United States 10th Circuit Court of Appeals Reports

SHORT v. SIRMONS, 04-6299 (10th Cir. 12-26-2006) TERRY LYN
SHORT, Petitioner — Appellant, v. MARTY SIRMONS,
Warden, Oklahoma State Penitentiary, Respondent —
Appellee. No. 04-6299. United States Court of Appeals,
Tenth Circuit. December 26, 2006.

Appeal from the United States District Court for the
Western District of Oklahoma, (D.C. No. CIV-00-749-T).

John Dexter Marble (Gary M. Chubbuck and Susan F. Kane with
him on the briefs), Chubbuck Smith Rhodes Stewart & Elder,
Oklahoma City, Oklahoma, for Petitioner-Appellant.

Robert L. Whittaker, Assistant Attorney General (W.A. Drew
Edmondson, Attorney General of Oklahoma, with him on the
brief), for Respondent-Appellee.

Before TACHA, HENRY, and McCONNELL, Circuit Judges.

HENRY, Circuit Judge.

Terry Lyn Short was convicted after a jury trial in the
District Court for Oklahoma County of first-degree murder
and five counts of attempting to kill after former
conviction of two or more felonies in violation of Okla.
Stat. tit. 21, §§ 701.7, 652. As to the murder
conviction, the jury found three aggravating circumstances,
and the trial court imposed the death penalty. The Oklahoma
Court of Criminal Appeals (OCCA) affirmed Mr. Short’s
convictions and sentences on direct appeal, Short v. State,
980 P.2d 1081 (Okla.Crim.App. 1999), and also denied his
motion for post-conviction relief.

Subsequently, Mr. Short filed a 28 U.S.C. § 2254
habeas corpus petition in the United States District Court
for the Western District of Oklahoma, asserting fifteen
grounds for relief. The district court denied Mr. Short’s
petition, but, pursuant to 28 U.S.C. §
2253(c)(1)(A), granted a certificate of appealability on
five of his claims. Mr. Short now argues that (1) the trial
court’s exclusion of testimony of a defense witness, which
the trial court imposed as a sanction for failure to comply
with a discovery order, violated his Sixth Amendment
Compulsory Process Clause right; (2) the jury heard improper
victim impact evidence that resulted in an unconstitutional
sentencing process; (3) prosecutorial misconduct during the
sentencing phase violated his due process rights; (4) his
counsel provided ineffective assistance when he failed to
object to the unconstitutional portions of the victim
impact evidence and to repeated instances of prosecutorial
misconduct; and (5) viewing the above errors collectively,
the totality of the proceedings was unjust and that these
errors substantially prejudiced the jury’s deliberations at

Upon thorough review of the record and the applicable law,
we conclude that Mr. Short is not entitled to relief on any
of his claims. We therefore affirm the district court’s
denial of his § 2254 petition.


The following facts are largely taken from the direct
appeal opinion of the OCCA. Short, 980 P.2d at 1089-90. Mr.
Short was convicted of the murder of Ken Yamamoto. Mr.
Yamamoto lived in an Oklahoma City apartment directly above
that of Mr. Short’s former girlfriend, Brenda Gardner, her
sister Tammy Gardner, and Tammy’s two minor children. After
a fire started in Tammy’s apartment, Brenda, Tammy, and the
children escaped. Robert Hines, the former husband of
Brenda’s sister, Peggy, and the father of one of Tammy’s
children, was also present and escaped with injuries.

The fire spread quickly causing Mr. Yamamoto’s apartment to
collapse. Mr. Yamamoto, who had been sleeping, suffered
burns to ninety-five percent of his body. He was conscious
when taken to the hospital, but he died several hours

A. Mr. Short’s relationship with Brenda

Marjorie Long, Brenda’s mother, testified that in 1994 she
rented an Oklahoma City apartment to Brenda and Mr. Short,
an employee of Two Guys Auto, an auto repair shop. She
stated that after Mr. Short ransacked the bedroom and broke
a window, she took his name off the lease. She testified
that in August or September of 1994, Mr. Short threw rocks
at her car when she was driving with Brenda, and also tried
to run her off the road. Mr. Short pulled up next to her
car and when Brenda refused to talk to him, he said, “I’ll
just get some gas and pour [it] on your mother and set her
on fire.” Rec. vol. III, at 126. Brenda also testified that
Mr. Short had threatened her and her family. She also
stated that, at another time, he had shown her how to make a
firebomb, using a bottle, gasoline, wax, and a towel.

The prosecution presented testimony from Oklahoma City
police officer Sergeant Chuck Wheeler about Mr. Short’s
threatening behavior. Sergeant Wheeler stated that, on
December 26, 1994, he answered a call that a female,
Brenda, was being held against her will by a male, Mr.
Short. Sergeant Wheeler took Brenda to her sister’s
apartment, despite Mr. Short’s protests.

Brenda admitted to having broken up with Mr. Short on
December 26, 1994. However, she saw him almost daily from
December 28 through January 4, 1995, when she and Mr. Short
were charged with shoplifting.

Brenda’s sister Janet testified that she accompanied Brenda
to court on the shoplifting charge. According to Janet, Mr.
Short was getting angry and wanted Brenda to “[t]ake the
rap for it.” Id. at 144. She stated that he “[s]aid she’d
better or else.” Id.

Mr. Hines also went to the courthouse on January 4, and
told Mr. Short, “Don’t be threatening my family.” Id. at
233. According to Mr. Hines, Mr. Short started threatening
Mr. Hines at that point.

Mr. Short’s aunt testified that about three days before the
fire, she had seen Mr. Short in a red coat that was stained
with gasoline and oil. She testified that the coat —
an exhibit in the case — looked about the same as
before the fire.

Finally, Keith Partain, a friend of Mr. Short’s for fifteen
years, testified that about a week before the fire, Mr.
Short remarked that “he was going to burn Brenda and her
family up.” Rec. vol. IV, at 137. Mr. Partain thought Mr.
Short was joking when he said this. When Mr. Partain saw
Mr. Short on the day before the fire, Mr. Short seemed
depressed about having broken up with Brenda. However,
Linda Gonzalez, another friend, testified she saw him at
about 7 p.m. that evening and that he seemed to be “happy
like he always is.” Id. at 143.

B. The events of January 8, 1995

Brenda Gardner testified that on January 8, 1995, at about
3:00 a.m., she and her sister were in the apartment with
the two sleeping children. Brenda heard a noise at the
front door as though someone was trying to break in. She
yelled out, and it stopped.

Sometime in the next thirty minutes, Mr. Hines arrived at
the apartment. He tried enter through the front door, which
was jammed. Tammy let him in through the patio door.

At about 4:00 a.m., Brenda looked out the patio door and
noticed Mr. Short standing by Mr. Hines’s truck. Brenda
testified Mr. Short was wearing a red jacket. She testified
that Mr. Hines also looked out the patio door. Mr. Hines
first stated at trial that he was certain the man was Mr.
Short. On cross-examination, however, Mr. Hines admitted he
assumed the person outside was Mr. Short because Brenda and
her sister Tammy told him that Mr. Short had been outside
the apartment earlier that evening.

Brenda stated that Mr. Short turned his back, and appeared
to be lighting a cigarette. “Then I seen a bigger flame,
and at that time I looked up at Robert, and then the next
thing I know the window was shattered and Robert was on
fire.” Rec. vol. III, at 168. She did not see Mr. Short
throw anything, however. After getting the children, Brenda
called 911 and told them her ex-boyfriend had thrown a bomb
in the apartment.

