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Jay Wesley NEILL

 
 
 
 
 

 

 

 

 
 
 
Classification: Mass murderer
Characteristics: Bank robbery
Number of victims: 4
Date of murder: December 14, 1984
Date of arrest: 3 days after
Date of birth: April 9, 1965
Victims profile: Kay Bruno, 42 (bank manager); Jeri Bowles, 19 (employee); Joyce Mullenix, 25, who was 6 months pregnant (employee), and Robert Zeller, 33 (customer)
Method of murder: Stabbing with knife / Shooting
Location: Comanche County, Oklahoma, USA
Status: Executed by lethal injection in Oklahoma on December 12, 2002
 
 
 
 
 
 

Summary:

At the time of the murders, Neill was 19 years old and living with Grady Johnson, his lover. Facing financial difficulties and with their relationship on the rocks, they decided to rob a bank and flee to San Francisco.

During the robbery of a Geronimo, Oklahoma bank, Neill stabbed three bank employees to death. Jeri Bowles was stabbed 14 times and her throat was cut. Kay Bruno, 42, the manager of the bank, was stabbed 34 times and her throat was cut. Joyce Mullenix, 25, who was 6 months pregnant, was stabbed 27 times and nearly decapitated.

Neill forced customers who trickled in after the robbery to get down on the floor next to the women and then shot them. He killed Robert Zeller, 33, but Bellen Robles, 15, Ruben Robles, 20, and Marilyn Roach 24, recovered from their wounds.

Both Neill and Johnson were arrested in San Francisco three days later. They initially went on trial together and were convicted and sentenced to death, but the Oklahoma Court of Criminal Appeals reversed.

A new trial in 1992 also resulted in a death sentence for Neill. His accomplice, Robert Johnson, is currently serving four life sentences for the crimes.

Citations:

Neill v. State, 896 P.2d 537 (Okla. Crim. App. 1994).
Neill v. Oklahoma, 516 U.S. 1080 (1996) (Cert. denied).
Neill v. State, 943 P.2d 145 (Okla. Crim. App. 1997).

Final Meal:

A double cheeseburger, fries, peach or cherry cobbler, a pint of vanilla ice cream and a large bottle of cran-grape juice.

Final Words:

As Neill gave his last statement his voice quivered and he complained of being dizzy. "Are they starting?" he asked. As the lethal injection was administered, Neill prayed until he lost consciousness.

ClarkProsecutor.org

 
 

Oklahoma Department of Corrections

Inmate: JAY W. NEILL
ODOC# 141128
Race: White
Sex: Male
Height: 5 ft. 11 in
Weight: 150 pounds
Hair: Blonde
Eyes: Blue
Location: Oklahoma State Penitentiary, Mcalester

 
 

Oklahoma Attorney General

News Release - W.A. Drew Edmondson, Attorney General

October 14, 2002

Execution Date Set for Neill

The Oklahoma Court of Criminal Appeals today set execution date for death row inmate Jay Wesley Neill. Attorney General Drew Edmondson requested the execution date Oct. 7 after the United States Supreme Court denied the inmate's final appeals.

Neill, 37, is scheduled to be executed Dec. 12. He was convicted in Comanche County District Court of the Dec. 14, 1984, murders of Kay Bruno, 42, Jerri Bowles, 19, Joyce Mullenix, 25, and Ralph Zeller, 33, during a robbery at the First Bank of Chattanooga in Geronimo. Bruno, Bowles and Mullenix were employees of the bank. Zeller was a customer. Three other customers were shot and wounded during the robbery.

 
 

Jay Wesley Neill (April 9, 1965 – December 12, 2002) was a convicted murderer who was executed for his part in a bank robbery that left 4 people dead.

In 1983, Neill joined the United States Army. He met Robert Grady Johnson in February 1984 at a bar and became romantically involved. Neill was discharged in the summer of 1984 after disclosing that he was homosexual and quickly began having financial difficulties.

Neill and Johnson shared an apartment in Lawton, Oklahoma and a joint checking account at the Geronimo bank. The account had frequent checks returned due to insufficient funds. They were frequently at the bank to work out their money problems. The Geronimo Bank was a small facility, housed in a prefabricated building. It usually had only two tellers and no surveillance cameras or security guards. Neill commented on more than one occasion on the absence of the security measures and how easy he thought it would be to rob the bank.

On December 12, 1984, Neill shopped for guns at a local pawnshop but he was informed that a buyer must be at least 21 years old and Neill was only 19. On December 13, Johnson applied for a gun permit. That same morning, Neill went to a travel agent and tried to purchase flights to Nassau leaving at 6 p.m. the next day. On December 14, Neill and Johnson returned to the pawn shop and purchased a revolver seen on Neill's previous visit.

Shortly after 1 p.m. on December 14, Neill entered the First Bank of Chattanooga in Geronimo, and forced the 3 tellers to the back room where he had them lie face down on the floor and stabbed them to death. The three employees (Kay Bruno, 42; Jerri Bowles, 19; Joyce Mullenix, 25) were stabbed a total of 75 times. Mullenix was six months pregnant.

Three customers entered the bank while Neill was attempting a decapitation of one of the tellers. The customers were taken to the back room and shot in the head. Ralph Zeller, 33, died from his wounds becoming the 4th and final murder victim. Bellen Robels, 15, and her husband Reuben Robels, 20, would recover from their head wounds. Neill attempted to shoot the couple's 14 month old daughter, Marie, but the gun was out of bullets.

Neill and Johnson were arrested on December 17 in San Francisco. Marked bills were used to pay for hotel rooms, limousine rides and shopping excursions. $3,700 were left on Neill and in the hotel room. Johnson was sentenced to 4 life sentences with the possibility of parole. Whether Johnson was in the bank at the time is in dispute. Neill testified that Johnson was at home waiting on him during the robbery. However, he had previously maintained that Johnson was with him in the bank. Marilyn Roach testified to hearing the voices of two men inside the bank.

Neill was the 54th person executed in Oklahoma since the state resumed executions in 1990.

 
 

Jay Wesley Neill

ProDeathPenalty.com

Jay Neill received a death sentence for his murder of four people during an armed robbery of a bank in Geronimo, Oklahoma in 1984.

At the time of the murders, Neill was 19 years old and living with Grady Johnson, his lover. Facing financial difficulties and with their relationship on the rocks, they decided to rob a bank and flee to San Francisco, and proceeded to buy knives, guns, and plane tickets.

The robbery took place in December, 1984. During the robbery, Neill stabbed three bank employees to death. All three women, Kay Bruno, Jerri Bowles and Joyce Mullienix, died from multiple stab wounds to their head, neck, chest and abdomen. One woman was seven months pregnant. Neill also attempted to decapitate each woman with a knife.

Five customers entered the bank during the robbery. Neill forced all five to lie face down in the back room where the employees had been stabbed. He then shot each customer in the head, killing one, Ralph Zeller, and wounding the other three.

Neill denied attempting to shoot the fifth, an eighteen-month-old child. The child's father testified, however, that he saw someone point a gun at his child's head and fire several times. The weapon, by this time, was out of ammunition.

Neill and Johnson then flew to San Francisco, where they spent some of the approximately $17,000 stolen from the bank on expensive jewelry and clothing, hotels, limousines and cocaine. Neill's attorney, James Hankins says that the pair planned to commit suicide when the money ran out, but FBI agents arrested the pair there three days after the robbery.

The State had initially tried Neill and Johnson jointly. The Oklahoma Court of Criminal Appeals, however, reversed their resulting convictions, holding, among other errors, that the trial court should have severed their trials.

Prior to his second trial, Neill gave a videotaped interview to a religious television program, "The 700 Club," and wrote several letters to an author writing a book about the murders. Neill also wrote letters and made telephone calls apologizing to several victims. In these communications, Neill admitted committing the crimes.

Based on this evidence, the jury convicted Neill of four counts of first degree malice murder, three counts of shooting with intent to kill and one count of attempted shooting with intent to kill.

At sentencing, the State charged and the jury found, as to each murder, three aggravating factors: Neill had created a great risk of death to more than one person; he had committed the murders to avoid arrest and prosecution; and the murders were especially heinous, atrocious or cruel. The jury imposed four death sentences, as well as twenty years' imprisonment for each non-capital conviction.

UPDATE: In McAlester, Jay Wesley Neill, who killed 4 people in one of Oklahoma's deadliest bank robberies, was put to death in Oklahoma on Thursday.

Neill, 37, was pronounced dead at 6:18 p.m. at the Oklahoma State Penitentiary.

Neill was executed for fatally stabbing 3 employees and fatally shooting a customer of the First Chattanooga Bank branch in Geronimo. He wounded 3 others before the Dec. 14, 1984, robbery was over.

For Janie Bowles, whose 19-year-old daughter, Jeri, was killed that day, justice can't come soon enough. "It's about damn time," Bowles said. "They die so easily and it's not fair."

Bowles' daughter was one of 3 women who were stabbed more than 15 times each and their throats cut during the robbery. "This is how my grandchildren will remember their aunt," Bowles said. Jeri Bowles, described by her mother as caring and nurturing, was called into work early the day of the robbery.

Her father Calvin Bowles, had just dropped her off when Neill entered the bank and herded the 3 female employees into the back room of the bank. He then stabbed them with a hunting knife, cutting so deep that Neill severed the ribs of his victims, court documents show.

Jeri Bowles was stabbed 14 times and her throat was cut. Kay Bruno, 42, the manager of the bank, was stabbed 34 times and her throat was cut. Joyce Mullenix, 25, who was 6 months pregnant, was stabbed 27 times and nearly decapitated.

Neill forced customers who trickled in after the robbery to get down on the floor next to the women and then he shot at them. He killed Robert Zeller, 33, but Bellen Robles, 15, Ruben Robles, 20, and Marilyn Roach 24, recovered from their wounds.

The crime rocked Geronimo, a town of about 960 near Lawton in southwestern Oklahoma. More than 1,700 people attended Jeri Bowles' funeral, which was held in the town's high school gym.

In March 1986, Neill appeared on the religious program "The 700 Club," confessing to the crime and asking for forgiveness. "I've yet to come up with something that I know will make it easier for any of you," Neill told victim's family members as he testified in his 1992 trial. "I am sorry. It's eating me and I believe that's been part of my punishment. I just wish there was something I could say to make it better but there's not."

 
 

National Coalition to Abolish the Death Penalty

Jay Neill (OK) - Dec. 12, 2002 - 6:00 PM CST, 7:00 PM EST

The state of Oklahoma is scheduled to execute Jay Neill, a white man, Dec. 12 for committing four murders during a bank robbery in 1984. Neill testified on his own behalf during the punishment phase of his trial, expressing remorse for his actions and asking for a sentence of life without the possibility of parole. His accomplice, Robert Johnson, is currently serving four life sentences for the crimes.

From death row, he recently wrote a letter describing his spiritual journey since his incarceration; it concluded: “Above all, I enjoy the sharing of love, and positive thoughts. I’m as unjudgmental as I know how to be. I believe every person has an individual right to live their lives free of harm, and prejudice. I just wish I knew more about life when I was a confused 19-year-old – the age I was, when I committed this crime.”

In an attempt to escape his piling rent debts and overdue bills, Neill decided to rob the First Bank of Chattanooga in Geronimo, Oklahoma Dec. 14, 1984. During the robbery, he allegedly stabbed three bank employees to death and fatally shot a customer. Along with Johnson, his accomplice and roommate, Neill then skipped town to San Francisco, where police arrested him three days later.

Neill and Johnson initially went on trial together, but the Oklahoma Court of Criminal Appeals reversed that conviction and remanded the case for a new trial. Since his 1992 conviction, Neill’s appeals have included a Batson claim (prosecutors striking jurors based on non-race neutral grounds) and an ineffective counsel argument.

The state of Oklahoma has scheduled four executions dates for the month of December, as well as two more dates for January. Since his incarceration, Neill has repeatedly expressed his remorse, converted to Buddhism, and served as a model prisoner. This pending execution has no purpose beyond continuing the cycle of violence in Oklahoma and the United States as a whole. Please write the state of Oklahoma to protest this execution.

 
 

Oklahoma Robber Executed for Four Murders

By Doug Russell - United Press International

December 12, 2002

MCALESTER, Okla., Dec. 12 Begging for forgiveness, a man convicted of killing four people while robbing a bank of almost $17,000, was executed Thursday at the Oklahoma State Penitentiary.

