Hogan v. State

2006 OK CR 19, 139 P.3d 907, 2006 Okla. Crim. App. LEXIS 20, 2006 WL 1359962

• Court: Court of Criminal Appeals of Oklahoma
• Decided: May 15, 2006
• Docket: D-2003-610
• Status: Published

Opinions

OPINION

JOHNSON, Judge.

¶ 1 Kenneth Eugene Hogan, Appellant, was tried by jury in the District Court of Oklahoma County, Case No. CRF-88-646, and convicted of First Degree Murder. The jury fixed Hogan’s punishment at death and the trial court sentenced Hogan accordingly. Hogan appealed his Judgment and Sentence to this Court and we affirmed. Hogan v. State, 1994 OK CR 41, 877 P.2d 1157.¹ The United States Supreme Court denied Hogan’s petition for certiorari, Hogan v. Oklahoma, 513 U.S. 1174, 115 S.Ct. 1154, 130 L.Ed.2d 1111 (1995), and we denied Hogan’s application for post-conviction relief, Hogan v. State, Case No. PCD-95-1337 (Dec. 19, 1996)(not for publication).

¶ 2 Hogan thereafter sought federal habe-as corpus review in the United States District Court for the Western District of Oklahoma. The district court denied relief and Hogan appealed. The Tenth Circuit reversed and remanded the matter for a new trial, finding that Hogan’s due process rights were violated by the trial court’s refusal to instruct the jury on first degree manslaughter. Hogan v. Gibson, 197 F.3d 1297, 1312 (10th Cir.1999). Hogan’s case was retried March 24 through April 4, 2003 before the Honorable Tammy Bass-Jones. The jury convicted Hogan of First Degree Murder and fixed punishment at death after finding the murder was especially heinous, atrocious, or cruel. The trial court sentenced Hogan to death and he appeals.

I. FACTS

¶ 3 Kenneth Hogan and Lisa Stanley had known each other well for several years before Hogan killed her on January 28, 1988 during an afternoon visit to her apartment. She had taken care of his children; he had helped her with schoolwork. Even after her marriage to George Stanley he visited her often in her apartment. There was speculation at trial that their relationship was a romantic one, but no evidence of intimacy. Hogan said he had thought of her as a sister.

¶ 4 George Stanley testified that the morning of January 28 had been an ordinary one for the couple. He and Lisa had sorted laundry, eaten lunch, and smoked a pipe-full of marijuana before he left for work before noon. When he returned home that evening, he found his apartment in a shambles and his wife’s body on the floor of the living room.

¶ 5 Lisa Stanley had been stabbed 25 times with a large knife. She suffered wounds to her head, neck, chest, back, and throat. Any one of several wounds would have caused her death quickly. Bloodstain pattern analysis showed the stabbing had begun in the kitchen, the victim had been upright and moving for a period of time during the attack, and the deepest wounds had been inflicted in the living room where the body was found.

¶ 6 Within a week, Hogan confessed during an interview with Oklahoma City Police Department Detective Bob Horn that he had killed Lisa Stanley. The State introduced a tape recording of that confession and played it for the jury. Later, the defense introduced a transcription of the same recording. Hogan told Detective Horn that on January 28th he lied to his wife saying he was going to find work, but instead had gone to Lisa’s apartment to help her with a book report for school. They smoked “some stuff,” got high and “smoked some more.” Trouble began when Lisa insisted he steal a Pioneer stereo for her. He refused and they argued.

¶ 7 According to his statement, the trouble escalated when Hogan, angry, prepared to leave. Lisa told him the neighbors could hear through the walls and threatened to scream that he was raping her. She locked herself in the bathroom. He kicked the door in and threatened to tell her mother and her husband secrets about certain incidents in her past. She went to the kitchen, returning with a butcher knife which she “pushed” at him. He grabbed the blade while she pulled the knife back cutting his hand. Hogan told the detective he “just knew that she was gonna tell the Police that I’d tried to rape her,.... ”

¶ 8 The interview continued:

HORN: What’d you do, KEN?

HOGAN: I killed her.

HORN: For the purposes of this report KEN tell me ... tell me what happened.

HOGAN: It hurts, too much ...

HORN: How did you kill her?

HOGAN: With the knife she cut me with and it wasn’t ... it was like I wasn’t even there ... just somebody else ... it wasn’t even me ...

HORN: What were they doing ... what’s this person doing KEN?

HOGAN: It was stabbing her and I couldn’t stop him ... that’s right ... I just went over to be friends, I didn’t come over there to do any harm and now I’ve got to pay ... it’s not fair.

¶ 9 After the stabbing Hogan remained in the apartment and spent some time arranging things to look as if someone else had been “fighting” with Lisa. He tipped over the television, emptied the contents of her purse out “to make it look like someone was looking for stuff’ and took the bathroom rug, stained with his blood, away to be burned.

¶ 10 His decision to confess was not immediate. There was testimony that after he left the apartment, Hogan drove to an emergency room for treatment of his cut hand. There he gave several stories about the cause of his injury. Later he asked his wife to tell the police he had been home and had injured himself in the garage. She testified to that conversation.

¶ 11 At trial, there was no dispute that Ken Hogan had killed Lisa Stanley. The salient question for the jury during first stage was whether Hogan had acted with the deliberate intent to take away her life or in a heat of passion.

1. JURY SELECTION ISSUES

A.

¶ 12 In Proposition VII, Hogan claims several rulings made by the' trial court during jury selection denied him his right to a fair and impartial jury. First, he claims that the trial court erred in refusing to allow defense counsel to inquire of a prospective juror whether she could consider other forms of homicide supported by the evidence. Hogan maintains the purpose of counsel’s question was to determine whether prospective jurors could consider his heat of passion defense. Without this information, he contends, defense counsel could neither ascertain grounds to dismiss a prospective juror for cause, nor intelligently exercise peremptory challenges. We disagree.

¶ 13 The manner and extent of voir dire questioning is discretionary with the trial court. Its rulings will not be disturbed on appeal unless the court’s decision was clearly erroneous or manifestly unreasonable. Lott v. State, 2004 OK CR 27, ¶ 96, 98 P.3d 318, 344; Black v. State, 2001 OK CR 5, ¶ 15, 21 P.3d 1047, 1057. To facilitate jury selection, the trial court may restrict questions that are repetitive, irrelevant or in regard to legal issues upon which the trial court will instruct the jury. Black, 2001 OK CR 5, ¶ 15, 21 P.3d at 1057. “No abuse of discretion will be found so long as the voir dire questioning is broad enough to afford the defendant a jury free of outside influence, bias or personal interest.” Id.

¶ 14 This Court has upheld trial courts who restrict defense theory questions posed to prospective jurors when the questions seek to test prospective jurors’ willingness to accept the accused’s theory of defense rather than to test their impartiality. Black, 2001 OK CR 5, ¶ 19, 21 P.3d at 1058; Jackson v. State, 1998 OK CR 39, ¶ 12, 964 P.2d 875, 883. Here defense counsel asked the prospective juror “[i]f the Court ... were to give you instructions that encompass homicides that are not intentional homicides, would you be willing to consider those instructions?” The trial court sustained the State’s objection.

¶ 15 The question posed here is somewhat different from the questions condemned in Black and those disallowed in Jackson. But as the Jackson court stated, “[w]e are not interested in whether or not a certain question was allowed to be asked, but rather whether the defendant was allowed sufficient voir dire to determine if there were grounds to challenge a particular juror for cause and to intelligently exercise his preemptory (sic) challenges.” Jackson, 1998 OK CR 39, ¶ 11, 964 P.2d at 883. Defense counsel here was permitted to ask prospective jurors whether they believed that everyone who kills someone does so intentionally. Defense counsel was allowed to question prospective jurors about whether they could consider all the court’s instructions regarding the evidence of intent, and to ask questions testing whether the jurors would listen to both sides of the case and consider all the evidence before rendering a verdict. The questioning here was broad enough to meet constitutional requirements and no relief is required.

B.

¶ 16 Hogan also claims the trial court erred in excusing thirteen prospective jurors for cause without determining whether they could sufficiently set aside their opposition to the death penalty and consider all three available punishment options, including the death penalty.

¶ 17 A prospective juror should be excused for cause when his views on capital punishment would prevent or substantially impair the performance of his duties as a juror in accordance with the court’s instructions and jurors’ oath. Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985); Young v. State, 2000 OK CR 17, ¶23, 12 P.3d 20, 32. Prospective jurors must not be irrevocably committed to any one punishment option before trial has begun and they must be willing to consider all the penalties provided by law. Id. In Allen v. State, we stated:

[N]ot all who oppose the death penalty are subject to removal for cause in capital cases; those who firmly believe the death penalty is unjust may nevertheless serve as jurors in capital cases so long as they state clearly that they are willing to temporarily set aside their own beliefs in deference to the rule of law.

1994 OK CR 13, ¶23, 871 P.2d 79, 90-91 (citations omitted). The wrongful exclusion of an eligible juror in a capital case based solely upon that juror’s opposition to the death penalty can never constitute “harmless error.” See Gray v. Mississippi, 481 U.S. 648, 668,107 S.Ct. 2045, 2057, 95 L.Ed.2d 622 (1987); DeRosa v. State, 2004 OK CR 19, ¶ 36, 89 P.3d 1124, 1140, n. 78.

¶ 18 The thirteen prospective jurors identified by Hogan were all examined by the trial court and the parties. Each of them stated unequivocally that under no circumstances would they impose the death penalty. One of the prospective jurors went further, saying that he could not sit in judgment of another under any circumstances. When questioned by defense counsel all of these prospective jurors affirmed that deeply held beliefs against the death penalty prevented them from considering it. Based on this record we find the trial court did not abuse its discretion in removing these jurors for cause.

C.

