Leroy Parks, a black man, was 24 when he was sentenced to death in
Oklahoma County for the 1978 murder of Edmond gas station attendant
Abdullah Ibrahim. He spent 13 years and 5 months on death row and
was executed on March 10, 1992.
Oklahoma Executes Man Convicted in '77
The New York Times
March 11, 1992
convicted killer whose death
sentence was at first overturned
because the trial judge had told
the jury not to be swayed by
sympathy was executed at the
state penitentiary here early
today, two years after the
United States Supreme Court
reinstated the sentence.
The 37-year-old prisoner, Robyn
Leroy Parks, was put to death by
injection, becoming the second
person executed in Oklahoma
since the High Court in 1976 let
the states resume capital
Moments after the lethal drugs
began to flow into him, Mr.
Parks said lightheartedly, "I'm
still awake." To his girlfriend,
Debra Sutton, he said, "I love
you, too, Debra." Last-Minute
Mr. Parks was executed for the
fatal shooting in 1977 of
Abdullah Ibrahim, 24, who worked
at a gas station in Oklahoma
City while attending college.
Prosecutors said Mr. Parks's
motive for the killing was his
fear that Mr. Ibrahim would
catch him using a stolen credit
card. In conversations taped by
the police days later, Mr. Parks
told a friend that he had killed
Mr. Ibrahim and said where the
murder weapon was hidden.
Defense lawyers contended in
their latest appeals that
prosecutors had suppressed
evidence and that Mr. Parks's
original lawyer had been
ineffective because he was dying
of leukemia. But State Attorney
General Susan Loving disputed
both those assertions, and the
Supreme Court rejected a last-minute
In 1988, a Federal appeals court
upheld Mr. Parks's conviction
but threw out his death sentence,
ruling that the trial judge's
instruction to the sentencing
jury "to avoid any influence of
sympathy" had been unfair. In
1990, the Supreme Court
reinstated the sentence because
Mr. Parks had failed to raise
the issue earlier in the state
courts. The High Court left
unanswered the question of
fairness in the judge's
instruction to the jury.
March 1992 – Robyn Leroy Parks
Ah the irony.
‘I’m still awake’, said Robyn Leroy Parks just
as he was given his lethal injection on this day
But 11 minutes
later, following his death, ‘scary and ugly,’
were words used to describe Parks’ execution by
a reporter for ‘Tulsa World’ newspaper. And
that’s how the gruesome suffering of Robyn Lee
Parks during his death has fuelled the anti-capital
To save himself
the price of a tank of petrol, Parks had shot
the petrol station cashier. But what he didn’t
realise was that a credit card slip had already
been printed with his number plate on it.
Parks had already
chalked up a whole heap of previous crimes
during the ‘70s, including armed robbery, so he
was sentenced to death for killing Abdullah
Ibrahim in 1978.
The state of
Oklahoma doled out lethal injections as its
chosen method of execution and, basically, Parks
was allergic to his own death penalty. A mere
two minutes after the drugs had entered his
bloodstream, he began reacting violently to the
The muscles in
his jaw, neck, and abdomen went into spasm.
Parks began gasping, and even looked like his
was choking. He was eventually pronounced
painfully dead 11 minutes later, aged 37.
World’ reporter, Wayne Greene: ‘It was
overwhelming, stunning, disturbing – an
intrusion into a moment so personal that
reporters, taught for years that intrusion is
their business, had trouble looking into each
others’ eyes after it was over.’
OK CR 189
527 P.2d 350
ROBYN LEROY PARKS, APPELLANT,
THE STATE OF OKLAHOMA, APPELLEE.
Case No. O-74-463.
October 9, 1974
appeal from the District Court, Oklahoma County; Clarence M. Mills,
Leroy Parks, appellant, plead guilty to the offense of Robbery by
Force and sentenced to a term of five (5) years in the state
penitentiary, said sentence being suspended. Said suspension was
subsequently revoked. From said order of revocation, defendant
appeals. Order of revocation is reversed and remanded.
Anderson, Public Defender, Oklahoma City, for appellant.
Derryberry, Atty. Gen., James L. Swartz, Asst. Atty. Gen., for
BLISS, Presiding Judge:
February 18, 1972, in Case No. CRF-72-292 in the District Court of
Oklahoma County the appellant, Robyn Leroy Parks, hereinafter
referred to as defendant, plead guilty to the charge of Robbery by
Force and received a five (5) year suspended sentence, one of the
conditions of said suspension being that the defendant was not to
violate any city, state or federal laws.
the 24th day of January, 1974, the trial court heard the State's
Application to Revoke said suspended sentence on the sole ground
that in Case No. CRF-73-3099 in the District Court of said county,
the jury returned a verdict of guilty of the charge of Attempted
Burglary in the Second Degree against the defendant and assessed his
penalty at three years and seven months in the state penitentiary.
It is uncontroverted and the record reflects that with reference to
the second conviction, Case No. CRF-73-3099, formal sentencing did
not occur until the 25th day of January, 1974, and the defendant has
lodged his timely appeal of said conviction to this Court in Case
No. F-74-516. Said appeal is pending at the present time. No
evidence other than the second conviction and proper identity of the
defendant was offered and introduced at the hearing upon said
application to revoke suspended sentence. From the trial court's
order revoking suspended sentence in Case No.
the defendant has filed this timely appeal.
is apparent that the fact situation in the instant case is identical
to that found in our recent opinion in Kern v. State, Okl.Cr.,
The State in its brief urges that Kern, supra, should be applied
prospectively as of April 29, 1974, the date of the Kern opinion,
citing that portion of the Kern opinion which states that "the
holding herein shall be applied prospectively." The State further
argues that, since the instant revocation took place prior to the
Kern decision, an application of Kern would be retroactive.
