F I L E D

United States Court of Appeals

Tenth Circuit

PUBLISH

APR 11 2003

UNITED STATES COURT OF APPEALS

PATRICK FISHER

TENTH CIRCUIT

Clerk

TYRONE P. DARKS,
Petitioner-Appellee,
No. 01-6308

v.
MIKE MULLIN, * Warden,
Oklahoma State Penitentiary,
Respondent-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. No. CIV-98-538-L)

Robert L. Whittaker, Assistant Attorney General, Criminal Division, Oklahoma

City, Oklahoma, (W.A. Drew Edmondson, Attorney General of Oklahoma, with
him on the briefs), for Respondent-Appellant.
K. Leslie Delk, Tucson, Arizona, for Petitioner-Appellee.
Before SEYMOUR , BALDOCK , and KELLY , Circuit Judges.
SEYMOUR , Circuit Judge.

Mike Mullin replaced Gary Gibson as Warden of the Oklahoma State

Penitentiary effective March 25, 2002.

Petitioner Tyrone Peter Darks was convicted of the first degree murder of
his former wife Sherry Goodlow and sentenced to death in Oklahoma state court.
The Oklahoma Court of Criminal Appeals (OCCA) affirmed the conviction and
sentence, see Darks v. State , 954 P.2d 152 (Okla. Crim. App. 1998), and denied
post-conviction relief,

see Darks v. State , 954 P.2d 169 (Okla. Crim. App. 1998).

On federal habeas review, the district court granted Mr. Darks relief from both
the conviction and the sentence. The court held that the trial court had violated
Beck v. Alabama , 447 U.S. 625 (1980), by failing to instruct on first degree
manslaughter as a lesser included offense of capital murder, and had
unconstitutionally coerced the death verdict by giving the jury a supplemental
instruction. The court also held that cumulative error had unconstitutionally
affected the entire proceedings. The State appeals.

Exercising jurisdiction

pursuant to 28 U.S.C. 1291 and 2253, we reverse the grant of habeas relief on
both the conviction and sentence.

A certificate of appealability is not required for the State to appeal from the
district courts order granting relief.
Hooper v. Mullin , 314 F.3d 1162, 1166 n.2
(10th Cir. 2002) (citing Fed. R. App. P. 22(b)(3)).
1

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I.
The following evidence was presented during the guilt phase of Mr. Darks
trial. On August 7, 1994, the day of her death, Ms. Goodlow went to church with
Scott, her two-year old son by Mr. Darks. After the service, Ms. Goodlow and
Scott, along with a friend and the friends sister-in-law, went to the grocery store
and made purchases at 2:19 p.m. Ms. Goodlow declined her friends invitation
for dinner, saying she wanted to go home.
At 2:52 p.m., Ms. Goodlow made a 911 call from a pay phone, claiming
Mr. Darks had run her off the road and taken their son. The dispatcher advised
her a police officer would meet her at Mr. Darks house. At 3:09 p.m.,
Ms. Goodlow made a second 911 call asking about the officer and was told there
had been a delay. At 3:27 p.m., Sergeant Ken Davis arrived at Mr. Darks house.
Ms. Goodlow was not there, and Mr. Darks mother indicated she had not seen
Ms. Goodlow that day.
About that time Jamey Harrison, who lived near Draper Lake, noticed a car,
later identified as that of Mr. Darks, drive into his driveway and then back out.
Mr. Harrison also saw a small white car stopped at a nearby intersection. When
the white car pulled away quickly, Mr. Darks car followed it. Ten to fifteen
minutes later, Mr. Harrison heard what sounded like firecrackers exploding,
coming from the direction of Draper Lake.
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Mark Folks was working in his home shop in the same area when he heard
his dogs barking. Upon investigating, he saw a white Mustang driven by a
woman parked in his driveway at the gate. As he began to walk toward the car,
the woman backed out and drove away. He could hear her screaming, so he
followed her in his pickup. Eventually, he saw tire tracks in the grass leading
from the road into the brush. Following the tracks, he discovered the Mustang
with its flashers on and the engine running. When he did not see anyone and no
one responded to his calls, he returned home and telephoned 911. Returning to
the white car a second time, he called out again but received no response. He
then went to the home of his neighbor Sherry Heinken to telephone her husband, a
police officer. Mr. Folks and Ms. Heinken went back to the car and found Ms.
Goodlow, lying across the seat. She had been shot several times.
After receiving a call at 3:55 p.m., police officers proceeded to the crime
scene. When the police determined that the deceased woman was Ms. Goodlow,
an officer went to the Darks home to check on Scott and to talk to anyone who
might know Ms. Goodlow. Mr. Darks was home. He told the officer that Ms.
Goodlow had called him at 2:30 p.m. and asked him to pick up their son, which he
did about 3:00 p.m. and then returned home. At 4:00 p.m., Ms. Goodlow came to
his house asking for money, which he gave her, and she left. He went to the mall
with his son at 4:30 p.m. and to his girlfriends house at 5:30 p.m.
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Mr. Darks agreed to go to the police station for further questioning, where
he gave approximately the same story and claimed Ms. Goodlow could not have
called 911. Mr. Darks denied killing Ms. Goodlow, but stated she had gotten
what she deserved and what goes around comes around. Mr. Darks informed
police detectives that they could not place him at the scene of the murder and that
they had no gun or fingerprints. During the interview, the police arrested
Mr. Darks.
After his arrest, and while incarcerated in a cell with Richard Maytubby
and others, Mr. Darks said that he had killed his girlfriend. He told
Mr. Maytubby that as she was coming from church, he had taken his son from her
and put the boy into his car. She had followed him to Draper Lake, where he had
shot her twice in the head and three or four times in the back with a .38 caliber
gun. The police investigation revealed that Ms. Goodlow, who was still wearing
her seatbelt, had been shot four times at close rangetwice in the head, once in the
back and once in the armwith a .38 caliber gun through the open window of her
car.
Although Mr. Darks mother testified that Mr. Darks and Ms. Goodlow
were on good terms and that Ms. Goodlow would leave Scott with her and Mr.
Darks, Ms. Goodlows father testified that the court had taken away Mr. Darks
visitation rights. It was undisputed that the two had an ongoing hostile
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relationship. Two days before the murder, Mr. Darks had called Mr. Goodlow
and told him Ms. Goodlow should get her insurance papers up to date because
hes going to put a cap in her. Tr. vol. V at 898. Mr. Goodlow explained at trial
he believed this meant Mr. Darks was going to kill his daughter. Five minutes
after making the call, Mr. Darks drove by the Goodlow home. Ms. Goodlow had
expressed fear of Mr. Darks and bad feelings toward him before her death. The
jury rejected Mr. Darks alibi defense, and found him guilty of first degree
murder.
During the sentencing stage, the States evidence elaborated upon the
acrimonious love/hate relationship between Ms. Goodlow and Mr. Darks. A store
clerk testified about an incident in which Mr. Darks came up behind Ms. Goodlow
and grabbed her neck while she was walking in the mall pushing Scott in a baby
stroller. Mr. Darks released Ms. Goodlow and then tried to pull Scott from the
stroller, while Ms. Goodlow pleaded for him not to take the child. A police
officer took Mr. Darks into custody after the store clerk called security. At that
time, Mr. Darks maintained that Ms. Goodlow had hit him first and that he wished
to press charges.
Sergeant Aven Bull testified he had gone to Ms. Goodlows house two or
three times after Mr. Darks reported she was abusing their son. However,
Sergeant Bull had found no evidence of child abuse by Ms. Goodlow. From 1992
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on, a series of police reports concerned both Ms. Goodlow and Mr. Darks.
Typically, charges were filed against him but not against her. From January to
June 1994, police arrested Mr. Darks with increasing frequency. Evidence
indicated he had broken the front and back windows on Ms. Goodlows car, and
had spray painted her mothers new car and later called her mother to ask if she
had enjoyed removing the paint.
Mr. Darks mother and sisters testified in mitigation that Ms. Goodlow and
Mr. Darks had a stormy relationship, marked by mutual arguments, harassments,
jealousies and aggression. Ms. Goodlow had smashed the windshield of
Mr. Darks car, broken off his rearview mirror, poured motor oil and Jell-O over
his car, and run into it. Mr. Darks family members, however, had taken Ms.
Goodlows side in order to prevent the police from arresting her. Additional
mitigating evidence indicated that Mr. Darks was educated, could provide
assistance to others and encourage their educational pursuits, was a good and
loving father, was a loving and supportive brother and son, could share his faith
in God and prayer with others, and had a history of aggression only with respect
to Ms. Goodlow.
Based on the first and second stage evidence, the jury found as an
aggravating factor that Mr. Darks would be a continuing threat to society, but did
not find that the murder was committed to avoid lawful arrest or prosecution.
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Deciding that the continuing threat aggravator outweighed the mitigating