Jay Wesley Neill, 37, was pronounced dead at 6:18 p.m. as outside the prison death penalty opponents prayed for the inmate, his victims and their families, prison officials and others involved in the execution. Nearby, death penalty supporters waited patiently, holding signs with pictures and information about slain loved ones.

Neill was executed for fatally stabbing three employees and fatally shooting a customer of the First Bank of Chattanooga branch in Geronimo, Okla.

Three other customers were shot and wounded in the Dec. 14, 1984 holdup. "I want everyone to know I'm really sorry for what I did to you," said Neill, his voice shaking with emotion as he strained to raise his head from the gurney in the death chamber. "I'm not sorry for dying here today. I'm not sorry because I'm lying here. I'm sorry for the horrible, horrible thing I did. I hope you find some comfort in that ... Please forgive me."

Neill said his co-defendant in the bank robbery and murder trials, Robert Johnson, "wasn't in that bank. I know some of you think he was, but he wasn't." Johnson is serving a life sentence without parole for his part in the bloody bank robbery.

Three minutes after the execution began, Neill was pronounced dead. Twenty-three members of his victims' families attended the execution. None believed he was sincerely remorseful. "He died the way he lived: as a liar," said Charlene Blevins, sister of one of the murder victims. For Faye Tanner, Neill's death came too easily. "He died a lot easier than my daughter did," Tanner said. "She died on the floor with a knife in her back." Her voice broke. "I not only lost her, I lost my grandbaby too."

Tanner's daughter, 25-year-old bank teller Joyce Marie Tanner Mullenix, was stabbed 27 times and nearly decapitated during the robbery. Teller Jeri Annette Bowles, 19, was stabbed 14 times and her throat was cut. Branch manager Kay Bruno, 42, was stabbed 34 times and her throat was cut.

Customer Robert Zeller, 33, was shot and killed during the robbery. Three other customers, 15-year-old Bell Robles, 20-year-old Ruben Robles and 24-year-old Marilyn Roach, were also shot but survived. Witnesses said Neill also pointed the pistol he carried at the head of a 14-month-old child and pulled the trigger, but the gun was empty.

The crime shook Geronimo, a small community of 960 people near Lawton in southwest Oklahoma. "This is not about the death sentence, but about the heinous crimes Jay Wesley Neill committed," said Danny Zeller, whose brother died in the bank robbery. "He tore the community apart." Neill was the sixth Oklahoma inmate executed this year. Two others have execution dates this month, but one is unlikely to be carried out.

 
 

Geronimo Bank Robber Put to Death

By Bob Doucette - The Daily Oklahoman

December 13, 2002

McALESTER, Okla. (AP) - Jay Wesley Neill, who killed four people in one of Oklahoma's deadliest bank robberies, became the sixth inmate put to death in Oklahoma this year on Thursday. Neill, 37, was pronounced dead at 6:18 p.m. at the Oklahoma State Penitentiary.

Neill was executed for fatally stabbing three employees and fatally shooting a customer of the First Chattanooga Bank branch in Geronimo. He wounded three others before the Dec. 14, 1984, robbery was over.

Before the lethal injection was administered Neill, strapped to a gurney, craned forward looking into a camera that broadcast the execution to family members, and apologized. "I want everyone to know that I'm really sorry, not because I'm dying but for the horrible, horrible thing that I did," said Neill, who became emotional as he spoke. "I hope it brings you comfort to know Robert Johnson wasn't in that bank. I know you think he was, but he wasn't."

Johnson was Neill's lover and co-defendant during their initial trial. Some speculated that Johnson, who was given a life without parole sentence in a new trial in 1992, was at the bank and helped Neill. As Neill gave his last statement his voice quivered and he complained of being dizzy. "Are they starting?" he asked.

As the lethal injection was administered, Neill prayed until he lost consciousness. His left shoulder twitched and the color drained from his face. Neill was pronounced dead about three minutes after the execution began at 6:15 p.m. "We got some justice tonight," Calvin Bowles said. "He died like a coward, he was crying and asking for forgiveness. I walked into that bank and saw my daughter and the others butchered, he didn't give them a chance to ask for the Lord for forgiveness."

Bowles' daughter, Jeri, was one of three women who were stabbed more than 15 times each and their throats cut during the robbery. Jeri Bowles, described by her mother as caring and nurturing, was called into work early the day of the robbery. Her father Calvin Bowles, had just dropped her off when Neill entered the bank and herded the three female employees into the back room of the bank.

He then stabbed them with a hunting knife, cutting so deep that Neill severed the ribs of his victims, court documents show. Jeri Bowles was stabbed 14 times and her throat was cut. Kay Bruno, 42, the manager of the bank, was stabbed 34 times and her throat was cut. Joyce Mullenix, 25, who was six months pregnant, was stabbed 27 times and nearly decapitated.

Neill forced customers who trickled in after the robbery to get down on the floor next to the women and then he shot at them. He killed Robert Zeller, 33, but Bellen Robles, 15, Ruben Robles, 20, and Marilyn Roach 24, recovered from their wounds.

The crime rocked Geronimo, a town of about 960 near Lawton in southwestern Oklahoma. More than 1,700 people attended Jeri Bowles' funeral, which was held in the town's high school gym.

In March 1986, Neill appeared on the religious program "The 700 Club," confessing to the crime and asking for forgiveness. "I've yet to come up with something that I know will make it easier for any of you," Neill told victim's family members as he testified in his 1992 trial. "I am sorry. It's eating me and I believe that's been part of my punishment. I just wish there was something I could say to make it better but there's not."

In Oklahoma City, six people were arrested on misdemeanor civil disobedience complaints during a protest at Oklahoma Attorney General Drew Edmondson's office. Protester Wes Roberts said murder is the only crime that is duplicated by the state when an execution is carried out. "You don't rape a raper, rob a robber or mug a mugger," Roberts said. "That would be considered unconscionable." Two more men are scheduled to die later this month.

 
 

Savage Killer Executed in Oklahoma

TheDeathHouse.com

McALESTER, Okla. - A man who savagely stabbed and slashed three female bank employes to death - including one who was pregnant - was executed by lethal injection Thursday night at the state prison here. Mass murderer Jay Neill,37, was put to death for the slayings during a 1984 robbery at the First Bank of Chattanooga in Geronimo.

Besides the women, Neill was also convicted of shooting a customer to death. He was pronounced dead at 6:18 p.m. Neill was the sixth convicted killer executed in the state this year. Two more are scheduled to die before

Neill and his lover, Robert Johnson, were facing severe financial difficulties and decided to rob the bank, purchasing knives, guns and even plane tickets to San Francisco for their getaway. Johnson, who was tried together with Neill and also sentenced to death, later won a new trial and was resentenced to life in prison.

But proseuctors believe that Neill and Johnson both entered the bank for the robbery on Dec.14,1984. They say Neill forced three female banker workers, Joyce Mullenix, 25, who was six months pregnant; Kay Bruno, 42, and Jerri Bowles, 19, into a bank room. While they were laying down, prosecutors said Neill stabbed and slashed each to death. Two of the victims were nearly decapitated. Prosecutors said Mullenix was stabbed 27 times; Bruno 33 times; and Bowles 15 times.

In a television interview with the religious program, The 700 Club, in 1986 Neill tried to explain the savage murders he had committed. "It was like everything else blacked out and you're not really aware of what was going on," Neill said. "I could hear my heart beating in my ears. Everything was going a million miles an hour."

The customer shot to death was Ralph Zeller, 33. In addition, three other people were shot and wounded during the robbery.

 
 

Killer Begs Forgiveness

By Doug Russell - McAlester News Capital & Democrat

December 13, 2002

With an emotion-wracked voice, Jay Wesley Neill apologized to his victims' families, begged forgiveness and said his co-defendant had nothing to do with killing four people in a Geronimo bank 18 years ago.

But the victims' families didn't believe him. "He died the way he lived - as a liar," said Charlene Blevins, a relative of one of the murder victims. Neill, 37, was pronounced dead at 6:18 Thursday night, the sixth state inmate executed this year and the 54th since the state resumed executions in 1990. "I want everyone to know I'm really sorry for what I did to you," Neill said when the blinds to the state's execution chamber were raised at 6:14 p.m. "I'm not sorry for dying here today. I'm not sorry for lying here. "I'm sorry for the horrible, horrible thing I did. "I hope you find some comfort in that."

But for some family members, there was no comfort in Neill's words or his death. Calvin Bowles, whose daughter was killed in the robbery, said although he felt he received some measure of justice with Neill's execution, the convicted murderer and bank robber died too easily. "He died easy, like the coward he is - crying," Bowles said. "I walked into that bank and saw my daughter, Joyce, Kay and Ralph, and they were butchered."

"I think he died a lot easier than my daughter died," said Faye Tanner, whose daughter, 25-year-old bank teller Joyce Marie Mullenix was stabbed 27 times and nearly decapitated in the robbery. "She died on the floor with a knife in her back." Tanner's voice broke as tears streamed from her eyes. "I not only lost her, I lost my grandbaby too."

Mullenix was seven months pregnant with a daughter when she, 19-year-old teller Jeri Annette Bowles and 42-year-old bank branch manager Kay Bruno were herded into a back room of the First Bank of Chattanooga shortly after 1 p.m. on Dec. 14, 1984, and ordered to lie on the floor.

Between them, the three women suffered a total of 75 stab wounds and each had her throat cut. Four customers who entered the bank shortly after the women were stabbed, 33-year-old Ralph Zeller, 15-year-old Bellen Robles, 20-year-old Ruben Robles and 24-year-old Marilyn Roach, were each shot in the head by a 32. caliber revolver. Zeller died from his wounds. The other three survived.

At Neill's trial, Ruben Robles said he saw Neill point the gun at the head of his 14-month-old daughter and the weapon's hammer click on an empty chamber. Questions about whether Neill acted alone while committing the murders still linger on in the minds of some of his victims' family members, despite statements that he did from the Federal Bureau of Investigation, co-defendant Robert Grady Johnson and a deathbed statement from Neill himself. "Robert Johnson wasn't in that bank," Neill said shortly before a lethal mixture of drugs began flowing into his veins through two intravenous lines at 6:15 p.m. "I know some of you think he was, but he wasn't."

But family members of the murder victims don't believe one person could have caused so much carnage. In addition, Roach testified at trial that she heard two men talking after she was shot. Discharged from the Army because he was homosexual, Neill was living with Johnson in a Lawton apartment at the time of the murders.

Court documents indicate he and Johnson purchased two hunting knives several days before the robbery and bought a .32 caliber revolver on the day of the robbery itself. Neill escaped the bank with almost $17,000. Most of the money was gone when FBI agents caught up with them in San Francisco three days later.

The two men were initially tried together, with both receiving death sentences, but an appeals court overturned the sentences in 1992, saying the men should have been tried separately. Later that year Neill was again sentenced to die. Johnson was sentenced to life without parole.

In the hours leading up to his execution, Neill was served a last meal of a double cheeseburger, a large order of french fries, cranberry-grape juice, cobbler and a pint of vanilla ice cream.

 
 

CCADP Pen Pal Request

JAY NEILL - Some of what interests me... On death row there are few options in the way of hobbies/activities. But I do love to read. And I enjoy writing letters. I crochet afghans, and just about anything I can think of, or have a pattern for. Right now I'm involved in a quest of self discovery. A spiritual quest. Not in a "traditional Religious" manner. More so a spiritual quest of who I am, my place in this existence. I do believe in a soul. I've read many books covering many religions, and spiritual beliefs, and their history. each belief system centers primarily on "love". On good & bad deeds, and/or Karma. Allowing room for the basic human nature that sways the writer of any history to shape the text, and its contents towards his/her own morality & ideas. I think there is ample proof from which to draw the conclusion that life did not simply "happen" by accident. I also like new ideas, and good conversation. And any letters I write, will be varied, as to interests & topic. I have definite opinions, and I expect that others do too. Above all, I enjoy the sharing of love, and positive thoughts. I'm as unjudgmental as I know how to be. I believe every person has an individual right to live their lives free of harm, and prejudice. I just wish I knew more about life when I was a confused 19 year old. The age I was, when I committed this crime. Sincerely Yours...

