Gregg Francis Braun

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Banned
Gregg Francis Braun






Classification: Serial killer
Characteristics: Robberies
Number of victims: 5
Date of murders: 1989
Date of arrest: July 23, 1989
Date of birth: March 8, 1961
Victims profile: 4 female and 1 male
Method of murder: Shooting (.25-caliber handgun)
Location: Oklahoma/Kansas/Texas/New Mexico, USA
Status: Executed by lethal injection in Oklahoma on July 20, 2000





Summary:

Gregg Braun was sentenced to die for the 1989 murder of Gwendolyn Sue Miller, 31, in an $80 flower shop robbery in Ardmore, Oklahoma.

A customer was shot in the head and robbed of $600 and the bookkeeper was also shot.

He also murdered four other people in a multi-state crime spree. Each of the five murder victims was found shot in the back of the head with a .25-caliber handgun.

After pleading guilty and receiving life sentences in both New Mexico and Kansas, Braun pled guilty without an agreement in Oklahoma and was sentenced to death for the murder of Miller. Braun was the son of a prominent lawyer and had a college degree in criminal justice.

Death Penalty Institute of Oklahoma

Gregg Braun - Executed July 20, 2000.

(Compiled and Edited by Robert Peebles)

Gregg Francis Braun, 39, was put to death by lethal injection at Oklahoma State Penitentiary in McAlester. He was pronounced dead at 12:17am. His execution was witnessed by 39 members of the five persons he had killed in 1989.

Twelve of the witnesses watched the execution from a viewing room in the death chamber, while 27 watched through close-circuit television. Braun had requested only one witness, Rev Chi Peter Phung, a Catholic priest. Braun had asked his family members not to witness his execution.

Braun was the 10th man put to death by the state this year and the 29th since the state resumed capital punishment in 1977. He was also the 55th person executed in the United States this year and the 653rd since the reinstatement of capital punishment.

Background

On July 19, 1989, Barbara Kochendorfer, 27, and Mary Rains, 28, both of Garden City, Kansas, were murdered. Each of the women worked in convenience stores in Garden City. They were abducted from their respective places of work in two separate incidents. Both women were shot in the head and their bodies were dumped in ditches three miles apart outside of town.

The next day EP "Pete" Spurrier was murdered in his Pampa, Texas, photo processing shop. He had been shot in the head.

One day after Spurrier's murder, Gwendolyn Sue Miller, 31, was shot to death. Miller was working at Dodson's Flower Shop in Ardmore, Oklahoma. She and two other women, JoAnn Beane (who also worked there) and Mary Mannings (apparently a customer), were forced to lie face down on the floor and then all three were shot in the back of the head. Beane and Mannings both survived.

Two days later Geraldine Valdez, 48, a convenience store clerk in Springer, New Mexico, was shot and killed. All five murder victims were shot with a .25-caliber pistol.

On Sunday, July 23, 1989, Michael Frank Greene, 37, of Inola, Oklahoma, was arrested in a Lawton, Oklahoma, hospital for the murder of Gwen Miller.

He was also suspected of killing Kochendorfer and Rains in Kansas and Spurrier in Texas. Greene had been identified from a photo lineup by one of the survivors of the Ardmore shooting.

Within hours of Greene's arrest, Gregg Francis Braun, 28, was arrested in New Mexico for the murder of Valdez. At the time of his arrest, Braun, of Garden City, Kansas, allegedly implicated himself in the murder of Miller. On Wednesday, July 26, the murder charge against Greene for the slaying of Miller was dropped.

By August 3rd Braun was the primary suspect in the murders of Kochendorfer and Rains in Kansas, Spurrier in Texas, and Miller in Oklahoma.

On August 18 Braun was charged with first-degree murder for the shooting death of Miller.

In April, 1990, Braun pled guilty but mentally ill to the New Mexico charge of the capital murder of Valdez.

In September, 1991, Braun was sentenced to life in prison for the murder after jurors could not reach a consensus on the sentencing. Braun would have to serve a minimum of 36.5 years behind bars for the murder and robbery before being eligible for parole.

Braun was sentenced to four life sentences and two sentences of 15 years to life for the murders/robberies in Kansas. The court ruled that these sentences must be served consecutively, meaning Braun would have to live past 100 to be eligible for parole.

In August, 1993, Braun pled no contest to the robbery and murder charges against him in Ardmore. It was a "blind" plea (i.e. there was no deal with the prosecutor for a particular sentence in exchange for the plea.)

On August 23, Judge Thomas Walker sentenced Braun to death for the 1989 murder of Miller. On August 27, Braun's attorneys filed a motion to withdraw the plea, but this motion was refused by Walker.

Clemency Denied

The Oklahoma Pardon and Parole Board held a clemency hearing for Gregg Braun on Tuesday, June 27, in Oklahoma City. Braun was represented by Benjamin McCullar and Jim Rowan. Rowan was Braun's trial attorney. Braun's mental illness, Borderline Personality Disorder, was raised by his attorneys as an issue worthy of clemency. Braun did not attend the hearing.

The Board voted 4-0 to deny a recommendation of clemency to Governor Keating. Since capital punishment was reinstated in Oklahoma, this was the 22nd clemency hearing held for a death row inmate. There has never been a vote in favor of clemency.

ProDeathPenalty.com

Gregg Braun was sentenced to die for the 7/21/89 murder of Gwendolyn Sue Miller in an $80 flower shop robbery in Ardmore, Oklahoma. A customer was shot in the head and robbed of $600 and the bookkeeper was also shot.

He also murdered four other people in a multi-state crime spree. Each of the five murder victims was found shot in the back of the head with a .25-caliber handgun.

Miller's husband, Dusty, and their 3 children planned to watch Braun die on the eve of the anniversary of her July 21, 1989, death. "After all the pain and being helpless to protect my kids and family, this is the only thing I can do," Miller said.

On July 19, 1989, Braun, a 28-year-old college graduate with a degree in criminal justice, kidnapped Barbara Kochendorfer, 27 and Mary Raines, 28, during a robbery of two different convenience stores, on opposite sides of town in Garden City, Kansas. Both women were shot and dumped on the side of the same rural road.

Between them they left eight young children. Braun later told police that just after the first murder he felt he had to kill again. The next day, July 20, 1989, he also murdered 54-year-old Pete Spurrier, the owner of the One Hour Photo store in Pampa, Texas.

On July 23, 1989, Braun killed Geraldine Valdez, 48, by shooting her twice in the head during a gas station robbery in Springer, New Mexico. He was caught 40 minutes after her murder with the gun still in his car. "You guys must be proud," he told police. "You don't know what kind of famous criminal you caught."

Braun told a deputy of his murderous spree, "it wasn't as good as shooting craps in Vegas, but it was all right." Lelyn Braun says he didn't know this Gregg Braun. Yes, the son he raised had his troubles with drugs. Yes, the youngest Braun ran with the wrong crowd.

But he had seemed ready to get his life on track when he came to live with his parents. Lelyn Braun blames the murder spree on a combination of drugs and alcohol. He said he wrote the victims' families to tell them that he wished Gregg had never been born. Lelyn Braun doesn't defend his son's actions.

But says "They're going to kill a good man. And they're going to do it illegally." Braun's father was a prominent Garden City lawyer at the time of the crimes. Mr. Braun wanted to have his son returned to New Mexico to serve a life sentence there.

Dusty Miller understands why a father would fight for his child. He raised 3 children to adulthood alone. But Mr. Miller can't comprehend how a 28-year-old Mr. Braun could walk into an Ardmore, Okla., floral shop and shoot his sweet-natured wife, Gwendolyn Sue Miller. And Mr. Miller doesn't believe that a man like that can change as Lelyn Braun claims. "I don't understand how he could meet somebody like Gwen and still make a decision that the world didn't need her anymore," Mr. Miller said Monday.

Dolores Spurrier doesn't want to see the execution of Braun, who pleaded guilty to the shooting death of her husband, Pete. "Any delay would be too much," Dolores said Tuesday before the execution. "I'll handle it better here (in Pampa). I just want it over with," she said of the execution.

The victim's son, Bill Spurrier of San Antonio, said he will attend the execution, but the coming event invoked painful memories. "The execution brought everything back like it was yesterday, and it's not only for me, but for my wife and my mother," Spurrier said Tuesday. Bill Spurrier said the execution will bring him a sense of closure. "I know he'll never be able to commit another murder," he said.

Dolores Spurrier said she went to every one of Braun's trials and got to know relatives of the other victims. "I think everybody is just glad that it's going to happen," she said. "It will be some closure. But I don't think you would ever really get over it." Other representatives of the victims' families are planning to be at the execution.

The families have stayed in touch and said they always planned to attend the execution, no matter how long it took. 39 family members of Braun's 5 murder victims came to witness the execution, but only 12 of them were able to witness it from inside the death chamber.

The remaining 27 watched from a nearby room on closed-circuit television. "I'm glad to get this over with," said Dusty Miller, Gwendolyn Miller's husband. "I feel sorry for him (Braun) that he's chosen to take his life and do something like this, . . . but I'm still very angry that he's taken my wife and my children's mother away. I can't forgive him tonight. Maybe I can sometime down the line."

Thursday's execution of Gregg Francis Braun brought a sense of justice to Bill Spurrier but will not completely mend the emotional rips and tears from his father's murder. "I've been asked several times whether I feel that watching the execution would be revenge for me," Spurrier said Thursday. "My answer is after 11 years, there is no revenge; that is justice."

Braun was pronounced dead at 12:17 a.m. Thursday, 6 minutes after receiving a lethal injection at the Oklahoma State Penitentiary in McAlester, Okla. "I think that the execution was very humane," said Bill Spurrier, a San Antonio resident. "It looked like he just went to sleep."

Spurrier thanked the Oklahoma Department of Corrections personnel and everybody who was there for the victims. "They handled a very tough situation in a professional manner," he said. "I feel very sorry for Braun's family, but they did get the opportunity to say goodbye, which I never got that opportunity. I had to say goodbye to my dad at the grave."

Spurrier said there is never complete closure to the loss of his father. "When my son was born in Sicily when I was stationed there, my dad traveled all the way to Sicily to hold his grandson," Spurrier said. "He'll never have the chance to hold my grandson."

The Art and Soul of Forgiveness

By David Myers - The Southwest Kansas Register

In 1983, Pope John Paul II stepped into a cell in an Italian prison and embraced Mehmet Ali Agca, the man who had attempted to assassinate him two years earlier. When asked in 1999 by a group of children gathered at a Rome church why he forgave him, the pope replied, "I forgave him because that's what Jesus teaches. Jesus teaches us to forgive."

In December 1999, a Tennessee family of four fought to keep the escaped mental patient who kidnapped and killed their mother from facing the death penalty -- because that's they way they felt their mother would have wanted it.

During his mother's funeral, Father Charles Strobel told the mourners, "Why speak of anger and revenge? Those words were not compatible with the very thought of our mother. So, I say to everyone, we are not angry or vengeful, just deeply hurt. "We know the answers are not easy and clear, but we still believe in the miracle of forgiveness. And we extend our arms in that embrace."

Closer to home, Ruth and Bob Hessman of Dodge City work every day to forgive the man who, on July 19, 1989, killed their daughter, Mary Rains, a few miles from a Garden City convenience store where she had been working early that morning. Devout Catholics, the couple had long been opposed to the death penalty, a stance that didn't change after their daughter was murdered.

Approximately four years before Gregg Braun was executed July 20, the couple began writing to their daughter's killer. At first he expressed a bitterness that reflected a belligerence he displayed in court.