However, in the instant case, the defendant's revocation hearing was
held some six (6) months after the Kern acceleration hearing. The
record also reflects that the defendant's revocation hearing was
held one day prior to formal judgment and sentencing. In our recent
case of Pierce v. State, Okl.Cr.,
For the reasons set out above, the order revoking defendant's
suspended sentence arising out of his conviction before a jury on
the 9th day of January, 1974, in Case No. CRF-73-3099, which case is
presently on appeal to this Court, is hereby reversed and remanded
to the trial court for disposition consistent with this opinion and
BRETT, and BUSSEY, JJ., concur.
OK CR 212
529 P.2d 513
ROBYN LEROY PARKS, APPELLANT,
THE STATE OF OKLAHOMA, APPELLEE.
Case No. F-74-516.
November 26, 1974
appeal from the District Court, Oklahoma County; William S. Myers,
Leroy Parks, appellant, was convicted for the offense of Attempted
Burglary in the Second Degree, After Former Conviction of a Felony.
His punishment was fixed at three (3) years and seven (7) months'
imprisonment, and he appeals. Judgment and sentence is affirmed.
Anderson, Public Defender, Oklahoma County, Okl., for appellant.
Derryberry, Atty. Gen., for appellee.
BLISS, Presiding Judge:
the District Court, Oklahoma County, Case No. CRF-73-3099, appellant
Robyn Leroy Parks, hereinafter referred to as defendant, was
charged, tried and convicted for the offense of Attempted Burglary
in the Second Degree, After Former Conviction of a Felony. His
punishment was fixed at three (3) years and seven (7) months'
imprisonment; and from said judgment and sentence he has perfected a
timely appeal to this Court.
The evidence adduced at trial from the testimony of Mrs. Murray
Emerson Jones revealed that on October 23, 1973, she was employed at
the fine jewelry department of the John A. Brown Company located at
208 West Park Avenue, downtown Oklahoma City. At approximately 5:30
p.m. Mrs. Jones, upon her departure from the store, locked the doors
and activated the silent alarm system. At approximately 12:25 a.m.
the following morning she was called to the store by a policeman.
Upon her arrival she observed a glass panel, dimensions of
approximately 60" x 28", learning against a wall. She further
observed the molding had been pried loose and removed from the door
and that inside the door she observed a pen knife and screwdriver
laying on the floor. Finally, she added that during the early
morning hours of each Monday the doors and windows of this
department were cleaned by the store maintenance people. She
positively stated that on October 23, 1973, the door glass which she
observed had been removed had been cleaned earlier that date.
Wesley F. Dawson of the Oklahoma City Police Department testified
that on October 24, 1973, at approximately 12:25 a.m. he was
dispatched to the above location for the reason a silent alarm had
sounded. Officer Dawson drove to the intersection of Robinson and
Park where he observed defendant standing approximately 20 to 30
feet from the above mentioned door. Upon inquiry defendant stated to
the officer that he observed two people jimmying the door with
another standing across the street acting as a lookout man. He gave
descriptions of those people and finally stated that the reason that
he was in the area of the door was that he was just returning from a
movie. Further, Officer Dawson testified his investigation of the
area revealed another person near the store area whom he identified
as a Mr. Fortune. Defendant told Dawson that Fortune was not a
member of the trio he previously had identified.
Detective Bill Minor of the Oklahoma City Police Department
testified he interviewed defendant shortly after 8:00 a.m. October
26, 1973. During this interview defendant denied knowledge of the
burglary and denied participation in the same.
Officer Barber, Identification Officer for the Oklahoma City Police
Department, after stipulation by counsel as to his qualifications as
an expert witness, testified he lifted two fingerprints from the
edges of the glass which he identified as being made by defendant.
Thereafter the State rested.
For the defense Walter Afinow testified that on Monday, October 22,
1973, he cleaned the above mentioned door at 5:30 a.m.
Tom Quinn, an investigator for the defense, testified regarding the
dimensions of the glass door above mentioned.
Thereafter the defense rested.
At the second stage of bifurcated proceedings, counsel stipulated
regarding the former conviction of the defendant.
Defendant first argues the evidence is insufficient to support a
verdict of conviction. There are three essential elements in
establishing an offense of attempted burglary. These elements are;
(1) the intent to commit the offense, (2) the performance of some
act toward its commission and (3) failure of consummation. Ervin v.
Defense counsel next urges the punishment is excessive. We note that
the offense of attempted burglary in the second degree charged after
former conviction of a felony provides for a punishment of not more
than five years imprisonment. The punishment the jury imposed is
slightly more than the maximum penalty assessable for the primary
offense. After a review of the record we note the case was well
tried by both the State and the defense and further find the court
committed no errors in the manner in which it conducted the trial.
Considering the punishment is well within the range established by
statute and the fact the trial is error free, we find the jury's
assessment of punishment to be predicated upon facts and
circumstances fairly presented and for this reason the punishment
imposed does not shock this Court's conscience. See Roberts v.
The judgment and sentence is affirmed.
and BUSSEY, JJ., concur.
Oklahoma Court of Criminal Appeals
1982 OK CR 132
651 P.2d 686
Case Number: F-79-3
appeal from the District Court, Oklahoma County; Joe Cannon,
LeRoy Parks, appellant, was convicted of Murder in the First Degree
in Oklahoma County District Court, Case No. CRF-77-3159. He was
sentenced to death and appeals. AFFIRMED.
Robert A. Ravitz, Asst. Public Defender, Oklahoma City, for
Eric Cartwright, Atty. Gen., State of Oklahoma, Susan Talbot, Asst.
Atty. Gen., Chief, Appellate Criminal Division, Oklahoma City, for
BRETT, Presiding Judge:
Robyn LeRoy Parks was found guilty of Murder in the First Degree
pursuant to Laws 1976, ch. 1, § 1 [1-1], now 21 O.S. 1981 § 701.7
[21-701.7] in the District Court of Oklahoma County, Case No.