Jay Neill 141128
H-SE-8-II
PO Box 97
McAlester, OK
74502 USA

 
 

Guilty and gay, a recipe for execution in american courtrooms: sexual orientation as a tool for prosecutorial misconduct in death penalty cases

By Michael B. Shortnacy

American University Law Review

January 24, 2002

2. The case of Jay Wesley Neill 164

During the fall of 1984, Jay Wesley Neill and Robert Grady Johnson were involved in a homosexual relationship.165 The men began to experience financial difficulties.166 As their financial troubles grew worse,167 Neill and Johnson, who shared a checking account, frequently attempted to resolve their money problems at a local bank.168 Neill commented on several occasions how easy it would be to rob the bank.169

In the days and hours that led up to the robbery, Neill and Johnson took steps to prepare for the crime and their escape.170 Shortly after

162. See Lingar, 176 F.3d at 458 (explaining that even though the jury instructions asked the jurors to determine whether “the murder of . . . Allen involved torture or depravity of mind . . . ,” the fact that the prosecutor never explicitly referred to depravity of mind meant that the jury found the aggravating circumstance to exist because the nature of the crime was “wantonly vile, horrible or inhuman”). Part III of this Comment critiques the abstract re-weighing of the evidence as determined at trial against the prosecutor’s remarks at the sentencing hearing.

163. See Man Who Killed Teen is Executed; Holdeu, High Court Rejected Appeals, ST. LOUIS POST-DISPATCH, Feb. 8, 2001, at B3 (explaining that Missouri Governor Bob Holdeu denied clemency to Lingar, and that the denial was the first death penalty decision made by the governor since he took office); Missouri Gay Killer Executed Despite Protests, L.A. TIMES, Feb. 8, 2001, at A19 (indicating that forty demonstrators protested outside the prison while Lingar was executed); Gill Donovan, Death Watch, NAT’L CATHOLIC REPORTER, Feb. 16, 2001, available at 2001 WL 8697323 (reporting the time and date of Lingar’s death); Missouri Executes Inmate for Murder of a Teenager, AGENCE FRANCE-PRESSE, Feb. 7, 2001, available at 2001 WL 2337190 (reporting that Lingar was executed by lethal injection).

164. Neill v. Gibson, 263 F.3d 1184 (10th Cir. 2001); Neill v. State, 896 P.2d 537 (Okla. Crim. App. 1995), cert. denied, Neill v. Oklahoma, 516 U.S. 1080 (1996).

165. See Neill v. State, 896 P.2d 537, 543 (Okla. Crim. App. 1995) (noting that the two men shared an apartment in Lawton, Oklahoma).

166. See id. (explaining that the two men attempted to cut expenses by sharing the apartment with Rhonda Neff and her husband, and that Neff agreed to purchase groceries while Neill and Johnson paid the rent).

167. See id. (indicating that Neill eventually fell behind on the rent and utility payments; and observing that the telephone service was discontinued to the apartment, and that Neill purchased a car with a loan, which quickly became delinquent).

168. See id. at 543-44 (remarking that Neill sought financial assistance with their debt from their local bank).

169. See id. at 544 (revealing that their bank was a small facility that usually had only two tellers and no surveillance cameras or guards).

170. See Neill, 896 P.2d at 544 (stating that on December 13, 1984, Neill and Johnson purchased two hunting knives at a local discount store, and talked to a travel agent at the Lawton Municipal Airport about booking a flight to San Francisco, California; and observing that on December 14, 1984, the two men picked up a gun permit, which they had applied for earlier, and purchased a thirty-two-caliber revolver from a pawnshop). SHORTNACYPP 1/24/02 6:00 PM

one o’clock in the afternoon on December 14, 1984, Neill went to the bank and encountered three employees.171 He ordered them into a back room, forced them to lie face down on the floor, and proceeded to stab them to death.172 A patron entered the bank, found that the teller windows were empty, and looked toward the back room.173 The customer went outside to tell her husband that she thought the bank was being robbed.174 She and her husband, who was carrying their fourteen-month-old daughter, went inside the bank to check things out.175 Another bank customer followed them inside, where Neill greeted them with his gun, herded them into the back room, and forced them to lie down on the floor.176 At that point, yet another customer entered the bank, and Neill forced her to lie down in the back room as well.177 Neill shot the four adult customers in the head.178

Neill and Johnson escaped and flew to San Francisco179 where they spent portions of the robbery’s proceeds.180 The Federal Bureau of Investigation arrested Neill and Johnson three days later in San Francisco.181

At trial, Neill never contested his guilt.182 During the sentencing phase, however, he proffered evidence of a mitigating factor, namely, “that he was acting under an extreme emotional disturbance . . . as a

171. See id. at 544 n.2 (revealing that “the evidence as to whether Robert Johnson accompanied [Neill] into the bank is controverted;” and that Neill testified at sentencing that Johnson was at home waiting on him during the robbery).

172. See id. at 544.

173. See id. (observing that the bank patron, Bellen Robles, looked down the hallway and noticed a man bending over something, then went outside to get her husband).

174. See id.

175. See Neill, 896 P.2d at 544.

176. See id. at 544-45.

177. See id. at 545.

178. See Neill v. Gibson, 263 F.3d 1184, 1188 (10th Cir. 2001) (noting that one of the bank customers who was lying on the floor, Bellen Robles’ husband, had to turn his head during the shooting to keep the blood out of his eyes and, further, that he also saw the gun pointed at his baby daughter and heard a click—the gun was empty).

179. See Neill, 896 P.2d at 545 (reporting that Neill and Johnson arrived at the Lawton Airport at approximately 2:30 p.m., and paid $1,200 in cash for tickets to San Francisco).

180. See Neill, 263 F.3d at 1188 (explaining that when the two landed in San Francisco, they spent some of the $17,000 they stole from the bank on expensive jewelry, clothing, hotels, limousines, and cocaine).

181. See id. (commenting that much of the stolen money was marked, which allowed authorities to trace the serial numbers to ascertain their location).

182. See id. at 1189 (noting that prior to his second trial, “Neill gave a video taped interview to a religious television program, ‘The 700 Club,’ and wrote several letters to an author writing a book about the murders. Neill also wrote letters and made telephone calls apologizing to several victims. In these communications, Neill admitted committing the crimes.”).

result of his fear of losing his relationship with Johnson.”183 In the closing arguments of the sentencing phase, the prosecutor imported Neill’s homosexuality as legal issue by explicitly asking the jurors to consider it in their decision making just as they might consider other statutorily prescribed factors.184 The prosecutor stated the following: If I could ask each of you to disregard Jay Neill and take him out of the person but consider things in a generic way. I want you to think briefly about the man you’re setting [sic] in judgment on . . . . I’d like to go through some things that to me depict the true person, what kind of person he is. He is a homosexual. The person you’re sitting in judgment on—disregard Jay Neill. You’re deciding life or death on a person that’s a vowed [sic] homosexual . . . . But these are areas you consider whenever you determine the type of person you’re setting [sic] in judgment on . . . . The individual’s homosexual. He’s in love with Robert Grady Johnson.185

The jury convicted Neill of four counts of murder in the first degree, three counts of shooting with intent to kill, and one count of attempted shooting with intent to kill.186 The jury found the existence of three aggravating factors and recommended the death penalty for each count of murder.187 The trial court, following the jury’s recommendation, sentenced Neill to death.188 In direct appeals in Oklahoma state court, Neill never raised the issue of prosecutorial misconduct based on the prosecutor’s

183. Id. at 1197.

184. See id. In Oklahoma, jurors are allowed by statute to consider both mitigating and aggravating circumstances in the sentencing phase of capital trials. See 21 OKLA. STAT. ANN. § 701.10(c) (2001) (allowing evidence to be presented in the sentencing phase as to any aggravating or mitigating circumstances enumerated in section 701.7); 21 OKLA. STAT. ANN. § 601.11 (2001) (providing that if the verdict is a unanimous recommendation of death, the jury must designate in writing the statutory circumstances it unanimously determined beyond a reasonable doubt); see generally 75A AM. JUR. 2D Trial § 572 (2001) (remarking that it is appropriate for the prosecutor to refer to the defendant’s remorse, or lack thereof, and to appeal to the jury to assess the deterrent value of the death penalty).

185. See Neill, 263 F.3d at 1199 (Lucero, J., dissenting) (quoting the prosecutor’s remarks, and concluding that “[a]ccording to the prosecutor, the ‘true person,’ the ‘kind of person’ Neill is can be summed up in four words: ‘He is a homosexual.’”).

186. See Neill v. State, 896 P.2d 537, 543 (Okla. Crim. App. 1995) (summarizing the jury verdict).

187. See id. at 557-58 (listing the aggravating factors: (1) Neill had created a great risk of death to more than one person; (2) he had committed the murders to avoid arrest and prosecution; and (3) the murders were especially heinous, atrocious or cruel).

188. See id. at 543 n.1 (citing Neill v. State, 827 P.2d 884 (Okla. Crim. App. 1992)) (revealing that Neill and Johnson were initially tried together, however, those sentences were vacated on appeal as a result of improper joinder). In a separate retrial, Robert Johnson was sentenced to life imprisonment without the possibility of parole. See id.

homophobic statements.189 After obtaining new legal counsel, he appealed to the Tenth Circuit Court of Appeals,190 and, among other things, asserted that the prosecutor’s comments were inflammatory.191 With little explanation and without even quoting the prosecutor’s statement,192 two judges of the three-judge panel found that the prosecutor’s comments about Neill’s homosexuality “were accurate, in light of the evidence, and were relevant to both the State’s case and Neill’s defense theory.”193

Neill then successfully petitioned for a rehearing before the Tenth Circuit panel.194 In reevaluating Neill’s claims, the Tenth Circuit focused on the merits of what it referred to as “underlying” claims of prosecutorial misconduct.195 In reevaluating the prosecutor’s statements, the court’s standard of review required the remarks to result in a “fundamentally unfair proceeding.”196 After reciting the prosecutor’s remarks,197 the court concluded that while they may have

189. See Neill, 943 P.2d at 147-48 (documenting Neill’s argument that he did not waive his claim of prosecutorial misconduct); see also Neill, 263 F.3d at 1195 (explaining that “[b]ecause Neill did not assert any prosecutorial misconduct until his state post-conviction application, the Oklahoma appellate court deemed him to have waived these claims. That procedural bar is adequate to preclude federal habeas review.”) (citations omitted).

190. Neill’s petition for habeas review was first denied by the U.S. District Court for the Western District of Oklahoma. See Neill v. Gibson, No. 00-6024, 2001 WL 1584819, at *1 (stating in the caption that the appeal is from the District Court, D.C. No. Civ-97-1318-C). The District Court decision was not reported and it is never mentioned by the Tenth Circuit Court of Appeals.

191. See Neill, 263 F.3d at 1197 (discussing the court’s refusal to address the claims of prosecutorial misconduct on the merits because his failure to raise these claims on direct appeal is procedural default barring habeas review). The court, however, did evaluate the statements by the prosecutor concerning Neill’s homosexuality in the context of an ineffective assistance of counsel claim. See id. (noting that claim was not procedurally barred).

192. See id. (stating that the prosecutor’s statement merely challenged Neill’s proffered mitigating factor: that “[h]e had a gay lover he didn’t want to lose;” and observing that the prosecutor then compared Neill’s situation to the breakup of a heterosexual relationship). But see id. at 1202 (Lucero, J., dissenting) (responding to the logic of the majority and stating, “[t]o my mind, that argument is no different from claiming that a Jewish Defendant opens the door to a prosecutor’s anti-Semitic arguments by wearing a yarmulke in the presence of jurors.”).

193. Id.

194. See Neill v. Gibson, No. 00-6024, 2001 WL 1584819, at *1 (10th Cir. Dec. 7, 2001) (filing the opinion on rehearing with the order granting Neill’s petition for rehearing).

195. See id. at *8-9 (noting that because Neill had the same attorney at trial and on direct appeal, his failure to raise claims of ineffective assistance of counsel on direct appeal is not a sufficient procedural bar to federal habeas review); see also supra note 191 and accompanying text (discussing same).

196. See id. at *9 (citing Donnelly v. DeChristoforo, 416 U.S. 637, 643, 645 (1974)). Part III of this Comment critiques the use of this Donnelly standard for reviewing homosexual criminal defendants’ claims of prosecutorial misconduct.