After a time, though, he seemed to release his bitterness and replace it with humility; several letters expressing regret and apologizing for killing the Hessmans' daughter.

In a Dodge City Daily Globe article by Eric Swanson published soon after Braun was executed, Ruth Hessman commented, "Knowing that he had reconciled himself with his Maker and worked on that - that was our main intent." Sister Jolene Geier, O.P., a Dominican Sister of Great Bend, helped organize a prayer vigil for Braun the night before his execution in Oklahoma. The vigil was attended by the Hessmans.

At the vigil an introductory prayer read, in part, "We are gathered here in the presence of God who is full of compassion and mercy to pray for Gregg Braun who is scheduled to be executed before the night is over. We are here, also, to pray for his family and his victims and their families.

We especially need to pray for those who cannot forgive Gregg, who has asked for forgiveness for his crimes." Sister Geier told the Register that she admired the Hessmans because they were able to "overcome their own hatred and lack of forgiveness.

They began to pray for him - for his soul - that he would be saved. ...We think that these people who do so much bad can turn around and be saved. You just think about the scripture passage, about the good shepherd going after the one lost sheep.

That depicts what happened to Gregg. He was so lost and he responded to all the love and tenderness that his family, and especially Ruth and Bob, gave him, and it was through this love that God forgave him. "[The Hessmans] are a model to us on the struggle to forgive," she added. "We Sisters not only walked with the Hessmans but we walked with Gregg's family. We want the greater diocese to know that we Sisters encourage people to take a stand against the death penalty, and really let it be known that it is not a way to respond to evil."

In an article in "Grains of Wheat," a publication of the Dominican Sisters of Great Bend, Ruth Hessman wrote of the killing, "This news devastated our family - the shock, the disbelief, the pain, and yes, the anger.

The thing that stands out in my mind from that awful time was what our pastor, Father (John) Maes told me after the funeral: 'Ruth, before this is over you may even be angry at God, and I just want you to know that he will understand.' "...We didn't find forgiveness just by saying, 'We forgive' and moving on. We found we needed to start each day with a prayer of forgiveness for [Gregg].

Even after the 10 years that have passed there can still be the temptation to be unforgiving, but with prayer we are trying to eliminate that feeling and to realize that her death was the beginning of her journey to her heavenly father! "Peace comes to us now from watching our children and grandchildren as they learn to follow us on the journey of forgiveness. For if we are to believe we can be forgiven, we must first be able to forgive."

As the first 50 years in the life of the Diocese of Dodge City comes to a close, Bishop Ronald M. Gilmore is inviting all people of the diocese to feel an integral part of the anniversary celebration.

For some, especially those who have faced the closure of their church or parish over the years, this may first require forgiveness and reconciliation within the diocese. Whether an individual, a community or a country, reconciliation does not come easy. As Bob Hessman told the Register, it takes effort, and the process leading to forgiveness can be a painful one.

At the prayer vigil for Gregg Braun, the following was also read: "We are here tonight to remember the stories that have been told over and over during these 10 years since those horrible events took place.

It is through telling our stories that reconciliation can happen within ourselves first of all and then with others who are involved. Reconciliation is the work of God, who initiates and completes in us reconciliation through Jesus. Reconciliation is not a human achievement, but the work of God within us."

ConceptionAbbey.org

Gregg Braun was a murderer. During a five-day spree in July 1989, he killed four women and one man in Kansas, Texas, Oklahoma and New Mexico. When captured by New Mexico law officers, he belligerently told them: “You guys must be proud. You don’t know what kind of famous criminal you caught.”

But 11 years later, Brother Jeremiah contends, the state of Oklahoma killed a man of prayer, a man who extensively studied Western monasticism and often said that if his life could’ve been different, he thought he may have become a monk.

A man filled with self-loathing and remorse, who struggled with the belief that his sins were too great for even God’s forgiveness. A man who corresponded regularly with Bob and Ruth Hessman, the parents of Mary Rains, one of Braun’s victims.

The Hessmans believed so sincerely in his transformation that they pleaded for his life. They attended a prayer vigil the night of his execution where Ruth read aloud their last letter from Braun. “What a remarkable testimony to forgiveness,” Brother Jeremiah says.

Brother Jeremiah’s correspondence began through a friend, Dominican Sister Renee Dreiling. She was the condemned man’s fifth- and sixth-grade teacher and had corresponded with him since his arrest.

Brother Jeremiah was intrigued when Sister Renee told him of Braun’s fascination with monastic life. Braun even viewed his life on death row in a monastic way, committing himself to prayer and spiritual reading.

Braun’s letters were full of questions. He fleshed out his scholarly knowledge of monasticism with questions about every day life at Conception Abbey. What was it like to pray in community? What was the silence like? He inquired about Brother Jeremiah’s journey from simple vows toward solemn vows (see Solemn profession...), which he professed in August, six weeks after Braun’s death.

As they grew closer, Brother Jeremiah read of Braun’s fears and remorse. “His letters were filled with so much pain,” Brother Jeremiah recalls. “He would vacillate. One letter would be full of self-hatred. He didn’t think God’s mercy could surpass the wrong that he’d done.” The next letter would radiate with hope. “He had a great devotion to Mary,” Brother Jeremiah reveals. “He knew that Jesus listened to his mother and that was a source of hope for him. In that way, God was approachable.”

In late June Braun’s execution date was set for July 20. It was then that he asked if Brother Jeremiah would come to Oklahoma for a visit. After much wrangling with red tape and prison rules, the monk found himself at the doors of H-Unit two weeks to the day before the execution date. As he entered the visiting chamber, he saw Braun for the first time, through reinforced glass and heavy metal bars. They talked by telephone for two hours.

“He talked briefly about his upcoming execution,” Brother Jeremiah recounts. “He was torn between whether he should hold out hope for his appeals or begin preparing for his death.” Braun tentatively discussed his crimes, referring to the times of the murders as “when the madness started.”

Then he caught himself and was silent for a moment. “I can’t describe the look that came over his face,” Brother Jeremiah says. “It was a look of sadness the likes of which I’d never seen before.” The two hours went quickly. When Brother Jeremiah stood to leave, Braun pressed his palm to the glass and the monk did the same.

“There was a moment when the bars and the glass seemed to disappear and we touched,” Brother Jeremiah says, his voice cracking. “Gregg said he loved me and thanked me for coming. I told him I was proud and honored to call him my brother and friend.” Shortly after that, Brother Jeremiah said goodbye. Braun corrected him. “I’ll see you later,” he said.

Victim's Former Husband Speaks Out

By Marsha Miller - The Daily Ardmoreite.com

July 19, 2000

Dusty Miller says when he watches the execution of his wife's killer, he will be honoring the wedding vows he made to her for the final time. "I took an oath to love, honor and protect my wife. I wasn't allowed to do it. Gregg Braun took that away from me. Making sure he pays for what he did -- it's the last thing I can do to honor those vows," Miller said.

Barring an unforeseen stay of execution, Braun is scheduled to die by lethal injection at 12:01 a.m. Thursday for the 1989 slaying of Gwendolyn Sue Miller. The local florist was one of five victims who died during the Garden City, Kan., man's five-day killing rampage that raged through four states.

Two other women, JoAnn Beane, formerly of Ardmore, and Mary Manning, Marietta, were wounded but survived Braun's murderous stop in Ardmore. Miller, who previously hesitated to discuss Braun's pending execution, changed his mind Tuesday. "We were afraid we would jinx it. But the attorney general's office has encouraged me to talk about it. Those who are trying to prevent it are talking," Miller said.

Miller, his family and Manning will travel to Oklahoma State Penitentiary at McAlester this afternoon. They will be joined by survivors of Braun's other victims: Mary Rains and Barbara Kochendorfer, both Garden City; P.E. "Pete" Spurrier, Pampa, Texas; and Geraldine Valdez, Springer, N.M. The group will meet with members of the attorney general's staff, who will brief them on the execution process.

They will also tour the prison and some will give interviews. Braun asked to be served a last meal of a chef salad with Italian dressing, barbecue beef or pork and a hot fudge brownie sundae. He didn't want his family to witness the execution.

They planned to be in McAlester, however, for a memorial service at a local Catholic church, his father, Lelyn Braun said. About 11:30 p.m., Braun will be escorted into the execution chamber.

Approximately 31 minutes later, the victims' survivors and other witnesses will listen to any final words Braun might offer and watch as the State of Oklahoma takes his life in exchange for ending life of the 31-year-old Ardmore woman.

Miller doesn't expect to hear apologies or words of remorse from Braun. "I haven't heard from him in 11 years. He could sit and write letters to others, but not to us. Some say he has expressed remorse, but every time he has had an opportunity to say something publicly he has used it to wisecrack.

At one point he told a reporter, 'Tell your editor thanks for the publicity,' That's just like a slap in the face," Miller said. "At this point I don't care. I don't need him to tell me he's sorry now."

While Braun has never attempted to contact any of the victims' survivors, Miller said his family did receive a letter of regret and sympathy from the killer's parents.

Shortly after Braun was arrested, Miller started carrying a photograph of his wife's murderer in his wallet. "I didn't want to forget him. After the shock, the grief, anger and depression I finally got tired of being reminded. It got to the point where it wasn't healthy anymore and I stopped," he said. Now Miller says all he wants is justice. "I feel it (execution) needs to be done. It closes a chapter in our lives. It won't be a complete closure, naturally we don't have Gwen any more," Miller said. "This person did not care for Gwen, her life or her future. He deserves to pay for what he did."

No Justice

By George P. Pyle, Journal Columnist. - The Salina Journal Online

July 21, 2000

THE ISSUE : The execution of Gregg Braun

THE ARGUMENT

Now he has dragged others into hell. It is early yet. Gregg Francis Braun only died at 17 minutes past midnight Thursday morning at the hands of the state of Oklahoma. But, so far, there have been no reports that any of the people he killed 11 years ago, in a crime spree that spanned four states and took five lives, have returned to the land of the living.

There is evidence, however, that the survivors of some of Braun's victims, cruelly misled by cravenly opportunistic politicians, did get to taste of the hell known only to those who wish the death of others.

Braun, son of a prominent Garden City, Kan., lawyer, who began life with every advantage and earned a college degree in criminal justice, fell into hell in July of 1989 when he kidnapped a clerk from a convenience store he had just robbed, took her to a country road and killed her.

Then he felt compelled to do it again, and again, in other towns. The killing that led to his own death was that of a florist from Ardmore, Okla. Braun also had been sentenced to life in prison in Kansas, New Mexico and Texas, and his family had tried to get one of those states to take him back and exact justice in their less violent way. But the states declined, and the Supreme Court would not intervene.

So now Braun has been killed. And some of the loved ones of those he killed got to watch, to taste a bit of the hell that Braun has lived all those years and -- perhaps -- still will.

The desire to see another person die is cruelty beyond description, no matter how cruel that person may have been. That desire is also quite natural, quite human, in circumstances such as these, as widowed wives and motherless children grasp for any peace, any balance, any (to use the currently en vogue term) closure they can find.

The point of the law, though, is to help us rise above our natural human urges and decide that we will not emulate the behavior of those we so rightly despise. That is why the state, not the widow or the orphan, is the officially aggrieved party in a murder case. That is why the cold, soulless state, not the emotionally wounded loved ones left behind, determine the facts, apply the law and search for something resembling justice.

But, somewhere along the way, those loved ones, and all who are hurt by vicious and senseless crime, were sold a bill of goods. We were told that killing the killer would bring us peace. We were told it would balance the unbalanceable, right the unrightable, soothe the unsoothable.

It does not. It will not. And to tell the most innocent victims of the most heinous crimes that it will do those things is a crime in itself. A crime committed by those who should know better.