CRF-77-3159. Subsequent to a hearing on aggravating and mitigating
circumstances, the jury voted to impose the death penalty.
approximately 4:30 a.m. on August 17, 1977, the victim, Abdullah
Ibrahim was found shot to death on the floor of the Gulf Service
Station where he was employed. An unused charge slip bearing various
notations on both the front and back, which was apparently used as a
scratch pad to compute the customers' purchases and figure tax, was
found at the scene of the homicide by an investigating police
officer. This same charge slip also had a license tag number written
across the front of it, XZ-5710. It was subsequently determined that
the owner of the vehicle bearing that license tag number was Robyn
August 29 and 30, 1977, James Clegg, an informant, allowed
representatives of the State to tape two phone conversations that
Clegg had with the appellant who was then in San Pedro, California.
During the course of the August 29th telephone conversation, Parks
told Clegg that he shot Abdullah Ibrahim because Ibrahim had written
down his tag number and Parks was afraid Ibrahim would call the
police when he realized Parks' credit card was hot. During the
August 30th phone conversation, Parks revealed the location of the
gun that he used to shoot the victim. At that location, a .45
calibre pistol in a holster and a box of .45 calibre ammunition was
found by Clegg who was accompanied by a police detective.
Robyn Parks testified in his own defense that the answers he gave on
the two tapes were not true, that he had made the incriminating
statements in order to protect his family from further harassment.
He claimed that on an earlier day he had obtained gas at the station
and because he did not have the money with which to pay, the
attendant wrote down his license tag number. He returned the same
night to pay for the gas. He further testified that on the night of
the murder, he had stayed at the home of Elaine Sheets.
During the second stage of the trial, the State offered three
aggravating circumstances to justify imposition of the death
penalty. In mitigation, the State offered the testimony of Robyn
Parks' father. The jury found one aggravating circumstance, that the
murder was committed for the purpose of avoiding or preventing a
lawful arrest or prosecution.
Error is first alleged in the trial judge's refusal to allow an
instruction on the offense of Murder in the Second Degree pursuant
to Laws 1976, ch. 1, § 2, now 21 O.S. 1981 § 701.8 [21-701.8](2).
The desired instruction would have allowed the jury to determine,
based on the evidence, that the appellant murdered the victim while
the appellant was committing the felony of using a fraudulent credit
card in violation of Laws 1981, ch. 86, § 4 [86-4], now 21 O.S. 1981
§ 1550.22 [21-1550.22].
Both parties agree that a defendant is entitled to have an
instruction on a lesser included offense where the evidence warrants
it. Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392
(1980); 22 O.S. 1971 § 916 [22-916]. The trial court determined as a
matter of law that the evidence was insufficient in the present case
to allow the jury to find that the appellant was using a fraudulent
credit card, thus there could be no justification for a finding of
second degree murder.
The sole evidence offered to the jury to support a finding that the
appellant was using a fraudulent credit card was the appellant's own
statement made during the tape recorded conversation with the
informant, Clegg. Aside from that statement, [651 P.2d 690] no other
evidence was ever introduced to show credit card use, such as a
credit card receipt for gasoline, or any evidence of a credit card
or of missing gasoline.
agree that the trial judge was correct in not allowing an
instruction on second degree murder. Judge Cannon stated:
matter of fact, the defendant's own testimony was that he didn't
even own a credit card. But even in the State's case there was no
evidence of a credit card, except his statements and his statement
alone does not prove the corpus delecti of the crime. There is no
corpus delecti of any other felony having been committed. . . .
There is no evidence of it and, consequently, it's Murder One or
nothing. (Tr. 543)
also, DeLaune v. State, 569 P.2d 463 (Okl.Cr.App. 1977) quoting Hall
v. State, 538 P.2d 1113, 117 (Okl.Cr.App. 1975):
. . .
The general rule is that in every criminal prosecution the burden
rests on the State to prove the corpus delecti beyond a reasonable
doubt. This must be proven by evidence other than a confession, the
confession being admissible merely for the purpose of connecting the
accused with the offense charged.
Because there was no evidence to support a lower degree of the crime
charged or an included offense, it was not only unnecessary to
instruct on second degree murder, but the court had no authority to
ask the jury to consider the issue. Irvin v. State, 617 P.2d 588
(Okl.Cr.App. 1980); Rogers v. State, 583 P.2d 1104 (Okl.Cr.App.
In a supplemental brief, the appellant alleges that his conviction
for first degree murder cannot be sustained for the reasons that his
tape recorded statements were not corroborated by independent proof
of the corpus delicti. We agree, as we have already stated, that the
State must prove the corpus delecti beyond a reasonable doubt by
evidence other than a confession. DeLaune v. State, supra. The
appellant acknowledges that evidence introduced by the State
established that a homicide was committed, but argues there was
insufficient proof of the corpus delecti to corroborate his
confession since no evidence was presented connecting him with the
actual commission of the offense independent of his statements.
This contention misconstrues the definition of corpus delecti and
the extent of the proof the State introduced to connect the
appellant to the crime. The "corpus delecti" means the actual
commission of a particular crime by someone. Bond v. State, 90
Okl.Cr.App. 110, 210 P.2d 784 (1949). The corpus delecti may be
established without showing that the offense charged was committed
by the accused. Webb v. State, 550 P.2d 1360 (1976).
In the present case, the testimony of the police and the medical
examiner established that a homicide was committed, and the State
therefore clearly established the corpus delecti by evidence
independent of appellant's statements. Further evidence introduced
by the State in the form of the credit card slip bearing the
appellant's license tag number was sufficient to link the appellant
to the corpus delecti of the crime. We therefore conclude that the
evidence is sufficient to sustain the conviction and this
proposition is without merit.