evidence, the jury assessed a death sentence.
II.
The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA)
applies to this appeal. Under AEDPA, if a claim is adjudicated on the merits in
state court, 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.
28 U.S.C. 2254(d)(1), (2). AEDPA also requires federal courts to presume state
court factual findings to be correct, and places the burden on the petitioner to
rebut that presumption by clear and convincing evidence.

Id. 2254(e)(1). If the

state court did not decide a claim on the merits, we review the district courts
legal conclusions de novo and its factual findings, if any, for clear error.

Hooper

v. Mullin , 314 F.3d 1162, 1167 (10th Cir. 2002). We apply these standards to
assess whether the district court correctly analyzed each of the issues.

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III.
A. Lesser Included Offense Instruction
The federal district court held that Mr. Darks was entitled to habeas relief
from his conviction because the trial court violated

Beck v. Alabama , 447 U.S.

625 (1980), by failing to instruct on the lesser included offense of first degree
manslaughter. On appeal, the State argues that Mr. Darks constitutional rights
were not violated by the trial courts failure to give the instruction because
manslaughter is not a lesser included offense of first degree murder under

Beck

and, alternatively, because the evidence was insufficient to support a

manslaughter instruction.
1. Request for an Instruction
As a threshold issue, we must determine whether Mr. Darks requested a
first degree manslaughter instruction. Failure to request such an instruction
precludes a petitioner seeking habeas relief from prevailing on a
Hogan v. Gibson , 197 F.3d 1297, 1303 n.3 (10th Cir. 1999);

Beck claim.
Hooks v. Ward ,

184 F.3d 1206, 1234 (10th Cir. 1999).

Neither the transcript nor the original record indicates that Mr. Darks
requested a first degree manslaughter instruction. At the federal evidentiary
hearing, however, Mr. Darks trial counsel asserted that she had asked for a heat
of passion manslaughter instruction but the request was overruled because
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Mr. Darks defense was that he did not commit the crime. Evid. Hrg Tr. at 6-8
(Sept. 22, 2000). Based on counsels uncontroverted testimony, and because
everyone assumed that part of the trial courts instructional conference had not
been transcribed, see id. at 5-6, the district court decided counsel had asked for a
manslaughter instruction and Mr. Darks claim could be decided on its merits.
The State does not challenge the testimony of Mr. Darks trial counsel, nor
does it contend on appeal that the district court erred in finding she had requested
a manslaughter instruction. The state court did not reach this question, and we
therefore review the federal district courts factual finding for clear error.

See

Hooper , 314 F.3d at 1167. We have no reason to question the district courts
finding and we proceed to the merits of the States arguments.
2. Whether Manslaughter Is a Lesser Included Offense
The State argues for the first time on appeal that while a state may allow
an instruction on a lesser offense under state law, the same instruction is not
necessarily mandated by due process under

Beck . Aplt. Br. at 19. The State

contends that the elements test, an interpretation of Federal Rule of Criminal

Procedure 31(c) requiring that all elements of a lesser included offense be
elements of the charged offense, applies to

Beck claims, and that under this test

first degree manslaughter is not a necessarily included offense of first degree

murder. To support its argument, the State cites
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Schmuck v. United States ,

489 U.S. 705, 715-16 (1989) (adopting elements test to interpret Fed. R. Crim.
P. 31(c), which permits defendant to be found guilty of offense necessarily
included in offense charged), and O

KLA .