197. See id. at *10-11 (quoting the prosecutor). But see supra note 192 (revealing that in its first opinion the Tenth Circuit dismissed the prosecutor’s comments

been “improper,”198 the remarks did not amount to a federal constitutional deprivation.199 In deciding that the challenged remarks could not “plausibly”200 have tipped the scales in favor of the prosecution, the court put the comments in “context”201 and considered the strength of the state’s case against Neill.202 The court then recited State’s evidence, which was largely uncontested at trial.203 Ultimately, the court held that “in light of the overwhelming evidence supporting Neill’s guilt and the charged aggravating factors . . . we cannot say that the prosecutor’s improper comments influenced the jury’s verdict or otherwise rendered the capital sentencing proceeding fundamentally unfair.”204 Jay Wesley Neill awaits his execution on death row in the State of Oklahoma.205

 
 

Oklahoma Court of Criminal Appeals

896 P.2d 537

JAY WESLEY NEILL, APPELLANT
v.
STATE OF OKLAHOMA, APPELLEE

Case Number: F-92-975

1994 OK CR 69

Decided: 10/13/1994

An Appeal from the District Court of Comanche County; Jack Brock, District Judge.

OPINION

LUMPKIN, Presiding Judge:

¶1 Appellant Jay Wesley Neill was tried by jury and convicted of four counts of Murder in the First Degree (21 O.S. 1981 § 701.7. [21-701.7.]), three counts of Shooting with Intent to Kill (21 O.S. 1981 § 652 [21-652]), and one count of Attempted Shooting with Intent to Kill (21 O.S. 1981 § 652 [21-652]), Case No. CRF-84-597, in the District Court of Comanche County. The jury found the existence of three aggravating circumstances and recommended the punishment of death for each count of Murder, and twenty (20) years imprisonment on each count of Shooting with Intent to Kill and Attempted Shooting with Intent to Kill. The trial court sentenced accordingly. From these judgments and sentences Appellant has perfected this appeal.1

¶2 Appellant was found guilty of committing the murders of Kay Bruno, Jerri Bowles, and Joyce Mullenix during the robbery of the First Bank of Chattanooga in Geronimo, Oklahoma, (hereinafter referred to as the Geronimo Bank), on December 14, 1984. All three (3) victims were bank employees. Appellant was also found guilty of killing bank customer Ralph Zeller. During the robbery three other customers, Bellen and Reuben Robles, and Marilyn Roach were shot and severely wounded. For these offenses, Appellant was found guilty of three (3) counts of shooting with intent to kill. Appellant was also convicted of the attempted shooting of the Robles' fourteen month old daughter, Marie. At trial, Appellant did not contest guilt but focused his defense on the punishment stage of trial. Testifying in his own behalf, Appellant set forth the events comprising the robbery and murders, expressed his remorse for the families of the victims and asked the jury to impose punishment as life in prison without the possibility of parole instead of the death penalty.

¶3 During the fall of 1984, Appellant and Robert Johnson shared an apartment in Lawton, Oklahoma. Appellant attempted to support the both of them but had difficulty keeping a steady job. The men soon began to experience financial difficulties. In an attempt to cut expenses, they shared the apartment with Rhonda Neff and her husband. An agreement was reached whereby Ms. Neff would purchase the groceries and Appellant and Johnson would pay the rent. Appellant was unable to comply with his part of the agreement, and they fell behind in their rent. Appellant also fell behind in payments on a rental television and the utilities. Telephone service was discontinued to the apartment. Appellant purchased a car in September 1984, taking out a loan with General Motors Acceptance Corporation. That loan soon became delinquent. Appellant was also delinquent on a loan from Geronimo Bank.

¶4 Appellant and Johnson had a joint checking account at the Geronimo bank. It was not in good standing; numerous checks written on the account had been returned due to insufficient funds. Appellant and Johnson were at the bank frequently attempting to work out their money problems.

¶5 The Geronimo Bank was a small facility, housed in a prefabricated building. It usually had only two tellers and no surveillance cameras or security guards. Appellant commented on more than one occasion on the absence of the security measures and how easy he thought it would be to rob the bank.

¶6 On December 12, 1984, Appellant visited a local pawnshop and inquired about the purchase of a gun. He indicated to the clerk that he needed the gun for protection as he had been receiving threatening phone calls. Different types of guns were described to him and he was told that he must have a gun permit from the police department in order to purchase a gun. It was explained that in order to obtain a gun permit, an individual must be at least twenty-one (21) years old. Appellant was nineteen (19) years old.

¶7 The next day, December 13, 1984, Appellant and Johnson purchased two hunting type knives at a local discount store. They initially looked at purchasing a gun, but when informed the guns in that store were not real, they purchased the knives. That morning, Appellant talked with a travel agent at the Lawton Municipal Airport. He originally wanted a flight to Nassau leaving after 6:00 p.m. Friday December 14th. When told there was not a flight available, he requested one to San Francisco leaving after 5:00 p.m. that Friday. Appellant also inquired into hotel accommodations, specifically executive suites, and limousine service. When asked for payment, Appellant said he would pay in cash on Friday.

¶8 At approximately 11:30 a.m. on December 13th, twenty-one (21) year old Robert Johnson applied for a gun permit from the Lawton Police Department. At approximately 1:15 p.m. Appellant and Johnson walked into the Geronimo Bank. They stayed only a few minutes, not conducting any business but just looking around.

¶9 On Friday, December 14, 1984, at approximately 10:00 a.m., Appellant and Johnson, returned to the pawn shop and asked for a revolver seen on a previous visit. They were shown how to load and fire the gun and told the type of ammunition used and where it could be purchased. Appellant held the gun up and clicked it several times. They told the clerk they were to get the gun permit by 2:30 p.m. that afternoon and would be back then to purchase the gun.

¶10 They picked up the gun permit early, at approximately 11:30 a.m., and returned to the pawn shop at approximately 12:25 p.m. to purchase the gun. They were in a hurry to fill out the appropriate forms and pick up the revolver. Ammunition was then purchased at a local discount store. However, when placed in the gun it did not fit. The gun had been mistakenly marked as a .38 when it was actually a .32 caliber. So, the .38 caliber shells purchased were exchanged for .32 caliber shells. Between 12:30 and 1:00 p.m. Appellant hurriedly purchased lunch from a local drive-in restaurant. At approximately 12:45 p.m., Johnson went to a neighbors apartment to use the telephone. He rescheduled their travel plans for an earlier flight, leaving at approximately 2:30 p.m. that afternoon.

¶11 Shortly after 1:00 p.m., Appellant entered the Geronimo Bank.2 Bank employees Kay Bruno, Jerri Bowles and Joyce Mullenix were herded to a back room, forced to lie face down on the floor and stabbed to death. At the front of the bank, Bellen Robles had entered in order to deposit a check. Finding the teller windows empty, she looked down the hallway to the back room. There she saw the back of a man as he bent over something. She went outside to tell her waiting husband, Reuben, that she thought the bank was being robbed. He doubted this and went inside the bank with his wife and their fourteen (14) month old daughter. Entering the bank just behind them was local farmer, Ralph Zeller. Barely inside the front door, they were greeted with a gun pointed at them and told to go to the back room if they wanted to live. Once in the back room they were directed to lie down on the floor.

¶12 The Robles and Mr. Zellner were left in the back room while Appellant went up to the front of the bank to sack up the money. While he was doing so, another customer, Marilyn Roach entered the bank. Appellant pointed the gun at her and forced her to the back room. She was barely able to lie down inside the small, now crowded, room. Moments later the gunshots rang out. Mrs. Roach was shot twice in the head. Bellen and Ruben Robles were each shot once in the head. Turning his head to keep the blood out of his eyes, Ruben Robles saw the gun pointed at his baby daughter and heard it click. But no shots were fired; the gun was empty.

¶13 At approximately 1:25 p.m., Pam Matthews arrived at the Geronimo Bank to find it empty. Money wrappers were on the floor. The only sound she heard was that of a baby crying. She followed the sound to the back room and saw the victims. Calling out to see if anyone was alive, she ran to the cafe across the street and said the bank had been robbed. A patron in the restaurant, Calvin Bowles, had just been in the bank shortly before 1:00 p.m. to cash a check and visit with his nineteen (19) year old daughter Jerri. After talking with his daughter for a few minutes he left for the cafe. Shortly thereafter he heard Ms. Matthews' cries of robbery and was one of the first to arrive at the bank. In addition to the discovery of the victims in the bank, Appellant's bank file was found open on Kay Bruno's desk.

¶14 Appellant and Johnson arrived at the Lawton Airport at approximately 2:30 p.m. They paid one thousand two hundred dollars ($1,200.00) in cash for their tickets and boarded the plane; carrying only a tote bag. Appellant had left a note back at the apartment for Rhonda Neff. In it he said he and Johnson had gone to Georgia. That evening, neighbors received a phone call from Appellant saying he was in Georgia and asking if anything exciting had happened in Lawton. The neighbor did not think to tell him about the robbery. He called her back on Sunday evening and again asked if anything was going on in Lawton. She asked where he was and for the phone number. Telling her he was in Georgia, he gave her the phone number to his San Francisco hotel. Appellant phoned another friend Sunday evening, and asked her the same questions. She told him about the robbery and murders. When asked if there were any suspects, Appellant was told of a composite drawing made by the FBI. The friend said the composite picture fit Appellant to a "t".

¶15 Appellant and Johnson were arrested in San Francisco Monday December 17, 1984. Much of the money taken in the robbery was marked bills. The serial numbers on the money used to pay for hotel rooms, limousine rides and shopping excursions matched that on the "bait list", i.e. the list of serial numbers on the marked bills. When Appellant was arrested, he had approximately one thousand nine hundred dollars ($1,900.00) in his pants pocket and another one thousand eight hundred dollars ($1,800.00) was found inside his hotel room.

JURY SELECTION ISSUES

A.

¶16 In his first assignment of error, Appellant attacks the State's use of peremptory challenges to exclude four (4) black venire-persons. In Batson v. Kentucky, 476 U.S. 79, 98, 106 S.Ct. 1712, 1724, 90 L.Ed.2d 69 (1986), the Supreme Court held that a defendant can raise an equal protection challenge to the use of peremptory challenges at his own trial by showing that the prosecutor used the challenges for the purpose of excluding members of the defendant's own race from the jury panel. Id. at 96, 106 S.Ct. at 1718, 90 L.Ed.2d at 87. Subsequently, in Powers v. Ohio, 499 U.S. 400, 409, 111 S.Ct. 1364, 1369-70, 113 L.Ed.2d 411, 424 (1991), the Court extended this holding to the exclusion of any venireperson solely on the basis of race, even if they were not the same race as the defendant. It is upon Powers that Appellant relies in-as-much as he and all of his victims were all members of the same race. In Powers, the Supreme Court left it to the trial courts to develop rules to prevent peremptory challenges from being used "as a mask for race prejudice." Id. at 416, 111 S.Ct. at 1374. This Court and the trial courts in this State have adopted the strictures set forth in Batson v. Kentucky.3

¶17 Batson establishes a three (3) part analysis: 1) the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race; 2) after the requisite showing has been made, the burden shifts to the prosecutor to articulate a race neutral explanation related to the case for striking the juror in question; 3) the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination. The Court noted the race neutral explanation by the prosecutor need not rise to the level justifying excusal for cause, but it must be a "clear and reasonably specific" explanation of his "legitimate reasons" for exercising the challenges. Id. 476 U.S. at 98, n. 20, 106 S.Ct. at 1723, n. 20. The trial court's findings as to discriminatory intent are entitled to great deference. Id. 476 U.S. at 98 n. 21, 106 S.Ct. at 1724 n. 21. See also Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (plurality opinion). Therefore, we review the record in the light most favorable to the trial court's ruling. Black v. State, 871 P.2d 35, 43 (Okl.Cr. 1994).

¶18 Assuming arguendo Appellant made a prima facie showing,4 the prosecutor offered race neutral explanations in rebuttal for striking from the panel Mrs. Jones, Mrs. Lovick, Mrs. Jackson and Mr. Evans. "A neutral explanation in the context of our analysis here means an explanation based on something other than the race of the juror. At this step of the inquiry, the issue is the facial validity of the prosecutor's explanation. Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral." Hernandez v. New York, 500 U.S. at 360, 111 S.Ct. at 1866, 114 L.Ed.2d at 406. The State used its first peremptory challenge to excuse Mrs. Jones. The prosecutor explained that he was "leery about her close religious affiliation" (her husband was a minister), that she was a school teacher and "school teachers historically . . . . tend to be forgiving in nature", that her austere type of dress made him uncomfortable and that she adamantly shook her head up and down when the issue of the evidence necessary to return a guilty verdict was discussed during Appellant's voir dire. On its face, this explanation does not reveal an intent to discriminate against the potential juror on account of race. Appellant's religious beliefs, admittedly acquired since the commission of the crimes, were an issue in the second stage of trial. The State's impression that the juror would be sympathetic to Appellant's beliefs was a legitimate, race-neutral reason to strike the juror.

