made crystal clear that there needs to be sufficient narrowing in order to avoid priestess an arbitrary action in this position than death and i would argue that this case before us today is not one of those case there must be something that distinguishes those cases that are all of our mean of the most severe sentence death from those other murders and we will acknowledge all murder is horrible i mean we're not here to discuss that but we are here to discuss what distinguishes those specific cases from those of other murders that have symptoms and facts that attend all other cases i would say that if there is any question whatsoever as to whether the th amendment applies to the facts at hand and to the analysis at the hand i would say that we have maintained throughout briefing throughout our argument that absolutely that the and also this must be within an th amendment context and i would also assert that the state has expressly admitted the same and fact i would address the court and to the oral argument previous oral argument before the panel in this matter at between minute twenty nine and thirty states counsel was specifically asked is are measure what the oklahoma court of criminal appeals has done in subsequent quoi says or is our measure political federal controlling all as pronounced by the supreme court and the state clearly expressed lee responded that the question that this court should be concerning itself with is the latter does and counsel continued state council does this evidence in this case meet what the supreme court has determined to be sufficiently narrowed aggravator and immediately states counsel went on to discuss maynard so i would say there is no question whether or not the th amendment applies but even if this court determines that the th amendment overlay the lens upon which we must look is a question of debate i would say there simply insufficient facts here to substantiate  finding of a heinous atrocious and cruel aggravator in this case i certainly would welcome you know the core any questions i will proceed with the discussion of those facts if there are not are there questions but as i maintained this is jurisprudence must efficiently narrow and at one point this court approved of a court of criminal appeals narine and that was when they were applying a conscious physical suffering plus i would argue it's not just simply the words conscious physical suffering but is a conscious physical suffering and something at the time that it was approved by this court oklahoma court of criminal appeals was applying a standard that was looking for substantial conscious physical suffering and that is not what is present in this case the oklahoma court of criminal appeals has simply gotten away from that sufficiently narrowed aggravator and specifically in this case did not apply that th amendment narrow sufficiently narrowed standard if you look at the facts of the case mr andrews was shot twice with a shotgun and he the medical examiner testified that he would have possibly even lived less than a minute there was further testimony when he was initially questioned that he said a few minutes it was possible that he would be alive that was not addressing the issue of his consciousness that was just simply he would have been alive possibly for a few minutes finally kind of got down to the five minute mark it was possible and again that was just simply sustaining life that was not the actual consciousness when he was asked about the consciousness it was less than five minutes and he actually testified that it was going to be less than potentially less than a minute that he was even conscious he also testified that there was the likelihood that he would be mr andrews would be suffering from shock and in that testimony about shock that the there was indication that there would not be the normal pathway to the brain of conscious thought and conscious suffering and so if you look at the medical examiner testimony we don't have something that is different than other cases here other cases unless you are have an instantaneous death or if you have instantaneous unconsciousness there is going to be some component consciousness there is going to be some component of suffering but it has to be something that distinguishes all other cases from the want to hand that is qualifying for the heinous atrocious recall aggravator and that's simply not what we have here in fact  there the time of death that is lit listed on the medical examiner's report is six hundred and twenty and that this before these nine hundred and eleven calls are even concluded you have medical personnel testifying  trial that they were after the dime on one calls were dispatched they were on the scene and found mr mr andrew deceased on the scene within one minute the nine hundred and eleven calls being dispatched if you look at the transcript of the eleven calls the medical operator acknowledges that that she is sending medical personnel within a minute and forty seconds after the night initial nine hundred and eleven call so again this  murder is horrible but this is not the type of case that is distinguished from all the other cases that are before this court and i would think that this court would acknowledge this is not the most heinous of all facts that we have again  i try not to downplay murder i mean of course it is horrible but there has to be something under the united states constitution that sufficiently narrows in order to distinguish what is qualifying of death under this heinous atrocious and cruel aggravator i would also acknowledge that that we have sufficiently brief that so much so that the the state has responded about the th amendment you know they make the state makes the claim that we have not raised that sufficiently until this court and specifically i think it was a it was alleged that it was not sufficiently raise until the before this court but i would again refer this court back to the district court reefing i would refer