S TAT . tit. 22, 916 (using language

similar to Rule 31(c)).

While we do not ordinarily consider arguments raised for the first time in
this court, see Rojem v. Gibson , 245 F.3d 1130, 1141 (10th Cir. 2001), the
argument is without merit in any event. The State relies on the Supreme Courts
use in Beck of the single word element, and in so doing takes the word out of
context. The Court there was not addressing the elements test for determining
whether a crime is a lesser included offense; rather, the Court was pointing out
the risk of failing to provide a lesser included offense instruction in a capital
case. See Beck , 447 U.S. at 637.

The Courts subsequent discussion in

Hopkins

v. Reeves , 524 U.S. 88, 96-98 & n.6 (1998), leaves no doubt that the availability
The discussion in which the word element was used was as follows:
While we have never held that a defendant is entitled to a
lesser included offense instruction as a matter of due process, the
nearly universal acceptance of the rule in both state and federal
courts establishes the value to the defendant of this procedural
safeguard. That safeguard would seem to be especially important in a
case such as this. For when the evidence unquestionably establishes
that the defendant is guilty of a serious, violent offense but leaves
some doubt with respect to an element that would justify conviction
of a capital offense the failure to give the jury the third option of
convicting on a lesser included offense would seem inevitably to
enhance the risk of an unwarranted conviction.
Beck v. Alabama , 447 U.S. 625, 637 (1980).
2

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of a lesser included offense instruction in a state criminal trial is a matter of state

law. The elements test from

Schmuck is therefore inapplicable to this case.

Moreover, the State does not cite persuasive Oklahoma authority suggesting
that manslaughter is not a lesser included offense of first degree murder under
state law. Oklahoma consistently has treated first degree manslaughter as a lesser
included offense of first degree murder.
(citing state and federal cases);

See , e.g. , Hogan , 197 F.3d at 1303-04

Boyd v. Ward , 179 F.3d 904, 917 (10th Cir. 1999)

(citing Lewis v. State , 970 P.2d 1158, 1165-66 (Okla. Crim. App. 1999));

see

also, e.g., Lewis , 970 P.2d at 1165 (treating manslaughter as lesser included
offense of first degree murder, but rejecting claim that second degree murder is
lesser included offense of first degree murder);
969 (Okla. Crim. App. 1998) (same).

Turrentine v. State , 965 P.2d 955,

Accordingly, we reject the States

In Shrum v. State , 991 P.2d 1032, 1033 (Okla. Crim. App. 1999), decided
after Darks direct appeal, the OCCA for the first time explicitly addressed
whether first degree heat of passion manslaughter is necessarily included within
premeditated murder and therefore a lesser included offense of first degree malice
murder. Shrum recognized that [u]nder the strict statutory elements test first
degree heat of passion manslaughter is not a lesser included offense of first
degree malice murder. Id. at 1035 n.5. Shrum nevertheless rejected using the
elements test to decide what constitutes a lesser included offense and adopted,
prospectively, an evidence test under which all lesser forms of homicide are
necessarily included and instructions on lesser forms of homicide should be
administered if they are supported by the evidence.
Id. at 1036 (recognizing
inconsistency in its prior approach to lesser included offenses, but citing no case
indicating first degree manslaughter is not lesser included offense of first degree
murder); see also Gilson v. State , 8 P.3d 883, 917 (Okla. Crim. App. 2000).
3

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argument.
3. Sufficiency of the Evidence for a Manslaughter Instruction
Under Beck , a sentence of death [may not] constitutionally be imposed
after a jury verdict of guilt of a capital offense, when the jury was not permitted
to consider a verdict of guilt of a lesser included non-capital offense, and when
the evidence would have supported such a verdict. 447 U.S. at 627. [T]he
purpose of the rule is to eliminate the distortion of the fact-finding process that
is created when the jury is forced into an all-or-nothing choice between capital
murder and innocence.

Hogan , 197 F.3d at 1303 (quoting

Spaziano v. Florida ,

468 U.S. 447, 455 (1984)). Due process thus requires that a state court give a
lesser included offense instruction if the evidence would support a conviction on
that offense.

Hopper v. Evans , 456 U.S. 605, 609, 611 (1982) (citing

Beck ). In

this case, the trial court erred in refusing to give a lesser included offense
instruction only if the evidence would have permitted the jury to find Mr. Darks
guilty of first degree manslaughter and to acquit him of first degree murder.
Hogan , 197 F.3d at 1305.
The OCCA held the evidence did not support giving a heat of passion
manslaughter instruction.
This Court has repeatedly held that an instruction on a lesser
included offense need only be given when there is evidence that
tends to prove the lesser included offense was committed. Absent
such evidence, an instruction should not be given. . . . Heat of
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See

Passion Manslaughter . . . include[s] . . . a showing that there was no

premeditated design to effect death.[ 4] Here, Appellant shot the
decedent four times at close range in vital areas of her body: twice
to the head and twice to the trunk of her body. As such, the trial
court properly did not instruct on First Degree Manslaughter.
Darks , 954 P.2d at 161 (citation omitted). The question under

Beck , however, is

whether there was sufficient evidence to warrant instructing the jury on the lesser
included offense, not whether there was sufficient evidence to support the first
degree murder conviction.

See Hogan , 197 F.3d at 1305-06. We have held that a

state appellate courts original conclusion on direct appeal that a manslaughter

instruction was not necessary because there was sufficient evidence to support a
finding of premeditation in the trial record is squarely contrary to the holding in
Beck . Id. at 1305. Because the OCCA did not address the proper question and
adjudicate whether there was sufficient evidence to warrant a manslaughter
instruction, we owe no deference to the OCCA decision.

See id. at 1306.

The federal district court did address the proper question in determining
whether the evidence warranted giving a manslaughter instruction and asked
whether a rational jury could have convicted Mr. Darks of manslaughter and

There is a distinction between lack of premeditation and intent to kill.

