Executed September 10, 2013 06:07 p.m. CDT by Lethal Injection in Oklahoma
24th murderer executed in U.S. in 2013
1344th murderer executed in U.S. since 1976
4th murderer executed in Oklahoma in 2013
106th murderer executed in Oklahoma since 1976
(Race/Sex/Age at Murder-Execution)
(Race/Sex/Age at Murder)
Anthony Rozelle Banks
B / M / 26 - 61
|Sun Kim Travis
Asian / F / 24
At the time of the DNA identification, Banks was already in prison following his conviction for the 1978 slaying of David Fremin, who was shot and killed during an armed robbery. Banks was convicted of first-degree murder and sentenced to death in that case. When his death sentence was reversed on appeal, he pled guilty in exchange for a life sentence.
Banks v. State, 701 P.2d 418, (Okla. Crim. App. 1985). (Direct Appeal-Robbery/Murder)
Banks v. State, 43 P.3d 390 (2002 Okla. Crim. App. 2002). (Direct Appeal)
Banks v. Workman, 692 F.3d 1133 (10th Cir. Okla. 2012). (Habeas)
Three apple-filled rolls and two bottles of water.
"I can't express the terrible things I've done. I'm sorry. To know that I took lives hurts me." He said he knew he had also hurt the victims' family members. "This is justified. I've done one good thing in my life and that is to become a Jehovah's Witness. For that, I'm eternally grateful." Banks acknowledged witnesses to his execution, including his attorney, Tom Hird of the Federal Public Defender's Office in Oklahoma City, and an unidentified spiritual adviser. "I'm thankful everybody's here. I appreciate that." Banks singled out Tulsa County Sheriff Stanley Glanz, who also witnessed his execution. "I haven't seen you in years, decades," Banks said with a smile. "God bless you, I love you and I will see you again.
Oklahoma Department of Corrections
Inmate: Anthony R Banks
Birth Date: 07/05/1952
Height: 5 ft. 9 in.
Weight: 160 pounds
CRF# County Offense Conviction Term Term Code Start End
79-1786 TULS Burglary - Second Degree Afcf 04/11/1980 10Y 0M 0D Incarceration 04/11/1980 04/10/1990
79-2872 TULS Robbery With Firearms Afcf 04/11/1980 10Y 0M 0D Incarceration 04/11/1980 07/31/1989
81-877 TULS Assault & Battery W/Dangerous Weapon 06/19/1981 2Y 0M 0D Incarceration
81-877 TULS Escape From A Penal Institution 06/19/1981 2Y 0M 0D Incarceration
81-877 TULS Assault & Battery W/Dangerous Weapon 06/19/1981 2Y 0M 0D Incarceration
79-3398 TULS Murder First Degree/Felony 11/30/1995 LIFE Life
97-3715 TULS Murder, First Degree In The Commission Of A Felony/Felony 10/28/1999 DEATH 11/22/1999
Death Penalty Information
The current death penalty law was enacted in 1977 by the Oklahoma Legislature. The method to carry out the execution is by lethal injection. The original death penalty law in Oklahoma called for executions to be carried out by electrocution. In 1972 the U.S. Supreme Court ruled unconstitutional the death penalty as it was then administered.
Oklahoma has executed a total of 176 men and 3 women between 1915 and 2011 at the Oklahoma State Penitentiary. Eighty-two were executed by electrocution, one by hanging (a federal prisoner) and 96 by lethal injection. The last execution by electrocution took place in 1966. The first execution by lethal injection in Oklahoma occurred on September 10, 1990, when Charles Troy Coleman, convicted in 1979 of Murder 1st Degree in Muskogee County was executed.
Method of Execution: Lethal Injection
Sodium Thiopental or Pentobarbital - causes unconsciousness
Vecuronium Bromide - stops respiration
Potassium Chloride - stops heart
Two intravenous lines are inserted, one in each arm. The drugs are injected by hand held syringes simultaneously into the two intravenous lines. The sequence is in the order that the drugs are listed above. Three executioners are utilized, with each one injecting one of the drugs.
"Oklahoma man executed in woman's 1979 slaying." (AP September 10, 2013)
McALESTER, Okla. (AP) — An Oklahoma death row inmate convicted of first-degree murder in the shooting death of a 25-year-old Korean national 34 years ago was executed Tuesday after he apologized for taking the victim's life and said his execution "is justified." Anthony Rozelle Banks, 61, was pronounced dead at 6:07 p.m. after receiving a lethal injection of drugs at the Oklahoma State Penitentiary in McAlester. Banks is the fourth Oklahoma death row inmate to be executed this year.
Banks was convicted of first-degree murder and sentenced to death by a Tulsa County jury for the June 6, 1979, killing of Sun "Kim" Travis. Banks was already serving a life prison sentence for his conviction in the April 11, 1978, slaying of a Tulsa convenience store clerk during an armed robbery when he was linked to Travis' death by DNA evidence 18 years after her death.
"I can't express the terrible things I've done. I'm sorry," Banks said. "To know that I took lives hurts me," he said. He said he knew he had also hurt the victims' family members. "This is justified," Banks said. "I've done one good thing in my life and that is to become a Jehovah's Witness. For that, I'm eternally grateful."
