her then-husband, Money, and her son Jason. A few weeks after DeRosa was born, she testified, Money stole approximately $1,500 from his employer and fled to San Francisco. Money returned to Irving approximately four months later. Shortly thereafter, Cassie testified, she came home one day to find Money on the couch with a male lover. She testified that she responded by moving out of the family’s house with her two sons, and proceeded to try to raise them by herself.

According to Cassie, her mother did not help her with raising the two boys. She testified: “My mother doesn’t — my mother never cared for me. A few years ago, she finally gave me an answer when I asked why, and she said, well, you were defective. So she never liked me much. She never — when she wanted something or needed me, or needed help or wanted something, then I was her daughter, and other than that, I wasn’t her daughter and she didn’t care for Jimmy, Jr. [i.e., DeRosa.] Jimmy, Jr. looked like me, from the day he was born he was defective, and so it’s like she — she loved Jason, and loved him above everything, but the other two-thirds, you know, didn’t count.” Id. at 610.

Cassie testified that on the morning of November 28, 1978, she enlisted in the military, and later that afternoon filed for divorce from Money. She testified that she did so in that particular order because she would not have been allowed to enlist if she was a single mother. According to Cassie, she left for basic training in late December 1978, and her mother agreed to take care of Jason, “but she didn’t keep [DeRosa].” Id. at 612. DeRosa was apparently left to be cared for by a roommate of Cassie’s. Later on, Cassie testified, she was selected to attend a drill sergeant academy in Fort Leonard Wood, Missouri. Her mother, she testified, refused to take her boys because of the expense, and instead “located this daycare center at Lawton[, Oklahoma, that was] specifically tailor-made to military people with children that get called out.” Id. Cassie testified that she proceeded to place her sons in the daycare center and left for training. When she returned approximately two-and-a-half weeks later, she testified, her “mother had been there earlier that day” and had “taken [her] kids on grounds of abandonment.” Id. at 614. Cassie testified that she had given the director of the daycare center a letter forbidding them from allowing her mother to take custody of the boys, but she testified that her mother forged a document in order to obtain their custody. Cassie also testified that her mother obtained restraining orders prohibiting Cassie from having contact with her boys, and that when she (Cassie) actually attempted to visit her boys on one occasion, her mother threatened to kill her and chased her away at high speed in an automobile.

Cassie testified that approximately two months after her mother took the boys from the daycare center, her mother sent DeRosa to Boston to live with Money.

According to Cassie, when she remarried DeRosa Sr. in 1985, her mother told her she deserved her children and could have them back. She testified that Jason returned to live with her in 1987, and that DeRosa returned to live with them in April 1988. Cassie testified that she soon realized, however, that DeRosa was “a handful” and had problems with authority and discipline. Id. at 618.

In August 1988, Cassie testified, she, DeRosa Sr., and the two boys moved to Germany. In Germany, DeRosa engaged in inappropriate behaviors and eventually had to be sent back to Arkansas to be admitted temporarily to a hospital psychiatric unit for treatment for concentration hyperactivity disorder and severe depression. According to Cassie, DeRosa was depressed about the physical and mental abuse he had suffered, and she testified that they suspected he had been sexually molested at some point by Money. Cassie testified that DeRosa, “even at sixteen, seventeen, eighteen, nineteen years old” would “just stand in the middle of the room and scream,” and that she would hold him in a rocking chair and he would say, ‘Make the pain go away, mom. Make the pain go away.’ ” Id. at 623.

Cassie opined that she likewise suffered from depression and concentration hyperactivity disorder, and she testified that after her mother took her boys, she “ended up becoming a functioning alcoholic for quite sometime until [she] went and got ... psychological treatment.” Id. at 625.

After DeRosa was discharged from psychiatric treatment, he attended high school in Oklahoma. Cassie testified that DeRosa was smart, but was bored with school and had problems with his grades. And she testified that he would intentionally fail or make bad grades in order to prevent good things from happening. “It was almost like he didn’t want anything good to happen to him,” she testified. Id. at 629.

Following graduation from high school in 1995, Cassie testified, DeRosa joined the Army. He received a bad-conduct discharge, however, for stealing a car, and was sentenced to ten months in the military correctional facility at Fort Sill, Oklahoma. After completing that sentence, Cassie testified, DeRosa returned to Poteau, Oklahoma, and lived with her for some time while working a series of low-paying restaurant and retail jobs.

In April 1999, Cassie testified, she began working for the Plummers, helping to maintain all of the houses, lawns, and equipment on their rural property. Cassie testified that from mid-August to mid-September of 1999, she had to leave Poteau to attend a thirty-day annual training session with the Army reserves, and during that time the Plummers agreed to allow DeRosa to fill in for her.

Ultimately, Cassie testified that, although she did not condone DeRosa’s actions in robbing and murdering the Plummers, she still loved him, and she asked the jury to spare his life. In doing so, she stated: “He didn’t deserve the life that he has had to live. There’s no fault of his own. He’s lived a life that I didn’t choose for him, I didn’t want for him, and I couldn’t change what happened to him.” Id. at 635. She also told the jury, “My son’s a good boy — he is a good boy. His thought patterns don’t work well sometimes and he doesn’t see beyond a certain thing.” Id. at 636.

Marlene Sharp — Marlene is DeRosa’s half-sister; she and DeRosa have the same biological father (Money), but different mothers. Marlene, who is approximately eleven years older than DeRosa, testified that she first had contact with DeRosa when he was one year old and living in Irving, Texas, with Cassie, Money, and Jason. Approximately three years later (when DeRosa was four years old), she testified, the two of them lived together with their father for several months (as noted, DeRosa was removed from the daycare center by his maternal grandmother and then sent to Boston to live with Money; Marlene was spending the summer with Money). During that summer, she testified, their father was never around, so she and DeRosa were always together. At some point, she testified, he began calling her “mom,” and she tried to explain to him that she wasn’t his mother. Id. at 639. Marlene ultimately left Boston, she testified, because she woke up one night to find her father sexually abusing her.

Marlene testified that she had no contact with DeRosa from that point until he and their father moved back to Texas. There, she testified, she began seeing DeRosa at least once a month. She testified that DeRosa was worried all the time and depressed.

Marlene testified that she moved back in with her father and DeRosa in an attempt to rebuild her relationship with her father. While she lived at their father’s house, she testified, DeRosa “would get beat for wetting the bed,” would have plates and dishes thrown at him, and “would take the spankings” for the misconduct of Timothy, their father’s new son. Id. at 641. Marlene testified that she ended up leaving her father’s house after six weeks because she couldn’t take things anymore.

At some point after she moved out, Marlene testified, her father informed her that he was going on the road to be a truckdriver. She testified that she was scared for DeRosa, who was approximately nine or ten at the time, to stay alone with Vicki, her father’s new wife, because Vicki was the one who had been abusing DeRosa. Consequently, she testified, she asked her father not to leave DeRosa alone with Vicki. Her father, in response, told her that Cassie had asked to have custody of DeRosa, and Marlene begged her father to allow DeRosa to move in with Cassie. Although her father agreed, she testified that, up until that point in time, DeRosa did not know that Cassie was his mother.

Marlene testified that DeRosa’s childhood was