[U]nder Oklahoma law heat of passion manslaughter does not require a lack of
intent to kill. Valdez v. Ward , 219 F.3d 1222, 1243 (10th Cir. 2000) (citing
Le v.
State , 947 P.2d 535, 546 (Okla. Crim. App. 1997);
Hooks v. Ward , 184 F.3d 1206,
1232 (10th Cir. 1999); Hogan v. Gibson , 197 F.3d 1297, 1305 n.5 (10th Cir.
1999)).
4

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acquitted him of first degree murder.

See Mitchell v. Gibson , 262 F.3d 1036,

1050 (10th Cir. 2001). In doing so, the court held that Mr. Darks was entitled to
a heat of passion manslaughter instruction for the following reasons: Mr. Darks
and Ms. Goodlow had an acrimonious relationship with a long history of
confrontations; on the day of the homicide they were in the midst of another
confrontation regarding their son; a car chase occurred near the scene of the
murder; Mr. Darks appeared agitated; the investigating officers believed
Ms. Goodlows death resulted from an out-of-control confrontation between
Mr. Darks and Ms. Goodlow; and the trial judges report questioned, due to the
lack of facts in the record, when Mr. Darks actually formed the intent to murder
Ms. Goodlow.

Based on our review of the relevant law and the facts, we

conclude, contrary to the district court, that this evidence did not warrant an
instruction on first degree manslaughter.

In Oklahoma, a person commits first degree manslaughter if the murder is

perpetrated without a design to effect death, and in a heat of passion, but in a
Oklahoma law requires that when the death penalty is imposed, the trial
court must prepare a report to be transmitted to the OCCA along with the entire
record and transcript. See O KLA . S TAT . tit. 21, 701.13; O KLA . C T . C RIM . A PP . R.
9.2(D) (2003). The report must be in the form set out by the OCCA.
See O KLA .
C T . C RIM . A PP . R. 13.0, Form 13.12 (2003).

We need not decide whether the sufficiency of the evidence to support this
lesser included offense instruction is a factual or a legal determination. In either
event, there was insufficient evidence to merit the instruction.
See Valdez , 219
F.3d at 1242.

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cruel and unusual manner, or by means of a dangerous weapon; unless it is

committed under such circumstances as constitute excusable or justifiable
homicide. O

KLA .

S TAT . tit. 21, 711(2). The elements of heat of passion are

1) adequate provocation; 2) a passion or emotion such as fear, terror, anger, rage

or resentment; 3) homicide occurred while the passion still existed and before a
reasonable opportunity for the passion to cool; and 4) a causal connection
between the provocation, passion and homicide.

Charm v. State , 924 P.2d 754,

760 (Okla. Crim. App. 1996). Adequate provocation is any improper conduct of
the deceased toward the defendant which naturally or reasonably would have the
effect of arousing a sudden heat of passion within a reasonable person in the
position of the defendant.

Washington v. State , 989 P.2d 960, 968 n.4 (Okla.

Crim. App. 1999). Adequate provocation is measured by an objective test of

reasonableness.

Bland v. State , 4 P.3d 702, 715 (Okla. Crim. App. 2000).

The State argues, and Mr. Darks attorney was forced to concede at oral
argument, that no evidence supports the adequate provocation element. Nothing
in the record shows Ms. Goodlow acted improperly toward Mr. Darks
immediately prior to her murder.

Cf. Hooker v. Mullin , 293 F.3d 1232, 1239

(10th Cir. 2002) (noting no evidence indicated victims did anything to provoke
petitioner), cert. denied , 123 S. Ct. 975 (2003). Rather, the evidence indicates
that after Ms. Goodlow left the grocery store, Mr. Darks ran her off the road and
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took their son. At the time he shot her, her gearshift was in drive and she was
sitting in the car with her foot on the brake. Mr. Darks did not indicate that Ms.
Goodlow had engaged in provoking behavior either in his videotaped statement,
which was played for the jury, or in his confession to Mr. Maytubby. Although
the detectives indicated their belief during Mr. Darks videotaped statement that
the murder occurred after an out-of-control conflict, there is no evidence to
support their surmise. The trial court specifically admonished the jury that the
detectives comments during the videotaped statement were not part of the
evidence. Contrary to Mr. Darks contention, the trial court expressed the view in
its capital felony report that the evidence did not establish provocation by Ms.
Goodlow. The court noted
I feel the jurys determination of the death sentence was appropriate
in this case, as I believe it to be based upon evidence that indicates a
premeditated and planned homicide that involved this defendant
luring, in some fashion, the victim from the Midwest City area out to
Lake Draper to commit the murder. There is some question as to
when this defendant actually formed the intent to murder the victim
that could involve facts that are not in evidence having to do with
arguments and discussions concerning custody of the child that he
and the victim had during this series of events that could indicate
heat of passion type homicide. No evidence exists to support this,
only inference.
Original Record (O.R.) at 402. Viewing the totality of the evidence presented at
trial, any inference of provocation is mere speculation and therefore insufficient

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to establish the adequate provocation needed to support heat of passion

manslaughter.

The federal district court relied on the acrimonious relationship between

Ms. Goodlow and Mr. Darks and their confrontation on the day of the murder in
finding sufficient evidence. The evidence did establish that the two had a prior
history of turbulence and harassment. Each had obtained a Victim Protective
Order against the other, and each repeatedly had accused the other of violating the
orders, often seeking police support in doing so. Mr. Darks had been arrested
numerous times for violating Ms. Goodlows protective order and both had fought
for custody of their son. While this evidence may show that Mr. Darks acted with
passion or emotion, it alone is insufficient to satisfy the adequate provocation
requirement because none of this occurred contemporaneously with the murder.
Mr. Darks cites no Oklahoma law, nor have we found any, indicating that such
non-contemporaneous evidence would satisfy the provocation element of heat of
passion manslaughter.
Because the record is devoid of evidence of the adequate provocation
needed to support an instruction on heat of passion manslaughter, the district
court erred in granting habeas relief on this claim.
We note that in deciding the evidence was sufficient to support a finding of
the continuing threat aggravator, the OCCA noted there was no evidence of
provocation by Ms. Goodlow.
Darks , 954 P.2d at 164 n.7.
7

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B. Coerced Jury Verdict

The State also contends the district court erred in holding that the trial
court gave a coercive supplemental jury instruction during second stage
deliberations.