¶ 19 Hogan’s third claim is that the trial court erred in refusing his request to excuse five jurors for cause. The record shows that Hogan used five of his peremptory challenges to remove these jurors and they did not serve. The record further shows that Hogan waived two of his nine peremptory challenges. Failure to use all peremptory challenges allotted waives any objection to the final composition of the jury. See Ross v. Oklahoma, 487 U.S. 81, 87-90, 108 S.Ct. 2273, 2278-79, 101 L.Ed.2d 80, (1988) (requiring defendants to exercise peremptory challenges to cure the trial court’s erroneous ruling on a challenge for cause and holding any error stemming from a trial court’s erroneous ruling on a cause challenge is “grounds for reversal only if the defendant exhausts all peremptory challenges and an incompetent juror is forced upon him.”); see also Battenfield v. State, 1998 OK CR 8, ¶ 20 n. 29, 953 P.2d 1123, 1129 n. 29. Because Hogan failed to use all of his peremptory challenges and does not argue that he was forced to keep an unacceptable juror, he cannot succeed on this claim.

III. FIRST STAGE ISSUES

¶20 In Proposition II, Hogan claims his first degree murder conviction must be modified to first degree manslaughter because the State failed to prove beyond a reasonable doubt that he killed Stanley with malice aforethought. Before reaching the merits of this claim, we must determine the proper standard of review. Because the prosecution used only circumstantial evidence to prove he killed with malice aforethought, Hogan claims this Court should use the “reasonable hypothesis” standard.² While Hogan acknowledges this Court’s holding in Easlick v. State, 2004 OK CR 21, ¶ 15, 90 P.3d 556, 559 rejecting the reasonable hypothesis test, he claims it remains the proper standard in cases where the evidence of intent was proved by circumstantial evidence only.

¶ 21 In Easlick we abandoned the “reasonable hypothesis” test and stated we would review all future sufficiency claims under the Spuehler standard, whereby the appellate court reviews a defendant’s appeal of the sufficiency of the trial evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt. See Spuehler v. State, 1985 OK CR 132, ¶ 7, 709 P.2d 202, 203-04 quoting Jackson v. Virginia, 443 U.S. 307, 316, 99 S.Ct. 2781, 2787, 61 L.Ed.2d 560 (1979). Contrary to Hogan’s claim that Easlick was not retroactive by its terms and should not be applied to eases tried prior to the decision, the language in Easlick clearly expressed this Court’s intent to apply the Spuehler standard in all cases reviewed on appeal post Easlick. The retroactive application of a standard of review does not run afoul of any of Hogan’s constitutional rights. Easlick did not carve out a “state of mind” exception and we are unpersuaded to do so now.

¶ 22 Applying the Spuehler standard to the evidence here, we find a rational trier of fact could have found Hogan acted with malice aforethought beyond a reasonable doubt when he stabbed Stanley twenty-five times. Hogan admitted he stabbed Stanley multiple times. The evidence showed that Hogan began his knifing of Stanley near the kitchen, following her into the living room where he cut her throat, severing the carotid arteries on the left side of her neck. The jury rejected Hogan’s heat of passion defense and his claims that he “lost it” and was not in control. The manner of the killing and the pattern of the wounds support a finding that Hogan intended to kill Stanley. See Cruse v. State, 2003 OK CR 8, ¶ 5, 67 P.3d 920, 922. This claim is denied.

¶ 23 In Proposition III, Hogan claims the three references made to his previous trial prejudiced him.³ Hogan contends informing the jury that he had been previously tried for this crime diminished jurors’ sense of responsibility in their decision-making responsibilities because they would reason that he had already been convicted once before of first degree murder.

¶ 24 In Romano v. State, 1995 OK CR 74, 909 P.2d 92, we addressed an almost identical claim. The Romano court held two references to the defendant’s prior trial constituted error and a violation of 21 O.S.1991, § 951, but concluded the error was harmless. Romano, 1995 OK CR 74, ¶¶ 51-52, 909 P.2d at 115. The Romano court found the error harmless given the strength of the evidence against the defendant and the fact that the jury was aware that there had been prior proceedings and hearings in the ease despite the references. Id.

¶ 25 As was true in Romano, Hogan’s jury was well aware that prior proceedings had taken place because some of the testimony was presented by reading a transcript from Hogan’s prior trial. Transcripts from Hogan’s first trial were also used to question and impeach some of the witnesses. The error here was also mitigated by the trial court’s instructions that correctly informed the jury of its role and duty in this case. The trial court instructed the jurors they were the sole judges of the evidence and that they should not surrender their own judgment, but base their decision on the evidence presented during trial. These circumstances where evidence of guilt was strong dictate a finding that the error was harmless.

¶ 26 It is not clear how a reference in the second stage to Hogan’s prior trial could have influenced the jury’s sentencing decision. The jury was never told that Hogan had been previously sentenced to death and that the sentence had been reversed. This jury was properly instructed regarding punishment. We can find no reason to believe that the isolated reference to a prior trial in second stage diverted the jury from its “awesome responsibility” of deciding the appropriate punishment. See Bland v. State, 2000 OK CR 11, ¶ 106, 4 P.3d 702, 729. The error, if any, was harmless.

¶ 27 In Proposition IV, Hogan claims the admission of several photographs violated his right to due process and the Ex Post Facto Clause of both the federal and state constitutions. The State introduced fifty-two photographs during both stages of trial: twenty-eight crime scene photographs; eighteen photographs depicting Stanley’s body at the crime scene, five of Stanley taken at the medical examiner’s office and one “in life” graduation photograph. The photographs introduced during first stage will be considered here and the second stage photographs, including the “in life” graduation photograph, will be considered with second stage issues.

¶ 28 Defense counsel moved in limine to exclude the crime scene photographs, arguing any probative value of the photos was far outweighed by the danger of unfair prejudice. Defense counsel objected at trial to State’s Exhibits 4 and 19 because Stanley’s wedding pictures were visible in the background of the photograph of her body. Defense counsel further objected to the admission of State’s Exhibits 14 and 17 arguing those photos were unfairly prejudicial and to the admission of State’s Exhibits 15 and 16 because they were duplicative of State’s Exhibit 14. Defense counsel did not object to State’s Exhibits 3, 6,11,12 and 18. The trial court overruled each of Hogan’s objections.

¶ 29 The decision to admit photographs is discretionary with the trial court and will not be reversed on appeal unless clearly erroneous or manifestly unreasonable. Lott v. State, 2004 OK CR 27, ¶ 96, 98 P.3d 318, 344; Lockett v. State, 2002 OK CR 30, ¶ 19, 53 P.3d 418, 425. Photographs are admissible if they are relevant and their probative value is not substantially outweighed by the danger of unfair prejudice or needless presentation of cumulative evidence. Lockett, 2002 OK CR 30, ¶ 19, 53 P.3d at 425; 12 O.S.2001, §§ 2402-2403.

¶ 30 Only eleven photographs depicting Stanley at the crime scene were introduced during the first stage.⁴ These photographs were probative because they assisted the jury in understanding the crime scene reconstructionist’s testimony, assisted the jury in understanding the State’s theory of how the crime occurred and corroborated parts of Hogan’s confession. The fact that State’s Exhibits 4 and 19 show Stanley’s wedding pictures in the background does not cause the photographs to be substantially more prejudicial than probative; the photos showed the location of Stanley’s body in her home where she was killed surrounded, as one would expect, by her household possessions.

¶31 We recognize that the challenged photographs may be disturbing to the sensibilities of a normal person. Each of the photographs, however, showed a different aspect of the crime scene or a view of different wounds Stanley sustained. Their probative value was not substantially outweighed by the danger of needless presentation of cumulative evidence. Nor were the photos unfairly prejudicial. The photos show the crime scene, the victim, and the wounds she sustained during her attack. They do not depict the work of a medical examiner as an autopsy photograph might, nor are they gratuitously shocking. These pictures depict the killer’s handiwork. It did not violate due process to show them to Hogan’s jury. See DeRosa v. State, 2004 OK CR 19, ¶ 73, 89 P.3d 1124, 1150.

D.

¶ 32 In Proposition VI, Hogan claims he was denied a fair trial by the admission of a privileged communication with his wife Tiffany shortly after Stanley’s death. The conversation consisted of Hogan asking Tiffany to lie and provide him with an alibi for the day Stanley was killed by supporting his claim to police that he was home with her that day and that he cut his hand in the garage.⁵ Because he never intended for Tiffany to reveal that he told her to lie to the police and counted on her to support his alibi based on their marital relationship, he claims that part of the conversation was privileged. Before Tiffany testified, defense counsel objected to her testimony, asserting Hogan’s marital privilege.⁶ The trial court overruled Hogan’s objection finding the content of the conversation was intended to be repeated to third parties and was therefore not privileged. The court admitted the conversation between Hogan and his wife as proof of consciousness of guilt.

¶ 33 In 1978, the Oklahoma legislature enacted the Oklahoma Evidence Code [hereinafter Code], which states that every person is competent to be a witness and that no person can refuse to be a witness and disclose information unless authorized by law. 12 O.S. 2001, §§ 2501 and 2601.⁷ The legislature codified a confidential marital communication privilege in the Code known as the “Husband-Wife Privilege.”⁸

¶ 34 The husband-wife privilege precludes a spouse from testifying in a criminal proceeding as to any confidential communication between the accused and the spouse. 12 O.S.2001 § 2504(B). A communication is confidential and therefore privileged if it is made privately by any person to that person’s spouse, and the content of the conversation is not intended for disclosure to any other person. 12 O.S.2001, § 2504(A). A person waives the privilege if he voluntarily discloses or consents to disclosure of any “significant” part of the privileged matter. 12 O.S.Supp.2002, § 2511.

¶ 35 This Court has not defined “significant” for purposes of determining when the holder of a privilege has waived it by disclosing a part of an otherwise privileged communication to a third party. Wigmore would find voluntary testimony concerning a part of any communication waives the privilege as to the whole of the communication. 8 Wigmore on Evidence, § 2327 at 638; § 2340 at 671-72. Whinery finds that § 2511 is more flexible and “provides a standard within which a court may exercise its discretion depending upon the facts of the particular case and the objectives to be achieved by the privilege in question.” Oklahoma Evidence, vol. 2, Whinery, § 35.13 at 764. We agree with the Whinery approach. Courts should consider the facts of the particular case and the objectives of the particular privilege in judging whether the holder of a privilege has disclosed a significant part of a privileged matter so as to waive the privilege as to the whole communication.

¶ 36 Considering the confidential communication at issue here and the objectives of the husband-wife privilege, we find Hogan disclosed and consented to disclosure of a significant part of the conversation he had with his wife when both he and his wife told police the alibi he contrived. By voluntarily disclosing and consenting to disclosure of a significant part of the confidential conversation he had with his wife, Hogan waived the husband-wife privilege as to the entire conversation and the trial court did not err in admitting Tiffany’s testimony concerning it. 12 O.S.Supp.2002, § 2511.

