Death Sentence Affirmed; Ineffective Assistance, Prosecutorial Misconduct Claims Rejected

Cole v. Trammell, 2013 WL 6051202 (OK) (11/18/13) - Mr. Cole's conviction of the first degree murder of his nine-month-old daughter and death sentence are affirmed. He received a fundamentally fair trial and any errors did not have a substantial and injurious effect or influence on either his conviction or sentence. (1) He failed to establish IAC resulting from a breakdown in communication with his trial counsel. Their defense of him was vigorous and Cole failed to even identify prejudice resulting from the communication difficulties. (2) IAC claim relating to counsel's failure to investigate and present mitigation evidence from Cole's family members is procedurally barred because it could have been raised on direct appeal. Cole had different counsel on appeal than at trial and he could have requested an evidentiary hearing to supplement the record on appeal with evidence relevant to his claim. Anyhow, it is not reasonably probable that additional evidence re: childhood difficulties would have persuaded the jury that mitigating factors outweighed the aggravating factors. (3) Admission of gruesome autopsy photos was proper to aid the jury in understanding the medical examiner's testimony re: the victim's injuries and cause of death. (4) There was sufficient evidence from the medical examiner's testimony to allow a rational trier of fact to find beyond a reasonable doubt that the murder was especially heinous, atrocious or cruel, given the amount of force it would have taken to inflict the fatal injuries and the pain the child would have endured before death. (5) Prosecutorial comment repeatedly referring to God and religion in both the trial and penalty phases may have been improper, but did not deprive Cole of a fair trial.