Grant v. State

2002 OK CR 36, 58 P.3d 783, 2002 WL 31553799

• Court: Court of Criminal Appeals of Oklahoma
• Decided: January 24, 2003
• Docket: D 2000-653
• Status: Published

Opinions

OPINION

LILE, Judge.

¶ 1 Appellant, John Marion Grant, an inmate at the Oklahoma Department of Corrections (D.O.C.) Connor Correctional Center, was charged with the First Degree (malice) Murder¹ of D.O.C. employee Gay L. Carter in Osage County District Court, Case No. CF-99-28.² The State filed a Bill of Particulars alleging three aggravating circumstances: “The defendant was previously convicted of a felony involving the use or threat of violence to the person;” “The murder was committed by a person while serving a sentence of imprisonment on conviction of a felony;” and “The existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” ³ A jury trial was held before the Honorable J.R. Pear-man, District Judge. The jury found Grant guilty as charged, found the existence of the three aggravating circumstances, and set punishment at Death.

I. FACTS

¶ 2 On November 13, 1998, Grant savagely and repeatedly stabbed Gay Carter, a food service supervisor at the Connor Correction Center in Hominy, Oklahoma. Grant used a prison-made “shank” similar to a sharpened screwdriver. Grant was serving a total of one-hundred thirty (130) years for four separate armed robberies and had been in prison for about twenty years prior to this offense. On a previous stay at Connor Correctional Center, Grant had worked in the kitchen and he knew Carter; however, Grant lost this job because he was fighting with another inmate.

¶ 3 The morning of and the morning before this murder, Grant and Carter argued over the breakfast tray served to Giant. The previous morning Grant told Carter, “I’ll get you bitch,” and the morning of the murder Grant stated, “Your mine.” Inmates Jerry James and Ronald Kuykendall, who held jobs in the dining area, witnessed these arguments.

¶4 After the last argument, James and Kuykendall saw Grant loitering in a storage area where cleaning supplies were kept, adjacent to the main dining area. Carter left the dining area to go to another building where the kitchen was located. When she returned, Grant grabbed her and pulled her into a mop closet. Inside the closet, Grant stabbed Carter numerous times in the chest while holding her mouth closed.

¶ 5 Witnesses summoned Sergeant Daniel Gomez, the first Correctional Officer to arrive. Gomez saw Grant still struggling with Carter. Grant then stood up and faced Gomez, looked at him with a vacant stare, and ran across the dining hall to the storage room, while still carrying the shank in his hand. Grant shut the door, closing himself inside.

¶ 6 After Grant left the mop closet, medical personnel arrived to aid Carter. They found that she was not breathing, and they could not find any vital signs. Carter was transported to the hospital, but efforts to revive her were unsuccessful. Medical Examiner Robert Hemphill determined that Carter died as a result of sixteen stab wounds. Carter’s aorta was punctured, causing rapid blood loss resulting in her death.

¶ 7 The storage room to where Grant fled, has a wire mesh ceiling through which Correctional Officer Tony Reeves observed Grant. Grant ignored orders to lie down on the floor. Grant held the shank to his chest and ran into the wall, apparently in an attempt to stab himself. A special team of correctional officers entered the storage room and Grant made stabbing motions toward the officers. The officers were able to subdue Grant with the use of an electrical shock device.

¶ 8 Grant raises fifteen propositions of error in his appeal. These propositions will be addressed as they arose at trial.

II. JURY SELECTION ISSUES

A.

¶ 9 Grant claims, in his first proposition, that the trial court committed reversible error by improperly denying his challenges for cause against two jurors who expressed a reluctance to consider all three punishment options. He claims that he was forced to accept other objectionable jurors because he had to use his peremptory challenges to remove these two jurors that should have been removed for cause.

¶ 10 We begin with the basic premise that the decision to excuse a prospective juror for cause rests within the sound discretion of the trial judge, whose decision will not be overturned unless an abuse of discretion is shown. Myers v. State, 2000 OK CR 25, ¶ 6, 17 P.3d 1021, 1026, cert, denied, 534 U.S. 900, 122 S.Ct. 228, 151 L.Ed.2d 163 (2001). This Court will review the prospective juror’s entire voir dire examination to determine if the trial court made the proper discretionary decision. Id. A prospective juror must be willing to consider all the penalties provided by law, and the juror must not be irrevocably committed to any one punishment before trial has begun. Myers, 2000 OK CR 25, ¶ 6, 17 P.3d at 1026-1027.

¶ 11 Grant specifically claims that he lost two peremptory challenges because the trial court wrongfully denied his for-cause challenges to jurors Gee and Martin. Grant does not claim that jurors who were strongly biased toward the death penalty were allowed to sit on the jury. He claims that jurors Gee and Martin were unwilling to consider one or both of the two “non-death” punishment options. In Oklahoma, a defendant who disagrees with the trial court’s refusal to remove a juror “for cause” must utilize a peremptory challenge in order to preserve his claim on appeal. Ross v. Oklahoma, 487 U.S. 81, 88, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988).

¶ 12 Furthermore, a defendant must show that the jury sitting in the trial was biased, because he exhausted his peremptory challenges by being forced to remove those that should have been removed for cause. Abshier v. State, 2001 OK CR 13, ¶¶ 113-14, 28 P.3d 579, 603-04, cert, denied, 535 U.S. 991, 122 S.Ct. 1548, 152 L.Ed.2d 472 (2002); also see Ross v. State, 1986 OK CR 49, ¶ 11, 717 P.2d 117, 120, affd sub nom Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988).