C. The investigation of Mr. Yamamoto’s death

Later that day, Mr. Short telephoned his cousin, David
Davis. Mr. Short asked Mr. Davis to pick him up.
Apparently, Mr. Short had seen news reports of the fire,
and was scared of the city police because of previous
“run-ins.” Rec. vol. IV, at 93. At Mr. Short’s request, Mr.
Davis brought Mr. Short a change of clothes. Mr. Davis
testified that Mr. Short denied being involved in the fire
bombing. After Mr. Short had changed, he surrendered to the
Oklahoma City police.

Oklahoma City Detective Mike Burke testified that when Mr.
Short came into the Oklahoma County jail, he was not
wearing socks. Detective Burke searched Mr. Davis’s vehicle
and retrieved a red coat that tested positive for gasoline.
The coat contained three disposable lighters, some rolling
paper, and a package of leaf tobacco. Mr. Short’s sneakers
also tested positive for gasoline. Detective Burke found no
socks in the vehicle.

Homicide Detective Robert Mark Easley testified about his
investigation. He searched what had been Mr. Short’s
registered room at the Melrose Motel. Inside a white
plastic bag, Detective Easley found some clothing, and a
bottle of lighter fluid. He also recovered a legal pad that
contained some writing about Brenda. Excerpts, as read by
Detective Easley, included:

1-4-95 . . . the last time I seen her.

1-5-95 . . . still no word from her. My life is over with
her and I know it, but I do love her.

1-7-95, still no word from her. I guess she found
somebody else. I only hope I know I still have a chance as
long as she did not have sex with nobody.

1-8-95 . . . I need her to go on in my life. She is all I

Id. at 111-112.

Detective Easley also identified photographs he took of
items in the motel room, including a bottle cap without the
liner, one with the liner, the blue liner to a bottle cap,
and an empty two-liter bottle of RC Cola.

D. Testimony of Mr. Brown

Mr. Short spent several days in a holding cell at the
Oklahoma County jail. Another occupant of the holding cell,
Jay Brown, who had been arrested for distribution of
marijuana, testified that he met Mr. Short there. According
to Mr. Brown, there were about twenty-two people in the
cell. Mr. Brown testified that he saw Mr. Short write “die,
Brenda G,” “Brenda G is a slut,” and “burn Brenda G” on the
cell’s walls. Rec. vol. IV, at 171-72. Those writings are
evident in the photographs of the cell taken later by
Detective Easley.

Mr. Brown testified that after discovering his brother was
an attorney, Mr. Short asked if fingerprints would appear
on a bottle when one’s fingers were taped. Mr. Brown also
testified that Mr. Short told him that one day he caught
Brenda having sexual intercourse with her brother-in-law
and that Mr. Short then returned to Two Guys Auto. Mr.
Brown testified:

I think [Mr. Short] said he looked for a gun . . .
somehow it was locked or something, so he came up with the
idea to use a Coke bottle and a sock. He put gasoline in
the Coke bottle, put the sock in the gasoline and put it
in there. Went back to the apartment, opened the door,
threw the bottle, — watched it hit . . . shut the
door so they wouldn’t be able to run out and left.

Id. at 173. Mr. Short told Mr. Brown that, before shutting
the door, he saw the bottle hit a man in the apartment in
the head. Mr. Brown testified that Mr. Short was nicknamed
“Fireball” within the cell. Id. at 189.

Mr. Brown testified that he believed that he was originally
facing a sentence of five years to twenty-five years. After
his testimony in this and another case, he received a
five-year deferred sentence.

E. Proffered testimony of Mr. Bayless

On April 10, 1997, after Mr. Brown testified and the
prosecution rested, the defense attempted to introduce the
testimony of Mark Bayless, another occupant of the Oklahoma
County jail’s holding cell. On April 7, 1997, three days
earlier, defense counsel had notified the prosecution of
its intent.

According to defense counsel, Mr. Bayless

was present during the entire time that Jay Brown and
Terry Short were together. He’ll refute every single word
that Jay Brown testified to. He also will testify that the
drawings and the writings were done by someone else, not
Terry Short, and that Jay Brown’s a liar.

. . . . In [a] criminal case a snitch or a government
informant witness is the most suspicious sort of witness .
. . because he is the only person on the face of the earth
that the state claims Terry Short confessed to, and . . .
his testimony . . . is very critical to the state’s case.

Id. at 193 (emphasis added).

Defense counsel stated that the first time he ever knew
about the photographs of the holding cell was on March 31,
1997, despite Mr. Brown’s having testified at the
preliminary hearing over a year and a half earlier. “I
immediately had . . . an investigator in our office[]
search for prisoners who were present during that period of
time.” Id. The State did not attempt to interview Mr.
Bayless after being notified about him.

The State responded that Mr. Bayless could not refute what
Mr. Short told Mr. Brown. It reiterated that the
photographs had been made available to defense counsel for
over a year, and that current defense counsel had been in
the prosecutor’s office to review files more than two weeks

Defense counsel responded:

The nature of Mr. Bayless’s testimony is a direct
refutation of this government informant or snitch. . . .

The remedy . . . which would correct the situation would
be to allow the state to talk to this witness. But in a
capital murder case where a discovery violation has
occurred . . . then there are several remedies, and one is
to recess the case in order to give us time to
investigate what is a terribly harsh penalty to punish
Terry Short with any defects in his lawyers.

[H]is testimony is crucial . . . . because [t]hey have
not talked about any admissions by Terry Short admitting
to the crime. . . .

Id. at 194-95.

Defense counsel then clarified that Mr. Bayless would state
“that Terry Short did not draw that obscene picture on the
wall, that he did not write, [‘]burn, Brenda, burn[‘] on
the wall, those are two things that he saw someone else do,
he’s willing to testify to it, and it’s relevant and it’s
crucial to the defense.” Id. at 198-99.

The trial court agreed with the prosecution that “there’s
no way he could know and tell the jury what the defendant
did or did not tell Jay Brown.” Id. at 199. The court
concluded that cross-examination provided enough
opportunity to challenge Mr. Brown’s credibility. The court
also rejected defense counsel’s argument that Mr. Bayless
might be a rebuttal witness.

F. Expert testimony

The prosecution presented testimony from fire investigator
David D. Dallas regarding the fire’s origin. Mr. Dallas
testified that the fire began in front of the patio door on
the interior of the apartment. He stated that the fire was
caused by a “fire bomb device . . . thrown into the
apartment through the patio door [that] caused burning
inside the apartment on the ground floor.” Rec. vol. IV, at

Mr. Dallas discussed a piece of aluminum that melted from
the patio door. The piece indicated that the aluminum
melted first and ignited a nearby bed, which was the
secondary source of fuel. The aluminum contained jute from
the carpet and the remains of an ashtray that was near the
bed. There was also evidence of cigarettes and a book of
matches nearby.

Mr. Dallas testified that he was able to eliminate the
possibility of a smoker-related fire because of the pattern
of the melted aluminum. The aluminum also contained some
thin glass on the bottom, which meant the glass was there
before the aluminum melted on it. According to Mr. Dallas,
“[t]his glass on the bottom is from [the] suspected
container.” Id. at 50. A thicker fragment of glass was
consistent with the bottom of a soft drink container, but
Mr. Dallas could not identify the size of the container.
Mr. Dallas found no traces of an accelerant in or around
the areas of the fire’s origination. He could not confirm
that the container ever held an accelerant.

As to the pattern of the fire, Mr. Dallas testified that a
Molotov cocktail would result in “two areas of severe
burn”: (1) liquids would accumulate at the door and (2)
some would pass on with the container as it entered the
interior of the room. Id. at 54. In the apartment, there
were two areas of origination, one that started from
accelerated temperature and concrete at the threshold of
the patio door, and a second about two feet away from the
patio door. Mr. Dallas could not identify the glass from
the patio door as tempered glass, but noted that its
thickness supported that conclusion.

He saw no evidence of a methamphetamine lab explosion, a
possibility advanced by Mr. Short. Rather, Mr. Dallas
testified that an accelerant started the fire. He conceded
that some ingredients or precursors of methamphetamine
could be classified as accelerants.

