You are instructed that mitigating circumstances are not specifically enumerated in the statutes of this State but the law of this State sets up certain minimum mitigating circumstances you shall follow as guidelines in determining which sentence you impose in this case. You shall consider any or all of these minimum mitigating circumstances. You may consider any additional mitigating circumstance, if any, you find from the evidence in this case. What are and what are not additional mitigating circumstances is for you the jury to determine.

The following are the minimum mitigating circumstances as provided by law:

1. The defendant has no significant history of prior criminal activity;

2. The murder was committed while the defendant was under the influence of extreme mental or emotional disturbance;

3. The victim was a participant in the defendant's homicidal conduct or consented to the homicidal act;

4. The murder was committed under circumstances which the defendant believed to provide a moral justification or extenuation for his conduct;

5. The defendant was an accomplice in a murder committed by another person and his participation in the homicidal act was relatively minor;

6. The defendant acted under duress or under the domination of another person;

7. At the time of the murder, the capacity of the defendant to appreciate the criminality (wrongfulness) of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or intoxication;

8. The age of the defendant at the time of the crime.

[T]he trial judge scrupulously excused those potential jurors who indicated they might not be able to set aside their knowledge or opinions of the crimes and impartially and fairly judge the appellant on the evidence presented at the trial. This is all that can be asked of jurors. 22 O.S. 1981 § 662 [22-662]; Frye v. State, 606 P.2d 599, (Okl.Cr. 1980).

(a) That he was denied effective assistance of counsel at both the first and second stages of trial;

(b) that he was denied by the prosecution disclosure of exculpatory evidence pertaining to guilt and punishment;

(c) that petitioner was denied his right to counsel when the State used evidence of inculpatory statements allegedly made by petitioner to Ronald Watkins;

(d) that he was denied his right to counsel when his attorney was denied access to him by OCPD after charges were filed;

(e) that he was denied due process of law because jury voir dire was not transcribed;

(f) that petitioner was denied fair cross-section of the community by exclusion of those jurors opposed to the death penalty;

(g) that he was denied his right to a fair and impartial jury when his motion for change of venue was overruled by the trial court;

(h) that he was denied his right to confront the witnesses against him when the State used hypnotically enhanced testimony of Carlos Joy, Pamela Lynch, Verna Rae Stafford, Linda McFarland Lewis, Terecia Darlene Bennett and Rose Ann Marie Collins;

(i) that the Court of Criminal Appeals erred when it incorrectly framed the issue involving admission of the death scene photographs;

(j) that the Court of Criminal Appeals denied petitioner his right to due process of law by failing to suppress petitioner's statements;

(k) that the Court of Criminal Appeals erred by failing to sustain testimony regarding statements of Harold Stafford;

[731 P.2d 1377]

(l) that petitioner is subjected to cruel and unusual punishment; and

a. Petitioner was denied his right to confront witnesses against him when the State used hypnotically enhanced testimony at trial,

b. Petitioner was denied disclosure of exculpatory evidence in possession of the District Attorney pertaining to guilt and punishment, and

c. Petitioner was denied effective assistant of counsel at trial in both the 1st and 2nd stages.

A. FINDINGS OF FACT CONCERNING ALLEGED HYPNOTICALLY ENHANCED TESTIMONY: At the evidentiary hearings held in April, 1986, Petitioner called witnesses, Verna Rae Stafford, Terecia Bennett Rose Ann Marie Collins, Dr. Hoyt Morris, Det. Bill Harrison, Det. Bill Cook, Greg Shields, and Arthur Linville in support of his contention that the State used hypnotically enhanced testimony at trial.

1. Rose Ann Marie Collins testified she had never been placed under hypnosis nor was any attempt to hypnotize her ever made.

2. Terecia Bennett testified she had never been placed under hypnosis nor was any attempt to hypnotize her ever made.

3. Verna Rae Stafford testified she was never placed under hypnosis. She testified Dr. Hoyt Morris attempted to hypnotize her one time. She testified she had already given police detailed accounts of the Sirloin Stockade murders as well as written sworn statements prior to the hypnosis session. She testified no one asked her any questions during the hypnosis session concerning the murders at the Sirloin Stockade and no one made any suggestions to her about the Sirloin Stockade murders for which petitioner was tried and convicted.