the court back to the to the oklahoma quarter acrylic criminal appeals briefing in fact in direct appeal we specifically cited the thomas case and i understand that's the case before this court but you cannot retirements without having godfrey having maynard having all of the th amendment jurisprudence of the supreme court implicated by that reading of thomas and the state has acknowledged through their briefing and the court asked state counsel about an th amendment question state counsel responded to that commitment question but didn't say anything about whether that was properly before we for us it didn't say anything about exhaustion it didn't say anything about any of that so i don't see how you get that far with that little exchange that you just gave and ground ten if you would remind us round two in related to what related to the insufficient evidence and within its heading it sell it acknowledged the th amendment and the th amendment law says that embedded in or to use the word of the panel opinion a component of a jackson we don't acknowledge our don't deny that jackson is a political to this case but again you cannot what standard would have been as a choice and colby measured against well i'm not sure that we are that's the game that we're talking about here you  i would assert respectfully your honor that jackson a reading of that just just as all the cases i have cited all of them rely on the same same principle which is that it must be sufficiently narrowed in order to guide the jury's discretion and that there must be something narrow that can be rationally reviewed without a without an th amendment component to this what purpose with this court have it would be free reign for the state courts what our court would do is take the claim as it was presented which was there is sufficient evidence under the standard for the aggravator is established by the state that's what it is if you wanted to raise an  amendment vagueness challenged you could have done that and then we would have had double duty but that's not what happened there was i there can always be clear briefing and i will like notch the knowledge that but the sufficient briefing that is necessary and it's required for this court for any court is so that the state can respond to the issues at hand and that the court itself can rationally review the issues before that and i would  that is what is held in the briefing so much so that when the state responded and district court when the state responded in front of this court that they themselves acknowledge the th amendment component now obviously that in agree although obviously they're re sponding to the issue that is being argued in court it takes more than that to have an express waiver and again i would assert that what was written and what i asserted was was held in in oral argument is an experience  know we look at a case they decided for another issue and if there's other cases cited in that case we can look at issues that are addressed but i would i would argue that that's not our position your honor respectfully we would say that this is never been something that has been let out in fact the state had multiple opportunities to say this was an exhausted and they have never alleged that in fact it was not until post opinion before the panel in this original matter it was not until post opinion where the state was able to see some sort of path carved out for it in which it even began to hint at this was not exhausted this was the most you ca consider this issue exhausted the oklahoma court of criminal appeals did not specifically fight to federal law with in the original analysis on direct appeal however the district court and the further courts acknowledge that there was the jackson standard was what was applied even though it what do you discern from god three that would allow you to say that any sufficient the of the evidence challenge in a capital case has embedded in it the need to do some constitutionality vagueness review under the th amendment  evidence is under an aggravator to determine whether or not there is sufficient evidence under the aggravator and that aggravator itself is not constitutional unless it is sufficiently narrowed that's true but that aggravator is subject to a separate challenge under  of that did that it doesn't matter whether there was an alternative merits based determination as long as there was an independent procedural impediment i would argue that oklahoma getting into net is whether the o c ca was faced with the issue too late with the nd post conviction application and if it obviously a petitioner could raise in oklahoma this challenge on the st post conviction application but if he doesn't then raising it on the nd is just too late that is true if if counsel is effective but here we do not have effective counsel and we had counsel who was one in the same for trial and for an initial direct appeal and part of the oklahoma steam a part of the oklahoma mechanism that is in place is that if you do have the same counsel at trial as that was on track to peal then they has a strange procedure at least that strange compared to federal procedure that you bring post conviction proceedings before the appeal is resolved so the st post conviction application in state court was filed before the o c ca had ruled on the direct appeal so the st application you could make after the state of c c a had decided the direct appeal was your before the state court had decided the direct appeal yes your honor so the st time you had a chance to raise an issue concerning the decision on direct appeal was in your nd post conviction ok sion we would argue that for sure ca had a constitutional narrowing of the hack aggravator and wrecked appeal you argue that the  it was insufficient evidence to establish that and then the in deciding your appeal modified the definition of the construction of the hack aggravated your st opportunity to even if this court does not view things in that