IV. FIRST STAGE INSTRUCTIONS

¶ 37 In Proposition I, Hogan challenges the trial court’s first stage jury instructions submitting heat of passion manslaughter as a lesser included offense. He claims the jury instructions were erroneous and denied him due process because the instructions did not inform the" jury that the State had to disprove his affirmative defense and prove the absence of heat of passion beyond a reasonable doubt. Hogan also claims the trial court’s instructions were constitutionally deficient because the instructions did not adequately inform the jury that heat of passion was his defense or adequately distinguish between the different mental states of murder and manslaughter. Hogan acknowledges that Black v. State, 2001 OK CR 5, ¶¶ 42-49, 21 P.3d 1047, 1064-67, held the uniform instructions sufficiently distinguish between the mental states of murder and manslaughter, adequately allocate the burden of proof and allow the jury to properly consider the manslaughter evidence even in those instances where the defendant’s defense is heat of passion and manslaughter is submitted as a lesser included offense. Hogan maintains, however, that Black is not controlling here because the trial court did not use the uniform instructions and the instructions given failed to adequately instruct the jury on how to evaluate and consider the offense of heat of passion manslaughter.

¶ 38 Hogan did not object to the trial court’s manslaughter instructions on this basis; his failure to do so forfeits any error unless he can show plain error. See Norton v. State, 2002 OK CR 10, ¶ 17, 43 P.3d 404, 409; 20 O.S.2001, § 3001.1. To be entitled to relief under the plain error doctrine, Hogan must prove: 1) the existence of an actual error (i.e., deviation from a legal rule); 2) that the error is plain or obvious; and 3) that the error affected his substantial rights, meaning the error affected the outcome of the proceeding. See Simpson v. State, 1994 OK CR 40, ¶¶ 3, 11, 23, 876 P.2d 690, 694, 695, 698; 20 O.S.2001, § 3001.1. If these elements are met, this Court will correct plain error only if the error “seriously affect[s] the fairness, integrity or public reputation of the judicial proceedings” or otherwise represents a “miscarriage of justice.” Simpson, 1994 OK CR 40, ¶ 30, 876 P.2d at 701 (citing United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 1779, 123 L.Ed.2d 508 (1993); 20 O.S.2001, § 3001.1.

¶ 39 The first step in plain error analysis is to determine whether error occurred. It is settled law that trial courts have a duty to instruct the jury on the salient features of the law raised by the evidence with or without a request. Atterberry v. State, 1986 OK CR 186, ¶ 8, 731 P.2d 420, 422 citing to Wing v. State, 1955 OK CR 29, ¶ 34, 280 P.2d 740, 747. Jury instructions are sufficient if when read as a whole they state the applicable law. McGregor v. State, 1994 OK CR 71, ¶ 23, 885 P.2d 1366, 1380.

¶ 40 Hogan did not dispute that he killed Stanley. He defended the first degree murder charge by attempting to convince the jury that he did not kill Stanley with a deliberate intent but rather acted in a heat of passion. Based on his defense, he asked the trial court to give the uniform instructions on heat of passion manslaughter as a lesser included offense. The trial court gave the uniform manslaughter instructions, submitting the manslaughter offense as a lesser included offense as Hogan requested. The Court deviated from the uniform instructions relating to the jury’s consideration of lesser included offenses and crafted its own.⁹ These instructions about which Hogan complains were based largely on instructions he proposed.¹⁰ The question we must answer is whether the trial court’s instructions adequately stated the applicable law.

¶ 41 “Legal defenses are matters which go to the legal exoneration of guilt or evidence which may reduce the charge to a lesser included offense.” Kinsey v. State, 1990 OK CR 64, ¶ 9, 798 P.2d 630, 633. This Court often refers to these legal defenses as affirmative defenses. In some jurisdictions, the defendant bears not only a burden of production for his affirmative defense but a burden of persuasion. See Patterson v. New York, 432 U.S. 197, 200-01, 97 S.Ct. 2319, 2322, 53 L.Ed.2d 281 (1977). In Oklahoma, a defendant’s only burden is to raise a reasonable doubt of his guilt. Merriweather v. State, 53 Okla.Crim. 420, 12 P.2d 707, 708 (1932); McClatchey v. State, 12 Okla.Crim. 173, 152 P. 1136, 1137 (1915). Once a defense is raised the defendant is entitled to an instruction on his theory of defense and the burden of persuasion never shifts to the defendant. Kinsey, 1990 OK CR 64, ¶ 9, 798 P.2d at 633; Merriweather, 12 P.2d at 708; McClatchey, 152 P. at 1137. The burden of persuasion remains on the State to prove each element of the crime charged beyond a reasonable doubt and thus to prove beyond a reasonable doubt the absence of any affirmative defense raised.¹¹ See Striplin v. State, 1972 OK CR 175, ¶ 13, 499 P.2d 446, 449.

¶ 42 Hogan’s jury was instructed that the State was required to prove each element of first degree murder beyond a reasonable doubt and that Hogan could not be convicted of that offense unless the State had met its burden. The jury was similarly instructed that it could not convict Hogan of heat of passion manslaughter unless the State had proved the elements of that offense beyond a reasonable doubt. These instructions when read as a whole required the State to prove Hogan acted with deliberate intent in killing Lisa Stanley, and, consequently, required the State to prove the absence of any other mental state. The trial court’s instructions neither presumed any element nor required Hogan to prove any element in order to reduce the crime to manslaughter.¹²

¶ 43 The instructions were sufficiently clear in explaining the difference between the mental state required for first degree murder and the mental state required for manslaughter. As we stated in Black:

The use of “deliberate intent” in the definition of malice in Oklahoma connotes an intent that is thought out or considered before commission of the fatal act, rather than some undefined condition of the mind or heart. Because heat of passion requires the defendant to act on the force of a strong emotion following adequate provocation that would naturally affect the ability to reason and render the mind incapable of cool reflection, i.e., not with a deliberate intent pre-formed, the Oklahoma definitions of malice and heat of passion show they cannot co-exist. Although the instructions in the instant case do not specifically state these mental states cannot coexist ..., the definitions employed to define the mental states of murder and heat of passion manslaughter sufficiently informed the jury that the differing mens rea elements were mutually exclusive.

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Although the instructions administered advised the jury procedurally to consider murder first and only if it had a reasonable doubt as to the proof of murder then to consider manslaughter, other instructions dictated that the jury consider Appellant’s heat of passion evidence in determining if Appellant possessed a deliberate intent when he stabbed Pogue. Specifically, in its consideration of the murder elements, the jury was instructed to consider the external circumstances surrounding the commission of the homicidal act to determine if Appellant possessed a deliberate intent to take a human life. Such external circumstances included Appellant’s “words, conduct, demeanor, motive, and all other circumstances connected” with the fatal stabbing of Pogue. Therefore, based on the instructions administered, we find Appellant was not deprived of having the jury consider his heat of passion defense in tandem with the murder charge. As such, we find the instructions administered in this case were constitutionally adequate to ensure that the appropriate burdens of proof were allocated to the parties and that the jury was free to consider Appellant’s defense.

Black, 2001 OK CR 5, ¶¶ 48 and 49, 21 P.3d at 1066-67.

¶ 44 The trial court in this case gave the same substantive instructions given in Black on first degree murder and heat of passion manslaughter, including all of the definitions provided in the uniform instructions. These instructions when read as a whole sufficiently state the applicable law of this case as they did in Black.13 For that reason, Hogan cannot show plain error.

¶ 45 Any objections Hogan had to the format of the instructions or the order in which they were presented required his objection and submission of alternative instructions. Not only did he fail to object to these particular instructions, they were given at his request.¹⁴ Any error that may have occurred here was error invited by Hogan. The trial court gave, almost verbatim, Hogan’s proposed instructions.¹⁵ Reversal cannot be based on such an error. See Lynch v. State, 1995 OK CR 65, ¶ 7, 909 P.2d 800, 802 (“[w]e will not allow [a]ppellant to invite error and then complain of the same”); Pierce v. State, 1990 OK CR 7, ¶ 10, 786 P.2d 1255, 1259-60 (holding that defendant may not complain of error he invited, and further holding that reversal cannot be based on such error).

¶ 46 In Proposition V, Hogan argues that the trial court’s refusal to give his requested instruction on the “exculpatory statement doctrine”¹⁶ violated due process and his right to present his defense. We review the trial court’s ruling denying Hogan’s requested instruction for an abuse of discretion. Kinchion v. State, 2003 OK CR 28, ¶ 14, 81 P.3d 681, 685.

¶ 47 The trial court did not abuse its discretion in refusing to give a jury instruction on exculpatory statements because Hogan’s statement to the police was disproved by other evidence in the case. See Kinchion, 2003 OK CR 28, ¶ 14, 81 P.3d at 685. Further, Hogan was not prejudiced by the absence of the instruction as the jury was fully instructed on the State’s burden of proof, the presumption of innocence, and the voluntariness of his statement. Id.

V. SECOND STAGE ISSUES

¶ 48 In Proposition VIII, Hogan claims he was denied due process and that the trial court lacked jurisdiction to instruct on the death penalty absent the filing of a new Bill of Particulars for retrial. He maintains that the notice filed by the State could not constitutionally substitute for a new Bill of Particulars. We disagree.

¶49 The purpose of filing a Bill of Particular's is to give the defendant notice that the State is seeking the death penalty based on certain identified statutory aggravating circumstances so the defendant can prepare a defense. See Banks v. State, 1985 OK CR 60, ¶ 32, 701 P.2d 418, 426. When Hogan’s case was reversed and remanded for new trial, jurisdiction of this matter was returned to the district court for retrial on the original Information charging Hogan with First Degree Murder. In lieu of refiling the Bill of Particulars, the State filed a notice seventeen months prior to Hogan’s retrial, advising Hogan of its intent to again seek the death penalty. The Notice advised Hogan that the State intended to offer the same Bill of Particulars with the same allegations as the Bill of Particulars contained in the Statement Making More Definite and Certain filed before his first trial. Seventeen months was sufficient notice to allow Hogan to prepare his defense to the Bill of Particulars. Under these circumstances, the State was not required to file a new Bill of Particulars.