State Executes Five-Time Killer

Shawnee Online

May 2, 2000

McALESTER, Okla. (AP) -- Gregg Francis Braun named his five victims one by one in the order he killed them in 1989 and said, "I'm sorry," just before being put to death early Thursday.

Braun, 39, strained against the straps that held him to a gurney in Oklahoma's death chamber as his apologies rolled forth like a chant. "I'm sorry I murdered you. I'm sorry I took your lives. I pray for our Lord Jesus Christ to bless your lives and to save you. I'm so sorry I killed you," the Kansas man said. He was pronounced dead at 12:17 a.m., six minutes after receiving a lethal mix of drugs.

Braun received the death sentence for killing an Ardmore, Okla., florist. His execution came on the eve of the 11th anniversary of her murder. His last statement rambled over 3 minutes and was sometimes slurred.

He apologized to his victims' families, also naming them one by one. He also apologized to the people he injured in his four-state murder spree. "What I did was unforgivable, but I ask you to forgive me," he said, as three dozen family members of his victims watched inside a witness room or via closed circuit television.

Braun shot and killed Gwendolyn Sue Miller, 31, while robbing her parents' Ardmore flower shop. Two other women shot at the same time survived. Miller's husband, Dusty, and their three children traveled to the Oklahoma State Penitentiary to witness the execution. "It's never going to go away," Miller said, "but at least we're not going to have to deal with him on an ongoing basis." When New Mexico law officers caught up with Braun on July 23, 1989, he told them, "You guys must be proud. You don't know what kind of famous criminal you caught."

His killing spree had begun five days earlier after he robbed a convenience store in his hometown of Garden City, Kan. Braun took the clerk to a rural road and shot her. He would later tell police he felt he had to kill again and chose another store clerk. Their bodies were found on the same road. Mary Rains left behind three young children.

Barbara Kochendorfer left behind five. "The youngest was 2," said Angie Bentley, Kochendorfer's sister, who also came to witness the execution. "He's affected a lot of families, not just hers. Babies. They're not going to grow up with their mothers."

On July 20, Braun killed E.P. "Pete" Spurrier while robbing his one-hour photo store in Pampa, Texas. Two days after the Oklahoma slaying, he killed Geraldine Valdez at the Springer, N.M., convenience store where she worked. Braun was captured a short time later. He received life sentences for the murders in Kansas, New Mexico and Texas.

Braun graduated college with a degree in criminal justice. His father, Lelyn, a lawyer in Garden City at the time of the murders, blamed drugs for turning his youngest son into a murderer.

"He's found peace with God," Lelyn Braun said in the days before the execution. Braun apologized to his own family in his last statement. Then, he let out a long deep sigh before saying, "Save me Mother Mary from the eternal damnation I deserve." "I'm not an animal. I'm so sorry," he said. "I'm so sorry," Braun's defense had sought to have him returned to New Mexico to serve the life sentence there.

But New Mexico courts rejected extradition efforts Wednesday, and the U.S. Supreme Court denied his final appeal just hours before the execution. Spurrier's son, Bill, lamented that his father would never meet his great-grandson. He said he felt sorry for Braun's family, too. "But they do get the opportunity to say goodbye," he said. "I had to go to my father's grave and say goodbye to the headstone."



1995 OK CR 42
909 P.2d 783

GREGG FRANCIS BRAUN, PETITIONER,
v.
THE STATE OF OKLAHOMA, RESPONDENT.

Case No. C-93-993.
August 7, 1995
Rehearing Denied September 12, 1995.

Appeal from the District Court, Carter County, Thomas S. Walker, J.

OPINION

LUMPKIN, Judge.

�1 Petitioner Gregg Francis Braun pled nolo contendere to Count I, Murder in the First Degree (21 O.S.Supp. 1989 � 701.7 [21-701.7](A or B)); Count II, Shooting with Intent to Kill (21 O.S.Supp. 1987 � 652 [21-652]); Count III, Shooting with Intent to Kill (21 O.S.Supp. 1987 � 652 [21-652]); Count IV, Robbery with Firearms (21 O.S.Supp. 1982 � 801 [21-801]); and Count V, Robbery with Firearms (21 O.S.Supp. 1982 � 801 [21-801]) in Carter County Case No. CRF-89-332. The Honorable Thomas S. Walker, District Judge, sentenced Petitioner to twenty-five (25) years on each robbery count and life on each count of Shooting with Intent to Kill. After finding the presence of three aggravating circumstances, the trial court sentenced Petitioner to death for the murder. The trial court ordered each sentence to be served consecutively. Petitioner subsequently filed a motion to withdraw his guilty plea, which the trial court denied. We affirm that denial. 1

I.

�2 The charges arose from the July 21, 1989, robbery of Dodson Floral shop in Ardmore. After taking money from the shop's cash register and money from customer Mary Manning's purse, Appellant calmly herded Ms. Manning and shop employees Jo Ann Beane and Gwendolyn Miller into a room in the back of the shop, ordered them to lie on the floor, then shot each woman in the head with a .25 caliber pistol. Although temporarily blinded and made deaf by the shot, Ms. Beane managed to crawl to the telephone, pull it off the counter, and notify authorities by shouting into the telephone after giving them what she thought would be time to answer the call. Ms. Beane and Ms. Manning survived; Ms. Miller did not.

�3 In addition to an eventual eyewitness identification from a photographic lineup, authorities found shell casings in the flower shop; a firearms expert later determined the casings were fired from the same pistol Petitioner had when he was apprehended in New Mexico. Braun's fingerprint was also found on a receipt from Ms. Manning's purse. When Appellant was apprehended in New Mexico, he told authorities of the Ardmore homicide, as well as homicides in Kansas and Texas. When he was asked how he could shoot someone in the back of the head like he did, he chuckled and said "It wasn't as good as shooting craps in Vegas, but it was all right."

�4 Other evidence produced at Petitioner's sentencing hearing showed the Ardmore murder was one in a series of murders across four states. Petitioner started in Garden City, Kansas, where he killed two convenience store clerks after robberies. He then drove to Pampa, Texas, where he killed a man in a photograph development store. The murder in Ardmore followed. The last one was in New Mexico, where he again killed a convenience store clerk. As of the date of his Oklahoma plea, he had received a life sentence (in addition to thirteen (13) years for another crime) in New Mexico; and four consecutive life sentences (in addition to two 15-year terms) in Kansas. Those victims time were also shot by a .25 caliber pistol, and casings recovered from the scenes were fired from the pistol Petitioner had in his possession when he was arrested. There was no evidence indicating the disposition of any crimes in Texas.

�5 Based on the evidence presented during the sentencing hearing, the court found the existence of three aggravating circumstances: that Petitioner knowingly created great risk of death to more than one person (21 O.S. 1981 � 701.12 [21-701.12](2)); the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution (21 O.S. 1981 � 701.12 [21-701.12](5)); and the existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society (21 O.S. 1981 � 701.12 [21-701.12](7)). The court did not find a fourth aggravating circumstance alleged: that Petitioner was previously convicted of felony involving use of threat or violence to person (21 O.S. 1981 � 701.12 [21-701.12](1)).

II.

�6 For his first proposition, Petitioner contends he was denied the assistance of counsel in the hearing on his motion to withdraw his nolo contendere plea to the charge of murder. 2 To fully understand this proposition, some background is necessary.

�7 James T. Rowan of the capital defense litigation team was appointed to represent Petitioner. Petitioner also had local counsel, Phil Hurst. Counsel filed several motions. Pursuant to a local court rule, the trial court ordered counsel to submit a brief in support of each motion, in addition to the motion itself. Although counsel filed a memorandum brief in support of a motion for change of venue, the record does not reflect an actual motion for change of venue was filed; nor does it indicate affidavits by county residents were filed, as required by 22 O.S. 1991 � 561 [22-561]. The trial court ordered stricken the motions not supported by brief; apparently (though never specifically stated), the brief not supported by motion for change of venue was stricken at the same time.

�8 After the plea, Mr. Rowan signed and filed on Petitioner's behalf a "Motion to Withdraw Nolo Contendere Plea and Have Attorney Appointed to Represent Him." The motion alleged the plea was involuntary. New counsel was requested "in order to allow the Defendant full latitude in exploring any grounds he may have to in support of his motion to withdraw his Nolo Contendere plea."

�9 At the September 21 hearing, Mr. Rowan was present, but not as Petitioner's counsel. According to the court, the Indigent Defense System had made arrangements for another attorney to represent Petitioner at the hearing; however, that attorney was not present, and the record is otherwise silent. Petitioner then elected to proceed pro se. He now claims the record was insufficient to show his decision to proceed pro se was voluntarily or knowingly made. We disagree.

�10 A waiver of counsel is valid only if it is done knowingly and voluntarily. See Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). A record of the knowing and voluntary waiver is mandatory, and absent a sufficient record, waiver will not be found. Lineberry v. State, 668 P.2d 1144, 1145-46 (Okl.Cr. 1983). We have held repeatedly that the record must show the trial court advised the defendant of the dangers and disadvantages of self-representation to establish a record sufficient to support valid waiver of counsel. See Stevenson v. State,

�11 In Swanegan, we said that before an accused may represent himself or herself, the trial court is required to determine whether the accused has the capacity to make a valid waiver of right to counsel. The court must then examine the defendant and determine whether the waiver is voluntary, knowing and intelligent. In doing this, the trial judge must clearly explain to the defendant the inherent disadvantages in such a waiver. Id; see also Coleman v. State, 617 P.2d 243, 245-46 (Okl.Cr. 1980).

�12 Whether there has been a valid waiver of right to counsel is to be determined from the total circumstances of the individual case including background, experience and conduct of the accused. United States v. Warledo, 557 F.2d 721 (10th Cir. 1977). Further, where a defendant elects self-representation, he may not later be heard to complain that he was denied effective assistance of counsel. Green v. State, 759 P.2d 219, 221 (Okl.Cr. 1988), citing Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), and Johnson, 556 P.2d at 1297.

�13 An examination of the record before this Court shows the trial court began with the observation Petitioner had the right to represent himself, adding a caveat the court must be satisfied Petitioner understood what he was doing and was not coerced, pressured or threatened into doing so. He then asked Petitioner if he wanted to represent himself. Petitioner responded:

Well, at this hearing because the lawyer that was appointed to represent me � I haven't heard from him. I haven't met him. He didn't show up today, and I don't want to be brought back here again and go through all this again, so I'm ready to represent myself at this hearing today.

(WD Tr. 4). Petitioner then reaffirmed he knew another attorney had been appointed for him, but that attorney had not contacted him.

So today when I showed up, I assumed he would be here; and he's not. So I'm � I don't even want to deal with the guy, and I'm prepared to represent myself at this hearing.

(WD Tr. 5). The court then said:

If you want, I will entertain your request to reset the hearing whenever this lawyer, whether it's Mr. Payne or somebody else, can be here. If you want to represent yourself as I told you earlier, I cannot deny you that as long as I am convinced that you know that you're doing, and some prosecution person didn't give � force you to do it.

(WD Tr. 5); to which Petitioner responded:

Yes. I'll represent myself, and I've already discussed � I know what's going on with this hearing and what it's about, and I'm prepared to represent myself.