“Trial judges enjoy ‘broad discretion in deciding which members of the venire possess actual bias and should be excused for cause.’ Warner [v. State,] 2001 OK CR 11, ¶ 6, 29 P.3d [569] at 572. However, in ruling on challenges for cause, all doubts regarding juror impartiality must be resolved in favor of the accused, who need not prove a juror’s bias in favor of the death penalty with unmistakable clarity. Warner, 2001 OK CR 11, at ¶¶ 6 & 8, 29 P.3d at 572, 573. This means trial courts should consider the entirety of a prospective juror’s voir dire to determine if their expressed feelings favoring the death penalty would prevent or substantially impair their performance as a juror. Warner, 2001 OK CR 11, ¶ 8, 29 P.3d at 573. On appeal, this Court will not grant relief based on the improper denial of a challenge for cause unless the record affirmatively shows that the erroneous ruling reduced the number of the appellant’s peremptory challenges to his prejudice and he must demonstrate that he was forced, over objection, to keep an unacceptable juror. Warner, 2001 OK CR 11, ¶ 10, 29 P.3d at 573-74.”

Matthews v. State, 2002 OK CR 16, ¶ 16, 45 P.3d 907, 915.

¶ 13 Initially prospective juror Gee stated that if it were proven that the murder was “premeditated or planned” he would vote for the death penalty. After questioning by the prosecutor and the trial court, Gee insisted that he would follow the Court’s instructions and consider all three sentencing options. Then defense counsel resumed questioning Gee by presenting the hypothetical that “the State has proven to you that he [Grant] intended to kill this woman, that he either thought about it for days or he just thought about it and did it, but he intended to kill this woman for no good reason ... without hearing another thing, would you automatically give him the death penalty?” Gee replied that he would have to think about that one. After given the opportunity to think, Gee replied, “Yes.” Defense counsel then started to ask about instructions by the judge and Gee interrupted the questions and stated, “I would go by his instructions.” Gee admitted that he was nervous and that he got confused. He stated that he would weigh the evidence and give it his best shot.

¶ 14 Prospective Juror Martin initially stated that he would consider all three sentencing options. When defense counsel asked Martin what the appropriate punishment would be for someone that committed intentional murder, Martin responded that he “wouldn’t go less than life without parole.” After the prosecution explained the procedure during a punishment stage, Martin gave assurances that he would consider all three punishment options. Even after further questioning by defense counsel, Martin stated that he changed his mind and that he would even consider a life sentence for an intentional murder. Clearly the trial court did not abuse its discretion in failing to remove Martin.

¶ 15 The harder issue is whether the trial court abused its discretion in failing to remove Gee. However, Grant has not shown that the arguably erroneous ruling reduced the number of his peremptory challenges to his prejudice, and he has not shown that he was forced, over objection, to keep an unacceptable juror; therefore, we need not decide this issue.

¶ 16 In this case, after defense counsel exhausted his complement of peremptory challenges, counsel advised the trial court that if he had not been forced to use his peremptory challenges on Gee and Martin, he would have removed juror Hargrave. Defense counsel utilized his second peremptory challenge on prospective juror Gee and his ninth and final peremptory challenge on Martin.

¶ 17 During the individual in-camera voir dire of prospective juror Hargrave, Appellant moved to have her removed for cause; however, after questioning by the trial court and further questioning by defense counsel, Har-grave unequivocally stated that she would consider all three punishments. After the Hargrave voir dire, Appellant exercised his sixth peremptory challenge, but not for Har-grave. He claimed at trial, and now on appeal, that he was forced to keep Hargrave, who he called an “undesirable juror.” However, Appellant’s actions at trial contradict this claim. Appellant utilized two more peremptory challenges on jurors that he did not challenge for cause, without excusing Har-grave. Grant excused a total of three jurors whom he did not challenge for cause after Hargrave was seated; therefore, he cannot show that the jury was prejudiced against him, or that the trial courts ruling prejudiced him in any way. See Abshier, 2001 OK CR 13, ¶ 114, 28 P.3d at 604.

¶ 18 In fact, Grant does not claim that the jury was biased. The focus must be on the prospective jurors who ultimately sat on the jury. Abshier, 2001 OK CR 13, ¶113, 28 P.3d at 603. Failing in the burden to show that the jury was biased, Grant has not shown that this issue merits relief.

B.

¶ 19 During the jury selection process, prospective jurors were asked to give their own personal definition of the legal concept “beyond a reasonable doubt.” Grant complains, in proposition two, this constituted impermissible questioning. Not one time during trial did defense counsel object to the jurors being asked their personal definition of this burden of proof. In fact, defense counsel told the jurors that all of their definitions were good, and he specifically expressed approval of the jurors who stated, “You have to be sure.” As we said in Simpson v. State, 1994 OK CR 40, ¶ 2, 876 P.2d 690, 693, failure to object with specificity to errors alleged to have occurred at trial, thus giving the trial court an opportunity to cure the error during the course of trial, waives that error for appellate review....” We are left then to review for plain error only, i.e. errors “which go to the foundation of the case, or which take from a defendant a right which was essential to his defense.” Simpson, 1994 OK CR 40, ¶ 12, 876 P.2d at 695.

¶20 In this case, there is no plain error. The main concern is whether the inquiry lowered the standard of proof necessary in a criminal case. See Sullivan v. Louisiana, 508 U.S. 275, 276-81, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (when a jury is instructed in a way that lowers the standard, the verdict cannot be considered a true verdict under the Sixth Amendment). In this case the questioning did nothing to lessen the burden of proof. The jury was instructed that the State’s evidence must convince them “beyond a reasonable doubt.” Neither the State nor the Trial Court attempted to define the term for the jurors. The questioning here was more analogous to attempts to distinguish between the “beyond a reasonable doubt” standard and a “beyond all doubt” standard, which we have stated is perfectly acceptable. See Phillips v. State, 1999 OK CR 38, ¶¶ 21-23, 989 P.2d 1017, 1028 (such comments are “merely attempts by the prosecution to dispel commonly held attitudes rather than attempts to define reasonable doubt.”), cert, denied 531 U.S. 837, 121 S.Ct. 97, 148 L.Ed.2d 56 (2000). There is no error here.