4. The initial question asked Verna Stafford was "Could she recall in as much detail as she could the events of a certain date regarding the killings on the highway by Purcell?"

5. Dr. Hoyt Morris, P.h.D., testified he hypnotized Verna Stafford sometime in the Spring of 1979. He testified she was never asked any questions or given any suggestions relating to the Sirloin Stockade murders. The extent of her hypnosis was less than five minutes. He testified her memory was not enhanced in any way and there were no post hypnotic suggestions made nor were any possible.

6. That shortly after the hypnotic session began a detective told Dr. Morris that they should end the session because Verna Stafford was fabricating information. The hypnotic session involving Dr. Morris was held in the Police Training Center. During the hypnotic session the doctor was unable to determine what was factual recall and what was fabricated.

7. Detectives Cook and Harrison, of the Oklahoma City Police Department and Oklahoma State Bureau of Investigation Agent Arthur Linville testified they were present when Verna Stafford was attempted to be hypnotized and all were consistent that no questions were asked nor suggestions given concerning the murders at the Sirloin Stockade. None of the detectives ever believed Verna Stafford was under hypnosis. Prior to the hypnotic session Verna Stafford had drawn a diagram of the Sirloin Stockade and told the police that Roger Stafford [731 P.2d 1378] was involved and had gone over the types of guns used in the homicides.

8. The deposition of Les McCaleb, Oklahoma City Police Department detective was admitted into evidence at the evidentiary hearing. His testimony by deposition was consistent with that of Verna Rae Stafford, Dr. Hoyt Morris, Detectives Harrison and Cook and O.S.B.I. Agent Arthur Linville in that the testimony of Verna Stafford was not enhanced by hypnosis. Detective McCaleb is now deceased.

9. The exact date of the hypnosis session conducted by Dr. Hoyt Morris was not established. Dr. Hoyt Morris and Arthur Linville agreed it was sometime in late Spring of 1979.

10. Verna Stafford had already given police detailed accounts of petitioner's involvement in the Sirloin Stockade murders prior to the hypnosis session. Prior to the hypnotic session Verna Stafford had drawn a diagram of the Sirloin Stockade and told the police that Roger Stafford was involved and had gone over the types of guns used in the homicides.

11. Verna Stafford's statements to police concerning petitioner's involvement in the Sirloin Stockade murders before the hypnosis session were consistent with her testimony at trial.

12. Petitioner's attorney, John T. Hall, cross-examined Arthur Linville at the trial concerning the attempted hypnosis session with Verna Stafford T. 395

13. Verna Stafford's testimony was not enhanced by hypnosis.

14. The maids Linda McFarland Lewis, Rose Anna Collins and Terecia Bennett, were first located by the police on May 24, 1979.

15. Witnesses Rose Ann Marie Collins and Terecia Bennett were never hypnotized and there is no evidence that witness Linda McFarland Lewis was ever hypnotized.

16. Petitioner presented no testimony concerning memory enhancement of Pam Lynch, Carlos Joy or Linda McFarland Lewis.

17. Petitioner admitted into evidence reports indicating Carlos Joy had been hypnotized. Carlos Joy was interviewed at the scene of the crime on July 16, 1978, shortly after the murders were committed. The testimony he gave at the trial of the case was consistent with that given to police before hypnosis.

18. Petitioner's attorney, John T. Hall, testified at the evidentiary hearing that he knew Carlos Joy, prior to trial, had been hypnotized.

19. Carlos Joy's testimony was not enhanced by hypnosis.

20. On July 23, 1978, seven days after the crime was committed, Pam Lynch related to Detective Shahan of the Oklahoma City Police Department the description of a station wagon and driver she saw leaving the Sirloin Stockade on July 16, 1978, the day the murders took place.

21. Police reports admitted into evidence indicate Pam Lynch was hypnotized on July 30, 1978, approximately 14 days after the murders. The description of the station wagon she almost collided with shortly after the murders were committed was consistent before and after hypnosis. Her description was consistent at trial.

22. Pam Lynch's testimony concerning the description of the station wagon petitioner was driving was not enhanced by hypnosis.

