BANKS v. STATE
Case Number: PC-89-1073
Decided: 04/19/1991
An Appeal from the District Court of Tulsa County; Joe Jennings, District Judge.
Anthony Rozelle Banks, Petitioner, moved to strike his prior post-conviction application and file a second amended application for post-conviction relief in Case No. CRF-79-3393 in the District Court of Tulsa County before the Honorable Joe Jennings, District Judge. The district court denied both the motion to strike and the filing of the second amended application for postconviction relief. The district court order is AFFIRMED.
Jim T. Priest, McKinney, Stringer & Webster, Oklahoma City, for petitioner.
Robert H. Henry, Atty. Gen., Sandra D. Howard, Asst. Atty. Gen., Oklahoma City, for respondent.
OPINION
LANE, Vice Presiding Judge:
[810 P.2d 1289]
¶1 Anthony Rozelle Banks, Petitioner, is before the Court on his second application for post-conviction relief. Petitioner was tried jointly with his brother Walter Thomas "Tony" Banks for the murder of David Fremin, a clerk at a Tulsa Git-N-Go convenience store, and was sentenced to death in Tulsa County District Court, Case No. CRF-79-3393. Walter "Tony" Banks was sentenced to life imprisonment. This Court unanimously affirmed the petitioner's judgement and sentence in Banks v. State, 701 P.2d 418 (Okl.Cr. 1985), and that of his brother in Banks v. State, 728 P.2d 497 (Okl.Cr. 1986). We affirmed the denial by the district court of petitioner's first application for post-conviction relief in PC-86-765 (unpublished order). Petitioner is now asking this Court to review the validity of his conviction and sentence for the third time.
¶2 The petitioner recognizes that he must establish ineffective assistance of appellate counsel in order for this Court to consider the bulk of his application for post-conviction relief. Absent ineffective assistance of counsel, seven (7) of the twenty nine (29) issues he raises herein are barred by res judicata for they were raised on direct appeal
¶3 Ineffective assistance of appellate counsel, the second issue raised in the petitioner's brief is thus key to our consideration [810 P.2d 1290] of the majority of the petitioner's argument and will be addressed first. The petitioner alleges three categories of ineffective assistance of appellate counsel. He argues that the issues presented on appeal were poorly presented; that nine (9) critical issues were not raised; and that appellate counsel failed to investigate and raise four (4) critical issues not readily apparent from the record. His final argument in support of the allegation of ineffective assistance of counsel is that by representing both the petitioner and his brother on appeal, counsel's conflict of interest made him ineffective per se. We will address each of these arguments in the order presented.
¶4 An accused person is guaranteed assistance of counsel by both the state and federal constitutions. See Okla. Const. art. II, §§ 7 and 20, U.S. Const. amends. VI, and XIV. The Supreme Court explained in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) that unless the assistance counsel renders is reasonably effective, an accused is denied the constitutional guarantee of counsel. We recognized in Cartwright v. State, 708 P.2d 592 (Okl.Cr. 1985) that the Strickland standard of reasonable effectiveness applies to both trial and appellate counsel. Id. at 594. We expressly hold that the standard of reasonable effectiveness applies to both trial and appellate counsel under the state constitution as well.
¶5 Addressing the appellant's first argument, we begin with the observation that it is undeniably true that some appellate briefs are written better than others. Those briefs submitted by both appellant and appellee which are well researched, accurate, concise, clear and to the point are of true benefit to the Court. Not all briefs rise to this level of excellence. However, a brief reaches the minimal level constitutionally acceptable if it sufficiently raises relevant issues for the Court to consider and address.
¶6 The petitioner does not claim the issues raised on direct appeal and in his first application for post-conviction relief were not fully considered by the Court. He simply argues that they could have been more effectively presented. We find that the briefs submitted on direct appeal and in support of the first application for post-conviction relief were supported with relevant authority, and therefore were sufficient to raise the issues for our consideration. See Tibbitts v. State, 778 P.2d 925 (Okl.Cr. 1989), Guy v. State, 778 P.2d 470 (Okl.Cr. 1989).
¶7 Petitioner next presents nine (9) issues which were not raised previously and argues that appellate counsel's failure to raise these proves he was ineffective. The mere fact that counsel does not raise every nonfrivolous error on appeal is not necessarily evidence of ineffectiveness. In fact, in most cases this is persuasive evidence of effectiveness of appellate counsel. We made this point in Cartwright v. State, 708 P.2d at 594 by quoting Chief Justice Burger who, in writing for the majority in Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983), quoted Justice Jackson:
Legal contentions, like the currency, depreciate through over-issue. The mind of an appellate judge is habitually receptive to the suggestion that a lower court committed an error. But receptiveness declines as the number of assigned errors increases. Multiplicity hints at lack of confidence in any one . . . [E]xperience on the bench convinces me that multiplying assignments of error will dilute and weaken a good case and will not save a bad one. Jackson, Advocacy before the Supreme Court, 25 Temple L.Q. 115, 119 (1951).
Jones, 463 U.S. at 752, 103 S.Ct. at 3313, 77 L.Ed.2d at 994. We brought the point closer to home in Cartwright with the following observation of Professor Kershen of the University of Oklahoma College of Law:
The appellate attorney must evaluate the possible legal issues in order to determine which issues are worth pursuing and which issues should be discarded. If he fails to winnow the strong issues from the weak, the attitude of the appellate court may well be anger because the attorney has failed to do his job and as a [810 P.2d 1291] consequence is wasting the court's time with meaningless verbiage. Kershen, The Written Brief for Criminal Cases in Oklahoma, 35 Okl.L.Rev. 499 (1982).
708 P.2d at 594. Plainly, all nonfrivolous issues need not, and should not be raised in an effective appellate brief. However, failure to raise an issue warranting reversal, modification of sentence, or remand for resentencing may well prove counsel was ineffective. In order to determine if such is the case here, we have addressed each of the errors the petitioner asserts in support of his argument that appellate counsel was ineffective. In light of the fact that this is a capital case, we will set forth our analysis of each of the nine (9) issues raised.
¶8 Petitioner filed a motion to suppress his statement to the police in which he stated he witnessed the Fremin murder. When he reasserted the motion at trial, it was denied by the trial court. He did not raise the issue on appeal or in his first application for post-conviction relief, and argues now that it should have been raised. Petitioner argues that the statement should have been suppressed because it was made during the course of plea negotiations. While he was being held on the unrelated charges of burglary, two armed robberies and escape the petitioner sent word via the jailer to the district attorney that he had information regarding an unsolved homicide which he would like to discuss. Petitioner testified that "it is common knowledge in the jail system that if you have some knowledge of a crime that some deals can be made if you testify in another case; you can get leniency on what you are arrested for". The district attorney arranged to talk with him, and in the presence of the district attorney and two or three Tulsa police officers a tape recorded statement was taken. In that statement, which was played to the jury, the petitioner stated that Billy McClure entered the Git-N-Go while he and his brother were there, shot Fremin, and demanded at gunpoint that the petitioner give him a ride to the North side of Tulsa.
¶9 Under 12 O.S. 1981 § 2410 [12-2410] an offer to plead guilty or nolo contendere to the crime charged or any other crime and statements related to these pleas are, with some exceptions not relevant here, inadmissible. The determinative question is therefore whether the petitioner made his statement in connection with and relevant to an offer to plead guilty or nolo contendere. This court has established a two-step analysis to determine this question. The statement is inadmissible if two (2) factors are present; the accused exhibited an actual subjective exception to negotiate a plea at the time of the discussion, and this expectation was reasonable given the totality of the objective circumstances. Gillum v. State, 681 P.2d 87, 88 (Okl.Cr. 1984).
¶10 The record does not support the petitioner's contention that he made his statement in conjunction with a plea of guilty or nolo contendere to any crime. Nowhere in the record does any evidence indicate the petitioner expected to negotiate a plea at the time he made his tape recorded statement. On this record we find that the petitioner made his statement with the subjective expectation of future benefit, but not in the course of plea negotiations as defined by Gillum, Id. Finding that the statement was not made during plea negotiations, we find that the trial court properly denied the petitioner's motion to suppress.
¶11 The petitioner argues for the third time that he should have been granted a severance. A severance is required when co-defendants assert mutually antagonistic defenses. See Master v. State, 702 P.2d 375 (Okl.Cr. 1985); Murray v. State, 528 P.2d 739 (Okl.Cr. 1974). Defenses which are inconsistent, in conflict or otherwise unreconcilable are not necessarily mutually antagonistic. Defenses are mutually antagonistic where each defendant tries to exculpate himself and inculpate the codefendant. See Van Woundenberg v. State, 720 P.2d 328 (Okl.Cr. 1986).
¶12 In this case Walter "Tony" claimed he was not present at the time of the murder and the petitioner claimed that he and "Tony" were present, but a third party committed the murder. These statements are inconsistent, but they are not, by definition, mutually antagonistic. We rejected [810 P.2d 1292] this severance argument in the petitioner's appeal, Banks, 701 P.2d at 425, we rejected it in his brother's appeal, Banks v. State, 728 P.2d 497, we rejected it in the petitioner's first application for post-conviction relief, and we now again reject it as supporting the claim of ineffective assistance of appellate counsel.
¶13 Petitioner also raises the related issue of being forced to share peremptory challenges with his co-defendant. The Oklahoma legislature has determined that co-defendants will share their peremptory challenges when, as here, they do not assert mutually antagonistic defenses. See 22 O.S. 1981 § 655 [22-655]. The Supreme Court recently determined that the federal guarantee of due process requires only that a defendant receive all the peremptory challenges allowed by state law. Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1987). We find that the due process clause of the state constitution likewise is satisfied when a defendant receives the peremptory challenges allowable by state law. See Fox v. State, 779 P.2d 562 (Okl.Cr. 1989); Fritz v. State, 730 P.2d 535 (Okl.Cr. 1986). In this case the petitioner received all the peremptory challenges allowable by state law and we find no error.
¶14 The petitioner next argues that the trial court improperly allowed the jury to take the petitioner's tape recorded statement into the jury room because the tape contained a second statement by the petitioner in which he states he witnessed another crime unrelated to the Fremin murder. At the preliminary hearing the prosecutor advised the judge of this fact. The State introduced only side-one into evidence at both the preliminary hearing and trial. At trial no mention of side-two was made and the tape of the relevant recorded statement was admitted into evidence over defense objection on other grounds.
¶15 Appellate counsel now speculates that the jury may have turned the tape over and listened to a statement which was not admitted into evidence. There is no suggestion in the record that the jury did this. We will not go behind the record and conduct appellate review of speculation as to what might have happened. This Court has held that tape recorded evidence may be taken by the jury into the jury room for deliberations. See Duvall v. State, 780 P.2d 1178 (Okl.Cr. 1989). We find no error in the fact that the jury was allowed to take this tape in with them during their deliberations.
¶16 The petitioner next argues that the trial court should have prevented the prosecutor from impeaching his credibility using evidence of prior convictions. He relies on 12 O.S. 1981 § 2609 [12-2609](A)(2). This Court has set forth detailed guidelines to assist the trial bench in determining the admissibility of evidence of former convictions for the purpose of impeachment. See Cline v. State, 782 P.2d 399 (Okl.Cr. 1989); Croney v. State, 748 P.2d 34 (Okl.Cr. 1987) (§ 2609(B)); Robinson v. State, 743 P.2d 1088 (Okl.Cr. 1987) (§ 2609(A)(2)).
¶17 At his trial in 1981 the petitioner admitted on direct examination that he had a former conviction for armed robbery. On cross-examination the prosecutor brought out the facts that the petitioner had two convictions for robbery with firearms in 1973 and convictions for second degree burglary and armed robbery in 1980.
¶18 These convictions all involve stealing which is universally regarded as conduct which reflects adversely on a person's honesty and integrity. See Cline, 782 P.2d at 400. The evidence of these crimes was therefore admissible under 12 O.S. 1981 § 2609 [12-2609](A)(2) without the trial court weighing the probative value against the prejudicial effect. See Cline, supra; Robinson, 743 P.2d at 1090.
¶19 Petitioner claims that appellate counsel should have argued that the prosecutor's office should have been disqualified from prosecuting his case because the chief prosecutor was a witness against him. In support of this argument petitioner relies on Pease v. District Court, 708 P.2d 800 (Colo. 1985) which he cites as an Oklahoma case. The Colorado Supreme Court set forth the rule that the district attorney must be disqualified in a criminal case where he or a member of his staff will [810 P.2d 1293] appear as a witness and give testimony of sufficient consequence to prevent a fair trial. 708 P.2d at 802.
¶20 In the petitioner's case the chief prosecutor testified that the petitioner asked to speak to him and that the petitioner's statement was tape recorded. This testimony was simply a formality required for introduction of the tape into evidence. The chief prosecutor did not testify to any matter directly related to the determination of guilt or innocence. We find that this testimony, under the case the petitioner would have us follow, was not of sufficient consequence to require disqualification of the prosecutor's office.
¶21 The appellant relies on Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) to argue that the trial court should have granted his motion for expert assistance. The appellant filed a motion eight days before trial requesting fourteen experts.