Defense counsel presented testimony from criminologist
Patricia Eddings who stated that the evidence at the scene
was not consistent with a fire bomb. She noted that it was
unlikely that a soda bottle would break the patio door’s
tempered glass, and then shatter on the carpeted floor. Ms.
Eddings also noted that the glass the prosecution
identified as consistent with the base of a soda bottle had
no characteristic markings and was more consistent with a
drinking glass.

When she examined Mr. Hines’s clothing, she noted that the
upper front pocket of his jeans contained a baggie of
methamphetamine. Mr. Hines had admitted to having used
drugs earlier on January 7 and 8 and to having
methamphetamine in his trousers and in his truck. Ms.
Eddings testified that Mr. Hines’s burns were more
consistent with a kitchen-type cooking fire. Another fire
investigator, George Hale, also testified that Mr. Hines’s
injuries were only on the upper portion of his body.

G. The jury’s findings

A jury found Mr. Short guilty of the first-degree murder of
Mr. Yamamoto and five counts of attempting to kill after
former conviction of two or more felonies. The jury
recommended imposition of the death penalty for the murder
after finding the existence of three aggravating
circumstances: (1) Mr. Short knowingly created a risk of
death to more than one person; (2) the murder was
especially heinous, atrocious, or cruel; and (3) Mr. Short
constituted a continuing threat to society. The jury
recommended three 100-year sentences and two 200-year
sentences for the attempting-to-kill offenses.


If a claim was adjudicated on the merits in state court, we
review the state court ruling under the deferential
standard of the Anti-Terrorism and Effective Death Penalty
Act (AEDPA), 28 U.S.C. § 2254(d). Under AEDPA, a
petitioner is entitled to federal habeas relief only if he
can establish that 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,” or was “based on an unreasonable
determination of the facts in light of the evidence
presented in the State court proceeding.” Id. §
2254(d)(1)-(2). In conducting this inquiry, we presume the
factual findings of the state trial and appellate courts
are correct, and we place the burden of rebutting this
presumption by clear and convincing evidence on the
petitioner. Id. § 2254(e)(1). “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.”

When the state court has not previously addressed the
merits of the claim for relief, the § 2254 framework
does not apply. Mitchell v. Gibson, 262 F.3d 1036, 1045
(10th Cir. 2001). Instead, we review the district court’s
legal conclusions de novo and its factual findings for
clear error. Id. If the district court’s factual findings
depend entirely on the state court record, we independently
review that record. Walker v. Gibson, 228 F.3d 1217, 1225
(10th Cir. 2000).


Mr. Short raises one guilt-phase error (a violation of his
Sixth Amendment rights through the exclusion of testimony of
his cellmate, Mr. Bayless), and four sentencing-stage
errors (admission of improper victim-impact evidence,
prosecutorial misconduct, ineffective assistance of
counsel, and cumulative error). We review each contention in

A. Sixth Amendment violation

Mr. Short contends that the exclusion of Mr. Bayless’s
testimony violated his Sixth Amendment Compulsory Process
Clause right and unconstitutionally prejudiced the jury’s
deliberations during the guilt and sentencing stages. The
Compulsory Process Clause provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to
have compulsory process for obtaining witnesses in his
favor.” U.S. CONST. amend. VI; see Taylor v. Illinois, 484
U.S. 400, 409 (1988) (“To ensure that justice is done, it
is imperative to the function of courts that compulsory
process be available for the production of evidence needed
either by the prosecution or by the defense.”) (quoting
United States v. Nixon, 418 U.S. 683, 709 (1974)).

1. Exclusion of Mr. Bayless’s testimony at the guilt stage

Mr. Short argues that the trial court’s exclusion of Mr.
Bayless’s testimony violated his Sixth Amendment right to
compulsory process. As the OCCA noted, Oklahoma law permits
exclusion of evidence for failure to comply with discovery
rules. Under Okla. Stat. tit. 22, § 2002(D), “[a]ll
issues relating to discovery, except as otherwise provided,
will be completed at least ten (10) days prior to trial.
The court may specify the time, place and manner of making
the discovery and may prescribe such terms and conditions
as are just.” Specifically, under Oklahoma law:

If at any time during the course of the proceedings it is
brought to the attention of the court that a party has
failed to comply with this rule, the court may order such
party to permit the discovery or inspection, grant
continuance, or prohibit the party from introducing
evidence not disclosed, or it may enter such other order
as it deems just under the circumstances.

OKLA. STAT. tit. 22, § 2002(E)(2) (emphasis added);
see e.g., Wilkerson v. Dist. Court of McIntosh County, 839
P.2d 659, 661 (Okla.Crim.App. 1992). Oklahoma’s “Code gives
trial courts discretion to specify the time, place, and
manner” of complying with discovery requirements. Rojem v.
State, 130 P.3d 287, 297 (Okla.Crim.App. 2006). However,
“[a]lthough the criminal discovery code provides for
exclusion of evidence as a sanction for non-compliance,
this Court has found in several capital cases that the
exclusion of a defense witness was too severe a sanction.”
Id. (emphasis added) (internal quotation marks omitted).

Under the circumstances here, the OCCA agreed that
preclusion of Mr. Bayless’s testimony was an appropriate

Based upon the record before us, we are unable to
determine that the preclusion of Bayless’s testimony was
not an appropriate sanction. The preliminary hearing in
this case was held approximately one year and a half prior
to trial. Brown testified at the preliminary hearing and
gave essentially the same testimony as he did at trial. [M
r. Short] has failed to explain why he did not notify the
State about Bayless’s testimony until the start of trial.

Further, Bayless was not a material witness. He was not a
party to the conversations between Brown and [Mr. Short].
Therefore, he could not testify as to the truthfulness of
Brown’s testimony regarding [Mr. Short’s] confession. At
most, Bayless could impeach Brown only as to the testimony
regarding who drew the pictures on the jail cell wall.
Bayless was not a witness to the actual crime and
therefore could not have refuted the testimony of the
eyewitnesses. Because Bayless was not a material witness,
and as [Mr. Short] has failed to establish that he was
substantially prejudiced by the exclusion of the
testimony, we find no error in the trial court’s ruling.

Short, 980 P.2d at 1193-94 (emphasis added).

In addition, the OCCA concluded that

under usual trial proceedings, rebuttal is an opportunity
for the State to present witnesses, for whom no notice is
required, to rebut the defense case-in-chief. The defense
does not present rebuttal witnesses until surrebuttal.
Bayless’s testimony does not qualify as surrebuttal

Id. at 1094. Because Mr. Bayless was not a material witness,
and because Mr. Short could not establish that he was
substantially prejudiced by the exclusion of the testimony,
the OCCA found “no error in the trial court’s ruling.” Id.
Because the OCCA applied the correct governing legal
principle to M r. Short’s case, we review its ruling under
the highly circumscribed constrictions of AEDPA.

a. Defense counsel’s actions with respect to Mr. Bayless

The record indicates that Wesley Gibson first represented
Mr. Short. Some time after the preliminary hearing (which
took place on August 23 and September 5, 1995), Mr. Gibson
suffered a stroke and was unable to continue as Mr. Short’s
attorney. Jim Rowan was assigned to the case and served as
Mr. Short’s counsel at trial. The record does not reveal
exactly when Mr. Rowan began representing Mr. Short.
Apparently, no entry of appearance was filed. The first
indication of Mr. Rowan’s involvement appears on a
“Petition for Order” filed September 19, 1996, a little
over six months before the trial. See Aplt’s Br. at 32 n.
12 (referencing state postconviction proceedings, filed
Apr. 29, 1998).

b. Compulsory process

The Sixth Amendment does not confer “an unfettered right to
offer testimony that is incomplete, privileged, or
otherwise inadmissable under standard rules of evidence.”
Taylor, 484 U.S. at 410. “The defendant’s right to
compulsory process is itself designed to vindicate the
principle that the `ends of criminal justice would be
defeated if judgments were to be founded on a partial or
speculative presentation of the facts.'” Id. at 411
(quoting Nixon, 418 U.S. at 709). However, “few rights are
more fundamental than that of an accused to present
witnesses in his own defense and the preclusion of material
defense witnesses from testifying is the severest sanction
for discovery violations.” Wilkerson, 839 P.2d at 661
(citing Taylor, 484 U.S. 400).

