## F I L E D United States Court of Appeals Tenth Circuit 

### JAN 23 2003 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

OSBALDO TORRES,

Petitioner - Appellant,

v. No. 00-6334 MIKE MULLIN, Warden, Oklahoma State Penitentiary,

Respondent - Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

(D.C. NO. CIV-99-155-R)

Mark Henricksen (and Lanita Henricksen, with him onthe briefs), Henricksen & Henricksen Lawyers, Inc., El Reno, Oklahoma, for Pe titioner - Appellant. Jennifer B. Miller, Assistant Attorney General (andW. A. Drew Edmondson, Attorney General, with her on the brief), Oklahoma City, Oklahoma, for Respondent -Appellee.

Before KELLY , HENRY , and MURPHY , Circuit Judges.

KELLY , Circuit Judge.-2-

An Oklahoma jury convicted Osbaldo Torres of two co unts of first-degree murder with malice aforethought and one count of fi rst-degree burglary. Mr. Torres received a sentence of twenty years’ impriso nment on the burglary conviction and sentences of death on the two murderconvictions. The Oklahoma Court of Criminal Appeals (“OCCA”) affirmed his con victions and sentences.
See Torres v. State , 962 P.2d 3 (Okla. Crim. App. 1998). After exhausting his state post-conviction remedies , Mr. Torres filed a petition for habeas corpus pursuant to 28 U.S.C. § 2254. Mr. Torres’s petition asserted twenty-six grounds for relief. The distri ct court denied the petition, and Mr. Torres then sought to appeal to this court. He obtained a certificate of appealability on the following claims: (1) that the evidence is insufficient to support his convictions; (2) that the trial court e rred in instructing the jury on the elements of aiding and abetting; (3) that the prose cution engaged in misconduct that warrants a new trial or, in the alternative, anew sentencing proceeding; (4) that the prosecution destroyed potentially exculpat ory fingerprint samples; (5) that Mr. Torres’s death sentence violates the Eighth Ame ndment because the trial court’s instructions failed to direct the jury to g ive individualized consideration to Mr. Torres’s involvement in the homicides; and (6) that he was entitled to an1 We DENY Mr Torres’s Supplemental Request for an E xpanded

Certificate of Appealability and we also DENY his M otion to Hold This Case in Abeyance and to Permit Petitioner/Appellant’s Couns el to Present a Second Post Conviction Motion in the Oklahoma State Courts. -3- evidentiary hearing. Although Mr. Torres attempts to raise other claims on which a COA was not granted, we do not consider them. We affirm. 1

Background In July 1993, the District Attorney for Oklahoma Co unty, Oklahoma filed an information charging Mr. Torres and Jorge Ochoa with the murder of Maria Yanez and Francisco Morales and the burglary of Ms. Yanez’s and Mr. Morales’ home in Oklahoma City. The prosecution’s initial i nformation set forth alternative murder charges. First, the information charged each defendant with murdering Ms. Yanez and Mr. Morales with malice afo rethought, in violation of Okla. Stat. tit. 21, § 701.7(A). In the alternativ e, the information alleged that the defendants had committed felony murder, in violatio n of Okla. Stat. tit. 21, § 701.7(B). The initial information also alleged that the defendants had committed burglary in the first degree, in violation of Okla. Stat. tit. 21, § 1431. In October 1995, the prosecution filed an amended i nformation that omitted the felony murder charges. See State Ct. Rec. vol. II, at 338-42 (Second Amended Information, filed Oct. 5, 1995). The case proceeded to trial in the-4-

District Court for Oklahoma County, but the judge d eclared a mistrial after the jury was unable to reach a verdict. In February an d March 1996, the Oklahoma district court conducted a second trial. The jury convicted Mr. Torres and Mr. Ochoa of (1) two counts of first-degree murder withmalice aforethought and (2) one count of first-degree burglary. In its opinion in the direct appeal of Mr. Torres’s convictions, the OCCA set forth the following explanation of the evidence presented to the jury during the second trial: During the early morning hours [2:40 a.m.] of July

12, 1993, Francisco Morales and his wife, Maria Yan ez, were shot and killed in the bedroom of their Oklaho ma City home. The sound of gunfire woke Yanez’s daught er Christina, who was 14 years old in the summer of 19 93. Christina called 911 and told the operator that she believed her step-father, Morales, may have been firing the gun. After hanging up the telephone, she looked out her bedroom door. A light was on in the living room; Christina saw two men. One man was wearing a white t-shirt and the other man was wearing a black t-shi rt. Christina stated the man in the black t-shirt had s omething in his hand, but she did not know what it was. Chr istina initially denied knowing the two men, but eventuall y identified Ochoa as the man in the black t-shirt an d Torres as the man in the white t-shirt. The shooting also awakened Christina’s step-brother, Francisco, who was eleven years old i n the summer of 1993. Francisco saw the man in the blacktshirt shoot his father. He could not identify the gunman. The police quickly responded to Christina’s 911 call. While en route to the Yanez/Morales home, Of ficer Coats arrested Torres and Ochoa, who were walking together a short distance from the homicide. The m en-5- were sweating and nervous, and Coats claimed he obs erved blood on the clothing of the men. Subsequent tests revealed the presence of blood on Torres’ clothes. Shortly before the shootings, Torres and Ochoa parked a car at a friend’s house. A witness observe d one of the men take a gun from the trunk of the car and pu t it in his pants. The gun was different from the gun usedin the murders. The witness stated one of the men was Och oa. She could not identify the other man, but asserted the other man—and not Ochoa—put the gun in his pants. Another witness also testified that Ochoa and another man p arked the car at the friend’s house. This witness testif ied that Ochoa was the driver of the car. The witness also identified Torres as the man with Ochoa, although s he was somewhat inconsistent in her identification, and sh e stated the passenger was wearing a white t-shirt.
Torres , 962 P.2d at 8. The prosecution “proceeded under the theory that Torres aided and abetted in the commission of the crimes a nd that Ochoa was most likely the triggerman.” Torres , 962 P.2d at 15. After the jury convicted Mr. Torres and Mr. Ochoa, the prosecution presented evidence in support of the death penalty. As to Mr. Torres, the prosecution argued that there were two aggravating circumstances: (1) that it was probable that Mr. Torres would commit criminal acts of violence that would constitute a continuing threat to society and (2) t hat Mr. Torres knowingly created a great risk of death to more than one person. As to the former, the prosecution invoked the circumstances of the murders, Mr. Torre s’s membership in a local gang, and an unadjudicated burglary committed when Mr. Torres was a juvenile.2 AEDPA became effective on April 24, 1996. -6- In mitigation, the defense presented Mr. Torres’s p ersonal history and pleas of mercy from his family. As to Mr. Torres, the jury found the existence of b oth aggravating circumstances and imposed the death penalty for the murder convictions. Mr. Ochoa also received the death penalty. See Ochoa v. State , 963 P.2d 583 (Okla. Ct. Crim. App. 1998). As to the burglary convictio n, both Mr. Torres and Mr. Ochoa received sentences of twenty years’ imprisonm ent.