Secondly, the appellant contends that the trial court committed
fundamental error by limiting the circumstantial evidence
instruction to cover only the issue of malice aforethought. He
argues that because there was a complete lack of any direct evidence
to show he was connected to the crime, a general circumstantial
evidence instruction should have been given. However, the
tape-recorded conversations introduced at trial, in which the
appellant admitted that he committed the crime, provided direct
evidence linking the appellant to the crime.
Also, no objection was made at the time the instructions were given,
nor was an alternative instruction offered. When the evidence is
both direct and circumstantial, it is not error to fail to give a
circumstantial evidence instruction when none is requested. Grimmett
v. State, 572 P.2d 272 [651 P.2d 691] (Okl.Cr.App. 1977). Therefore,
the trial court did not commit error by failing to provide a general
circumstantial evidence instruction.
The third and fourth propositions of error contend that the trial
court violated the appellant's Sixth and Fourteenth Amendment rights
by excusing six jurors for cause because of their opposition to the
death penalty. It is first alleged that the trial court failed to
fully inquire of these six jurors whether they could consider the
death penalty as required by the juror's oath. The appellant argues
that this failure to inquire violated the holding of Witherspoon v.
Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). There,
the United States Supreme Court recognized that the State might not
exclude jurors because of their views on the death penalty unless ".
. . they could never vote to impose the death penalty or . . . they
would refuse even to consider its imposition in the case before
them." 391 U.S. 510, at 512, 88 S.Ct. 1770 at 1772.
In the present case, the trial judge asked each juror the following
case where the law and evidence warrant, in a proper case, could you
without doing violence to your conscience, agree to a verdict
imposing the death penalty?
juror responded in the negative, the judge would then ask:
you found beyond a reasonable doubt that the defendant was guilty of
murder in the first degree and if under the evidence, facts and
circumstances of the case, the law would permit you to consider a
sentence of death, are your reservations about the death penalty
such, that regardless of the law, the facts and circumstances of the
case, you would not inflict the death penalty.
If a juror answered yes to this, then the trial judge excused that
juror for cause. It is our determination that this line of
questioning and the resulting dismissal for cause did not violate
Witherspoon. The trial court's questioning resulted in the
determination that the juror, regardless of the law, facts or
circumstances would never inflict the death penalty and this is
exactly what the Supreme Court in Witherspoon held to be the correct
standard to allow dismissal of a juror for cause.
The appellant also claims that the dismissal of these six jurors
denied him a jury which represented a cross section of the
He cites Witherspoon, supra, to support the contention that it is
the proper duty of the jury to express community attitudes about
punishment. The appellant is correct that Witherspoon, supra, does
stand for the proposition that a sentence of death could not be
carried out where the jury that recommended it was chosen by
excluding veniremen for cause simply because they voiced general
objections to the death penalty or expressed conscientious or
religious scruples against its infliction. However, the Supreme
Court in that case determined that the appellant's right to
representation by a fair cross-section of the community stopped
there and did not extend so far as to require the inclusion of
persons on the jury who could never vote to impose the death penalty
or would refuse even to consider its imposition. Therefore, the
appellant's argument is without merit.
The appellant claims in his fifth proposition of error that during
voir dire, the trial court while trying to explain the difference
between a civil case and a criminal case, defined reasonable doubt.
The judge stated:
one's going to tell you what reasonable doubt is. Its got to be
beyond a reasonable doubt. There's a higher degree of proof required
in a criminal case before you could find someone guilty than in a
civil case. Go back to those scales, ladies and gentlemen. If you
have those scales that are even, and in a civil case you tip them in
favor of the plaintiff by preponderance of the evidence. But in a
criminal case, there has to be a greater one. Exactly where, is up
to you, but you have to be beyond a reasonable doubt before you can
find a defendant [651 P.2d 692] guilty. That's the law of all fifty
states. . . . That's the law of Oklahoma and the Federal government.
This Court has repeatedly held that an attempt to define "reasonable
doubt" to a jury by the trial judge is reversible error. Jones v.
State, 554 P.2d 830 (Okl.Cr.App. 1976). However, nowhere in the
remark of which the appellant complains did the trial court actually
give a definition of "reasonable doubt." Therefore, no error
occurred. See, Miller v. State, 567 P.2d 105 (Okl.Cr. App. 1977).
Next, the appellant asserts two errors occurred with respect to the
taped telephone conversations admitted into evidence. He argues that
the Oklahoma constitutional provision, Article II, § 30, against
unreasonable searches and seizures prevents the admission of taped
conversations into evidence even though one party consented to the
taping. He further alleges, that it was error for the jury to have
been provided also with typewritten copies of the tape recorded
conversation because this resulted in a violation of the "best
We cannot agree with either contention. One who voluntarily enters
into a conversation with another takes a risk that that person may
record the conversation. Once one party consents to record a
conversation, the conversation is divested of its private character.
Pearson v. State, 556 P.2d 1025 (Okl.Cr.App. 1976). We therefore
conclude that because Mr. Clegg consented to the taping of the
conversations, no violation of the appellant's right to privacy as
contemplated by Article II, § 30 of the Oklahoma Constitution
In addition, the jury did listen to the actual tapes made of the
conversations, therefore the "best evidence" rule, 12 O.S. 1981 §
3001 [12-3001], was not violated. The appellant has cited no
relevant authority for his assertion that it was error for the jury
to also receive typed copies of the conversations on the tapes, for
this reason, the alleged error will not be considered. Dick v.
State, 596 P.2d 1265 (Okl.Cr.App. 1979).
