Thornburg v. Mullin, 2005 WL 2146057 (9/05) - Another Oklahoma murder approved under the AEDPA standards of review. With respect to the most interesting issue, the 10th held it was not unreasonable for appellate counsel to fail to raise as an issue that it was unduly prejudicial to have on the wall behind and above the judge a carving of a sword with the words: "an eye for an eye and a tooth for a tooth" [probably not a good rule to live by for a jury deciding whether to kill someone for murdering someone else]. Even though the prosecutor pointed out the sword to the jury, appellate counsel couldn't be faulted for failing to raise the matter when what the carving said was not on the record. A single statement that a key state witness had passed a polygraph did not violate due process. Likewise for the failure to give a voluntary intoxication instruction [such an instruction might have helped the defendant, but the malice aforethought instruction was sufficient] and a lesser included instruction [the evidence didn't support it, according to the Okl. appellate court]. Challenged out-of-court statements were either not hearsay because they were not admitted for the truth of the matter asserted, admissible to prove the declarant's state of mind or harmless. Gruesome photos of charred remains were properly admitted to prove manner of death even if that matter was not disputed. Prosecutorial remarks were either not misleading, proper anticipation of defense impeachment, reasonable inferences from the evidence, proper description of mitigation evidence or not improper vouching. There was little impropriety in the prosecutor asking for justice for the victims, suggesting the verdict affected the community and noting mass murder is one of the problems of society. The improper mischaracterization of the evidence, eliciting of irrelevant testimony, giving a personal opinion on the appropriateness of the death penalty and asking the jury to kill the defendant to keep him off the streets when the jury could have given a life without parole sentence cumulatively were not prejudicial enough to overturn the state court's opinion on the matters. The victim impact evidence appeared to be admissible under Payne v. Tennessee, 591 U.S. 808, 827 (1991). It was okay that the d.ct. did not specifically list intoxication and brain damage as possible mitigating factors. The failure of counsel to request a voluntary intoxication instruction was objectively reasonable strategy.