C.

¶21 In all criminal eases, potential jurors are routinely asked about their own personal experiences with criminal activity and the criminal justice system. Potential jurors, in this case, were asked how they had been impacted by crime and the criminal justice system. Grant complains, in proposition six, that one juror’s response went too far and tainted the entire jury pool. This particular juror expressed anger over the fact that the person who murdered her father served only seventeen years of a forty-five year sentence. Defense counsel requested a mistrial based on the statements arguing that the statements improperly introduced the possibility of parole and early release to the other prospective jurors. This potential juror was struck for cause by agreement of the parties.

¶22 The next day an in camera hearing was held on the issue. During the hearing defense counsel specifically objected to an admonishment by the court or to any questioning of the jurors regarding the impact of the statements on them. Counsel felt that this would only serve to reinforce the statements on the minds of the jurors.

¶ 23 In Mayes v. State, 1994 OK CR 44, ¶ 129, 887 P.2d 1288, 1316, cert, denied 513 U.S. 1194, 115 S.Ct. 1260, 131 L.Ed.2d 140 (1995), this Court stated that,

The legislature’s actions in making life without parole a viable sentencing option in first degree murder cases has obviously modified this Court’s previous rulings insofar as they mandate a blanket prohibition against the jury’s considering parole in deciding which sentence is appropriate. By its actions, the Legislature has created a specialized area of the law which mandates the jury must consider the possibility of parole in determining whether a defendant convicted of first-degree murder must live or die.

¶ 24 While jurors must consider the possibility of parole in a first-degree murder prosecution where “life without parole” is one of the sentencing options, a trial court must refrain from trying to define the parameters of parole with regard to a certain defendant. Mayes, 1994 OK CR 44, ¶ 134, 887 P.2d at 1317.

¶ 25 We are of the opinion that the statements of this potential juror did not taint the jury pool, and a mistrial was not required. This potential juror stated that the defendant in her Father’s case pled guilty, and she did not know to which crime he pled guilty. When reviewing the voir dire on whole, we find that these comments did not create reversible error.

D.

¶ 26 Correctional officers closely guarded Grant, who was in the custody of the Department of Corrections during trial. Grant complains, in proposition seven, that the method in which these officers were escorting him to and from the courtroom, violated the presumption of innocence. In this case, the prospective jury panel saw Grant being escorted from the courtroom, locked arm in arm with prison guards. At trial, Grant objected to this treatment, arguing that it was tantamount to placing him in handcuffs or shackles and made him look like an animal. He raises the same issue here.

¶ 27 Title 22 O.S.2001, § 15, provides, in part, “in no event shall [a person] ... be tried before a jury while in chains or shackles.” This statute is designed to allow a defendant the “unrestrained use of his limbs,” the freedom from “any physical bonds or burdens which might tend to confuse or embarrass his mental faculties,” and to prevent prejudice against the defendant from interfering with the presumption of innocence. French v. State, 1962 OK CR 157, ¶¶ 9, 19, 377 P.2d 501, 503, quoting 14 Am. Jur., p. 855. “[A] prisoner or convict is entitled to the same fair and impartial trial, and is to be cloaked with full benefit of the presumption of innocence to which all men are entitled.” French, 1962 OK CR 157, ¶ 19, 377 P.2d at 504. •

¶ 28 However, this Court has clearly distinguished between the use of armed guards in a courtroom and being tried while in “chains and shackles.” Vavra v. State, 1973 OK CR 229, ¶ 32, 509 P.2d 1379, 1384. Furthermore, the unintentional viewing of a defendant while being escorted in handcuffs outside the courtroom does not violate 22 O.S.2001, § 15. Mehdipour v. State, 1998 OK CR 23, ¶ 14, 956 P.2d 911, 917.

¶29 The prospective jurors, in this case, were fully aware that Grant was in prison on unrelated charges when this crime occurred. The trial court informed the jurors that the Department of Corrections officers were there because Grant was in prison when this “alleged” crime took place. After defense counsel objected to the treatment of Grant, the trial court asked the guards to refrain from locking arms, and from that point on there were no more objections from defense counsel.

¶ 30 We find that the method of escorting Grant to and from the courtroom did not violate Section 15 of Title 22, nor did it undermine the presumption of innocence. The human restraint was not the equivalent of using chains, handcuffs or shackles. Grant was not restrained during trial, and the human restraint was limited to the time he was being escorted to and from the courtroom. There is no error here.

III. FIRST STAGE ISSUES

¶ 31 The State called two fellow inmates who testified against Grant. In proposition three, Grant argues that one of these inmates’ identification of Grant as the one who threatened Carter on the day of the murder was not sufficiently reliable to be admissible.

¶ 32 Inmate Jerry James was working next to Carter, in the dining hall, serving breakfast on the morning of Carter’s murder. He testified that on that morning another inmate who he did not know (but whom he identified at preliminary hearing and at trial as Grant) tried to take a tray other than his. Carter told him to “take the damn tray and go on.” The inmate responded, “You’re mine.” James also testified that he saw Grant in the dining area after breakfast and that he saw Grant stabbing Carter.

¶ 33 Grant first complains that James’s viewing of the inmate that was involved in the confrontation with Carter was too brief to support identification. Grant claims that the identification by James was especially damaging because it showed ill will between himself and Carter and negated the possibility that he did not know the consequences of his actions on the day of the murder. Grant disputes James’s identification with the use of inmate Kuykendall who testified that he never saw Grant in the line that day even though he too was working next to Carter. Kuykendall testified that Grant threatened Carter the day before, and not the day of the murder.

¶ 34 Grant alleges that the preliminary hearing identification was the first time that James identified him as the one who threatened Carter on the day of the murder. He claims that an OSBI agent who told James that John Grant was the one who attacked Carter tainted this identification, and the identification was unreliable because Grant was the only black man sitting at the defense table.