See generally Lowenfield v. Phelps , 484 U.S. 231, 241 (1988)

(Any criminal defendant, and especially any capital defendant, being tried by a
jury is entitled to the uncoerced verdict of that body.).
The jury began second stage deliberations in midafternoon. Four hours and
forty minutes later, the trial court

sua sponte called the jury into the courtroom,

commented the jury had been deliberating for a reasonable time/a good deal of
time and asked the foreperson to report the jurys numerical division without
stating the punishments reflected in that division. Tr. vol. VIII at 1559. The jury
was divided eleven to one. The trial court then gave this instruction:
Ladies and gentlemen of the jury, you have advised me through your
foreperson that you have not reached a unanimous verdict as to
punishment. I am going to ask you to deliberate further. You are
advised that if upon further deliberation you are unable to agree
unanimously as to a punishment recommendation, I shall discharge
you, and according to law, I must impose either a sentence of life or
a sentence of life without parole. You are excused at this time back
into [the bailiffs] charge for further deliberations.
Id. at 1560; see also Darks , 954 P.2d at 165 (noting language in last sentence is
contained in Oklahoma Jury Instruction 442 and tracks

O KLA . S TAT . tit. 21,

701.11). Mr. Darks did not object to this supplemental instruction. Twenty
minutes later, the jury returned a unanimous verdict of death.
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1. Standard of Review
Although Mr. Darks argued on direct appeal that the trial courts allegedly
coercive supplemental instruction violated his constitutional rights, the OCCA
decided this issue on state law grounds only, determining the trial judge gave the
supplemental instruction after the jury had exceeded a reasonable time for
reaching a punishment decision.

Darks , 954 P.2d at 166. Notwithstanding the

OCCAs failure to address Mr. Darks constitutional claims, the State argues
AEDPA still applies in light of that courts resolution of the claim on the merits.
The State contends the OCCAs adjudication is an implied rejection of the merits
of the constitutional claim and therefore is entitled to some deference under
AEDPA. 8
We agree with the district court that there is no state court decision to
which deference is due. [W]here a federal constitutional argument was raised on
direct appeal but not addressed by the state court in any manner, we review that
argument de novo . Le v. Mullin , 311 F.3d 1002, 1013 (10th Cir. 2002) (per

To support this argument, the State cites

Hurtado v. Tucker , 245 F.3d 7, 20
(1st Cir. 2001). Hurtado is inapplicable. In that case, the state appellate court
adjudicated the constitutional claims on the merits. Consequently, the First
Circuit did not decide how to analyze whether there had been an unreasonable
application of Supreme Court precedent when there was no state court analysis of
the claims. Id. at 18 n.18. Moreover, the court indicated in dicta that a state
courts failure to discuss a constitutional claim may mean the state court did not
adjudicate the claim on its merits.
Id.

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curiam); see Ellis v. Mullin , 312 F.3d 1201, 1206 (10th Cir. 2002) (Because the
OCCA did not consider [petitioners] federal constitutional claim, our review is
de novo .); Neill v. Gibson , 278 F.3d 1044, 1053 (10th Cir. 2001) (reviewing

de

novo where state court denied claim on state ground unrelated to federal issue),
cert. denied , 123 S. Ct. 145 (2002);

Romano v. Gibson , 239 F.3d 1156, 1166 (10th

Cir. 2001) (reviewing de novo where petitioners challenge on direct appeal was
based on federal constitutional grounds, but OCCA addressed claims only under
state law).
2. Merits
In Allen v. United States , 164 U.S. 492 (1896), the Supreme Court upheld
the giving of a supplemental instruction to a jury unable to reach a consensus.
The instruction at issue in

Allen directed those jurors holding minority views to

reconsider their views in light of the contrary views held by the majority of
jurors, but stated that the verdict must be that of each individual juror.
501; see also Lowenfield , 484 U.S. at 237-38 & n.1 (citing

See id. at

Allen and again

approving use of supplemental jury charge when jury is deadlocked). The

Allen

instructions purpose is
to encourage unanimity (without infringement upon the
conscientious views of each individual juror) by urging each juror to
review and reconsider the evidence in the light of the views
expressed by other jurors, in a manner evincing a conscientious
search for truth rather than a dogged determination to have ones way
in the outcome of the deliberative process.
-21-

Gilbert v. Mullin , 302 F.3d 1166, 1173 (10th Cir. 2002) (quoting
Smith , 857 F.2d 682, 683-84 (10th Cir. 1988)),
(U.S. Feb. 27, 2003) (No. 02-9334);

United States v.

petition for cert filed ,

see also United States v. McElhiney ,

275 F.3d 928, 935 (10th Cir. 2001) (An

Allen instruction is, in effect, a charge

given by a trial court that encourages the jury to reach a unanimous verdict so as
to avoid a mistrial.).
The supplemental instruction here is somewhat different than a traditional
Allen charge, and we must decide whether it improperly coerced a jury verdict.
Lowenfield and other federal cases addressing an

Allen charge provide an

instructive framework for determining whether the instruction was impermissibly

coercive. Cf. McElhiney , 275 F.3d at 941 ([E]ven if the district courts
comments did not constitute an instruction (

Allen or otherwise), its remarks still

had the potential to coerce the jury, and, as coercion is the primary concern with
the giving of an Allen instruction, the overall

Allen analysis would still be

applicable.). In conducting this analysis, we are mindful that [w]hether a jury

has been improperly coerced by a judge is a mixed question of law and fact.
Gilbert , 302 F.3d at 1171.
In deciding whether a supplemental instruction is coercive, the Supreme
Court has held that a reviewing court must look at the supplemental charge given
by the judge in its context and under all the circumstances.
-22-

Id. at 1173

(quoting Lowenfield , 484 U.S. at 237 (quotation omitted));

see also McElhiney ,

275 F.3d at 941 (examining trial courts comments under all circumstances to
decide if jurys verdict was product of impermissible coercion). Factors
reviewing courts consider in making a coercion determination include: (1) the
language of the instruction, (2) whether the instruction is presented with other
instructions, (3) the timing of the instruction, and (4) the length of the jurys
subsequent deliberations.