¶22 In Ake the Supreme Court held that the trial court shall appoint a psychiatrist or psychologist to assist with the defense when a defendant makes an ex parte preliminary showing to the trial judge that his sanity is likely to be a significant factor at trial. 470 U.S. at 83, 105 S.Ct. at 1096, 84 L.Ed.2d at 66. Neither the Supreme Court nor this Court has expanded the requirement of a court appointed expert beyond the Ake holding; although we left the question open in Standridge v. State, 701 P.2d 761 (Okl.Cr. 1985).
¶23 The petitioner did not make a preliminary showing that his sanity was to be a significant trial issue, so under Ake he was not entitled to a psychiatrist or psychologist to assist with his defense. He fails to demonstrate that without any of these requested experts, he was denied access to evidence which is material to either guilt or punishment, and he fails to show any tangible prejudice from the trial court denial of this motion. Although the petitioner contends the extremely damaging fingerprint evidence could have been discredited, if an expert had been provided, the record reveals that counsel thoroughly cross-examined the State's expert. We find the trial court properly denied this motion. See Munson v. State. 758 P.2d 324 (Okl.Cr. 1988), cert. denied 488 U.S. 1019, 109 S.Ct. 820, 102 L.Ed.2d 809 (1988); VanWhite v. State, 752 P.2d 814 (Okl.Cr. 1988); Johnson v. State, 731 P.2d 993, 1007 (Okl.Cr. 1987).
¶24 The petitioner also argues that he should have been granted a continuance of his trial in order to "locate a critical defense witness". Petitioner does not refer us to the record to indicate when defense counsel made such a motion, and we do not find that the motion, if made, was preserved on the record. This argument, which was not raised at trial, is not properly before us and will not be addressed. See Cartwright v. State, 695 P.2d 548 (Okl.Cr. 1985) cert. denied 473 U.S. 911, 105 S.Ct. 3538, 87 L.Ed.2d 661 (1985).
[810 P.2d 1294]
¶25 Petitioner next relies on Parks v. Brown, 860 F.2d 1545 (10th Cir. 1988) cert. granted sub. nom.; Saffle v. Parks, 494 U.S. 484, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990) to challenge the jury instructions and claims the trial court violated the Eighth Amendment by instructing the jury that "it was not to allow sympathy to enter into its life and death deliberations". (Brief at 20.) The court instructed the jurors they were to avoid any influence of passion, prejudice or any other arbitrary factor when imposing sentence (Stage I) and that they should not allow sympathy, sentiment or prejudice to affect them in reaching their decision (Stage II).
¶26 The Supreme Court rejected this argument when it reversed the Tenth Circuit shortly after petitioner's brief was filed. The Supreme Court explained in Saffle v. Parks:
We also reject Parks' contention that the anti-sympathy instruction runs afoul of Lockett and Eddings because jurors who react sympathetically to mitigating evidence may interpret the instruction as barring them from considering that evidence altogether. This argument misapprehends the distinction between allowing the jury to consider mitigating evidence and guiding their consideration. It is no doubt constitutionally permissible, if not constitutionally required, for the State to insist that "the individualized assessment of the appropriateness of the death penalty [be] a moral inquiry into the culpability of the defendant, and not an emotional response to mitigating evidence." Whether a juror feels sympathy for a capital defendant is more likely to depend on that juror's own emotions than on the actual evidence regarding the crime and the defendant. It would be very difficult to reconcile a rule allowing the fate of a defendant to turn on the vagaries of a particular jurors' emotional sensitivities with our long standing recognition that, above all, capital sentencing must be reliable, accurate, and nonarbitrary.
494 U.S. at ___, 110 S.Ct. at 1262, 108 L.Ed.2d at 427 (citations omitted). We agree with the reasoning of the Supreme Court in Saffle v. Parks and reject the petitioner's argument regarding both Stage I and Stage II instructions. We also find independently that the anti-sympathy instructions given in the petitioner's case do not violate the state constitutional prohibition against cruel and unusual punishment. See Okla. Const. art. II, § 9.
¶27 We also reject the petitioner's contention that appellate counsel was ineffective for failing to argue that the trial court erred in failing to instruct on lesser included offenses. Petitioner claims the trial court should have instructed on the lesser included offenses of first degree manslaughter and second degree murder. Petitioner relies on Nauni v. State, 670 P.2d 126 (Okl.Cr. 1983), and Hanna v. State, 560 P.2d 985 (Okl.Cr. 1977) to argue that evidence of the petitioner's intoxication warrants these instructions. We disagree for the simple reason that the evidence by the petitioner's own testimony was that while he had been drinking beer the night and early morning prior to going to the Git-N-Go, he did not drink enough to become intoxicated. The evidence in the petitioner's case also established that the petitioner shot Fremin during an armed robbery from a range of less than two (2) feet while the petitioner was standing and Fremin was on his knees. There is no evidence whatsoever that the murder was committed in the heat of passion or without a design to effect death. The trial court properly did not instruct the jury sua sponte on matters not supported by the evidence. Dilworth v. State, 611 P.2d 256 (Okl.Cr. 1980).
¶28 As his final argument regarding issues which were not raised but which are apparent from the record, the petitioner alleges that the "avoiding arrest" aggravating circumstance is vague and overbroad. Petitioner relies on Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988) in which the Court found the jury instruction defining aggravating circumstance "heinous, atrocious and cruel", to be unconstitutionally vague and overbroad.
[810 P.2d 1295]
¶29 The trial court instructed the petitioner's jury:
Based upon the facts of the case, the murder was committed for the purpose of avoiding and preventing a lawful arrest and prosecution. (O.R. 121)
The petitioner does not explain how the plain and ordinary language of this instruction is not understandable, or how it fails to properly limit the class of murderers eligible for the death penalty. We find that the meaning of the language is clear and that it properly channels the discretion of the jury. See Fox v. State, 779 P.2d 562 (Okl.Cr. 1989); Fowler v. State, 779 P.2d 580 (Okl.Cr. 1989); Rojem v. State, 753 P.2d 359 (Okl.Cr. 1988), cert. denied 488 U.S. 900, 109 S.Ct. 249, 102 L.Ed.2d 238 (1988).
¶30 The petitioner also raises four alleged errors in the investigation and preparation conducted by appellate counsel. He alleges that appellate counsel failed to include the jury instructions requested by the defense in the record on appeal. The petitioner does not explain how this error prejudiced him. This argument is particularly unpersuasive given the fact that no error regarding the denial of requested jury instructions was raised on appeal or in the first application for post-conviction relief. It is not mere error, but rather error which prejudices the petitioner which is grounds for remedial action by this Court. See Quilliams v. State, 779 P.2d 990 (Okl.Cr. 1989); Washington v. State, 568 P.2d 301 (Okl.Cr. 1977).
¶31 Petitioner next faults appellate counsel for failing to investigate evidence suggesting that Norman Lee Hicks or Billy James McClure were responsible for the Fremin murder. The petitioner does not give the Court the benefit of the "readily available" evidence which he claims exists. (Brief at 21). Our reading of the record does not support petitioner's bald assertion. The evidence indicates that the petitioner gave Hicks money orders taken from the Git-N-Go. The petitioner claimed to have found them in his car after he gave McClure a ride to north Tulsa. The petitioner gave the police the names of both McClure and Hicks in his statement and we have no evidence before us to indicate that the Tulsa police failed to investigate these leads. The petitioner gives us no reason to believe that appellate counsel could have been more effective than the homicide unit of the Tulsa police department in developing evidence to establish McClure or Hicks and not Petitioner as the killer.
¶32 Petitioner next asserts that his appellate counsel failed to investigate a conflict of interest which denied him effective assistance of trial counsel. Petitioner claims his appellate counsel should have argued that trial counsel, Les Earl, was ineffective per se due to a conflict of interest arising from the fact that he had previously represented Norman Hicks who had been charged earlier with the Fremin murder. Petitioner claims that Mr. Earl did not disclose or explain this fact to him. He speculates that Mr. Earl may have received information from Hicks which could have been favorable to his defense, but could not be disclosed due to his former attorney-client relationship with Hicks. The State relies on its position that petitioner waived this argument by failure to raise it on appeal, and does not specifically address this issue.
¶33 Hicks was arrested with money orders taken from the Git-N-Go in his possession. The charge against Hicks was ultimately changed from murder to possession of a forged instrument, and Hicks pled guilty to this charge. Mr. Earl was not representing Hicks at the time of the petitioner's trial, and Hicks was not called as a witness in the petitioner's trial.
¶34 The question of first impression before us is whether a conflict of interest necessarily arises where defense counsel has represented an individual who has a penal interest in the same matter for which the defendant stands trial when that individual is not called as a witness at trial. The right to effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution and by article II, sections 7 and 20 of the Oklahoma Constitution by definition contemplates counsel who is free from the limiting effects of any conflict of interest. [810 P.2d 1296] Counsel cannot be effective if conflicts of interest, no matter how subtle, dull the zeal of undivided loyalty. However, the mere appearance or possibility of a conflict of interest is not sufficient to cause reversal.
¶35 This court has had few opportunities to address this question. On the two occasions which this Court has addressed a similar issue, we have relied on Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980) to hold that when a contemporaneous objection is not made, an appellant must establish that an actual conflict of interest, and not the mere possibility of a conflict of interest, adversely effected defense counsel's performance in order to cause the reversal of a criminal conviction. Applying Cuyler, we have found no actual conflict where defense counsel represented persons who pled guilty to charges arising out of the same criminal episode as the appellant, and then became key prosecution witnesses against the appellant. See Burnett v. State, 760 P.2d 825 (Okl.Cr. 1988); Sheppard v. State, 670 P.2d 604 (Okl.Cr. 1983).
¶36 The language of Burnett and Sheppard may be interpreted to suggest a two-step analysis, a finding of conflict followed by a finding of harm. Without revisiting the holdings of these cases which is not required by the case at hand, we believe this should be clarified. If a conflict of interest exists, by definition defense counsel has been ineffective, and the petitioner need not make a showing of harm. A conflict of interest creates ineffective assistance per se. However, if only the appearance of conflict is present as a result of multiple representation, as in Burnett and Sheppard, then the petitioner must make a showing of actual harm in order to show ineffective assistance of counsel.
¶37 The present case differs significantly from Burnett and Sheppard. In each of those cases the client which defense counsel had represented became a key prosecution witness. In the present case, Hicks did not testify at the petitioner's trial. The risk that defense counsel could not represent the petitioner with undivided loyalty is therefore greatly reduced, though not wholly eliminated. The petitioner therefore presents a question of the appearance of a conflict of interest. The petitioner speculates as to ways in which the previous representation may have prejudiced him. However, the speculation is not supported by the record of the evidence presented at trial, or the development of the defense. Following Burnett and Sheppard we find that the petitioner has not met his burden under the federal constitution of showing actual harm caused to him by the appearance of a conflict of interest.
¶38 As the Oklahoma Constitution also guarantees the petitioner effective assistance of counsel who is free from conflicts of interest, we must determine whether the state standard is also met. This court has not taken the opportunity previously to address this issue from the perspective of the state constitution. We find that the guarantee of effective assistance of counsel found in the state constitution is coextensive to that found in the constitution of the United States. There being no difference in the standard, at this time, we find no need to create a different analysis of the question under the state constitution. Applying the analysis set forth above, we find that the petitioner has also failed to carry his burden of showing harm under the state constitution. Appellate counsel did not err by failing to raise this argument on appeal.
¶39 Petitioner alleges trial counsel failed to investigate readily available mitigating evidence and that appellate counsel erred by failing to raise this issue. The mitigating evidence which the petitioner sets forth involves the petitioner's good behavior during previous periods of incarceration. The failure to put on any mitigating evidence in the sentencing stage of a capital case is not, per se, a denial of effective assistance of counsel. See Fisher v. State, 736 P.2d 1003 (Okl.Cr. 1987), on reh. 739 P.2d 523 (Okl.Cr. 1987), cert. denied 486 U.S. 1061, 108 S.Ct. 2833, 100 L.Ed.2d 933 (1987), reh. denied 487 U.S. 1246, 109 S.Ct. 3, 101 L.Ed.2d 955 (1988); Stafford v. State, 669 P.2d 285 (Okl.Cr. 1983), cert. denied 473 U.S. 911, 105 S.Ct. [810 P.2d 1297] 3537, 87 L.Ed.2d 660 (1984). The decision not to put on this mitigating evidence appears to be tactical in nature. Defense counsel attempted to minimize, rather than focus the jury's attention on the petitioner's substantial criminal record. The choice to pursue a reasonable, albeit ultimately unsuccessful trial tactic, does not subject trial counsel to a finding of ineffectiveness by this Court. Jones v. State, 781 P.2d 326 (Okl.Cr. 1989).