Discussion Because Mr. Torres filed his § 2254 habeas petitionin the federal district court on June 30, 1999, well after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), we c onsider Mr. Torres’s petition under the standards set forth in the provi sions of 28 U.S.C. § 2254(d) and (e), as amended by AEDPA. 2 See Moore v. Gibson , 195 F.3d 1152, 1160-61 (10th Cir. 1999). Section 2254(d) provides that anapplication for a writ of habeas corpus filed by a state prisoner:

shall not be granted with respect to any claim thatwas adjudicated on the merits in State court proceeding s unless the adjudication of the claim— (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly-7- established Federal law, as determined by the Supre me Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). Section 2254(e)(1) adds that, in federal habeas proceedings filed by state prisoners, determinations of factual issues by state courts are presumed correct. The petitioner has the burden of rebutting this presumption of correctness by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). In Williams v. Taylor , 529 U.S. 362 (2000), the Supreme Court provided guidance as to when a state court decision may be d eemed “contrary to” or “an unreasonable application of” established Supreme Co urt precedent pursuant to section 2254(d)(1). As to the former term, the Cou rt explained that a state court decision is “contrary to” the Court’s clearly estab lished precedent in two circumstances: (1) when “the state court applies a rule that contradicts the governing law set forth in [the Court’s] cases”; an d (2) when “the state court confronts a set of facts that are materially indist inguishable from a decision of [the] Court and nevertheless arrives at a result di fferent from” the result reached by the Supreme Court. Williams , 529 U.S. at 405-06. As to the latter term, the Court explained that a state court decision constit utes an unreasonable application of Supreme Court precedent if “the state court iden tifies the correct governing legal principle from [the] Court’s decisions but un reasonably applies that-8-

principle to the facts of the prisoner’s case.” Id

. at 413. Thus, “[u]nder § 2254(d)(1)’s “unreasonable application’ clause, . . . a federal habeas court may not issue the writ simply because that court conclu des in its independent judgment that the relevant state-court decision applied clea rly established federal law erroneously or incorrectly. Rather, that applicati on must also be unreasonable.” Id. at 411; see also Thomas v. Gibson , 218 F.3d 1213, 1219-20 (10th Cir. 2000) (discussing Williams ). I. Sufficiency of the Evidence Mr. Torres challenges the sufficiency of the eviden ce on two general grounds. First, as to his murder convictions, he argues that the prosecution failed to prove beyond a reasonable doubt that he intended to kill either Ms. Yanez or Mr. Morales. Second, Mr. Torres argues that, as to both the murder and burglary convictions, the evidence presented by the prosecut ion at trial is insufficient to prove beyond a reasonable doubt that he participate d in either crime. A. Standard of Review A challenge to the sufficiency of the evidence may be raised in a federal habeas corpus proceeding filed by a state prisoner pursuant to 28 U.S.C. § 2254(d). In such proceedings, the appropriate inqu iry is whether, after viewing the evidence in the light mo st favorable to the prosecution, anyrational trier of fact could have found the essent ial elements of the crime beyond a reasonable doubt. T his familiar standard gives full play to the responsibility of t he trier of fact fairly-9-

to resolve conflicts in the testimony, to weigh the evidence and to draw reasonable inferences from basic facts to ulti mate facts. Jackson v. Virginia , 443 U.S. 307, 319 (1979) (internal citations omitted). The inquiry is based upon the entire record and the rea soning process actually used by the trier of fact, known or not, is not considered. Id. at 319 n.13 (“The question of whether the evidence is constitutionally suffici ent is of course wholly unrelated to the question of how rationally the verdict was a ctually reached.”). The amendments to the habeas corpus statutes set fo rth in AEDPA have added an additional degree of deference to state co urts’ resolution of sufficiency of the evidence questions. See Valdez v. Ward , 219 F.3d 1222, 1237 (10th Cir. 2000) (noting that, if a state court has addressed a sufficiency of the evidence claim, the federal court’s review in a habeas proce eding is governed by § 2254(d)). However, in this circuit, there is some debate as to whether a claim challenging the sufficiency of the evidence under t he AEDPA should be treated as a question of law or as a question of fact. See Moore v. Gibson , 195 F.3d 1152, 1176-77 (10th Cir. 1999) (summarizing the split in the case law). In this instance, we conclude for several reasons that Mr. Torres’ challenge to the sufficiency of the evidence is properly view ed as a legal question. First, in advancing this argument, Mr. Torres does not conten d that the OCCA’s factual findings are erroneous. Instead he argues that the court’s ultimate conclusion—that the evidence is sufficient to suppo rt his murder and burglary3 Even though the OCCA did not cite Jackson , we note, as does the

respondent, that Oklahoma has adopted the Jacksonstandard for assessing the sufficiency of the evidence. See Aplee. Br. at 28 (citing Spuehler v. State , 709 P.2d 202, 203-04 (Okla. Ct. Crim. App. 1985)); cf. United States ex rel. Jordan v. Bosse , 41 F. Supp. 2d 812, 816 n.3 (N.D. Ill. 1999) (not ing that the state appellate court did not cite Jackson , but analyzing a habeas claim based on alleged insufficiency of the evidence by considering whethe r the state court’s decision constituted an unreasonable application of the Jack sonstandard). We therefore view the OCCA’s conclusion regarding the sufficienc y of the evidence as an application of Jackson

. -10- convictions— constitutes an unreasonable applicatio n of Jackson . See Aplt. Br.
at 51. 3 Moreover, the respondent has accepted this charac terization of the issue.
See Aplee. Br. at 26-31 (stating that the district cou rt “found [the OCCA’s] determination [that the evidence was sufficient] wa s not contrary to nor an unreasonable application of established law” and ar guing in support of that conclusion); cf. Mitchell v. Gibson , 262 F.3d 1036, 1050 n.6 (10th Cir. 2001) (noting that “[t]he state in this appeal views the matter as one of law for purposes of review under AEDPA and to the extent necessary w e do so as well”) (internal citation omitted). Finally, treating Mr. Torres’s sufficiency of th e evidence argument as raising a legal question comports with the approach of other circuits. See, e.g. , Wiggins v. Corcoran , 288 F.3d 629, 636 (4th Cir. 2002) (reviewing the grant of a habeas claim based on insufficiency of t he evidence and stating “we must decide for ourselves whether the Maryland Court of Appeals unreasonably applied clearly established federal law as determin ed by the Supreme Court”);-11-

Piaskowski v. Bett , 256 F.3d 687, 691-95 (7th Cir. 2001) (reviewing astate court decision to determine whether that court’s conclusi on that the evidence was sufficient constituted an unreasonable application of Jackson ). B. Oklahoma Law Regarding Malice Murder and Aiding and Abetting In considering the OCCA’s application of the Jackson sufficiency of the evidence standard, we apply Oklahoma law regarding the substantive elements of the offense. See Wingfield v. Massie , 122 F.3d 1329, 1332-34 (10th Cir. 1997) (applying Oklahoma law in habeas action challenging the sufficiency of the evidence); Sanders/Miller v. Logan , 710 F.2d 645, 650-54 (10th Cir. 1983) (same). In the state court proceedings at issue he re, Mr. Torres was convicted of two counts of murder in the first degree with malic e aforethought, violations of Okla. Stat. tit. 21, § 701.7(A). Section 701.7(A) provides:

A person commits murder in the first degree when th at person unlawfully and with malice aforethought caus es the death of another human being. Malice is that delibe rate intention unlawfully to take away the life of a hum an being, which is manifested by external circumstance s capable of proof. Oklahoma law also provides that persons who aid andabet in the commission of a crime may be convicted as principals. See Okla. Stat. tit. 21, § 172 (stating that persons “concerned in the commission of crime, . . . whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, are principals”).-12-

As we noted in Wingfield , the OCCA has held that in order to convict an aider and abetter as a principal in a malice murderprosecution under Okla. Stat. tit. 21, § 701.7A, the prosecution must prove the f ollowing elements: (1) that the defendant personally intended the death of the vict im; and (2) that the defendant aided and abetted with full knowledge of the perpetrator’s intent. Wingfield , 122 F.3d at 1332 (citing Johnson v. State , 928 P.2d 309, 315 (Okla. Ct. Crim. App. 1996)); see also Torres , 962 P.2d at 15 (stating these same elements). Additionally, under Oklahoma law, a defendant charg ed under an aiding and abetting theory may only be convicted if he or she engages in “‘acts, words or gestures encouraging the commission of the offense, either before or at the time of the offense.’” Wingfield , 122 F.3d at 1332 (quoting VanWoundenberg v. State , 720 P.2d 328, 333 (Okla. Ct. Crim. App. 1986)). Mo reover, “‘mere mental assent to or acquiescence in the commission of a crime by one who did not procure or advise its perpetration, who takes no part therein, gives no counsel and utters no word of encouragement to the perpetrator, however w rong morally, does not in law constitute such person a participant in the crime.’” Id. (quoting Turner v.
State , 477 P.2d 76, 83 (Okla. Ct. Crim. App. 1970)). St ill, “only slight participation is needed to change a person’s status from mere spectator into an aider and abetter.” Spears v. State , 900 P.2d 431, 438 (Okla. Ct. Crim. App. 1995).-13-