Gilbert , 302 F.3d at 1173 (quoting

Arney , 248 F.3d 984, 988 (10th Cir. 2001));

United States v.

see also United States v. Porter ,

881 F.2d 878, 888 (10th Cir. 1989) (considering, in addition to first three factors
listed above, whether trial court gave instruction before jury reached deadlock).
The district court considered the following circumstances in deciding that
the second stage verdict in this case was influenced by the coercive action of the
trial court. The second stage lasted no more than five and a half hours. The jury
had deliberated for four and a half hours, and was still deliberating when the trial
court sua sponte called it into the courtroom and asked about its numerical
division. Moreover, the jury had not indicated it was deadlocked, and had earlier
asked a question indicating it was leaning toward a sentence of life without
parole. The district court also pointed out that the supplemental instruction did
not urge the minority to consider the majoritys views and instead informed the
jury of the consequences of an inability to reach a unanimous verdict, thereby
-23-

suggesting the jury could avoid its duty to decide a sentence. Finally, less than
twenty minutes after the polling, the jury returned a verdict.
Upon de novo review of the totality of the circumstances, we conclude to
the contrary that the supplemental instruction did not coerce a death sentence.
First, nothing in the language of the supplemental instruction itself can be deemed
coercive. Although it lacked protective language assuring minority jurors they
were not required to relinquish firmly held convictions, it did not include any
language asking the jurors to reconsider their positions and to change their
positions if they believed they were wrong.

See Montoya v. Scott , 65 F.3d 405,

414 (5th Cir. 1995). The instruction did not press the hold-out juror to yield to
the majority position. When, as here, a neutrally phrased supplemental instruction
is directed at all jurors rather than just those holding a minority view, and
encourages them to continue deliberations, it reduces the possibility of coercion.
See Arney , 248 F.3d at 988.
The instruction did not state that the jury must reach a unanimous verdict or
that a hung jury was unacceptable.

See Booth-El v. Nuth , 288 F.3d 571, 582 (4th

Cir.), cert. denied , 123 S. Ct. 384 (2002). The jurors therefore knew they would
be discharged with or without a unanimous verdict. Indeed, the jurors right to
continue disagreeing was included in the charge at least implicitly, if not
expressly. See Tr. vol. VIII at 1560 (indicating that if jury did not reach
-24-

unanimous verdict, trial court would discharge jury and impose either life or life
without parole sentence). The instruction merely asked the jury to continue
deliberating, which is what it would have done without the supplemental
instruction, and the instruction did not impose any time restrictions on the
deliberations. Moreover, while the court indicated the consequences if the jury
did not reach a unanimous verdict, the Supreme Court has upheld a similar
instruction as not coercive.

See Lowenfield , 484 U.S. at 234, 235.

In addition, we have held that calling the jury

to inquire about their progress is not coercive.

sua sponte into the courtroom

See United States v.

Rodriguez-Mejia , 20 F.3d 1090, 1092 (10th Cir. 1994) (holding not error,
although not preferred, to give supplemental instructions before jury declares
deadlock, even when jury had been deliberating only few hours). A court may
give a supplemental instruction

sua sponte before counsel requests one, even

without any indication from the jury that it is deadlocked.

See Gilbert , 302 F.3d

at 1175; Thomas v. Jones , 891 F.2d 1500, 1504 (11th Cir. 1989) (trial court not
coercive when it interrupted jury deliberations, advised jury it was not trying to
force verdict but if jury could not agree unanimously on death verdict jury would
be required to return verdict of life without parole, and then permitted jury to
continue and complete deliberations).

-25-

Nor was the trial courts inquiry about the jurys numerical division per se
impermissible.

See Montoya , 65 F.3d at 412 (distinguishing direct appeal of

federal criminal conviction, governed by per se rule of

Brasfield v. United States ,

272 U.S. 448 (1926), from federal collateral review of state conviction and citing
cases from Fourth, Sixth, Seventh, Eighth, and Ninth Circuits);
Lowenfield , 484 U.S. at 240 n.3 (citing cases);

see also

Schaff v. Snyder , 190 F.3d 513,

535-36 (7th Cir. 1999) (noting no Supreme Court case holds state court judges
inquiry into numerical breakdown is constitutionally prohibited);

Jiminez v.

Myers , 40 F.3d 976, 980 (9th Cir. 1993) ([A state] trial courts neutral inquiry
into the division of the jury without other circumstances suggestive of coercion
does not deprive a defendant of due process.). After inquiring about the
numerical division, the trial court here did not know who the hold-out juror was
or which punishment the majority of jurors favored.

See Gilbert , 302 F.3d at

1176 (trial courts inquiry into jurys numerical division without eliciting
information about favored sentence not coercive);

Thompson v. Cain , 161 F.3d

802, 810 (5th Cir. 1998) (trial courts inquiry into jurys numerical division did
not render defendants trial fundamentally unfair);

cf. Montoya , 65 F.3d at 413

(less coercive for court to inquire about numerical division than about how each
side stood). The trial court merely assessed the jurys progress, gave a neutral
instruction to continue deliberations, and repeated its earlier instruction on the
-26-

consequences of the failure to reach a unanimous verdict. Under these

circumstances, the jurors could not have labored under the impression that the
court was interested in what their actual decision would be.

Gilbert , 302 F.3d at

1176.
Mr. Darks points to three other circumstances he alleges demonstrate a
coerced verdict. He contends the trial courts individual voir dire in chambers,
asking only whether prospective jurors could consider the death penalty as one of
the punishment alternatives, indicated to prospective jurors that the court was
inclined toward a death sentence. Mr. Darks points out that the questioning
occurred in secret and that the trial court did not ask whether each potential juror
could consider all three punishments or specifically whether the juror could
consider life or life without parole. We are not persuaded the individual voir dire
was coercive. The trial court neutrally questioned each juror individually and
asked only whether the prospective juror could consider the death penalty. The
court did not in any way suggest a death sentence was the proper punishment.
Mr. Darks also points to the fact that the trial court
potential jurors who could not consider a death sentence,

sua sponte removed

see Tr. vol. I at 176-77;

id. vol. II at 296-98, but removed other jurors who indicated a preference for the
death penalty only after the State or Mr. Darks moved to excuse them for cause,
see id. vol. II at 206; id. vol. III at 382-84, 429. However, the trial court allowed
-27-

both parties to question all potential jurors about their beliefs and their ability to
consider life and life without parole as possible punishments. One potential juror
was removed after such questioning because that juror could not consider life
with the possibility of parole as a punishment option.