¶40 Neither the state nor federal constitutions differentiate between trial and appellate counsel when they guarantee the assistance of counsel to an accused. The analysis for determining whether appellate counsel operated under an impermissible conflict of interest because of multiple representations on appeal must therefore be the same for determining the conflicts of interest of trial counsel. See Cartwright v. State, 708 P.2d 592 (Okl.Cr. 1985). In this case appellate counsel represented both the petitioner and his brother, Walter "Tony", on appeal. The representation certainly raises the appearance of conflict, and in some cases the representation of codefendants on appeal could create a per se conflict of interest. Petitioner argues that counsel's devotion to his brother caused counsel to argue his brother's case at his expense. These allegations are not borne out in the record. Nothing in the appellate brief for Walter "Tony" is mutually antagonistic to the position of the petitioner. Nor does either brief support the position of one of the appellants to the detriment of the other. We find that an appearance of conflict exists, but a conflict per se does not. The petitioner speculates that appellate counsel did not investigate "newly discovered evidence" yet presents no newly discovered evidence to support this position. Only conjecture supports the various scenarios which the petitioner sets forth. Conjecture does not carry the petitioner's burden to show actual harm caused him by appellate counsel's multiple representation.
¶41 After having considered each of the propositions which the petitioner raises to support his claim that appellate counsel was ineffective, we find that the representation by appellate counsel does not fall below the level of reasonably effective assistance guaranteed by the state and federal constitutions. We therefore will not address those propositions of error which were or could have been addressed on direct appeal or the first application for postconviction relief, and which are therefore barred by res judicata or waived.
¶42 The sole issue which properly remains before this Court is whether the trial court improperly denied the petitioner an evidentiary hearing on this application for post-conviction relief. The Oklahoma Legislature has provided that an evidentiary hearing on an application for post-conviction relief shall be held if the application cannot be disposed of on the pleadings and record, or there exists a material issue of fact. 22 O.S. 1981 § 1084 [22-1084]. We find that the issues raised could be fully addressed on the pleadings and the record. The petitioner has no constitutional right to an evidentiary hearing on an application for post-conviction relief, and the trial judge properly denied it. See Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987).
¶43 Finding no error which requires modification or reversal the District Court Order denying post-conviction relief is AFFIRMED.
LUMPKIN, V.P.J., concurs in result.
BRETT and JOHNSON, JJ., concur.
PARKS, J., specially concurs.
Footnotes:
1 Propositions III (prosecutor misconduct), VII (lack of control of prosecutor discretion in seeking death penalty), X (jury instruction could be construed to make death penalty mandatory), XXII (continuing threat aggravating circumstance unconstitutional as applied), XXIII (avoiding arrest aggravating circumstance unconstitutional), XXIV (trial court refused defense interrogation of jurors excused for inability to impose death), and XXV (Court of Criminal Appeals erred in using harmless error analysis of use of 1980 conviction in sentencing phase) were raised on direct appeal.
2 Propositions I (ineffective assistance of trial counsel), IV (prosecutor failed to disclose exculpatory evidence), V (jury instructions), VI (jury instructions), VIII (jury instructions), IX (jury selection), XII (prosecutor should have been disqualified), XIII (admission of fingerprint evidence), XV (admission of statement), XVI (admission of statement), XVII (admission of statement), XVIII (admission of statement), XIX (admission of statement), XXI (jury instructions), XXVI (jury not precluded from considering pardon and parole), XXVII (sharing of peremptory challenges), and XXVIII (prosecutor failed to disclose reward and/or favorable treatment given to key witness) could have been raised on direct appeal. Proposition XX (incomplete appellate record) ordinarily should be raised, if at all, in the first application for post-conviction relief, and is waived if not so raised. However, in this case where appellate counsel also filed the first application for post-conviction relief, we find that it is unreasonable to impose the waiver doctrine. This issue is raised and addressed within petitioner's ineffective assistance of counsel argument.
3 1. a private medical expert to determine future dangerousness;
2. a private fingerprint expert;
3. a private expert to analyze fiber, tissue or body fluid evidence held by the state;
4. a forensic pathologist to review the findings of the State;
5. a criminal defense investigator to discover mitigating evidence, and to investigate the background of jurors;
6. a qualified psychiatrist to determine sanity at the time of the offense as well as information regarding emotional or mental state at the time of the offense which could be used as mitigation evidence;
7. a qualified criminologist to determine the position of each involved person at the scene of the crime;
8. a qualified juristic psychologist to assist the defense with jury selection;
9. a qualified juristic psychologist to support the defense motion for individual voir dire;
10. an expert qualified to testify concerning the effect of death qualifying the jury;
11. an expert qualified to testify to the deterrent effect of the death penalty;
12. a ballistic expert;
13. an expert to testify regarding whether the majority of the people in the community favor the death penalty;
14. an educational testing specialist to testify regarding the defendant's "educational posture". (O.R. 89-91).
PARKS, Judge, specially concurring:
¶1 It continues to be the opinion of this writer that the ruling in Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), "must necessarily be extended to include any expert which is `necessary for an adequate defense.'" Ake v. State, 778 P.2d 460, 464 n. 1 (Okl.Cr. 1989). Before a defendant is entitled to such assistance, however, he must first make the requisite showing of need. Id. In the present case, I agree with the majority that appellant has failed to demonstrate either that he was denied access to material evidence or [810 P.2d 1298] that he suffered substantial prejudice from the lack of the requested experts. (Majority at 1293). Accordingly, I agree that the trial court did not err in denying the same.
¶2 Furthermore, I continue to view the socalled "anti-sympathy" instruction in the second stage unnecessary and confusing to the jury where mitigating evidence has been introduced. See Fox v. State, 779 P.2d 562, 579 (Okl.Cr. 1989) (Parks, P.J., concurring in part/dissenting in part). However, I must yield my view to that of the majority of this Court as a matter of stare decisis.
LUMPKIN, Vice Presiding Judge, concurring in results.
¶1 I concur in the results reached by the Court in this case, and agree that all issues raised by Petitioner, except ineffective assistance of appellate counsel, are barred by the doctrine of res judicata or waiver. Therefore, the issues addressed by the Court are not determined on the merits but only as the law and facts relate to the sole issue of adequate representation by appellate counsel. I agree that Petitioner was not denied effective assistance of counsel and his petition must be denied.
¶2 I must continue to dissent to the Court's application of Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). The Court continues to state that the decision in Ake requires an ex parte hearing for a defendant to make a showing that sanity at the time of the offense is to be a significant factor at trial and thus the need for an expert witness. See McGregor v. State, 754 P.2d 1216 (Okl.Cr. 1988). However, the Court in McGregor relied not on the holding in Ake but merely an inference that an ex parte hearing is required when, in fact, the Ake decision did not set down that requirement. The Court in Ake held that when a defendant demonstrates that his sanity at the time of the offense is to be a significant factor at trial, the State must assure him access to a competent psychiatrist, but the Court did not mandate a procedure to determine that fact. The Oklahoma Legislature, in response to Ake, enacted 22 O.S.Supp. 1985 § 464 [22-464], subd. B and § 1176, to provide access to necessary expert witnesses. Neither of these statutory provisions require or infer an ex parte hearing. Absent a determination of the unconstitutionality of a statutory provision, we are bound to apply it. When reviewed in light of the overriding preference against ex parte hearings in our jurisprudence, these statutes cannot be interpreted to require, or even allow, ex parte hearings. I would therefore continue to urge this Court to overrule McGregor and apply the statutory provisions of 22 O.S.Supp. 1985 § 464 [22-464], subd. B and § 1176.
Court of Criminal Appeals of Oklahoma
43 P.3d 390 (2002)
2002 OK CR 9
Anthony Rozelle BANKS, Appellant,
v.
The STATE of Oklahoma, Appellee.
February 21, 2002
James C. Bowen, O.I.D.S, Sapulpa, OK, Mark D. Matheson, Tulsa, OK, Attorneys for Defendant at trial.
Chad A. Greer, Doug E. Drummond, Assistant District Attorneys, Office of District Attorney, Tulsa, OK, Attorneys for the State at trial.
Bill Zuhdi, Zuhdi Law Offices, Oklahoma City, OK, Attorney for Appellant on appeal.
W.A. Drew Edmondson, Attorney General of Oklahoma, David M. Brockman, Assistant Attorney General, Oklahoma City, OK, Attorneys for Appellee on appeal.
OPINION
CHAPEL, Judge:
¶ 1 Anthony Rozelle Banks was tried by jury and convicted of First Degree Murder in violation of 21 O.S.Supp.1979, § 701.7, in the District Court of Tulsa County Case No. CF-97-3715. The jury found three aggravating circumstances: (1) that Banks was previously convicted of a felony involving the use or threat of violence to the person; (2) that the murder was committed to prevent lawful arrest or prosecution; and (3) that the murder was especially heinous, atrocious, or cruel.1 In accordance with the jury's recommendation, the Honorable Thomas C. Gillert sentenced Banks to death.
FACTS
¶ 2 At approximately 11:30 p.m. on June 6, 1979, Sun Travis was returning home from work. As she was driving into her apartment complex on South College Street, her husband (Steve Travis) heard their car muffler and peered out the apartment window. He saw Sun drive toward her designated parking spot, and also noticed a light blue or white hatchback automobile following her. A few minutes passed. Concerned, Steve walked outside to the lot, where he discovered the car parked in the wrong space with dome and headlights on. The pillow upon which Sun sat to drive was on the ground next to the car.
¶ 3 Steve returned to the apartment and called the police. The next morning, Sun's lifeless and partially clothed body was found in the grass next to a nearby road. Sun had several bruises on her face. She had been killed by a gunshot wound to the head.
¶ 4 In November 1979, Banks was in custody on unrelated charges when he asked to speak with the Tulsa County District Attorney about the Sun Travis murder. Banks's version of Sun Travis's death begins at approximately 11:00 p.m. on June 6, 1979: I was at a convenience store in my light blue AMC Hornet hatchback when Allen Nelson asked me for a ride. I drove him to what turned out to be Travis's apartment complex; Sun Travis pulled up in her car. Nelson exited my car, began talking to Travis, reentered my car with Travis, and requested that I drive them to the Apache Manor Apartments. Once there, Nelson and Travis entered the apartments while I drank beer and waited. Nelson and Travis, now shirtless, returned. I drove them around for about ten minutes, when Nelson asked me to stop the car on 36th Street, about three hundred yards from the entrance of the Comanche Apartments.
¶ 5 Travis exited to the front of the car, Nelson to the rear, after which he circled around to the front and shot Travis in the head. Nelson returned to the car and asked me not to tell anyone. We drove away, until Nelson noticed a sewer drain and asked me to stop. He discarded Travis's blouse and purse in the drain, then returned to the car. I drove him home.2
¶ 6 Despite Banks's statement, made in 1979, the
Travis case remained open until 1997, when DNA analysis was performed
on sperm samples obtained from the victim and her clothing. DNA
analyst David Muniec testified that the sperm found on Travis's
clothing was a mixture, matching both Banks's and Nelson's DNA. Muniec
also
ISSUES RELATING TO PRETRIAL PROCEEDINGS
¶ 7 In Proposition VI, Banks argues that the trial court erred in allowing the State to prosecute him pursuant to the Second Amended Information, claiming prejudice in that he had no notice of the State's intent to prosecute him for first degree malice aforethought murder. This claim fails.
¶ 8 On August 6, 1997, Banks was charged by Information with malice aforethought murder. At preliminary hearing on June 5, 1998, the State asked for, and without objection was granted, authority to amend the Information to charge Banks alternatively with malice aforethought murder and felony murder in the commission of the felonies of kidnapping and rape by force or fear. On June 25, 1998, the State mistakenly filed an Amended Information only charging Banks with felony murder, but corrected the error on August 27, 1999, by filing the Second Amended Information alleging malice aforethought murder and felony murder in the commission of kidnapping or rape by force or fear. Banks was not prejudiced as he was tried and convicted based upon the same evidence and charges that he was given notice of at preliminary hearing.3 This Proposition is denied.
¶ 9 In Proposition II, Banks claims the trial court erred in overruling his motion to quash the search warrant issued to obtain his blood sample and suppress the DNA evidence it revealed. Banks contended that material misstatements existed in the affidavit for the search warrant. The trial court denied the motion, finding first that the misrepresentations were not material and second, that even without the offending language, other sufficient allegations supported a finding of probable cause. We agree.
¶ 10 The affidavit correctly stated that semen had been obtained from a victim of sexual assault and murder. Probable cause to obtain Banks's blood was then established by his own admissions as outlined in the affidavit. Banks admitted accompanying Nelson "when Nelson committed the crimes." Thus, we find that assuming arguendo misrepresentation, the search warrant was supported by probable cause.4
ISSUES RELATING TO FIRST STAGE PROCEEDINGS
¶ 11 In Proposition I, Banks asserts that the evidence was insufficient to convict him of first degree murder. In evaluating evidence sufficiency, this Court considers it in a light most favorable to the State to determine whether "any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt."5 Banks was alternatively charged with malice aforethought and felony murder in the commission of a kidnapping or forcible rape. The jury verdict form indicates Banks was found guilty of both and the evidence was sufficient to convict him of both6.