The Taylor Court noted that there is not “a comprehensive
set of standards to guide the exercise of discretion in
every possible case.” 484 U.S. at 414. However, paramount
considerations are “[t]he integrity of the adversary
process, which depends both on the presentation of reliable
evidence and the rejection of unreliable evidence, the
interest in the fair and efficient administration of
justice, and the potential prejudice to the
truth-determining function of the trial process.” Id. at
414-15 (emphasis added). Further, if the delay “was willful
and motivated by a desire to obtain a tactical advantage
that would minimize the effectiveness of cross-examination
and the ability to adduce rebuttal evidence,” exclusion
would be “entirely consistent” with the purposes of the
Compulsory Process Clause. Id. at 415 (emphasis added).

In applying Supreme Court precedent to compulsory process
challenges to a trial court’s exclusion of evidence, this
court has undertaken a three-part inquiry. See e.g., United
States v. Wooten, 377 F.3d 1134, 1141 (10th Cir. 2004);
Richmond v. Embry, 122 F.3d 866, 872 (10th Cir. 1997).
First, we examine whether the excluded testimony was
relevant. If so, we ask “whether the state’s interest in
excluding the evidence outweighed [the defendant’s]
interest in its admittance.” Richmond, 122 F.3d at 872.
Finally, we consider “whether the excluded testimony was
material, whether the excluded testimony was of such an
exculpatory nature that its exclusion affected the trial’s
outcome.” Id. These “three factors merely guide the
district court and do not dictate the bounds of the court’s
discretion.” United States v. Russell, 109 F.3d 1503, 1511
(10th Cir. 1997).

c. The OCCA’s application of Taylor v. Illinois

In determining whether the OCCA unreasonably applied
federal law in rejecting Mr. Short’s compulsory process
claim, we must decide whether the OCCA’s decision was
unreasonable, not whether it was correct. See Mitchell v.
20 Gibson, 262 F.3d 1036, 1045 (10th Cir. 2001)
(distinguishing between these two inquiries); Watley v.
Williams, 218 F.3d 1156, 1159 (10th Cir. 2000) (observing
that “[r]easonable minds may disagree about the
appropriateness of excluding an alibi witness whom
Petitioner’s counsel did not willfully omit, but under AEDPA
we are limited to applying existing Supreme Court
precedent” and holding that “the New Mexico Court of
Appeals reasonably applied Taylor v. Illinois”).

(i) Relevance

Under Oklahoma law, “[r]elevant evidence” is that which has
“any tendency to make the existence of a fact that is of
consequence to the determination of the action more
probable or less probable than it would be without the
evidence.” OKLA. STAT. tit. 12, § 2401; see Phillips
v. State, 989 P.2d 1017, 1030 (Okla.Crim.App. 1999)
(applying the relevance standard). In order to determine
whether Mr. Bayless’s testimony would have been relevant,
we must first consider the testimony of Mr. Brown —
the witness whose testimony defense counsel sought to
impeach through Mr. Bayless. The OCCA held that the
photographs of the holding cell, including the drawings and
inscriptions, introduced during the testimony of Detective
Easley, were properly admitted. The court’s determination
of the photographs’ relevance was based exclusively upon
Mr. Brown’s testimony. According to the OCCA, the drawings
corroborated Mr. Brown’s testimony regarding Mr. Short’s
authorship of the inscriptions. Mr. Brown also testified
that he observed Mr. Short draw sexually explicit pictures
of a woman on the cell’s walls. Mr. Brown also observed Mr.
Short write “die, Brenda G,” and “Brenda G is a slut,” and
“burn Brenda G” next to the pictures. Rec. vol. IV, at
171-72. The OCCA noted that “the fact that [Mr. Short]
wrote the derogatory comments next to the pictures makes it
more probable that [Mr. Short] drew the pictures.” 980 P.2d
at 1095. Mr. Brown’s testimony regarding the inscriptions
supported the State’s contention that Mr. Short intended to
start the fire.

In addition, Mr. Brown testified to conversations he had
with Mr. Short regarding the means of committing the crime
and Mr. Short’s motive. According to Mr. Brown, Mr. Short
confided that, after discovering Brenda having sexual
intercourse with Mr. Hines, he filled a Coke bottle with
gasoline and threw it into the apartment. Mr. Brown also
testified that Mr. Short’s nickname in the cell was
“Fireball” and that Mr. Short had asked him if he knew
whether fingerprints could be pulled off a bottle if he had
tape on his fingers.

The prosecution twice referred to Mr. Short’s confession to
Mr. Brown during its first-stage closing. Rec. vol. V, at
95, 99. Despite the State’s current and contrary
characterization of Mr. Brown’s testimony as “peripheral,”
Aple’s Br. at 51, Mr. Brown’s testimony was indeed relevant
to the prosecution because it served as the only testimony
from an unrelated party directly connecting Mr. Short to
the crime. Further, as the record reflects, District
Attorney Robert Macy has testified that he does not “like
to use [jailhouse informants] unless they can fulfill a
critical element that you can’t fill in any other way. . . .
I just think if you can make your case without using an
informant, you’re better off.” Depo. of Robert Macy, May
13, 1999, at 81 App. Ex. J. (Case. No. CIV-96-882, Romano
v. Ward).

Mr. Bayless’s proffered testimony, if true and credible,
was similarly relevant. It would have served to impeach Mr.
Brown’s testimony regarding who wrote the derogatory
comments and threats about Brenda Gardner on the cell walls
in addition to creating doubts as to who drew the pictures.
We thus proceed to the second part of the compulsory
process inquiry, balancing “the state’s interest in
excluding the evidence” with “[Mr. Short’s] interest in its
admittance.” Richmond, 122 F.3d at 872.

(ii) Balancing the interests of the State and Mr. Short

It is undisputed that the State received no notice of Mr.
Bayless’s status as a witness until the first day of trial.
We agree that, had Mr. Bayless been allowed to testify at
trial, defense counsel’s failure to abide by Oklahoma’s
discovery code would have prejudiced the State to some
extent: the prosecutor would have had only a very limited
time to investigate and prepare for cross-examination.
Moreover, Mr. Short has failed to explain the delay in
notifying the State. Mr. Brown-the witness whose testimony
Mr. Bayless would have impeached-testified at the
preliminary hearing, which took place nearly eighteen months
before the trial began.

Nevertheless, the exclusion of relevant, probative, and
otherwise admissible evidence is an extreme sanction that
should be used only when justified by “some overriding
policy consideration.” United States v. Davis, 639 F.2d
239, 243 (5th Cir. 1981); see also 2 ABA STANDARDS FOR
CRIMINAL JUSTICE § 11-4.7(a) (2d ed. 1980) (“The
exclusion sanction is not recommended because its results
are capricious.”). At trial, defense counsel contended that
the appropriate remedy would be to grant the State the
needed time to talk to Mr. Bayless, or to grant a recess.
The trial court did not address these options, but rejected
them implicitly:

we have our discovery rules which . . . should have some
meaning. It’s to prevent both sides from trial by ambush.
. . . Sometimes there are exceptions where — for
reasons that could not be avoided, some witness could not
be secured in time to provide the other side that
witness’s name. I don’t believe that’s the case here.

