                                                                            F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                              JAN 4 2002
                             FOR THE TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                  Clerk

    WALANZO DEON ROBINSON,

                Petitioner-Appellant,

    v.                                                     No. 99-6438
                                                     (D.C. No. CIV-97-588-C)
    GARY L. GIBSON, Warden,                                (W.D. Okla.)
    Oklahoma State Penitentiary,

                Respondent-Appellee.


                              ORDER AND JUDGMENT            *




Before TACHA , Chief Judge, BRORBY , Senior Circuit Judge, and           MURPHY ,
Circuit Judge.



         Walanzo Deon Robinson appeals the denial of habeas relief,     see 28 U.S.C.

§ 2254, from his Oklahoma first degree malice murder conviction and death

sentence. On appeal, Robinson asserts that 1) there was insufficient evidence to

support the jury’s finding that the murder was especially heinous, atrocious or




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
cruel; 2) jurors intimidated a holdout juror into voting for a death sentence; and

3) the trial court’s flight instruction was erroneous. We affirm.

       Robinson, who was nineteen years old at the time of the crime,         had

travelled from Los Angeles to Oklahoma City to sell crack cocaine. A jury

convicted Robinson of shooting to death another drug dealer, Dennis Hill, after

several disputes between the two, apparently over drug sales. At sentencing, the

jury rejected the continuing threat aggravator but found that the murder was

especially heinous, atrocious or cruel and sentenced Robinson to death. The

Oklahoma Court of Criminal Appeals denied relief on direct appeal and in state

post-conviction proceedings.       Robinson v. State , 900 P.2d 389 (Okla. Crim. App.

1995); Robinson v. State , 937 P.2d 101 (Okla. Crim. App. 1997).

       Robinson is entitled to the federal habeas relief he now seeks only if the

state court’s resolution of his claims “was contrary to, or involved an

unreasonable application of, clearly established” Supreme Court precedent, or

“was based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1), (2). We

presume state court factual findings are correct, absent clear and convincing proof

to the contrary.    See id. § 2254(e)(1). If, on the other hand, the state   court did not

address the merits of a claim, we review       de novo the district court’s denial of

habeas relief.     See, e.g., Thomas v. Gibson , 218 F.3d 1213, 1220 (10th Cir. 2000).


                                              -2-
I.     Sufficiency of the evidence supporting the especially heinous, atrocious
       or cruel aggravating factor.

       The State charged, and the jury determined, that Hill’s murder was

especially heinous, atrocious or cruel. To establish this aggravating factor,

Oklahoma law requires proof that the murder was “preceded by torture or serious

physical abuse. Torture includes the infliction of either great physical anguish

or extreme mental cruelty, while physical abuse requires evidence of conscious

physical suffering.”     Romano v. Gibson , 239 F.3d 1156, 1176 (10th Cir) (further

quotation omitted),    cert. denied , 122 S. Ct. 624, 628 (2001).

       In this federal habeas proceeding, the issue presented is whether, viewing

the evidence in a light most favorable to the State, there was sufficient evidence

for a rational factfinder to find the existence of this aggravating factor beyond a

reasonable doubt.      See, e.g., id. at 1164, 1176 (applying     Jackson v. Virginia , 443

U.S. 307, 319 (1979)).      The state appellate court held that there was sufficient

evidence. See Robinson , 900 P.2d at 400-02. That determination was not

unreasonable.   See 28 U.S.C. § 2254(d);      1
                                                  see also, e.g., Medlock v. Ward   ,




1
       This court has not resolved whether it reviews the state court’s decision as
a legal determination, under § 2254(d)(1), or a factual finding under § 2254(d)(2)
and (e)(1). See, e.g. , McCracken v. Gibson , 268 F.3d 970, 981 n.5 (10th Cir.
2001). In this case, Robinson would not be entitled to habeas relief under either
standard. See id.

                                              -3-
200 F.3d 1314, 1322 (10th Cir.) (reviewing similar claim for reasonableness

under § 2254(d)), cert. denied , 531 U.S. 882 (2000).