Banks, strapped to a gurney with IV lines attached to his arms, acknowledged witnesses to his execution, including his attorney, Tom Hird of the Federal Public Defender's Office in Oklahoma City, and an unidentified spiritual adviser. "I'm thankful everybody's here. I appreciate that," he said. Banks singled out Tulsa County Sheriff Stanley Glanz, who also witnessed his execution. "I haven't seen you in years, decades," Banks said with a smile.
Banks closed his eyes and took several deep breaths as the lethal drugs were injected into his body. He appeared to grimace briefly before he stopped breathing and his body went limp. No one from the victim's family witnessed Banks' execution. Attorney General Scott Pruitt issued a statement beforehand that said his thoughts were with the victim's family. "Anthony Banks brutally ended the life of an innocent young woman and has proven his willingness to continue committing violent crimes," Pruitt said.
About five people protested the execution at the governor's mansion in Oklahoma City. One of the protesters, D.W. Hearn, 68, held a rosary. He said he was praying for the man about to be executed, the man's family and the victim's family. He said he believes Oklahoma will eventually abolish the death penalty.
Travis was abducted from the parking lot of a Tulsa apartment complex and was later raped and shot in the head. Her partially clothed body was found in a roadside ditch on the city's north side the morning after her disappearance. Banks and a co-defendant, Allen Wayne Nelson, 54, were charged in August 1997, when their DNA was detected in evidence found on Travis' body and clothing. A 12-member jury convicted Nelson of first-degree murder and sentenced him to life in prison.
Banks was already in prison following his conviction for the 1978 slaying of David Fremin, who was shot and killed during an armed robbery. Banks was convicted of first-degree murder by a Tulsa County jury that imposed the death penalty in that case. But the 10th U.S. Circuit Court of Appeals ordered a new trial in 1994, saying prosecutors failed to disclose evidence to the defense that the jury could have used to find Banks innocent. The court also said Banks received ineffective counsel. Rather than face the possibility of being sentenced to death again, Banks pleaded guilty to the murder charge in exchange for a sentence of life in prison.
In July, Banks waived his right to ask the Oklahoma Pardon and Parole Board to commute his death sentence to life in prison.
The state has executed three other death row inmates this year. Steven Ray Thacker, 42, was executed on March 12 for the 1999 death of a woman whose credit cards he used to buy Christmas presents for his family. James Lewis DeRosa, 36, was executed on June 18 for the October 2000 stabbing deaths of a couple on whose ranch he had worked. And Brian Darrell Davis, 39, was executed on June 25 for raping and killing his girlfriend's mother in 2001. No other executions are scheduled.
"Oklahoma executes inmate Anthony Banks for murder in 1979." (Tue Sep 10, 2013 7:47pm EDT)
(Reuters) - Oklahoma executed a man on Tuesday for the rape and murder of a Tulsa woman in 1979, a crime that went unsolved for 18 years until new DNA techniques led to his conviction. Anthony Banks, 60, was pronounced dead at 6:07 p.m. (2307 GMT). Banks was convicted and sentenced to death for the June 6, 1979, murder of Sun I. Kim Travis, a 24-year-old Korean woman who he raped, beaten, shot in the face and dumped in a ditch, according to court documents.
"Execution date set for killer whose crime went unsolved for 20 years," by Rachel Petersen. (Jun 14, 2013)
McALESTER — An execution date has been set for a death row inmate whose crime went unsolved for two decades. Anthony Rozelle Banks, 60, is scheduled to be executed Sept. 10 via lethal injection in the death chamber at the Oklahoma State Penitentiary.
On May 20, the last appeal filed by Banks was denied by the U.S. Supreme Court. “The defendant has exhausted all state and federal appeals,” said Oklahoma Attorney General Scott Pruitt in his execution date request to the Oklahoma Court of Criminal Appeals. “Therefore, the state respectfully requests this court set an execution date ...”
Banks was convicted in 1999 of the murder of Sun I. Kim Travis in Tulsa. Travis was kidnapped from her Tulsa apartment in June 1979. She was raped, beaten and shot in the face. Her body was dumped in a ditch. Prior to her death, Travis, a Korean national, met her 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,” court records state. “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.” Court records indicate that the next morning, a man on a tractor discovered her body in a roadside ditch. “She had suffered a gunshot would to the head, and her face bore recent bruises,” court records state. “Her blouse was missing and her panties were ripped and lying by her feet.” The medical examiner found semen on her clothes and in her body.
The murder case of Travis had gone unsolved until Tulsa police used DNA evidence to link Banks and Allen Wayne Nelson, 53, to the woman’s rape and murder. Tulsa police used DNA testing from two different analysts on sperm from the slain woman’s body and clothes to link Banks and Nelson to the crime. DNA testing indicated that both men had raped her, court records state. “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,” court records state.
In 1997, Banks and Nelson were charged with her murder. Nelson was sentenced to life in prison and in October 1999, Banks was convicted and sentenced to death. When convicted, Banks was already serving a life sentence for killing a convenience store clerk, David Fremin, in 1978. In a court hearing, Banks admitted to shooting Fremin in the head during a holdup.