¶19 The State's third peremptory challenge was used to excuse Mrs. Lovick. The prosecutor explained that Mrs. Lovick's prior contacts with the district attorney's office had been antagonistic. She had been charged with a peace bond violation and with intimidation of a witness. Neither charge resulted in a conviction.5 The prosecutor's belief that Mrs. Lovick may well have been prejudiced against the State was a sufficient race neutral explanation. A hostile attitude toward law enforcement has been held a legitimate reason to exclude a potential juror. See Moss v. Montgomery, 588 So.2d 520 (Ala.Cr.App. 1991).

¶20 Mrs. Jackson was also excused from the panel with the explanation that she appeared to have her mind already made up against the State, that she had a stern look on her face and would not maintain eye contact with the prosecutor, and that she was "independent and haughty" in her actions. Body language can be a valid race neutral explanation under certain circumstances. See Avery v. State, 545 So.2d 123, 127 (Ala.Cr.App. 1988). If one potential juror is struck for this reason, the explanation carries more weight. However, if more than one potential juror is struck, the explanation is weakened. In the present case, Mrs. Jackson was the only venireperson challenged by the State for this reason. A review of her voir dire in its entirety reveals a manner that was somewhat hostile and less than respectful to the State. The fact a potential juror would not be very receptive to the State's theory of the case and even hostile to the prosecution is a sufficient race neutral explanation for preempting the juror off the panel.

¶21 Mr. Evans was excused from the panel for the reasons that he retired from the military at a relatively low rank, that he was originally from a large urban area where killings occurred frequently and that his answers and actions indicated that he was taking the trial very lightly. When read in context, the combination of these reasons illustrates an individual who lacked the appreciation for the serious nature of the task to be performed by a juror deciding whether the death penalty should be imposed. These reasons are sufficiently race neutral explanations to pass constitutional muster. See Allen v. State, 871 P.2d 79, 90 (Okl.Cr. 1994).

¶22 Once the prosecutor offers a race-neutral basis for the exercise of the peremptory challenge, it is the duty of the trial court to determine if the defendant has established purposeful discrimination. "[I]n the typical peremptory challenge inquiry, the decisive question will be whether counsel's race neutral explanation for a peremptory challenge should be believed. There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge." "[E]valuation of the prosecutor's state of mind based on demeanor and credibility lies `peculiarly within a trial judge's province.'" Hernandez v. New York, 500 U.S. at 365, 111 S.Ct. at 1869, 114 L.Ed.2d at 409. Here, the trial court chose to believe the prosecutor's race neutral explanations for striking the jurors in question, rejecting Appellant's assertion that the reasons were merely a pretext. The trial court's decision on the issue of discriminatory intent will not be overturned unless we are convinced that the determination is clearly erroneous. In the present case, the record reveals that race was simply not an issue. Appellant and all of the victims were members of the same race. No allegations were made that the commission of the offense or the prosecution of Appellant were in any way racially motivated. Therefore, we find no error in the trial court's determination that the prosecutor did not discriminate on the basis of race and that Appellant failed to carry his burden of showing purposeful discrimination.

¶23 Appellant further argues the trial court erred in failing to make specific findings regarding the prosecution's use of its peremptory challenges to excuse the above mentioned jurors. The record reflects the trial court did not make specific findings as to the explanations offered by the State for the use of its first, third, fifth and ninth peremptory challenges. While the better approach would have been to make specific findings as the challenges were used, the record shows the trial court fully examined the reasons offered before accepting the State's use of the challenge. Accordingly, this assignment of error is denied.

B.

¶24 Appellant contends in his second assignment of error that the trial court erred in failing to excuse for cause prospective jurors Boyle and Hubbard. Appellant argues their preconceived opinions concerning the appropriateness of the death penalty made them unfit to sit as jurors. However, neither of them actually sat on the jury, excused by the Appellant's eighth and ninth peremptory challenges.

¶25 Any error in the trial court's refusal to excuse these two potential jurors for cause is harmless in light of Appellant's exercise of peremptory challenges to remove the men. See Ross v. Oklahoma, 487 U.S. 81, 88, 108 S.Ct. 2273, 2278, 101 L.Ed.2d 80, 90 (1988); Tibbs v. State, 819 P.2d 1372, 1378-1379 (Okl.Cr. 1991). Appellant objected to using peremptory challenges to excuse Boyle and Hubbard and requested additional peremptories. That motion was denied. In-as-much as Appellant did not specify at trial, nor on appeal, which potential jurors would be removed with additional peremptories, nor has he alleged that the jury which actually heard his case was not fair and impartial, we find Appellant was not prejudiced in any substantial rights by his use of the eighth and ninth peremptory challenges.

¶26 In Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985), the Supreme Court held that the proper standard for determining when a prospective juror may be excluded for cause because of his or her views on capital punishment is "whether the juror's views would prevent, or substantially impair, the performance of his duties as a juror in accordance with his instructions and his oath." 469 U.S. at 424, 105 S.Ct. at 852, 83 L.Ed.2d at 851-852. The issue of jurors who would automatically vote for the death penalty was addressed in Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992), and Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988). In those decisions the Court held that those jurors who will automatically vote for the death penalty "will fail in good faith to consider the evidence of aggravating and mitigating circumstances as the instructions require him to do so." Morgan, 504 U.S. at ___, 112 S.Ct. at 2229, 119 L.Ed.2d at 502. Such prospective jurors are to be removed from the jury panel for cause. Id. This Court has previously held that we will look to the entirety of the juror's voir dire examination to determine if the trial court's ruling was proper. See Castro v. State, 844 P.2d 159, 166 (Okl.Cr. 1992); Davis v. State, 665 P.2d 1186, 1194 (Okl.Cr. 1983), cert. denied 464 U.S. 865, 104 S.Ct. 203, 78 L.Ed.2d 177 (1983). As the trial court personally observes the jurors and their responses, this Court will not disturb its decision absent an abuse of discretion. Rojem v. State, 753 P.2d 359, 363 (Okl.Cr. 1988).

¶27 Upon questioning by the State, Mr. Boyle indicated he believed in the death penalty and could, if the law and evidence warranted, consider a verdict imposing the death penalty, that he would wait until deliberations to make the determination as to the proper punishment in this case and that he would consider all the evidence in reaching his verdict. When questioned by the defense, Mr. Boyle stated he had done some research into the question of the death penalty, on a case by case basis, and determined that premeditated murder was the only crime for which the death penalty would be appropriate punishment. When asked whether a guilty verdict in Appellant's case would be the type of homicide for which the death penalty would be appropriate, Mr. Boyle stated he would have to hear the testimony of the witnesses before he could decide. When pressed, he agreed with counsel's restatement of his responses that the death penalty was the only appropriate punishment for any person found guilty of pre-meditated murder. Upon further voir dire by the State, Mr. Boyle indicated that if the Appellant was found guilty of premeditated murder, he would not automatically give him the death sentence, he would have to listen to the evidence. He admitted there was evidence he would consider to determine whether death, life in prison or life in prison without parole was the appropriate punishment. Mr. Boyle stated he could keep an open mind until he heard all the evidence and that he could consider all three penalties.

¶28 When asked by defense counsel whether any sentence other than the death penalty would be appropriate in a case where four people were found to have been murdered in a premeditated manner, Mr. Hubbard responded "Not really. If they were premeditated." When asked by the State if he would automatically vote for the death penalty in a case where the jury found the murder of four people was premeditated, Mr. Hubbard answered, "That's close, yes." Upon further voir dire by the State, Mr. Hubbard stated he had never been a juror before, he did not know what mitigation evidence the Appellant would offer, he would listen to any evidence presented, and he could consider as punishment life imprisonment, life imprisonment without parole and the death penalty. When asked by defense counsel if there was any kind of mitigation he would consider, Mr. Hubbard stated that "just off the top of [his] head, if a person was proven mentally incompetent." The trial court denied the Appellant's challenge for cause finding the juror never wavered from his statement that he could consider any mitigating evidence offered and would consider all three possible punishments.

¶29 This Court has held that the only legitimate concern is whether each member of the jury is willing to consider all the penalties provided by law and not be irrevocably committed before the trial has begun. Duvall v. State, 825 P.2d 621, 630 (Okl.Cr. 1991); Banks v. State, 701 P.2d 418, 421-422 (Okl.Cr. 1985); Davis v. State, 665 P.2d 1186, 1190 (Okl.Cr. 1983), cert. denied 464 U.S. 865, 104 S.Ct. 203, 78 L.Ed.2d 177 (1983). A review of the entire voir dire inquiry of Mr. Boyle and Mr. Hubbard reveals that neither man was predisposed to impose the death penalty. We find the responses given by both Mr. Boyle and Mr. Hubbard showed that neither was irrevocably committed to vote for the death penalty regardless of the law and that each stated his views about capital punishment would not have prevented or substantially impaired his performance as a juror in accordance with his instructions and oath. Accordingly, this assignment of error is denied.

C.

¶30 In his third assignment of error Appellant contends the trial court erred in overruling defense motions for individual sequestered voir dire and for a sequestered jury. Appellant argues the court's ruling denied him a fair trial given the nature of the crime, the small size of the town of Lawton and the fact that the death penalty was being sought. However, Appellant fails to support this claim of prejudice with any reference to the record. This Court has consistently held that the burden is upon the appellant to establish to the appellate court the fact that he was prejudiced in his substantial rights by the commission of an alleged error. Cook v. State, 650 P.2d 863, 868 (Okl.Cr. 1982). Appellant has failed to meet that burden in this case. See Duvall v. State, 825 P.2d 621, 632 (Okl.Cr. 1991).

¶31 As legal authority for his argument Appellant relies on Evans v. State, 26 Okl.Cr. 9, 221 P. 794 (1924)6. This case is distinguishable from the present case and does not support Appellant's argument. Duvall v. State, 825 P.2d at 632. In Evans this Court found merit to the appellant's argument that the trial court erred in refusing the defendant's request to have the jury placed in charge of a sworn officer and in permitting the jury to separate during trial and after the instructions had been issued and closing arguments made. The Court found that appellant had supported his claim of prejudice by proof that the jury mingled with several relatives and friends of the deceased during every recess and adjournment and were thereby exposed to improper influences and prejudices existing outside the courtroom. In arriving at this conclusion, the Court discussed the history of sequestering a jury and noted that in capital cases, the jurors should not be permitted to separate after they have been sworn, where one of the parties objected to the separation. The Court further stated:

While the law allows a separation of the jury with the permission and under proper admonition of the court at any time before the submission of the cause, yet we believe that in the exercise of sound judicial discretion, the trial court in a capital case should not refuse a request from either party to place the jury in charge of sworn officers during the progress of the trial. Armstrong v. State, 2 Okl.Cr. 566, 99 Pac. 658, 24 L.R.A. (N.S.) 776.

¶32 We continue to adhere to the well established rule that it is within the trial court's discretion whether to allow the jury to separate or to sequester them. Ferguson v. State, 51 Okl.Cr. 381, 1 P.2d 830, 832 (1931). See Price v. State, 782 P.2d 143, 147-148 (Okl.Cr. 1989); Carson v. State, 529 P.2d 499, 503 (Okl.Cr. 1974); Thompson v. State, 73 Okl.Cr. 72, 118 P.2d 269, 272 (Okl.Cr. 1941). See also 22 O.S. 1991 § 853 [22-853]. In Price, we held that an abuse of discretion will be found only where appellant shows, by clear and convincing evidence, that the jurors were specifically exposed to media reports which were prejudicial to the appellant. 782 P.2d at 147. We also find that an abuse of discretion will be found where appellant shows, by clear and convincing evidence, that the jurors were exposed to specific improper influences which were prejudicial to appellant.