matter we had ineffective counsel of st post conviction so either way you look at it if this is the st opportunity your st post conviction you couldn't have raised anything based on how they decided the original correct because as you as you correctly pointed out that was decided before the direct appeal was filed before the direct appeal with the side yes i apologize yes thank you for the practice but i just ask a question about the nd post conviction i would argue that what was assert in the nd post conviction is a facial challenge and then my question wasn't facial or as applied it was was that you've been arguing up to this point that these issues are sort of  maybe some clarification would be what i what i have been referring to as a facial challenge could be applied to the oklahoma court of criminal appeals as a whole that aren't have they been applying the properly narrowed aggravator hack in this case as a whole that would be what we would call a facial challenge what i am saying is interwoven which we have maintained is interwoven throughout the and the evidence is specific to this case under we're not worrying about everything else that oklahoma coroner criminal appeals has done or is doing we are worried about this case and if you look at the facts of this case there is not sufficient evidence under a properly narrowed aggravator the hack aggravator to establish a constitutional reading and application of that that aggravator so and i hope that addresses your question your honor the th amendment argument could have been raised previously and hadn't been and so it it was viewing it as a separate argument was not under you saying that it was wrong that the o c a just got it wrong what i would say is that what was raised on nd post conviction is is in addition to what had already been a raised in the insufficient evidence had been raised from direct appeal on and the state has acknowledged that is fully exhausted and so the facial the facial challenge that was raised within the nd post conviction that is in addition to that is not just a simple repetition of what had already been asserted before the court accordingly as applied allegation when is that  raised again i would maintain that that was raised from direct appeal on that that is part and parcel of what is necessary under an insufficient analysis and the authority you have for that concept is what again i would point to the godfrey case to the manor case and to the jackson case each of those under each of the analysis that you look at in those cases there is a narrowing there is the concept under jackson which i think you do have that issue i can see that one you know i can see that one the sufficiency of the evidence to support him as atrocious and cruel i don't know how you get to your other claims i don't think you can feed into that sufficiency claim your as applied and facial claim would you help me on that i don't know if it's as distinct as as as your honor is is indicating again well you have to make these assertions before court so they can rule on absolutely and and what we have done through our briefing is that as we have asked the court we've asked the state to address a constitutional narrowing of those aggravat that is a significant indicator that if it wasn't for the constitutional component then we are left only with state law the rule land what rule are you asking us to adopt that if there is a sufficiency challenge the automatically comes then or are you relying on some of the particular parts of this case to say only in this case that's so i would argue that in order to have a sufficiency analysis under a aggravator specifically we'd say in this case hack which has already been found to be bay on its face so a sufficiency analysis for an r t they aggravator must include a man meant component an overlay lend whatever you would like to term it in which the court must address has this been sufficiently narrowed for state purposes but more specifically with respect to this court to federal purposes has the th amendment been upheld in the application that the court has applied and in oklahoma i would assert specifically to this case it simply is not and has not been and this supreme court interpreted maynard does say that it requires under the th amendment a showing of torture or serious physical abuse which was specifically the content of the instruction it and we have failed jones wilson workman walton presumably with revised further support that it is a constitutionally sufficient narrowing construction for torture or serious physical abuse in an er godfrey we know that that was the standard that was applied not only the o c ca but before the jury because that was exactly what the judge told the jury to consider to determine the a plurality the heck aggravator so so in other words how do you get past the fact that conscious physical suffering has not been held to be a requirement of a constitutionally sufficient narrowing instruction i would agree that that it is not necessarily a requirement however that is what has imposed and so that it has the ability to determine what it is is going to be sufficient under oklahoma so if the judge tells the jury you're to consider x we've held the supreme court has failed that x is constitutionally sufficient as a narrowing instruction you're saying that it becomes a violation of the th amendment because this the open the state court unilaterally requires something greater than th no i don't believe that's what i'm trying to say your honor i'm i think what i'm trying to say is the state has been given the ability to to narrow their aggravator hacket in and of itself was found to be unconstitutional and it has chosen the conscious physical that changed i think we've been watching an unraveling for a while now i mean there have been times where it has been consistently like there's times where it has not been consistent impiety what we need to focus on is here and i would argue there was not an application