Rec. vol. IV, at 199.

However, “prejudice . . . could [have been] minimized by
granting a continuance.” Taylor, 484 U.S. at 413; see
United States v. Golyansky, 291 F.3d 1245, 1249 (10th Cir.
2002) (“It would be a rare case where, absent bad faith, a
district court should exclude evidence rather than continue
the proceedings.”); United States v. Gonzales, 164 F.3d
1285, 1293 (10th Cir. 1999) (suggesting lesser sanctions for
the violation of a discovery order, such as censuring the
government attorney); Rojem, 130 P.3d at 297 (“Where the
discovery violation is not willful, blatant or calculated
gamesmanship, alternative sanctions are adequate and
appropriate.”). The state had already presented its
case-in-chief, as Mr. Brown was its final witness, so a
recess would not have created an unnatural break in its
presentation of evidence, although a recess would have
likely required holding the jury over during the delay.
(Indeed, we note that the trial court did grant a
continuance on the following day, Friday April 11, 1997,
until Tuesday April 15, 1997, because defense expert Ms.
Eddings was unavailable.)

In addition, the State’s interest in the exclusion of Mr.
Bayless’s testimony is mitigated by the absence of evidence
that Mr. Short or his counsel acted in bad faith. While we
do not hold that bad faith is an absolute condition to
exclusion, “we agree with those circuits that have treated
bad faith as an important factor but not a prerequisite to
exclusion.” United States v. Johnson, 970 F.2d 907, 911
(D.C. Cir. 1992) (citing Eckert v. Tansy, 936 F.2d 444, 446
(9th Cir. 1991) and Chappee v. Vose, 843 F.2d 25, 29-32
(1st Cir. 1988)); see Taylor, 484 U.S. at 417, n. 23
(noting Illinois state courts’ use of the preclusion
sanction in the exceptional case “where the uncooperative
party demonstrates a deliberate contumacious or unwarranted
disregard of the court’s authority”) (internal quotation
marks omitted). Here, there was no finding of counsel’s bad
faith, and no evidence of Mr. Short’s complicity in the
discovery violation. See Taylor, 484 U.S. at 417 (“Whenever
a lawyer makes use of the sword provided by the Compulsory
Process Clause, there is some risk that he may wound his own
client.”) (footnote omitted); id. at 433 (Brennan, J.,
dissenting) (noting that “[t]he threat of disciplinary
proceedings, fines, or imprisonment will likely influence
attorney behavior to a far greater extent than the rather
indirect penalty threatened by evidentiary exclusion”).

As to Mr. Short’s interest in offering testimony from Mr.
Bayless, the fact that he was facing the death penalty is
very significant. See Morgan v. Dist. Court of Woodward
County, 831 P.2d 1001, 1005 (Okla.Crim.App. 1992) (stating
“it would be inappropriate to exclude defense witnesses
from testifying in a death penalty case . . . when the
actions of defense counsel, and not the defendant[], have
prevented compliance with the Trial Court’s order”); Rojem,
130 P.3d at 297 (same); Allen v. State, 944 P.2d 934, 937
(Okla.Crim.App. 1997) (exclusion “too severe a sanction”);
Wisdom v. State, 918 P.2d 384, 396 (Okla.Crim.App. 1996)
(concluding that the improper exclusion of a defense witness
warranted re-sentencing); see also Gardner v. Florida, 430
U.S. 349, 357-358 (1977) (“It is of vital importance to the
defendant and to the community that any decision to impose
the death sentence be, and appear to be, based on reason
rather than caprice or emotion.”); Burger v. Kemp, 483 U.S.
776, 785 (1987) (“‘Our duty to search for constitutional
error with painstaking care is never more exacting than it
is in a capital case.'”). Moreover, unlike other cases in
which we have upheld the exclusion of evidence, we cannot
say that Mr. Bayless’s testimony would have been “only
marginally relevant.” Richmond, 122 F.3d at 874; see also
Wooten, 377 F.3d at 1241 (observing that an exhibit that
was admitted into evidence “accomplished as much (and
perhaps more) for [the defendant] than if he had been
permitted to call [the excluded witness] to the stand”).

In light of these competing considerations, we conclude
that the interests of the State and Mr. Short are at least
in equipoise. We therefore proceed to examine the OCCA’s
conclusion that Mr. Bayless’s testimony was not material.

(iii) Materiality

Under the standard promulgated by the Supreme Court,
evidence is material “only if there is a reasonable
likelihood that the testimony could have affected the
judgment of the trier of fact.” United States v.
Valenzuela-Bernal, 458 U.S. 858, 874 (1982); see also
Richmond, 122 F.3d at 872 (“Evidence is material if its
suppression might have affected the trial’s outcome.”). A
“reasonable likelihood” or “reasonable probability” is “a
probability sufficient to undermine confidence in the
outcome.” United States v. Bagley, 473 U.S. 667, 682 (1985).
“What might be considered insignificant evidence in a
strong case might suffice to disturb an already
questionable verdict.” United States v. Robinson, 39 F.3d
1115, 1119 (10th Cir. 1994).

Here, Mr. Short proffered Mr. Bayless as an impeachment
witness — one who could rebut Mr. Brown’s testimony
that Mr. Short wrote the derogatory comments and threats
about Brenda Gardner on the walls of the holding cell.
Courts have found impeachment evidence material “if the
witness whose testimony is attacked supplied the only
evidence linking the defendant[] to the crime, or where the
likely impact on the witness’s credibility would have
undermined a critical element of the prosecution’s case.”
United States v. Wong, 78 F.3d 73, 79 (10th Cir. 1996)
(internal quotation marks and citations omitted). However,
when potential impeachment evidence merely constitutes “an
additional basis on which to impeach a witness whose
credibility has already been shown to be questionable,”
courts have concluded that the evidence is not material.

Here, as the OCCA reasoned, Mr. Brown’s testimony about Mr.
Short’s statements and conduct in the holding cell was by
no means the only evidence linking him to the firebombing
of Brenda Gardner’s apartment and the murder of Mr.
Yamamoto. Marjorie Long, Brenda Gardner, Janet Gardner, and
Keith Partain testified that Mr. Short made threatening
remarks toward Brenda and her family in the weeks before the
murder. Brenda Gardner testified that she saw Mr. Short
standing outside her apartment at 4:00 a.m. on the day of
the murder. Additionally, the prosecution introduced
evidence that Mr. Short’s coat and sneakers had testified
positive for gasoline and that a homicide detective had
discovered lighter fluid in Mr. Short’s motel room.

Moreover, even though Mr. Short was not able to offer
testimony from Mr. Bayless to impeach Mr. Brown, he was
able to challenge Mr. Brown’s credibility in other ways. In
particular, Mr. Short’s attorney elicited through cross
examination that Mr. Brown was addicted to cocaine and had
been arrested for possession of marijuana with intent to
distribute. Mr. Brown admitted that he believed he faced a
potential sentence of five to twenty-five years’
imprisonment and that he negotiated a deal with the
government for a deferred sentence in exchange for his
testimony against Mr. Short. In closing argument, Mr.
Short’s attorney maintained that Mr. Brown was not credible
and had “marketed information to preserve [himself].” Rec.
vol. V, at 110. Finally, he noted that Mr. Brown’s
description of Mr. Short’s statement about the bombing was
inconsistent with the other evidence offered by the State.
According to Mr. Brown, Mr. Short said that he had opened
the patio door and thrown the firebomb inside the
apartment; other evidence indicated that the firebomb had
crashed through the patio door.