¶ 35 This Court has held, on more than one occasion, that an in court identification need not be excluded, even if there is impermissibly suggestive pretrial identifications, when there is independent indicia of reliability. Young v. State, 2000 OK CR 17, ¶ 31, 12 P.3d 20, 34, cert, denied, 532 U.S. 1055, 121 S.Ct. 2200, 149 L.Ed.2d 1030 (2001). This Court considers all of the surrounding circumstances of the identification as well as factors including (1) the prior opportunity of the witness to observe the defendant during the alleged criminal act; (2) the degree of attention of the witness; (3) the accuracy of the witness’ prior identification; (4) the witness’s level of certainty; and, (5) the time between the crime and the confrontation. Id.

¶ 36 In the present case, James had sufficient time to view Grant in the serving line to later identify him at trial. More importantly, he saw Grant loitering around the dining room and later saw him stabbing Carter. James said that there was no doubt in his mind that Grant was the one who told Carter, “You’re mine,” and the one who later attacked Carter. Even though six months had elapsed between the crime and the initial identification, this event was one that would have left quite an impression on James.

¶ 37 Furthermore, defense counsel thoroughly cross-examined James on his identification pointing out the facts that there was no photographic line-up, that he initially told investigators that the inmate who threatened Carter was a medium built black man, which described five other men in the room at the time, and that an OSBI agent had told him at preliminary hearing that John Grant was the one he saw.

¶ 38 The record as a whole fully supports the admissibility of James’s identification of Grant as the one who threatened Carter the morning of her murder. The trial court did not abuse its discretion in allowing the identification testimony.

¶39 Grant complains about the introduction of a photograph, which he describes as irrelevant and highly prejudicial in proposition eight. The photograph, State’s exhibit 13, depicts a portion of the victim’s nude body. The photograph shows cleaned puncture wounds and bruising to Carter’s torso. The State initially sought to introduce three such pictures during an in-eamera hearing, but the trial court, after careful review, only allowed the State to introduce one of the photographs. Grant now complains that the photograph was cumulative to the medical examiner’s report that contained a chart showing the location of the wounds.

¶ 40 In order to be admissible photographic evidence must be relevant, and photographs are admissible unless the probative value is substantially outweighed by the danger of unfair prejudice. 12 O.S.1991, §§ 2402-2403; Myers, 2000 OK CR 25, ¶ 33, 17 P.3d at 1031. The admission of photographs is a matter within the trial court’s discretion, and this Court will not reverse the trial court’s ruling absent an abuse of that discretion. Myers, 17 P.3d at 1032.

¶ 41 This photograph was relevant because it more closely depicted the nature and extent of some of the stab wounds on Carter’s body than any other evidence available, including the medical examiner’s depiction of the wound locations on a chart. The best evidence would have been to allow the jurors to see the crime as it was occurring. Second best would be to allow the jurors to view the victim’s body just after she was stabbed. These two possibilities do not exist in this case. However, this evidence would have been more gruesome and prejudicial than the sterile, clinical photograph of Carter’s body. See Myers, 2000 OK CR 25, ¶ 36, 17 P.3d at 1032. The trial court did not abuse its discretion in allowing the introduction of this photograph.

¶ 42 In proposition seven, Grant argues that his constitutional right to confront and cross-examine witnesses against him was violated when the trial court limited his cross-examination of Dr. Frederick Smith. Dr. Smith was called by the State as a rebuttal witness. Dr. Smith testified that he reviewed all of Grant’s medical and mental health records maintained by the Department of Corrections, including a report by Dr. Elliot Mason. Dr. Smith concluded that he did not see any evidence of mental illness present with Grant.

¶ 43 On cross-examination, Grant attempted to question Dr. Smith about a portion of the report by Dr. Mason which contained Grant’s statement to Dr. Mason that he thought the security people were contaminating his food. Defense counsel, before objection by the State, attempted to ask Dr. Smith if he just missed that part of the report. The trial court ruled that the questioning was beyond the scope of direct examination.

¶ 44 Part of Dr. Smith’s testimony dealt directly with the issue of whether Grant exhibited any signs of having delusions. Smith testified that he had reviewed Dr. Mason’s report before reaching his conclusions. The statement by Grant in Dr. Mason’s report contradicted part of Dr. Smith’s opinion that Grant exhibited no signs of having delusions. “The extent of cross-examination rests in the discretion of the trial court and reversal is only warranted where there is an abuse of discretion resulting in prejudice to the defendant.” Parker v. State, 1996 OK CR 19, ¶ 13, 917 P.2d 980, 984, cert. denied, 519 U.S. 1096, 117 S.Ct. 777, 136 L.Ed.2d 721 (1997).

“As a general rule, any matter is a proper subject of cross examination which is responsive to testimony given on direct examination or which is material or relevant thereto and which tends to elucidate, modify, explain, contradict or rebut testimony given in chief by the witness.”

Smith v. State, 1985 OK CR 17, ¶ 14, 695 P.2d 864, 868.

¶ 45 Applying these general rules to the present case, we find that the attempted cross-examination was not beyond the scope of direct examination, and the trial court should have allowed the inquiry. However, prejudice must be shown. There was no prejudice to Grant resulting from the trial court’s ruling in this case.

¶ 46 There had been no history of delusional behavior in the seventeen years that Grant had been in D.O.C. custody. The failure to allow cross-examination on this single, self-serving statement made three days after Grant murdered the kitchen worker and contained in a second-hand report had no impact on the jury’s determination of guilt or the sentence in this ease. Therefore, we find that the trial court’s ruling was harmless beyond a reasonable doubt.