of that that's sufficiently narrowed aggravator in this case there can't be if you look at the facts of the case there is an undue substantial burden that would distinguish this from any other murder and not simply the fact pattern that we do not have here to get back to conscious suffering evidence of conscious suffering yes and but again i think you look at all in that analysis at the testimony or that the nine hundred and eleven call from brenda i think i can certainly when she said her husband was still alive and talking to her i think under the jackson standard we do have to look in the end didn't the jury have that the jury had that but if you look and what we've tried to point out in the briefing is if you look at the actual evidence the nine hundred and eleven tape which the jury would have had to listen to there were the state during the presentation of the case made a point of highlighting that miss brenda andrews was not truthful that she was not truthful in so many respects so if you take the evidence itself which is nine hundred dollars her testimony no but we do have to to the jury would have to determine is that something that they you're going to believe she does not mention that mr andrews is alive she does not mention that he is breathing she does not mention she said he was talking to him and still she was prompted by the nun nine hundred and eleven operator at that point she she also talk with a friend of hers and tell him that he was alive after the st shot and grabbed the bag of cans to protect him from the nd shot if it's ok i will answer the ninety one call and then the testimony about the friend subsequently the testimony and or the actual eleven dollars call itself she is telling on upon prompting of the nine hundred and eleven operator he's trying to breathe he's trying to talk to me he's trying and yet when you listen to the nine hundred and eleven tape you can hear medical personnel arrive you can hear background noise you can hear everything except for what she is supposedly claiming to be true and so again the jury this just in the process of being shot and supposedly it was a live between each different between the st shot in the nd shot and i would argue even if we take that at face value and we acknowledge that in the light most favorable to the state if we view the facts simply upon that we're down to you you have to have an instantaneous and that simply will not be the standard in order to be sufficiently narrowed under the oklahoma standard i would like to begin with the facts of this case st as judge briscoe just noted brenda andrew told rick nunley that after the st shot and before the nd rob andrew grabbed a bag of cans to shield himself which time was between the st and left hand right about the level you know that the st gunshot was to the right side with the right to left trajectory as rob andrew was kneeling or squatting something like that probably trying to light that pilot light it was from responder who testified he was the rd officer on the scene as he tried to enter the garage one of the other officers told him that there was a lot of blood so he returned to his trunk but gloves came back and by that time someone else was with forty five about twenty five minutes after the nine hundred and eleven calls robbie andrew was conscious for approximately five or six minutes after being shot twice with a shot and this murder falls squarely within what the queer camel appeals and this court has repeatedly affirmed and that is as most recently in simpson the victim was conscious for some period of time a fair minded jurist could conclude that the court of criminal appeals reasonably denied the jackson claim and that is the attention was not called so this had petitioner believes that the court of criminal appeals did not apply a proper narrowing construction in its decision on direct appeal he could have and should have and finally i believe counsel just admitted twice that the claim that she was actually raising is that the evidence in this case was not sufficient to support a constitutionally narrowed application of this aggravating circumstance and that is very claim that the supreme court held in the us versus jefferson is not proper though the narrowing according to the court and lewis versus jeffers comes in the definition that is applied and in the jackson sufficiency review beyond that the  th amendment is satisfied and i would be happy to answer any questions the court me two lessons the st question i would have is what did you understand the supreme court treated these as separate inquiries and lewis versus jeffers certainly the court of criminal appeals was required to apply a narrow aggravator but it titian or believes that they did not been he was required to exhaust that claim and he did not and what say you to the argument that if the matter was not properly raised before it's either at the trial court level or on appeal that that is merely because of ineffective one second point because i thought that there was a good argument presented here on ineffective assistance of counsel relating broadly to the penalty phase of the trial there is an ineffective assistance d i believe you are your honor there is one ineffective assistance claim relating to victim sympathy type evidence and then there is one related to the mitigation but not to be especially  applied its narrowing aggravator here the court stated that the state must present evidence from which the jury could find the victim's death was preceded by either torture or serious physical abuse i cited six of its prior cases in which i the same definition stated that the facts tend to show that robbie andrews suffered serious physical abuse and once was conscious of the fatal attack for several minutes stated that evidence that the victim was conscious and aware of the attack support finding of torture and in the mandatory sentence review stated that they had bound the evidence sufficient to support this aggravating