When the appellant was seventeen years old, he was convicted of
Robbery by Force or Fear. In proposition of error number nine the
argument is made that the State should not have been allowed to use
this prior conviction to impeach the appellant because the appellant
had not been certified to stand trial as an adult before he was
determination that the prior robbery conviction was
unconstitutionally obtained has never been made, nor is this the
proper place for the appellant to collaterally attack that
conviction. See 22 O.S. 1981 §§ 1080 [22-1080] et seq. Therefore, no
error occurred when the State used the appellant's prior conviction
for purposes of impeachment pursuant to 12 O.S. 1981 § 2609
Following the jury's determination that the appellant was guilty of
Murder in the First Degree, a separate sentencing proceeding was
held in accordance with 21 O.S. 1981 § 701.10 [21-701.10]. The
remaining part of this opinion concerns error that allegedly
occurred during this second portion of the trial.
It is first argued that error occurred when the court allowed
William David Boren and William Boren to testify about the specific
facts concerning the defendant's conviction for Robbery by Force and
Fear and to identify a picture of William David Boren as being the
picture of his face after he was beaten by Parks during the robbery.
The appellant asserts that this testimony was outside the scope of
rebuttal and introduced solely to effect the passions and prejudices
of the jury. However, no objection was made at any time by defense
counsel to the presentation of this evidence. Absent fundamental
error, this Court will not consider allegations of error not
objected to at trial. Gaines v. State, 568 P.2d 1290 (Okl.Cr.App.
Next, the appellant asserts that the admission of a photograph of
the victim at the scene of the crime was error because it may have
been the cause of the jury's returning the death penalty. This
picture [651 P.2d 693] was admitted during the second stage of the
proceeding in order to prove the aggravating circumstance that the
offense was especially heinous, atrocious and cruel. This Court has
repeatedly said that when the probative value of a picture is
outweighed by its prejudicial impact on the jury it will not be
permitted into evidence. Oxendine v. State, 335 P.2d 940 (Okl.Cr.
App. 1958). Further, the weighing of these factors is left to the
sound discretion of the trial court and absent an abuse of
discretion it will not be disturbed on appeal. Boling v. State, 341
P.2d 668 (Okl.Cr.App. 1959). The photograph was relevant to the
issue for which it was introduced. In view of the fact that the
jury, after viewing the photo, failed to find the aggravating
circumstance that the crime was especially heinous, atrocious and
cruel, no abuse of discretion is apparent.
Third, the appellant alleges that the prosecutor made improper
remarks during the closing argument that denied the appellant a fair
trial. The appellant complains that the prosecutor interjected his
personal opinion when he stated: "So looking at it from both sides,
I can't find a single, solitary mitigating circumstance that would
offset any of the aggravating circumstances." Further, it is argued
the prosecutor committed error by stating that in assessing the
death penalty each juror was not personally putting Robyn Parks to
death, by commenting on how the death penalty is effectuated in
Oklahoma County, by telling the jury to leave sympathy, sentiment
and prejudice out of their deliberation and by commenting on the
deterrent value of the death penalty.
We have repeatedly held that when an objectionable statement is made
by a prosecuting attorney, defense counsel must object and request
that the jury be admonished to disregard the statement.
Tahdooahnippah v. State, 610 P.2d 808 (Okl.Cr.App. 1980). When this
is not done the appellant is deemed to have waived any objection,
unless the remarks are fundamentally prejudicial. Bruner v. State,
612 P.2d 1375 (Okl.Cr.App. 1980). Because defense counsel did not
object to these remarks at the time the prosecutor made them, and we
find no fundamental prejudice occurred as a result, this proposition
of error is without merit.
Error is also alleged in various instructions given by the trial
judge. It is argued that the statement in the last instruction,
"Your verdict must be unanimous . . . Proper forms of verdict will
be given you which you shall use in expressing your decision" was
erroneous because it required the jury to come back with a verdict
and did not explain to them that if they could not agree reasonably
to a verdict they must come back with a verdict of life
imprisonment. However, it is the appellant's brief and not the trial
judge's instructions that incorrectly states the law. In Oklahoma,
the jury in a criminal case is required to reach a unanimous
verdict. See, 22 O.S. 1981 § 921 [22-921]. As was properly stated in
Instruction No. 7, if the jury does not find unanimously beyond a
reasonable doubt one or more of the statutory circumstances existed,
they would not be authorized to consider the penalty of death, and
the sentence would automatically be imprisonment for life. The
authority for this statement is found in 21 O.S. 1981 § 701.11
[21-701.11]: "If the jury cannot, within a reasonable time, agree as
to punishment, the judge shall dismiss the jury and impose a
sentence of imprisonment for life." Therefore no error occurred in
The appellant also argues that the jury instructions rendered the
Oklahoma Death Penalty Statute unconstitutional as applied for five
In Part A of this five part argument, the appellant objects to the
statement found in Instruction No. 9, "You must avoid any influence
or sympathy, sentiment, passion, prejudice or other arbitrary factor
when imposing sentence." He argues that this statement nullified the
court's earlier instruction to the jury concerning mitigation. We do
not agree. The statement complained of is taken out of context. It
is found in the final instruction to the jury which was a general
instruction on the duty [651 P.2d 694] of jurors. The particular
paragraph in which the statement is found explained to the jurors
that each must determine the importance and weight of the evidence
himself and discharge his duty as a juror "impartially,
conscientiously and faithfully . . . and return such verdict as the
evidence warrants when measured by these Instructions."