Oklahoma Coalition to Abolish Death Penalty
Oklahoma Attorney General (News Release)
News Release - Anthony R. Banks Execution
OKLAHOMA CITY – Anthony R. Banks – Sept. 10 at 6 p.m. Oklahoma State Penitentiary in McAlester.
Name: Anthony Rozelle Banks
Age at Date of Crime: 26 >BR> Victim(s): Sun Travis, 25, DOB: 05/10/1954
Date of Crime: 06/06/1979
Date of Sentence: 10/28/1999
Crime Location: Victim kidnapped at 1117 S College in her apartment complex parking lot. Her body was found in a field in the 1800 block of E 36 St. North in Tulsa.
Judge: Thomas C. Gillert
Prosecuting: Doug Drummond, Chad A. Greer
Defending: James C. Bowen, Mark Matheson
Circumstances Surrounding Crime: Banks was found guilty by a jury of his peers for the first-degree murder and rape of Sun Travis, 25, of Tulsa. Sun Travis was returning home from work when she was kidnapped, raped and brutally murdered. Her body was discovered the next day in a roadside ditch. In November 1979, Banks was in custody on unrelated charges when he gave a statement to police implicating an accomplice in the murder of Travis. There was not enough evidence to charge Banks until DNA testing became available.
In 1997, DNA testing was conducted. The results confirmed Banks’ participation in the kidnaping, rape and murder of Sun Travis. Banks had at least eight prior violent felony convictions, ranging from armed robbery to a second first-degree murder conviction.
Statement from Attorney General Scott Pruitt: “Anthony Banks brutally ended the life of an innocent young woman and has proven his willingness to continue committing violent crimes,” Attorney General Scott Pruitt said. “My thoughts are with the family and friends of Sun Travis, who lost a loved one due to Banks’ heinous actions.”
Wikipedia: Oklahoma Executions
A total of 103 individuals convicted of murder have been executed by the State of Oklahoma since 1976, all by lethal injection:
1. Charles Troy Coleman 10 September 1990 John Seward
2. Robyn Leroy Parks 10 March 1992 Abdullah Ibrahim
3. Olan Randle Robinson 13 March 1992 Shiela Lovejoy, Robert Swinford
4. Thomas J. Grasso 20 March 1995 Hilda Johnson
5. Roger Dale Stafford 1 July 1995 Melvin Lorenz, Linda Lorenz, Richard Lorenz, Isaac Freeman, Louis Zacarias, Terri Horst, David Salsman, Anthony Tew, David Lindsey
6. Robert Allen Brecheen  11 August 1995 Marie Stubbs
7. Benjamin Brewer 26 April 1996 Karen Joyce Stapleton
8. Steven Keith Hatch 9 August 1996 Richard Douglas, Marilyn Douglas
9. Scott Dawn Carpenter 7 May 1997 A.J. Kelley
10. Michael Edward Long 20 February 1998 Sheryl Graber, Andrew Graber
11. Stephen Edward Wood 5 August 1998 Robert B. Brigden
12. Tuan Anh Nguyen 10 December 1998 Amanda White, Joseph White
13. John Wayne Duvall 17 December 1998 Karla Duvall
14. John Walter Castro 7 January 1999 Beulah Grace, Sissons Cox, Rhonda Pappan
15. Sean Richard Sellers 4 February 1999 Paul Bellofatto, Vonda Bellofatto, Robert Bower
16. Scotty Lee Moore 3 June 1999 Alex Fernandez
17. Norman Lee Newsted 8 July 1999 Larry Buckley
18. Cornel Cooks 2 December 1999 Jennie Elva Ridling
19. Bobby Lynn Ross 9 December 1999 Steven Mahan
20. Malcolm Rent Johnson 6 January 2000 Ura Alma Thompson
21. Gary Alan Walker 13 January 2000 Eddie O. Cash, Valerie Shaw-Hartzell, Jane Hilburn, Janet Jewell, Margaret Bell Lydick, DeRonda Gay Roy
22. Michael Donald Roberts 10 February 2000 Lula Mae Brooks
23. Kelly Lamont Rogers 23 March 2000 Karen Marie Lauffenburger
24. Ronald Keith Boyd 27 April 2000 Richard Oldham Riggs
25. Charles Adrian Foster 25 May 2000 Claude Wiley
26. James Glenn Rodebeaux 1 June 2000 Nancy Rose Lee McKinney
27. Roger James Berget 8 June 2000 Rick Lee Patterson
28. William Clifford Bryson 15 June 2000 James Earl Plantz
29. Gregg Francis Braun 10 August 2000 Gwendolyn Sue Miller, Barbara Kchendorfer, Mary Rains, Pete Spurrier, Geraldine Valdez