Id. Tr. vol. III at 428-29.

The trial court did not express an opinion that death was the proper punishment.
Moreover, the second stage instructions informed the jury that the court did not
suggest a particular punishment, and that the jury had the duty to decide which of
the three punishments to impose. O.R. at 331, 348. We presume the jury
followed these instructions.

See Weeks v. Angelone , 528 U.S. 225, 234 (2000).

Second, Mr. Darks asserts that the trial courts response to a note from the
jury coerced a death penalty verdict. At some unknown time during deliberations,
the jury sent a note to the trial court asking Does the Life Without Parole
punishment Require a unanimous verdict? The last paragraph on Supplemental
instruction number 12 says You may also return a unanimous verdict of
imprisonment for life or life without parole. O.R. 358 (emphasis in original).
The trial court answered yes.

Id. Mr. Darks does not explain why he believes

the response to this question contributed to a coerced verdict. We think the trial
courts response merely clarified the original jury instructions. At the time the
court answered the question, the jury was still deliberating and the court was
unaware of the jurys numerical division. While the jurys note arguably suggests
-28-

it was leaning toward a sentence of life without parole at the time it sent the note,
we are not convinced the courts response to the jurys note coerced a death
sentence.
Finally, Mr. Darks argues that the relatively short period of time between
the trial courts giving of the supplemental instruction and the jurys verdict
demonstrates coercion. There is a suggestion of coercion when a jury returns its
verdict soon after receiving the supplemental instruction.

See Lowenfield ,

484 U.S. at 240. But defense counsel did not object to the division poll or
supplemental instruction, further suggesting the potential for coercion argued
now was not apparent to one on the spot.

Id. The supplemental instruction

contained no coercive language and expressly indicated the jurors need not reach
a unanimous verdict.

Cf. McElhiney , 275 F.3d at 946-47 (recognizing short time

for deliberations may be important in determining coercion where trial court

employs faulty language in supplemental instruction). The jury was not
deadlocked and the short amount of time it deliberated after hearing the
supplemental instruction lends scant support to a finding of coercion, especially
when the instruction did not exhort the jury to reach a unanimous verdict. It is
just as likely the jury was within twenty minutes of a verdict before the trial court
gave the supplemental instruction.

-29-

After viewing the supplemental instruction in light of the totality of the

circumstances, we conclude it was not coercive. It did not displace the jurors
independent judgments or suggest a need for compromise or expediency. If
anything, the trial court painstakingly attempted to avoid influencing the jury to
return a verdict of death.

Thomas , 891 F.2d at 1504; cf. Jenkins v. United States ,

380 U.S. 445, 446 (1965) (per curiam) (trial courts exhortation to jury that
[y]ou have got to reach a decision in this case was coercive). The supplemental
instruction therefore did not deny Mr. Darks his right to a fair trial and an
impartial jury.

See Lowenfield , 484 U.S. at 241; see also Montoya , 65 F.3d at 409

(requiring supplemental charge to be so coercive it unconstitutionally rendered

trial fundamentally unfair). Accordingly, the district court erred in granting
habeas relief on this claim.
C. Cumulative Error
The State contends the district court erred in holding that cumulative error
unconstitutionally impacted the trial court proceedings. In addition to the

Beck

and jury coercion issues discussed above, the district court noted the following
six additional serious errors, which the OCCA had found harmless: (1) Mr.
Darks trial counsel erroneously summarized a witnesss testimony during first
stage closing argument; (2) Mr. Darks was held in jail for over forty-eight hours
without a probable cause hearing; (3) the trial court improperly admitted at the
-30-

first stage a forged divorce decree granting child custody to Mr. Darks; (4) the
trial court erroneously admitted at the first stage improper police comments made
during Mr. Darks videotaped interview; (5) prosecutorial misconduct occurred
during the second stage closing arguments; and (6) the trial court improperly
admitted at the second stage photographs the State used to prove victim impact.
Without separating the errors into the trials first and second stages, the district
court held that the cumulative effect of these errors and the two errors upon which
it had granted relief did not have an isolated or trivial effect on [Mr. Darks]
trial. Dist. Ct. R. vol. I, doc. 75 at 76. Rather, the court determined that in
[this] case based on circumstantial evidence, those errors had a pervasive effect
on the inferences to be drawn from the evidence and therefore, warrant habeas
relief. Id.
The State contends that no Supreme Court authority recognizes cumulative
error as a separate violation of the Constitution or as a separate ground for
habeas relief.

See Lorraine v. Coyle , 291 F.3d 416, 447 (6th Cir.) (The Supreme

Court has not held that distinct constitutional claims can be cumulated to grant
habeas relief.), amended on other grounds , 307 F.3d 459 (6th Cir. 2002),

cert.

denied , 2003 WL 1617945 (U.S. Mar. 31. 2003) (No. 02-7467). Consequently,
the rejection of a cumulative error challenge cannot be contrary to or an
unreasonable application of clearly established Supreme Court precedent.
-31-

See

28 U.S.C. 2254(d)(1). Furthermore, the State argues habeas relief cannot be

granted on cumulative errors that do not separately warrant habeas relief because
each error must be assessed against the record as a whole in finding harmlessness,
and harmlessness necessarily includes a finding of no cumulative error. While
Mr. Darks acknowledges that no Supreme Court precedent directly addresses
cumulative error, he argues, as he did before the OCCA, that the guarantees of a
fair trial and due process apply to his cumulative error claim.
Supreme Court authority clearly establishes the right to a fair trial and due
process. See, e.g. , Delaware v. Van Arsdall , 475 U.S. 673, 681 (1986)
(recognizing Constitution entitles defendant to fair trial, not perfect one; harmless
error focuses on trials fairness);

Taylor v. Kentucky , 436 U.S. 478, 487-88 &

n.15 (1978) (deciding cumulative effect of potentially damaging circumstances

violated due process guarantee of fundamental fairness);

Donnelly v.