(WD Tr. 5-6). He added he was under no pressure, and no promises had been made. In response to yet another question from the court, Petitioner said he wanted to represent himself at that time. The court then repeated his offer of a delay, saying he would "put this hearing off in a second attempt, if you will, to have an attorney here to represent you." Petitioner said he understood that, adding he would prefer to proceed pro se (WD Tr. 6). The court again pressed the question, stating:

So if there is any question in your mind or there is something else about these circumstances that I need to know about, this is the time to tell me. I mean, this isn't � I hesitate to use the word, "game," given the circumstances. But this isn't a situation of just going through the motions. Even though it's not my life that's on the line, I'm taking this just as seriously as you are. And so if there's something else I need to know, Mr. Braun, today at this hearing is the time to tell me about it. Is there some other circumstance that I don't know about that's causing you to tell me you're going to represent yourself?

THE DEFENDANT: Well, in a way; but then again, uh, I'm really tired of being moved around, you know, here in this jail, being stuck in a holding cell and things like this for a day or two; and to come in here, and some lawyer who I don't even know isn't here. And then they say, "Well, we'll put it off again." And, you know, they'll take me back to prison, and they'll drag me up here in a few more days, and blah, blah, blah. And I just want to do it now, and I understand what's going on. I know what this is about, and I've discussed it with Jim prior to today; and I am prepared to do it today regardless of the outcome or the consequences because basically, I know I'm here to tell my side of the story of why I plead nolo contendere, and I don't need a lawyer to do that.

(WD Tr. 7-8). After being warned he could be cross-examined if he took the stand, Petitioner replied:

I � I wouldn't need one to consult on cross-examination because basically, I know � I know what I'm gonna testify to, and it's all fact, and it's all true. So I'm not worried about being cross-examined.

THE COURT: Well, but there's a little bit more to it than that. Just as I can't read your mind, I can't read [the prosecutor's] mind. He may call witnesses too, which will mean you would be in the position of having to cross-examine [the prosecutor's] witnesses; and again, you would be doing that without a lawyer. Do you understand that?

THE DEFENDANT: Yes, sir, I do.

THE COURT: And you're prepared to do that?

THE DEFENDANT: Yes, sir.

Based on this exchange, the court found the waiver was knowing and voluntary (WD Tr. 9).

�14 This record shows Petitioner was offered counsel but intelligently and understandingly rejected the offer, that he knew what he was doing and his choice was made "with eyes open." Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268 (1942). The waiver of counsel was both knowing and voluntary.

�15 It is clear Petitioner was impatient as well as dissatisfied with his jail cell. However, that does not mean he did not knowingly and intelligently waive his right to counsel at the hearing. As we said in Johnson,

The test whether a defendant has intelligently elected to proceed pro se is not the wisdom of the decision or its effect upon the expeditious administration of justice. It is only necessary that a defendant be made aware of the problems of self-representation so the record establishes that he understands that his actions in proceeding without counsel may be to his ultimate detriment.

Johnson, 556 P.2d at 1294. Or, put another way:

[T]his court recognize that the defendant cannot use his right to counsel "to play a `cat and mouse' game with the court, or by ruse or stratagem fraudulently seek to have the trial judge placed in a position where, in moving along the business of the court, the judge appears to be arbitrarily depriving the defendant of counsel."

United States v. Willie, 941 F.2d 1384, 1390 (10th Cir. 1991), cert. denied, 502 U.S. 1106, 112 S.Ct. 1200, 117 L.Ed.2d 440 (1992) (quoting United States v. Allen, 895 F.2d 1577, 1578 (10th Cir. 1990)).

�16 Accordingly, this proposition is without merit under the total circumstances of this case. 3

III.

�17 For his second proposition, Petitioner claims his trial counsel was ineffective. He claims that but for counsel's improper handling of the motion for change of venue, he would not have pled nolo contendere and would have insisted on going to trial. In addition to his own testimony, Petitioner called Mr. Rowan, who said he should have properly filed the motion for change of venue, but did not, and had no strategic reason for not doing so.

A.

�18 Petitioner correctly cites Hill v. Lock-hart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) as the proper law for ineffective assistance of counsel in guilty plea cases. Under that standard, in order to obtain relief for ineffective counsel after a guilty plea, a petitioner must show first "counsel's representation fell below an objective standard of reasonableness." Id., 474 U.S. at 57, 106 S.Ct. at 369 (citing Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064-65, 80 L.Ed.2d 674 (1984)). Second, a petitioner must show prejudice, which in the context of a guilty plea "focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process." Id. 474 U.S. at 59, 106 S.Ct. at 370. Or, as the Court rephrased the requirement, a petitioner "must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. See also Medlock v. State,

�19 For reasons stated below, we need not address whether counsel's representation fell below an objective standard of reasonableness, as we find nothing in the record showing that but for any alleged substandard representation, Petitioner would not have pled nolo contendere and would have insisted on going to trial.

B.

�20 Initially, although he had ample opportunity to do so, Petitioner at no time during his nolo plea complained of his counsel's performance. To the contrary, when asked, Petitioner said he was satisfied with his counsel's representation. He qualified this statement during the hearing on the application to withdraw the plea by saying he felt representation was good and pleading was his best option of the options available to him at the time, after the court refused to consider his motion for change of venue. He also admitted he made no mention of his complaint against counsel at the sentencing hearing, saying he did not think there would be any point in doing so.

�21 More telling is Petitioner's response to the prosecutor's question concerning the sentence received. During cross-examination, the following exchange occurred:

Q. Did I hear you just telling Judge Walker that had he imposed a life without parole sentence, you wouldn't be up there today, asking to withdraw?

A. No, sir. I'd be back in Santa Fe.

Q. So your basic burr is the sentence you got.

A. Well, yes and �

Q. Yes or no?

A. The basic? Yes, that is the basic.

(WD Tr. 19-20; see also statement by counsel at WD Tr. 50). Petitioner also admitted his plea was not involuntary.

�22 Also entering into Petitioner's calculus was his wish to personally speak to the jury. Petitioner testified that, even after the change of venue was stricken, Petitioner asked his counsel to file a motion to allow him to argue before the jury during the penalty phase for ten or fifteen minutes. If that was successful, Petitioner testified he would "go with the jury." (WD Tr. 13). On the other hand, if the motion was denied, Petitioner said he would "go ahead with the plea" (WD Tr. 13, 48).

�23 This evidence, combined with his failure to complain of counsel during two earlier hearings despite opportunities to do so, and his prior experiences with the judicial system, negates Petitioner's testimony that but for counsel's errors, he would have not pleaded nolo contendere and would have insisted on going to trial. See Wilhite v. State, 845 S.W.2d 592, 595 (Mo. Ct. App. 1992). From this, it seems clear Petitioner pled nolo contendere not because he failed to get a change of venue, but because he would not be allowed to speak to the jury and he received the death penalty.

�24 Petitioner admitted he elected to plead in front of the judge because he thought he had a better chance of receiving life without parole. Under the circumstances, this seems a sound strategic choice. Medlock, 887 P.2d at 1345; Estell, 766 P.2d at 1382. 4

C.

�25 Dissatisfaction with sentence aside, Petitioner has failed to show prejudice as it is defined in Hill. This Court has never discussed extensively the "prejudice" prong of incompetent counsel in guilty pleas. Here, such a discussion is beneficial to further show why reversal is not warranted.

�26 A petitioner in most instances must do more than simply testify that but for counsel's errors, he would not have pled guilty or nolo contendere and would instead have insisted on going to trial. We do not think it would surprise courtroom observers to know most defendants who received a death sentence after a plea would seek to withdraw that plea. Accordingly, any court would tend to cast a suspicious eye toward testimony from a person whose credibility on the subject is at best suspect.

�27 The Supreme Court, too, requires more than a simple assertion by a defendant.

In many guilty plea cases, the "prejudice" inquiry will closely resemble the inquiry engaged in by courts reviewing ineffective assistance challenges to convictions obtained through a trial. For example, where the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence, the determination whether the error "prejudiced" the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial. Similarly, where the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged, the resolution of the "prejudice" inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial. See, e.g., Evans v. Meyer, 742 F.2d 371, 375 (CA7 1984) ("It is inconceivable to us . . . that [the defendant] would have gone to trial on a defense of intoxication, or that if he had done so he either would have been acquitted or, if convicted, would nevertheless have been given a shorter sentence than he actually received"). As we explained in Strickland v. Washington, supra, these predictions of the outcome at a possible trial, where necessary, should be made objectively, without regard for the "idiosyncrasies of the particular decisionmaker." Id., 466 U.S., at 695, 104 S.Ct. at 2068.

Hill, 474 U.S. at 59-60, 106 S.Ct. at 370-71; see also State v. Soto, 121 Idaho 53, 822 P.2d 572, 574 (Idaho Ct.App. 1991). Here, we must therefore examine the evidence to determine if the motion for change of venue would have succeeded; and if such a motion would have changed the outcome of a trial.

1.

�28 We begin by addressing Petitioner's complaint his trial counsel did not file the three affidavits in support of a motion as required by 22 O.S. 1991 � 561 [22-561]. We have "held as early as 1916, and consistently since, that the affidavits raise a question just as any other question of fact that might be submitted to the trial judge, and unless it is clear that he has abused his discretion, or committed error in his judgment, his finding and judgment will not be disturbed by this Court." Walker v. State, 723 P.2d 273, 278 (Okl.Cr.), cert. denied, 479 U.S. 995, 107 S.Ct. 599, 93 L.Ed.2d 600 (1986) (quoting Johnson, 556 P.2d at 1289). Therefore, although statutorily required, the act of filing the affidavits do not in and of themselves dispose of the issue.

2.

�29 We then observe the rebuttable presumption an accused can receive a fair trial in the county in which the offense occurred and the burden of persuasion is on the accused, who must show actual exposure to the publicity and resulting prejudice by clear and convincing evidence. Brown v. State, 871 P.2d 56, 62 (Okl.Cr.), cert. denied, ___ U.S. ___, 115 S.Ct. 517, 130 L.Ed.2d 423 (1994); Shultz v. State, 811 P.2d 1322, 1329-30 (Okl.Cr. 1991). Merely showing that pre-trial publicity was adverse to him is not enough. Id.; Bear v. State,

�30 In those instances, we have applied a two-pronged test to determine whether juror knowledge and pre-trial publicity violated due process. Shultz, supra. We have adopted the two-part test set forth by the United States Supreme Court to aid an appellate court in reviewing allegations of due process violations arising from prior knowledge by jurors and pre-trial publicity. See Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975).

�31 First, there are cases in which prejudice will be presumed, if the fact pattern reveals "the influence of the news media, either in the community at large or in the courtroom itself, pervaded the proceedings." Id. at 799, 95 S.Ct. at 2035. The key to this standard appears to be the "solemnity and sobriety to which a defendant is entitled in a system that subscribes to any notion of fairness and rejects the verdict of the mob." Id. If the facts are not sufficiently egregious to give rise to the presumption, the "totality of circumstances" will be examined to determine whether the defendant received a trial which was "fundamentally fair." Id. At a trial, a review of the case should focus on the voir dire statements of the individual jurors, voir dire statistics, and the community atmosphere as reflected in the news media. Id. at 800-08, 95 S.Ct. at 2036-40.

�32 In the present case, we find nothing in the record to indicate the influence of the news media pervaded the proceedings, nothing to show a "barrage of inflammatory publicity or that the jurors were predisposed to convict." Shultz, 811 P.2d at 1330. We recognize we have previously denied Petitioner's attempts to supplement the record with Exhibits A through FFF, consisting of newspaper articles from the Daily Ardmoreite and The Daily Oklahoman which relate to Petitioner's case. See Order Denying Motion to Supplement filed July 28, 1994, and Order Denying Motion to Reconsider filed August 31, 1994. We find now, as we did then, the mere fact pretrial publicity was adverse to him is not enough. See Gregg v. State, 844 P.2d 867, 871 (Okl.Cr. 1992). Petitioner did not assert that although the details in the articles may not have been flattering, they were not factual and were invidious or inflammatory in nature. See Rojem v. State, 753 P.2d 359, 365 (Okl.Cr.), cert. denied,

Mere exposure to publicity surrounding a criminal case simply does not demonstrate prejudice. Media coverage extends to most homicides, particularly capital cases. As stated many times by this Court, a defendant is not entitled to jurors ignorant of his case. Wooldridge v. State, 659 P.2d 943 (Okl.Cr. 1983). "It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented." Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1643, 6 L.Ed.2d 751, 756 (1961).