¶ 50 At the capital sentencing stage of Hogan’s first trial, the State introduced evidence of three aggravating circumstances: that Hogan presented a continuing threat; that the murder was especially heinous, atrocious, or cruel; and that Hogan murdered Stanley to avoid arrest or prosecution. The jury unanimously found the second aggravator was proved beyond a reasonable doubt and sentenced Hogan to death. Nothing in the record sheds any light on the jury’s treatment of the other two aggravators.

¶ 51 At retrial the State presented evidence of the heinous, atrocious, or cruel and continuing threat aggravators.¹⁷ The second jury, as the first, made no finding of the continuing threat aggravator, but unanimously found the murder was especially heinous, atrocious, or cruel and sentenced Hogan to death.

¶ 52 Hogan argues that the failure of his first jury to unanimously find he presented a continuing threat was an effective acquittal of that aggravator which terminated jeopardy, invoked the protection of the double jeopardy clause, and prohibited the State from charging it again at his second trial. He argues that Sattazahn v. Pennsylvania, 537 U.S. 101, 123 S.Ct. 732, 154 L.Ed.2d 588 (2003) requires that holding in this ease. We disagree.

¶ 53 In Poland v. Arizona, 476 U.S. 147, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986) the Supreme Court considered “whether the Double Jeopardy Clause bars a further capital sentencing proceeding when, on appeal from a sentence of death, the reviewing court finds the evidence insufficient to support the only aggravating factor on which the sentencing judge relied, but does not find the evidence insufficient to support the death penalty.” Poland, 476 U.S. at 148, 106 S.Ct. . The Poland court affirmed the “usual” rule that a capital defendant who obtains reversal of his conviction on appeal has had his original conviction nullified and the slate wiped clean. Id. at 152, 106 S.Ct. at 1753. If convicted again, he may be subjected to the full range of punishment provided by law. Id. The clean slate rule does not apply, however, if the defendant has been acquitted because the prosecution did not prove its case for the death penalty. Id. A defendant is acquitted of the death penalty whenever a jury agrees or an appellate court decides that the prosecution has failed to prove its case for the death penalty. See Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981)(defendant sentenced to life by a capital sentencing jury has been acquitted of the death penalty and the Double Jeopardy Clause forbids the state from seeking the death penalty on retrial in the event the defendant obtains reversal of his conviction); Arizona v. Rumsey, 467 U.S. 203, 104 S.Ct. 2305, 81 L.Ed.2d 164 (1984)(sentencer’s finding, albeit erroneous, that no aggravating circumstance is present resulting in the imposition of a life sentence is an acquittal barring a second capital sentencing proceeding).

¶ 54 The court held in Poland that neither the sentencer nor the reviewing court had decided that the prosecution had not proved its case for the death penalty and thus acquitted the petitioners because both had found evidence of an aggravating circumstance.¹⁸ Poland, 476 U.S. at 154-55, 106 S.Ct. at 1754-55. The Poland court rejected the argument that a capital sentencer’s failure to find a particular aggravating circumstance alleged by the prosecution constitutes an “acquittal” of that circumstance for double jeopardy purposes. Poland, 476 U.S. at 155-56, 106 S.Ct. at 1755. The court refused to “view the capital sentencing hearing as a set of minitrials on the existence of each aggravating circumstance” because aggravating circumstances are not separate penalties or offenses; rather they are the standards that guide the sentencer’s choice between the alternative verdicts of death and life imprisonment.¹⁹ Id. at 156, 106 S.Ct. at 1755. Poland followed the usual rule, holding the State is not barred from seeking the death penalty on retrial of a defendant who has not been acquitted of the death penalty and the State may present evidence of any aggravating circumstance supported by the record.²⁰

¶ 55 Nothing in Sattazahn abrogates Poland’s holding and nothing supports Hogan’s argument here. Sattazahn argued that his judge-imposed life sentence in lieu of a non-finding of death by his jury was a jeopardy-terminating event. The Sattazahn majority disagreed and found that a jury’s inability to reach a decision in the penalty phase of a capital trial resulting in the imposition of a statutorily mandated life sentence did not constitute an “acquittal” of the offense the Supreme Court now terms “murder plus aggravating circumstances” sufficient to bar the prosecution from seeking the death penalty again on retrial. Sattazahn, 537 U.S. at 112, 123 S.Ct. at 740. The mere imposition of a life sentence is not an acquittal of the death penalty for double jeopardy purposes. To bar the State from seeking the death penalty on retrial, there must be an affirmative decision by the defendant’s first jury not to impose a death sentence, i.e. an acquittal of the death penalty on the merits. Id. at 106-07, 123 S.Ct. at 737. Because Sattazahn’s first jury had deadlocked without reaching a decision regarding aggravating circumstances and the trial court thereafter imposed a life sentence, Sattazahn could not establish that the jury had “acquitted” him during his first capital-sentencing proceeding. Consequently, jeopardy had not terminated; Sattazahn’s successful appeal wiped the slate clean and the state was permitted to seek the death penalty upon retrial. Sattazahn, 537 U.S. at 112-13, 123 S.Ct. at 740.

¶ 56 Unlike Sattazahn who appealed a life sentence imposed by a judge by operation of law, Hogan appeals a death sentence imposed by a jury on a verdict of guilty on murder plus aggravating circumstances. By sentencing Hogan to death at his first trial on a finding the murder was especially heinous, atrocious, or cruel, Hogan’s jury clearly did not acquit him of murder plus aggravating circumstances. Therefore, he cannot make a claim of entitlement to a life sentence on the basis of either acquittal or operation of law. In the absence of a jeopardy-terminating event entitling him to a life sentence (i.e., acquittal by jury on aggravating circumstances and imposition of life sentence or finding of insufficient evidence by appellate court of all aggravators), retrial for murder plus aggravating circumstances is not barred on double jeopardy grounds.²¹

¶ 57 Contrary to his claim, Part III of the Sattazahn opinion (joined by three justices) does not support his position that his first jury effectively acquitted him of the continuing threat aggravator. Part III of that opinion discusses the application of Apprendi v. New Jersey²² and Ring v. Arizona²³ in the context of capital sentencing double jeopardy claims.²⁴ Because aggravating circumstances operate as the functional equivalent of an element of a greater offense, murder is a distinct lesser included offense of murder plus one or more aggravating circumstances. Murder exposes a defendant to a maximum sentence of life imprisonment; murder plus one or more aggravators increases the maximum sentence to death. The Sixth Amendment requires that a jury, not a judge, find the existence of any aggravating circumstances beyond a reasonable doubt. In Part III of Sattazahn, a plurality of the court agreed:

In the post -Ring world, the Double Jeopardy Clause can, and must, apply to some capital-sentencing proceedings consistent with the text of the Fifth Amendment. If a jury unanimously concludes that a State has failed to meet its burden of proving the existence of one or more aggravating circumstances, double-jeopardy protections attach to that “acquittal” on the offense of “murder plus aggravating cireum-stance(s).” Thus, [Arizona v.] Rumsey [467 U.S. 203, 104 S.Ct. 2306, 81 L.Ed.2d 164 (1984)] was correct to focus on whether a factfinder had made findings that constituted an “acquittal” of the aggravating circumstances; but the reason that issue was central is not that a capital-sentencing proceeding is “comparable to a trial,” ... but rather that “murder plus one or more aggravating circumstances” is a separate offense from “murder” simpliciter.

Sattazahn, 537 U.S. at 112, 123 S.Ct. at 740.²⁵

¶ 58 Hogan’s first jury found that the murder was especially heinous, atrocious, or cruel and convicted him of murder plus aggravating circumstance(s). Even were we to treat each aggravator as a separate offense as Hogan desires rather than distinguishing as separate offenses murder simpliciter and murder plus aggravating circumstance(s), the only thing we know about Hogan’s first jury is that it did not unanimously find that the continuing threat aggravator existed beyond a reasonable doubt. This is not the same as a unanimous finding that the aggravator does not exist at all; some jurors may have found it while others did not.²⁶ Jeopardy does not attach and bar retrial in that situation. See Sattazahn, 537 U.S. at 109, 123 S.Ct. at 738 (stating a retrial following a hung jury normally does not violate the Double Jeopardy Clause).

¶ 59 For that reason, this ease does not implicate the concerns of protecting the finality of acquittals present in Bullington and Rumsey. There is no reason to shield a defendant in Hogan’s position from further litigation; further litigation is the only hope he has. Poland, 476 U.S. at 156, 106 S.Ct. at 1756. Neither does Hogan’s case present the Hobson’s choice discussed by the Sattazahn dissent. Sattazahn, 537 U.S. at 126,123 S.Ct at 748 (Ginsburg, J., dissenting)(noting that a defendant in Sattazahn’s position must relinquish either his right to file a potentially meritorious appeal, or his state-granted entitlement to avoid the death penalty). When Hogan appealed and succeeded in overturning his murder conviction and vacating his death sentence, the slate was wiped clean. The State was not barred from retrying Hogan on murder plus aggravating circumstances and presenting evidence to support the continuing threat aggravator.

¶ 60 In Proposition IV, Hogan challenges the introduction of Stanley’s “in-life” photograph during second stage. Hogan killed Stanley in January 1988. At the time he committed the crime, “in-life” photographs were inadmissible. See Thornburg v. State, 1999 OK CR 32, ¶ 23, 985 P.2d 1234, 1244. In 2002, the Legislature amended 12 O.S. § 2403, permitting the admission in a prosecution for any criminal homicide of an appropriate photograph of the victim while alive when offered by the district attorney to show the general appearance and condition of the victim while alive. Hogan claims the admission of Stanley’s “in-life” photograph violated his rights under the Ex Post Facto Clause because it was not admissible at the time he killed Stanley.