circumstance with his you understand the aggravator hack aggravat it correct that someone qualifies for the aggravator if it was conscious for some period of four minutes after being receiving the fatal blow and experienced some pain during that that's that's enough under state law that is enough under state law it's also enough under federal law and so let's compare a couple people like you say the murder shoots the victim not a not a great marksman not a particularly powerful weapon so low does not instantly kill the person loses blood loses consciousness suffers pain in the course of t and in that circumstance the murderer would be subject to the h a c aggravator could be sentenced to death is that correct that's correct but if the explain the rationale is it sort of an oklahoma bonus or what ward for being a good marksman you can't be executed if you're really good at killing  the rationale is that that is a principle basis on which to distinguish those murders which are deserving of the death penalty and those murders which are not that is that the victim suffers pain which certainly makes a murderer i think everybody would agree that makes the murder typical definition of torture or i didn't think it was until you said i thought i heard you say that but that's not an example of torture it's not me if i said i'm sorry i was mistaken your hon had never required that the period of fear earned certainty for the victim to suffer suffer mental anguish had to be of extended duration he said quote the court has made findings of cruelty in cases where that period was brief indeed  explaining the sorts of murder that would not be especially cruel the arizona supreme court has repeatedly referred to killings in which the us is not conscious and has explained that the victim of an especially cruel killing has to be contrast it with the individual had been interpreted by the arizona supreme court in a constitutionally proper way it didn't say that it was enough just that the person was a live person for a period of time required other components in that correct well they have disjunctive there you can be cruel it can be but as far as cruelty goes yes even the majority in the in the case of the supreme court in walton recognized with approval that the arizona supreme court for mental cruelty had only required that the victim is shown to have experienced fear and uncertainty as to his ultimate fate and what justice blackmun was saying and what the majority was rejecting is that that uncertainty needed to be of such a certain case is whether there was sufficient evidence to meet that construction and that circumstance they said jackson it isn't that what happened in that you know i respectfully turned out to be irrelevant to what that supreme court would decide but at that point only issue before the supreme court in this region with whether it's vision evidence to support the supreme court ruled that that was the only challenge that was properly before them however the petitioner was also arguing because the th circuit had also found the aggravating instance to be facially ok but that had gone gone on to say but it can't be applied to the facts of this case without losing its ability to distinguish murderers and the supreme court said we don't go there that's not what we do the question is only if it's if it's facially ok then jackson is the only question that we answer and we do not look at the facts of the case to determine whether because that's the function of the aggravating circumstance well that's certainly my reading of lewis versus jefferson and they had said the same thing in walton as well do we have more here than physical suffering we do we have mental cruelty as well your honor the o c c i rely on that as well on the sufficiency review i believe they did your honor they weren't as explicit as maybe i would have liked however they did talk about torture and they said evidence that the victim was which would be the mental cruelty evidence that the victim was conscious and aware of the attack supports a finding of torture many of the cases they cited  all of that yes your honor and in addition i would point this court to the rebel a case where it was a child abuse murder and there was not sufficient evidence that the child victim had consciously suffered on the day of the murder but the quarter  pales in this court both considered the months leading up to that where the victim had been abused and here we have nearly a month in which rob andrew was terrified and there are recordings of his phone calls with pridgin chael trying to get his life  policy changed because he correctly suspected that brenda enjoin petitioner had tried to kill him for that money and he was very frightened for his life i would like to briefly return to the idea that suffering must be of any sort of duration with that case versus count in that case again the supreme court talked about the fact that the tennessee supreme court in applying it torture mind aggravator had distinguished between instantaneous and non instantaneous deaths the court said with respect to the meaning of torture the supreme court held that the aggravator was not satisfied where the victim dies instantly but that it was where the un contradicted proof shows that the victim had defensive injuries to her arms and hands proving that there was time for her to realize what was happening to feel fear and to try to protect herself in the courts that accord cartwright approving torture or serious physical abuse so it's clear that the supreme court has a broad definition of torture serious physical abuse which does all or at least that they accept state courts who make the distinction between an instantaneous and a non instantaneous cruel i mean can you tell me of a person you know that was murdered that didn't feel pain initially in the lewis vs jeffers your honor where the defendant injected the victim with a heroin i believe it was heroin overdose and that's why the arizona supreme