Applying these precepts to challenges by habeas pet itioners, this circuit has reached different conclusions as to whether the evi dence supported a rational juror’s inference that the petitioner intended the death of the victims. The different conclusions may be explained by different facts. In Wingfield , 122 F.3d at 1333-34, we concluded that there was sufficient evidence from which a reasonable juror could have inferred that the defen dant personally intended the death of the victim. We relied upon evidence tendi ng to show that the defendant had stated an intent to kill the victim, the defend ant directed the victim to the killer, and the defendant showed no remorse and hel ped dispose of the victim’s body. Id. at 1333. Therefore, we reversed the federal distr ict court’s grant of the writ. In contrast, in Sanders/Miller , 710 F.2d at 652-54, we concluded that the habeas petitioner was entitled to relief and thus r eversed the district court’s denial of a habeas petition, reasoning that “the evidence supports no more than the conclusion that the defendant aided and abetted a r obbery, knowing that [the robber] would commit that offense.” Id. at 653. There was no evidence in the record that the defendant knew that the robber had a gun on the night of the robbery or owned a gun. Id. Further, the evidence indicated that the defendan t expressed shock when she learned the robber had sho t the victim and had to be calmed before fleeing. Id. at 653-54. We have also offered the following guideposts:-14- Although “[t]he meaning of the word ‘intent’ in the criminal law has always been rather obscure,” there are a few guideposts we can rely upon in our present inqu iry. First, a jury is permitted to draw inferences of su bjective intent from a defendant’s objective acts. Thus, ev en when a defendant, as here, denies having the requisite i ntent, a jury may disbelieve the defendant “if [the defendan t’s] words and acts in the light of all the circumstance s make [the defendant’s] explanation seem improbable.” Se cond, a jury is permitted to find that a defendant intend s those consequences which he announces a desire to accomplis h. Wingfield , 122 F.3d at 1333 (quoting 1 Wayne R. LaFave & Aus tin W. Scott, Jr., Substantive Criminal Law § 3.5, at 302, 318 (1986) (other internal citations omitted)). C. Evidence of Mr. Torres’s Intent Mr. Torres argues that, under the Oklahoma law conc erning the elements of first degree malice murder and aiding and abetting, the prosecution’s evidence is insufficient to establish that he intended the death of Ms. Yanez and Mr. Morales. According to Mr. Torres, “not one single witness co uld testify to a single action of [Mr. Torres] which resulted in the death of the victims, either as perpetrator, or as aider and abettor.” Aplt. Br. at 57. Mr. Torre s notes that, although the evidence arguably supports the inference that his c odefendant Mr. Ochoa shot the victims, the prosecution identified no evidence that Mr. Torres shared the intent to kill the victims or that Mr. Torres aided and ab etted Mr. Ochoa in the murders.
See id. at 51-60.-15-

In rejecting that argument on direct appeal, the OC CA set forth the following evidence supporting the prosecution’s the ory:

Torres and Ochoa parked a car a few blocks from the Yanez/Morales home shortly before the murders. One witness identified Ochoa as one of the men in the c ar. She could not identify the other man but stated that th at other man took a gun from the trunk of the car and put th e gun in his waist band. The gun was not a Tech-9, which was the gun used in the killings. Christina Yanez test ified that after hearing a number of gunshots and after she ca lled 911, she looked out into the living room and saw To rres and Ochoa standing together. Christina testified t hat Ochoa was holding something in his hand, but she co uld not identify what it was. Torres and Ochoa were ta lking and moving back and forth. Both men were arrested together shortly after the killings and only a few blocks away from the killings. Torres had blood on his cl othing which was consistent with his blood, Ochoa’s blood and victim Morales’ blood. A footprint consistent withTorres’ footprint was found a short distance from the Yanez/Morales home. The front door of the Yanez/Morales house looked like it had been kicked in.
Torres , 962 P.2d at 15-16. From that evidence, the OCCA stated, the following inferences could be drawn by a rational juror:

Obviously, Torres illegally entered the Yanez/Moral es home with Ochoa. Torres was more than merely prese nt at the crime scene. The circumstantial evidence supports a finding of intent, particularly given the evidenc e that Torres had a gun with him prior to the killings and that he illegally entered the Yanez/Morales home.-16-

Id. at 16. The OCCA thus concluded that the evidence supported the inference that Mr. Torres intended the death of Ms. Yanez and Mr. Morales, and the court therefore rejected Mr. Torres’ challenge to the suf ficiency of the evidence. In this appeal, the respondent contends that this anal ysis was not an unreasonable application of established law. See Aplee. Br. at 26-31. In considering the OCCA’s analysis, we begin with the two “guideposts” for assessing evidence of intent that we identified in Wingfield , 122 F.3d at 1333. As we stated there, a jury may infer intent from Mr . Torres’ objective acts and may also infer that a defendant intended “the conse quences which he announce[ed] a desire to accomplish.” Id. Consideration of the second guidepost is straightfo rward: unlike the record in Wingfield and Johnson v. State , 928 P.2d 309, 315 (Okla. Ct. Crim. App. 1996), the record here contains no evidence that Mr . Torres expressed a desire to injure or kill the victims. See Wingfield , 122 F.3d at 1333. Although the prosecution sought to introduce evidence of Mr. Torres’ gang affiliation, thereby suggesting that the killings were gang-related, the trial court granted a pretrial motion in limine excluding this evidence from the g uilt phase. Thus, the jury had no evidence that Mr. Torres expressed a desire to h arm the victims. As to the other guidepost we identified in Wingfield —the aider and abettor’s objective acts—we read the OCCA’s analysi s as concluding that a4 Our review of Christina Yanez’s testimony indicat es that she reported:

(1) seeing the two men “moving back and forth I gue ss to the door and back” and (2) observing them whispering to each other, but th at she could not hear what they were saying. Rec. Tr. Trans. vol. III, at 238-39. -17- rational juror could have concluded beyond a reason able doubt that Mr. Torres engaged in the following conduct: (1) accompanied b y Mr. Ochoa, exited a parked car a few blocks from the Yanez/Morales home shortl y before the murders; (2) removed a gun (though not the Tech 9 gun used in th e murders) from the trunk of the car and put it in his waist band; (3) accompani ed by Mr. Ochoa, broke into the Yanez/Morales residence at 2:40 a.m.; (4) after the shootings, talked to Mr. Ochoa and moved back and forth in the house; 4 and (5) shortly after the killings, left the Yanez/Morales residence accompanied by Mr. Ochoa and was arrested only a few blocks away from the site of the murders

. The OCCA also referred to certain items of physical evidence. Mr. Torres had blood on his clothing which was consistent withhis blood, Mr. Ochoa’s blood, and the victim Mr. Morales’s blood. Also, afootprint consistent with Mr. Torres’s footprint was found a short distance from the Yanez/Morales home. See
Torres , 962 P.2d at 15-16. This evidence is susceptible to interpretation. On the one hand, as the prosecution has vigorously argued, one could view this evidence as indicating that Mr. Torres and Mr. Ochoa jointly formulated a plan to murder Ms. Yanez and Mr.-18-

Morales. Alternatively, one could conclude that Mr . Torres and Mr. Ochoa jointly planned to burglarize the residence but that, once they entered the house, Mr. Ochoa acted impulsively by shooting the victims, th ough this theory is somewhat belied by the forensic pathologist’s testimony thatMr. Morales and Ms. Yanez were each shot at least nine times. Rec. Tr. Trans . vol. VII, at 132, 136. One could also conclude that Mr. Torres and Mr. Ochoa h ad different motives, with Mr. Torres intending a burglary while Mr. Ochoa, un beknownst to Mr. Torres, intended to kill Ms. Yanez and/or Mr. Morales. Under Jackson and the Oklahoma law regarding malice murder and aiding and abetting , the prosecution did not have the burden of proving that its suggested scenario—a joint plan to murder—was the only possible alternative. However the prosecution did have the burden of presenting evidence from which a rational juror could conclude—beyond a reasonable doubt—that Mr. Torres had the requisite intent to kill the victims. Notwithstanding the lack of evidence on an announce d intent by Mr. Torres to kill the victims, our review of the record does suggest that a rational juror certainly could conclude that Mr. Torres had the requisite intent to kill. At 2:40 a.m., Mr. Torres accompanied Mr. Ochoa, who was arm ed with a semiautomatic weapon, to the residence. Mr. Torres also was arme d with a weapon and entered through a door that had been kicked down, all of wh ich suggests anticipation of a5 After the murders, the police officers discovered a wallet containing $300