30. George Kent Wallace 10 August 2000 William Von Eric Domer, Mark Anthony McLaughlin
31. Eddie Leroy Trice 9 January 2001 Ernestine Jones
32. Wanda Jean Allen 11 January 2001 Gloria Jean Leathers
33. Floyd Allen Medlock 16 January 2001 Katherine Ann Busch
34. Dion Athansius Smallwood 18 January 2001 Lois Frederick
35. Mark Andrew Fowler 23 January 2001 John Barrier, Rick Cast, Chumpon Chaowasin
36. Billy Ray Fox 25 January 2001
37. Loyd Winford Lafevers 30 January 2001 Addie Mae Hawley
38. Dorsie Leslie Jones, Jr. 1 February 2001 Stanley Eugene Buck, Sr.
39. Robert William Clayton 1 March 2001 Rhonda Kay Timmons
40. Ronald Dunaway Fluke 27 March 2001 Ginger Lou Fluke, Kathryn Lee Fluke, Suzanna Michelle Fluke
41. Marilyn Kay Plantz 1 May 2001 James Earl Plantz
42. Terrance Anthony James 22 May 2001 Mark Allen Berry
43. Vincent Allen Johnson 29 May 2001 Shirley Mooneyham
44. Jerald Wayne Harjo 17 July 2001 Ruther Porter
45. Jack Dale Walker 28 August 2001 Shely Deann Ellison, Donald Gary Epperson
46. Alvie James Hale, Jr. 18 October 2001 William Jeffery Perry
47. Lois Nadean Smith 4 December 2001 Cindy Baillee
48. Sahib Lateef Al-Mosawi 6 December 2001 Inaam Al-Nashi, Mohamed Al-Nashi
49. David Wayne Woodruff 21 January 2002 Roger Joel Sarfaty, Lloyd Thompson
50. John Joseph Romano 29 January 2002
51. Randall Eugene Cannon 23 July 2002 Addie Mae Hawley
52. Earl Alexander Frederick, Sr. 30 July 2002 Bradford Lee Beck
53. Jerry Lynn McCracken 10 December 2002 Tyrrell Lee Boyd, Steve Allen Smith, Timothy Edward Sheets, Carol Ann McDaniels
54. Jay Wesley Neill 12 December 2002 Kay Bruno, Jerri Bowles, Joyce Mullenix, Ralph Zeller
55. Ernest Marvin Carter, Jr. 17 December 2002 Eugene Mankowski
56. Daniel Juan Revilla 16 January 2003 Mark Gomez Brad Henry
57. Bobby Joe Fields 13 February 2003 Louise J. Schem
58. Walanzo Deon Robinson 18 March 2003 Dennis Eugene Hill
59. John Michael Hooker 25 March 2003 Sylvia Stokes, Durcilla Morgan
60. Scott Allen Hain 3 April 2003 Michael William Houghton, Laura Lee Sanders
61. Don Wilson Hawkins, Jr. 8 April 2003 Linda Ann Thompson
62. Larry Kenneth Jackson 17 April 2003 Wendy Cade
63. Robert Wesley Knighton 27 May 2003 Richard Denney, Virginia Denney
64. Kenneth Chad Charm 5 June 2003 Brandy Crystian Hill
65. Lewis Eugene Gilbert II 1 July 2003 Roxanne Lynn Ruddell
66. Robert Don Duckett 8 July 2003 John E. Howard
67. Bryan Anthony Toles 22 July 2003 Juan Franceschi, Lonnie Franceschi
68. Jackie Lee Willingham 24 July 2003 Jayne Ellen Van Wey
69. Harold Loyd McElmurry III 29 July 2003 Rosa Vivien Pendley, Robert Pendley
70. Tyrone Peter Darks 13 January 2004 Sherry Goodlow
71. Norman Richard Cleary 17 February 2004 Wanda Neafus
72. David Jay Brown 9 March 2004 Eldon Lee McGuire
73. Hung Thanh Le 23 March 2004 Hai Hong Nguyen
74. Robert Leroy Bryan 8 June 2004 Mildred Inabell Bryan
75. Windel Ray Workman 26 August 2004 Amanda Hollman
76. Jimmie Ray Slaughter 15 March 2005 Melody Sue Wuertz, Jessica Rae Wuertz
77. George James Miller, Jr. 12 May 2005 Gary Kent Dodd
78. Michael Lannier Pennington 19 July 2005 Bradley Thomas Grooms
79. Kenneth Eugene Turrentine 11 August 2005 Avon Stevenson, Anita Richardson, Tina Pennington, Martise Richardson
80. Richard Alford Thornburg, Jr. 18 April 2006 Jim Poteet, Terry Shepard, Kevin Smith
81. John Albert Boltz 1 June 2006 Doug Kirby
82. Eric Allen Patton 29 August 2006 Charlene Kauer
83. James Patrick Malicoat 31 August 2006 Tessa Leadford
84. Corey Duane Hamilton 9 January 2007 Joseph Gooch, Theodore Kindley, Senaida Lara, Steven Williams
85. Jimmy Dale Bland 26 June 2007 Doyle Windle Rains
86. Frank Duane Welch 21 August 2007 Jo Talley Cooper, Debra Anne Stevens
87. Terry Lyn Short 17 June 2008 Ken Yamamoto
88. Jessie Cummings 25 September 2008 Melissa Moody
89. Darwin Brown 22 January 2009 Richard Yost
90. Donald Gilson 14 May 2009 Shane Coffman
91. Michael DeLozier 9 July 2009 Orville Lewis Bullard, Paul Steven Morgan
92. Julius Ricardo Young 14 January 2010 Joyland Morgan, Kewan Morgan
93. Donald Ray Wackerly II 14 October 2010 Pan Sayakhoummane
94. John David Duty 16 December 2010 Curtis Wise
95. Billy Don Alverson 6 January 2011 Richard Kevin Yost
96. Jeffrey David Matthews 11 January 2011 Otis Earl Short Mary Fallin
97. Gary Welch 5 January 2012 Robert Dean Hardcastle
98. Timothy Shaun Stemple 15 March 2012 Trisha Stemple
99. Michael Bascum Selsor 1 May 2012 Clayton Chandler
100. Michael E. Hooper 14 August 2012 Cynthia Jarman, Timothy Jarman, Tonya Jarman
101. Garry T. Allen 06 November 2012 Gail Titsworth
102. George Ochoa 04 December 2012 Francisco Morales, Maria Yanez