¶33 Here, no proof has been offered of any prejudice. The record is also void of any evidence, much less clear and convincing evidence, that the failure to sequester the jury resulted in their exposure to any improper influences or that they were affected by any passions or prejudices existing outside the courtroom. Each juror sworn testified that he or she could be fair and impartial. Appellant has failed to meet his burden of showing that he was prejudiced in any way by the court's ruling. To the extent that Evans v. State is inconsistent with this ruling, it is hereby overruled.

¶34 Further, whether private individual voir dire should be conducted is a matter of discretion of the trial court. Morrison v. State, 619 P.2d 203 (Okl.Cr. 1980). In Romano v. State, 847 P.2d 368, 376 (Okl.Cr. 1993), we quoted to Foster v. State, 714 P.2d 1031, 1037 (Okl.Cr. 1986), cert. denied 479 U.S. 873, 107 S.Ct. 249, 93 L.Ed.2d 173 (1986) and stated:

[a]lthough such a practice may be allowed by a trial judge, it is an extraordinary measure . . . Unless the danger of prejudicing the jurors by exposure to damaging information is a grave problem or some special purpose would be served, it is unlikely that individual voir dire would be justified. We find no abuse of discretion in not allowing the procedure.

Nor do we find any abuse of discretion in this case. The record reflects that both the State and the defense conducted an extensive voir dire examination. We are unable to discern any purpose for sequestering the venire and it does not appear that Appellant was prejudiced by not questioning the venire individually. Sellers, 809 P.2d at 682; Fox, 779 P.2d at 568; Vowell v. State, 728 P.2d 854, 857 (Okl.Cr. 1986). Therefore, this assignment of error is denied.

FIRST STAGE TRIAL ISSUES

A.

¶35 During the guilt stage of trial, evidence was introduced showing that Appellant and co-defendant Johnson traveled to San Francisco immediately after committing the robbery and murders. Until the time they were apprehended, approximately three (3) days later, Appellant and Johnson rented a limousine, stayed in luxury accommodations, visited nightclubs and generally went on a spending spree. This spending spree included Appellant's purchase and use of cocaine. In his fourth assignment of error, Appellant argues admission of the purchase and use of cocaine was improper evidence of other crimes which in no way was connected to the murder and shooting with intent charges and was more prejudicial than probative. In his fifteenth assignment of error, he argues evidence of his activities in general in San Francisco was not relevant and was inflammatory.

This Court has held that evidence of other crimes may be admissible where they form a part of an "entire transaction" or where ¶36 there is a "logical connection" with the offenses charged. Dunagan v. State, 734 P.2d 291, 294 (Okl.Cr. 1987); Bruner v. State, 612 P.2d 1375 (Okl.Cr. 1980). This "res gestae" exception differs from the other listed exceptions to the evidence rule; in that in the listed exceptions, the other offense is intentionally proven, while in the res gestae exception, the other offense incidentally emerges. Dunagan v. State, 755 P.2d 102, 104 (Okl.Cr. 1988). "Evidence of another crime will not be excluded where, as here, it incidentally emerges as events are revealed in their natural sequence." Shelton v. State, 793 P.2d 866, 871 (Okl.Cr. 1990).

¶37 Here, evidence of Appellant's purchase and use of cocaine emerged as the State set forth the full story of the offenses occurring at the First Bank of Chattanooga on December 14, 1984. The proceeds from the bank robbery were used to fund the trip to San Francisco and the spending spree which ensued. Used in this spending spree were specially marked bills which lead in part to Appellant's apprehension by the authorities. This Court has specifically upheld the admission of other crimes evidence when the other offenses were crimes which led to the appellant's apprehension and arrest. Salazar v. State, 852 P.2d 729, 736 (Okl.Cr. 1993). The commission of the bank robbery and murders and Appellant's apprehension occurred within a span of three (3) days. Evidence of the events occurring in San Francisco were so closely related to the bank robbery and murders that they formed a logical connection with the charged offenses so as to be relevant evidence.

¶38 Further, the probative value of this evidence was not substantially outweighed by the danger of unfair prejudice or harmful surprise. See 12 O.S. 1991 § 2403 [12-2403]. The State included this evidence in its pre-trial Notice of Evidence of Other Crimes, see Burks v. State, 594 P.2d 771, 772 (Okl.Cr. 1979), overruled in part on other grounds, Jones v. State, 772 P.2d 922 (Okl.Cr. 1989),7 and the trial court instructed the jury on the limited use of this evidence.8 Therefore, we find this evidence was properly admitted at trial.

B.

¶39 In his fifth assignment of error, Appellant argues the trial court erred in admitting photographs of the victims and crime scene which were more prejudicial than probative. Appellant argues that as he did not contest guilt, the only reason for admitting the photographs was to inflame the passions of the jury.

¶40 It is well settled that the admissibility of photographs is a matter within the trial court's discretion. Absent an abuse of that discretion, this Court will not reverse the trial court's ruling. Williamson v. State, 812 P.2d 384, 400 (Okl.Cr. 1991), cert. denied 503 U.S. 973, 112 S.Ct. 1592, 118 L.Ed.2d 308 (1992). Photographs are admissible if their content is relevant and unless their probative value is substantially outweighed by their prejudicial effect. Smith v. State, 737 P.2d 1206, 1210 (Okl.Cr. 1987), cert. denied, 484 U.S. 959, 108 S.Ct. 358, 98 L.Ed.2d 383 (1988); 12 O.S. 1981 § 2403 [12-2403].

¶41 Twenty-one different color photographs were introduced in this case. Five (5) depicting the crime scene and sixteen (16) illustrating the victims' wounds. Appellant's argument that the photos were not relevant as the cause of death was not contested was addressed and rejected in Williamson v. State, 812 P.2d at 400. While the defendant may not contest the victim's cause of death, it remains the State's burden to prove, first, the corpus delicti, and second, that the crime was committed by the accused. Pictures of the murder victim are always useful in establishing the corpus delicti of the crime.

¶42 Further, the probative value of photographs of murder victims can be manifested numerous way including, as in the present case, showing the nature, extent, and location of wounds, depicting the crime scene, and corroborating the medical examiner's testimony. Moore v. State, 736 P.2d 161, 164 (Okl.Cr. 1987), cert. denied, 484 U.S. 873, 108 S.Ct. 212, 98 L.Ed.2d 163 (1987); Robison v. State, 677 P.2d 1080, 1087 (Okl.Cr. 1984). The fact that the pictures are gruesome does not of itself cause the photographs to be inadmissible. As we stated in McCormick v. State, 845 P.2d 896, 898-899 (Okl.Cr. 1993):

. . . there is no requirement that the visual effects of a particular crime be down played by the State. Gruesome crimes result in gruesome pictures. The only consideration to be made is whether the pictures are unnecessarily hideous, such that the impact on the jury can be said to be unfair. The pictures admitted were graphic, as are most pictures of dead, murdered bodies; however, as was true in Thomas v. State, 811 P.2d 1337, 1345 (Okl.Cr. 1991), the pictures `were not so repulsive as to be inadmissible.'

¶43 Contrary to Appellant's claim, we do not find the photos so repetitious as to be prejudicial. This Court has held that there is a point in the display of relevant photographs where the photographs are so duplicative that a needless repetition can inflame the jury and result in error. President v. State, 602 P.2d at 226. The burden is on the Appellant to prove that he was injured by the error. Barr v. State, 763 P.2d 1184, 1187 (Okl.Cr. 1988); Harrall v. State, 674 P.2d 581, 583 (Okl.Cr. 1984). The photos in the present case accurately reflected the injuries inflicted upon four (4) different victims. The photos were taken by the medical examiner prior to the autopsy. As the photos corroborate the medical examiner's testimony and illustrate the wounds received by the victims, we find their probative value is not substantially outweighed by any prejudicial effect. Accordingly, this assignment of error is denied.

C.

¶44 Appellant was charged in the felony information in part with the commission of first degree murder with malice aforethought and/or in the commission of an armed robbery. In his sixth assignment of error, Appellant contends the trial court erred in overruling his motion to compel the State to elect between which alternative theories of guilt would be relied on at trial. In Munson v. State, 758 P.2d 324, 332 (Okl.Cr. 1988), we held that where the offense may be committed by the use of different means, the means may be alleged in the alternative in the same count. In the case now before us, the murder could have been committed in either or both ways alleged. Therefore, we do not find any error in charging the Appellant in the information under one count and in the alternative.

¶45 Appellant further argues he was denied due process of law and conviction by a unanimous verdict because the jury was not instructed to find unanimously that he had committed first degree murder either with malice aforethought or during the course of an armed robbery. This same argument was addressed and rejected by this Court in James v. State, 637 P.2d 862, 865 (Okl.Cr. 1981). Appellant so acknowledges and asks this Court to reconsider its position. We decline.

¶46 We note that Appellant has waived all but plain error review by his failure to object to the verdict forms submitted to the jury. In fact, counsel specifically stated he had reviewed the instructions and had "no objections" and he had reviewed the verdict forms and found them to be "proper." Therefore, by failing to bring any potential error to the attention of the trial court and allow for a possible remedy, Appellant has not properly preserved the issue for appellate review. Munson v. State, 758 P.2d at 332; Reams v. State, 551 P.2d 1168, 1170 (Okl.Cr. 1976).

¶47 Assuming arguendo, the issue is properly before this Court. In James, we held that failure of a jury to indicate the basis of their finding of guilt was not error where there was a single crime charged, that is first degree murder. Whether or not it was committed with malice aforethought, or during the commission of a felony goes to the factual basis of the crime. The jury verdict was unanimous that the appellant committed the crime: such a verdict satisfies due process. No due process violation occurred as all of the elements of the crime charged were proven. See Wilson v. State, 737 P.2d 1197 (Okl.Cr. 1987); Plunkett v. State, 719 P.2d 834 (Okl.Cr. 1986).

¶48 In the present case, Appellant was charged in the alternative with the commission of malice aforethought murder or murder during the commission of an armed robbery. As the State did prove both premeditation and felony-based murder, this Court finds that the failure of the jury to indicate the basis of their finding of guilt was not error.

SENTENCING STAGE ISSUES

A.

¶49 In his seventh assignment of error, Appellant contends the admission of second stage testimony from the victims' relatives denied his right to a fair sentencing proceeding. This testimony came from the husband of Kay Bruno, the husband of Joyce Mullenix and the father of Jerri Bowles and concerned the loss of each victim and the impact of that loss on family members. The State provided prior notice to Appellant of the use of this evidence and the defense entered an objection at trial.

¶50 In Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), the Supreme Court specifically approved this type of victim impact evidence stating that "[in] the majority of cases, . . . victim impact evidence serves entirely legitimate purposes." Id. at 825, 111 S.Ct. at 2608. The Court declared that "[a] State may legitimately conclude that evidence about the victim and about the impact of the murder on the victim's family is relevant to the jury's decision as to whether or not the death penalty should be imposed." Id. at 827, 111 S.Ct. at 2609, 115 L.Ed.2d at 736. Victim impact evidence is constitutionally acceptable so long as it is not "so unduly prejudicial that it renders the trial fundamentally unfair." Id. at 825, 111 S.Ct. at 2608. One year after the Payne decision, the Oklahoma Legislature specifically provided for the admission of victim impact evidence in sentencing considerations. See 22 O.S.Supp. 1992 §§ 984 [22-984], 984.1 [22-984.1], and 991a [22-991a](C).

¶51 Appellant now argues on appeal that admission of this type of evidence in his case is an ex post facto application of the law and a due process violation. We disagree. The Oklahoma statutes concerning the admission of victim impact evidence went into effect approximately two (2) months prior to Appellant's trial.9 Therefore, the new statutes could be properly used in Appellant's case. Further, application of the new statutes was not an ex post facto violation as the statutes did not alter "any substantial personal rights but merely change[d] modes of procedure which [did] not affect matters of substance." Miller v. Florida, 482 U.S. 423, 430, 107 S.Ct. 2446, 2451, 96 L.Ed.2d 351, 360 (1987). They did not increase the punishment which the Appellant was to face, nor did they make criminal an act which was not criminal at the time of its commission; the new statutes were merely procedural. Id. See also Barnes v. State, 791 P.2d 101, 103 (Okl.Cr. 1990). Therefore, they were properly applied to Appellant.