23. The description Pam Lynch gave of the driver of the station wagon was the same before hypnosis as after hypnosis.

24. The description of the driver Pam Lynch gave to Detective Shahan was not enhanced by hypnosis.

25. Although Detective Shahan had not previously shown Pam Lynch any [731 P.2d 1379] photographs of petitioner and Pam Lynch had not seen composite drawings made of petitioner, she recognized petitioner and chose him from a photo line-up on March 11, 1979, as being the driver of the station wagon she saw leaving the vicinity of Sirloin Stockade on the night of the murders.

26. Pam Lynch's identification of petitioner was not enhanced by hypnosis.

27. Ray Tackett gave composite drawings and descriptions to police prior to any hypnosis. He did not testify at trial nor at the evidentiary hearing for post conviction relief.

28. Hypnosis did not contribute to the identification of petitioner by Ray Tackett.

29. Detectives Harrison, O.C.P.D. and Greg Shields of the O.S.B.I. conducted an interview with Verna Stafford on March 8, 1979. Both testified at the evidentiary hearing on post conviction relief that they did not know how to induce hypnosis and that Verna Stafford was not under hypnosis when that interview was conducted. Verna Stafford testified she was not under hypnosis when the March 8, 1979 interview was conducted.

30. Verna Stafford was not under hypnosis on March 8, 1979 when Detectives Harrison and Shields interviewed her.

B. FINDINGS OF FACT CONCERNING ALLEGED WITHHELD EXCULPATORY EVIDENCE: Petitioner called J. Malone Brewer, John T. Hall and Rik Brewer as witnesses in support of his contention that exculpatory evidence material to petitioner's guilt or punishment was withheld from petitioner prior to trial.

1. That prior to coming to Oklahoma City from Illinois Verna Stafford had given no exculpatory statement.

2. J. Malone Brewer, petitioner's trial counsel, testified at the evidentiary hearing on post conviction relief that a 166 page taped interview of Verna Stafford taken by Detective Harrison and Greg Shields on March 8, 1979 was withheld by the prosecutor prior to trial.

3. A Motion for Discovery was filed by defendant's counsel as was a Motion To Inspect The Prosecutor's File.

4. That interview taken by Detective Harrison and Greg Shields on March 8, 1979 was not a sworn statement.

5. References concerning that March 8, 1979 interview appear throughout the preliminary hearing transcript as well as the original trial transcript.

6. State's Exhibits 1 and 2 were sworn statements of Verna Stafford turned over the by the State to defense counsel prior to trial.

7. The 166 page interview of Verna Stafford on March , 1979 was attached to petitioner's original ppellate brief to the Oklahoma Court of Criminal Appeals as exhibit "A".

8. The Court of Criminal Appeals has previously ruled that even if the prosecutor did withhold the March 8th statement itself, it did not effect the outcome of the trial since the prosecution presented this evidence to the jury for their consideration.

9. Petitioner entered into a stipulation that evidence, records and files not admitted into evidence at trial were placed in the District Attorney's property room in October, 1979 and have remained there since that time.

10. A transcribed copy of that 166 page taped interview of March 8, 1979 was located in those files when they were brought out for examination by petitioner's attorney in March, 1986.

11. In April, 1986, petitioner's attorney Robert A. Ravitz and Assistant District Attorney, Fern L. Smith, located a brown envelope while [731 P.2d 1380] searching the Oklahoma City Police Department files. The original tape recordings of Verna Stafford's March 8, 1979 interview conducted by Detective Harrison and Greg Shields were contained inside that envelope.

12. Inside the brown envelope containing the March 8, 1979 taped interview of Verna Stafford was also a hand written note which reads: "Tape of Verna — Given to Brewer 9-27-79".

13. On the outside of the brown envelope containing the March 8, 1979 taped interview of Verna Stafford was a similar notice.

14. Those handwritten notes contained inside the envelope and on the envelope itself are the handwriting of James McKinney, Assistant District Attorney who prosecuted petitioner at trial.

15. James McKinney has been deceased since early 1980.

16. A notice filed with the Court on October 17, 1979 and delivered to petitioner's attorney on October 4, 1979 by James McKinney indicate petitioner was given all requested reports. That notice is admitted into evidence as State's Exhibit # 3.

17. Petitioner's attorney, John T. Hall testified he recognized the notice as one James McKinney filed in October, 1979.

18. Petitioner's attorneys have never questioned the notice.

19. Andrew Coats, District Attorney who tried petitioner's original case in 1979 testified petitioner's attorney was given open file discovery prior to trial.