Id. We also find it somewhat dispositive that the publicity occurred over a four-year period. See Hayes v. State, 738 P.2d 533, 538 (Okl.Cr. 1987), vacated on other grounds, 486 U.S. 1050, 108 S.Ct. 2815, 100 L.Ed.2d 916 (1988) (of 27 news articles presented, all were published one and one-half years before trial). Accordingly, we see nothing to indicate the news media pervaded the proceedings.

�33 In the absence of allegations of such egregious publicity, we refuse to apply the presumption that a due process violation occurred in this case. Bear, 762 P.2d at 953; Harvell v. State, 742 P.2d 1138, 1141 (Okl.Cr. 1987).

�34 If the facts are not sufficiently egregious to give rise to a presumption of prejudice, the totality of the circumstances will be examined to determine whether the accused received a trial which was fundamentally fair. Murphy, 421 U.S. at 799, 95 S.Ct. at 2035-36. Again, we observe "[q]ualified jurors need not . . . be totally ignorant of the facts and issues involved." Id. at 799-800, 95 S.Ct. at 2036. As this Court has observed:

It is not required, however, that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. This is particularly true in criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.

Rowbotham v. State, 542 P.2d 610, 615-16 (Okl.Cr. 1975), modified on other grounds, 428 U.S. 907, 96 S.Ct. 3218, 49 L.Ed.2d 1215 (1976) (quoting Irvin v. Dowd, �35 In the past, we have rejected claims that extensive publicity necessitated reversal. See e.g., Dutton v. State, 674 P.2d 1134, 1137 (Okl.Cr. 1984) (Despite fact a co-defendant was granted a change of venue, Appellant failed to overcome the presumption that he was able to receive a fair trial); Stafford v. State, 669 P.2d 285, 290 n. 1 (Okl.Cr. 1983), vacated on other grounds,

�36 Having determined that a change of venue, even if properly presented, would in all probability not have been successful, we examine whether, even if one had been granted, Petitioner would have been assessed a penalty of life or life without parole. We have set out the evidence in aggravation below. Based on this evidence, we do not find error, and find it was not imposed under the influence of passion or prejudice.

D.

�37 Petitioner also argues he should be allowed to withdraw his plea because he was misled by the trial court into believing he would get life without parole. This is not supported by the record.

�38 Petitioner claims co-counsel Phil Hurst had a telephone conversation with the judge, who reportedly said he could not believe the prosecutor was not pleading out the case for a life without parole sentence, given the fact Petitioner was required to serve a total of 126 years on his sentences in New Mexico and Kansas before he would be eligible for parole. The judge also reportedly mentioned the economics of sentencing someone to death during the telephone conversation. Based on these comments, Petitioner claims he and his attorneys believed he would receive life without parole if he pled nolo contendere.

�39 Other evidence weakens his argument, however. During the plea and sentencing hearings, no mention was made of this reported conversation, even though Petitioner was given an opportunity to speak. The transcript makes it clear Petitioner was told he could receive the death penalty, even on a plea of nolo contendere; and that the prosecutor would seek the death penalty on a plea (P Tr. 11). The judge also informed Petitioner what evidence must be presented before the court could consider the death penalty; and if the death penalty were assessed, an appeal would be automatic (P Tr. 12).

�40 In addition to that evidence, Petitioner admitted on cross-examination during the hearing on his application to withdraw his plea his attorneys told him he would have a "fifty-fifty shot" of receiving life or life without parole, compared to only about a "ten percent shot" with a jury (WD Tr. 18). That Petitioner knew he could possibly receive the death penalty even after the purported telephone conversation between defense counsel and the judge � together with his admission he was aware of the possibility he could receive the death penalty (WD Tr. 21); his admission he "rolled the dice" and took his chances (WD Tr. 37); and the belief of counsel the judge was "more insulated from public opinion than a jury would be" (WD Tr. 48) � indicates he was not misled by anything that may have been said in that conversation.

�41 It is this factual difference which renders Petitioner's sole authority on this point invalid. In Porter v. State, 58 Okl.Cr. 54, 49 P.2d 234 (1935), statements by the prosecutor actively misled the defense attorney to advise his client to plead guilty. Here, the prosecutor did not mislead Petitioner. Nor did the trial court. Nowhere did Petitioner allege the court promised a life without parole sentence on a guilty plea; indeed, there was no evidence at all to even indicate the court intended the private, ex parte conversation � even if made � to be taken as an indication of what the court would do if faced with a guilty plea. It is because there was no action by the State, either by the prosecutor or the court, that Petitioner's allegation here fails.

�42 The record before us indicates Petitioner relied on his attorneys' knowledge of the law, and their instincts. That is not improper, and does not warrant allowing the plea to be withdrawn.

�43 In Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), the petitioner had been charged under federal statutes with kidnapping. He entered a knowing and voluntary plea of guilty. Nine years after the plea, the Court held federal provisions providing for the death penalty only upon the recommendation of the jury was unconstitutional. Based on this, Brady sought to withdraw his plea. The Court held the new ruling was of no avail to Brady. In addition the possibility that his plea might have been influenced by an erroneous assessment of the sentencing consequences if he had proceeded to trial did not render his plea invalid. The Court observed:

Often the decision to plead guilty is heavily influenced by the defendant's appraisal of the prosecution's case against him and by the apparent likelihood of securing leniency should a guilty plea be offered and accepted. Considerations like these frequently present imponderable questions for which there are no certain answers; judgments may be made that in the light of later events seem improvident, although they were perfectly sensible at the time. The rule that a plea must be intelligently made to be valid does not require that a plea be vulnerable to later attack if the defendant did not correctly assess every relevant factor entering into his decision. A defendant is not entitled to withdraw his plea merely because he discovers long after the plea has been accepted that his calculus misapprehended the quality of the State's case or the likely penalties attached to alternative courses of action. . . .

Id., 397 U.S. at 756-57, 90 S.Ct. at 1473. Similarly, the Court held in McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970), that a counseled defendant may not make a collateral attack on a guilty plea on the allegation that he misjudged the admissibility of his confession. "Waiving trial entails the inherent risk that the good-faith evaluations of a reasonably competent attorney will turn out to be mistaken either as to the facts or as to what a court's judgment might be on given facts." Id. at 770, 90 S.Ct. at 1448. See also Tollett v. Henderson, 411 U.S. 258, 267-68, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235 (1973), where the Court observed:

The principal value of counsel to the accused in a criminal prosecution often does not lie in counsel's ability to recite a list of possible defenses in the abstract, nor in his ability, if time permitted, to amass a large quantum of factual data and inform the defendant of it. Counsel's concern is the faithful representation of the interest of his client and such representation frequently involves highly practical considerations as well as specialized knowledge of the law. Often the interests of the accused are not advanced by challenges that would only delay the inevitable date of prosecution, . . . or by contesting all guilt. . . . A prospect of plea bargaining, the expectation or hope of a lesser sentence, or the convincing nature of the evidence against the accused are considerations that might well suggest the advisability of a guilty plea without elaborate consideration of whether pleas in abatement, such as unconstitutional grand jury selection procedures, might be factually supported.

Id. (citations omitted). See also Wellnitz v. Page, 420 F.2d 935, 936-37 (10th Cir. 1970) (While a reckless promise by counsel may necessitate relief, an attorney may offer a prediction, "based upon his experience or instinct," of the sentence possibilities a defendant should weigh in determining upon a plea. "An erroneous sentence estimate by defense counsel does not render a plea involuntary. And a defendant's erroneous expectation, based on his attorney's erroneous estimate, likewise does not render a plea involuntary." (citations omitted)).

�44 Accordingly, this subproposition is without merit.

E.

�45 Petitioner also claims his plea was invalid because he did not voluntarily and intelligently waive his right to a trial by a fair and impartial jury. For the reasons given above, this is without merit. Petitioner has failed to show that a change of venue would have been successful; or, if it had, the outcome would have been different, given the overwhelming evidence against him. Additionally, the record before this Court shows the trial court painstakingly inquired of Petitioner as to all his rights, and that Petitioner waived each and every right afforded to him, including the right to a trial by jury.

F.

�46 For the reasons stated above, we find that, even if his attorney had properly lodged his motion for change of venue, the outcome of the proceedings would have not changed. Accordingly, we find no merit to Petitioner's second proposition of error.

IV.

�47 For his third proposition, Petitioner argues there was insufficient evidence to support two aggravating circumstances: the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution; and the existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. Petitioner does not contest the evidence in support of the aggravating circumstance he knowingly created a great risk of death to others. We shall address them in that order.

A.

�48 Concerning the aggravating circumstance the murder was committed to avoid a lawful arrest or prosecution, Petitioner is correct in stating this Court requires more evidence than simply showing a potential witness was killed during a robbery. The prosecution must prove evidence of the defendant's intent at the time of the murder. Stouffer v. State, 738 P.2d 1349, 1361-62 (Okl.Cr.), cert. denied, 484 U.S. 1036, 108 S.Ct. 763, 98 L.Ed.2d 779 (1987); Banks v. State,

�49 After Petitioner obtained the money from the shop's cash register, he was ordering the shop workers into the back room when Ms. Manning came in through the shop's front door. At that point, Petitioner hesitated, then told Ms. Beane to call the customer to the rear of the store. Ms. Beane implored him not to have her called back there, as there was no evidence she knew Petitioner was there. In response, Petitioner momentarily hesitated "as if this was a thought" (S.Tr. 16). He quickly changed his mind, however, ordering the woman back. In the light most favorable to the prosecution, Brown, 871 P.2d at 76, this shows he did not want to be detected by someone else after the robbery, or run the risk the sounds of gunshots would draw attention from someone in the front of the store.

�50 Petitioner argues the evidence by his psychological experts shows he wanted to kill the women to experience some kind of emotional or psychological release; and it was this, not to avoid arrest or prosecution, which was the motive for the murder. Even if this were true, it does not preclude the likelihood he killed to avoid arrest for the robberies. Had Petitioner been caught, he would be unable to kill again and would be unable to attain the emotional release he points to on appeal.

�51 This subproposition is without merit.

B.

�52 Petitioner next argues there was insufficient evidence to support the court's finding there existed a probability the defendant would commit criminal acts of violence that would constitute a continuing threat to society. Petitioner acknowledges the murder not only in Oklahoma, but also two in Kansas and one in New Mexico. He argues his four life sentences (together with an additional consecutive 30 years) in Kansas, which will run consecutive not only to the life (and 15-year) sentence in New Mexico but also to each other, preclude the possibility of his ever being a threat to the citizens of Oklahoma.

�53 There is also evidence � presented by Petitioner himself � that he suffers from a severe borderline personality (or even antisocial personality) disorder, a disorder for which there is no cure but only therapy to lessen its effects. Petitioner points to evidence his experts said there was a possibility the disorder's effects would lessen over time. These same experts also admitted there was a possibility Petitioner would be dangerous for the rest of his life, even with treatment. Moreover, the evidence showed there was no way to accurately predict when his outbursts would occur.