103. Steven Ray Thacker 12 March 2013 Laci Dawn Hill
104. James L. DeRosa 18 June 2013 Curtis and Gloria Plummer
105. Brian Darrell Davis 25 June 2013 Jody Sanford
106. Anthony R. Banks 10 September 2013 Sun Kim Travis
Banks v. State, 701 P.2d 418, (Okla. Crim. App. 1985). (Direct Appeal-Robbery/Murder)
OVERVIEW: In a joint trial, defendant was convicted of the first-degree murder of a store clerk, which was committed in the course of a robbery with his co-defendant. Defendant alleged that reversible error occurred in jury selection, the denial of his motion for severance, admission of statements by his co-defendant, and in sentencing. On appeal, the court affirmed defendant's conviction and sentence. No error occurred in the jury selection process. The questions asked of the jurors during voir dire were appropriate to empanel a jury that would be asked to consider a death sentence. The trial court acted within its discretion in jury selection. Improper comments by the State during voir dire did not warrant reversal in light of the overwhelming evidence against defendant. No abuse of discretion by the trial court occurred that was related to the admittance of evidence at trial or during sentencing. In the sentencing phase of defendant's trial, evidence of aggravating circumstances was admitted in compliance with Okla. Stat. tit. 21, §§ 701.10, 701.12(5) (1981) and the penalty of death was proportionate under Okla. Stat. tit. 21, § 701.13 (1981) to the penalty imposed in similar cases. The court affirmed defendant's conviction and sentence by the trial court.
In the early morning hours of April 11, 1978, Anthony Rozelle Banks and his brother, Walter Thomas Banks, robbed a convenience store at the corner of 36th and Sheridan streets in Tulsa. During that robbery Anthony shot and killed the clerk on duty, David Paul Fremin. The two brothers were jointly charged with and tried in the Tulsa County District Court, Case No. CRF-79-3393, for First Degree Murder, the Honorable Joe Jennings, presiding. The jury found both guilty as charged and sentenced Walter to life imprisonment. The sentence for Anthony was death. It is from this judgment and sentence that Anthony Banks has perfected this appeal. We affirm. The case went unresolved for fifteen months when the appellant, having been arrested for an unrelated armed robbery, offered to give the police some information about Fremin's murder in hopes of getting more lenient treatment for the robbery. In the subsequent investigation, police were able to identify a fingerprint lifted from the crime scene as that of Anthony Banks. They also located Traci Banks, who had been Anthony's girlfriend at the time of the murder and who had been living with Anthony and Walter in their Tulsa apartment.
Traci testified at trial that about three o'clock in the morning of April 11, 1978, Walter and Anthony left the apartment to "go do something." Anthony returned about 5:00 a.m. with a small brown box containing money, food stamps, and blank money orders. He also carried a man's wallet containing the driver's license of David Paul Fremin. Traci recognized that name the next day when she read newspaper accounts of the murder. As she helped Anthony count the contents of the box, he told her that he and Walter had robbed the Git-N-Go Store at 36th and Sheridan, Walter keeping watch outside while Anthony killed the clerk in order to avoid being identified. Walter's testimony was substantially the same. Medical testimony established that one of the victim's two head wounds was superficial while the other was certainly fatal. Both were inflicted from very close range almost directly above the victim's head. The locations and directions of the wounds were consistent with the notion that Fremin had been sitting or kneeling when shot.
The appellant first challenges the constitutionality of Oklahoma's death penalty statute. 21 O.S.1981, § 701.7. He contends the statute must be invalidated because it does not further a compelling state interest that cannot be fulfilled by less drastic means. The United States Supreme Court in Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976), and this Court in Burrows v. State, 640 P.2d 533 (Okl.Cr.1982), Glidewell v. State, 663 P.2d 738 (Okl.Cr.1983), and Davis v. State, 665 P.2d 1186 (Okl.Cr.1983) rejected this argument. We do not adopt it now.
Burrows also disposes of appellant's second assignment of error, that is, that the death penalty is unconstitutionally arbitrary because of the discretion that prosecutors retain with regard to seeking the death penalty. This assignment of error is without merit.