20. Andrew Coats, District Attorney of Oklahoma County, told assistants assigned to the case to turn over all exculpatory evidence and to open their file. Mr. Brewer was adequately assisted in preparing this case by John Hall and Legal Intern Rick Brewer who spent hours sifting through this case in preparation for trial in the matter.

21. Coats testified he had personally observed J. Malone Brewer, petitioner's trial attorney, reviewing the prosecutor's files on several occasions prior to trial.

22. The 166 page March 8, 1979 interview of Verna Stafford was not withheld from the petitioner prior to trial.

23. The contents of the March 8, 1979 interview of Verna Stafford were presented to the jury for their consideration.

24. The Court of Criminal Appeals has previously ruled concerning the March 8, 1979 interview with Verna Stafford.

25. The allegation concerning the withholding of the March 8, 1979 interview is res judicata.

26. Petitioner's present attorney, Robert A. Ravitz has reviewed the prosecutor's files approximately thirty hours during the months of March and April, 1986.

27. Petitioner has admitted into evidence at the evidentiary hearing numerous police reports, notes and records taken from the files of the District Attorney previously locked in the property room since the trial in October, 1979. Petitioner claims these reports are exculpatory and were withheld from petitioner by the prosecutor.

28. J. Malone Brewer, petitioner's trial attorney, testified at the evidentiary hearing, he had not seen many of the reports admitted into evidence by petitioner's present attorney.

29. J. Malone Brewer never made any positive statement to the court that the records files and reports admitted at the evidentiary hearing on Post Conviction Relief were in fact exculpatory.

30. Petitioner's attorney, John T. Hall testified he had not seen any of the reports prior to trial. On cross exam [731 P.2d 1381] he admitted he may have seen some of them.

31. In view of the voluminous number of files, records and reports held in the District Attorney's property room and delivered to the Court by the prosecution for the Court's inspection, it is unlikely that petitioner's trial attorney could have remembered the contents of each of the reports he examined prior to October 10, 1979, approximately 7 1/2 years ago.

32. Petitioner has failed to show any of the reports were exculpatory.

33. Oklahoma State Bureau of Investigation files delivered to the Honorable Raymond Naifeh by the OSBI on May 19, 1986, have been reviewed many hours in detail.

34. An examination of the files maintained at the Oklahoma State Bureau of Investigation headquarters concerning this case failed to reveal any evidence which was material to the guilt or punishment of petitioner.

35. Petitioner's trial attorney was given full and complete discovery prior to trial as evidenced by testimony of Andy Coats, District Attorney who prosecuted the case, testimony at the preliminary hearing and trial and notices filed with the Court Clerk at or near time of trial as well as notices left by James McKinney, Assistant District Attorney who assisted in prosecuting petitioner at trial.

36. The State did not withhold exculpatory evidence prior to trial which was material to the guilt or punishment of petitioner.

37. The evidence against petitioner at trial was overwhelming.

C. FINDINGS OF FACT CONCERNING INEFFECTIVE ASSISTANCE OF COUNSEL

1. Petitioner concedes in his application for post conviction relief that petitioner's claim has been raised and decided twice previously by the Oklahoma Court of Criminal Appeals using both the "reasonably competent assistance of counsel test", See Johnson v. State, 620 P.2d 1311 (Okl.Cr. 1980) and Phillips v. State, 650 P.2d 876 (Okl.Cr. 1982) and the Strickland standard.

2. Petitioner has presented this court with no new evidence in support of his claim that trial counsel was ineffective.

3. The issue of petitioner's claim that trial counsel was ineffective is res judicata.

1. The evidence presented by petitioner during the evidentiary hearing on post conviction relief is not material to guilt, innocence or punishment of petitioner;

2. There is no reasonable probability that the results of the jury trial would have changed if petitioner's claims were true;

3. Because, prior to trial and during the course of the trial, the State did not withhold any exculpatory evidence which was material to guilt, innocence, or punishment of petitioner, there was no issue as to whether the State violated the petitioner's rights guaranteed to him by the Constitution of the State of Oklahoma or the U.S. Constitution as mandated the case of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963);

4. Assuming that the State prior to trial or during the course of the trial, had withheld evidence of which the petitioner complains was not disclosed to him, that evidence when evaluated within the context of the entire record [731 P.2d 1382] of petitioner's case does not create a reasonable doubt as to the guilt of petitioner;

"The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt. Such a finding is permissible only if supported by evidence establishing guilt beyond a reasonable doubt. It necessarily follows that if the omitted evidence created a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt."