in cash in the waistband of Mr. Morales’ shorts andjewelry on the body of Ms. Yanez. All that was taken from the residence was apurse, even though Mr. Ochoa and Mr. Torres lingered in the residence afte r the killings and thus could have taken more property (and probably would have) if their only intent was to burglarize the residence. -19- confrontation. The victims were shot repeatedly, b etween nine and twelve times, with seven of the shots fired at each victim being fatal. Rec. Tr. Tran. vol. III at 133, 136. Although there was time to rob the victi ms after the homicides, Mr. Torres (and Mr. Ochoa) walked back and forth in the house. Ms. Yanez’s purse was taken, but money and personal property were found on the victi ms, suggesting an intent to kill, rather than merely to rob. 5 Mr. Torres and Mr. Ochoa conversed in whispers after the murders, rather than indicating surprise or taking more property. Also, Mr. Torres had blood on his shirt and was wel l acquainted with Mr. Ochoa. D. Application of Jackson As is apparent from the foregoing, we cannot conclu de that the OCCA’s application of Jackson v. Virginiawas objectively unreasonable. See Bell v.
Cone , 122 S. Ct. 1843, 1850 (2002) (a state court’s unr easonable application of federal law must be objectively unreasonable, not m erely incorrect); Williams , 529 U.S. at 412. Mr. Torres’ challenge is directed at the reasoning that led the OCCA to find sufficient evidence to support his mur der convictions under the-20-

Jackson standard. Although a state court’s reasoning does matter, ultimately, it is the reasonableness of the outcome that is paramount. As stated by the Second Circuit: Although sound reasoning will enhance the likelihoo d that a state court’s ruling will be determined to be a “reasonab le application” of Supreme Court law, deficient reasoning will not pre clude AEDPA deference, at least in the absence of an analysis s o flawed as to undermine confidence that the constitutional claim has been fairly adjudicated. Cruz v. Miller , 255 F.3d 77, 87 (2d Cir. 2001) (citations omitted ). The OCCA reviewed the evidence presented by the prosecution, see Torres , 962 P.2d at 15-16, and found it sufficient. Althou gh our discussion of intent includes additional evidence contained in the recor d, that in no way diminishes the deference we pay to the OCCA’s result–after all , what matters is that the evidence support the OCCA’s result. In a footnote, the OCCA also rejected Mr. Torres’ argument that the facts of his case were an alogous to two cases in which the evidence of intent to kill the victim was insufficient. See id . at 16 n. 40 (citing Sanders/Miller , 710 F.2d at 646-47 (10th Cir. 1983), and Anderson v.
State , 91 P.2d 794 (Okla. Ct. Crim. App. 1939), and stat ing that “in [those cases] the courts found there was no evidence to support p remeditated design to kill”). The OCCA then stated: “Here, [Mr.] Torres’ actions can support a finding of intent as discussed in Johnson v. State , 928 P.2d 309, 315 (Okla Ct. Crim. App. 1996).”-21-

Johnson contains ample evidence of both announced intentio ns and objective acts demonstrating an intent to kill that we discussed in Wingfield . See 122 F.3d at 1333. As noted, this case does not contain evidence of announced intentions by Mr. Torres to kill the victims. But we do not think that the OCCA meant to support its result in this case by analogizing to the facts of Johnson

. Rather, having set forth the evidence, it is more p lausible that the OCCA intended to incorporate the fuller exposition of the requisite intent contained in Johnson

. Regardless, even if the citation of Johnson was ambitious, we are concerned with the outcome of the sufficiency issue as to intent–a nd that outcome is not an unreasonable application of federal law. E. Sufficiency of the Evidence Supporting the Burg lary Conviction Mr. Torres also advances a more general challenge: he argues that the evidence is insufficient to allow a reasonable juro r to conclude beyond a reasonable doubt that he broke into the Yanez/Moral es home unlawfully and that, as a result, his petition should be granted as to b oth his murder and his burglary convictions. The State had to prove “(1) breaking, (2) entering, (3) a dwelling, (4) of another, (5) in which a human is present, (6 ) with the intent to commit some crime therein.” See Calhoun v. State , 820 P.2d 819, 821 (Okla. Ct. Crim. App. 1991); Okla. Stat., tit. 21, § 1431 (first deg ree burglary). In support of his argument, Mr. Torres observes that one of the witne sses who observed the two-22-

men getting out of a car near the residence on the morning of the murders was unable to identify either man. He adds that, durin g her trial testimony, another witness mistook Mr. Torres for Mr. Ochoa. Again, the OCCA’s analysis did not constitute an un reasonable application of Jackson . Christina Yanez identified Mr. Torres as one of the men she saw in the residence at the time of the murders. Even tho ugh Ms. Yanez did not identify the two men when she was first interrogated by Oklahoma City police officers, the jury was entitled to find her identification te stimony at trial to be credible, particularly in light of the fear and trauma that s he may have experienced in the period immediately following the murders. In lightof Ms. Yanez’s testimony, and all the other evidence in the record, the OCCA’ s conclusion that the evidence was sufficient to support Mr. Torres’s burglary conviction was not an unreasonable application of Jackson

. II. Jury Instructions The next issue is whether the jury was properly ins tructed that, in order to find Mr. Torres guilty of those charges, the prosec ution was required to prove that Mr. Torres (1) “personally intended the death of th e victim and (2) aided and abetted with full knowledge of the intent of the perpetrator.” Torres , 962 P.2d at
16.-23-

The jury was instructed on the law of aiding and ab etting. Instruction 11 informed the jury that “[a] person concerned in the commission of a crime as a principal is one who directly and actively commits the acts constituting the offense, knowingly and with criminal intent aids an d abets in the commission of the offense, or who advises and encourages the comm ission of the offense.” St. Ct. Rec. vol. II, at 513 (instr. no. 11). The foll owing instruction added:

One who does not actively commit the offense, but w ho aids, promotes, or encourages its commission, eithe r by act or counsel or both, is not deemed to be a principal to the crime unless he did what he did knowingly and with criminal intent. To aid or abet another in the com mission of a crime implies a consciousness of guilt in inst igating, encouraging, promoting, or aiding in the commissionof that criminal offense. Id. at 514 (instr. no. 12). The jury instructions also set forth the elements o f malice murder. Instruction 4 informed the jury that “[n]o person m ay be convicted of such Murder in the First Degree,” unless the state prove s: (1) “the death of a human”; (2) “the death was unlawful”; (3) “the death was ca used by the defendants”; and (4) “the death was caused with malice aforethought.” Id. at 506. Instruction 5 proceeded to define malice aforethought as “deliber ate intention to take away the life of a human being” and adds that malice aforeth ought does not mean “hatred, spite or ill-will.” Id. at 507. Instruction 6 again provided that “[n]o p erson may be convicted of Murder in the First Degree unless h is conduct caused the death of-24-

the person allegedly killed.” Id. at 508. Finally, the jury was instructed that it must consider the case of each defendant separately. Id. at 515 (instr. no. 13). The OCCA concluded that, when read as a whole, the instructions properly required a finding that Mr. Torres acted with the i ntent to kill the victims. In particular, the OCCA held that its earlier decision in Johnson v. State , 928 P.2d 309, 315-16 (Okla. Ct. Crim. App. 1996), was contro lling: Like Torres, the appellant in Johnson complained that the trial court erred in using the Oklahoma Uniform Instructions onaiding and abetting in a first degree malice murder case. Lik e Torres, Johnson argued the instructions allowed the jury to replace a general intent with a specific intent to kill thus lessening or changin g the State’s burden of proof. The Johnson Court rejected this argument finding that these instructions in conjunction with the instructions on fi rst degree murder properly set out Oklahoma law and channeled the jury’s discretion.
Torres , 968 P.2d at 16. Similarly, the district court re lying upon Instructions 4, 5, 11 and 12 concluded that the jury was instructed ad equately on the intent required for malice murder, and rejected the argument that t he instructions were deficient because they did not adequately distinguish betweenmalice murder and first degree burglary. We have addressed similar challen ges before and conclude that the OCCA’s resolution was neither contrary to, nor an unreasonable application of federal law, particularly given our deferential rev iew of jury instructions on collateral attack. See Cupp v. Naughten , 414, U.S. 141, 146 (1973); Cannon v. Gibson , 259 F.3d 1253, 1269-71 (10th Cir. 2001); Johnson v. Gibson , 254 F.3d 1155, 1162-63 (10th Cir. 2001).-25-