Instruction No. 6, on the other hand, clearly explained to the
jurors that they were not limited in their consideration to the
minimum mitigating circumstances set out by the court, but could
consider any other mitigating circumstances that they found existed
from the evidence. We therefore see no conflict between the two
Part B of this proposition of error appears to argue that the
Oklahoma statute, 21 O.S. 1981 § 701.11 [21-701.11], interpreted by
this Court in Irvin v. State, 617 P.2d 588 (Okl.Cr.App. 1980),
creates an unconstitutional mandatory imposition of the death
penalty once aggravating circumstances outweigh mitigating
circumstances. It is not surprising that the appellant's argument is
unsupported by relevant authority. It is true that the Supreme Court
struck down North Carolina's death penalty statute
because it made the imposition of the death penalty mandatory once
first-degree murder was found. On the contrary, the Oklahoma statute
provides objective standards to guide the jury in its sentencing
decision; the jury is not required to recommend death even if it
finds that one or more aggravating circumstances have been
established beyond a reasonable doubt. Similar statutory schemes
have been upheld by the Supreme Court in Gregg v. Georgia, 428 U.S.
153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) and Proffitt v. Florida,
428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976).
It is argued in Part C that the trial judge did not adequately
explain to the jury the purposes for which they were to use
mitigating circumstances or how the mitigating circumstances should
be weighed in relation to the aggravating circumstances. There is no
indication in the record that the appellant objected to the
instructions he now complains of, or offered any alternative
instructions. Where such is the case, this Court deems the error
waived unless the accused was deprived of a substantial right due to
the failure to instruct upon a material or fundamental question of
law. Luckey v. State, 529 P.2d 994 (Okl.Cr.App. 1974). We have
reviewed the instructions on mitigating and aggravating
circumstances and find they were sufficient to inform the jury of
their duty in deciding whether to impose a sentence of death or life
Part D alleges that 21 O.S. 1981 § 701.11 [21-701.11]
unconstitutionally shifts the burden of proof to the appellant to
prove sufficient mitigating circumstances to outweigh the
aggravating circumstances. We find that the statutory language
requiring the defendant to come forward with evidence of mitigating
circumstances does not impermissibly shift the burden of proof to
the defendant in contravention of Mullaney v. Wilbur, 421 U.S. 684,
95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). In the guilt stage of the
trial, the jury was instructed that the burden was on the State to
prove beyond a reasonable doubt every element of first degree
murder. The judge also instructed in the second stage of the trial
that the State was required to prove beyond a reasonable doubt at
least one aggravating circumstance. Therefore, we find the
appellant's contention to be without foundation.
Lastly, the appellant contends that error resulted in the giving of
part of Instruction No. 9 which advised the jury that they were
authorized to consider all evidence presented throughout the trial
in determining what sentence the defendant should receive. The
argument is wholly without merit in view of the U.S. Supreme Court's
clear mandate in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57
L.Ed.2d 973 (1978), which authorized the sentencer, in this case the
jury, to consider not only the defendant's record and character, but
any circumstances of the offense.
In Proposition of Error Number Fifteen, the appellant argues that
insufficient evidence existed to allow the jury to find the
aggravating circumstance that the murder was committed for the
purpose of avoiding or preventing a lawful arrest or prosecution.
This argument lacks merit because of our previous decision in
Eddings v. State, 616 P.2d 1159 (Okl.Cr.App. 1980), remanded for
resentencing ___ U.S. ___, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982),
wherein we stated that: "It is important to realize that the focus
of this aggravating circumstance is on the state of mind of the
murderer. . . . It is the murderer who must have the purpose of
`avoiding or preventing a lawful arrest or prosecution.'" Eddings v.
State, supra, at 1169. The evidence presented by the State in the
taped telephone conversation between the appellant Clegg and Parks
clearly established Parks' state of mind.
Therefore the jury had ample evidence on which to find the
aggravating circumstance and no error occurred.
Lastly, the appellant contends that the Oklahoma death penalty is
unconstitutional because the State has failed to show that the death
penalty fulfills a compelling state interest which cannot be
gratified by less drastic means and because the death penalty
constitutes cruel and unusual punishment. Both of these issues have
been addressed and rejected by the U.S. Supreme Court in Gregg v.
Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). There
the court upheld the Georgia death penalty statute and in addition
to finding that the death penalty did not constitute cruel and
unusual punishment in violation of the Eighth Amendment, also stated
may not require the legislature to select the least severe penalty
possible so long as the penalty selected is not cruelly inhumane or
disproportionate to the crime involved.
In accord with the Supreme Court decisions in Gregg v. Georgia,
supra, and Proffitt v. Florida, supra, we find that the Oklahoma
death penalty statute is constitutional.
In addition to ruling on the assignments of error that are raised,
21 O.S. 1981 § 701.13 [21-701.13], _ C, requires this Court to make
three determinations. We have examined [651 P.2d 696] the record in
this case and have given careful consideration to the arguments of
counsel and we hold:
That the sentence of death was not imposed "under the influence of
passion, prejudice, or any other arbitrary factor." Section 701.13,
That the evidence does support the jury's finding of the statutory
aggravating circumstance, § 701.12(5), the murder was committed for
the purpose of avoiding or preventing a lawful arrest or
That the sentence of death is not excessive or disproportionate to
the penalty imposed in similar cases, considering both the crime and
current death penalty statutes comply with the guidelines set out in
Gregg. We have considered and overruled each assignment of error by
the petitioner and have completed the statutorily mandated sentence
review. We have searched the record for any fundamental error that
might have prejudiced the petitioner and have found none. We find no
other reason to disturb or modify petitioner's death sentence.
The judgment of guilt and the sentence of death are AFFIRMED.
BUSSEY and CORNISH, JJ., concur.
Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d
The transcript of the telephone conversation reveals the following
James: Youdon't [sic] know nuthin.
Robin: Agh — I don't know.
James: You don't [sic] know nuthin.
Robin: I reckon.
James: Hey man, and I just found out today you didn't even get no
Robin: I wasn't going there to get no money.
James: You wasn't ____
Robin: I went there with a credit card I guess, credit card, you see
what happened, he come up, I give him the credit card, he come out
the booth to come back and look at my tag number.
Robin: So I know then that if he get the tag number, as soon as I
leave he gonna call the law.
