A Muldrow man, sentenced to death for killing a Fort Smith, Ark., fisherman south of Muldrow, still faces the death penalty after the 10th Circuit U.S. Court of Appeals in Denver denied his appeal Tuesday.

Donald R. Wackerly, 39, petitioned the court for relief based on, according to his appeal filing the, “…trial counsel rendered ineffective assistance by failing to investigate and then present certain evidence to the jury during the penalty phase of his trial.”

Court Reviews Case

In their ruling, the three appeals judges wrote: “One evening in early September, 1996, Mr. Wackerly announced to his wife that they needed money and that he would do ‘whatever it took’ to get it. He said this, almost as if to prove his point, while wearing latex gloves and loading his .22-caliber rifle, toweling off each bullet before packing it into the chamber.

“The following day, with rifle in hand, Mr. Wackerly and his wife left their house in search of someone to rob. They drove to a dam on the Arkansas River near Muldrow in rural Sequoyah County. There, they spotted a lone truck parked by a levy, and an older gentleman, who turned out to be Pan Sayakhoummane, fishing nearby. Mr. Wackerly parked his Jeep a few feet from the truck and instructed his wife to walk down to the levy to see if any other people, aside from Mr. Sayakhoummane, were there. She did as she was told, talked to Mr. Sayakhoummane for a few minutes, and returned to her husband to confirm that they were alone. Mr. Wackerly then instructed his wife to sit and wait. Forty-five minutes passed before Mr. Sayakhoummane returned to his truck, fishing gear in tow. As he approached, Mr. Wackerly raised the hood of his Jeep and asked for help jump-starting the vehicle. Knowing what was going to happen next, Mrs. Wackerly knelt behind the Jeep. There, she heard seven or eight gun shots, followed by a thump. When she stood up, she saw Mr. Sayakhoummane’s body lying flat and her husband wrestling to free a fishing pole from underneath it.

“In order to dispose of Mr. Sayakhoummane’s body and truck, Mr. Wackerly drove the truck a short distance down a dirt road while Mrs. Wackerly followed in the couple’s Jeep. Mr. Wackerly stopped the truck at a fork in the road, removed the reels from Mr. Sayakhoummane’s assorted fishing poles, and threw the poles into a wooded area. He also took a tackle box from the truck before asking his wife to wait while he drove Mr. Sayakhoummane’s truck, with Mr. Sayakhoummane’s body lying in its bed, into the river. As it happened, the truck’s bumper caught on the river bed so the truck remained only partially submerged. Finished with these tasks, as least as best he could, Mr. Wackerly returned to Mrs. Wackerly and the couple proceeded to a Sonic Drive-In restaurant for dinner.

“Later that night, Mr. Wackerly sifted through the contents of Mr. Sayakhoummane’s wallet and cut up all the identity cards he found. He placed the shredded cards in a ziplock bag and threw them away, as he did Mr. Sayakhoummane’s wallet. The other property he had stolen —Mr. Sayakhoummane’s tackle box and fishing reels — he stashed in a spare room. Eventually, Mr. Wackerly sold the reels to a local pawn shop for sixty dollars. The day after the murder, a passerby found the partially submerged truck and Mr. Sayakhoummane’s body. An initial investigation produced no leads but at last Mrs. Wackerly, by this point estranged from her husband, came forward and told Oklahoma state investigators what happened. Based on her account, an agent retrieved Mr. Sayakhoummane’s fishing poles from the woods near the river and located his reels at the pawn shop, where the shop’s owner confirmed that it was indeed Mr. Wackerly who had sold them.

“Agents also searched Mr.Wackerly’s apartment and found Mr. Sayakhoummane’s tackle box, a pair of latex gloves, a .22 rifle, and a box of ammunition with some bullets missing. Both the weapon and ammunition were consistent with the bullet removed from Mr. Sayakhoummane’s body.

“In due course, Mr. Wackerly was charged with first-degree murder and robbery. At trial, the State relied on the testimony of Mrs. Wackerly; physical evidence corroborating her account; the testimony of the pawn shop owner; and the testimony of Mrs. Wackerly’s brother, Curtis Jones, who recounted that Mr. Wackerly had confessed to him that he, Mr. Wackerly, had killed a man at the dam. In the end, the jury convicted Mr. Wackerly of both the murder and robbery

charges.

“The case proceeded to a sentencing phase, at which the State argued that two statutory aggravating circumstances rendered Mr. Wackerly eligible for the death penalty: first, that the murder was committed in a manner aimed to avoid or prevent a lawful arrest or prosecution; and, second, that there was a probability that Mr. Wackerly would commit future criminal acts of violence that would constitute a continuing threat to society.…The State relied on the evidence presented during the guilt phase to support both arguments, and also introduced additional evidence to support the second. This additional evidence established that Mr. Wackerly committed armed robbery of a Webber Falls…convenience store nine days after Mr. Sayakhoummane’s murder.

Armed Robbery Reviewed

While Mrs. Wackerly stood guard at the store’s entrance, Mr. Wackerly, wearing hunting mask and carrying a pistol, ordered the store’s cashier to give him money. When the cashier declined, Mr. Wackerly held his pistol within inches of the cashier’s forehead and repeated his demand. This time, the cashier complied. As Mr. Wackerly walked with cash in hand toward the exit, he heard a banging from the back of the store. Thinking it was a second employee, he turned back to the register, pointed his gun at the cashier, shouted ‘I’ll kill both of you,’ and sprinted away.

‘Case Strong’ Judges Write

In its affirmation of the death sentence, the court notes: “The case against Mr. Wackerly was strong and the non-cumulative evidence Mr. Wackerly faults trial counsel for failing to present bears a distinctly double-edged quality to it, likely to have favored the State’s case at least as much as his. Given this, we are obliged to affirm.”

Wackerly received a life sentence for the robbery and the death penalty for the murder. He is being held at the Oklahoma State Prison in McAlester.