      The evidence indicates that Hill consciously suffered serious physical

abuse. As the verbal altercation between Hill and Robinson ended, Robinson

either pulled a gun or went inside a nearby house and returned with a gun. Hill,

who was unarmed, began to run from Robinson. Robinson shot into the ground at

Hill’s feet and then shot Hill twice in the back. Hill fell face down in the middle

of the street. He remained conscious, however, and asked bystanders to call an

ambulance. He was also able to pose some sort of question to Robinson, when

Robinson walked over to Hill and stood over him. Robinson then shot Hill twice

more. One of these shots pierced Hill’s heart and both lungs. The medical

examiner testified that, although this shot was “almost instantly fatal,” Hill would

not necessarily have lost consciousness for several minutes. In fact, even after

the second and fatal round of shots, Hill was again able to ask friends to call

an ambulance.

      This evidence clearly establishes that Hill remained conscious during the

attack. See Washington v. State , 989 P.2d 960, 975 (Okla. Crim. App. 1999)

(declining to suggest minimum time victim must suffer to support this aggravator,

but holding that evidence that victim suffered no more than one minute was

sufficient); see also Clayton v. Gibson , 199 F.3d 1162, 1177 (10th Cir. 1999)


                                         -4-
(noting expert testimony is not required to establish that victim consciously

suffered). Furthermore, it is reasonable to infer that Hill physically suffered from

his injuries. See McCracken , 268 F.3d at 982; see also Romano , 239 F.3d at 1177

(upholding this aggravator after determining that evidence supported, although it

did not compel, inference that killers tortured victim).

       Robinson further asserts, however, that he is entitled to habeas relief

because the Oklahoma Court of Criminal Appeals has held, in similar shooting

cases, that there was insufficient evidence to support this aggravating factor.

Where, however, as here, Oklahoma courts have consistently applied a facially

valid aggravator,    2
                         a federal habeas court is not free to conduct “a     de novo ,

case-by-case comparison of the facts of [other Oklahoma] cases with the facts of

the instant case.”       Lewis v. Jeffers, 497 U.S. 764, 779 (1990) (citing         McCleskey

v. Kemp , 481 U.S. 279, 306-07 (1987));           see also, e.g., Arave v. Creech    , 507 U.S.

463, 477-78 (1993).




2
       Robinson does not challenge the facial validity of the Oklahoma courts’
narrowed construction of its especially heinous, atrocious or cruel aggravating
factor, which requires proof that the victim consciously suffered serious physical
abuse or torture. Nor could he challenge it. The United States Supreme Court
has held that requiring proof of serious physical abuse or torture is one
constitutional way to narrow this aggravating factor.  See Maynard v. Cartwright ,
486 U.S. 356, 365 (1988). Additionally, this court has upheld Oklahoma courts’
requirement of conscious suffering in addition to the serious physical abuse or
torture requirement. See, e.g., Medlock , 200 F.3d at 1321.

                                                 -5-
      In any event, contrary to Robinson’s argument, this case is distinguishable

from Cheney v. State , 909 P.2d 74, 81 (Okla. Crim. App. 1995), where the victim

remained conscious for only a “couple of seconds” “at most” between gunshots;

Brown v. State , 753 P.2d 908, 913 (Okla. Crim. App. 1988), where two of the

victim’s seven gunshot wounds would have been fatal within “a few minutes at

the most,” and the order in which the killer inflicted the seven wounds was

unclear; Stouffer v. State , 742 P.2d 562, 563-64 (Okla. Crim. App. 1987), where

there was “no reason to believe” that the victim remained conscious after the first

of two shots; and Odum v. State , 651 P.2d 703, 707 (Okla. Crim. App. 1982),

where a single gunshot resulted in the victim’s immediate unconsciousness.    See

also Marquez v. State , 890 P.2d 980, 987 (Okla. Crim. App. 1995) (holding that

evidence was insufficient to support this aggravator where sleeping victim

received three shots, one of which would have resulted in instantaneous death,

and medical examiner could not determine the order in which killer inflicted these

wounds).