Robin: All right? [sic]
Robin: OK, he gonna call the law, I got them guns, the dynamite and
everything in my trunk, right?
James: Yea, I didn't know that.
Robin: I ain't going to get too far before they get on me (James;
ugh-huh,), so I said the way to do that if he don't be around then
ain't nuthin he can tell them noway.
Robin: No, but see, but that is what people fail to realize. See if
he had of told on me, see I would have went anyway. See what I'm
Robin: And, I just looked at it I might as well, If I'm go, let me
go for being a dumb son of a gun, you know a little funky gas credit
James: . . . Hey man, but see, I have just been thinking man, you
got to be cool man, because I, you know, shit, the thing is that
Robin: Yea, but, well, that is what I'm trying to get you to see,
ain't no witnesses, so what?
Robin: See, I'm what I'm trying to get you to see, if they, if I
would have got caught red today they can't find nobody that they can
get up there and say yea, they seen me do this or seen me do that or
this happen or that happen because there wasn't nobody there but me
and him. See, and, I ain't got no guns, I ain't got nuthin.
925 F.2d 366
Robyn Leroy PARKS, Petitioner-Appellant,
Warden, Oklahoma State
Penitentiary, McAlester, Oklahoma; Larry Meachum,
Superintendent, Oklahoma Department of Corrections; and
Robert H. Henry,
Attorney General, State of
United States Court of Appeals,
Feb. 14, 1991.
McKAY, LOGAN, SEYMOUR, MOORE, ANDERSON, TACHA, BALDOCK, BRORBY,
and EBEL, Circuit Judges.
EBEL, Circuit Judge.
The issue to be decided in
this, our second en banc consideration of petitioner's habeas
petition, is whether the prosecutor's anti-sympathy comments
combined with an anti-sympathy instruction given by the court
during the penalty stage of petitioner's capital trial
influenced the jury improperly to discount mitigating evidence
presented by the defendant.
The United States Supreme
Court in Saffle v. Parks, --- U.S. ----, 110 S.Ct. 1257, 108
L.Ed.2d 415 (1990), held that the anti-sympathy jury instruction
by itself did not violate the defendant Robyn Leroy Parks'
constitutional rights. The Supreme Court did not, however,
address whether the prosecutor's anti-sympathy comments combined
with the anti-sympathy instruction improperly influenced the
jury. That issue is now before us on remand of this case from
the Supreme Court. We hold that the prosecutor's remarks, when
considered in conjunction with the instructions given, did not
have the effect of prohibiting the jury from considering any of
Parks' mitigating evidence. Therefore, we affirm the order of
the district court denying Parks' petition for habeas relief.
In 1978, a jury found Parks
guilty of murdering a gas station attendant whom he feared would
inform the police of his use of a stolen credit card.
During the sentencing phase of the trial, the trial judge
allowed Parks to put on any mitigating evidence that he desired.
Through his father's testimony, Parks put on evidence of his
background, his broken home and various other experiences in his
After both sides had presented
their sentencing evidence, the jury was instructed that it could
not impose the death penalty unless it found one or more
specifically enumerated aggravating circumstances. The jury was
further instructed that if it found aggravating circumstances,
it must balance them against any mitigating circumstances it
A number of potential
mitigating circumstances were listed in the jury instruction.
However, the jury was advised that the mitigating circumstances
listed in the instruction were not exclusive and that the "facts
or evidence that may constitute an additional mitigating
circumstance is for the jury to determine."
Additionally, the jury was
given what is referred to as an anti-sympathy instruction (Instruction
Nine), of which the most critical portion was as follows: "You
must avoid any influence of sympathy, sentiment, passion,
prejudice, or other arbitrary factor when imposing sentence."
At the conclusion of the
sentencing phase of the trial, the jury sentenced Parks to death.
Parks' conviction and sentence were affirmed on direct appeal by
the Oklahoma Court of Criminal Appeals. Parks v. State, 651 P.2d
686 (Okl.Crim.App.1982). The United States Supreme Court denied
certiorari. 459 U.S. 1155, 103 S.Ct. 800, 74 L.Ed.2d 1003
After seeking post-conviction
relief in the state court, Parks filed a petition for writ of
habeas corpus in the federal courts. One of the issues raised in
his petition for habeas corpus was whether the use of
Instruction Nine violated his Eighth Amendment rights. In a
divided en banc opinion, this court concluded that Instruction
Nine by itself violated Parks' constitutional rights by limiting
Parks' right to have the jury consider relevant mitigating
evidence. Parks, 860 F.2d at 1559.
We accordingly granted the
requested habeas relief without reaching the related issue
raised by Parks of whether his constitutional rights were
violated when the jury considered Instruction Nine in
conjunction with the prosecutor's anti-sympathy comments.
The United States Supreme
Court reversed our en banc decision, holding that the anti-sympathy
instruction by itself did not violate Parks' constitutional
rights. The Court held that Parks' argument advocated a new rule
under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d
334 (1989) and Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934,
106 L.Ed.2d 256 (1989), and could not be applied retroactively.
Saffle, 110 S.Ct. at 1260. According to the majority, Eddings v.
Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), and
Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973
(1978), which predated Parks' trial, simply precluded the state
from barring "relevant mitigating evidence from being presented
and considered during the penalty phase of a capital trial."
Saffle, 110 S.Ct. at 1261.
The Court observed that
Instruction Nine did not restrict what mitigating evidence the
jury could consider, but rather it addressed only how the jury
could consider such evidence. Id. This "how/what distinction"
was central to the court's analysis:
Parks asks us to create a rule
relating, not to what mitigating evidence the jury must consider
in making its decision but to how it must consider the
mitigating evidence. There is a simple and logical difference
between rules that govern what factors the jury must be
permitted to consider in making its sentencing decision, and
rules that govern how the state may guide the jury in
considering and weighing those factors in reaching a decision.