¶ 61 The United States Constitution expressly prohibits states from enacting ex post facto laws. U.S. Const. art. I, § 10, cl. 1. “[T]he focus of the ex post facto inquiry is not on whether a legislative change produces some ambiguous sort of ‘disadvantage’ [to affected offenders] ... but on whether any such change alters the definition of criminal conduct or increases the penalty by which a crime is punishable.” California Dep’t of Corrections v. Morales, 514 U.S. 499, 506 n. 3, 115 S.Ct. 1597, 1602 n. 3, 131 L.Ed.2d 588 (1995); Barnes v. Scott, 201 F.3d 1292, 1295 (10th Cir.2000). Permitting the admission of an “in-life” photograph in a homicide trial neither alters the definition of any crime nor increases the penalties for that crime. The Ex Post Facto Clause is not violated by the application of a new eviden-tiary rule in a capital trial for a crime committed before the evidentiary change. Mitchell v. State, 1994 OK CR 70, ¶ 51, 884 P.2d 1186, 1204, overruled on other grounds by Mitchell v. Ward, 150 F.Supp.2d 1194 (W.D.Okla.1999). Legislative changes in admissible testimony or evidence during the second stage of a capital trial are procedural. Mitchell, 1994 OK CR 70, ¶ 51, 884 P.2d at 1204. This claim therefore is denied.

¶ 62 Hogan also challenges the constitutionality of the amended § 2403, arguing the admission of an “in-life” photograph without regard to the evidentiary balancing test violates due process and makes § 2403 vague and overbroad. Hogan maintains that the blanket admissibility of such photographs unnecessarily risks exposing jurors to prejudicial information.

¶ 63 We presume that a legislative act is constitutional; the party attacking the statute has the burden of proof that it is not. State v. Thomason, 2001 OK CR 27, ¶ 7, 33 P.3d 930, 932. We construe statutes, whenever reasonably possible, to uphold their constitutionality. Id. A statute is void only when it is so vague that men of ordinary intelligence must necessarily guess at its meaning. Id. Section 2403 is not void for vagueness. The words of the statute are clear and self-explanatory.

¶ 64 Contrary to Hogan’s claim that § 2403 permits the wholesale admission of “in-life” photographs, the statute makes it clear that only one “appropriate” photograph is admissible. 12 O.S.Supp.2003, § 2403. Inappropriate photographs would be those that violate the balancing test articulated in the preceding sentence of that section. Here, the State offered Stanley’s “in-life” photograph, a graduation photograph of Stanley taken in 1986, during the second stage victim impact testimony of Stanley’s mother. The photograph was offered “to show the general appearance and condition of the victim while alive.” The photograph was appropriate and its probative value was not substantially outweighed by the danger of unfair prejudice. The trial court did not abuse its discretion in admitting it.

¶ 66 Hogan also challenges the admission of twelve photographs introduced during second stage to prove that Stanley’s murder was especially heinous, atrocious, or cruel. Hogan claims he was denied a fair sentencing trial because State’s Exhibits 42-44, 64-70, 90-91 were extremely gruesome and unfairly prejudicial.

¶ 66 To prove a murder was especially heinous, atrocious, or cruel, the State must introduce competent evidence indicating the victim’s death was preceded by torture or serious physical abuse. See Davis v. State, 2004 OK CR 36, ¶ 39, 103 P.3d 70, 81. To support a finding of serious physical abuse, the State must show the victim endured conscious physical suffering prior to death. Id. Exhibits 42, 43, and 44 were pictures of cuts on Stanley’s hands showing defensive wounds. These photographs were relevant to show that Stanley was conscious during the attack and defending herself. The relevance of these photographs was not substantially outweighed by any of the dangers set forth in 12 O.S.2001, § 2403.

¶ 67 The other nine photographs consisted of seven pictures of Stanley at the scene depicting close-up shots of Stanley’s various wounds (State’s Ex. 64-70) and two of Stanley at the medical examiner’s office depicting the large gash wound on her neck from two different angles (State’s Ex. 90-91). These photographs are gruesome. Deciding whether such exhibits are relevant and more probative than prejudicial, however, is within the trial court’s discretion. Lockett, 2002 OK CR 30, ¶ 19, 53 P.3d at 425; 12 O.S.2001, §§ 2402-2403. The photographs were relevant and tended to prove that Stanley suffered abuse prior to her death. The evidence that Stanley’s death was preceded by serious physical abuse including conscious physical suffering was strong and virtually uncontroverted. On the record before us, we cannot find the trial court abused its discretion in admitting these photographs.

¶ 68 In Proposition X, Hogan claims that he was tactically precluded from calling character witnesses in mitigation and from allowing other mitigation witnesses to testify fully because of the trial court’s erroneous ruling concerning State’s rebuttal witness, Kevin Freeman. The trial court barred the State from introducing certain evidence through Freeman tending to show Hogan was a continuing threat. The court’s ruling was made because Freeman’s evidence had not been timely disclosed to the defense. The trial court found, however, that Freeman could testify in rebuttal if the defense “opened the door.” Freeman’s testimony would rebut evidence of Hogan’s good character.²⁷

¶ 69 While the Court ruled that the State could call Freeman in rebuttal if his testimony would be relevant to rebut Hogan’s character evidence, it refused to advise the defense what specific evidence of Hogan’s character would open the door to the State’s rebuttal. In consequence, the defense was faced with a strategic decision. However difficult that decision might have been, the trial court committed no error here.

E.

¶ 70 In Proposition XI, Hogan attacks the victim impact evidence in this case. First, he claims that the probative value of the victim impact evidence was substantially outweighed by the danger of unfair prejudice because it focused almost exclusively on the emotional impact of Stanley’s death on her parents. Second, he argues that victim impact evidence has no place in Oklahoma’s sentencing scheme because the evidence acts as a “superaggravator.” Finally, he contends that its admission in this case violated the Ex Post Facto Clause.

¶ 71 This Court has consistently rejected claims that victim impact evidence acts as a superaggravator and that its admission in criminal trials where the crime was committed before the legislature passed legislation allowing it violates the Ex Post Facto Clause. See Murphy v. State, 2002 OK CR 24, ¶ 47, 47 P.3d 876, 886; Mitchell v. State, 1997 OK CR 9, ¶ 3, 934 P.2d 346, 349. Hogan cites no new authority that warrants reconsideration. These claims are denied.

¶ 72 Hogan claims the trial court erred in admitting the victim-impact evidence in this case because it was more prejudicial than probative, making it less likely that the jury’s sentencing decision was a reasoned, moral response to the question of whether Hogan deserved the death penalty. Hogan claims several statements by Stanley’s parents referring to her as a “special angel,” and a “gift from God,” and Stanley’s mother’s statement, “I loved and protected Ken’s children and could not comprehend that he would hurt mine” were too emotional and unfairly prejudicial to be considered by the jury in determining punishment. He also objects to Stanley’s mother’s testimony that she had nightmares where she would wake-up “screaming for Lisa to run.”

¶ 73 Evidence about the victim and about the financial, emotional, psychological, and physical impact of the murder on the victim’s family is admissible. 21 O.S.2001, § 701.10(C); 22 O.S.2001, § 984. Hogan argues his case is like Cargle v. State, 1995 OK CR 77, 909 P.2d 806, in which this Court found error in the admission of certain victim impact evidence. The Cargle court held that capital sentencing must be reliable, accurate and nonarbitrary and, consequently, inflammatory, irrelevant victim impact evidence that fails to show the financial, psychological or physical impact of the victim’s death on her family, should be excluded. Cargle, 1995 OK CR 77, ¶¶ 81-82, 909 P.2d at 830. Trial courts must carefully balance the probative value of particular victim impact evidence against the danger of unfair prejudice to the defendant, and be vigilant to limit such evidence that does not fall within the statute permitting its admission. The prepai-ed statements read by Stanley’s parents were not like the victim impact evidence condemned in Cargle; rather the statements contained evidence of the emotional, psychological and physical effects of Stanley’s death on her parents. The statements were concise and the emotional references to Stanley or her death did not render the statements unfairly prejudicial or inadmissible. We find the trial court did not abuse its discretion in allowing this victim impact evidence.

F.

¶ 74 In Proposition IX, Hogan argues that the application of the especially heinous, atrocious, or cruel aggravating circumstance to situations where the evidence shows the decedent’s death occurred during an altercation initiated by the decedent renders it unconstitutionally vague and overbroad unless a finding is required that the defendant intentionally inflicted gratuitous harm beyond that caused by the rage born of the altercation. We have repeatedly upheld the constitutionality of this aggravating circumstance and decline to revisit this issue here. Duty v. State, 2004 OK CR 20, ¶ 13, 89 P.3d 1158, 1161; Lockett, 2002 OK CR 30, ¶ 40, 53 P.3d at 430. This claim is denied.

¶ 75 Hogan also asserts that the evidence in this case was insufficient to prove that aggravator beyond a reasonable doubt. When the sufficiency of the evidence supporting an aggravator is challenged on appeal, we review the evidence in the light most favorable to the State to determine whether any rational trier of fact could have found the facts necessary to support the aggravating circumstance beyond a reasonable doubt. DeRosa, 2004 OK CR 19, ¶85, 89 P.3d at 1153.

¶ 76 This Court upholds a jury’s finding of this aggravating circumstance when it is supported by proof of conscious, serious physical abuse or torture prior to death. Davis, 2004 OK CR 36, ¶ 39,103 P.3d at 81. The evidence here showed that Hogan stabbed Stanley numerous times. That she remained in an upright position during the stabbing tended to show she was conscious. The blood pool evidence indicated that the fatal, arterial stab wounds did not occur until the end of the stabbing. Stanley had defensive wounds on her hands from her attempt to fend off the attack, providing further evidence that she had remained conscious. This evidence supports a finding beyond a reasonable doubt that Stanley was conscious and aware of what was happening to her and that she suffered serious physical abuse prior to her death.

¶ 77 Finally, Hogan argues that his death sentence is not valid because the mitigating evidence outweighed the sole aggravating circumstance. Hogan claims that the jury should have been instructed, as he requested, that the aggravating circumstances must outweigh the mitigating evidence beyond a reasonable doubt. The failure to so instruct, he contends, resulted in the imposition of a death sentence that does not meet the Eighth Amendment’s reliability requirements. We rejected this claim in Torres v. State 2002 OK CR 35, ¶¶ 5-6, 58 P.3d 214, 216, and held that a finding that the aggravating circumstances outweigh mitigating evidence beyond a reasonable doubt is not required by Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428,153 L.Ed.2d 556 (2002). Torres is dispositive. This claim is denied.

G.