Although Cannon and Johnson involved single-defendant trials, both involved another defendant whom the defendant was a ccused of aiding and abetting, so it is difficult to see how the danger of imputed intent is any greater in this case. In any event, we are not persuaded thatthe instructions when read reasonably and as a whole, would allow the jury to impute a finding of malice aforethought from one defendant to another, from Mr . Ochoa to Mr. Torres. As we have noted, the jury instructions concerning the requirements of malice murder were prefaced with “no person,” i.e. singular, lang uage, and the jury was instructed that it must consider each defendant’s c ase separately. III. Prosecutorial Misconduct Claim Mr. Torres contends that the prosecution engaged inmisconduct that deprived him of a fair trial. In support of his cl aim, Mr. Torres alleges that the prosecution engaged in the following improprieties: (1) attempted to impeach a witness with testimony taken in a prior trial in wh ich the jury was unable to reach a verdict; (2) alluded to Mr. Torres’s alleged gang affiliation; (3) made various improper comments during the trial and in closing argument, see, e.g. , Torres , 962 P.2d at 17-18 (discussing some of the comments) and (4) pressured a witness to testify falsely. We begin with Mr. Torres’ argument that his specifi c constitutional right to the presumption of innocence was violated by the pr osecutor’s rhetorical question-26-

asking “Do you think we’re trying to prosecute some body that’s innocent?”
Torres , 962 P.2d at 17. He also contends that the prosec utor’s rhetorical question about lack of any evidence indicating remorse infri nged upon the privilege against self-incrimination. Rec. Tr. Trans. vol. X, at 296. Where prosecutori al misconduct directly affects a specific constitution al right such as the presumption of innocence or privilege against self-incriminatio n, a habeas petitioner need not establish that the entire trial was rendered unfair , but rather that the constitutional guarantee was so prejudiced that it effectively amo unted to a denial of that right.
See Paxton v. Ward , 199 F.3d 1197, 1217-18 (10th Cir. 1999) (showing that the misconduct had a “substantial prejudicial effect” o n the right warranted relief); Mahorney v. Wallman , 917 F.2d 469, 473 (10th Cir. 1990). The OCCA recognized that the remark quoted above “impermissi bly treaded on Torres’ presumption of innocence,” but held that this comme nt “did not affect the verdict and relief is not warranted.” Torres , 962 P.2d at 17-18. Though the quoted rhetorical question was improper, we agree that it did not so prejudice the presumption of innocence as to result in a denial o f that right and the prosecutor’s comment on the lack of evidence of remorse hardly r esulted in a denial of the privilege against self-incrimination. We have also considered the remaining catalogue of allegedly improper comments and actions by the prosecutor urged by Mr. Torres on appeal in support6 That exception provides:

Our holding does not foreclose the possibility thatin an unusual case, a deliberate and especially egregious error of the trial type, or one that is combined with a pattern of prosecutorial mi sconduct, might so infect the integrity of the proceeding as to warran t the grant of habeas relief, even if it did not substantially inf luence the jury’s verdict. We, of course, are not presented with such a situation here. (continued...) -27- of the first three grounds. In order to be entitle d to relief on a claim that prosecutorial misconduct has violated his right to due process, a habeas petitioner must establish that the prosecutor’s misconduct was “of sufficient significance to result in the denial of the defendant’s right to a fair trial.” Greer v. Miller , 483 U.S. 756, 765 (1987) (internal quotation marks omitted); see also Donnelly v. De Christoforo , 416 U.S. 637, 643 (1974). The offending remark o r action must be placed in the context of the whole trial, and not viewed in isolation. Greer , 483 U.S. at 765-66. Considered collectively and in the context of the trial as a whole, the remaining remarks and conduct in the remaining grounds did not render Mr. Torres’ trial fundamentally unfair. Mr. Torres argues that even if the prosecutorial m isconduct did not have a “substantial and injurious effect or influence in d etermining the jury’s verdict” and did not result in “actual prejudice,” Brecht v. Abrahamson , 507 U.S. 619, 637 (1993), he is still entitled to relief based upon t he “footnote-nine exception” to harmless error in Brecht , 507 U.S. at 638 n.9. 6 We recently discussed the6 (...continued)

Brecht , 507 U.S. at 638 n.9 (citation omitted).

7In this affidavit, Ms. Calderon explains that she testified at trial that, on the morning of the murders, she saw the man accompanying Mr. Ochoa “put a small gun in his belt.” Rec. doc. 15, App. 3 (Appe ndix to Petition for a Writ of Habeas Corpus). She adds that “[i]n fact I did notand do not now recognize that object to have been a gun of any kind. It was assu redly not a Tech-9, but I cannot in fact say that it was a gun at all.” According t o Ms. Calderon’s affidavit, she testified that she saw a gun only because an Assist ant District Attorney who interviewed her before the trial told her that, in a prior interview, Ms. Calderon had stated that she had seen a gun and that she “wo uld go to jail if I did not say this.” Id. -28- parameters of this very narrow exception in Duckett v. Mullin , 306 F.3d 982, 992- 93 (10th Cir. 2002). Although the same prosecutor was involved in this case as in Duckett , we cannot conclude that the prosecutorial miscond uct complained of so infected the public integrity of the proceedings a s to warrant habeas relief. As to the fourth instance of alleged misconduct—th at the prosecution pressured a witness to testify falsely, we agree wi th the district court that the claim is procedurally barred. Mr. Torres’ argumentis based on an affidavit of Maria Calderon. 7The OCCA determined that the claims concerning Ms . Calderon could have been raised on direct appeal, but were n ot, and they did not support a conclusion that the outcome of the trial would have been different or that the defendant was factually innocent. Rec. vol. I, doc . 15, app. 2, at 4 n.13.8 The OCCA did not issue its opinion in the direct appeal until June 30,

1998, more than a year after Ms. Calderon signed th is affidavit. -29- Our review of the record indicates that Ms. Caldero n’s affidavit was signed on April 10, 1997, during the pendency of Mr. Torres’s direct appeal. 8 Thus, the district court properly concluded that the claim ar ising out of Ms. Calderon’s affidavit “could have been but was not raised on di rect appeal.” Rec. vol. I, doc. 27, at 18 (District Court Mem. Op. and Order, filed Aug. 23, 2000). As a result, Mr. Torres is not entitled to raise this claim unle ss he can show either (a) cause for the procedural default and resulting prejudice or (b) that a fundamental miscarriage of justice will result if the court does not consider the claim. See Coleman v. Thompson , 501 U.S. 722, 749-50 (1991). We agree with the district court that Mr. Torres ha s failed to make this showing. In this regard, we recognize that Ms. Cal deron’s affidavit constitutes a modification of her trial testimony at the first an d second trials that an unidentified individual she saw with Mr. Ochoa on the morning of the murders put a small gun in his belt. She now cannot identi fy the object. At both trials, however, Ms. Calderon’s somewhat inconsistent testi mony about the gun, its characteristics and the origins of that testimony w ere subject to adequate crossexamination and impeachment and the jury was left to sort it out. Rec. vol. I,-30-