The appellant next alleges that six prospective jurors were improperly dismissed for cause in violation of the rule set forth in Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968). Therein the United States Supreme Court determined that HN1Go to the description of this Headnote.the death penalty could not be carried out if the jury that imposed it had been selected by excluding for cause venirepersons who expressed general objections to the death penalty or conscientious or religious scruples against its infliction. Id. at 521, 88 S. Ct. at 1776, 20 L. Ed. 2d at 784. The most that can be required of a venireperson is that he be willing to consider all the penalties provided by law and that he not be irrevocably committed before the trial has begun. In the trial below, the judge systematically asked each juror the following question: "In a case where the law and the evidence warrant, in a proper case, could you, without doing violence to your conscience, agree to a verdict imposing the Death Penalty?" Although this Court has implicitly approved of this question by affirming cases in which it was used and in which it otherwise appeared that the dismissed venirepersons were firm in their resolve not to consider the death penalty, see, e.g., Parks v. State, 651 P.2d 686 (Okl.Cr.1982), the question is confusing. Violence done to one's conscience is not the point of the Witherspoon voir dire examination. As this writer has said in dissent, HN2Go to the description of this Headnote.the only legitimate concern is whether each jury member will consider the imposition of the death sentence, as one of the alternatives provided by state law, should the case be appropriate for that punishment. Davis v. State, 665 P.2d 1186, 1204 (Okl.Cr.1983) (Brett, J., dissenting). 1
1 Ambiguous questions are difficult to answer clearly, and clarity is extremely important in Witherspoon examination. Therefore we suggest that compound questions, such as the one regarding violence to one's conscience, be avoided. For example, the following approach, to this writer, seems preferable to that mentioned heretofore: The laws of Oklahoma permit only two possible punishments for persons found guilty of first degree murder: either imprisonment for life or death. Do you have feelings about capital punishment that would prevent or substantially impair you from considering either of these punishments if the defendant were found guilty of first degree murder? Such a question may help the trial judge to discover substantial juror bias either for or against capital punishment.
In the present case, however, a second question was also asked of each juror: If you found beyond a reasonable doubt that the Defendant was guilty of Murder in the First Degree, and if under the evidence and the facts and the circumstances of the case the law would permit you to consider a sentence of Death, are your reservations about the Death Penalty such that regardless of the law, the facts and the circumstances of the case, you would not inflict the Death Penalty? Three of the jurors challenged herein for cause, veniremen Moats, Lair, and Parker, responded clearly and unambiguously that under no circumstances would they vote to inflict the death penalty. They were clearly committed to vote against the death penalty regardless of the facts of the case; therefore, it was permissible to dismiss them for cause. See Coleman v. State, 668 P.2d 1126 (Okl. Cr.1983); Chaney v. State, 612 P.2d 269 (Okl.Cr.1980), modified on other grounds, sub. nom., Chaney v. Brown, 730 F.2d 1334 (10th Cir. 1984).
Prospective juror Leek answered the former question, "I don't think I could sir," and the latter question, "I don't believe I would, sir." We affirmed the dismissal for cause of a potential juror who answered similarly in Dutton v. State, 674 P.2d 1134 (Okl.Cr.1984). Thus it was not error to dismiss venireman Leek for cause under Witherspoon.
Juror Boyd was also dismissed for cause during voir dire. The examination was conducted, in pertinent part, as follows: THE COURT: If it becomes necessary to consider punishment in this case, in a case where the law and the evidence warrant, in a proper case, could you without doing violence to your conscience agree to a verdict imposing the death penalty? MR. BOYD: That I'd have to give thought. THE COURT: I will ask you to give it thought right now. MR. BOYD: Well, I don't think I could. THE COURT: You tell me if you were selected as a juror in this or any other case in which a defendant was charged with First Degree Murder and you and your fellow jurors found beyond a reasonable doubt that the defendant was guilty of Murder in the First Degree, under the evidence, facts and circumstances of the case, the law were to permit you to consider a sentence of death, your reservations about the death penalty are such that regardless of the facts or regardless of the circumstances of the case you would not inflict the death penalty? MR. BOYD: Well, that would be taking a life; I don't feel like I should do that. It would be like I was taking a life too. THE COURT: Your answer would be you would not inflict the death penalty? MR. BOYD: I guess I wouldn't. It appears to this Court that juror Boyd was committed to vote against the death penalty regardless of the law and that it was therefore proper to permit him to be dismissed for cause.
Our determination of this issue is further supported by the recent United States Supreme Court decision in Wainwright v. Witt, 469 U.S. 412, 105 S. Ct. 844, 83 L. Ed. 2d 841 (1985). Therein the Court held that HN3Go to the description of this Headnote.the proper standard for determining when a prospective juror may be excluded for cause because of his or her views on capital punishment is that the juror's views would "'prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'" Id. at 852. The Court further stated that a juror's bias need not be proved with "unmistakable clarity;" neither must the juror express an intention to vote against the death penalty "automatically." Id. This Court has previously noted that HN4Go to the description of this Headnote.trial judges, having heard the juror's voice inflection and viewed his demeanor, may be fairly convinced of a juror's bias when such bias appears in a written record to be less than "unmistakably clear." See Davis v. State, 665 P.2d 1186 (Okl.Cr.1983). The majority in Witt also observed that determinations of juror bias simply cannot be reduced to "question and answer sessions which obtain results in the manner of a catechism." Witt, 105 S. Ct. at 852. In the present case, therefore, we find that the trial judge did not abuse his discretion in dismissing these jurors for cause because their answers established the fact that their views about capital punishment would have prevented or substantially impaired the performance of their duties as jurors in accordance with the instructions and the oath.