¶52 Appellant alleges these new statutes give prosecutors, judges and juries "completely unfettered discretion regarding the admission and consideration" of victim impact evidence. To the contrary, we find these statutes set forth specific guidelines as to the use of this evidence. The terms used in this new procedure, "victim impact statement", "members of the immediate family" and "violent crimes" are set forth in § 984. Sections 984.1 and 991a(C) proscribe the admission and use of this evidence. These statutes, taken together with the parameters outlined in Payne v. Tennessee, provide sufficient notice and guidance in the application of victim impact evidence. As with any evidence, the weight to be given this evidence, is for the trier of fact to determine. Accordingly, we find the victim impact evidence was properly admitted during the sentencing stage of trial.

B.

¶53 For his eighth assignment of error, Appellant challenges the jury instruction addressing the aggravating circumstance of "especially heinous, atrocious or cruel". The instruction, No. 11, recited the language of Oklahoma Uniform Jury Instruction — Criminal (OUJI-CR) No. 436. Appellant argues the second paragraph does not limit the unconstitutionally vague definitions contained in the first paragraph of the instruction. This allegation of error will be reviewed only for plain error as Appellant failed to object to the giving of instruction No. 11. The record reflects that Appellant offered written prepared instructions to the court and took exception to their rejections, but he specifically stated he had no objections to the instructions the court intended to give.

¶54 In Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988), the United States Supreme Court held that the aggravating circumstance of "especially heinous, atrocious or cruel" was unconstitutionally vague as applied in that case. The Court expressed approval of a definition which would limit application of the aggravating circumstance to murders involving "some kind of torture or serious physical abuse." 486 U.S. at 365, 108 S.Ct. at 1859, 100 L.Ed.2d at 382. Such a limitation was adopted by this Court in Stouffer v. State, 742 P.2d 562, 563 (Okl.Cr. 1987) (Opinion on Rehearing), cert. denied, 484 U.S. 1036, 108 S.Ct. 763, 98 L.Ed.2d 779 (1988).

¶55 In Cartwright, the jury had been given only one of the two paragraphs of the OUJI-CR No. 436 and did not include the limiting factors. In the present case, the jury was given both paragraphs. This instruction cures the constitutional infirmities identified in Maynard and embodies the limitations which the sentencer must consider in the application and finding of this particular aggravating circumstance. See Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990). We have re-examined these principles on several occasions and have since consistently applied the narrow construction discussed above. See Romano v. State, 847 P.2d 368, 386 (Okl.Cr. 1993); Thomas v. State, 811 P.2d 1337, 1348 (Okl.Cr. 1991). Accordingly, we find that this particular aggravating circumstance was applied in a constitutional manner in the present case.

C.

¶56 Appellant argues in his ninth assignment of error that this Court's attempt to narrow the construction of the "especially heinous, atrocious or cruel" aggravating circumstance is a violation of the separation of powers doctrine, impermissibly intruding upon the province of the legislature. Appellant contends the time has come to declare the aggravating circumstance unconstitutionally vague and overbroad.

¶57 In Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973), the Supreme Court put limitations on the use of overbreadth to void a statute on its face. The Court advised that declaring a statute facially invalid should be used sparingly and only as a last resort. In Erznoznik v. Jacksonville, 422 U.S. 205, 216, 95 S.Ct. 2268, 2276, 45 L.Ed.2d 125, 135 (1975), the Court declared that a state statute should not be deemed facially invalid unless it is not readily subject to a narrowing construction by the state courts. See also Pegg v. State, 659 P.2d 370, 372 (Okl.Cr. 1983). Title 21 O.S. 1991 § 701.12 [21-701.12](4), the statute setting forth the aggravating circumstance of "especially heinous, atrocious or cruel" was amenable to such a limiting construction by this Court; a construction endorsed by the United States Supreme Court. See Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990). Appellant's reading of the statute in such a way as to render it unconstitutional is neither warranted nor necessary in this case. When this Court is unable to construe a state statute in a constitutionally acceptable manner, then such statute should be struck down. It would then be left up to the Legislature, as Appellant argues, to enact a statute that would pass constitutional muster. It is the courts alone that have the power to determine the validity or invalidity of a statute. York v. Turpen, 681 P.2d 763, 767 (Okl. 1984). It is the role of the courts to ascertain and give effect to the intention of the legislature as expressed in the statutes. Hicks v. Freeman, 795 P.2d 110, 112 (Okl.Cr. 1990). To apply the principle of statutory interpretation is not a violation of the separation of powers doctrine. Accordingly, this assignment of error is denied.

D.

¶58 In his tenth assignment of error, Appellant argues, that assuming arguendo the aggravating circumstance of "especially heinous, atrocious or cruel" is valid, the jury's finding is not supported by the evidence. The evidence supporting a finding that the murder was especially heinous, atrocious or cruel requires proof that the death was preceded by torture or serious physical abuse. Stouffer v. State, 742 P.2d 562, 563 (Okl.Cr. 1987) (Opinion on Rehearing), cert. denied, 484 U.S. 1036, 108 S.Ct. 763, 98 L.Ed.2d 779 (1988). See also Fox v. State, 779 P.2d 562, 576 (Okl.Cr. 1989); Foster v. State, 779 P.2d 591 (Okl.Cr. 1989).

¶59 Medical testimony showed that fifteen (15) stab wounds were inflicted upon Jerri Bowles, twenty-seven (27) upon Joyce Mullenix and thirty-three stab (33) wounds upon Kay Bruno. These stab wounds included attempted decapitations. While many of the wounds were shallow, others were quite deep. Stab wounds to the back of Jerri Bowles' neck penetrated so deep as to cause bruises on the front of her neck. Other wounds were so deep as to penetrate a lung, a kidney and the large intestine. Stab wounds to Mrs. Mullenix were so deep as to strike her spine and pierce a rib. Both of Mrs. Bruno's lungs were pierced numerous times. The muscle around the human neck was described as being quite tough. A certain amount of pressure and time would be required to saw through it. Only on Mrs. Bruno did Appellant attempt the decapitation from both sides of her neck. Each woman lost substantial amounts of blood, Jerri Bowles was found to have lost two (2) of the seven (7) quarts of blood in her body, while Joyce Mullenix lost four (4) quarts of blood. The medical examiner, Dr. Boatsman, testified that only a beating heart could account for such a tremendous loss of blood. He also stated that the chronological order of the stab wounds could not be determined. He opined that the women would have lost consciousness in a matter of minutes — although he could not pinpoint exactly the length of time.

¶60 In Castro v. State, 745 P.2d 394 (Okl.Cr. 1987), and Nguyen v. State, 769 P.2d 167 (Okl.Cr. 1988), cases cited by Appellant, this Court found evidence of multiple stab wounds insufficient to support the "especially heinous, atrocious or cruel" aggravator. Those cases are distinguishable from the present case in that no evidence of the victim's physical suffering was introduced into the record. Here, although the length of time which each victim physically suffered is not certain, the injuries were of a serious and painful nature. See Hale v. State, 750 P.2d 130, 143 (Okl.Cr. 1988). A finding of "especially heinous, atrocious or cruel" could be based upon the evidence of the physical suffering of these victims. However, torture in the context of this aggravating circumstance may take any of several forms. In Berget v. State, 824 P.2d 364, 373 (Okl.Cr. 1991), we stated that torture may include the infliction of either great physical anguish or extreme mental cruelty.

When used to define a class of defendants against whom the death penalty is sought, torture creating extreme mental distress must be the result of intentional acts by the defendant. The torture must produce mental anguish in addition to that which of necessity accompanies the underlying killing. Analysis must focus on the acts of the defendant toward the victim and the level of tension created. The length of time which the victim suffers mental anguish is irrelevant.

¶61 Appellant's own testimony provides the basis for a finding of the extreme mental distress suffered by the victims prior to their deaths. Although the actual sequence of events is not clear, in describing the scene in the bank, Appellant said he first pointed the gun at Kay Bruno. A stunned Mrs. Bruno pleaded with Appellant to put the gun away and not to harm them. She told him he did not have to do this, that they could work things out. Appellant refused to listen and directed her, Jerri Bowles and Joyce Mullenix to the back room. When Mrs. Bruno hesitated, Appellant shouted at her. Once in the back room, he directed all three women to lay face down with their hands behind their backs. The room was so small that in laying next to each other, the women were practically on top of one another.

¶62 Appellant directed Mrs. Bruno to get up and close the blinds and then lay back down on the floor. Mrs. Bruno continued to plead with Appellant to spare their lives and let them try to work something out. She told Appellant they would do anything he wanted; they would open the safe and get the money for him. Appellant threatened to hit her in the head with his gun. He initially stabbed Mrs. Bruno in the back. She grabbed her back where she had been stabbed and cried "I'm dead, I'm dead, I'm dead." Appellant stabbed her in the back repeatedly before turning her over to stab her in the heart. As Appellant stabbed Jerri Bowles, she screamed. To quiet her, Appellant shouted at her and hit her in the head with the gun. He then continued to stab her. Joyce Mullenix was also stabbed in the back and then in the chest. She had defensive wounds to her hands and fingers.

¶63 At one point, Appellant left the women, believing them to be still alive, to return to the front of the bank and gather up the money. Having done so, he returned to the back room and attempted at least one decapitation. About this time, Bellen Robles entered the bank. Seeing no one in the front, she looked down the hallway into the back room and saw Appellant, from the back, sitting on someone and appear to be striking them. Mrs. Robles also heard moaning sounds coming from the back room.

¶64 This is ample evidence of the extreme mental anguish suffered by these three (3) women prior to their deaths. This evidence illustrates the realization by these women that they were going to be harmed and even killed by Appellant. Two (2) of the women suffered the additional mental anguish of hearing their co-workers being savagely murdered and realizing they could be next. The cause of this extreme mental torture was Appellant's intentional actions. The repeated stab wounds, inflicted so deep as to penetrate bodily organs, demonstrates an indifference to the suffering of the victims. The physical suffering of the victims, combined with the depraved manner in which such suffering was inflicted, is sufficient to support a finding that the murders of Jerri Bowles, Joyce Mullenix and Kay Bruno were "especially heinous atrocious or cruel."

¶65 As for Ralph Zeller, he entered the bank behind Mr. and Mrs. Robles. He and the Robles were ordered at gunpoint to the back room. Directed to lay down, they were then left while Appellant brought Marilyn Roach to the back room. Upon his return, Appellant shot Mr. Zeller twice in the back of the head. While we have refused to find the existence of this aggravating circumstances in cases where the victim was killed by a single gunshot wound, this case presents a different situation. In Stouffer v. State, 742 P.2d 562 (Okl.Cr. 1987), and Sellers v. State, 809 P.2d 676 (Okl.Cr. 1991), the victims were asleep when shot and never regained consciousness. Here, Mr. Zeller was forced to lie in the carnage of the back room while Appellant debated his fate. Mental anguish includes the victim's uncertainty as to his ultimate fate. See State v. Walton, 159 Ariz. 571, 586, 769 P.2d 1017, 1032 (1989).10 Our finding of torture is supported by the mental torment of Mr. Zeller prior to the shooting, rather than the events which took place afterwards. See also Berget v. State, 824 P.2d at 373. In the present case, the evidence clearly supports a finding of mental anguish beyond that which necessarily accompanies a killing. Accordingly, the evidence was sufficient to support the "especially heinous, atrocious or cruel" aggravating circumstance.

E.

¶66 Appellant challenges certain second stage jury instructions in his next four (4) assignments of error. Initially, he contends the trial court erred in refusing to instruct the jury that, if they were unable to reach a unanimous verdict as to punishment within a reasonable time, they would be dismissed, and the judge would enter a sentence of life imprisonment. See 21 O.S. 1991 § 701.11 [21-701.11]. This contention was rejected in Brogie v. State, 695 P.2d 538, 547 (Okl.Cr. 1985), wherein we stated such an instruction would amount to an invitation to the jury to avoid its difficult duty to pass sentence on the life of an accused. Therefore, such an instruction is not necessary. Boltz v. State, 806 P.2d 1117, 1124 (Okl.Cr. 1991).

¶67 Appellant further finds error in the failure to give an instruction that the jury had the option to return a life sentence, regardless of its findings respecting aggravating and mitigating circumstances. In Walker v. State, 723 P.2d 273, 284 (Okl.Cr. 1986), cert. denied 479 U.S. 995, 107 S.Ct. 599, 93 L.Ed.2d 600 (1987), the appellant claimed error in the refusal to give his requested instruction on "jury nullification". Defined as "the jury's exercise of its inherent `power to bring in a verdict of [acquittal] in the teeth of both the law and facts'", we found that most courts have uniformly held that a defendant is not entitled to such an instruction. See also Pickens v. State, 850 P.2d 328, 339 (Okl.Cr. 1993); Williamson v. State, 812 P.2d at 410. We find no error in the omission of this instruction in the instant case.