�54 Petitioner acknowledges the disorder, but argues it should be viewed as mitigation, not evidence in aggravation. We need not draw a "bright line" on the use of this evidence, as Petitioner urges; because in addition to this disorder, the evidence showed Petitioner harbored a deep-seated bitterness and hostility toward authority figures. This makes him a danger not only to other inmates, but also prison officials and employees. This was reenforced by evidence showing that, even while incarcerated and therefore not likely on illicit drugs or alcohol, Petitioner had assaulted a guard in the New Mexico prison system; and Kansas officials twice found homemade weapons in his jail cell.

�55 We have previously held "society" can apply to a prison population. See Berget v. State, 824 P.2d 364, 374 (Okl.Cr. 1991), cert. denied, 506 U.S. 841, 113 S.Ct. 124, 121 L.Ed.2d 79 (1992); see also Brown, 871 P.2d at 77 n. 9 ("[W]e are not able to ascertain how many others in society Appellant could threaten should they become an irritant to him. It is the attitude and actions of Appellant himself, not the number of people threatened, which determines whether he might commit future acts of violence and be a threat to society.") And despite Petitioner's assertions to the contrary, there does exist the possibility, however small, Petitioner could one day be returned to Oklahoma even if his death sentence were to be set aside. This possibility, together with his past crimes and his attitude toward authority figures, more than amply supports the court's finding Petitioner would be a continuing threat to society.

�56 In light of our holding, we need not address Petitioner's third subproposition, that there is insufficient evidence in aggravation to survive reweighing.

�57 This proposition is without merit.

V.

�58 Petitioner alleges in his fourth proposition of error the aggravator that the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution has been interpreted in an unconstitutionally vague manner. We have previously held this aggravating circumstance requires that there be a predicate crime, separate from the murder, for which the appellant seeks to avoid arrest or prosecution. Barnett, 853 P.2d at 233. There, we explained:

[W]here such crimes are not separate and distinct from the murder itself, but rather significantly contribute to the death, they may not be used as the predicate crime for purposes of this aggravating circumstance. To hold otherwise would undermine the clear purpose of this aggravating circumstance.

Id. at 234. See also Castro v. State, 844 P.2d 159, 175 (Okl.Cr. 1992), cert. denied, ___ U.S. ___, 114 S.Ct. 135, 126 L.Ed.2d 98 (1993), where we held our interpretation of this aggravating circumstance was not unconstitutional.

�59 This proposition is without merit.

VI.

�60 Appellant next contends the aggravating circumstance of continuing threat is constitutionally vague and overbroad. We have repeatedly addressed this complaint and have repeatedly found it lacking. See Brown, 871 P.2d at 73, and cases cited therein. We do so again. This fifth proposition is wholly without merit.

VII.

�61 In his sixth proposition, Petitioner contends his death sentence must be vacated because the "great risk of death" aggravating circumstance 7 is being interpreted in an unconstitutional manner.

�62 Petitioner concedes this issue has been addressed and disposed of in the past. See Cartwright v. Maynard, 802 F.2d 1203, 1221-22 (10th Cir. 1986), rev'd on other grounds on rehg., 822 F.2d 1477, aff'd, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988), and cases cited therein; see also Smith v. State, 727 P.2d 1366, 1373 (Okl.Cr. 1986), cert. denied,

MANDATORY SENTENCE REVIEW

�63 This Court is required by 21 O.S. 1991 � 701.13 [21-701.13](C) to determine whether (1) the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor, and (2) whether the evidence supports the factfinder's finding of aggravating circumstances as enumerated in 21 O.S. 1981 � 701.12 [21-701.12]. Pursuant to this mandate, we shall first determine whether the evidence was sufficient to support the imposition of the death penalty.

�64 The court found the existence of three aggravating circumstances: that Petitioner knowingly created great risk of death to more than one person (21 O.S. 1981 � 701.12 [21-701.12](2)); the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution (21 O.S. 1981 � 701.12 [21-701.12](5)); and the existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society (21 O.S. 1981 � 701.12 [21-701.12](7)). The court did not find a fourth aggravating circumstance alleged: that Petitioner was previously convicted of felony involving use of threat or violence to person (21 O.S. 1981 � 701.12 [21-701.12](1)).

�65 We have discussed the evidence supporting the arrest-or-prosecution and continuing threat aggravators in section IV, above. We noted there the evidence more than amply supported the finding of both of those aggravators.

�66 Concerning the aggravating circumstance that Petitioner knowingly created a great risk of death to more than one person, there is sufficient evidence to support that allegation as well. Jo Ann Beane testified that Petitioner forced not only the victim, but also herself and customer Mary Manning into the back room of the flower shop, ordered all three to lie on the floor, and shot each in the back of the head. Had Ms. Beane not been able to maintain consciousness and call for help, it is likely she and Ms. Manning would also have died. Stafford v. State, 832 P.2d 20, 23 (Okl.Cr. 1992), aff'd, 853 P.2d 223 (1993); Cartwright v. State,

�67 As mitigation Petitioner presented evidence showing he had suffered from Borderline Personality Disorder since childhood; he received little or no support from his family while growing up; his parents, both of whom had serious alcohol problems, had a bitter divorce while Petitioner was a teenager; he had ingested large amounts of cocaine and alcohol before committing the murders; Petitioner generally had adjusted satisfactorily to institutional life since he had been incarcerated; he exhibited deep remorse for his crimes; and although Petitioner's personality disorder cannot be cured per se, it would likely mellow over time, rendering him less of a threat.

�68 We agree with the trial court these mitigating factors do not outweigh the aggravating circumstances found.

MOTION TO RECONSIDER SUPPLEMENTAL BRIEF

�69 Petitioner previously had filed an application to allow a supplemental brief containing a new proposition of error, based on Pickens v. State, 885 P.2d 678 (Okl.Cr. 1994). We denied that application on March 14, 1995, as the discussion in Pickens dealing with wording of an information was not an issue of first impression, but was based on pre-existing caselaw.

�70 Petitioner on April 11, 1995, filed what is styled a "Motion to Reconsider Order Denying Motion to File Supplemental Brief," asking this Court to reconsider its March 14 Order. We feel that order was complete and self-explanatory, and shall not revisit the issue. Accordingly, Petitioner's April 11 motion to reconsider is hereby DENIED .

DECISION

�71 Finding no error warranting reversal or modification, the judgments and sentences of the trial court for Murder in the First Degree, two counts of Shooting with Intent to Kill; and two counts of Robbery with Firearms in Carter County Cause No. CRF-89-332 are AFFIRMED . Petitioner's April 11, 1995, Motion to Reconsider our March 14, 1995, order denying Petitioner's request to file a supplemental brief containing a new proposition of error is DENIED .

JOHNSON, P.J., and LANE and STRUBHAR, JJ., concur.

CHAPEL, V.P.J., concurs in result.

*****

Footnotes:

1 In so doing, we note the following: the Petition for Writ of Certiorari in this case was filed February 23, 1994; it was fully briefed and at issue (Respondent's brief-in-chief and Petitioner's Reply Brief filed) October 31, 1994; oral argument was held March 28, 1995, and the cause ordered submitted to this Court following that argument.

2 Petitioner did not seek to withdraw his pleas of nolo contendere to anything other than the murder charge, for which he received the death penalty. Although he had announced at the beginning of the plea hearing he would plead guilty to felony murder, he pled guilty to both the charge of murder and Robbery with a Dangerous Weapon, the charge which had been the basis for the felony murder charge.

3 In light of this holding, we need not address the assertion by Respondent that Petitioner actually had assistance of counsel in the form of Mr. Rowan, with whom Petitioner obviously consulted both before and during the hearing. This is discussed in more detail below.

4 It is because of this we reject Petitioner's contention on appeal it was per se ineffective assistance of counsel to allow Petitioner to enter a blind plea to the charge. Petitioner claims this is at least partly true because in Oklahoma, district court judges are elected to their positions, and are thus more subject to the pressures of the general population. We refuse to indulge in such fanciful speculation. Indeed, Petitioner himself testified during the hearing on his motion to withdraw his plea that when he worried the judge would be under "a lot of pressure . . . to give me a death sentence," his attorneys said "No, that's not true . . . Judge Walker has been a judge for twenty years. He � he doesn't even have anybody who runs against him during election. He's a veteran. He won't feel pressure." (WD Tr. 12-13). Thus, Petitioner's own words at the hearing belies his assertions on appeal.

5 We recognize Appellant admitted he understood he had waived his right to appeal pre-trial errors by entering his plea of nolo contendere. See Transcript of Motion to Withdraw Guilty Plea at 40, where Appellant said: "But I � I knew that � that once I entered the plea, I lost my right to appeal pretrial errors, I guess you'd say." This would appear to be an accurate statement of the law. See Hammons v. State, 6 Compare Ritter v. State, 7 That statutory aggravating circumstance reads: "The defendant knowingly created a great risk of death to more than one person." 21 O.S. 1981 � 701.12 [21-701.12](2).

United States Court of Appeals for the Tenth Circuit

GREGG FRANCIS BRAUN, Petitioner-Appellant,
v.
RON WARD, Warden; ATTORNEY GENERAL OF THE STATE OF OKLAHOMA,
Respondents-Appellees.

September 10, 1999

Appeal from the United States District Court for the Eastern District of Oklahoma. D.C. No. CIV-97-313-B

Before BALDOCK, EBEL and LUCERO, Circuit Judges.

EBEL, Circuit Judge.

In Oklahoma state court, Gregg Francis Braun pled nolo contendere to murder in the first degree, two counts of shooting with intent to kill, and two counts of robbery with firearms. The court sentenced him to death for the murder, life imprisonment on each shooting count, and 25 years on each robbery count. After direct and post-conviction appeals in state court, Braun sought habeas relief in federal district court under 28 U.S.C. § 2254. The district court denied relief and denied a certificate of appealability ("COA"). We granted a COA on (1) whether Braun's waiver of assistance of counsel at the motion to withdraw plea hearing was constitutionally infirm; and (2) whether Braun's plea of nolo contendere was voluntary rather than the result of ineffective assistance of counsel. For the reasons set forth below, we affirm the district court's denial of habeas relief.

BACKGROUND

On July 21, 1989, Braun robbed a flower shop in Ardmore, Oklahoma, forced three women in the shop to lie down in the stockroom, and shot each in the back of the head with a .25 caliber pistol. One of the victims died as a result. Braun was arrested shortly thereafter in New Mexico, and while being transported to the county jail, he voluntarily stated that "he shot some women in a flower shop," and that, "t wasn't as good as shooting craps in Vegas, but it was all right."

On August 17, 1993, Braun pled nolo contendere to first degree murder (Count I); shooting with intent to kill (Counts II-III); and robbery with firearms (Counts IV-V). At the sentencing hearing, conducted on August 19, 20, and 23, 1993, the government introduced evidence that the Ardmore murder was part of a killing spree involving four other murder victims, clerks at various stores in Kansas, Texas, and New Mexico.

Braun introduced evidence regarding his personality disorders, though both of Braun's experts indicated that he was not legally insane during the homicides. The trial court then found the existence of three aggravating circumstances: (1) Braun knowingly created a great risk of death to more than one person; (2) the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution; and (3) a probability existed that Braun would constitute a continuing threat to society. The trial court sentenced Braun to death for the murder, life imprisonment on each shooting count, and twenty-five years on each robbery count.

On August 27, 1993, Braun moved to withdraw the nolo contendere plea and have new counsel appointed to represent him. On September 21, 1993, the trial court denied the motion after conducting a hearing at which Braun represented himself.