II.   Juror intimidation of holdout juror.

      Robinson, who is an African-American, alleges that jurors harassed,

coerced, physically threatened and racially intimidated the only African-American

on the jury, Marcia Davidson. During deliberations, Davidson was the sole vote

against sentencing Robinson to death.

                                          -6-
       A.     Procedural default.

       In state post-conviction proceedings, the Oklahoma Court of Criminal

Appeals held that Robinson had procedurally defaulted this claim because he

could have raised it on direct appeal, but failed to do so.        See Robinson , 937 P.2d

at 105. According to Robinson, however, he could not have raised this claim on

direct appeal because it is based upon facts outside the trial record and Oklahoma

procedures would not have permitted him to supplement the direct-appeal record

with those new facts.    See generally, e.g., Smallwood v. Gibson       , 191 F.3d 1257,

1268 (10th Cir. 1999) (holding habeas petitioner must specifically allege that

state procedures are inadequate). The State, on the other hand, contends that

Robinson could have presented these extra-trial-record facts on direct appeal by

first raising them in a new trial motion.     See generally id. (holding State bears

ultimate burden of establishing state procedural bar’s adequacy). Under similar

circumstances, this court has remanded the habeas case to the district court to

determine whether this state procedural bar is adequate to preclude federal habeas

review. See Hooks v. Ward , 184 F.3d 1206, 1217 (10th Cir. 1999) (addressing

procedural default of ineffective-assistance claims);         English v. Cody , 146 F.3d

1257, 1263-65 (10th Cir. 1998) (same).

       Here, however, we affirm the denial of habeas relief on the merits, because

we can do so more easily and succinctly.        See Romero v. Furlong , 215 F.3d 1107,


                                             -7-
1111 (10th Cir.), cert. denied , 531 U.S. 982 (2000); see also Boyd v. Ward , 179

F.3d 904, 913 n.1 (10th Cir. 1999) (refusing to apply this procedural bar to

preclude habeas review of ineffective-assistance claim because, among other

reasons, this court could not determine whether Oklahoma adequately and

evenhandedly applied its “special remand rule” to permit expanding direct-appeal

record). Because the state courts did not address this claim’s merit, we review it

de novo . See Thomas , 218 F.3d at 1220.

      B.     Merits.

      In support of this claim, Robinson submits his defense investigator’s

affidavit relating what Juror Davidson told the investigator, as well as another

investigator’s affidavits relating other jurors’ statements corroborating

Davidson’s story. Robinson, however, acknowledges that individual jurors

generally cannot impeach the jury’s verdict. While evidence concerning external

influences on a jury may be admissible, a juror,

      [u]pon an inquiry into the validity of a verdict or indictment, . . . may
      not testify as to any matter or statement occurring during the course
      of the jury’s deliberations or to the effect of anything upon that or
      any other juror’s mind or emotions as influencing the juror to assent
      to or dissent from the verdict or indictment or concerning the juror’s
      mental processes in connection therewith . . . . Nor may a juror’s
      affidavit or evidence of any statement by the juror concerning
      a matter about which the juror would be precluded from testifying be
      received for these purposes.




                                           -8-
Fed. R. Evid. 606(b); see also Okla. Stat. Ann. tit. 12, § 2606(B).       3
                                                                              “Testimony

concerning intimidation or harassment of one juror by another falls squarely

within the core prohibition of the Rule.”       United States v. Stansfield    , 101 F.3d

909, 914 (3d Cir. 1996) (federal direct criminal appeal) (further quotation

omitted).

       Rule 606(b) “is grounded in the common-law rule against admission of

jury testimony to impeach a verdict . . . .”         Tanner v. United States , 483 U.S. 107,

121 (1987). The rule has long been “that the losing party cannot, in order to

secure a new trial, use the testimony of jurors to impeach their verdict.”