doc. 15, app. 17, at 40-41, 46-47, 52-53; Tr. Tran s. vol. III at 215-16; see also Tapia v. Tansy , 926 F.2d 1554, 1563 (10th Cir. 1991). [A] conviction obtained by the knowing use of pe rjured testimony is fundamentally unfair, and must be set aside if ther e is any reasonable likelihood that the false testimony could have affected the ju dgment of the jury.” United States v. Agurs , 427 U.S. 97, 103 (1976). Mr. Torres has failed t o establish that the prosecutor knowingly presented false testimony at the second trial, let alone that the testimony was false. See Van Woundenberg v. Gibson , 211 F.3d 560, 569 (10th Cir. 2000); Romano v. Gibson , 239 F.3d 1156, 1175 (10th Cir. 2001). On the latter point, Ms. Calderon’s affidavit does notcontradict the substantial remainder of her testimony, its corroboration, or t he other facts of the crime. The gun in question was not the murder weapon. Mr. Torres accompanied Mr. Ochoa in breaking down a locked residential door at 2:40 a.m., while Mr. Ochoa was armed with a semiautomatic weapon. The victims wer e fired upon repeatedly. Rather than leaving promptly, Mr. Torres and Mr. Oc hoa remained in the home, yet only a purse was taken. With or without the te stimony about the precise nature of the object Mr. Torres placed in his belt, we conclude that Mr. Torres cannot demonstrate prejudice as there is no reasonable likelihood that the testimony on this comparatively small point could h ave affected the judgment of the jury when considered against the overwhelming e vidence of guilt.-31- IV. Destruction of Evidence Claim Mr. Torres argues that the prosecution violated his due process rights by destroying latent fingerprints obtained at the Yane z/Morales residence after the murders. Here, Mr. Torres focuses on the trial tes timony of Oklahoma City Police Department Investigator Charles Goforth. Mr. Goforth testified that he had obtained some latent fingerprints at the residence. However, Mr. Goforth further explained that these prints were “smears” and thus were of no evidentiary value. Rec. Tr. Trans. vol. VI, at 147. As a result, he destroyed them. In support of his argument, Mr. Torres focuses on M r. Goforth’s statement that some of the latent fingerprints that he destro yed contained faint ridges and that a single ridge could contain a single point of dissimilarity that would allow a fingerprint expert to exclude an individual as havi ng left that print. Mr. Goforth also admitted that he never attempted a comparison between the prints he obtained and the prints of the residents of the hou se, the victims, or the defendants. As noted by the district court and the OCCA, the de struction of potentially useful evidence by the police does not constitute adue process violation unless the petitioner can show that the destruction of evi dence was accomplished in bad faith. See Arizona v. Youngblood , 488 U.S. 51, 58 (1988). Here, the OCCA’s conclusion that Mr. Torres failed to establish bad faith, see Torres , 962 P.2d at-32-

13, was not unreasonable. Moreover, as the distric t court observed, Mr. Torres also failed to establish that the fingerprint evide nce was even potentially exculpatory: Simply because a point of dissimilarity on ridges m ight

show that a fingerprint was not [Mr. Torres’s] woul d not make the exculpatory value of a fingerprint smudge apparent given that several people lived in the vic tims’ home and anyone who visited the home may also have left his or her fingerprints on objects in the home

. Rec. vol. I, doc. 27, at 14-15 (District Ct. Mem. O p. and Order, filed Aug. 23, 2000). Accordingly, Mr. Torres is not entitled to relief o n his due process claim arising out of the destruction of latent fingerprin ts. V. Eighth Amendment Claim Mr. Torres argues that his death sentence violates the Eighth Amendment because the trial court’s instructions failed to di rect the jury to give individualized consideration to Mr. Torres’s involv ement in the homicides. The Eighth Amendment does not permit imposition of a de ath sentence upon a defendant who did not “himself kill, attempt to kil l, or intend that a killing take place or that lethal force be employed,” Enmund v. Florida 458 U.S. 782, 797 (1982), or unless that defendant was a major partic ipant in the underlying felony and acted with a “reckless indifference to human life,” Tison v. Arizona , 481 U.S. 137, 158 (1987) . This case does not involve felony murder--the O klahoma-33-

County District Attorney’s Office dismissed the fel ony murder charges against Mr. Torres, and tried him on malice murder counts. Having concluded that the jury instructions adequately instructed the jury onthese counts, we must conclude that the OCCA’s similar rejection of this Eighth Am endment claim was not an unreasonable application of federal law. See Torres , 962 P.2d at 20-21; see also Cannon v. Gibson , 259 F.3d 1253, 1279 n.26 (10th Cir. 2001). VI. Evidentiary Hearing Because Mr. Torres’ claims are capable of resolutio n on the record, the district court did not abuse its discretion in deny ing him an evidentiary hearing.
See Miller v. Champion , 161 F.3d 1249, 1252-53 (10th Cir. 1998).
AFFIRMED.No. 00-6334, Torres v. Mullin

HENRY , Circuit Judge, concurring in part and dissenting in part, I agree with the majority that the evidence is suff icient to support Mr. Torres’s burglary conviction and that Mr. Torres is not entitled to habeas relief on his claims for prosecutorial misconduct and destruc tion of evidence. As to Mr. Torres’s challenge to the sufficiency of the evidence supporting his murder convictions, I would reach the same resu lt as the majority—that Mr. Torres is not entitled to habeas relief—but I woulddo so for a different reason. Unlike the majority, I do not believe that the evid ence is sufficient to support Mr. Torres’s murder convictions. However, I cannot con clude that the Oklahoma Court of Criminal Appeals’ decision to the contraryconstitutes an unreasonable application of federal law such that Mr. Torres is entitled to habeas relief. In contrast, as to Mr. Torres’s challenge to the ju ry instructions, I conclude that he is entitled to habeas relief. In my view, the jury was not properly informed that it was required to find that Mr. Torr es intended to kill the victims, as required by Oklahoma law. The Court of Criminal Appeals’ rejection of this claim constitutes an unreasonable application of fe deral law. I would hold that, as to the murder convictions, Mr. Torres is entitle d to habeas relief on that ground, and I would allow the state of Oklahoma to retry him before a properly instructed jury.-2- A. Sufficiency of the Evidence The majority concludes that “the record does sugges t that a rational juror certainly could conclude that Mr. Torres had the re quisite intent to kill.” Op. at 18. In support of that conclusion, the majority re lies on the following evidence: (1) Mr. Torres and Mr. Ochoa were seen carrying gun s near the murder scene; (2) the door of the Yanez/Morales residence had been ki cked down; (3) the children of the murder victims identified Mr. Torres and Mr. Ochoa as the two men who broke into the residence; (4) the victims were shotrepeatedly; (5) “[a]lthough there was time to rob the victims after the homicid es, Mr. Torres (and Mr. Ochoa) walked back and forth in the house;” op. at 19; (6) “Ms. Yanez’s purse was taken, but money and personal property were found on the v ictims, suggesting an intent to kill, rather than merely to rob,” id. ; (7) “Mr. Torres and Mr. Ochoa conversed in whispers after the murders, rather than indicati ng surprise or taking more property;” id. ; (8) when observed by police after the murders, Mr . Torres had blood on his shirt; (9) Mr. Torres was “well acquainted” with Mr. Ochoa. Id. Although I agree that this evidence provides support for the prosecution’s contention that Mr. Torres intended to kill the vic tims, I do not believe that this evidence allows a rational juror to “reach a subjective state of near certitude,” see Jackson v. Virginia , 443 U.S. at 307, 315 (1979) (defining the beyond- areasonable-doubt standard), on that issue.1 See, e.g , United States v. Randolph , 93 F.3d 656, 664 (9th Cir. 1996)

(vacating conviction under the federal carjacking s tatute, 18 U.S.C. § 2119, and concluding that “brandishing a semiautomatic weapon , without more, does not support an inference of . . . the specific intent t o kill or to inflict serious bodily harm”), abrogated on other grounds by Holloway v. United States , 526 U.S. 2 (1999); United States v. Andrews , 75 F.3d 552, 555 (9th Cir. 1996) (reversing a conviction for aiding and abetting in a murder even though the defendant brought a rifle to the crime scene because the defendant di d not “in any . . . obvious way assist . . . in shooting the victims” and because t here was no evidence that the defendant shared the intent to hurt the victims); United States v. Salamanca , 990 (continued...) -3- In my view, there are two key gaps in the prosecuti on’s case against Mr. Torres for malice murder. First, there is no direc t evidence of Mr. Torres’s motive. Second, the prosecution did not present any direct evidence of Mr. Torres’s role in the shooting. In light of the tes timony of Mr. Morales’s son—that he saw a man in a dark shirt shooting his father—the prosecution’s theory was that Mr. Ochoa was the shooter. The pro secution was unable to present testimony as to the conduct of another pers on inside the residence before or during the shooting. Although the evidence cited by the majority does support the conclusion that Mr. Torres broke into the residence and fled a fter Mr. Ochoa shot the victims, those two key gaps in the prosecution’s ca se foreclose a rational juror’s finding beyond a reasonable doubt that Mr. Torres i ntended to kill the victims. In this regard, I note that a number of courts have de emed evidence resembling that on which the majority here relies insufficient to establish an intent to kill. 11 (...continued)