IV. FIRST STAGE INSTRUCTIONS

¶ 47 Grant claims, in proposition four, that the trial court committed error by failing to instruct the jury on lesser-included offenses. Grant argues that the trial court should have instructed on the lesser offenses of second-degree murder and first-degree manslaughter. His argument is based on evidence of his mental illness that, he claims, precluded him from forming the specific element of malice aforethought necessary for a first-degree murder conviction. At trial, Grant only requested that the jury be instructed on the lesser offense of first-degree manslaughter.

¶ 48 It is the trial court’s duty to instruct the jury on all lesser related offenses that are supported by the evidence, even absent a request from a defendant. Shrum v. State, 1999 OK CR 41, ¶ 6, 991 P.2d 1032, 1034. However, the trial court is only required to instruct on lesser offenses that are reasonably supported by the evidence. Shrum, 1999 OK CR 41, ¶ 11, 991 P.2d at 1036. “The test is an objective one — we do not ask a jury to consider a lesser offense if no jury could rationally find both that the lesser offense was committed and that the greater offense was not.” Frederick v. State, 2001 OK CR 34, ¶ 137, 37 P.3d 908, 943-44 (emphasis in original).

¶ 49 A defendant cannot be convicted of second-degree murder if the evidence establishes that he acted with a premeditated intent to kill. 21 O.S.1991, § 701.8(1); Williams v. State, 2001 OK CR 9, ¶¶ 23-25, 22 P.3d 702, 712, cert, denied, 534 U.S. 1092, 122 S.Ct. 836, 151 L.Ed.2d 716 (2002). In this case, the evidence clearly establishes a premeditated design to kill. Grant procured a prison-made stabbing instrument, capable of causing fatal injuries. He then waited for Carter to come by the mop closet, where he grabbed her and forced her into the small room. He then stabbed her repeatedly in the area where her vital organs were located. The evidence simply does not support a finding that he acted without a premeditated design to effect death.

¶ 50 First-degree manslaughter requires that a person act with a “heat of passion” caused by “adequate provocation.” 21 O.S. 2001, § 711. No evidence exists to support either of these elements. Therefore, the trial court did not err in failing to give this requested instruction.

¶ 51 Within this proposition, Grant urges this Court to recognize a “diminished capacity” defense to first degree murder wherein a defendant is incapable of forming the specific intent due to mental illness, yet something less than complete insanity. He compares this type of defense to the intoxication defense.

¶52 By accepting this defense, Grant argues that the diminished capacity would lessen the offense to Second Degree “depraved mind” Murder or First Degree Manslaughter. We need not reach the issue of a “diminished capacity” defense in this case, as Grant’s evidence regarding his mental illness did not show that he suffered mental infirmities that would have rendered him incapable of forming the specific intent necessary. Cf Jackson v. State, 1998 OK CR 39, ¶ 67, 964 P.2d 875, 892, cert. denied, 526 U.S. 1008, 119 S.Ct. 1150, 143 L.Ed.2d 217 (1999).

V. SECOND STAGE ISSUES

¶53 Grant complains in proposition eleven that the use of his prior convictions to prove two aggravating circumstances, “prior violent felony” and “murder committed by a person incarcerated on conviction of a felony,” resulted in duplicitous aggravating circumstances which skewed the weighing process. We addressed this issue in Green v. State, 1985 OK CR 126, ¶ 26, 713 P.2d 1032, 1040-41, cert, denied 479 U.S. 871, 107 S.Ct. 241, 93 L.Ed.2d 165 (1986), overruled on other grounds by Brewer v. State, 1986 OK CR 55, ¶ 51, 718 P.2d 354, 365, n. 1. In Green we stated that the two aggravating circumstances complained of here cover different aspects .of a defendant’s criminal history. One aggravating circumstance focuses on a defendant’s pattern of violent criminal history while the other focuses on his conduct while in prison. Green, 1985 OK CR 126, ¶ 26, 713 P.2d at 1042. We find that our reasoning in Green is sufficient for determination of this issue and we will not revisit our decision. There was no error in using evidence of Grant’s robbery convictions to support both of these aggravating circumstances.

¶ 54 Grant claims, in proposition twelve, that the “continuing threat” aggravating circumstance is unconstitutionally vague and does not serve the proper narrowing process. We have repeatedly upheld the constitutionality of this aggravating circumstance and will not revisit this issue here. Myers, 2000 OK CR 25, ¶¶ 70-74, 17 P.3d at 1036-37.

VI. VICTIM IMPACT EVIDENCE

¶ 55 Victim impact evidence, in this case, consisted of two statements written by Carter’s daughter and brother respectively. Carter’s sister read the first statement and Carter’s friend read the second. In his ninth proposition, Grant complains about the method in which victim impact evidence was presented. Grant did not object to the reading of the first statement, but he did object to the second statement being read by a “non-family member” in violation of 22 O.S.1991, § 984.

¶ 56 On Appeal, Grant argues that his Sixth Amendment right of confrontation and his Sixth Amendment right to effective counsel was violated by the introduction of the hearsay statements. He also argues that his Fourteenth Amendment Due Process rights were violated because mitigation evidence and witnesses are given stricter treatment under the evidence code than are victim impact witnesses. Finally Grant argues that the introduction of victim impact evidence violates the Eighth Amendment right to a reliable sentencing proceeding. To the extent that there are different issues raised on appeal than those raised at trial, we will review for plain error only. Plain error is error that deprives a defendant of a constitutional or statutory right, and goes to the foundation of the case. Stemple v. State, 2000 OK CR 4, ¶ 37, 994 P.2d 61, 69, cert. denied, 531 U.S. 905, 121 S.Ct. 247, 148 L.Ed.2d 178 (2000).

¶57 The contents of the statements are not at issue here, except for a portion in which there is a recommendation of sentence, which we will discuss later. Suffice it to say that the content of these statements complies with the limitations on victim impact statements set forth in our case law and legislation.