We now review Parks' reserved
claim that the prosecutor's anti-sympathy comments combined with
Instruction Nine violated his constitutional rights. In
accordance with the analysis set forth in the Supreme Court's
opinion, we endeavor to determine whether the anti-sympathy
comments complained of by the petitioner had the effect of
precluding what mitigating evidence the jury could consider in
sentencing as opposed to addressing how they could consider it.
In his brief petitioner points
out several incidents where the prosecutor encouraged the jury
to avoid the influence of sympathy. Two of the comments merely
tracked Instruction Nine. Because the Supreme Court upheld the
constitutionality of Instruction Nine in Saffle, we cannot grant
the petitioner's request for habeas relief based upon these two
The first of these, occurring
in the voir dire portion of the trial, merely informed the jury
of how they were to consider the evidence--not what evidence
they could consider.
Of course the Court will
instruct you that you should not allow sympathy, sentiment or
prejudice to enter into your deliberations. And, frankly, that's
just as cold blooded as you can put it.
During this trial, no matter
if you get to dislike me as an attorney or you don't like the
way I part my hair or you don't like David Hood, or you think he
looks real good and you think you ought to rule for it that way;
as Judge Cannon told you, you can have your sympathies and your
sentiment and your prejudices all you want to--you know you can
be as sympathetic as you want to or you can be as prejudiced as
you want to be, but you can't do it and sit on this jury. So
that's just a real simple way that Judge Cannon put it to you.
You cannot allow your sympathy,
sentiment or prejudice to influence you in this case and sit on
this jury. And now is the time for us to find out if you will
eliminate any sympathy, sentiment or prejudice in this case.
Will all of you do that?
The second comment, occurring
during the prosecutor's final rebuttal argument at the closing
of the sentencing phase of the trial, likewise limited how the
jury was to consider the evidence:
[The defense counsel's]
closing arguments are really a pitch to you for sympathy--sympathy,
or sentiment or prejudice; and you told me in voir dire you
wouldn't do that.
Well, it's just cold turkey.
He either did it or he didn't. He either deserves the death
penalty or he doesn't, you know. You leave the sympathy, and the
sentiment and prejudice part out of it.
Both of these comments
addressed only how the jury can consider the evidence--not what
evidence it can consider. Therefore, under Saffle, these two
comments pass constitutional muster.
Several other comments
arguably went beyond Instruction Nine. Once again, the issue
before this court is whether these comments, when viewed in
conjunction with Instruction Nine, violated Parks'
constitutional rights. Because we conclude that there was not "a
reasonable likelihood" that the prosecutors comments were
applied by the jury in a way that interfered with the jury's
consideration of constitutionally relevant evidence, we deny the
petitioner's request for habeas relief. See Boyde v. California,
--- U.S. ----, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316 (1990).
All of these comments occurred
in the voir dire portion of the trial. For example, when the
prosecutor was addressing an individual venireman, he asked, "unless
the court instructs you that under the law, if a fellow has a
different lifestyle that entitles him to commit a murder, you
wouldn't allow that to influence you, would you?" Tr.Vol. I at
The prosecutor went on to ask
that prospective juror: "And no matter what his lifestyle was,
if the state proves to your satisfaction beyond a reasonable
doubt that he is guilty, then irregardless of his lifestyle, you
wouldn't let that influence your verdict, would you?" Id. at
A little later during the voir
dire, the prosecutor asked a welfare department employee whether
he sympathized with welfare recipients "solely for the reason
that it's necessary that they come in and get welfare payments."
When he responded, "[n]o, sir," the prosecutor followed by
And, in any event, you
wouldn't consider a different lifestyle as--if it's--unless the
court so instructs you that if you have a different lifestyle
that it's all right to go out and do things that other people
can't do, you wouldn't feel like a different lifestyle would
give anyone a right to do anything that is in violation of the
law, would you?
It is far from clear that
these comments refer to what the jury could consider as
mitigating evidence. In any event, these comments were directed
towards a finding of guilt--not towards a determination of
Parks' sentence. Given the nature of these comments as made in
this case, and further given the timing of them during the voir
dire portion of the trial, see Coury v. Livesay, 868 F.2d 842,
845-46 (6th Cir.1989), we conclude that there is not a
reasonable likelihood the jurors here understood the challenged
instruction and comments to preclude consideration of relevant
mitigating evidence offered by Parks.
Any harm caused by these
comments would have been further minimized because Instruction
Five (given during the penalty phase of the trial) unambiguously
instructed the jury that it could consider any mitigating
You are further instructed
that mitigating circumstances, if any, must be considered by you....
You are not limited in your consideration to the minimum
mitigating circumstances set out herein, and you may consider
any other or additional mitigating circumstances, if any, that
you may find from the evidence to exist in this case. What facts
or evidence that may constitute an additional mitigating
circumstance is for the jury to determine.
Furthermore, arguments of
counsel are not viewed as having the same force as jury
instructions, Boyde, 110 S.Ct. at 1200.
Finally, in his closing argument at the end of the sentencing
phase, the prosecutor himself made it clear that the jury could
consider any mitigating evidence: "And, now the court also tells
you, you can consider anything else that you want to, to
mitigate the penalty of death and the term of life. You can
consider anything you want to in addition to what he's told you."
Tr.Vol. V at 703-04.
Therefore, we cannot accept
petitioner's argument that there is a reasonable likelihood that
these two prosecutorial comments occurring during the voir dire
portion of the trial affected the jury's understanding of
Instruction Nine in such a way that it felt precluded from
considering relevant mitigating evidence.
We AFFIRM the district court's
denial of Parks' petition for habeas corpus, and we VACATE our
order of May 14, 1990 wherein we had ordered the state to notify
this court in writing before attempting to set a new execution
date for petitioner.