¶ 78 In Proposition XII, Hogan claims that Oklahoma’s death penalty statute violates the Establishment Clause of the First Amendment and is therefore unconstitutional.²⁸ Hogan contends that the effective function of execution as a punishment is dependent upon the sectarian religious notion of a meritbased afterlife, such as heaven and hell. Because a neutral post-execution existence would not cause the offender to experience the secular purposes of punishment such as the loss of property, right or privilege, Hogan argues the death penalty serves no secular function unless the offender post-execution continues to exist under circumstances contemplated by those religions that adhere to the doctrine of a punitive afterlife. By this reasoning, he argues, the death penalty unconstitutionally advances religion.

¶ 79 Whether Oklahoma’s death penalty statute violates the Establishment Clause is a question of first impression for this Court. A statute does not violate the Establishment Clause if (1) it has a secular legislative purpose, (2) its principal or primary effect neither advances nor inhibits religion, and (3) it does not create excessive entanglement between government and religion. Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971); Tulsa Area Hosp. Council v. Oral Roberts Univ., 1981 OK 29, ¶ 14, 626 P.2d 316, 321.

¶ 80 The Texas Court of Criminal Appeals rejected the claim that Texas’s death penalty statute violated the Establishment Clause and advanced religion in Holberg v. State, 38 S.W.3d 137 (Tex.Crim.App.2000). The Holberg court stated, “[t]he primary effect of the [death penalty] statutes is penal in nature, not religious, and the mere fact that the statutes are consistent with the tenets of a particular faith does not render the statutes in violation of the Establishment Clause.” Holberg, 38 S.W.3d at 140. The Holberg court cited the following secular beliefs it viewed as supporting the legislature’s decision to enact Texas’s death penalty statutes:

(1) the death penalty is the only proportional punishment for certain crimes;

(2) the death penalty ensures, at a minimum, that the offender will never harm anyone again;

(3) the death penalty may deter some persons (professional criminals and those already imprisoned for life), and possibly others, from committing murder; and

(4) life imprisonment without parole is not a viable alternative to the death penalty because,

(a) capital offenders are a danger to others in the prison environment,

(b) persons imprisoned literally for life have little incentive to behave properly, and

(c) it is undesirable, costly, and possibly inhumane to keep persons in prison until they actually die from old age or disease.

Holberg, 38 S.W.3d at 140, see also Gregg v. Georgia, 428 U.S. 153, 183-86, 96 S.Ct. 2909, 2930-31, 49 L.Ed.2d 859 (1976)(plurality-social purposes are retribution and deterrence).

¶81 We find the reasoning in Holberg persuasive and that the purpose of the death penalty statute in Oklahoma is likewise punitive in nature. The purpose and primary effect of our death penalty statute is not the advancement of any religion; it does not violate the Establishment Clause.

¶ 82 Next Hogan contends that the justifications for the death penalty are invalid. He argues that the death penalty is neither cost-effective nor serves as a deterrent to would-be offenders. To support this claim Hogan requests an evidentiary hearing to supplement the record with evidence concerning this issue and funding for the presentation of expert testimony on this issue. Not even a clear showing that the death penalty was not cost-effective and wholly failed to deter criminal acts would justify this Court in abolishing the death penalty. The issues Hogan raises here are policy matters clearly within the purview of the legislature and not the courts. Hogan’s request for an eviden-tiary hearing is denied.

¶ 83 Hogan also argues that Oklahoma’s death penalty procedure in 21 O.S. 2001, § 701.11 violates the Oklahoma Constitution. Specifically Hogan complains that the jury procedure violates the provisions against special verdicts in art. 7, § 15. We rejected this argument in Romano, 1995 OK CR 74, ¶ 105, 909 P.2d at 125; that case is dispositive here. This claim is denied.

H.

¶ 84 In Proposition XIII, Hogan raises six issues previously settled by this Court in order to prevent a finding of waiver in any subsequent state or federal proceedings. Hogan concedes that we have previously rejected each contention. See Harris v. State, 2004 OK CR 1, ¶ 52, 84 P.3d 731, 751(Oklahoma’s capital sentencing scheme is constitutional; capital defendant has neither right to allocution before jury nor right to argue last; defendant has no right to separate jury for capital sentencing); Williams v. State, 2001 OK CR 24, ¶ 6, 31 P.3d 1046, 1049 (instruction defining life without parole in a capital case unwarranted); Al-Mosawi v. State, 1996 OK CR 59, ¶ 78, 929 P.2d 270, 287 (it is not error to exclude evidence on the cost-effectiveness of the death penalty);²⁹ Bernay v. State, 1999 OK CR 37, ¶¶ 49-50, 989 P.2d 998, 1012 (no constitutional right to a jury instruction making residual doubt a mitigating circumstance). We are not persuaded to reconsider any of these issues. The claims raised in Proposition XIII are denied.

I.

¶ 85 In Proposition XIV, Hogan claims the trial court erred in failing to instruct the jury in second stage that it was to determine the voluntariness of his statements to police and disregard them if it found the statements were not voluntary. Because Hogan failed to object and request such an instruction, we review for plain error only. See Norton, 2002 OK CR 10, ¶ 17, 43 P.3d at 409; 20 O.S.2001, § 3001.1.

¶86 The record shows, and Hogan concedes, that the trial court gave the proper instruction concerning the voluntariness of his statements to police in its first stage instructions. The record further shows that the trial court instructed the jury that its first stage instructions were applicable during second stage where appropriate. The instruction Hogan complains was omitted was in fact incorporated into the trial court’s second stage instructions. This claim is without merit.

VI. PROSECUTORIAL MISCONDUCT

¶ 87 In Proposition XV, Hogan argues that certain parts of the prosecutor’s closing arguments constitute prosecutorial misconduct and violated his right to due process and a fair trial. Hogan objected to only one of the comments, preserving the error for appeal; we review the remaining remarks identified on appeal for plain error only. Matthews v. State, 2002 OK CR 16, ¶ 38, 45 P.3d 907, 920.

¶88 In reviewing this due process claim, we must determine whether the prosecutorial misconduct so infected Hogan’s trial that it was rendered fundamentally unfair, such that the jury’s verdict should not be relied upon. DeRosa, 2004 OK CR 19, ¶ 53, 89 P.3d at 1145. We evaluate the alleged misconduct within the context of the entire trial, considering not only the propriety of the prosecutor’s actions, but also the strength of the evidence against the defendant and the corresponding arguments of defense counsel. Id.

¶ 89 First, Hogan argues that the prosecutor “conditioned jurors to equate their responsibility of ensuring justice with imposing the death penalty” throughout trial. He claims this type of argument fosters an “us against them” attitude and argues it is improper for a prosecutor to tell a jury that the only justice is the prosecutor’s view of justice. He cites portions of two segments of the prosecutor’s closing argument which read in full:

What is justice? Because that’s the ultimate issue. What verdict can you walk back into this courtroom and bring to us and say out loud that will represent to the parties involved in this lawsuit justice? Because that’s the issue that you now have before you. Justice. That we talked about all through voir dire. We talked about it — and I know I discussed it with each and every one of you individually, the issue of justice, and the fact that you take an oath to bring justice to this courtroom. That’s what you promised me that you would do.

And I would submit to you that based on the law that you have and the facts that you’ve heard that there is no verdict that represents justice for this (indicating), no verdict that you could bring into this courtroom that represents justice other than the penalty of death. And I ask that you go upstairs and that you do your duty as jurors and that you return to this courtroom with a verdict of death for Mr. Hogan.

¶ 90 There was no objection in either instance. This Court condemns arguments that improperly express a prosecutor’s personal opinion as to the appropriateness of the death penalty. See Washington v. State, 1999 OK CR 22, ¶ 63, 989 P.2d 960, 979; Ochoa v. State, 1998 OK CR 41, ¶55, 963 P.2d 583, 601. This Court, however, has found such comments do not rise to the level of plain error where the prosecutor’s remarks were “not phrased in personal terms, but appealed to the jury’s understanding of justice and asked that standard be upheld.” Mitchell v. State, 1994 OK CR 70, ¶ 44, 884 . When the remarks are taken in context, it is clear that the prosecutor was arguing that justice required the death penalty be imposed under the particular facts and law of Hogan’s case and was not stating her personal opinion. Hogan has failed to show these remarks rise to the level of plain error. See Lockett, 2002 OK CR 30, ¶ 21, 53 P.3d at 425.

¶ 91 Next Hogan claims that the prosecutor denigrated his defense by arguing that his statements about Stanley’s death were self-serving and by telling the jury that Hogan “butchered” her. Again, there were no objections to these statements. These comments did not deprive Hogan of a fair trial or sentencing. “Parties have wide latitude, in closing argument, to discuss the evidence and reasonable inferences from evidence, and relief is required only where grossly improper and unwarranted argument affects a defendant’s rights.” Hanson v. State, 2003 OK CR 12, ¶ 13, 72 P.3d 40, 49. The prosecutor’s remarks were reasonable inferences based on the evidence. Hogan again fails to prove plain error.

¶ 92 Third, Hogan claims that the prosecutor erroneously told the jury not to consider his mitigating evidence when the prosecutor stated, “I would submit to you that certainly with respect to mitigator number six, that there is no proof at all that Mr. Hogan feels one ounce of remorse for what he did to Lisa Renee Stanley.” There was no objection to this statement. The comment was a reasonable inference based on the evidence and thus Hogan cannot prove plain error. Id.

¶ 93 Fourth, Hogan claims the prosecutor violated his right to a fair and reliable sentencing proceeding by equating guilt with the reduction of moral culpability in its second stage closing argument. Because the purpose of mitigating evidence is to reduce moral culpability at sentencing, not legal responsibility for the offense, see OUJI-CR 2d No. 4-78, he contends the prosecutor’s argument confused the jury and effectively told it to disregard his mitigating evidence entirely. Hogan cites the prosecutor’s argument questioning whether his mitigating evidence actually mitigated against the death penalty.³⁰ Hogan objected to this line of argument. The trial court overruled Hogan’s objection, but told the prosecutor to “read the instruction” defining mitigating evidence.