Thus, evidence apart from Mr. Brown’s testimony implicated
Mr. Short in the murder. See Young v. Workman, 383 F.3d
1233, 1238 (10th Cir. 2004) (affirming the denial of a
petition for a writ of habeas corpus noting “[g]iven the
other evidence introduced at trial, we are not persuaded
the [excluded] evidence . . . would be anything more than
cumulative”). Moreover, Mr. Short was able to challenge Mr.
Brown’s credibility by means other than the proffered
testimony of Mr. Bayless. Accordingly, we cannot say that
the OCCA unreasonably applied federal law by concluding
that Mr. Bayless’s testimony was not material: to find, as
the OCCA implicitly did, that there was not “a reasonable
likelihood that [M r. Bayless’s] testimony could have
affected the judgment of the trier of fact,”
Valenzuela-Bernal, 458 U.S. at 874, may have been a
debatable proposition, see Watley, 218 F.3d at 1159 (noting
that “reasonable minds could disagree” about the exclusion
of an alibi witness); however, it was not an unreasonable

d. Conclusion

“[T]he Constitution entitles a criminal defendant to a fair
trial, not a perfect one.” Delaware v. Van Arsdall, 475
U.S. 673, 681 (1986). Here, the exclusion of Mr. Bayless’s
testimony deprived the jury of relevant evidence.
Nevertheless, given our deferential review under AEDPA, we
cannot say that it was contrary to, or an unreasonable
application of, established federal law.

2. Exclusion of Mr. Bayless’s testimony at the sentencing

Mr. Short contends that the exclusion of Mr. Bayless’s
testimony also substantially affected the outcome of the
sentencing stage. At sentencing, the prosecutor told the
jury that “in jail [Mr. Short] bragged about how he’d
thrown a fire bomb on Robert.” Rec. vol. VI, at 141. Mr.
Short maintains that his inability to confront and
controvert this evidence prejudiced him. However, the OCCA
concluded that Mr. Bayless’s testimony as proffered would
not directly contradict Mr. Brown’s testimony regarding the
confession. As we held above, the OCCA’s determination that
Mr. Short did not show that he was substantially prejudiced
by the exclusion of Mr. Bayless’s testimony was not an
unreasonable application of clearly established federal law.
Thus, the OCCA’s rejection of this challenge to the
sentencing proceedings also was not unreasonable.

B. Admission of victim impact evidence during the
sentencing stage

Mr. Short contends that the admission of certain victim
impact evidence violated his constitutional right to a
fundamentally fair sentencing hearing. He challenges the
prepared statement of Kiyoka Yamamoto, Mr. Yamamoto’s
mother, asserting it contained certain statements that
exceeded the bounds of admissible evidence.

The State filed the victim impact statement in October
1996, six months prior to trial. Defense counsel had ample
time to review and object to the statement before trial.
Rather than objecting, defense counsel “agreed that it
substantially complied with the law.” Short, 980 P.2d at
1100. Defense counsel moved for a mistrial only at the end
of the presentation of the testimony.

Here, the OCCA decided:

The victim impact evidence in this case comes very close
to weighting the scales too far on the side of the
prosecution by so intensely focusing on the emotional
impact of the victim’s loss. . . .

Mrs. Yamamoto’s statements concerning her feelings and
actions upon learning of her son’s injury and subsequent
death were emotional, but fell within the guidelines set
forth in Cargle and § 984. These statements were
probative of the emotional, psychological, and physical
effects she experienced as a result of the death of her
only child. Mrs. Yamamoto’s statements concerning her
son’s desire to study in America, his eventual achievement
of that goal and his concern for his mother provided a
brief glimpse of the unique characteristics of the
individual known as Ken Yamamoto. While her statements
concerning her fifteen year illness, her son’s wish to be
buried in Oklahoma City, and her son’s death bed thoughts
upon seeing his mother were not relevant victim impact
evidence, their admission did not prevent the jury from
fulfilling its function in the second stage of trial.
While a portion of the victim impact testimony was very
emotional, taken as a whole, the testimony is within the
bounds of admissible evidence, and its focus on emotion
did not have such a prejudicial effect or so skew the
presentation as to divert the jury from its duty to reach
a reasoned moral decision on whether to impose the death

Id. at 1101 (emphasis added).

In Payne v. Tennessee, the Supreme Court clarified the
scope of admissible victim impact evidence during
sentencing. 501 U.S. 808, 825 (1991). As we have noted, in
Payne the Court held

that the Eighth Amendment erects no per se bar to victim
impact evidence. The Court acknowledged that “[a] State
may legitimately conclude,” as Oklahoma has, “that
evidence about the victim and about the impact of the
murder on the victim’s family is relevant to the jury’s
decision as to whether or not the death penalty should be
imposed.” In most cases, such evidence “serves entirely
legitimate purposes.” But in some cases, victim impact
evidence is “so unduly prejudicial that it renders the
trial fundamentally unfair” in violation of the due
process clause of the Fourteenth Amendment.

Turrentine v. Mullin, 390 F.3d 1181, 1200 (10th Cir. 2004)
(internal citations omitted).

Section 984(a) of Title 22 of the Oklahoma Statutes
restricts victim impact evidence to “financial, emotional,
psychological, and physical effects” of the impact of the
crime itself on the victim’s family and some personal
characteristics about the victim. Id. Here,

the trial court noted it had read Mrs. Yamamoto’s
statement and found it to be in conformity with [Oklahoma
law]. The court was informed that Mrs. Yamamoto, a
Japanese citizen, would read her statement in Japanese
then it would be translated into English by an
interpreter. Defense counsel agreed to the procedure and
noted that the defense had had a copy of Mrs. Yamamoto’s
statement for awhile and agreed that it substantially
complied with the law.

Short, 980 P.2d at 1100. Mr. Short contends that the victim
impact testimony exceeded the statute’s bounds and was
unduly prejudicial. Our review, however, is limited to
federal law.

Mrs. Yamamoto conveyed the following: Mr. Yamamoto was her
only son, she raised him herself, he was twenty-two years
old at the time of his death, he came to America to study
art, he was an excellent student at Oklahoma City
University, he called her every two or three days and
visited in the summer, he had cared for her during a
fifteen-year illness, and he wanted to stay in America and
study but he was worried about her. She stated that she
received a telephone call at her home in Kyoto, Japan,
about her son’s injuries and the hospital’s belief that he
had only fifteen hours to live. Under a great amount of
stress, she flew to Oklahoma City to see her son for the
last time. She believed that he waited for her to come,
recognized her voice, tried to move his head, and then
passed away. Also, she presented her interpretation of what
he must have been thinking when she arrived at the
hospital. In addition, she stated that seeing fires, bombs,
and emergencies on television was very stressful for her,
and that she buried her son in Oklahoma at his request.
Finally, she said that her son’s death had greatly affected
her life.

At the close of this testimony, as noted, defense counsel
objected to the victim impact evidence and requested a
mistrial, arguing that counsel did not recognize until this
point “how emotional the evidence would be.” Id. at 1101.

The trial court admitted the evidence was emotional,
noting that the witness cried and that she was permitted a
few minutes to regain her composure. The court noted
however that the witness got through her testimony, and
that it was still of the opinion the evidence was proper
under Cargle [v. State, 909 P.2d 806, 824-25
(Okla.Crim.App. 1995)]. The request for a mistrial was


The OCCA’s inquiry focused on its decision in Cargle, 909
P.2d at 824-25, which applied the Supreme Court’s decision
in Payne. In Cargle, the OCCA reviewed victim impact
evidence of a victim’s sisters, and testimony from another
victim’s mother and determined that it “exceeded the
statutory framework of admissible evidence.” Id. at 829.
For example, one statement portrayed one victim as a “cute
child at age four,” which “in no way provides insights into
the contemporaneous and prospective circumstances
surrounding his death” nor concerns the impact of the crime
upon the victim’s immediate family. Id. The OCCA concluded
that “the entire statement . . . goes to the emotional
impact of [the victim’s] death. There is no explicit
testimony as to the financial, psychological or physical
effects of the crime on his family.” Id. at 829-30.
However, after acknowledging these errors, the OCCA
concluded they were “harmless beyond a reasonable doubt.”
Id. at 835. Although it granted relief on other grounds,
the Tenth Circuit held that the OCCA’s decision in denying
relief on this ground was not an unreasonable application
of federal law. Cargle v. Mullin, 317 F.3d 1196, 1224 (10th
Cir. 2003).