Braun directly appealed his conviction and sentence, both of which the Oklahoma Court of Criminal Appeals ("OCCA") affirmed. See Braun v. Oklahoma, 909 P.2d 783 (Okla. Crim. App. 1995) ("Braun I"). Subsequently, the OCCA denied his application for post-conviction relief and request for an evidentiary hearing and discovery. See Braun v. Oklahoma, 937 P.2d 505 (Okla. Crim. App. 1997) ("Braun II").

On October 24, 1997, Braun filed a petition for writ of habeas corpus in the district court under 28 U.S.C. § 2254. The complaint stated ten claims, all of which the district court denied under the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, tit. I, § 104 (1996) ("AEDPA" or "Act"). The court later denied COA on all issues. We granted COA on whether Braun's waiver of counsel at the motion to withdraw plea hearing was valid, and whether his plea of nolo contendere was involuntary as a result of ineffective assistance of counsel.

DISCUSSION

AEDPA applies to Braun's case because he filed his § 2254 petition after April 24, 1996, the effective date of the Act. See Hooks v. Ward, 184 F.3d 1206 (10th Cir. 1999). AEDPA provides for habeas relief if a claim adjudicated on the merits in state court proceedings (1) "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme 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).

I. Waiver of Counsel at Hearing to Withdraw Nolo Contendere Plea

Braun argues that the OCCA ruled contrary to clearly established federal law as determined by the Supreme Court in finding that Braun's waiver of counsel at the motion to withdraw plea hearing was voluntary, knowing, and intelligent. See Braun I, 909 P.2d at 787-89. We do not believe this claim warrants relief under AEDPA.

To begin, we highlight the relevant parts of the hearing. When Braun entered his plea of nolo contendere, he was represented by James Rowan of the Oklahoma Indigent Defense System (OIDS) and Phil Hurst, local counsel. Shortly after sentencing, Rowan filed on Braun's behalf a motion to withdraw the plea of nolo contendere, and a hearing was set. Due to a potential conflict of interest,1 OIDS arranged for another lawyer, a Mr. Payne, to represent Braun at the hearing. However, Payne inexplicably failed to contact Braun and did not show up at the hearing. Rowan was present at the hearing, but not in a representative capacity.

Having discussed the matter beforehand with Rowan, Braun advised the court that he wanted to proceed pro se. The court confirmed Braun's wishes by asking: "Are you telling me you want to represent yourself at this hearing?" Braun replied:

Well, at this hearing because the lawyer that was appointed to represent me--I haven't heard from him. I haven't met him. He didn't show up today, and I don't want to be brought back here again and go through all this again, so I'm ready to represent myself at this hearing today.

When the judge expressed his understanding that OIDS had appointed Payne to represent Braun at this hearing, Braun replied: ". . . I never heard from him. So today when I showed up, I assumed he would be here; and he's not. So I'm--I don't even want to deal with the guy, and I'm prepared to represent myself at this hearing."

The trial court then informed Braun of his options:

If you want, I will entertain your request to reset the hearing whenever this lawyer, whether it's Mr. Payne or somebody else, can be here. If you want to represent yourself as I told you earlier, I cannot deny you that as long as I am convinced that you know what you're doing, and some prosecution person didn't give--didn't force you to do it.

Braun replied: "Yes. I'll represent myself, and I've already discussed--I know what's going on with this hearing and what it's about, and I'm prepared to represent myself."

The trial court asked Braun a series of questions to ascertain that his waiver of counsel was knowing and voluntary: (1) whether any prosecutor or police officer had pressured Braun; (2) whether Braun thought proceeding pro se was the best way to proceed; (3) whether Braun understood that the trial court would delay the hearing until Braun could get another attorney; (4) and whether Braun would prefer representing himself instead of waiting. Braun indicated that no one had pressured him, that he understood the hearing could be delayed for him to get another attorney, and that he would rather represent himself than wait.

The trial court then emphasized the seriousness of the situation because Braun's life was at stake. To make certain Braun wanted to represent himself and that his decision was valid, the trial court stated:

f there is any question in your mind or there is something else about these circumstances that I need to know about, this is the time to tell me. . . . Is there some other circumstance that I don't know about that's causing you to tell me you're going to represent yourself?

Braun replied:

Well, in a way, but then again, uh, I'm really tired of being moved around, you know, here in this jail, being stuck in this holding cell and things like this for a day or two; and to come in here, and some lawyer who I don't even know isn't here. And then they say, "Well, we'll put it off again." And, you know, they'll take me back to prison, and they'll drag me up here in a few more days, and blah, blah, blah.

And I just want to do it now, and I understand what's going on. I know what this is about, and I've discussed it with [Rowan] prior to today; and I'm prepared to do it today regardless of the outcome or the consequences because basically, I know I'm here to tell my side of the story why I plead nolo contendere, and I don't need a lawyer to do that.

The trial court then warned Braun that if he took the stand, the prosecution would be able to cross-examine him, and that if the prosecution calls witnesses, Braun may have to cross-examine them, all without counsel to assist him. After Braun indicated he understood, the court accepted his waiver of the right to counsel.

In Faretta v. California, 422 U.S. 806 (1975), the Supreme Court held that a defendant has a right to self-representation, but to invoke that right the defendant must waive his right to counsel "voluntarily" and "knowingly and intelligently." Id. at 835; see also United States v. Silkwood, 893 F.2d 245, 248 (10th Cir. 1989) ("the Supreme Court held in Faretta v. California that a criminal defendant has the right to appear pro se if he voluntarily, knowingly, and intelligently waives his Sixth Amendment right to counsel") (internal citations omitted). We review de novo whether a waiver of counsel is voluntary, knowing and intelligent. See United States v. Taylor, 183 F.3d 1199, (10th Cir. 1999).

Braun argues that his waiver of counsel was involuntary under Silkwood because it was a choice between no counsel and ineffective counsel. In Silkwood, interpreting Faretta, we stated that, "[f]or the waiver to be voluntary, the trial court must inquire into the reasons for the defendant's dissatisfaction with his counsel to ensure that the defendant is not exercising a choice between incompetent or unprepared counsel and appearing pro se." Silkwood, 893 F.2d at 248.

We are not persuaded by Braun's argument. Here, Braun did not have to choose between incompetent or unprepared counsel and appearing pro se. Rather, as our review of the hearing shows, Braun had a third choice open to him: the trial court offered multiple times to reschedule the hearing to ensure that Braun could have new counsel present. Braun essentially refused this option because he was "really tired of being moved around," and "being stuck in this holding cell and things like this for a day or two." However, Braun does not argue, and we do not find, that the third alternative of waiting a few days for counsel was unconstitutional. See United States v. Padilla, 819 F.2d 952, 955 (10th Cir. 1987) ("When a defendant is given a clear choice between waiver of counsel and another course of action, . . . the choice is voluntary as long as it is not constitutionally offensive."); cf. United States v. Conrad, 598 F.2d 506, 510 (9th Cir. 1979) (finding defendant knowingly and voluntarily waived right to counsel at motion to withdraw plea hearing and sentencing where "he knew he could have new appointed counsel," but "nstead he chose to represent himself"). The Hobson's choice presented in Silkwood is absent here. Braun makes no showing that, if he had accepted the trial court's offer of a continuance, that replacement counsel would have failed to appear at the rescheduled hearing or that such replacement counsel would have performed in a constitutionally deficient manner. We decline to make any such assumptions. Thus, we believe the OCCA's determination that Braun's waiver was voluntary is in accord with clearly established federal law as determined by the Supreme Court.

Braun also argues that his waiver was not knowing and intelligent. He states that the trial court's inquiry was "clearly inconsistent with Faretta" because the court "failed to fully explain the dangers of self-representation at that stage of the proceedings, except for cross-examination." We disagree.

The Sixth Amendment inquiry into waiver should be tailored to the particular stage of the criminal proceeding. The Supreme Court has adopted a

pragmatic approach to the waiver question--asking what purposes a lawyer can serve at the particular stage of the proceedings in question, and what assistance he could provide to an accused at that stage--to determine the scope of the Sixth Amendment right to counsel, and the type of warnings and procedures that should be required before a waiver of that right will be recognized.

Patterson v. Illinois, 487 U.S. 285, 298 (1988). Thus, the necessary warnings and procedures will vary according to the stage of the proceedings. As the Court illustrated, "[a]t one end of the spectrum, we have concluded that there is no Sixth Amendment right to counsel whatsoever at a postindictment photographic display identification, because this procedure is not one at which the accused requires aid in coping with legal problems or assistance in meeting his adversary." Id. (internal quotation omitted).

In contrast, "[a]t the other extreme, recognizing the enormous importance and role that an attorney plays at a criminal trial, we have imposed the most rigorous restrictions on the information that must be conveyed to a defendant, and the procedures that must be observed, before permitting him to waive his right to counsel at trial." Id. (citing inter alia, Faretta, 422 U.S. at 835-36). In between these extreme cases, the Court has "defined the scope of the right to counsel by a pragmatic assessment of the usefulness of counsel to the accused at the particular proceeding, and the dangers to the accused of proceeding without counsel." Id. If a defendant "is made aware of these basic facts," then his waiver of the right to counsel "is 'knowing.'" Id.

In this case, Braun waived counsel at the evidentiary hearing on his motion to withdraw plea. The issue presented at the hearing was discrete--whether Braun's plea was involuntary. See Motion to Withdraw Nolo Contendere Plea, filed Aug. 27, 1993. The proceeding would involve examining and cross-examining witnesses and arguing whether the motion should be granted. The role of counsel at such a hearing, therefore, would be more limited than the role of counsel at trial. Cf. Patterson, 487 U.S. at 294 n.6 (addressing the attorney's limited role during postindictment questioning); United States v. Salemo, 61 F.3d 214, 219 (3d Cir. 1995) ("[T]he inquiry at sentencing need only be tailored to that proceeding and the consequences that may flow from it. Therefore, it need not be as exhaustive and searching as a similar inquiry before the conclusion of trial."); United States v. Day, 998 F.2d 622, 626 (8th Cir. 1993) (same).

The trial court informed Braun of the dangers of self-representation at the motion to withdraw plea hearing by warning Braun that he would be cross-examined if he took the stand and that he might have to cross-examine the state's witnesses. The trial court also conveyed to Braun that his life was on the line. Braun made it clear that he understood the objective of the hearing, and importantly, Braun testified that he had consulted with counsel prior to the hearing. Thus, he had a clear idea of the strategy that he wished to pursue at the hearing.2 Under the circumstances, we believe Braun's waiver of counsel was knowing and intelligent.3

The cases on which Braun relies, Faretta, Silkwood, and United States v. Willie, 941 F.2d 1384 (10th Cir. 1991), are inapposite. Faretta and Willie both involve waivers of counsel for trial rather than a post-conviction, post-sentencing hearing on a motion to withdraw plea. And, in Willie we concluded that the defendant had intelligently, knowingly and voluntarily waived his right to counsel even though the court did not fully discuss all of the risks involved in proceeding to trial without counsel. See Willie, 941 F.2d at 1388-89. As for Silkwood, which involved a waiver of counsel for sentencing, the case is distinguishable for several reasons. There, the trial court initially granted "without inquiry or advisement" a defendant's post-trial request to proceed pro se. Silkwood, 893 F.2d at 247.