¶ 94 “Mitigating circumstances are those which, in fairness, sympathy, and mercy, may extenuate or reduce the degree of moral culpability or blame.” OUJI-CR2d 4-78. The fact finder determines what circumstances are mitigating under the facts and circumstances of any case. In Harris, we rejected the defendant’s claim that the prosecutor mischaracterized his mitigating evidence by rhetorically asking the jury whether it rendered the defendant “less responsible” for his crimes. Harris, 2004 OK CR 1, ¶ 59, 84 P.3d at 752-53. The prosecutor in Hogan’s case made this same type of argument. As in Harris, the prosecutor’s argument, when considered in its entirety, took issue with each piece of Hogan’s mitigating evidence, but did not tell the jury to ignore it. The jury was properly instructed on mitigating circumstances. We find no error here.

¶ 95 Fifth, Hogan claims that the prosecutor argued that all murders deserve the death penalty. Hogan did not object. When the prosecutor’s argument is read in context, the prosecutor told the jury its punishment decision should fit the crime that Hogan committed. This argument was not improper and Hogan cannot show plain error.

¶ 96 Hogan also argues that the cumulative effect of these arguments contributed to his conviction and death sentence. We have found no individual error; therefore we do not find any relief is warranted when the remarks are considered in the aggregate.

¶ 97 Hogan argues, finally, that to the extent any of these claims are deemed forfeited by counsel’s failure to object, he was denied his Sixth Amendment right to the effective assistance of counsel. Having found no error, Hogan cannot prevail on this claim under the Strickland test; he cannot show prejudice. Lockett, 2002 OK CR 30, ¶ 15, 53 P.3d at 424. This claim is denied.

VII. CUMULATIVE ERROR

¶ 98 In Proposition XVI, Hogan claims that even if no individual error in his case merits reversal, the cumulative effect of the errors committed during his trial necessitates reversal of his conviction or modification of his death sentence. This Court has recognized that when there are “numerous irregularities during the course of [a] trial that tend to prejudice the rights of the defendant, reversal will be required if the cumulative effect of all the errors was to deny the defendant a fair trial.” DeRosa, 2004 OK CR 19, ¶ 100, 89 P.3d at 1157 (quoting Lewis v. State, 1998 OK CR 24, ¶ 63, 970 P.2d 1158, 1176). We have reviewed Hogan’s claims for relief and the record in this case and conclude that, although his trial was not error free, any errors and irregularities, even when considered in the aggregate, do not require relief because they did not render his trial fundamentally unfair, taint the jury’s verdict, or render sentencing unreliable. Any errors were harmless beyond a reasonable doubt, individually and cumulatively.

VIII. MANDATORY SENTENCE REVIEW

¶ 99 In Proposition XVII, Hogan contends that his death sentence cannot be upheld under this Court’s mandatory sentence review. Title 21 O.S.2001, § 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.” After conducting this review, this Court may order any corrective relief that is warranted or affirm the sentence. 21 O.S.2001, § 701.13(E).

¶ 100 We have reviewed the record in this case in conjunction with Hogan’s claims for relief and have found that Hogan’s conviction and death sentence were not the result of trial court error, prosecutorial misconduct, or improper evidence or witness testimony. We therefore find Hogan’s death sentence was not imposed because of any arbitrary factor, passion, or prejudice.

¶ 101 We have also upheld the jury’s finding that the murder was especially heinous, atrocious, or cruel because the aggravating circumstance is factually substantiated. The Judgment and Sentence of the trial court is AFFIRMED.

C. JOHNSON, and LEWIS, JJ.: concur. LUMPKIN, V.P.J.: concur in results. CHAPEL, P.J.: dissent.

1 . Hogaa filed his Petition in Error on December 1, 2003. Hogan's Brief in Chief was filed on July 26, 2004. The State’s brief was filed on November 23, 2004. This Court heard oral argument on August 23, 2005.

2 . Under the reasonable hypothesis standard, this Court would review the evidence in the light most favorable to the State to determine whether the circumstantial evidence ruled out all reasonable hypotheses except that Hogan acted with malice aforethought.

3 . The first reference occurred when defense counsel asked Tiffany Harrington whether this was the first time she testified regarding this incident. Harrington answered, "Except for the first trial.” The next instance occurred during the prosecution’s cross-examination of a defense witness. The prosecutor asked, "In fact, at the prior trial, you and I spoke, did we not?” Defense counsel objected, moved for a mistrial but did not ask the trial court to admonish the jury. The trial court sustained the objection, but denied the motion for a mistrial. The final instance occurred during second stage when Investigator Bud Argo testified that he did not think he could identify Hogan. The prosecutor refreshed Argo's memory with the transcript from Hogan's first trial, reading the portion where Argo identified Hogan and asking Argo if he recalled his testimony. Argo stated, "Yes, that was in the first trial.” Defense counsel asked for a second stage mistrial. The trial court admonished the prosecutor to couch her questions requiring only a yes or no response and denied Hogan's motion for a mistrial.

4 . The State showed photographs of Stanley in State's Exhibits 42-44, 65-70, and 90-91 to the medical examiner during first stage, but did not introduce these exhibits until second stage.

5 .The prosecutor asked Hogan’s former wife during trial:

Q. (Prosecutor) At some point prior to going to the police department and after the police had called to try to question your husband, did you and he have some discussion about what to say to the police?

A. (Tiffany Hogan Harrington) Yes.

Q. Okay. Can you please describe that for us?

A. To tell them that he was home all day?

Q. Okay. And what did he tell you to tell them about the injury to his hand?

A. That he had cut a hose in the garage.

Q. Okay. And did you do that?

A. Yes.

Q. So you told that to the police when they first questioned you?

A. Yes.

Q. It is a certain fact that at some point during your interview with the detectives you told them that that, in fact, was not true?

A. Yes.

Q. And do you recall at what point it was during the interview that you told them the truth that Mr. Hogan had not, in fact been at home?

A. Yes.

Q. And did you tell the police everything that Mr. Hogan had said to you that he intended for you to convey to the police officers?

A. Yes.

(Tr.6 at 188-89)

6 . Defense counsel first objected to testimony about the conversation between Hogan and his wife during the State's opening statement.

7 . Section 2501 provides in part:

Except as otherwise provided by constitution, statute or rules promulgated by the Supreme Court no person has a privilege to:

1. Refuse to be a witness;

2. Refuse to disclose any matter.

Section 2601 provides that every person is competent to be a witness except as otherwise provided in the Oklahoma Evidence Code, 12 O.S. 2001, §§ 2101 et seq.

8 . At the same time the legislature enacted the Code, it repealed the Code of Civil Procedure's privilege of spousal immunity, also known as spousal disqualification, that forbids a spouse from being a witness against the other. See 12 O.S., § 385(3) (providing that husbands and wives were incompetent to be witnesses for or against each other except concerning transactions in which one acted as the agent of the other or when they were joint parties and had a joint interest in the action.) Section 385 also contained a broad confidential marital communication privilege. The legislature repealed the Code of Criminal Procedure's privilege of spousal immunity four years later. See 22 O.S., § 702 (providing "neither husband nor wife shall in any case be a witness against the other except in a criminal prosecution for a crime committed one against the other, or except in a criminal prosecution against either the husband or the wife, or both, for a felony committed by either, or both, against the minor children of either the husband or the wife, but they may in all criminal cases be witnesses for each other, and shall be subject to cross-examination as other witnesses, and shall in no event on a criminal trial be permitted to disclose communications made by one to the other except on a trial of an offense committed by one against the other or except on a trial of a felony committed by one, or both, against the minor children of either the husband or the wife.") Prior to the adoption of the Code, § 702 made it clear that in all but a very narrow range of circumstances the marital privilege could be invoked to prevent one spouse from testifying against the other. Lavicky v. State, 1981 OK CR 87, ¶ 6, 632 P.2d 1234, 1236. In contrast, the Code "limits the marital privilege, in criminal cases, to 'confidential communications.’ " Id. See also Evidence Subcommittee's Note to 12 O.S., § 2504.

9 . Instruction No. 13 substantially sets forth the procedure contained in the uniform instructions for consideration of lesser included offenses. It properly informed the jury of the punishment range for manslaughter and that the issue of punishment for first degree murder was not before the jury at that time.

10 . Hogan's requested instructions on manslaughter as a lesser included offense were filed and the record shows the trial court included them all in its instructions, rearranging the order of a few sentences and paragraphs concerning how to consider lesser included offenses.

11 . This burden is reflected in the uniform instructions on defenses. See OUJI-CR2d 8-5 (burden of proof for defense of another); OUJI-CR2d 8-17 (burden of proof for defense of property); OUJI-CR2d 8-22 (burden of proof for duress); OUJI-CR2d 8-26 (burden of proof for entrapment); OUJI-CR2d 8-30 (burden of proof for excusable homicide); OUJI-CR2d 8-33 (burden of proof for insanity); OUJI-CR2d 8-38 (burden of proof for voluntary intoxication); OUJI-CR2d 8-44 (burden of proof for involuntary intoxication); and OUJI-CR2d 8-49 (burden of proof for self-defense).

12 . These instructions satisfy In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970)(holding that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime charged). Cf. Patterson, 432 U.S. at 214-16, 97 S.Ct. at 2329-30 (holding Due Process Clause requires the prosecution to prove beyond a reasonable doubt all of the elements included in the definition of the charged offense and New York law that requires the defendant in a second degree murder prosecution to prove by a preponderance of the evidence the affirmative defense of extreme emotional disturbance in order to reduce the crime to manslaughter when no element of the charged offense is presumed does not violate the Due Process Clause); Mullaney v. Wilbur, 421 U.S. 684, 703-04, 95 S.Ct. 1881, 1892, 44 L.Ed.2d 508 (1975) (holding State must prove every element of an offense beyond a reasonable doubt and a scheme that shifts the burden of proof to the defendant by presuming a fact upon proof of the other elements of the offense violates due process).