Here, as in Cargle, we must assess the alleged prejudicial
effect of the victim-impact testimony by examining the
aggravating and mitigating factors and the overall strength
of the State’s case. In doing so, we note that Mr. Short’s
assertions of prejudice are undermined by his counsel’s
delay in challenging Mrs. Yamamoto’s statement. Counsel had
the English version of the victim impact statement six
months before trial began. Nevertheless, he did not
challenge its admission until after the entire statement
was read to the jury. The absence of a contemporaneous
objection deprived the trial court of the ability to
curtail any troubling portions of the statement. Counsel’s
argument that he could not foresee the extreme emotional
impact of the victim impact statement is particularly
unconvincing when there is but one impact statement to be
read by a family member. Mindful of that unjustified delay,
we proceed to examine the evidence presented at sentencing.

In addition to the emotional statement given by Mrs.
Yamamoto, the prosecution presented the following testimony
in support of the statutory aggravators:

(1) Susan Short, Mr. Short’s wife of seven years, who had
filed for divorce, testified that Mr. Short physically and
emotionally abused her and her children. Ms. Short stated
that she had obtained a protective order in 1991 against
Mr. Short. She also testified that she had asked him
during the summer of 1986 if he knew how to make a
firebomb and that he explained to her how to make one.

(2) Troi Lyn Billy, testified that in July 1991 she had
offered her home to the Short family. Ms. Billy and her
husband asked Mr. Short to leave after a week. According
to Ms. Billy, Mr. Short threatened to sexually assault her
and to kill her and her children. Ms. Billy filed two
police reports and obtained a protective order against
Mr. Short.

(3) Debra Duncan, who had lived with and had a child with
Mr. Short, testified that she sought two protective orders
against Mr. Short, and then had each dismissed.

In closing, the prosecution reminded the jury that Mr.
Short had knowingly endangered more than one person in the
apartment complex. Next, the prosecution defined the
“heinous, atrocious, or cruel” aggravator, and argued that
Mr. Yamamoto unquestionably suffered serious physical
injury. The prosecutor also argued that Mr. Short
undoubtedly posed a continuing threat to society based on
his past actions, and his horrific upbringing that
instilled this learned behavior. During final rebuttal, the
prosecution referred to the victim impact testimony and
Mrs. Yamamoto’s suffering several times.

The defense presented the following witnesses in its effort
to present mitigating circumstances, which the jury may
have considered as extenuating or reducing the degree of
moral culpability or blame.

(1) Trina Louise Hartshorn, Mr. Short’s sister, testified
about their upbringing. According to her testimony, their
mother was often in prison, was a “rage-a-holic” and
frequently used intravenous drugs in front of the
children. She stated that her stepfather sexually abused
her and physically abused her mother and Mr. Short. She
suspected that her father and her stepfather sexually
abused Mr. Short.

(2) Nelda Rawson, Mr. Short’s first cousin, also
testified to Mr. Short’s violent childhood surroundings.
She stated that his father physically abused his mother
and threatened her with a knife. She asked the jury to
spare Mr. Short’s life.

(3) Sharon Kay Davis, Mr. Short’s first cousin, testified
that she witnessed Mr. Short’s father abuse his mother.
Ms. Davis testified regarding Mr. Short’s mother’s drug
use, and how she took care of Mr. Short and his sister for
two years when they were children. She also asked the
jury to spare Mr. Short’s life.

(4) and (5) Thomas Ackerman, Jr. and Anthony Mark
Benjamin, both correctional officers at the Oklahoma
County jail, each testified that they were frequently on
duty watching Mr. Short. Both testified that Mr. Short was
cooperative, obeyed orders, and had not been a problem in
the jail.

(6) S. Daryl Larson, a volunteer jail chaplain at the
Oklahoma County jail, testified that he met weekly with
Mr. Short, and that Mr. Short had a genuine interest in
religion and Jesus Christ.

(7) Dr. Wanda Draper, a clinical professor in the
psychiatric department at the University of Oklahoma’s
College of Medicine, reviewed Mr. Short’s records, and
interviewed Ms. Hartshorn and Ms. Rawson. Dr. Draper
testified about the impact of Mr. Short’s unstable and
traumatic family dynamics. She stated that his mother was
a prostitute and often brought men into the home when
Mr. Short was a preschooler. She stated that his mother
did not take him to school. His father gave him wine when
he was two years old, and potty trained him by rubbing his
feces in his face. According to Dr. Draper, Mr. Short was
abandoned by nearly every adult in his life, most
significantly by his mother who was arrested twenty-two
times during his childhood. She noted that on the few
occasions that he was surrounded by people who set
boundaries, he was able to work and save money. Dr. Draper
testified that the Oklahoma County jail was a structured
environment and his time there served as a good predictor
of how he might do in prison. She also testified he
would not be a danger to others in prison.

Defense counsel beseeched the jury for mercy, and
emphasized Mr. Short’s horrific childhood, and the
relentless physical, emotional, and sexual abuse he
endured. Defense counsel suggested that his upbringing
introduced him to criminal behavior and familiarity with
drug use. Noting that Mr. Short was not to be excused for
his behavior, counsel implored the jury to consider life
imprisonment as an alternative to the death penalty.

Based on our deferential standard of review-despite the
presence of considerable and compelling mitigation
evidence-there is no indication that the jury was prevented
from fully considering these mitigating factors. Moreover,
examining the relative strength of the State’s case under
Cargle, there was little if any testimony presented during
the sentencing phase that supported a residual doubt theory
or that impacted the strength of the State’s evidence as to
Mr. Short’s involvement in setting the blaze. Furthermore,
the jury found three aggravating circumstances and
insufficient mitigating circumstances to outweigh them when
it imposed the death penalty.

We agree that Mrs. Yamamoto’s statement contained
irrelevant information, and that much of the statement was
highly emotional. However, like the OCCA, we conclude that
the admission of irrelevant and overly emotive testimony,
though troubling and “com[ing] very close to weighting the
scales too far on the side of the prosecution,” did not tip
the scales far enough. Short, 980 P.2d at 1101. Thus, the
OCCA did not unreasonably apply clearly established federal
law as to its assessment.

C. Prosecutorial misconduct during the sentencing phase

In his third proposition, Mr. Short contends that the State
committed repeated instances of prosecutorial misconduct
during the sentencing stage through its excessive misuse of
victim impact evidence, and that this conduct resulted in a
fundamentally unfair proceeding.

Improper prosecutorial argument will only warrant federal
habeas relief if it renders a petitioner’s trial or
sentencing fundamentally unfair. Donnelly v. DeChristoforo,
416 U.S. 637, 642 (1974). To establish that a prosecutor’s
remarks were so inflammatory that they prejudiced
substantial rights, a petitioner must overcome a high
threshold: he or she must demonstrate either persistent and
pronounced misconduct or that the evidence was so
insubstantial that absent the remarks, the jury would not
have imposed the death penalty. Berger v. United States,
295 U.S. 78, 89 (1935).