F.2d 629, 639 (D.C. Cir. 1993) (concluding that evi dence that one defendant aided an abetted in an assault with the intent to k ill was insufficient in part because “there is nothing in the record about [thatdefendant’s] behavior after the assault that indicates [that] he was a participant in any way during the assault”); id. (stating that “[w]e do not mean to suggest that fl ight is irrelevant as an indicator of guilt . . . . [b]ut in the circumstanc es of this case, there is nothing in [the defendant’s] flight that evinces guilt of aidi ng and abetting as opposed to acting as an accessory after the fact.”); id. at 640 (noting that “the presence of blood on the [defendant’s] shirt is not necessarilyindicative of proximity during the attack” and “[the defendant] could well have go tten the blood on his shirt after the attack” and therefore concluding that the evidence was insufficient to sustain a conviction for aiding and abetting an ass ault with the intent to kill); Sanders/Miller v. Logan , 710 F.2d at 645, 653 (10th Cir. 1983) (concluding that the prosecution’s “series of strained inferences dr awn from [the defendant’s] participation in the robbery is too tenuous to serv e as support for the first degree murder conviction of [the defendant] beyond a reaso nable doubt”).

-4- In spite of this deficiency in the evidence, howeve r, Mr. Torres faces an extremely high hurdle in seeking habeas relief on h is sufficiency of the evidence claim: he must establish not merely that the Courtof Criminal Appeals’ conclusion is incorrect but also that the court’s c onclusion constitutes an unreasonable application of the standard announced by the Supreme Court in Jackson , 443 U.S. at 319. See Williams , 529 U.S. at 412 (stating that “an unreasonable application of federal law is different from an incorrect or erroneous application of federal law”) (emphasis in original)

.-5-

Although there is not an extensive body of case lawdistinguishing an unreasonable application of Jackson from one that is merely incorrect, several recent circuit decisions have identified factors re levant to this inquiry. First, “the failure of the state court to consider at all a key argument of the defendant may indicate that [the state court’s] con clusion is objectively unreasonable.” Hurtado v. Tucker , 245 F.3d 7, 18 (1st Cir. 2001). “[T]he failure . . . to give appropriate weight to all of the evid ence” may also indicate an unreasonable decision. Id. ; see also Piaskowski v. Bett , 256 F.3d 687, 694 (7th Cir. 2001) (concluding that the state court unreasonably applied Jackson because the court found that the defendant “kicked and beat[the murder victim]” despite the fact that “the record was devoid of any direct evidence” of such an act and because “the available circumstantial evidence at m ost cast[] suspicion on [the defendant]”). Finally, “the reasoning used by the state court is . . . pertinent.” Hurtado , 245 F.3d at 20 (citing Williams , 529 U.S. at 391-98). However, “the paucity of reasoning employed by the state court do es not itself establish that its result is objectively unreasonable.” Hurtado , 245 F.3d at 18. The ultimate question . . . is . . . whether the outcome is reasonable.” Id. at 20. Here, in considering Mr. Torres’s challenge to the suff iciency of the evidence that he intended to kill the victims, the Court of Criminal Appeals reviewed the evidence presented by the prosecution, see Torres , 962 P.2d at 15--6-

16, and then rejected Mr. Torres’s argument that th e facts of his case were analogous to two cases in which the evidence of int ent to kill the victim was insufficient. See id . at 16 n. 40 (citing Sanders/Miller , 710 F.2d at 646-47 (10th Cir. 1983), and Anderson v. State , 91 P.2d 794 (Okla. Crim. App. 1939), and stating that “in [those cases] the courts found the re was no evidence to support premeditated design to kill”). The court then stat ed: “Here, [Mr.] Torres’ actions can support a finding of intent as discussed in Johnson v. State , 928 P.2d 309, 315 (Okla Crim. App. 1996).” To me, the court’s reliance on Johnson is troubling. That case contains the very kind of evidence of announced intention that we discussed in Wingfield v. Massie , 122 F.3d 1329, 1332-34 (10th Cir. 1997). See maj. op. at 11-14 (discussing Wingfield ); Wingfield ,122 F.3d at 1333 (stating that a jury may infer that the defendant “intends those consequences whic h he announces a desire to accomplish”). In Johnson , the Court of Criminal Appeals noted that, “[i]n t he space of three days [, the defendant] foretold how and why [the victim] would be killed, [the defendant] told tenants he could take care of the problems [the victim] caused,” and, “while [the victim] was being attacke d [, the defendant] or [his accomplice] told [the victim] the precise reason, a rticulated earlier by [the defendant,] for the attack.” Johnson , 929 P.2d at 315. Characterizing this-7-

evidence, the court continued: “ There is no doubt whatsoever that this [defendant] personally intended that [the victim] die. ” Id. (emphasis added). Moreover, the record in Johnson also contained evidence concerning the manner in which the defendant assisted in the homic ide. The victim, who lived for seventeen hours after the attack, told police o fficers that the defendant hit him over the head with a baseball bat while another man poured gasoline on him from a plastic jug and set him on fire. See id. at 313. Here, the evidence that Mr. Torres intended the death of the victims is not nearly as strong as the evidence against the defendant in Johnson , particularly since the prosecution did not present direct eviden ce that Mr. Torres assisted in the homicides. Nevertheless, I cannot conclude und er our deferential standard of review that the Court of Criminal Appeals application of the Jackson standard is unreasonable. Sufficiency of the evidence determin ations are made by assessing the totality of the circumstances in the individual case. As a result, Mr. Torres cannot point to a body of case law clearly establis hing that the particular set of facts presented by the prosecution here is insuffic ient to establish an intent to kill. As the majority notes, there is considerable eviden ce suggesting that Mr. Torres was involved in the killings. Although under a de novo standard of review, I would not conclude that this evidence is sufficient , I am convinced that the-8-

Oklahoma Court of Criminal Appeals’s conclusion to the contrary was not unreasonable. C. Jury Instructions I also disagree with the majority’s analysis of the jury instructions. I acknowledge that a habeas petitioner such as Mr. To rres is only entitled to relief on this ground if the instructional error undermine s the fundamental fairness of the trial. See Henderson v. Kibbe , 431 U.S. 145, 154 (1977); Cupp v. Naughten , 414 U.S. 141, 146-47 (1973). In my view, however, the instructions’ failure to adequately inform the jury of a crucial element of malice murder under Oklahoma law does meet that standard. As noted above, the Court of Criminal Appeals held that, in order to convict Mr. Torres of malice murder, the prosecutio n was required to prove that Mr. Torres (1) “personally intended the death of th e victim[s] and (2) aided and abetted with full knowledge of the intent of the pe rpetrator.” Torres , 962 P.2d at 15. In spite of that requirement, the instruction s did not adequately inform the jury of the prosecution’s burden of proving Mr. Torres’s intent. The jury did receive general instructions as to the law of aiding and abetting. Instruction 11 informs the jury that “[a ] person concerned in the commission of a crime as a principal is one who dir ectly and actively commits the acts constituting the offense, knowingly and with c riminal intent aids and abets in-9-

the commission of the offense, or who advises and e ncourages the commission of the offense.” St. Ct. Rec. vol. II, at 513 (instr . no. 11). The following instruction adds:

One who does not actively commit the offense, but w ho aids, promotes, or encourages its commission, eithe r by act or counsel or both, is not deemed to be a principal to the crime unless he did what he did knowingly and with criminal intent. To aid or abet another in the com mission of a crime implies a consciousness of guilt in inst igating, encouraging, promoting, or aiding in the commissionof that criminal offense. Id. at 514 (instr. no. 12). These aiding and abetting instructions thus refer t o “criminal intent” and to the “consciousness of guilt in instigating, encoura ging, promoting, or aiding” the offense. Id. at 513-14. They do not expressly refer to the nee d to find that the aider and abettor acted with the intent to kill the victims. The jury instructions also set forth the elements o f malice murder. Instruction 4 informs the jury that, in order to co nvict the defendants of that offense, the prosecution is required to prove: (1) “the death of a human”; (2) “the death was unlawful”; (3) “the death was caused by the defendants ”; and (4) “the death was caused with malice aforethought.” Id. at 506 (emphasis added). Instruction 5 proceeds to define malice aforethought as “deliberate intention to take away the life of a human being” and adds that malice aforethought does not mean “hatred, spite or ill-will.” Id. at 507.-10-