¶ 12 In a light most favorable to the State, the
evidence established that Banks and Nelson drove in Banks's car to
Travis's apartment complex. Upon Travis's arrival, they forced her
into their car, drove to the Apache Manor Apartments, forced her into
an apartment, vaginally and anally raped her, returned
¶ 13 To convict Banks of malice aforethought murder, the jury had to find that he caused the unlawful death of a human with malice aforethought,7 or aided and abetted another in the commission of the murder with the personal intent to kill, and with knowledge of the perpetrator's intent to kill.8 "Aiding and abetting in a crime requires the State to show that the accused procured the crime to be done, or aided, assisted, abetted, advised or encouraged the commission of the crime."9
¶ 14 Banks argues that the evidence was insufficient because the State did not prove that he either shot Travis or aided and abetted Nelson when he shot her. In his police statement, Banks admitted his presence at all crime scenes, but claimed that Nelson acted unilaterally when he killed Travis.
¶ 15 Banks's admitted presence at the crime scenes is consistent with the evidence. His denials of participation and/or culpability are not. Banks's DNA was found on evidence gathered from the victim's corpse and clothing, establishing his participation in forcible rape. Although the State admits uncertainty over whether Banks or Nelson actually shot Travis, a jury could have believed that Banks had done so — or that he, at a minimum, aided and abetted in the murder — especially given that Banks fingered Nelson as the sole sexual partner. What seems obvious is that Travis was killed to conceal her rapists' identities. Banks was one of the rapists. He may or may not have actually pulled the trigger; if he did not, he may nevertheless have encouraged Nelson to do so. As such, a rational jury could have convicted Banks of malice aforethought murder.
¶ 16 To convict Banks of felony murder, the jury had to find that the victim was killed in the commission of a kidnapping or forcible rape, either of which it could have easily done. To establish kidnapping, the State had to prove that the victim was unlawfully seized and secretly confined against her will.10 To establish forcible rape, the State had to prove that the victim was forced to have intercourse by someone other than her spouse.11
¶ 17 The evidence established that Travis was murdered in the commission of both felonies. Viewing the evidence in a light most favorable to the State, the victim was taken forcibly from her parking lot, as indicated by the car lights and misplaced driving pillow. She was then transported to an apartment, where she was forced to have intercourse, as established by the bruises and semen on her body and the semen found on her clothes. Upon completion of these crimes, the victim was executed on the roadside. All elements of felony murder in the commission of rape or kidnapping were met. The only question for the jury was who committed the crimes.
¶ 18 Banks was one of two perpetrators. He admitted his presence at all relevant locations; it was his car that was used to abduct the victim; it was partly his semen found on the victim's clothing and his semen alone on the vaginal swab.
¶ 19 Banks argues that the DNA evidence was
inaccurate because his brother's DNA was not compared to that obtained
from Travis. Although the DNA experts agreed that a sibling's DNA
could skew statistical results, that observation did not change their
opinion that Banks's DNA matched that obtained from the victim. Banks
also claims that his brother's refusal to testify based upon the Fifth
Amendment supports his brother's possible guilt for these crimes. The
record indicates instead that Walter Banks (1) did not want to
incriminate his brother and (2) did not want to return to his own
prison term labeled a "snitch." Banks
¶ 20 In Proposition VIII, Banks argues that error occurred when the State was allowed to call Walter Banks to testify, knowing he would invoke a Fifth Amendment privilege against self incrimination. The State called Walter Banks to testify. He refused, claiming the Fifth Amendment. During an in camera hearing, Walter Banks reiterated his stance. The trial court informed him that he had no valid Fifth Amendment privilege, and could not refuse to testify. The State then requested that it be allowed to call him to "refresh his recollection" with his prior statement. Banks objected. After hearing argument, the trial court overruled the objection and allowed the State to do so. On direct examination, the State asked Walter Banks ten (10) questions. In response to each one, Walter Banks invoked the Fifth Amendment.
¶ 21 The trial court was correct. Walter Banks had no valid Fifth Amendment privilege to invoke, as it only protects individuals from self-incrimination.12 Here, Walter Banks instead was being called to incriminate his brother. "Regardless of the validity of the claim of privilege, the law requires that the claim [of privilege] be asserted outside the jury's presence, `to the extent practicable.'"13 The trial court knew that Walter Banks would refuse to testify, and would invoke a privilege, but still allowed the State to call Walter Banks before the jury. The State then asked Walter if he knew who killed Sun Travis, and if his brother had told him that he killed Sun Travis. This should not have occurred.
¶ 22 However, allowing Walter Banks to be questioned before the jury is only reversible error if (1) the State crafted its case around inferences arising from privilege invocation or (2) "the witness's refusal to answer questions added critical weight to the State's case in a form not subject to cross-examination."14 The only logical inference from the State/Walter Banks exchange is that Walter knew the answer to both questions and that it was his brother, defendant Anthony Banks, who killed Sun Travis. However, the State did not build its case on this inference nor did it add critical weight thereto.
¶ 23 The State's case was built on DNA evidence and the defendant's own statement. The State never mentioned Walter's refusal to testify again — not even in closing.15 Banks admitted his presence at the victim's abduction, rape, and murder. His statements were corroborated and his participation established by DNA found in and on the victim. We conclude that any error in allowing Walter Banks to be questioned after he attempted to invoke the Fifth Amendment privilege was harmless beyond a reasonable doubt because it did not contribute to the jury's verdict.
¶ 24 In Proposition IV, Banks complains that his
trial was rendered fundamentally unfair by the State's introduction of
other crimes evidence — specifically, three references during opening
and closing arguments to Banks's reason for talking to police about
the Travis murder. The prosecutor told the jury that Banks had given
his statement to get "out of trouble," to get "a break," and to get
"some help from the police."16
None of these comments informed the jury that Banks had committed any
other crimes, and the mere suggestion that he may
¶ 25 In Proposition X, Banks argues that the trial court erred in failing to give separate verdict forms for felony murder and malice aforethought murder. Although this is the better practice, it is not constitutionally required.18 Since the evidence supported Banks's conviction for both felony and malice aforethought murder, the verdict was proper.19 This proposition is denied.
ISSUES RELATING TO SECOND STAGE PROCEEDINGS
¶ 26 In Proposition IV, Banks argues that the trial court erred in overruling his objection to the title, but not contents, of one of the prosecutor's illustrations entitled "Trail of Terror" which detailed Banks's criminal history. The trial court overruled the objection by finding that the title reasonably commented on the evidence and was not unduly prejudicial. Although the illustration was neither admitted into evidence nor included in the record, we review Banks's argument based upon the existing record.
¶ 27 Banks claims that the "Trail of Terror" title was prejudicial and inflammatory. He nevertheless concedes that had the illustration merely included the summary of Banks's past convictions, without the title, it would have been an admissible statement for sentencing purposes. We fail to see how this three-word title was unduly prejudicial, as it fairly commented on Banks's lengthy criminal history.20 This Proposition is denied.
¶ 28 In Proposition IX, Banks claims that his death sentence must be overturned because the jury was allowed to sentence him to death without determining his culpability for felony murder. To be so sentenced, at minimum Banks had to have participated in the underlying felonies and displayed reckless indifference to human life.21 Banks's jury made this finding because it was instructed that it could not impose the death penalty without finding beyond a reasonable doubt that Banks either: "1) killed a person, 2) attempted to kill a person, 3) intended a killing take place, 4) intended the use of deadly force, or 5) was a major participant in the felony committed and was recklessly indifferent to human life."22 Moreover, an appellate court may also make this finding.23
¶ 29 The evidence established that the State met the minimum two-part test. Banks participated in Sun Travis's abduction and rape, and transported her to the murder scene. While it remains unclear who actually shot Travis, it is very clear that either Nelson or Banks did, and just as likely to have been Banks as the person he self-servingly named as the perpetrator. Moreover, even if it was not Banks, he intended Travis's death to conceal his participation in her rape. We find that Banks was a major participant in Travis's kidnapping and rape and at a minimum intended her death. Accordingly we find no error.24 This Proposition is denied.
¶ 31 First, we see no reason to change our prior ruling finding the previous violent felony aggravating circumstance constitutional.26 In any event, Banks was not entitled to a Brewer hearing regarding his previous first degree murder conviction; its underlying facts were properly introduced to support the continuing threat aggravating circumstance.
¶ 32 In its Amended Bill of Particulars, the State asserted four aggravating circumstances including the continuing threat and previous violent felony aggravating circumstances. The State also notified Banks that his convictions for two counts of Robbery with a Dangerous Weapon would be used to support the previous violent felony aggravating circumstance. Pursuant to Brewer, Banks stipulated that these convictions were for violent felonies. Banks's other felony convictions, including his first degree murder conviction, were used to support the continuing threat aggravating circumstance.
¶ 33 Banks asserts that he should also have been allowed to stipulate to his first degree murder conviction to prohibit the State from introducing its underlying facts into evidence. This claim lacks merit as Banks's prior first degree murder conviction was not used to support the previous violent felony aggravating circumstance. Even had it been, the State could have presented its underlying facts to support the continuing threat aggravator.27 This Proposition is denied.
¶ 34 In Proposition XIV, Banks argues that the evidence was insufficient to support the aggravating circumstance that the Travis murder was committed to avoid or prevent lawful arrest or prosecution. We review the evidence of this aggravator for proof of a predicate crime, separate from the murder, for which the defendant is attempting to avoid prosecution.28 Consideration is given to the circumstantial evidence to determine if "any reasonable hypothesis exists other than the defendant's intent to commit the predicate crime."29
¶ 35 Here, the evidence indicated that Travis was raped and kidnapped, that both Banks and Nelson committed these crimes, and at least intended her death.30 Further, the only reasonable hypothesis for Travis's murder was that it was done to prevent her from identifying her assailants and instigating their arrest or prosecution for kidnapping and rape. The evidence was sufficient, and this Proposition is denied.
¶ 36 In Proposition XV, Banks alleges that the
trial court erred in overruling his Motion to Strike the "heinous,
atrocious and cruel" aggravating circumstance for insufficient
evidence, and that the trial evidence failed to support the jury's
finding that it existed. We review the evidence presented at trial in
a light most favorable to the State to determine if the victim's death
was
¶ 37 The trial judge correctly overruled the motion and determined that the evidence was sufficient. While conscious, and before her execution, Sun Travis was kidnapped, physically assaulted, and raped and sodomized by Banks and Nelson.32 Her ordeal lasted over two hours. Such evidence was sufficient to prove extreme mental and physical suffering and constituted serious physical abuse and torture. Thus, we find that the evidence supported the jury's finding of the "heinous, atrocious and cruel" aggravating circumstance. This Proposition is denied.
¶ 38 In Proposition XI, Banks claims that the trial court erred in denying his Motion to Quash Bill of Particulars and Declare the Death Penalty Unconstitutional. Banks specifically asserts that the death penalty is unconstitutional because a bill of particulars is filed solely at the prosecutor's discretion without a finding of probable cause. In previously rejecting this argument, this Court found that the combination of the Oklahoma statutes and case law provide adequate guidelines to direct the prosecutor in deciding whether to pursue the death penalty.33 This Proposition is denied.
¶ 39 In Proposition XII, Banks ask this Court to reconsider its previous ruling upholding the constitutionality of Oklahoma's death penalty scheme and its previous decision finding that the sentencing procedure does not offend the Oklahoma Constitution because it requires a jury to make special findings of fact. Banks offers no compelling justification for our doing so, either in his brief or in his motions filed in the trial court. Thus, we find no reason to overrule our previous decisions.34
¶ 40 In Proposition XVIII, Banks claims that given his minority and indigent status, his execution would violate the Constitution. Banks's argument fails. Nothing in the record suggests that his race or poverty contributed to the jury's conviction. The trial and sentencing were conducted in accordance with Oklahoma law. Oklahoma's capital punishment system is constitutional and to the extent possible, assures that the death penalty will only be assessed against "criminals whose crimes set them apart from `any other murder.'"35
ISSUES RELATING TO FIRST AND SECOND STAGE PROCEEDINGS
¶ 41 In Proposition VII, Banks alleges eight separate instances where he was denied a fair trial due to prosecutorial misconduct. Most of the alleged misconduct was not objected to, waiving all but plain error.36 We note that both parties may freely discuss, during argument, reasonable inferences from the evidence; error only occurs if a grossly unwarranted argument affects the defendant's rights.37
¶ 42 Banks first claims that the prosecutor improperly evoked sympathy for the victim. The argument, not objected to, accurately described the victim's rape and brutal death. This fairly characterized the evidence. There was no error.
¶ 44 Banks finds particular grievance in what he terms the prosecutor's "improper disparagement" of defense counsel. The prosecutor argued that one of Banks's defense theories was "likely born in these lawyers's offices last night," that focusing the jury's attention away from the circumstantial evidence of Banks's guilt was "one of the oldest tricks in the book for defense counsel," and that the "game here is to say we [the state] haven't done anything ... haven't presented any evidence, haven't done this, haven't done that ... to somehow divert your attention from the focus of this case." These comments were not particularly egregious and may be viewed as challenging Banks's defense in light of the evidence.38
¶ 45 Banks's most meritorious claim is that the prosecutor improperly commented on his invocation of the right to silence. The prosecutor stated that Banks had not "come forward to be accountable for what has taken place." Immediately after an objection was overruled, the prosecutor stated "[y]ou judge that, on the conversion and what that means, and the fact that he has not been held accountable or has said anything, even remotely — willing to come forward and say what happened." Banks again objected, and the court admonished the jury to disregard the prosecutor's statement.