5. Hypnosis does not render a witness incompetent to testify, the witness' testimony is limited to those facts which can demonstrably be shown to have been recalled prior to hypnosis. Robison v. State, 677 P.2d, 1080 (Okl.Cr. 1984); Harmon v. State, 700 P.2d 212 (Okl.Cr. 1985). It is apparent from the testimony presented by petitioner's witnesses at the evidentiary hearing that hypnosis did not contribute to the facts related to police by Verna Stafford, Carlos Joy and Pam Lynch prior to any hypnosis session.

6. In Robison v. State, 677 P.2d 1080 (Okl.Cr. 1984) the court held: ". . . . a witness may not make an incourt identification following hypnosis when no identification has been made prior to hypnosis."

The police reports admitted into evidence by petitioner without objection from the state relate that Pam Lynch's in-court identification of petitioner was post-hypnotic. Pam Lynch's description of the driver did not change after hypnosis. She was never shown any photographs or composites of petitioner. At the time she was hypnotized, petitioner was not a suspect and no post hypnotic suggestions were possible. Ms. Lynch chose petitioner from the photo line-up on March 11, 1979. Petitioner was not arrested in Chicago until March 13, 1979, 2 days later. However, if the identification of petitioner at trial was error, this error, this error is not grave enough to say that petitioner should be granted relief. The evidence against petitioner is far too overwhelming to conclude that Pam Lynch's identification of petitioner determined the verdict or created a reasonable doubt as to defendant's guilt. Other facts related to police by Pam Lynch concerning the description of petitioner's station wagon were consistent before hypnosis and after hypnosis. They were corroborated by other witnesses and were properly admitted.

7. Petitioner's claim that trial counsel was ineffective was previously addressed by the Court of Criminal Appeals in their published opinion on June 20, 1983. That opinion was affirmed by the Court of Criminal Appeals again on May 13, 1985 applying the test set forth in Strickland v. Washington [466] U.S. [668] 104 S.Ct. 2052 [80 L.Ed.2d 674] to petitioner's case. In Coleman v. State, 693 P.2d 4 (Okl.Cr. 1984) the Court of Criminal Appeals stated:

"The doctrine of res judicata bars consideration in post conviction proceedings of issues which have been or which could have been raised on direct appeal." See also Harrell v. State, 493 P.2d 461 (Okl.Cr. 1972). res judicata applies.

8. No new evidence has been presented which would change this court's opinion in light of the Strickland standard.

9. All other issues raised by petitioner in his application for post conviction relief have previously been raised and [731 P.2d 1383] decided by the Court of Criminal Appeals. Petitioner has presented no new evidence in support of his contentions. The doctrine of res judicata applies.

10. Petitioner has failed to demonstrate that there is a reasonable probability that, absent the alleged errors of which he now complains, the verdict of the jury would have been altered or his punishment would have been lessened.

THE STATE OF OKLAHOMA, ex rel., TED A. LIMKE, Director of the Oklahoma State Bureau of Investigation, Petitioner,

THE HONORABLE RAYMOND NAIFEH, Judge of the District Court Within and for Oklahoma County STATE OF OKLAHOMA, Respondents.

This Court . . . determines that it is necessary for the fair and complete administration of justice to require the production of the Oklahoma State Bureau of Investigation report to the Court. This to include all information regarding ROGER DALE STAFFORD, Verna Stafford or any information regarding the Lorenz or Sirloin Stockade homicides currently in the possession of the Oklahoma State Bureau of Investigation.

It is the further order of this Court that such records be furnished and brought to this Court's chambers at 10:00 a.m. Tuesday, April 15, 1986, whereby these records are to be accorded access to the Public Defender, Robert A. Ravitz, in the presence of any representative of the District Attorney's Office, the Attorney General's Office or the Oklahoma State Bureau of Investigation, who desires to be present while counsel looks at these files. It is further the order of this Court that Ted Limpke, [sic] Director of Oklahoma State Bureau of Investigation, shall be personally responsible to see to it that all records are brought to this Court.