DeChristoforo , 416 U.S. 637, 639 (1974) (considering totality of prosecutorial

misconduct in context of entire trial to decide if misconduct was sufficiently
prejudicial to violate defendants due process rights);

see also United States v.

Rivera , 900 F.2d 1462, 1477 (10th Cir. 1990) (en banc) (recognizing federal
courts have based finding of fundamental unfairness on cumulative impact of two
or greater number of errors). Because Mr. Darks raises a cumulative error claim
under due process principles, we need not reach the States argument that no
-32-

Supreme Court authority recognizes cumulative error as a separate constitutional

ground for granting habeas relief.
As we have noted, Mr. Darks argued on direct appeal that the accumulation
of error denied him his constitutional rights to due process and a fair trial. The
OCCA rejected this argument, holding that if individual assertions of error are
rejected, then the propositions when considered collectively will not yield a
different result.

Darks , 954 P.2d at 168 (citing

Ballou v. State , 694 P.2d 949,

952 (Okla. Crim. App. 1985)). The OCCAs rationale, however, taken on its
face, would render the cumulative error inquiry meaningless, since it indicates
that cumulative error may be predicated only upon individual error already
requiring reversal.

Willingham v. Mullin , 296 F.3d 917, 935 (10th Cir. 2002),

petition for cert. filed,

(U.S. Dec. 26, 2002) (No. 02-9404) Accordingly, we

review this cumulative error claim

de novo , applying the controlling federal

standards. See id. In so doing, we point out that the State does not assert the
OCCA erred in finding the six errors. Indeed, the State does not even discuss
those errors in its brief on appeal. We therefore assume without deciding that all
six constituted errors.
Cumulative error analysis is an extension of harmless error,
F.2d at 1469, and conduct[s] the same inquiry as for individual error,
1470, focusing on the underlying fairness of the trial,
-33-

see Rivera , 900

id. at

id. at 1469 (quoting Van

Arsdall , 475 U.S. at 681); see also United States v. Wood , 207 F.3d 1222, 1237
(10th Cir. 2000). [T]he cumulative effect of two or more individually harmless
errors has the potential to prejudice a defendant to the same extent as a single
reversible error.

Hooper , 314 F.3d at 1178; (quoting

306 F.3d 982, 992 (10th Cir. 2002),

Duckett v. Mullin ,

petition for cert. filed,

(U.S. Feb. 25, 2003)

(No. 02-9257); see also Rivera , 900 F.2d at 1469. As in assessing the
harmlessness of individual errors, therefore, this court evaluate[s] whether
cumulative errors were harmless by determining whether a criminal defendants
substantial rights were affected.

Moore v. Reynolds , 153 F.3d 1086, 1113 (10th

Cir. 1998).
A cumulative-error analysis merely aggregates all the errors
that individually have been found to be harmless, and therefore not
reversible, and it analyzes whether their cumulative effect on the
outcome of the trial is such that collectively they can no longer be
determined to be harmless. Unless an aggregate harmless
determination can be made, collective error will mandate reversal,
just as surely as will individual error that cannot be considered
harmless.
Rivera , 900 F.2d at 1470; see Duckett , 306 F.3d at 992; Willingham , 296 F.3d at
935. Because the OCCA addressed harmless error under an incorrect standard,
we apply the harmless error standard set forth in

Brecht v. Abrahamson , 507 U.S.

619 (1993), and determine whether the error had substantial and injurious effect
or influence in determining the jurys verdict.

-34-

Id. at 637 (quotation omitted).

See Herrera v. LeMaster , 301 F.3d 1192, 1200 (10th Cir. 2002) (en banc),

cert.

denied , 123 S. Ct. 1266 (2003).

In assessing cumulative error, only first stage errors are relevant to the
conviction, but all errors are relevant to the sentence.
F.3d 586, 619 (5th Cir. 1999);

See Moore v. Johnson , 194

see also Coleman v. Saffle , 869 F.2d 1377, 1396

(10th Cir. 1989) (considering whether first stage prosecutorial misconduct errors
prejudiced penalty phase). Considering the entire record,

see Alvarez v. Boyd ,

225 F.3d 820, 824 (7th Cir. 2000), and the errors in aggregate, we conclude Mr.
Darks right to a fair trial was not substantially impaired at either stage of trial.
Because we have concluded that no error occurred with respect to either the
failure to give a lesser included offense instruction or the giving of the
supplemental instruction, the only matters we consider here are the six errors
found by the OCCA.

See Moore , 153 F.3d at 1113 (cumulative error analysis

does not apply to the cumulative effect of non-errors). Even when

accumulated, we are not persuaded the errors had a sufficiently harmful effect to
deny Mr. Darks a fair trial.
With respect to the first stage of trial, we conclude that the strong
circumstantial evidence of Mr. Darks guilt overcomes the cumulative impact of
the four guilt stage errors.

See Hooper , 314 F.3d at 1178 (deciding no prejudice

due to extensive evidence supported finding of guilt). Each of the four errors had
-35-

minor significance.

See Alvarez , 225 F.3d at 825 (courts must be careful not to

magnify the significance of errors which had little importance). They did not
significantly strengthen the States case or diminish Mr. Darks case. No
reasonable probability exists that the jury would have acquitted [Mr. Darks]
absent the errors.

Hooper , 314 F.3d at 1178. Thus, the cumulative effect of the

first stage errors was harmless.

With respect to the second stage, we likewise conclude the cumulative error
was not prejudicial to Mr. Darks. Substantial evidence supported the continuing
threat aggravator. Moreover, during his videotaped interview, which was shown
to the jury, Mr. Darks showed no remorse and instead indicated an extreme
callousness about the murder. In our judgment, the cumulative impact of all six
of the assumed errors is insufficient to undermine the continuing threat
aggravator. Consequently, no reasonable probability exists that the jury would
have imposed a sentence less than death absent these errors.
We conclude Mr. Darks was not entitled to habeas relief from his
conviction or from his sentence. Accordingly, we
grant of habeas relief.

-36-

REVERSE the district courts