¶ 46 The comments were improper. However, given their quick succession, we find that the trial court's admonishment cured any error from either comment.39 Additionally, we find that these comments in second stage argument did not contribute to the jury's sentencing decision as the aggravating circumstances outweighed mitigating circumstances.
¶ 47 Along this vein, Banks charges that the prosecutor improperly built its case around inferences arising from Walter Banks's testimony. We resolved this argument in Proposition VIII and see no reason to revisit it here.
¶ 48 Finally, with respect to this proposition, Banks asserts that all unobjected-to comments were plain error, which when taken cumulatively mandate relief. We find that whether proper or improper, standing alone or together, objected-to or not, no prosecutorial comment prejudiced Banks or affected his substantial rights. This Proposition is denied.
¶ 49 In Proposition V, Banks claims that his trial counsel was ineffective. To prevail on this claim, Banks must counteract our presumption that trial counsel's representation was reasonable and based upon sound trial strategy40 with proof that "counsel's performance was deficient and that he was prejudiced as a result."41 To show prejudice, Banks must establish that absent the alleged errors, the outcome of his case would have been different.42
¶ 50 First, Banks alleges ineffective assistance in trial counsel's failure to object to alleged prosecutorial misconduct. Under Proposition VII, the asserted misconduct was either not error or was cured by admonishment, and was not prejudicial. Banks cannot establish deficient performance or prejudice.
¶ 51 Second, Banks alleges ineffective assistance
in trial counsel's failure to object to inadmissible other crimes
evidence. Proposition
¶ 52 Third, Banks claims ineffective assistance in trial counsel's failure to compare brother Walter Banks's DNA to that found in and on Travis. Banks relies on the two DNA experts' testimony that sibling DNA results could skew overall statistics, and claims that the comparison could indicate his brother's guilt and his own innocence. This seems unlikely given Banks's admitted presence at the crime scenes.
¶ 53 Moreover, such comparison would have hindered counsel's cross-examination of the DNA experts and further incriminated Banks by removing counsel's ability to question the reliability of the DNA results and create reasonable doubt over Banks's guilt. As this was reasonable trial strategy, we find that trial counsel did not provide ineffective assistance at trial.43
¶ 54 In Proposition XIX, Banks claims that accumulation of error requires relief. We have determined that the individual errors in Propositions VII and VIII do not require relief, either individually or in the aggregate.44
MANDATORY SENTENCE REVIEW
¶ 55 In Proposition XVI, Banks argues that his death sentence must be vacated because at trial the mitigating evidence outweighed the aggravating evidence. Additionally, in Proposition XVII, he argues that his death sentence was imposed as a result of passion, prejudice and arbitrary factors. We consider these arguments together. In so doing, we determine whether a rational trier of fact could find sufficient evidence that the aggravating circumstances outweighed mitigating circumstances.45 Additionally, as part of the mandatory sentence review, we consider (1) whether the death sentence was imposed under the influence of passion, prejudice or other arbitrary factor, and (2) whether the aggravating circumstances were supported by sufficient evidence.46
¶ 56 The jury was instructed on eleven specific mitigating circumstances that were supported by the evidence,47 and also instructed to consider "any other" mitigating circumstances that were present. By contrast, the jury found three of the four alleged aggravating circumstances,48 all supported by the evidence as explained above.49 After reviewing the record, the evidence establishes that the aggravating circumstances outweighed the mitigating circumstances and that the jury was not influenced by passion, prejudice or any arbitrary factors.
DECISION
¶ 57 The Judgment and Sentence is
LUMPKIN, P.J., and LILE, J., concur in results.
LUMPKIN, J.: Concurring in Result.
¶ 1 I concur in the result reached in this opinion, but disagree with some of the analysis used.
¶ 2 First, the Court, in its discussion of
Proposition I, uses aider and abettor language from Torres v.
State,
¶ 3 Second, with respect to Proposition VIII, I
find the present situation distinguishable from those presented in
Jackson v. State,
¶ 4 Third, I disagree with the Court's use of a
"reasonable hypothesis" analysis in its review of the sufficiency of
the evidence supporting the aggravating circumstance of a murder
committed to avoid or prevent lawful arrest or prosecution. The Court
continues to use this analysis in its review of evidence introduced in
both the guilt stage and in second stage proceedings, and I continue
to object to it, as I did in Wackerly v. State,
¶ 5 Finally, upon review of "Appellant's 3.11 Motion to Supplement and Application for Evidentiary Hearing", I agree with the Court's decision to deny the application. The motion does not comply with Rule 3.11, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2000) in that it sets out what is hoped to be discovered at an evidentiary hearing rather than evidence which has already been discovered and Appellant desires to submit for inclusion in the record. Speculation is not "sufficient information to show this Court by clear and convincing evidence there is a strong possibility trial counsel was ineffective for failing to utilize or identify the complained of evidence". See, Rule 3.11(B)(3)(6)(i).
FOOTNOTES
United States Court of Appeals
For the Tenth Circuit
Banks v. Workman
Anthony Rozelle BANKS, Petitioner–Appellant,
v.
Randall WORKMAN, Warden, Oklahoma State Penitentiary, Respondent–Appellee.
No. 10–5125.
September 05, 2012
Before MURPHY, O'BRIEN, and GORSUCH, Circuit Judges.
Thomas D. Hird, Assistant Federal Public Defender, Oklahoma City, OK, (Randy A. Bauman, Assistant Federal Public Defender, with him on the briefs) for Petitioner–Appellant Anthony Banks.Jennifer B. Miller, Assistant Attorney General for the State of Oklahoma, Oklahoma City, OK, (E. Scott Pruitt, Attorney General for the State of Oklahoma, with her on the briefs) for Respondent–Appellee Randall Workman.
After Sun Travis was abducted, raped, and shot dead, an Oklahoma jury found Anthony Banks, by that time already in prison for another killing, guilty of murdering Mrs. Travis and sentenced him to death. After an unsuccessful direct appeal and two rounds of collateral review in state court, Mr. Banks filed a federal habeas petition. The district court denied his petition but granted him a certificate of appealability to pursue several arguments before this court. After careful review and in accord with the decisions of all the courts that have preceded us, we hold none merits relief.
I
A
Mrs. Travis, a Korean national, met her future husband when he was serving in the American military on deployment in Korea. The two married and moved to Tulsa, where it appears they lived happily. That is, until one day in 1979 when Mrs. Travis was kidnaped on her way back from work. The next time Mr. Travis saw his wife, she was dead.
At first, the police knew very little. Mrs. Travis's husband was at home preparing dinner when he looked out the window and saw his wife's car pull into the apartment complex's parking lot, apparently followed by another vehicle. After several minutes passed and she didn't come inside, he went out to check on her. She was nowhere to be seen. Mr. Travis sensed something was amiss because the car was parked at an odd angle with the headlights still on and the driver's door open. The pillow that Mrs. Travis kept on the driver's seat was lying in the street.
The next morning, a fuller picture emerged. A man on a tractor discovered Mrs. Travis's body in a roadside ditch. She had suffered a gunshot wound to the head, and her face bore recent bruises. Her blouse was missing and her panties were ripped and lying by her feet. The medical examiner found semen on her clothing, in her vagina, and in her anus. Still, the police had no leads for months.
But finally Anthony Banks approached investigators with information, hoping he could use it to secure lenient treatment for unrelated robbery charges. On his account, he was present during the crime but his friend, Allen Nelson, was responsible. Mr. Banks claimed he was giving Mr. Nelson a ride across town when Mr. Nelson asked him to pull over at what turned out to be Mrs. Travis's apartment complex. According to Mr. Banks, Mr. Nelson left the car and spoke for a few minutes with Mrs. Travis. The pair then returned to the car together and Mr. Nelson asked Mr. Banks to drive to a nearby apartment complex. Once there, Mr. Banks stayed in the car drinking beer while the other two went inside. Eventually, they got back on the road and drove until Mr. Nelson told Mr. Banks to pull over. It was then, according to Mr. Banks, Mr. Nelson took his victim out of the car and shot her in the head. As they were driving away, Mr. Nelson noticed Mrs. Travis's blouse and purse lying in the back seat and asked Mr. Banks to pull over again so that he could discard them in a nearby storm drain. Mr. Banks disavowed any participation in the killing and claimed he was simply along for the ride.
Despite Mr. Banks's statement, the local authorities felt they didn't have enough evidence to charge either Mr. Banks or Mr. Nelson with the crime. And so the case went cold.
B
Nearly two decades passed before a police investigator decided in 1997 to take a fresh look at the case with the help of DNA testing. DNA testing by two different analysts revealed that the seminal fluid in Mrs. Travis's crotch area matched Mr. Banks's DNA, the fluid found in the rectal area matched Mr. Nelson, and the semen on her pants was a mixture of the two men's DNA. One of the analysts said the likelihood of a random African American individual matching the DNA sequence attributed to Mr. Banks was on the order of 1 in 300 billion.
Armed with this evidence, the State of Oklahoma brought murder charges against Mr. Banks and Mr. Nelson. Because each defendant had made incriminating statements about the other, the court granted a motion to sever. At Mr. Banks's trial and in a single disjunctive charge, the government alleged that he committed first degree murder with malice aforethought and first degree felony murder in the course of rape and kidnaping. At trial, the prosecution introduced all the evidence sketched out above and the jury found Mr. Banks guilty of first degree murder, though its verdict didn't specify whether it found him guilty of murder with malice aforethought or felony murder—or perhaps both.
At the sentencing phase, the government argued death was an appropriate penalty because of the presence of four aggravating factors: (1) Mr. Banks posed a continuing threat to society; (2) the murder was especially heinous, atrocious or cruel; (3) the murder had been committed to avoid lawful arrest or prosecution; and (4) Mr. Banks had prior violent felony convictions. With respect to the first two aggravators, the government rested primarily on the evidence presented during the guilt phase. For the final, prior violent felony aggravating factor, the prosecution showed that Mr. Banks had been convicted of no fewer than eight prior violent felonies: several armed robberies, burglaries, an attempted prison escape, assault and battery, and another murder.1 And to support its claim Mr. Banks murdered Mrs. Travis to avoid being identified and arrested for the rape, the government introduced evidence that Mr. Banks's previous murder victim, too, had been shot in the head after witnessing Mr. Banks commit a crime (there, the robbery of a convenience store). Mr. Banks's ex-wife testified that Mr. Banks came to her the night of the first murder and told her that he had killed his victim because “dead men tell no tales,” and that he “never shoot[s] below the neck.”
The defense's mitigation strategy at the sentencing phase was to try to show that Mr. Banks had psychological problems and a troubled childhood, but that his condition improved greatly over the many years he had (by that point) lived in prison. Mr. Banks's mother and father testified that Mr. Banks had been abused as a child and put out on the street when he was fifteen. At one point, Mr. Banks's father put a gun to his son's head and threatened to “blow [his] head off” for violating the rules at his father's night club. The defense also presented testimony by a clinical psychologist, Philip Murphy, who said that Mr. Banks suffered from severe psychopathy at the time of the murder. According to Dr. Murphy, the structured environment of prison had changed Mr. Banks so that he no longer posed a significant danger to others. Corrections officers likewise testified that Mr. Banks was a model inmate and the prison chaplain stated Mr. Banks had undergone a genuine religious conversion.
In the end and despite the defense's efforts, the jury voted unanimously to impose the death penalty. The jury found the mitigating circumstances outweighed by three of the four aggravating factors charged by the government—finding that the murder was committed to avoid a lawful arrest; that the murder was especially heinous, atrocious or cruel, and that Mr. Banks had prior violent felony convictions.
The Oklahoma Court of Criminal Appeals (OCCA) denied relief to Mr. Banks in his direct appeal and in his two subsequent state post-conviction petitions. Mr. Banks then filed a federal habeas petition, which the district court denied in a ninety page opinion. Because the district court granted Mr. Banks's motion for a certificate of appealability on a number of issues, the case now comes to us, requiring us to assess whether the government violated his rights under the Confrontation Clause and its duty to disclose exculpatory evidence (Part II); whether the government failed to produce exculpatory evidence (Part III); whether Mr. Banks's due process right to a competent expert and his Sixth Amendment right to effective assistance of counsel were infringed (Part IV); whether various instances of alleged prosecutorial misconduct rendered his trial fundamentally unfair, in violation of the Fourteenth Amendment (Part V); and whether cumulatively any errors here warrant relief (Part VI).
II
Mr. Banks first claims that his conviction violated his rights under the Sixth Amendment Confrontation Clause. We agree with both the OCCA and the district court that the admission of the challenged testimony was harmless, and explain our reasons first with respect to the guilt and then the sentencing phase.