At two subsequent hearings, including a sentencing enhancement hearing, the court asked the defendant whether he wanted a new appointed attorney, provided only "general statements about the seriousness of sentence enhancement," and grossly misinformed the defendant about the maximum enhancement he could receive (the court mistakenly quoted the figure for a minimum enhancement). See id. at 248 & n.4. In contrast, the trial court here gave Braun specific warnings that, as part of the evidentiary hearing, Braun would have to conduct cross-examination and be cross-examined without the assistance of an attorney, and Braun was specifically warned about the seriousness of the hearing. Moreover, unlike Silkwood, the trial court in Braun's case did not provide any misinformation about the potential consequences of the hearing.

We hold, in short, that Braun voluntarily, knowingly, and intelligently waived his right to counsel at the motion to withdraw plea hearing. The OCCA's similar conclusion was neither "contrary to, [n]or involved unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). Consequently, we affirm the district court's denial of habeas relief on this claim.4

II. Plea of Nolo Contendere

Challenging the OCCA's decision on direct appeal, see Braun I, 909 P.2d at 789-96, Braun claims that his blind plea of nolo contendere was involuntary because it was "induced by the ineffective assistance of trial counsel." Braun argues that his attorneys were ineffective because they earlier had failed to file properly a motion for change of venue.5

Braun also claims that his attorneys misled him into entering his plea when they related to him an alleged conversation with the trial judge indicating that the judge was surprised the prosecutors were seeking the death penalty in Oklahoma given that Braun already was subject to 126 years in jail in New Mexico and Kansas before he would be eligible for parole, and when they advised him that he had a better shot in front of the judge than a jury of getting life without parole. According to Braun, "ut for counsel's failure to pursue a change of venue and their assurances that the sentencing judge would give him a sentence less than death, Mr. Braun would have maintained his plea of not guilty and would have insisted on going to trial." Thus, Braun argues that he received ineffective assistance of counsel, that counsel gave misleading advice regarding the plea, and that he was prejudiced thereby. We disagree.

"The Supreme Court has set forth a two-part test for evaluating the claim of a habeas petitioner who is challenging his guilty plea on the ground that he was denied his Sixth Amendment right to effective assistance of counsel." Miller v. Champion, 161 F.3d 1249, 1253 (10th Cir. 1998).6 "First, we must ask whether 'counsel's representation fell below an objective standard of reasonableness.'" Id. (quoting Hill v. Lockhart, 474 U.S. 52, 57 (1985)). If this prong is met, then the petitioner must show that his counsel's performance prejudiced him by demonstrating (1) that "'there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial,'" Id. (quoting Hill, 474 U.S. at 59) and (2) that "had he rejected the State's plea bargain, the outcome of the proceedings 'likely would have changed.'" Id. at 1256-57 (quoting Hill, 474 U.S. at 59). In this case, that requires Braun to establish a reasonable probability that he would have pled not guilty and that a jury either would not have convicted him of first degree murder or would not have imposed the death penalty. "Whether a plea is voluntary is a question of federal law subject to de novo review." Miles v. Dorsey, 61 F.3d 1459, 1465 (10th Cir. 1995) (quotations omitted), cert. denied, 516 U.S. 1062 (1996).

With regard to Braun's claim that his plea was involuntary because counsel was ineffective for failing to file properly the change of venue motion, the OCCA concluded that Braun had failed to establish prejudice both because a change of venue motion, even if properly presented, "would, in all probability, not have been successful" (thus leaving Braun in exactly the same position in deciding how to plead as if his attorneys had not been deficient in pursuing a change of venue motion) and, further because even if a change of venue had been granted, Braun failed to show any reasonable probability that the outcome of the death penalty would have been any different in a different venue, given the "overwhelming evidence against him," including evidence on the aggravating favors. Braun I, 909 P.2d at 794, 796. The record fully supports the OCCA's findings in both regards and the OCCA correctly applied federal law as determined by the United States Supreme Court in its analysis. Accordingly, federal habeas relief is not warranted under AEDPA.

With regard to Braun's claim that counsel improperly influenced him into pleading nolo contendere by assuring him that the judge would give him a sentence less than death, we recognize that "[a] plea may be involuntary when an attorney materially misinforms the defendant of the consequences of the plea or the court's probable disposition." United States v. Rhodes, 913 F.2d 839, 843 (10th Cir. 1990) (internal quotation marks and citations omitted). However, we agree with the OCCA that Braun's claim is not supported by the record. See Braun I, 909 P.2d at 794-96.

The OCCA found that Braun "relied on his attorney's knowledge of the law, and their instincts," rather than any misleading guarantees, in entering his plea. Id. at 795. Braun does not adequately rebut this determination under the standards imposed by AEDPA. In fact, the record makes it abundantly clear that Braun knew he was taking his chances by pleading nolo contendere and facing the judge, and that his attorneys did not provide him with any guarantees to the contrary, nor did they relate any such guarantees from the judge.

At the motion to withdraw plea hearing, Braun testified that, after his attorneys failed to get a change of venue, they counseled him to plead nolo contendere and to go before the judge for sentencing rather than face a jury for both trial and sentencing because a jury would give him death "for sure." Braun further testified that Hurst later told Braun that he had spoken with the trial judge on the phone.

According to Braun, Hurst told him that the judge had said he could not understand why the prosecutor had not pleaded out the case, "because of the economics of sentencing someone to death and going through the appellate process, the cost of incarcerating someone here in the Oklahoma State Penitentiary, etcetera -- when he told me that, then I started to listen to their arguments more, or not really arguments, but to their philosophy, at least, of pleading no contest." Braun said, even after hearing of that conversation, that he told his attorneys, "there's gonna be a lot of pressure on Judge Walker to give me a death sentence."

Braun said his attorneys responded by observing that the judge was a veteran and would not feel the pressure, and they predicted that the judge, in light of the economics, would send Braun back to serve his life sentence in New Mexico if he did not receive the death penalty in Oklahoma. Braun therefore concluded that he "probably stood a better chance with [the judge] than with a jury."

Notably, as OCCA observed, Braun never testified that he believed the judge promised to give him life, or that his attorneys assured him the judge would do so. In fact, Braun testified that his attorneys told him he had a "fifty-fifty shot" in front of the judge of receiving a sentence less than death, whereas he had only "about a ten percent shot" in front of a jury. Braun acknowledged that his attorneys' advice was "the best advice based on their experience, knowledge, and qualifications." From that advice, Braun admitted that he believed going before the judge was his "best chance[, e]ven though it wasn't a good one." Furthermore, Braun testified that he believed the judge when the judge told him during the plea hearing that he could receive the death penalty. Indeed, Braun agreed with the prosecutor's characterization that he "rolled the dice and took [his] chances" by entering his plea.

For his part, Rowan testified at the motion to withdraw plea hearing that Hurst told Braun the judge would be more insulated from public opinion than a jury. Rowan also stated that the advice for Braun to plead nolo contendere was the best advice he could give under the circumstances. Rowan did not testify that he told Braun that the judge had promised a life sentence, or that Hurst had given Braun that impression. Additionally, in an affidavit appended to Braun's habeas petition below, Rowan denied having any ex parte conversation with the judge about Braun's sentence. Rather, it was Rowan's understanding that when Braun pled nolo, that was a "blind plea that carried no assurances that Judge Walker would return a sentence of less than death." Rowan's affidavit further stated that Hurst did not attempt to persuade the judge either.

Taken together, Braun and Rowan's testimony squarely refute Braun's contention that his plea was involuntary because his attorneys misled him into thinking the judge would give him a sentence less than death if he pleaded nolo contendere. Braun's attorneys made no guarantees regarding his sentence. Based upon their experience and expertise, they properly advised him that he had a better shot in front of the judge. See McMann v. Richardson, 397 U.S. 759, 770 (1970) ("Waiving trial entails the inherent risk that the good-faith evaluations of a reasonably competent attorney will turn out to be mistaken either as to the facts or as to what a court's judgment might be on given facts. That a guilty plea must be intelligently made is not a requirement that all advice offered by the defendant's lawyer withstand retrospective examination in a post-conviction hearing."); Wellnitz v. Page, 420 F.2d 935, 936-37 (10th Cir. 1970) ("An erroneous sentence estimate by defense counsel does not render a plea involuntary. And a defendant's erroneous expectation, based on his attorney's erroneous estimate, likewise does not render a plea involuntary.") (citations omitted). Moreover, it is clear that Braun knew when he was entering his plea that he was taking his chances. His current claim to the contrary fails to convince us.

The OCCA's decision that Braun's plea was voluntary was not contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court, and it did not involve an unreasonable determination of the facts in light of the evidence. See 28 U.S.C. § 2254(d). Accordingly, we reject Braun's claim that his plea was involuntary, and affirm the district court denial of habeas relief on this claim.7

CONCLUSION

The district court's denial of Braun's petition for the writ of habeas corpus is AFFIRMED.

*****

Notes:

1

At the hearing, Braun called Rowan as a witness.

2

We also note that Braun had had extensive experience with the criminal justice system including trials arising out of his murders in New Mexico and Kansas.

3

Although Braun points out that the trial court "failed to advise Mr. Braun that his appeal would be circumscribed by the matters raised in his application to withdraw his guilty plea," Braun fails to establish how this additional advice would have changed the issues raised at the hearing. As the district court noted, Braun's attorney, before he withdrew, filed the application to withdraw plea before the hearing, and thus the issues for appeal were already circumscribed by those raised in the application with advice of counsel. Even if the trial court had informed Braun at the hearing that issues on appeal would be circumscribed by those raised in the application, the issues raised in the application had already been set with the assistance of counsel.

4

With little discussion, Braun also contends that he was denied a full and fair hearing on this claim in the Oklahoma courts and the district court, and requests remand for an evidentiary hearing. Again with little discussion, Braun argues that the OCCA failed to follow applicable state law that forbids defendants from proceeding pro se without sufficient warnings about the dangers of self-representation, thereby resulting in a violation of federal due process. We reject these arguments as without merit.

5

As Braun testified at the motion to withdraw plea hearing, he was adamant about seeking a change of venue, partly because of his prior experience in New Mexico where he had received a change of venue and a life sentence from a jury rather than the death penalty; and partly because Ardmore (Carter County), where the murder was committed, was a small community and Braun feared pre-trial publicity would prejudice him. Rowan assured Braun that Hurst (local counsel) would file the change of venue and collect "whatever evidence" was needed for that purpose. However, by Rowan's admission at the motion to withdraw plea hearing, the attorneys "both procrastinated" and did not come up with three affidavits as required by statute for a motion to change venue. Thus, the district court dismissed it because it was not accompanied by the required affidavits.

6

The standard for a guilty plea is appropriate since the legal effect of a nolo contendere plea in Oklahoma is the same as that of a guilty plea. See Okla. Stat. Ann. tit. 22, § 513.

7

In a subsidiary point, Braun argues that it was per se ineffective assistance of counsel to allow Braun to enter the plea "blind," that is, without a guarantee of the sentence. Braun does not cite any case law for this proposition, but rather relies on ABA Guidelines on guilty pleas, which discourage blind pleas in death penalty cases. The OCCA found this claim waived when Braun attempted to raise it for the first time in his state post-conviction proceeding. The OCCA also ruled this claim barred by res judicata, because the basis for the claim (ineffective counsel for advising Braun to enter the plea) was raised on direct appeal. See Braun II, 937 P.2d at 511. Braun fails to address the state court findings of procedural default and res judicata. Therefore, this argument deserves no further comment, other than the observation that Braun's recognition that he entered his plea blind undercuts his claim that he pleaded nolo contendere under the impression he would receive a sentence less than death.

Additionally, as with his waiver of counsel claim, Braun argues on the involuntary plea claim that he was denied a full and fair hearing in front of the Oklahoma courts and the district court, and that Oklahoma failed to follow its own law in denying Braun his motion to withdraw plea. We dismiss these claims as without merit.
 
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