¶58 We have previously held that victim impact evidence, which meets the narrowly defined definition, is relevant in a first-degree murder prosecution. Cargle v. State, 1995 OK CR 77, ¶ 75, 909 P.2d 806, 828, cert. denied, 519 U.S. 831, 117 S.Ct. 100, 136 L.Ed.2d 54 (1996). Cargle was decided after this State’s legislature adopted “victim impact” statutes in response to the United States Supreme Court’s decision in Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991).

“[V]ictim impact evidence should be restricted to those unique characteristics which define the individual who has died, the contemporaneous and prospective circumstances surrounding that death, and how those circumstances have financially, emotionally, psychologically, and physically impacted on members of the victim’s immediate family.”

Cargle, 1995 OK CR 77, ¶ 75, 909 P.2d at 828. This Court has also held that the rules of evidence apply to victim impact testimony. Hooks v. State, 2001 OK CR 1, ¶ 37, 19 P.3d 294, 313, cert. denied, — U.S. —, 122 S.Ct. 371, 151 L.Ed.2d 282 (2001); Conover v. State, 1997 OK CR 6, ¶ 72, 933 P.2d 904, 921. “Pursuant to 22 O.S.Supp.1993, § 984.1, a victim’s family member may present an impact statement through testimony or through a written statement.” Hammon v. State, 2000 OK CR 7, ¶ 32, 999 P.2d 1082,1091, cert denied, 531 U.S. 1090, 121 S.Ct. 812, 148 L.Ed.2d 697 (2001). Clearly the legislature intended for written statements to be admitted in spite of the statutory rules of evidence. Whether this offends the confrontation clause is the issue here.

¶ 59 In Ledbetter v. State, 1997 OK CR 5, ¶¶ 37, 933 P.2d 880, 893, we recognized the fact that “a person designated by the victim or by family members of the victim” may present victim impact statements. However, we held that the legislature intended that the “person chosen to present the victim impact statement” should use his “own thoughts or observations to express the impact of a death on survivors of the victim.” Ledbetter, 1997 OK CR 5, ¶ 38, 933 P.2d at 893. In Led better, our holding allowed the chosen person to observe family members and to use those observations in the statement; however, that person may not receive aid in the composition of the statement from outside sources. Ledbetter, 1997 OK CR 5, ¶ 39, 933 P.2d at 893.

¶ 60 With these thoughts in mind, we struggle with the process of introducing a written victim impact statement to the jury. Usually when written statements are introduced, some method of sponsorship must be utilized. Either the person who prepared the document or someone who can identify and authenticate the document must testify. See 12 O.S.2001, § 2901. Alternatively, the parties may stipulate to the authenticity of the statements and allow the introduction without objection.

¶ 61 In this case, the statements were prepared by members of the victim’s family and read in court by designees, because there was some indication that the family members would not be able to get through the statements without breaking down emotionally. There was no evidence that the readers had any independent knowledge of the facts in the statements. There is also no evidence about whether the family members that wrote the statement were in attendance at the sentencing.

¶ 62 We find that the reading of the statements by third parties did not comport with the provisions of either 21 O.S.2001, § 701.10 or 22 O.S.2001, §§ 984 & 984.1 or with our prior case law cited above. Grant could not, if he had chosen to do so, test the validity of the statements through meaningful cross-examination; therefore, his right of confrontation was hindered and error occurred.

¶ 63 Nevertheless, Grant chose not to challenge the content of the victim impact evidence presented in this case even after an in-camera hearing in which all parties reviewed the statements and knew that the statements would be read by third parties. Grant merely objected, during the in-camera hearing, that the second reader, Larry Young, was not a “member of the immediate family” as defined in 22 O.S.2001, § 984. The trial court chose to wait and rule on this issue at a more appropriate time, but Grant raised no objection to either reader, including Young, at the time the victim impact evidence was presented.

¶ 64 As a strategic choice, this may have been a rather wise move. If the respective authors of the statements had testified, the jury would have surely been witnesses to highly emotional outbursts. Grant’s choice in allowing the statements to be read by these parties allowed the statements to be presented in a less prejudicial manner.

¶ 65 Many times this Court has found that improperly introduced victim impact evidence is harmless. Usually this is due to the fact that evidence of aggravating circumstances is overwhelming, evidence of the aggravating circumstances clearly outweighs the mitigation evidence, and the victim impact statements are “extremely short, far less emotional than the factual details of the death already in evidence, and of little or no weight in and of themselves.” ⁴

¶ 66 The same is true here, Grant, a prison inmate, serving sentences for violent felonies, violently stabbed a prison employee over some type of dispute about his breakfast tray. The three aggravating circumstances were clear and they obviously outweighed the mitigating evidence.

¶ 67 In fact, Grant does not object to the content of the victim impact statements, nor does he say how he would have cross-examined the witnesses who wrote the statements. He does not claim that the statements are untrue or that the writers are insincere. He has shown no prejudice or harm by the way the victim impact evidence was presented here. In fact, the method in which it was presented may have been the least harmful method available except for the mere presentation of the written statement to the jury. Therefore, any error in this method was harmless beyond a reasonable doubt.

¶ 68 Further, the jury was properly instructed on the use of victim impact evidence. The jury was instructed, pursuant to OUJI CR (2d) 9-45 (2000 Supp.), that victim evidence may only be considered after they “first find the existence of one or more aggravating circumstance has been proven beyond a reasonable doubt by evidence independent from the victim impact evidence and find that the aggravating circumstance(s) found outweigh the finding of one or more mitigating circumstances.” This instruction properly channeled the jury’s sentencing decision, and we find that the jury properly followed the instructions.