Nor was it error in this case to refuse the appellant an opportunity to rehabilitate the excused veniremen. HN5Go to the description of this Headnote.The manner and extent of voir dire examination rests largely in the sound discretion of the trial judge. McFatridge v. State, 632 P.2d 1226 (Okl.Cr.1981). This Court held in Vardeman v. State, 54 Okl.Cr. 329, 20 P.2d 194 (1933): HN6Go to the description of this Headnote.After the court has asked jurors as to their legal qualifications, it is hardly necessary for the state or defendant's counsel to ask them the same questions, although sometimes this is done. When any part of the questioning is denied or excluded, in order to preserve the question the proper procedure for defendant's counsel is to dictate into the record the questions he desires to ask the jurors, and obtain a ruling of the court thereon, thereby enabling this Court to determine if the trial court abused its discretion in refusing to permit counsel to ask the questions. Id. at 330, 20 P.2d at 195. See also 632 P.2d at 1229. In the present case the defendant failed to make a record of the questions he intended to ask the excused veniremen, therefore we do not have a proper record from which to review the trial court's decision to disallow further questioning. Reviewing the record before us in this regard we do not find any abuse of judicial discretion. Further questioning in this difficult area may only have served to confuse the prospective jurors when the pertinent questions had been asked and clearly answered. Cf. Chaney v. State, 612 P.2d 269 (Okl.Cr.1980) ("one of the tendencies of voir dire in a challenge situation is that the longer it lasts the less objective it becomes . . . ."), modified on other grounds, sub nom. Chaney v. Brown, 730 F.2d 1334 (10th Cir. 1984).
The appellant also challenges the dismissal for cause of a sixth juror, Ms. Bellamy, as a violation of Witherspoon. She was not dismissed because of her inability to consider imposing the death penalty, however, so such a challenge is not to the point. Ms. Bellamy was dismissed because the trial judge believed that she might be unable to devote her full attention to the proceedings. She stated that she had two small children for whose care she had made arrangements during the scheduled week of jury duty. She also stated that if the trial ran on into a second week it would cause her some problems. She said she could make further arrangements but that such necessity might cause her difficulty and that she preferred to be excused from sitting on the case. To force her to sit even for the first week of trial might well have caused in her some ill will resulting in prejudice toward the defendant. It was not an abuse of the trial judge's discretion to dismiss her for cause. See Washington v. State, 568 P.2d 301 (Okl.Cr.1977).
In his fourth assignment of error the appellant charges that reversible error occurred during the voir dire examination of the jury due to improper comments made by the prosecutor. Mr. Jerry Truster, an assistant district attorney, asked a prospective juror, within the hearing of the whole panel, if she believed that victims of crimes have rights. After objections and requests for admonition were denied the prosecutor continued the line of questioning about victims having rights like those of the defendant. He asked the questions yet another time before the panel was finally selected. These comments and questions are improper and were asked with the intention of inflaming the prejudices of the jury panel. This Court does not approve of argument or comment so intended. Tobler v. State, 688 P.2d 350 (Okl.Cr.1984); Ward v. State, 633 P.2d 757 (Okl.Cr.1981). Defense objections should have been sustained and the jury admonished to disregard such comments. Still we are unable to say that these comments alone require modification or reversal. The evidence in the case is overwhelming. The error was not manifestly prejudicial. See Hunter v. State, 637 P.2d 871 (Okl.Cr.1981).
The appellant next alleges reversible error occurred during jury selection because of a reference to the pardon and parole system. One of the veniremen was asked if she knew or was related to a certain criminal defendant with the same surname as hers. She replied that she did not know that person but that she had read in the newspaper that he was eligible for parole. There was no other reference to the possibility of pardon or parole through the end of the trial. While there was no admonition given the jury on this point we do not find this single brief, unsolicited mention of the parole system during voir dire to be prejudicial. The appellant further contends that the prosecutor drew attention to the parole possibility when questioning another prospective juror during voir dire. We disagree. The challenged question can only be understood as a reference to the bifurcated nature of the trial itself. These contentions are thus without merit.
In his sixth assignment of error the appellant alleges that photographs of the crime scene and the murder victim were erroneously admitted at trial because they were irrelevant and unduly gruesome. HN7Go to the description of this Headnote.The admissibility of demonstrative evidence is a question of legal relevance that is within the discretion of the trial court, whose decisions will not be disturbed on appeal absent an abuse of that discretion. Assadollah v. State, 632 P.2d 1215 (Okl.Cr.1981). The photographs in question accurately depicted the scene of the crime, the position of the victim's body, and the location of the wounds upon the victim's head. They tended to support testimony that the murder was committed during a robbery and that the victim was shot from directly overhead. We cannot say that these black and white photographs were more prejudicial than probative; therefore this assignment of error is without merit. Glidewell v. State, 626 P.2d 1351 (Okl.Cr.1981); Deason v. State, 576 P.2d 778 (Okl.Cr.1978).