A
The Confrontation Clause challenge stems from the government's decision to call Mr. Banks's brother, Walter Banks, as a witness at trial. Apparently, Walter was at one point long ago facing (unrelated) criminal charges of his own, and hoping for favorable treatment he told police his brother had admitted to shooting Sun Travis. But by the time of the Travis murder trial, nearly twenty years later, Walter wasn't talking. In a hearing outside the presence of the jury, Walter made abundantly clear that he planned to take the Fifth. The judge informed him that he had no valid Fifth Amendment privilege to claim and could be held in contempt for failing to testify. But Walter told the judge this fazed him not at all, since he too was already serving a life sentence. Even so and over Mr. Banks's objection, the judge allowed the prosecution to call Walter to the stand in front of the jury. As promised, Walter refused to answer even the most innocuous of questions, but still the government inched closer to the point, asking whether Walter ever had a conversation with police about the Travis murder. Again, no response. Finally, the government just came out with it: “Did your brother tell you that he killed Sun Travis?” Predictably, Walter remained silent.
Mr. Banks contends that this line of questioning violated his Confrontation Clause rights because it created a powerful inference that Mr. Banks was the shooter and had admitted to the killing, and did so in a form not subject to cross-examination. See Aplt. Br. at 13 (citing, inter alia, Douglas v. State of Ala., 380 U.S. 415, 419–20, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965)). The OCCA found that the prosecutor's line of questioning was constitutionally improper, a holding that Oklahoma doesn't challenge in these federal habeas proceedings. Banks v. State, 43 P.3d 390, 398 (Okla.Crim.App.2002).
Instead, Oklahoma asks us to uphold the OCCA's determination that any impropriety in this line of questioning was harmless. When reviewing state court determinations that a constitutional error was harmless, we ask whether the error had a “substantial and injurious effect” on the jury's decision. Fry v. Pliler, 551 U.S. 112, 119–20, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007). This standard precludes reversal of a conviction on habeas unless we have a “grave doubt” about the effect of the error on the verdict. Welch v. Workman, 639 F.3d 980, 992 (10th Cir.2011).
We cannot say that the conceded error leaves us in “grave doubt” about the outcome in this case. The evidence for the felony murder charge was overwhelming. The circumstantial evidence showed Mrs. Travis had been forcibly kidnaped and raped. The scene of the parking lot complex wasn't consistent with any theory that Mrs. Travis entered Mr. Banks's vehicle voluntarily: her car's headlights were on, the door was open, and her seat pillow was lying in the street. The physical evidence—her missing blouse, her torn panties, and the recent bruising on her face—is difficult to reconcile with a claim of consensual intercourse. And the evidence of Mr. Banks's participation in the kidnaping and rape was strong. By his own admission, Mr. Banks was present at the scene of both the abduction and the killing. The DNA evidence directly contradicted Mr. Banks's denial of participation in the rape. And, as the OCCA pointed out, after asking Walter about his admission the prosecution never returned to it and never tried to build its case out of any inference from his refusal to testify. Given all this, we have no trouble concluding that, as to the felony murder charge, the error was harmless.
Mr. Banks insists all this is academic. Academic because we are not permitted to separate the felony charge from the malice aforethought murder allegation where, he claims, the error surely was harmful. All this is so, he says, because the felony murder and the malice aforethought murder charges were brought in a single disjunctive count. Relying on Yates v. United States, 354 U.S. 298, 312, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957), overruled on other grounds by Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), he claims that an error harmful with respect to one of two disjunctive charges requires the reversal of the whole conviction, at least where (as here) there is no definitive way to tell from the jury's verdict which of the two charges provided the basis for its conviction.
Whether Yates applies to evidentiary error (as opposed to erroneous jury instructions) is an unresolved legal question and one we need not decide today. Mr. Banks never presented a Yates argument to the OCCA or to the district court. In both proceedings he argued only in general terms that the inference he was the shooter prejudiced him in the minds of the jury. ROA at 60–62; OCCA Br. at 70–73. He neither cited Yates nor argued that harmfulness with respect to the malice aforethought charge independently required reversal. And this is doubly problematic. His failure to present the issue to the district court means we must apply the plain error standard. Richison v. Ernest Group, Inc. ., 634 F.3d 1123, 1130–31 (10th Cir.2011). Even more fundamentally, his failure to present a Yates claim either on direct appeal or his state habeas petition means the claim is procedurally defaulted. Okla. Stat. tit. 22 § 1089(D)(8). And that, of course, is enough to preclude our review of the issue altogether absent any reason to excuse the default. See Magar v. Parker, 490 F.3d 816, 819 (10th Cir.2007). But even overlooking all this, we still don't have to resolve whether Yates applies to evidentiary errors. We don't because, even assuming it does and even assuming Mr. Banks had preserved it, it fails on the merits. That's because any error was harmless even with respect to the malice aforethought murder charge.
To prevail on its malice aforethought charge, the State did not have to prove that Mr. Banks was the triggerman. Conover v. State, 933 P.2d 904, 915 (Okla.Crim.App.1997). Instead, as the jury was instructed, Mr. Banks could be held liable under an aiding and abetting theory, a theory requiring proof only that he actively aided, promoted, or encouraged the murder and did so with the requisite mens rea. See Oklahoma ROA at 462–63 (trial court instructing the jury that “[t]o aid or abet ․ implies a consciousness of guilt in instigating, encouraging, promoting, or aiding in the commission of th[e] criminal offense”).
And for reasons we have already explained, there's ample evidence of that. By his own admission, Mr. Banks drove the vehicle to the site of the abduction. He participated in the rape. He drove the car to the site of the murder and then to the storm drain where Mr. Nelson disposed of the evidence. Although Mr. Banks would have us believe that Mr. Nelson killed her and that he was ignorant of and didn't share his cohort's intent to kill, a far more reasonable inference from the facts was that Mr. Banks (if he was not the triggerman) encouraged and purposefully helped facilitate the slaying in order to cover up the abduction and rape. When all this is taken together with the fact the state never again mentioned Walter's testimony, we simply cannot say we have a “grave doubt” about the effect of the error on either aspect of his murder conviction.2
B
Mr. Banks protests that the error of allowing the prosecutor to question Walter about his putative admission must have swayed the jury at the penalty phase even if it was harmless at the guilt stage. Specifically, Mr. Banks claims that jurors are unlikely to impose a death sentence on a felony murder defendant who did not actually pull the trigger, and so the implication from Walter's testimony must have weighed in the jury's mind at sentencing. And, as Mr. Banks points out, all he needs to demonstrate at this stage is a significant doubt that the error would have swayed even one juror to select the death penalty. James v. Gibson, 211 F.3d 543, 554 (10th Cir.2000). Even so, we see no room for such doubt here.
The first trouble with Mr. Banks's argument is that his strategy at sentencing didn't involve seeking to mitigate Mr. Banks's role in the crime or suggest some residual doubt about it. See Tr. at 1091, 1093, 1096. Instead, the defense strategy at sentencing focused entirely on Mr. Banks's family history, his mental health problems, and his behavioral improvement over the years he had spent in prison since the murder. Defense counsel never argued that the jury should spare Mr. Banks's life because he wasn't the triggerman. Given counsel's failure to argue a residual doubt theory—which itself is an unchallenged and a surely reasonable strategic choice in this case—it's hard to see how the error could have swayed the outcome of the sentencing proceeding. See Matthews v. Workman, 577 F.3d 1175, 1182 (10th Cir.2009). Neither does Mr. Banks provide anything but speculation to support his claim that, absent the claimed error, counsel would have proffered a residual doubt defense.
What's more, Mr. Banks's claim that felony murder defendants who aren't actually triggermen rarely get the death penalty rests on a misreading of Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982). In Enmund, the Supreme Court held that the Eighth Amendment prohibited execution of a defendant whose only participation in the underlying felony was driving the getaway vehicle. Id. at 788. The Court emphasized that the defendant “did not commit the homicide, was not present when the killing took place, and did not participate in a plot or scheme to murder”—and that in such circumstances, jurors rarely impose the death penalty. Id. at 795. But later case law has made clear that capital punishment for felony murder charges is both constitutional and not infrequently imposed when the defendant was present during the murder and acted with reckless disregard for human life. Tison v. Arizona, 481 U.S. 137, 151–58, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987).
As we have seen, the evidence in this case of Mr. Banks's reckless disregard for Mrs. Travis's life is potent. The evidence at the guilt phase strongly supported the government's theory that Mr. Banks intended Mrs. Travis's death to cover up the abduction and rape. And that evidence was buttressed at the penalty phase by testimony from Mr. Banks's ex-wife explaining that he had shot the cashier of a store he robbed precisely because “dead men tell no tales.” And that he had shot the cashier in the head (just as Mrs. Travis was shot in the head) because he “do[esn't] shoot below the neck.” All of this suggests that Mr. Banks was the one who shot Mrs. Travis in the head, and that at the very least he intended Mrs. Travis's death to ensure she would not later identify him.
Finally, the jury found a number of aggravating factors in this particular case justifying its death sentence, and all were amply supported by the evidence. First, it found he had been convicted of prior violent felonies, an unassailable conclusion given Mr. Banks accumulated no fewer than eight prior violent felonies ranging from armed robbery to assault and battery to another first degree murder conviction. Second, the jury found the murder was committed to avoid lawful arrest and prosecution, a conclusion amply supported both by the circumstances of the crime itself and Mr. Banks's comments to his ex-wife. And third, the jury found the murder was especially heinous, atrocious, or cruel—a finding difficult to dispute given that Mrs. Travis was kidnaped, raped, and sodomized all before being shot in the head and left in a roadside ditch. We have no serious doubt that the jury's assessment of any of these factors would have been different if the government had never put Walter Banks on the stand. And because the challenged testimony did not relate at all to the defense's mitigation case, we likewise find it difficult to see how the jury's assessment of the balance between these aggravators and the mitigating circumstances would have been any different.
III
Separately, Mr. Banks claims that the prosecution violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Mr. Banks's challenge relies upon the state's failure to disclose a note written by a corrections officer who interviewed Mr. Nelson's mother. The officer wrote that “she told [me] that [Nelson] told her Anthony Banks was the brother to one who did the murder but was not sure.” Mr. Banks argues that this evidence would have given him an opening to pin the murder on his brother Walter during trial.
The OCCA denied Mr. Banks's Brady claim on the merits after concluding the note was immaterial. To prevail on a Brady claim, it is the defendant's burden to show “a reasonable probability that, had the [exculpatory] evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Burke, 571 F.3d 1048, 1053 (10th Cir.2009) (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). This materiality showing, the OCCA said, Mr. Banks failed to make given the remaining evidence in the record against him.
Everyone before us seems to acknowledge this decision is entitled to AEDPA deference, at least with respect to the materiality of the note to the guilt phase. Under AEDPA, of course, we may lawfully overturn the OCCA decision only if there was no “reasonable basis for the state court to deny relief.” Harrington v. Richter, ––– U.S. ––––, ––––, 131 S.Ct. 770, 784, 178 L.Ed.2d 624 (2011) (discussing 28 U.S.C. § 2254(d)). At the same time, however, the parties dispute whether the OCCA's decision passed on the materiality of the note to the sentencing portion of Mr. Banks's trial. But in the end nothing hinges on this dispute. Whether viewed through AEDPA's deferential lens or de novo, the note was immaterial to either phase of the proceedings. The nub of the problem is that evidence cannot qualify as material without first being admissible or at least “reasonably likely” to lead to the discovery of admissible evidence. Wood v. Bartholomew, 516 U.S. 1, 8, 116 S.Ct. 7, 133 L.Ed.2d 1 (1995). Yet the note at issue here is neither of these things.
First, the note is inadmissible because it contains not one but two layers of hearsay. Mr. Nelson told his mother, who in turn told a corrections department official, that Mr. Banks's brother committed a murder. And the Oklahoma hearsay rules, virtually identical to federal rules, prohibit the introduction of hearsay statements for their truth unless they fall within specifically enumerated exceptions inapplicable here. See Okla. Stat. tit. 12 §§ 2801–05.
None of those exceptions pertains here. And for good reason. The note's meaning is far from clear. After all, there were two murders that Mr. Banks was involved in: the one at issue in this case, and also the murder of Daniel Fremin during a convenience store robbery. Mr. Fremin's murder was, we know, committed by both Banks brothers. See Banks v. Reynolds, 54 F.3d 1508, 1511–13 (10th Cir.1995). And the note doesn't make it clear whether in speaking of “the murder” Mrs. Banks was referring to the Travis murder or the Fremin murder. In fact, given that Walter Banks was indisputably involved in the Fremin murder but no other evidence whatsoever (including the defendant's own account of events) places Walter at the scene of the Travis's murder, it would be reasonable to infer that the note was referring to former, not the latter, murder. And this is precisely the sort of ambiguity the rule against hearsay is designed to avoid introducing into trials.