McDonald v. Pless , 238 U.S. 264, 269 (1915);           see also Tanner , 483 U.S. at 117

(noting that “near-universal and firmly established common-law rule in the United

States flatly prohibited the admission of juror testimony to impeach a jury

verdict”). Precluding this evidence represents a choice of the “lesser of two



3
       Robinson addresses only Rule 606(b) of the Federal Rules of Evidence.
Several circuits, however, have suggested that state evidentiary rules, rather than
the federal rule, are relevant when a habeas petitioner first introduced such
evidence in state court.  See Loliscio v. Goord , 263 F.3d 178, 185-88 (2d Cir.
2001); Doan v. Brigano , 237 F.3d 722, 735 n.8 (6th Cir. 2001);    see also Capps v.
Sullivan , 921 F.2d 260, 262-63 (10th Cir. 1990) (applying, without further
discussion, federal rule in pre-AEDPA case, where state post-conviction court
refused to permit petitioner to submit evidence in state court). Here, although
Robinson submitted these affidavits to the state post-conviction court, that court
did not address their admissibility, holding instead that Robinson had waived his
claim. In any event, we need not decide which rule should apply in this case
because the federal rule and the Oklahoma rule are the same.

                                               -9-
evils” -- not redressing a private litigant’s injury in favor of upholding the public

policy promoting private and unassailable juror deliberations.       McDonald ,

238 U.S. at 267-68; see also Tanner , 483 U.S. at 120 (recognizing and further

explaining the “weighty government interest in insulating the jury’s deliberative

process”).

       Robinson, however, relies upon language in        McDonald indicating

a possible exception to this general rule      when a juror’s testimony “could not be

excluded without violating the plainest principles of justice.”      McDonald ,

238 U.S. at 268-69 (further quotation omitted). Although we cannot condone the

conduct alleged here, however, invoking         McDonald ’s exception is not warranted.

Cf., e.g., Gall v. Parker , 231 F.3d 265, 277, 332-33 (6th Cir. 2000) (declining to

consider, in capital case, post-trial evidence from juror concerning internal

influences on jury deliberations),   cert. denied , 121 S. Ct. 2577 (2001);   Bacon v.

Lee , 225 F.3d 470, 472, 485 (4th Cir. 2000) (declining, in capital case, to consider

jurors’ evidence that, during deliberations, jurors referred to African-American

defendant’s race and his interracial relationship, and made racial jokes),

cert. denied , 121 S. Ct. 1420 (2001);      United States v. Roach , 164 F.3d 403, 407,

412-13 (8th Cir. 1998) (holding inadmissible, in Native American’s federal direct

criminal appeal, Native American juror’s affidavit alleging, among other things,

that other jurors pressured her, referred to her race, and told her it was ten white


                                              -10-
people versus one Indian);    United States v. Brito , 136 F.3d 397, 402, 414 (5th Cir.

1998) (holding inadmissible, in federal direct criminal appeal, juror’s affidavit

asserting, among other things, that other jurors coerced her vote through threats

and insults); United States v. Jones , 132 F.3d 232, 237, 245-46 (5th Cir. 1998)

(declining, in federal capital appeal, to consider jurors’ affidavits impeaching

death sentence), aff’d on other grounds , 527 U.S. 373 (1999).        But see Wharton v.

People , 90 P.2d 615, 616-18 (Colo. 1939) (applying       McDonald ’s exception to

permit evidence of threats against, and abuse and coercion of, lone juror holding

out against imposing death sentence).


III.   Flight instruction.

       The trial court instructed the jury that, if it found beyond a reasonable

doubt that Robinson had taken flight soon after the crime, the jury could consider

that fact in determining whether Robinson was guilty of first degree murder.         See

O.R. at 266 (Instruction 29). The instruction defined “flight” as departing or

concealing himself, with a consciousness of guilt, in order to avoid arrest.      See id.

       Robinson first asserts that the evidence did not support the trial court’s

giving this instruction in the first place. While Robinson’s direct appeal was

pending, the Oklahoma Court of Criminal Appeals held that, under Oklahoma

law, the trial court should only give this instruction “in cases where the evidence

is controverted by the defendant and as an exception rather than as a rule.”