Mr. Short’s counsel objected to none of the challenged
statements. Reviewing for plain error and stressing the
other evidence supporting the aggravators, the OCCA noted
that because “the majority of the victim impact evidence
was properly admitted . . . [w]e find nothing in the record
to support [Mr. Short]’s claims of bad faith and disrespect
for this Court on the part of the prosecutors. This
allegation is denied.” Short, 980 P.2d at 1104-05 (emphasis

The OCCA did recognize that certain of the prosecutor’s
comments “ha[ve] been repeatedly condemned by this Court. .
. . However, under the evidence in this case, we cannot
find the comments affected the sentence.” Id. at 1104-05.
Furthermore, the OCCA determined that their cumulative
effect did not “deprive the defendant of a fair trial.” Id.
at 1105 (quoting Duckett v. State, 919 P.2d 7, 19
(Okla.Crim.App. 1995). Considering, as the OCCA did, the
evidence in support of the three aggravating factors, the
above-described evidence in support of mitigation, and the
strength of the State’s case as to Mr. Short’s guilt, we
agree with the district court that the OCCA’s decision was
not an unreasonable application of federal law.

D. Ineffective assistance of counsel during the sentencing

Mr. Short’s fourth issue for review asserts a deprivation
of effective assistance of counsel at sentencing, in
particular, for counsel’s failure to object to the victim
impact statement offered by Mrs. Yamamoto. Mr. Short also
contends that the OCCA unreasonably applied federal law
because it erroneously applied Lockhart v. Fretwell, 506
U.S. 364 (1993), rather than the familiar standard set forth
in Strickland v. Washington, 466 U.S. 668 (1984). Reviewing
de novo, we reject Mr. Short’s ineffective assistance of
counsel contention.

1. Standard of review

We begin with a consideration of the appropriate standard
of review for ineffective assistance of counsel. Here, the
OCCA first set forth the Strickland two-step deficient
performance and prejudice test, and then discussed the
fundamental fairness requirement set forth in Lockhart.
Short, 980 P.2d at 1106. We have held that “[a]pplication
of this more onerous [Lockhart] standard [is] contrary to
the Supreme Court’s clearly established precedent in
Strickland.” Spears v. Mullin, 343 F.3d 1215, 1248 (10th
Cir. 2003).

Here, the OCCA relied in part on the standard set forth in
Lockhart, 506 U.S. at 369-70 (1993). In considering the
prejudice prong, the OCCA noted that “[a]lthough we must
consider the totality of the evidence which was before the
factfinder, our `ultimate focus of inquiry must be on the
fundamental fairness of the proceeding whose result is
being challenged.'” Short, 980 P.2d at 1106 (quoting
Strickland, 466 U.S. at 695). When applying its standard of
review, the court noted that “[a]s our ultimate focus must
be in the fundamental fairness of the trial, we find that
[Mr. Short] has failed to rebut the strong presumption that
counsel’s conduct was professionally reasonable and that he
has failed to show that he was denied a fundamentally fair
trial.” Id. at 1107.

As the Supreme Court explained in Williams v. Taylor, 529
U.S. 362, 392-93 (2000), the Lockhart “fundamentally
unfair” inquiry is used to supplement the ordinary
prejudice inquiry under Strickland only when the law has
changed after counsel’s allegedly deficient performance.
Malicoat v. Mullin, 426 F.3d 1241, 1260 (10th Cir. 2005).
The Lockhart inquiry has “no effect on the prejudice
inquiry in the vast majority of cases.” 529 U.S. at 393 n.
18 (quoting Lockhart, 506 U.S. at 373 (O’Connor, J.,
concurring)); see Glover v. United States, 531 U.S. 198,
203 (2001) (“The Court explained last Term that our holding
in [Lockhart] did not supplant the Strickland analysis.”).

“Because the OCCA applied the incorrect standard, we do not
defer to its analysis of this claim.” Malicoat, 426 F.3d at
1260; see Spears, 343 F.3d at 1248 (10th Cir. 2003)
(concluding that, because the OCCA had “applied Strickland,
but as further restricted by Lockhart,” the OCCA’s ruling
was not entitled to deference under AEDPA). We thus we
examine the claim de novo, applying the two-part Strickland
standard which requires (1) a showing that counsel’s
representation fell below an objective standard of
reasonableness and (2) a reasonable probability that, but
for the errors, the result of the proceeding would have
been different. 466 U.S. at 688-94.

2. Analysis of ineffective assistance at sentencing claim

Mr. Short contends that he was deprived of effective
assistance of counsel at the sentencing stage because
counsel did not object to the victim impact statement. In a
brief paragraph disposing of this claim, after noting the
victim impact statement was “properly admitted,” the OCCA
concluded that counsel was not ineffective for failing to
object to it. Short, 980 P.2d at 1107. The federal district
court agreed that “[b]ecause the testimony of Mrs. Yamamoto
was properly admitted, counsel cannot be considered to have
rendered ineffective assistance for failing to object to
its admission.” Rec. vol. I, doc. 53, at 20.

We read the OCCA’s opinion to have held that certain
limited parts of Mrs. Yamamoto’s statements (i.e., “Mrs.
Yamamoto’s statements concerning her fifteen year illness,
her son’s wish to be buried in Oklahoma City, and her son’s
death bed thoughts upon seeing his mother”) “were not
relevant victim impact evidence,” and as such, the evidence
could not be “properly admitted.” Short, 980 P.2d at 1101,
1107. In fact, the OCCA noted that the evidence came “very
close to weighting the scales too far on the side of the
prosecution.” Id. at 1101. However, the OCCA concluded that
the victim impact statement’s “focus on emotion did not
have such a prejudicial effect or so skew the presentation
as to divert the jury from its duty to reach a moral
reasoned decision on whether to impose the death penalty.”

Counsel had received a copy of the statement six months
before trial and agreed that it substantially complied with
the law. Counsel later argued that he did not anticipate
“how emotional the evidence would be prior to it being
presented at trial.” Id. We note that counsel did object
and ask for a mistrial after the victim impact testimony was
read into the record, and the trial court denied this

Even if we assume that trial counsel’s performance was
deficient for his failure to object earlier, Mr. Short
cannot establish prejudice. We are unable to conclude that
a reasonable probability exists that, had counsel timely
and successfully objected to this testimony and commentary,
the jury would have imposed a sentence other than the death
penalty. The irrelevant portions of Mrs. Yamamoto’s
statement were only a small part of a statement that was,
for the most part, admissible under Payne.

Under our de novo review, and considering the significant
and emotional mitigating evidence Mr. Short presented, we
conclude that Mr. Short has not satisfied the prejudice
prong of Strickland, and thus he is not entitled to habeas

E. Cumulative error at the sentencing stage

Finally, Mr. Short maintains that the aggregate impact of
the guilt and sentencing stage errors warrants reversal of
his convictions or at least a remand for resentencing. The
OCCA rejected this claim because it determined that any
errors were harmless, even in the aggregate. Short, 980
P.2d at 1109 (“While certain errors did occur in this case,
even considered together, they were not so egregious or
numerous as to have denied [Mr. Short] a fair trial.”). Mr.
Short asserts that the error in excluding testimony from
Mr. Bayless prejudiced him both at the guilt and sentencing
stages. He also argues that the errors arising from the
admission of certain victim impact evidence, prosecutorial
misconduct, and ineffective assistance of counsel at
sentencing establish a reasonable probability that, absent
these errors, the result of the proceedings would have been

“A cumulative-error analysis aggregates all errors found to
be harmless and analyzes whether their cumulative effect on
the outcome of the trial is such that collectively they can
no longer be determined to be harmless.” United States v.
Toles, 297 F.3d 959, 972 (10th Cir. 2002) (internal
quotation marks omitted). We have found no additional
constitutional errors, and thus we only review the OCCA’s
decision under our deferential AEDPA standard. See Cargle,
317 F.3d at 1206. Given this level of deference, we cannot
determine that the OCCA’s evaluation of the cumulative
impact of the trial court errors was contrary to or an
unreasonable application of clearly established federal law.


Accordingly, we AFFIRM the judgment of the district court
denying Mr. Short’s 28 U.S.C. § 2254 petition.