¶68 In his thirteenth assignment of error, Appellant contends the trial court did not properly instruct the jury on the law regarding the weighing of the aggravating circumstance and mitigating evidence. In Romano v. State, 847 P.2d at 392 we stated:

Specific standards for balancing aggravating and mitigating circumstances are not constitutionally required. Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983). See also Walker v. State, 723 P.2d at 284; Brogie v. State, 695 P.2d at 544. The instructions given to the jury properly advised them to weigh the aggravating circumstances against the mitigating evidence. Instructions No. 8 through 12 comprehensively informed the jury that a finding of the aggravating circumstances beyond a reasonable doubt is not by itself enough to assess the death penalty. Rather, the aggravating circumstances must clearly outweigh the mitigating, or death may not be imposed. Similar instructions have passed constitutional muster. See Davis v. State, 665 P.2d 1186, 1202 (Okl.Cr. 1983).

¶69 Instructions Nos. 6-8, 10-12 in the present case met the above standard.

¶70 Finally, Appellant attacks the "antisympathy" instruction given in the first stage and later incorporated into the second stage proceedings. Appellant argues the instruction unconstitutionally precludes the jury's consideration of mitigating evidence and emotional responses to it. The use of this instruction has been specifically upheld in Saffle v. Parks, 494 U.S. 484, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990). Appellant's argument has been specifically addressed and rejected in Fox v. State, 779 P.2d 562, 574-5 (Okl.Cr. 1989). See also Revilla v. State, 877 P.2d 1143, 1153 (Okl.Cr. 1994); Boyd v. State, 839 P.2d 1363, 1372 (Okl.Cr. 1992); Smith v. State, 819 P.2d 270, 279 (Okl.Cr. 1991). The instruction given in the instant case was identical to the ones given in Fox and Parks. Therefore, we find it was not error to give the anti-sympathy instruction.

MANDATORY SENTENCE REVIEW

¶71 Pursuant to 21 O.S.Supp. 1987 § 701.13 [21-701.13](C), we must determine (1) whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor, and (2) whether the evidence supports the jury's finding of the aggravating circumstances as enumerated in 21 O.S. 1981 § 701.12 [21-701.12]. The jury found the existence of three (3) aggravating circumstances: 1) the defendant knowingly created a great risk of death to more than one person; 2) the murder was especially heinous, atrocious or cruel; 3) the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution. We find that each aggravating circumstance was supported by sufficient evidence. 21 O.S. 1981 § 701.12 [21-701.12](2), (4) and (5).

¶72 Mitigating evidence was presented through the testimony of two (2) witnesses, including Appellant. These witnesses testified that Appellant had never been charged with or convicted of a violent crime; he had confessed his guilt in open court and testified in detail to his involvement; he expressed remorse for the crimes that he committed and asked forgiveness; he was nineteen (19) years old at the time he committed the crimes; and his mental thought processes were affected by the extreme mental distress and emotional disturbance he was suffering in regards to his relationship with Robert Grady Johnson. This evidence was summarized into five (5) factors and submitted to the jury for their consideration as mitigating evidence. Upon our review of the record and careful weighing of the aggravating circumstances and the mitigating evidence, we find the sentence of death to be factually substantiated and appropriate. Under the record before this Court, we cannot say the jury was influenced by passion, prejudice, or any other arbitrary factor contrary to 21 O.S.Supp. 1987 § 701.13 [21-701.13](C), in finding that the aggravating circumstance outweighed the mitigating evidence. Accordingly, we find no error warranting reversal or modification.

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

*****

Footnotes:

1 This appeal is lodged from the re-trial of Appellant on the charges stemming from the bank robbery and murder occurring at the First Bank of Chattanooga in Geronimo, Oklahoma, December 14, 1984. The judgments and sentences rendered in the first trial were reversed and remanded for a new trial as the result of the improper joinder for trial of Appellant and co-defendant Robert Grady Johnson. See Neill v. State, 827 P.2d 884 (Okl.Cr. 1992). In a separate re-trial, co-defendant Johnson was found guilty and sentenced to life imprisonment without the possibility of parole. The Appellant in this case was sentenced on September 29, 1992, after the retrial. The case was fully briefed and submitted to the Court on January 31, 1994, and oral arguments were held July 7, 1994.

2 The evidence as to whether Robert Johnson accompanied Appellant into the bank is controverted. Appellant testified during the second stage of trial that Johnson was at home waiting on him during the robbery. However, he had previously maintained that Johnson was with him in the bank. Marilyn Roach testified to hearing the voices of 2 men inside the bank.

3 In as much as Batson requires a race neutral explanation and J.E.B. v. Alabama, ___ U.S. ___, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994) requires a gender neutral explanation for the exercise of a peremptory challenge, our statutory definition of peremptory challenges is inaccurate. See 22 O.S. 1991 § 654 [22-654] (peremptory challenges are those objections "for which no reason need be given").

4 The trial court's ruling indicates that Appellant did not make a prima facie case that the prosecutor exercised peremptories on the basis of race. The Court stated:

. . . I will take judicial notice of the fact that this particular juror is black. I will not take judicial notice that he has stricken every black from the panel. Other blacks and other minorities have hit the panel, including Spanish, which have gone off either for cause — I believe for cause mainly . . . . (Tr. 465).

Whether or not the trial court ruled that Appellant had or had not made a prima facie showing of intentional discrimination need not concern us. "Once a prosecutor has offered a race neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant has made a prima facie showing becomes moot." Hernandez v. New York, 500 U.S. at 359, 111 S.Ct. at 1866, 114 L.Ed.2d at 405.

5 Appellant objected to the use of the peremptory challenge on these grounds explaining that no proof had been offered to support the prosecutor's statements. The trial court noted that it had overruled a previous defense motion for the State to provide any information on potential jurors. The court found it improper to release such information until the first day of the jury term. The State offered to provide the records on Mrs. Lovick but Appellant did not pursue the issue.

6 Appellant also argues that Evans is cited with approval in Tomlinson v. State, 554 P.2d 798, 803 (Okl.Cr. 1976). However, Evans is cited only for the proposition that submission of the cause to the jury at the close of argument refers to separation of the jurors after they have been charged by the trial court and after opposing counsel have made their closing arguments. Such is not at issue in the present case.

7 This type of evidence is generally exempted from the Burks requirement of pretrial notice. Burks v. State, 594 P.2d at 774. See also Bruner v. State, 612 P.2d 1375, 1377 (Okl.Cr. 1980),

8 Instruction No. 29 provided:

Evidence has been received that the defendant has allegedly committed offenses other than that charged in the information. You may not consider this evidence as in any way tending to prove the guilt or innocence of the defendant of the specific offense charged in the information. This evidence has been received solely on the issues of the defendant's alleged motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident. This evidence is to be considered by you only for the limited purpose for which it was received.

9 22 O.S.Supp. 1992 §§ 984 [22-984], 984.1, 991a(C) went into effect July 1, 1992. Appellant was re-tried September 21-29, 1992.

10 Affirmed by the United States Supreme Court as Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990).

 
 

Jay Wesley Neill v. Gary Gibson Warden (Habeas 2001)

TACHA, Chief Judge.

Petitioner-appellant Jay Wesley Neill appeals the denial of habeas relief, see 28 U.S.C. § 2254, from four death sentences. This appeal presents, among other issues, the question of whether Oklahoma can constitutionally apply its statute permitting introduction of victim impact evidence during a capital sentencing proceeding at a trial for crimes occurring prior to that statute's enactment. We conclude Oklahoma can do so without violating the Ex Post Facto or Due Process Clauses. We, therefore, affirm the denial of relief on this, and the remainder of Neill's habeas claims.

I. FACTS

A jury sentenced Neill to death after convicting him of four counts of first degree malice murder stemming from Neill's armed robbery of a Geronimo, Oklahoma bank in December 1984. Neill did not contest his guilt during the trial's first stage. The State's evidence established that Neill, then age nineteen, and his co-defendant, Grady Johnson, age twenty-one, were roommates involved in a homosexual relationship.

In 1984, they were having serious financial difficulties. During the week before the bank robbery, the pair purchased two knives, obtained a gun permit, bought a .32 caliber handgun and ammunition, and made plane reservations to San Francisco for Friday afternoon, December 14.

On that Friday, shortly after 1:00 P.M., Neill robbed the bank. During the robbery, Neill stabbed three bank employees to death. All three women died from multiple stab wounds to their head, neck, chest and abdomen. One woman was seven months pregnant. Neill also attempted to decapitate each woman with a knife.

Five customers entered the bank during the robbery. Neill forced all five to lie face down in the back room where the employees had been stabbed. He then shot each customer in the head, killing one and wounding the other three. Neill denied attempting to shoot the fifth, an eighteen-month-old child. The child's father testified, however, that he saw someone point a gun at his child's head and fire several times. The weapon, by this time, was out of ammunition.

Neill and Johnson then flew to San Francisco, where they spent some of the approximately $17,000 stolen from the bank on expensive jewelry and clothing, hotels, limousines and cocaine. FBI agents arrested the pair there three days after the robbery.

Prior to this trial, Neill gave a videotaped interview to a religious television program, "The 700 Club," and wrote several letters to an author writing a book about the murders. Neill also wrote letters and made telephone calls apologizing to several victims. In these communications,(1) Neill admitted committing the crimes. Based on this evidence, the jury convicted Neill of four counts of first degree malice murder, three counts of shooting with intent to kill and one count of attempted shooting with intent to kill.

At sentencing, the State charged and the jury found, as to each murder, three aggravating factors: Neill had created a great risk of death to more than one person; he had committed the murders to avoid arrest and prosecution; and the murders were especially heinous, atrocious or cruel. The jury imposed four death sentences, as well as twenty years' imprisonment for each non-capital conviction.

The Oklahoma Court of Criminal Appeals affirmed Neill's convictions and death sentences, and denied post-conviction relief. See Neill v. State, 896 P.2d 537 (Okla. Crim. App. 1994), cert. denied, 516 U.S. 1080 (1996); Neill v. State, 943 P.2d 145 (Okla. Crim. App. 1997).

*****

IV. CONCLUSION

Having considered the record and the parties' arguments, we AFFIRM the denial of habeas relief.(6)

*****

LUCERO, Circuit Judge, dissenting.

Because the prosecutor's blatant homophobic hatemongering at sentencing has no place in the courtrooms of a civilized society, and Neill's appellate counsel's failure to raise the issue on direct appeal constitutes clear and plain prejudicial neglect, I respectfully dissent. Correctly or incorrectly, we have encapsulated the applicable Strickland jurisprudence into the term "dead-bang winner." See United States v. Cook, 45 F.3d 388, 395 (1995) (citing Page v. United States, 884 F.2d 300, 302 (7th Cir. 1989)).(1) Whether we apply this more stringent standard, or an orthodox Strickland approach, we have before us a "dead-bang winner."

While thinly disguising his intent by denying that a person's "sexual preference" is an "aggravating circumstance," the prosecutor deviously and despicably incited the jury with the following statement:

If I could ask each of you to disregard Jay Neill and take him out of the person but consider these things in a generic way. I want you to think briefly about the man you're setting [sic] in judgment on . . . and believe me, . . . you have every thing in this case, the good, the bad, everything that the law allows to aid you in this decision. But just generic, just put in the back of your mind what if I was sitting in judgment on this person without relating it to Jay Neill, and I'd like to go through some things that to me depict the true person, what kind of person he is. He is a homosexual. The person you're sitting in judgment on -- disregard Jay Neill. You're deciding life or death on a person that's a vowed [sic] homosexual. . . . But these are areas you consider whenever you determine the type of person you're setting [sic] in judgment on. . . . The individual's homosexual. He's in love with Robert Grady Johnson.

I sternly reject the prosecutor's disavowal and the "he brought it up" post hoc rationalization that this somehow justifies the use of hate as an appropriate adversarial tool.

Moreover, the record evidence calls into question whether Neill was sentenced to death by an impartial jury, which further erodes my confidence in the jury's sentence. I would grant habeas relief and vacate Neill's sentence.

 
 


Jay Wesley Neill