Mr. Banks replies that the note would have been useful at least to impeach witnesses against him, but he fails to identify any witness he might have impeached. Certainly not Mr. Nelson, who invoked his Fifth Amendment rights and never took the stand. And certainly not the DNA experts, who were never asked to testify whether Mr. Banks or his brother Walter was the likely killer: all they testified to was that the DNA found at the crime scene matches Mr. Banks and that it is unlikely to match another randomly selected individual. Indeed, the experts freely acknowledged that if a sibling were a suspect further testing would be required. The note thus undercuts none of their testimony, and its usefulness to Mr. Banks could only be for its truth, not its impeachment value. See United States v. Phillip, 948 F.2d 241, 250 (6th Cir.1991) (exculpatory statements were immaterial because they were inadmissible hearsay that “could be useful to the defendant only if offered for their truth”).3
Pursuing that point, Mr. Banks next replies that the note might have been admissible for its truth in at least the sentencing phase where evidentiary rules are often laxer. But in Oklahoma the rules prohibiting hearsay apply with equal force in the penalty phase of a capital case. Conover, 933 P.2d at 921. No doubt, due process may sometimes command the relaxation of state evidentiary rules that exclude highly probative evidence and thereby render the trial fundamentally unfair. See Paxton v. Ward, 199 F.3d 1197, 1213–15 (10th Cir.1999). But in Paxton and the Supreme Court cases upon which it relies, the evidence was far more reliable than the evidence we have here.
Those cases involved the exclusion of a defendant's polygraph examination that had previously persuaded the district attorney to drop charges, Paxton, 199 F.3d at 1216–17, or testimony supported by other corroborating evidence, Rock v. Arkansas, 483 U.S. 44, 62, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987), or statements the state had previously relied upon heavily in its case against a co-defendant, Green v. Georgia, 442 U.S. 95, 97, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979). Here, by contrast, we have only a highly equivocal and entirely uncorroborated double-hearsay statement. It is, as well, a statement inconsistent with the defendant's own statements, statements he asked the jury to credit as true and continues to ask this court to credit. By Mr. Banks's admission, he was present at the abduction and the killing of Mrs. Travis. He claims only that the rape and killing were entirely Mr. Nelson's doing and at no point has he suggested Walter was present. Neither does any other evidence in the case even hint at Walter's involvement. In these circumstances, we are directed to no due process principle or precedent that might command the admission of the warder's double-hearsay note.
Without any persuasive argument the note would have been admissible, Mr. Banks suggests the note at least might have led to the discovery of admissible evidence. But the record is devoid of any admissible evidence the defense might have uncovered had they known about the note before trial. And the burden of presenting such evidence lies with Mr. Banks. What's more, it's hard to see how the note would have tipped off Mr. Banks to any leads of which he was not already aware of. After all, by Mr. Banks's admission, he was present at the scene of the crime. If (contrary to Mr. Banks's version of events) Walter had been present, Mr. Banks would have known that without need of the note. And so we are left with nothing but speculation that the note might have led the defense to other pertinent information, a possibility that falls short of satisfying the materiality standard. See Wood, 516 U.S. at 6.4
IV
Mr. Banks next turns his focus to the penalty phase where, he claims, his expert witness showed up to court intoxicated. The trial transcript reveals nothing unusual. But according to affidavits submitted by Mr. Banks's lawyers, clinical psychology expert Dr. Philip Murphy had alcohol on his breath, appeared disheveled, showed up in wrinkled clothing, and spoke in a “halting and unimpressive” manner that was uncharacteristic of the normally well-spoken doctor. The problem was allegedly so obvious the trial judge allegedly commented that Dr. Murphy appeared to be “a drinking man.” Mr. Banks argues that Dr. Murphy's unprofessional appearance torpedoed his credibility in front of the jury, and yet his lawyers never bothered to seek a continuance so the witness could sober up. All of this, Mr. Banks contends, violated his due process right to a competent mental health expert and his Sixth Amendment right to effective assistance of counsel.
The courts to come before us have not considered the merits of Mr. Banks's arguments. They have not because, according to them, Mr. Banks waited too long to raise it. He did not object at trial, did not argue the point on appeal, and failed to include the issue in his first state post-conviction motion. By the time he asserted the claim in his second state habeas petition, the OCCA held the claim was procedurally defaulted. In doing so, the OCCA relied on Okla. Stat. tit. 22 § 1089(D)(8), which allows new claims to be raised in a second or successive habeas petition only if they are based upon newly discovered evidence or if the “legal basis for the claim was [previously] unavailable.”
When a state court dismisses a federal claim on the basis of noncompliance with adequate and independent state procedural rules, federal courts ordinarily consider such claims procedurally barred and refuse to consider them. Clayton v. Gibson, 199 F.3d 1162, 1170–71 (10th Cir.1999). A federal court will excuse compliance with state procedural rules only if the petitioner can show good cause and prejudice or establish that our refusal to consider the merits of the claim would result in a “fundamental miscarriage of justice.” Id. Mr. Banks argues we should excuse his default because § 1089(D)(8) is neither adequate nor independent, or, alternatively, because he has shown cause and prejudice for the default. We discuss these submissions in turn.
A
In order to bar federal review, a state procedural rule must be adequate to support the judgment and independent from federal law. These dual requirements seek to ensure state rules are not employed to defeat federal court review of constitutional rights. To satisfy the adequacy element, a state procedural rule must be “strictly or regularly followed” and applied “evenhandedly to all similar claims.” Duvall v. Reynolds, 139 F.3d 768, 796–97 (10th Cir.1998) (quotation omitted). We have repeatedly held that Oklahoma's procedural default rule meets the adequacy requirement. See, e.g., Spears v. Mullin, 343 F.3d 1215, 1254–55 (10th Cir.2003); Cannon v. Gibson, 259 F.3d 1253, 1266 (10th Cir.2001). In Spears, the court found just two cases where the OCCA granted relief on a second or successive post-conviction petition that did not fall within one of § 1089(D)'s enumerated exceptions. Spears, 343 F.3d at 1254. Although Mr. Banks points to several cases decided since Spears that he believes change the calculus, we just recently considered the effect of these very same cases and concluded that the Oklahoma bar remains adequate. See Thacker v. Workman, 678 F.3d 820, 835–36 (10th Cir.2012). We are of course bound by that decision.
We must likewise reject Mr. Banks's independence objection. A state procedural rule is independent “if it relies on state law, rather than federal law, as the basis for the decision.” English v. Cody, 146 F.3d 1257, 1259 (10th Cir.1998). In Mr. Banks's case, the OCCA relied only upon the state procedural rule in § 1089(D)(8) to deny relief. Because § 1089 is purely a state law rule, we have held that Oklahoma decisions resting entirely upon § 1089(D)(8) are independent. See Thacker, 678 F.3d at 835.
Even so, Mr. Banks argues that the independence analysis is more complicated than it first appears. More complicated because Oklahoma courts have implied a discretionary exception to their procedural rule, one that according to Mr. Banks involves passing judgment on the merits of the federal claim. In support of this claim he relies principally on Valdez v. State, 46 P.3d 703 (Okla.Crim.App.2002), which he takes as standing for the proposition that Oklahoma courts may consider any issues raised upon a second or successive habeas petition to avoid “a miscarriage of justice” or “a substantial violation of a constitutional or statutory right.” Id. at 710–11 (citing Okla. Stat. tit. 20 § 3001.1). Mr. Banks says that, even though the OCCA in his case did not cite to this exception to the procedural bar, it must have at least implicitly decided the exception did not apply and in doing so may have passed upon the merits of his federal claim.
The difficulty is our case law makes clear that a state procedural bar can be independent of federal law notwithstanding a state court's power to excuse default in extreme cases. In Gutierrez v. Moriarty, 922 F.2d 1464 (10th Cir.1991), we considered a New Mexico rule that granted courts discretion whether to review a defaulted claim that implicated a “fundamental right.” Id. at 1469. We held that New Mexico's procedural bar was nevertheless independent because the state was entitled to “exercise[ ] its discretion not to review the fundamental-right claim,” an exercise of discretion driven by state-law principles. Id. Because the state court “may invoke the procedural bar without the necessity of ruling on the federal constitutional claim,” the bar was independent. Id; see also Gardner v. Galetka, 568 F.3d 862, 883–84 (10th Cir.2009).
Here, too, the mere fact Oklahoma courts might in some instances make an implicit judgment about the federal claim when choosing how to exercise this discretion does not deprive the procedural bar its independence. To be sure, in some circumstances federal courts presume that a state court decision hinges on federal law grounds when the basis for the decision is unclear. Michigan v. Long, 463 U.S. 1032, 1040–41, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). But that presumption applies only if the state court decision “fairly appears to rest primarily on federal law” or if it is “interwoven with federal law .” Id. Neither can be said of our case.
The OCCA's decision did not “appear[ ] to rest primarily on federal law,” but relied only upon the text of § 1089(D) and never mentioned the possibility of invoking an exception. See Gardner, 568 F.3d at 884. In responding to our certified question in another case, the OCCA disclaimed that it had considered any exception when the text of its opinion relied solely on the plain language of § 1089(D). See Black v. Workman, Case No. CQ–2012–528 (Okla.Crim.App. Aug 15, 2012). This suggests, at the very least, that the OCCA is not implicitly invoking the exception as a general practice.
Nor does it appear that Oklahoma's limited exception to § 1089(D) is “interwoven with federal law” to such an extent we would have to conclude the OCCA implicitly denied Mr. Banks's claims on the merits. After all, the OCCA has made clear that the exception requires state courts to weigh “the interests of justice” in the event petitioner's claim of error is true against “the importance of the principle of finality of sentences.” Malicoat v. State, 137 P.3d 1234, 1235 (Okla.Crim.App.2006). The fact that these are quintessentially state law concerns is illustrated by the fact that the identification of a federal constitutional error is neither a necessary nor a sufficient condition for excusing the default under state law. It is not a necessary condition because the OCCA has conducted the inquiry with reference to whether the allegations if true would amount to a miscarriage of justice, and then has found no constitutional violation on the merits even after excusing the default. See id. And it is not a sufficient condition because nothing in Oklahoma law suggests that all (or even most) federal constitutional errors will meet the high threshold for “miscarriage of justice” under state law. The fact that the OCCA has excused compliance with the dictates of § 1089(D) only a handful of times in the last several decades supports this conclusion, suggesting that the court's hurdle is a high one and that the court does not grant petitioners a second bite at the post-conviction apple simply because and whenever a violation of federal law is at stake. See Thacker, 678 F.3d at 835–36.
State courts have a strong interest in pursuing justice, ensuring a degree of finality to their judgments, and trying to find an appropriate compromise between these competing considerations, all quite independent of any mandates of federal law. To suggest otherwise would be to suggest there's no mercy a state court could show, no relief it might provide from a procedural rule, and no “pursuit of justice” it might undertake, without necessarily implicating a federal right. That of course simply isn't so. Our federal Constitution is certainly a bulwark of justice. But one can just as certainly seek to pursue justice without depending on its specific provisions or the precedents federal judges have developed interpreting those provisions. So it is we agree with our sister courts that the mere fact that a state court “engages in a discretionary, and necessarily cursory, review under a ‘miscarriage of justice’ analysis does not in itself indicate that the court” has invoked federal law. Gunter v. Maloney, 291 F.3d 74, 80 (1st Cir.2002); see also Scott v. Mitchell, 209 F.3d 854, 868 (6th Cir.2000) (“The Supreme Court ․ does not find the mere reservation of discretion to review for plain error in exceptional circumstances sufficient to constitute an application of federal law .”).
In reaffirming the principle that a state's decision to overlook its procedural rules on rare occasions in the interests of mercy and justice does not automatically open the door to de novo federal review, we are also mindful of recent Supreme Court teachings in the area. Although in opinions addressing adequacy rather than independence, the Supreme Court has twice in the last few years reaffirmed the importance of permitting states to preserve just this sort of discretion. In Beard v. Kindler, 558 U.S. 53, 130 S.Ct. 612, 175 L.Ed.2d 417 (2009), the Supreme Court held adequate Pennsylvania's rule that fugitives from justice forfeit their legal challenges to their convictions, even though (it appeared) Pennsylvania's application of that rule was discretionary. The Court emphasized the perverse incentives that would flow from a contrary holding: “[s]tates could preserve flexibility by granting courts discretion to excuse procedural errors, but only at the cost of undermining the finality of state court judgments.” Id. at 618. Faced with that choice, “many States would opt for mandatory rules to avoid the high costs that come with plenary federal review.” Id. The result would be “particularly unfortunate for criminal defendants, who would lose the opportunity to argue that a procedural default should be excused through the exercise of judicial discretion.” Id. The Supreme Court reaffirmed this principle in Walker v. Martin, –––U.S. ––––, 131 S.Ct. 1120, 179 L.Ed.2d 62 (2011). There, the Court emphasized that if discretionary exceptions to state procedural bars were enough to open the door to de novo federal review, “states would be induced to make their rules draconian,” id. at 1130 (quotation omitted)—a result that would impose a sort of Hobson's choice on the states, be entirely inconsistent with a cooperative federalism, and threaten only to leave everybody worse off.
B
Separately, Mr. Banks argues that he has shown cause and prejudice for the default. This is so, he says, because his trial lawyer was constitutionally deficient in failing to request a continuance upon discovering Dr. Murphy was intoxicated and because his appellate lawyer compounded that error by failing to assert an ineffective assistance of counsel claim on direct appeal. Of course, Mr. Banks could have and did not challenge the ineffectiveness of his trial and appellate counsel in his initial post-conviction petition, and so it is that default he must show cause for. See Livingston v. Kansas, 407 F. App'x 267, 272–73 (10th Cir.2010) (citing Edwards v. Carpenter, 529 U.S. 446, 451–52, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000)).