court in that case found no evidence of cruelty and affirmed on depravity of mind i'm sure he did what a therm depravity of mind but found no little as thirty seconds in the whole case if as little as thirty seconds of consciousness busy and fatal gunshot is enough to what is not of it that that's that picks up a whole universe of case and instantaneous death is not your honor and the supreme court as i said in both walton and in order to do not have a hack if the oklahoma law requires that the victim be conscious and either physically suffering or aware of the attack for it and does not impose  apply to every murder in fact send the simpson case is give us some examples of those twenty four cases or share one of them in the simpson case and the court reversed on one of the victims and  does not hesitate to reverse where that is the case and those cases where there is evidence of conscious physical suffering i would further point out that into labor versus california when the supreme court said that its vagueness review was deferential it also said that where it has reversed it has been because there are pejorative adjectives that describe the crime as a whole and oklahoma's aggravator certainly does not fall within that description they have specially heinous atrocious or cruel did and nationally and that's why it was reversed but now with the requirement of torture serious physical abuse it is not a pejorative at the serious physical abuse is it's pretty much the same thing in every case it's the it's the gun shot you know kind of depends by chance on whether it's just how much of a marksman the shooter was it doesn't seem to relate to anything any act on the part of the shooter but what it relates to your scene well in the supreme court rejected that argument in walton versus arizona where justice blackmun made it and he said he could have someone who does over kill and that can be an aggravating circumstance versus someone who doesn't use a force so that the victim lives so the supreme court has rejected that argument but i would further argue that the reason that it makes a principled distinction is as the suffering of the victim is something that nearly everyone would find to set a murder apart oh isn't there been a slide in the law because when i read these early cases the torture or the serious physical abuse has to precede the murder and other words it's something stop it and then there's all kinds of graphic cases where someone was physically abused and someone was tortured before they were ultimately killed and then somewhere along and i guess it's i think it's thompson versus gibson which is a case where a woman was horribly beaten stabbed everything else that penalty is overruled and th circuit because there was no evidence of conscious physical suffering wasn't good enough evidence so at that point you had it's to me it's almost like the whole thing switch you used to have to have conscious physical suffering period if you were going to go on and show torture serious physical abuse but now if you have conscious physical suffering you've shown torture or for serious bodily use physical abuse the that's seems do agree with man that the law has kind of leapt in that regard reading the early cases purses the ones we have now i would st like to know that the supreme court has held that the consistency with which a state court applies its aggravating circumstance is not a those are the only two cases of which i'm aware in which gave up i bet requirement cases before and since and have not well cheney certainly included something beyond conscious physical suffering well and in cheney there was insufficient evidence of conscious visible suffering they said at most a couple of seconds was was what the state could prove as far as the conscious physical suffering so i guess i am i missing something still following ma the oklahoma court of criminal appeals made it a point to narrow the definition correct correct and maybe as judge phillips indicated required the murder to be preceded by torture or serious physical abuse which may include infliction of great physical anguish or extreme mental cruelty now and there's a series of cases after that we're that's exactly what happened and it seems that you're shifting back narrow the supreme court said but i'm wanting to know what oklahoma is doing and it looks to me like they've gone from one end to maynard and then they went back and now they're coming back again and it's less and i shot you right between the eyes maybe maybe you wouldn't be dead right away maybe your day right away how do we know it's gotta be some measure and he can't just say well they they say that hack is fear so we can go back three or four weeks to see if if what was showed up here was really mean you can according to the rebel a case both from the quarter couple appeals and from this court you can look to the past yes also can look present correct yes and he lay dying on the floor of his garage right before thanksgiving many of his children and he must have been wondering where they were well shot by whom shot by either his wife or or her lover yes mean is that a correct interpretation of those cases i don't recall the facts in the book or your honor i do know that the court of criminal appeals previously for mental cruelty has required a alternatives in the aggregate or so i would have thought that that's how it was being interpreted and it doesn't seem like they're doing that now now we could say oh they're just being inconsistent you can view that we can also say looking at these cases yes and no i don't know the court of appeals has not ever applied except as i mentioned in cudjoe and hawkins any requirement to conscious physical suffering and so this court must presume under a t p a you can't make the presumption that would make their rulings unconstitutional by assuming that they must have been extending it to the other aggravator right counsel your time's expired we appreciate the argument