                                            -11-
Mitchell v. State , 876 P.2d 682, 685 (Okla. Crim. App. 1993),        opinion corrected

by 887 P.2d 335 (Okla. Crim. App. 1994).        See generally, e.g., Hale v. State   ,

934 P.2d 1100, 1102 (Okla. Crim. App. 1997) (noting that          Mitchell was

interpreting state law). The state appellate court, however, declined to apply

Mitchell to cases such as Robinson’s, that were pending on direct appeal when

that court decided Mitchell . Nor did the state appellate court specifically address

Robinson’s federal law claims challenging this instruction. We therefore review

de novo the district court’s denial of habeas relief on the merits.     See Thomas , 218

F.3d at 1220. We consider, however, not whether giving this instruction violated

Oklahoma law, but only whether this instruction denied Robinson due process or

a constitutionally fair trial.   See Estelle v. McGuire , 502 U.S. 62, 71-72 (1991);

see also Nguyen v. Reynolds , 131 F.3d 1340, 1357 (10th Cir. 1997).

       Robinson argues that this instruction impermissibly infringed on the

presumption that he was innocent and unconstitutionally shifted the State’s

burden of proof to him. The burden was not shifted.         See Nguyen , 131 F.3d at

1357. The instruction did not alter the presumption that Robinson was innocent.

See id. The trial court specifically instructed the jury on that presumption and on

the State’s burden of proving each element of the charged offense beyond

a reasonable doubt.      See O.R. at 244 (Instruction 7); s ee also Nguyen , 131 F.3d

at 1357.


                                            -12-
      Further, the instructions did not permit the jury to presume that Robinson

was present at the scene and guilty. Rather, the flight instruction indicates only

that there was evidence presented at trial that he fled the crime scene. That

evidence was presented at trial. Davera Johnson and Rodney Carolina saw

Robinson shoot Hill. Immediately after the shooting, Anthony Lee saw Robinson

walking away from the crime scene with a gun in his hand. Opothleyahola and

Johnida Hudson, from whose home Robinson had been selling drugs, testified that

Robinson was armed and in their neighborhood at the time of the shooting.

Immediately after the shooting, Robinson returned to their home and told

Opothleyahola that he had shot a man. Retrieving his jacket, Robinson left,

telling the women he would return. He never returned.

      Later that morning, Brenda Finley and an acquaintance went to a house     a

few blocks from the crime scene. There, they found Robinson with several other

people, discussing the fact that Robinson had shot someone. Finley then took

Robinson back to her home. When she heard news reports that police were

looking for Robinson, however, Finley called Robert Love, asking him to get

Robinson out of her house. Love then took Robinson to a motel room which Love

had rented under Love’s   name. Less than two weeks later, Love accompanied

Robinson back to California. During that trip, Robinson asked whether he could

be extradited back to Oklahoma.


                                         -13-
       There was, then, evidence Robinson had fled the crime scene after the

shooting. Nevertheless, the flight instruction did not     require the jury to presume

that Robinson was at the crime scene and had fled. Rather, jurors could only

consider this evidence as “circumstantial evidence of guilt” if they found beyond

a reasonable doubt that Robinson had hidden or fled from the crime scene, with

a consciousness of guilt and in order to avoid arrest.     Nguyen , 131 F.3d at 1357.

This instruction, therefore, did not deprive Robinson of due process or a fair trial.

See id. Nor does Apprendi v. New Jersey alter this reasoning.       See 530 U.S. 466,

469, 490 (2000) (holding that due process requires jury to determine beyond

reasonable doubt any fact that will increase maximum sentence).


IV.    CONCLUSION

       Having considered the record and the parties’ appellate arguments, we

therefore AFFIRM the denial of habeas relief.

                                                         Entered for the Court



                                                         Deanell Reece Tacha
                                                         Chief Judge




                                            -14-