The trouble is Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), which holds that habeas petitioners have no constitutional right to post-conviction counsel in the first instance and so deficient performance by whatever counsel they may have ordinarily does not excuse procedural default. Id. at 752; see also Fleming v. Evans, 481 F.3d 1249, 1255–56 (10th Cir.2007). We say “ordinarily” because the Supreme Court has recently articulated a “limited qualification” to this previously unwavering rule. In Martinez v. Ryan, ––– U.S. ––––, –––– – ––––, 132 S.Ct. 1309, 1318–19, 182 L.Ed.2d 272 (2012), the Court held that when state law prohibits a defendant from presenting a claim of ineffective assistance of trial counsel on direct appeal, post-conviction counsel's deficient performance in failing to assert the claim on collateral review can serve as cause for the default. Central to the Court's rationale was that the defendant would have been constitutionally entitled to the aid of counsel to help him prepare his ineffective assistance of trial counsel claim on direct appeal. Id. at 1317. And although the Court recognized that states have good reason to require ineffective assistance claims to be raised on collateral review instead, it emphasized that “by deliberately choosing to move trial-ineffectiveness claims outside of the direct-appeal process, where counsel is constitutionally guaranteed, the State significantly diminishes prisoners' ability to file such claims.” Id. at 1318. In these circumstances, deficient performance of post-conviction counsel provides a basis for federal courts to exercise their equitable power to excuse the default and review the claims de novo. Id.
But Martinez was equally clear about what it did not hold, and these limitations make clear the case provides no help to Mr. Banks. The Court said in no uncertain terms that “[t]he rule of Coleman governs in all but the limited circumstances recognized here.” Id. at 1320. Martinez applies only to “a prisoner's procedural default of a claim of ineffective assistance at trial,” not to claims of deficient performance by appellate counsel. Id. at 1315 (emphasis added). And even then, it applies only when “the State barred the defendant from raising the claims on direct appeal,” so that post-conviction proceedings are the petitioner's first opportunity to present the claim. Id. at 1320. None of this applies here, because Oklahoma law permitted Mr. Banks to assert his claim of ineffective assistance of trial counsel on direct appeal. See Le v. State, 953 P.2d 52, 56 (Okla.Crim.App.1998). Without the benefit of Martinez, Coleman tells us that the failure of Mr. Banks's post-conviction counsel to present his claim cannot serve as cause for the default.
V
Mr. Banks also raises an amalgam of other due process challenges to his conviction based on allegedly improper comments made by the prosecutor at trial. In order to prevail, Mr. Banks must show that the comments “sufficiently infected the trial so as to make it fundamentally unfair, and, therefore, a denial of due process.” Duckett v. Mullin, 306 F.3d 982, 988 (10th Cir.2002) (citing Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)). Even standing alone, this is a high hurdle. But because the OCCA rejected all of these claims on the merits, Mr. Banks must also show that the OCCA's application of this test was an unreasonable one under § 2254(d). And Mr. Banks has failed to satisfy this doubly deferential standard.
Mr. Banks first contends that the prosecution impermissibly hinted to the jury at Mr. Banks's prior criminal record. The prosecutor told the jury Mr. Banks gave his statement to police to get a “break,” to get out of “trouble,” to get “help” and to get “relief,” comments that surely could make a jury suspect Mr. Banks was in trouble with the law. But there was nothing improper about the prosecutor's actions. Mr. Banks wasn't acting as a good Samaritan volunteering information about an unsolved crime out of a sense of civic duty. He offered the information implicating Mr. Nelson in the hope of cutting a deal with police on an unrelated robbery charge he was facing at the time. The jury was entitled to know the context in which Mr. Banks made his statement, a context shedding light on his motives for speaking with the police and the likely truthfulness of his claim he had nothing to do with the rape or killing. See Knighton v. Mullin, 293 F.3d 1165, 1171 (10th Cir.2002) (no due process violation where admission of other crimes evidence “was relevant to explain the facts surrounding the ․ murders”).
Next, Mr. Banks challenges the prosecution's verbal re-creation of the crime scene during closing argument at the guilt stage. The prosecutor urged the jury to “take all of your senses and use them,” to put themselves at the scene of the crime. He conjured up the image of “a young woman, being raped vaginally and anally at the same time, taking turns,” “[t]he sound of a gunshot firing,” and then “blood streaming” from the face of Sun Travis as her body was dumped in a ditch. This is a gruesome picture, to be sure. But it is also a fair characterization of the evidence in the case. Mr. Banks protests there is no evidence Mrs. Travis was raped by the two men “at the same time, taking turns,” but that conclusion is a reasonable inference from the mixture of the two men's semen on her clothing. See Hooper v. Mullin, 314 F.3d 1162, 1172 (10th Cir.2002) (counsel “possesses reasonable latitude in drawing inferences from the record”).
Mr. Banks also challenges a host of other comments the prosecutor made during closing argument at the guilt phase. At various points, the prosecutor characterized Mr. Banks as a “wild animal that stalks its prey,” “a predator who lurks in the shadows,” a “monster” who selects the most helpless victims, and a “Mafia style” killer. The prosecutor, as well, offered various disparaging comments about defense counsel's tactics. And, to be sure, some of these comments are highly questionable at best: for example, this court and the Supreme Court have already chastised counsel for calling a defendant an “animal.” Darden v. Wainwright, 477 U.S. 168, 180–81, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986); Wilson v. Sirmons, 536 F.3d 1064, 1118 (10th Cir.2008). Even so, “it is not enough that the prosecutors' remarks were undesirable or even universally condemned.” Darden, 477 U.S. at 181 (quotation omitted). To make out a constitutional due process violation warranting reversal of a jury's verdict, the comments must so infect the entire proceedings as to “impede the jury's ability to judge the evidence fairly.” Van Woudenberg ex rel. Foor v. Gibson, 211 F.3d 560, 570 (10th Cir.2000), overruled on other grounds by McGregor v. Gibson, 248 F.3d 946 (10th Cir.2001) (en banc). And however improper we cannot say the comments did that. The prosecutor devoted the bulk of his challenged closing argument to laying out the evidence of Mr. Banks's guilt in a careful manner—evidence that was very strong. The court instructed the jury to base its decision only on the evidence, and not the statements of counsel. And it's hard to see how the prosecutor's statements would have, in any event, done much to inflame the jury's passions above and beyond their reaction to the gruesome crime itself. In light of all this, we cannot condemn as unreasonable the OCCA's decision that the admittedly improper comments did not so taint the trial as to render it fundamentally unfair. See Hooper, 314 F.3d at 1173; see also Wilson, 536 F.3d at 1121 (improper comments by prosecutor harmless where evidence of guilt “was overwhelming”).
Turning from the guilt to the penalty phase, Mr. Banks claims the prosecution's use of a demonstrative exhibit summarizing his prior convictions unfairly prejudiced him. But he concedes the contents of the exhibit and the introduction of his prior convictions to the jury were correct. He argues instead and only that the title of the exhibit, “trail of terror,” printed in bold red letters, unfairly prejudiced him. But even assuming without deciding the title was over the line, this is the sort of minor impropriety that doesn't warrant the reversal of a conviction, particularly on federal habeas review many years after the fact. Cf. Duckett v. Mullin, 306 F.3d 982, 992 (10th Cir.2002) (upholding as reasonable OCCA's finding of no violation of due process where prosecutor stated at sentencing “is [defendant] a threat to society? Don't bet your lives on it”). Though Mr. Banks asserts that the invocation of “terror” frightened the jury into a death sentence, this is belied by the jury's rejection of the “continuing threat to society” aggravator. All indications from the record are that the jury carefully weighed the evidence before it.
Mr. Banks's remaining challenge is somewhat more meritorious: he argues that the prosecutor impermissibly commented on his silence. During the closing argument of the penalty phase, the prosecutor sought to rebut Mr. Banks's supposed religious conversion. To show the conversion was insincere, the prosecutor told the jury that “not once, not in the ′70s, not in the ′80s, not in the ′90s, not last week, not this week, has he come forward to be accountable for what has taken place.” The trial court overruled the defense's objection, and the prosecution continued, “you judge that, on the conversion and what that means, and the fact that he has not been held accountable or has said anything even remotely—willing to come forward and say what happened.” Only then did the trial judge sustain the objection and admonish the jury to “disregard the last statement.”
The OCCA held these statements improperly but harmlessly commented on Mr. Banks's silence in violation of the Fifth Amendment. And once again we cannot say we have a grave doubt as to the effect of this assumed error on the sentence. Although the trial judge failed to sustain the defendant's first objection, the judge quickly reversed course and issued a curative instruction. Mr. Banks argues that the curative instruction only told the jury to disregard the “last statement,” and that the jury might have thought the first comment about Mr. Banks not taking responsibility for his actions was admissible. But any possible ambiguity about the scope of the trial judge's admonition was addressed the jury instructions at the end of trial, instructions which made it abundantly clear the defendant's silence couldn't be used against him in any way:
The defendant is not compelled to testify, and the fact that a defendant does not testify cannot be used as an inference of guilt and should not prejudice him in any way. You must not permit that fact to weigh in the slightest degree against the defendant, nor should this fact enter into your discussions or deliberations in any manner.
Oklahoma ROA at 482. The law presumes juries follow instruction. United States v. Castillo, 140 F.3d 874, 884 (10th Cir.1998). Indeed, this court has previously held that it isn't unreasonable for a state court to conclude that the prosecution's comments on a defendant's right to silence was harmless when the jury is instructed to disregard such comments. See Battenfield v. Gibson, 236 F.3d 1215, 1225 (10th Cir.2001). We see no way we could hold otherwise here and Mr. Banks never even mentions, much less attempts to distinguish, this precedent.5
VI
Finally, we consider whether the cumulative effect of the errors requires reversal even if each individual error was harmless. We conclude that even taking all of the errors we have identified or assumed, we have no grave doubt about the outcome of the case. With respect to the guilt phase, the only errors we have identified were the decision to allow Walter Banks to testify and the prosecution's disparaging remarks about Mr. Banks and defense counsel. But for reasons we have explained none of the errors cuts to the core of the government's powerful case, a case which relied upon DNA evidence and Mr. Banks's own statements about his presence at the crime scene. Similarly, at the penalty phase the jury's decision to impose the death penalty was predicated upon three statutory aggravating factors, each sustained by substantial evidence. Any lingering prejudice from guilt-phase errors was minimal at best given counsel's failure to advance a residual doubt theory, and as we have said the jury instruction largely cured any harmful effects of the prosecution's improper comments about Mr. Banks's silence. Mr. Banks may not have received a perfect trial, if such a thing exists. But he did receive a trial that complied with the Constitution and laws of the United States, and more than that we cannot compel.
Affirmed.
FOOTNOTES
1. At the time of his trial for Mrs. Travis's murder, Mr. Banks was serving life in prison for this other murder. Originally, he had been sentenced to death for the crime, but that sentence was undone by the prosecution's failure to disclose exculpatory evidence. See Banks v. Reynolds, 54 F.3d 1508, 1517–18 (10th Cir.1995). To avoid a re-trial and possible reimposition of the death penalty, Mr. Banks pleaded guilty and accepted a life sentence.
2. Mr. Banks argues that the Supreme Court's decision in Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986) sets the standard for whether a Confrontation Clause error is harmless. But Van Arsdall was a direct review case where the “harmless beyond a reasonable doubt” standard applied. Id. In habeas cases, the proper standard is the “substantial and injurious effect” test. Fry, 551 U.S. at 119. And even assuming that the Van Arsdall factors are relevant to the Fry analysis, they still point in favor of harmlessness for the reasons we've already given: the relative unimportance of Walter's (non)-testimony and the strength of the government's case.
3. Mr. Banks separately argues that the statement could be used to “impeach” the prosecutor for stating in closing that the Walter Banks defense was likely “born in these lawyers' office last night.” It should go without saying that closing arguments of counsel are not evidence and are not subject to cross-examination, let alone impeachment.
4. Finally, Mr. Banks suggests that he was at least entitled to a federal evidentiary hearing to demonstrate that he might have been able to uncover some admissible evidence implicating his brother. But an evidentiary hearing is not a fishing expedition. Instead, its function is to resolve disputed facts. And for that reason, a habeas court considering a Brady claim “is required to conduct the evidentiary hearing only if the admissible evidence presented by petitioner, if accepted as true, would warrant relief as a matter of law.” United States v. Velarde, 485 F.3d 553, 560 (10th Cir.2007). That, Mr. Banks has not done.
5. Mr. Banks separately faults his trial counsel as ineffective for failing to object to some of these allegedly improper comments. But the OCCA addressed all these comments de novo despite the absence of any contemporaneous objection, ultimately finding them harmless. Because we agree with this harmlessness assessment, any alleged ineffectiveness by counsel resulted in no constitutionally qualifying prejudice. See Spears, 343 F.3d at 1250–51.
GORSUCH, Circuit Judge.
Anthony Banks
Anthony Banks
Anthony Banks