¶ 69 Grant’s further assertion that he was denied due process because victim impact evidence is given less scrutiny than mitigation evidence is also unpersuasive. Victim impact evidence has historically been viewed with close scrutiny and we have always applied the rules of evidence to victim impact evidence. Namely, because victim impact evidence is intended to remind the sentencer that “the victim is an individual whose death may represent a unique loss to society and the family!,]” and that victim impact evidence may be considered in determining the appropriate punishment. OUJI CR (2d) 9-45 (2000 Supp.). Furthermore, Grant’s argument does not deal with the specific facts of his case. Therefore, he cannot show that his due process rights were violated.

¶ 70 Lastly he claims that the introduction of victim impact evidence violates the Eighth Amendment right to a fair sentencing proceeding. We have held numerous times that properly presented victim impact evidence does not violate the Eighth Amendment. We further find that the method in which the evidence was presented here did not violate the Eighth Amendment.

¶ 71 As stated before, Grant does complain about the request for the sentence of death in each of the statements. We review these types of claims with a heightened degree of scrutiny. Taylor v. State, 2000 OK CR 6, ¶ 30, 998 P.2d 1225, 1233, cert. denied, 531 U.S. 1157, 121 S.Ct. 1109, 148 L.Ed.2d 978 (2001). In this case, each request was almost identical and consisted of a one-sentence request: “I believe that John Marion Grant should receive the death penalty.”

¶ 72 This Court has previously held that a victim impact statement that contains a belief that the defendant should receive death penalty is admissible, but it must be a simple statement of the recommended sentence without amplification. Conover, 1997 OK CR 6, ¶ 70, 933 P.2d at 921; Ledbetter, 1997 OK CR 5, ¶ 31, 933 P.2d at 891. That is exactly what we have here. We find that this short statement did not undermine the reliability of the sentence imposed.

¶ 73 Grant has presented no argument regarding the victim impact evidence in this case that requires relief.

VII. SECOND STAGE INSTRUCTIONS

¶ 74 Grant claims, in proposition fourteen, that the instructions on mitigation permitted the jurors to ignore mitigation and diminished the effect of the mitigating evidence presented in his case.

“We have consistently rejected the claim that instructing the jury they ‘may consider’ mitigating evidence creates a doubt as to the jury’s constitutional duty to consider such evidence and recently reaffirmed those holdings in Welch v. State, 2000 OK CR 8, ¶ 49, 2 P.3d 356, 374, cert. denied, 531 U.S. 1056, 121 S.Ct. 665, 148 L.Ed.2d 567 (2000).”

Pickens v. State, 2001 OK CR 3, ¶ 56,19 P.3d 866, 883. We will not revisit this issue in this case.

VIII. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS

¶ 75 No family members were called to provide mitigation evidence on Grant’s behalf. In proposition thirteen, Grant claims that the failure to call certain family members in the second stage constituted ineffective assistance of counsel. An evidentiary hearing was held pursuant to Rule 3.11, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2001), wherein the record in this case could be supplemented with the evidence regarding this issue. Pursuant to this rule, the trial court made written findings of fact and conclusions of law. We give strong deference to the findings of fact and conclusions of law of the trial court in determining the propositions; however, we shall determine the ultimate issue regarding effective assistance of counsel. Rule 3.11.

¶ 76 During the evidentiary hearing, trial counsel was asked why he did not call family members as mitigation witnesses. He testified that there were two main reasons. First, Grant told him that he basically had no contact with his family since he left home at the age of fifteen and was incarcerated since the age of nineteen. Grant indicated that he did not know where his family was located other than somewhere in Oregon. Grant told him that he didn’t want his family involved in the proceedings. Regardless, Bowen did ask his investigators to try and contact Grant’s family. One investigator testified that he was unable to locate Grant’s family before trial. Appellant, John Grant, did not testify at this hearing.

¶ 77 Secondly, Bowen testified that because the family members had no close contact with Grant in some twenty years, their testimony would be of little help. He felt like if they testified about their relationship, they would be vulnerable on cross-examination because they hadn’t had any contact with him since he had been incarcerated.

¶ 78 The trial court found, and we concur, that the family members could have been contacted with the use of information located in Grant’s prison records and they would have been willing to testify at trial. The trial court also found that the witnesses’ testimony would have been cumulative to each other and would not have had a positive impact on the jury. We agree.

¶ 79 Ruth Grant, Appellant’s mother, testified that she was a single mother who raised Appellant and six of his siblings in impoverished conditions. She ■ testified that they moved to Oklahoma City when Appellant was five years old. She testified that he started getting into trouble when he was nine. She testified that he spent time in boys’ homes and finally spent time in two juvenile prisons. She moved to Oregon in 1979 while Appellant was incarcerated. She testified that she visited Appellant for about one hour each year while he was in prison.

¶ 80 Several of Appellant’s siblings testified. They all testified that Appellant was not violent toward them or toward anyone in the household. They testified that Appellant grew up with no father figure, except for an uncle, Clayton Black, who lived nearby. They also testified that they would have asked the jury to spare his life. Appellant’s biological father testified that he had no contact with Appellant, but would have asked the jury to spare his life.

¶ 81 In order to show that counsel was ineffective for failing to present this evidence at trial, Grant must show both deficient performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).⁵ In Strickland, the Court went on to say that there is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional conduct, i.e., an appellant must overcome the presumption that, under the circumstances, counsel’s conduct constituted sound trial strategy. Strickland, 466 U.S. at 689,104 S.Ct. at 2065.

¶ 82 To establish prejudice, Grant must show that there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine the confidence in the outcome.” Strickland, 466 U.S. at 694,104 S.Ct. at 2068.

¶ 83 In the context of a capital sentencing proceeding, the relevant inquiry is “whether there is a reasonable probability that, absent the errors, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Strickland, 466 U.S. at 695,104 S.Ct. at 2069.

¶ 84 We find that counsel’s performance was not deficient. The reasonableness of counsel’s actions may be determined or substantially influenced by the defendant’s own statements or actions. Strickland, 466 U.S. at 691, 104 S.Ct. at 2066; Romano v. Gibson, 239 F.3d 1156, 1181 (10th Cir.2001), cert. denied, 534 U.S. 1046, 122 S.Ct. 628,151 L.Ed.2d 548 (2001).