13 .The dissent contends the Court here upholds an infirm verdict resting on faulty jury instructions. The dissent maintains, contrary to this Court’s holding in Black, that the mental states of malice aforethought and heat of passion are not sufficiently distinguished by the uniform instructions. And therefore, due process requires an instruction informing the jury that the State must disprove the heat of passion manslaughter defense even when the defendant has requested the court submit heat of passion manslaughter as a lesser included offense. Malice aforethought murder requires the defendant not only intend to kill but form a deliberate intention to take away the life of another person. OUJI-CR2d 4-62. A deliberate act is one that requires a cool mind that is capable of reflection. Heat of passion manslaughter, on the other hand, is a homicide committed by a person who is incapable of that cool reflection called for by the requirement of deliberation because of intense emotion caused from actions of the victim. OUJI-CR2d 4-95, 4-97, 4-98, 4-99, 4-100 and 4-101. It is the provocation of the deceased that causes the passion or emotion of the defendant and it is that passion or emotion that causes the defendant to perpetrate the act which results in death. OUJI-CR2d 4-101. Acting in the heat of passion need not overcome the killer's reason or destroy free exercise of choice; rather the sudden passion precludes deliberation and causes the killer to act.

14 . As we stated in Black, "[t]hat is not to say more specific instructions, if requested, [setting forth heat of passion manslaughter as a defense rather than a lesser included offense] are not desirable.” Black, 2001 OK CR 5, ¶48 n. 17, 21 P.3d at 1067 n. 17.

15 . See note 10, supra.

16 . The "exculpatory statement doctrine” states:

An exculpatory statement is defined as a statement by the defendant that tends to clear a defendant from alleged guilt, or a statement that tends to justify or excuse his/her actions or presence.

Where the State introduces in connection with a confession or admission of a defendant an exculpatory statement, which, if true, would entitle him/her to an acquittal, he/she must be acquitted unless such exculpatory statement has been disproved or shown to be false by other evidence in the case. The falsity of an exculpatory statement may be shown by circumstantial as well as by direct evidence.

A statement is exculpatory within the meaning of this instruction only if it concerns a tangible, affirmative, factual matter capable of specific disproof. A statement is not exculpatory within the meaning of this instruction if it merely restates the defendant's contention of innocence.

OUJI-CR 2d 9-15

17 . The State did not pursue the avoid arrest aggravator at Hogan's retrial.

18 .The petitioners in Poland were convicted of a double murder arising out of a robbery of a currency courier. Id. at 149, 106 S.Ct. at 1752. At the penalty phase, the State sought to prove the existence of two statutory aggravating circumstances to justify imposition of the death penalty: (1) the murder was committed for pecuniary gain; and (2) the murder was especially heinous, cruel or depraved. Id. The trial judge, acting as sentencer, rejected the "pecuniary gain” circumstance on the theory that the circumstance required proof of a contract killing and there was no proof of such in the record. Id. The trial judge found that the State had proved that the murders were "especially heinous, cruel or depraved,” that this circumstance outweighed any mitigating evidence and sentenced the petitioners to death. Id.

On appeal, the Arizona Supreme Court reversed the convictions and death sentence finding among other errors that the evidence was insufficient to support the aggravating circumstance that the murders were "especially heinous, cruel or depraved.” Id. at 150, 106 S.Ct. at 1752. The court held the trial judge erred in finding that the pecuniary gain circumstance was limited to contract killings and therefore the circumstance could be considered on retrial. Id.

At retrial, the petitioners were again convicted and sentenced to death. Id. The petitioners appealed to the Arizona Supreme Court arguing, inter alia, that the Double Jeopardy Clause barred reimposition of the death penalty because the appellate court had previously acquitted them by finding the evidence insufficient to support the sole aggravator found by the sentencer. Id. at 151, 106 S.Ct. at 1753, 90 L.Ed.2d at 129. The Arizona Supreme Court rejected the double jeopardy claim and affirmed the death sentence. Id. The United States Supreme Court affirmed the Arizona Supreme Court's decision. Id.

19 . As under Arizona’s capital sentencing scheme, an Oklahoma capital sentencing jury's finding of any particular aggravating circumstance does not of itself "convict” a defendant and require the death penalty, and its failure to find any particular aggravating circumstance does not "acquit” a defendant and preclude the death penalty.

20 . The dissent acknowledges that Hogan can prevail only if this Court declines to follow Poland.

21 . The dissent misconstrues our holdings in Crawford v. State, 1992 OK CR 62, 840 P.2d 627, 640-41, Cheney v. State, 1995 OK CR 72, 909 P.2d 74, and Perry v. State, 1995 OK CR 20, 893 P.2d 521, 533-37, and misunderstands the Satta-zahn distinction between a jury’s non-finding of an aggravating circumstance and an acquittal on the merits of murder plus aggravating circumstances that entitles a defendant to a life sentence. Crawford, Cheney, and Perry are examples of cases in which this Court found the state did not prove its case for the death penalty, a finding that constitutes an acquittal of murder plus aggravating circumstances and legally entitled those defendants to life sentences. Contrary to the dissent’s claim, these cases do not stand for the proposition that this Court rejected Poland in any manner for almost ten years or found that the jury’s failure to find a particular aggravator constitutes an acquittal. This point is further supported by the fact that this Court cited Poland approvingly in Romano v. State, 1995 OK CR 74, ¶ 66-68, 909 P.2d 92, 117-18, a case decided eleven days after Cheney.

22 . 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (holding that if the existence of any fact increases the maximum punishment that may be imposed on a defendant, that fact constitutes an element that must be found by a jury beyond a reasonable doubt).

23 . 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) (holding that Sixth Amendment requires that a jury, not a judge, find the existence of any aggravating circumstance, and that they be found beyond a reasonable doubt). Hogan’s aggravators were tried to a jury, not a judge. There is no Ring issue here.

24 . The dissent counts two of the justices joining Part III (Rehnquist, C.J., now deceased, was the third justice joining Part III) and the four dissenters in Sattazahn as rejecting the doctrinal basis for the Poland decision. This position is not supported by a careful reading of Sattazahn. In Part II of the Sattazahn decision, five justices spoke approvingly of the so-called Bullington line of cases which includes Poland:

Under the Bullington line of cases just discussed, the touchstone for double-jeopardy protection in capital-sentencing proceedings is whether there has been an “acquittal.” Petitioner here cannot establish that the jury or the court “acquitted” him during his first capital-sentencing proceeding. As to the jury: The verdict form returned by the foreman stated that the jury deadlocked 9-to-3 on whether to impose the death penalty; it made no findings with respect to the alleged aggravating circumstance. That result — or more appropriately, that non-result — cannot fairly be called an acquittal "based on findings sufficient to establish legal entitlement to the life sentence.”

Sattazahn, 537 U.S. 101 at 109, 123 S.Ct. 732, 154 L.Ed.2d 588 (quoting Arizona v. Rumsey, 467 U.S. 203, 211, 104 S.Ct. 2305, 81 L.Ed.2d 164 (1984) and referring with approval to Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981) and Poland v. Arizona, 476 U.S. 147, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986))(emphasis added).

The Sattazahn dissenters grappled with the issue of whether jeopardy is terminated by entry of a state-mandated life sentence when the jury deadlocks on punishment. The dissent here contends that 6 of the Sattazahn dissent, when combined with the position of the justices in the Part III plurality, establishes that a capital sentencing proceeding is a mini trial on each individual aggravator and that a jury's failure to find a particular aggravator constitutes an acquittal. In 6, the Sattazahn dissent states "[tjhis Court has determined ... that for purposes of the Double Jeopardy Clause, capital sentencing proceedings involving proof of one or more aggravating factors are to be treated as trials of separate offenses, not mere sentencing proceedings.” (Id. at 126 n. 6, 123 S.Ct. at 747 n. 6). 6 only acknowledges the Court's post-Apprendi/Ring jurisprudence that capital sentencing proceedings involve proof of facts that are functional equivalents of elements of offenses and thus, to that extent, capital sentencing proceedings are to be treated as "trials of separate offenses,” the separate offenses being murder plus aggravating circumstances and murder simpliciter. It means only that under Ring, capital sentencing proceedings are no longer proceedings in which sentence enhancing factors are found and applied in some discretionary manner by a sentencing judge, but instead, those factors are facts (like elements of an offense) that must be found by a jury beyond a reasonable doubt. Not only does the dissent misread Sattazahn, it would reject controlling authority by attempting to divine what may happen in a future case.

25 . While these justices equate aggravators with elements of a crime, that does not mean a jury's failure to find a particular aggravating circumstance alleged by the prosecution constitutes an acquittal. Rather, aggravators are elements that, if proven, establish the greater offense of murder plus aggravating circumstances. If the jury rejects the one or more aggravators alleged and sentences the defendant to life, the defendant has been acquitted of murder plus aggravating circumstances and jeopardy attaches to that acquittal. Sattazahn, 537 U.S. at 112, 123 S.Ct. at 740. Such a finding is consistent with the court's prior cases. The converse is if the defendant is not acquitted of murder plus aggravating circumstances and successfully appeals, the state can seek the death penalty using any aggravator supported by the record. Id. at 113, 123 S.Ct. at 740.

26 . The Sattazahn court found that a lack of findings with respect to an aggravator is not an acquittal. Sattazahn, 537 U.S. at 109, 123 S.Ct. at 738 ("that non-result-cannot fairly be called an acquittal 'based on findings sufficient to establish legal entitlement to the life sentence.' ”)

27 . Freeman, Hogan’s cousin, did testify that he and Hogan burglarized some businesses together around the time of the homicide and that Hogan had admitted shooting BB’s at a closed convenience store because he was angry over being fired. The trial court did not allow Freeman to testify that Hogan had stolen a gun from his parents to shoot out the windows in the convenience store or that Hogan had indicated that if he ever encountered a witness during one of their burglaries, they would have to kill the witness so they could not be identified. The trial court also precluded Freeman from testifying that Hogan asked him and another accomplice to break into pawn shops to steal guns to use in their burglaries and that they declined because they were afraid Hogan would use a gun during a burglary.

28 . The Establishment Clause of the First Amendment of the United States Constitution provides that "Congress shall make no law respecting an establishment of religion.” This guarantee was made applicable to the states by the Due Process Clause of the Fourteenth Amendment. Cantwell v. Connecticut, 310 U.S. 296, 303-04, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940).

29 . We denied Hogan’s request for an evidentiary hearing and funds for an expert on the cost effectiveness and deterrent value of the death penalty in Proposition XII, supra.

30 . Hogan quotes a part of one sentence from the five pages that he references for this complaint. The sentence in full reads, "I would submit to you based on the evidence that you’re going to find that the State of Oklahoma has in fact proved the aggravators and that in fact the miti-gators don’t exist or certainly could not in any way reduce his culpability for this offense."