Like the aiding and abetting instructions, these in structions on the elements of malice murder are unclear as to the finding of i ntent required to convict Mr. Torres individually. One reasonable reading of the se instructions is that the referenced “malice aforethought” is the malice afor ethought of Mr. Ochoa rather than of Mr. Torres himself. I do note that both the Oklahoma Court of Criminal Appeals and the federal district court concluded that, when read as a whole , the instructions properly required a finding that Mr. Torres acted with the i ntent to kill the victims. In particular, the Court of Criminal Appeals held thatits earlier decision in Johnson
v. State , 928 P.2d 309, 315-16 (Okla. Crim. App. 1996), was controlling:

Like Torres, the appellant in Johnsoncomplained that the trial court erred in using the Oklahoma Uniform Instructions on aiding and abetting in a first degr ee malice murder case. Like Torres, Johnson argued the instructions allowed the jury to replace a general intent with a specific intent to kill thus lessening or changing the State ’s burden of proof. The JohnsonCourt rejected this argument finding that these instructions in conjunction withthe instructions on first degree murder properly set out Oklahoma law and channeled the jury’s discretion.
Torres , 968 P.2d at 16. Similarly, the federal district court concluded that, when read as a whole, the instructions properly informed the jury that, i n order to convict Mr. Torres of malice murder, it was required to find that he acte d with malice aforethought.-11-

The district court pointed to instruction 4, which sets forth the elements of malice murder, and instruction 5, which defines malice afo rethought. Our court has addressed this issue in two recent habeas cases. Cannon v. Gibson , 259 F.3d 1253, 1269-71 (10th Cir. 2001) and Johns on v. Gibson , 254 F.3d 1155, 1162-63 (10th Cir. 2001). Both cases co nstrue the instructions as a whole and find that the Oklahoma jury was properly instructed that it had to find that the defendant acted with intent to kill. Importantly, however, in both cases, there were ins tructions that focused the jury on the intent of the individual defendant. Thus, in Cannon , the jury was informed that “[i]t is the burden of the State to p rove beyond a reasonable doubt that the Defendant formed the specific criminal int ent of the crime[] of Murder in the First Degree.” Cannon , 259 F.3d at 1271 n.19. In Johnson , “the trial court specifically instructed jurors that the State had t o prove beyond a reasonable doubt that Johnson ‘formed the specific criminal intent of malice aforethought.’” Johnson , 254 F.3d at 1163 (quoting the relevant jury instruction). Additionally, in neither Cannonnor Johnsonis there any indication that the trial court refer red to “the defendants” collectively when it defined malic e aforethought, as the trial court did here. Indeed, in both Cannonand Johnson , the trials at issue involved one defendant, not two. See Cannon , 259 F.3d at 1258 n.1 (noting that the defendant Cannon was initially tried with a codefen dant but that the Oklahoma-12-

Court of Criminal Appeals reversed his initial conv iction on the grounds that he should have been tried separately); Johnson , 254 F.3d at 1158 (noting that “[t]he State tried Johnson and Masquat separately”). Thus , unlike the instant case, these cases did not present the risk that the jury could impute a findi ng of malice aforethought from one defendant to another. I acknowledge that the jury did receive several oth er instructions that directed it to focus on the conduct of each defenda nt individually. In particular, instruction 6 informs the jury that “[n]o person may be convicted of Murder in the First Degree unless his conduct caused the death of the person allegedly killed.” St. Ct. Rec. vol. II, at 508. Instruction 6 furthe r specifies that “[a] death is caused by conduct if the conduct is a substantial factor i n bringing about the death and the conduct is dangerous and threatens or destroys life.” Id. Similarly, instruction 13 informs the jury that the jury should “give separate consideration to the case of each individual defend ant.” Id. at 515. Instruction 13 also states that “[e]ach defendant is entitled t o have his case decided on the basis of the evidence and the law which is applicab le to him.” Id. However, despite these instructions, I do not belie ve that the jury was clearly informed that, in order to convict Mr. Torr es of malice murder, the jury was required to determine that Mr. Torres “personal ly intended the death of the victim[s] and aided and abetted with full knowledge of the intent of the-13-

perpetrator.” Torres , 962 P.2d at 16 (internal quotation marks omitted) . Finding that Mr. Torres’s conduct “[wa]s a substantial fact or in bringing about the death [of the victims],” St. Ct. Rec. vol. II, at 508 (in str. no. 6), is clearly not the same as finding that he intended the death of the victim s. Instead, the finding required by instruction 6 resembles the finding necessary to support a conviction for felony murder, see Okla. Stat. tit. 21, § 701.7(B), rather than malic e murder. Similarly, the instruction that the case against the defendant s should be considered separately merely refers the jury to the other inst ructions—instructions that do not clearly inform the jury that the prosecution was re quired to prove Mr. Torres’s intent to kill. In light of the fact that Mr. Torres was tried join tly with Mr. Ochoa, it was crucial for the jury to understand that it could no t convict Mr. Torres of malice murder unless he personally intended the death of the victims. Because these instructions did not so inform the jury, Mr. Torres is entitled to habeas relief.

D. CONCLUSION Many of the prosecution’s difficulties in this case appear to have arisen out of its own strategic decision to dismiss the initia l felony murder charge against Mr. Torres. Had the prosecution proceeded under a felony murder theory, it would not have been required to prove beyond a reas onable doubt that Mr. Torres2 Section 701.7(B) provides: A person also commits the crime of murder in the fi rst degree, regardless of malice , when that person or any other person takes the life of a human being during, or if the death of a human being results from, the commis sion or attempted commission of . . . first degree burglary Okla. Stat. tit. 21 § 701.7(B) (emphasis added). -14- intended to kill the victims in order to obtain a conviction. See Okla. Stat. tit. 21 § 701.7(B); Freeman v. State , 876 P.2d 283, 287 (Okla. Crim. App. 1994) (discussing the elements of felony murder). 2 That determination would only be necessary during the sentencing phase of the trial. The reason for the prosecution’s dismissal of the f elony murder charges is not clear on this record. At oral argument, counse l for the respondent suggested, unconvincingly, that the prosecution did not need t o resort to the felony murder doctrine because the evidence of Mr. Torres’s intent to kill was so strong. In contrast, Mr. Torres’s counsel offered a more plaus ible explanation: that by dropping the felony murder theory and obtaining mal ice murder convictions, the prosecution was able ease its burden at the penaltyphase. In particular, citing Tison v. Arizona , 481 U.S. 137 (1987) and Enmund v. Florida , 458 U.S. 782 (1982), Mr. Torres’s counsel contended that, in lig ht of the jury’s apparent finding during the guilt phase that Mr. Torres inte nded to kill the victims, the prosecution was not required to argue that issue atthe penalty phase, as it would have been if Mr. Torres had been convicted of felony murder. See Fowler v.-15-

Ward , 200 F.3d 1302, 1309 (10th Cir. 2000) (stating that Enmundand Tison “require that the jury give individualized consider ation to the culpability of defendants prior to imposing the death penalty”). In any event, by forgoing the felony murder charges , the prosecution imposed upon itself the high burden of proving thatMr. Torres intended to kill the victims when it had no direct evidence of his m otive and no direct evidence of his involvement in the actual shootings. Although our deferential standard of review under 28 U.S.C. § 2254 precludes relief on M r. Torres’s sufficiency of the evidence claim, Mr. Torres is entitled to relief on his claim regarding the jury instructions. Because those instructions did not p roperly inform the jury that it was required to find that Mr. Torres intended to ki ll the victims, I would reverse the district court’s decision on that claim and dir ect the state to vacate the murder convictions and provide Mr. Torres with a new trial before a properly instructed jury. In any event, I hope the Oklahoma courts wil l make changes in their approved jury instructions that will alleviate this problem in the future.