Although trial counsel has an independent duty to investigate and make a case in mitigation, counsel also has to be responsive to the wishes of his client, see Wallace [v. Ward], 191 F.3d [1235] at 1247-48 (holding counsel’s performance during capital sentencing proceeding was not deficient, where counsel acquiesced in petitioner’s wishes not to present any mitigating evidence or challenge State’s evidence).

Romano, 239 F.3d at 1181. Grant’s wish to exclude his family from the proceedings controlled trial counsel’s actions in this case.

¶ 85 Trial counsel did present some mitigating evidence including Grant’s own testimony and a prison psychiatrist. The prison psychiatrist testified that Grant had never been treated for any mental illness or syndromes.

¶ 86 Grant testified about his childhood, that he had eight brothers and sisters and that he left home, for the first time, at the age of twelve. He testified that he had been in and out of institutions since his teen years. He testified that when he reached the age of seventeen he was sentenced to adult prison and served one year. He testified that once he got out he committed the robberies for which he was incarcerated when this crime took place. He apologized to the family of the victim. The mitigating evidence Grant now claims his attorney was ineffective for not presenting would have repeated Grant’s own account of his childhood.

¶ 87 Considering all of the evidence presented at trial and at the evidentiary hearing, we do not believe that trial counsel’s conduct was “outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. The presentation of this evidence would have reinforced Grant’s status as a repeat offender who has spent the majority of his life in prison. He has had no meaningful contact with the family members who would have testified. They knew nothing about his conduct in prison. Even though they testified that they would have asked the jury to spare his life, this would have been expected by the jury and would not have made a difference in the sentence given.

¶ 88 Grant has made no showing that the failure to find his family members and present their testimony at trial was the result of deficient performance, or that the failure rendered his sentence unreliable. See Burger v. Kemp, 483 U.S. 776, 795-96, 107 S.Ct. 3114, 3126, 97 L.Ed.2d 638 (1987). Even if he had shown deficient performance, Grant could not show that he was prejudiced by the failure to present this evidence.

¶ 89 Finally, Grant claims that counsel’s failure to preserve certain errors constituted ineffective assistance of counsel. He first claims that the failure to object to jury questioning regarding their personal definitions of reasonable doubt constituted ineffective assistance. In our discussion of proposition two, we determined that the questioning was more analogous to attempts to distinguish between the “beyond a reasonable doubt” standard and a “beyond all doubt” standard, which we have stated is perfectly acceptable. Therefore, counsel’s failure to object did not amount to deficient performance.

¶ 90 Grant also claims that the failure of his counsel to make proper objections to the victim impact evidence constituted ineffective assistance. We dealt with counsel’s performance with regard to the victim impact evidence in our discussion of proposition nine. Our conclusion was that trial counsel made reasonably strategic decisions; therefore, his performance was not deficient. Grant has not shown that trial counsel’s conduct fell below reasonable standards of professionally competent assistance in any area.

IX. CUMULATIVE ERROR

¶ 91 Grant urges us to consider his proposed errors in a cumulative fashion in proposition fifteen, if we find that none of them individually necessitate reversal of his conviction and sentence. We have reviewed the case to determine the effect, if any, of Grant’s alleged accumulation of error. We find, even viewed in a cumulative fashion, the errors we identified do not require relief. Woods v. State, 1984 OK CR 24, ¶ 10, 674 P.2d 1150, 1154.

X. MANDATORY SENTENCE REVIEW.

¶ 92 Title 21 O.S.1991, § 701.13, requires this Court to determine “[w]hether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor; and whether the evidence supports the jury’s or judge’s finding of a statutory aggravating circumstance.” Sufficient evidence existed to support the finding of the three statutory aggravating circumstances. Grant was in prison serving a sentence for conviction of a felony; he had been convicted of felonies involving violence; and based on his prior violent past and the violence of this crime, the jury could reasonably conclude that there was the existence of a probability that the Grant would commit criminal acts of violence that would constitute a continuing threat to society.

¶ 93 After reviewing the entire record in this case, we find that the sentence of death was not imposed because of any arbitrary factor, passion, or prejudice. The facts of this case and the overwhelming evidence of the aggravating circumstances simply warranted the penalty of death.

¶ 94 We find no error warranting reversal of Grant’s conviction or sentence of death for first-degree murder, therefore, the Judgment and Sentence of the trial court is, hereby, AFFIRMED.

LUMPKIN, P.J., JOHNSON, V.P.J., and STRUBHAR, J., concur. CHAPEL, J., dissents.

1 . 21 O.S.1991 § 701.7(A).

2 . This crime occurred on November 13, 1998. The trial took place in February and March 2000 with formal sentencing on March 8, 2000. Appellant filed his Petition in Error on November 6, 2000. Appellant’s Brief in Chief was filed on August 1, 2001. This Court heard oral argument on April 16, 2002. Final Supplemental briefs after a remanded evidentiary hearing were filed by Appellant on April 5, 2002 and by Appellee on April 17, 2002.

3 .21 O.S.1991, § 701.12(1), (6), & (7).

4 . See Abshier v. State, 2001 OK CR 13, 28 P.3d 579, 606; Welch v. State, 2000 OK CR 8, 2 P.3d 356, 373; Selsor v. State, 2000 OK CR 9, 2 P.3d 344, 352; Thornburg v. State, 1999 OK CR 32, 985 P.2d 1234, Darks v. State, 1998 OK CR 15, 954 P.2d 152, 164.

5 . The Strickland standard continues to be the correct test for examining claims of ineffective assistance of counsel where counsel fails to utilize mitigation evidence. Bell v. Cone, 535 U.S. 685, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002).