The appellant next asserts that it was reversible error to refuse to grant his motion for a severance due to the admission at trial of extrajudicial statements of his co-defendant. He contends that statements made by his brother Walter on the witness stand prejudiced the jury against him in violation of Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968). In that case the Supreme Court held that HN8Go to the description of this Headnote.it was reversible error in a joint trial to admit into evidence a co-defendant's extrajudicial confession when that statement implicates the defendant. In such a case a severance should be granted. The present case does not fall within the purview of Bruton, however, because the objected to statements were not confessions. Walter's first statement to the police corroborated Anthony's alibi without inculpating himself. The second, which was not recorded but was put into evidence at trial through Walter's testimony, consisted entirely of Walter's admission to police that his prior statement was a lie. Neither statement tended to inculpate Anthony. HN9Go to the description of this Headnote.When a co-defendant's extrajudicial statements do not implicate the defendant, the trial court does not abuse its discretion by denying a severance. See Riggle v. State, 585 P.2d 1382 (Okl.Cr.1978). In addition, where, as here, confessions are not involved, the mere fact that a co-defendant attempts to escape punishment by inculpating the defendant is not sufficient ground for requiring a severance. Hinds v. State, 514 P.2d 947 (Okl.Cr.1973). We leave the decision to grant or deny a severance to the discretion of the trial court, and absent an abuse thereof resulting in prejudice to the defendant we will not disturb that decision on appeal. Menefee v. State, 640 P.2d 1381 (Okl.Cr.1982). The appellant has failed to show any prejudice resulting from the joint trial; therefore this assignment is without merit.
The appellant next alleges that he was denied a fair trial due to improper comments made by the prosecutor throughout the trial. The prosecutor more than once referred to the appellant as a "snitch", commented upon the appellant's truthfulness during cross-examination, and insinuated that the appellant was having an extramarital affair. Such comments violate three of the criteria of the American Bar Association Standards of Criminal Justice "The Prosecution Function" Section 5.8 which was adopted by this Court in Dupree v. State, 514 P.2d 425 (Okl.Cr.1973). But though these and other comments were improper, most of them either were not preserved for appeal because of failure to object or to request admonition of the jury, Tahdooahnippah v. State, 610 P.2d 808 (Okl.Cr.1980); Burrows v. State, 640 P.2d 533 (Okl.Cr.1982), or were cured by the trial judge's admonitions as to those comments. Holdge v. State, 586 P.2d 744 (Okl.Cr.1978). We have therefore reviewed the record for fundamental error only. Coleman v. State, 668 P.2d 1126 (Okl.Cr.1983). In light of the overwhelming evidence in this case we are unable to conclude that the improper comments prejudiced the jury. Nor is their cumulative effect such as would warrant reversal or modification. Robison v. State, 677 P.2d 1080 (Okl.Cr.1984); Sizemore v. State, 499 P.2d 486 (Okl.Cr.1972).
In his ninth assignment of error the appellant alleges that a judgment and sentence on a 1980 Armed Robbery conviction was erroneously admitted into evidence during the second stage of the trial. We need not address this issue, however, because two other previous convictions for armed robbery were introduced into evidence. Even if it was error to admit into evidence the 1980 conviction, there is no reasonable probability that this evidence contributed to the jury's sentence. The error, if any, was therefore harmless. See Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967); Fahy v. Connecticut, 375 U.S. 85, 84 S. Ct. 229, 11 L. Ed. 2d 171 (1963).
In his tenth assignment of error the appellant alleges that the trial court should have stricken allegation number two from the Bill of Particulars because of insufficient proof that Banks killed David Fremin in order to avoid arrest or prosecution. 21 O.S.1981, § 701.12(5). HN10Go to the description of this Headnote.The focus of this aggravating circumstance is the state of mind of the murderer; it is he who must have the purpose of avoiding or preventing lawful arrest or prosecution. Parks v. State, 651 P.2d 686 (Okl.Cr.1982). Traci Banks testified that Anthony told her he killed Fremin in order to avoid being identified. Her testimony clearly addressed the issue of Anthony's state of mind at the time of the murder and provided sufficient basis for the jury to find that this aggravating circumstance existed beyond a reasonable doubt. The tenth assignment of error is without merit.
In his eleventh assignment of error the appellant claims that the trial court should have granted his demurrer to the evidence showing that he would be a continuing threat to society. We disagree. In the second stage of the trial, the State presented evidence that Anthony Banks had been previously convicted of three felonies, each involving the use of firearms and threats of violence to others. This evidence is sufficient to show the aggravating circumstance charged. Eddings v. State, 616 P.2d 1159 (Okl.Cr.1980), reversed on other grounds, 455 U.S. 104, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982), modified, 688 P.2d 342 (Okl.Cr.1984). The manner in which the murder was committed also supports a finding of this aggravating circumstance. Robison v. State, 677 P.2d 1080 (Okl.Cr.1984). To support his allegation of error the appellant cites only Boutwell v. State, 659 P.2d 322 (Okl.Cr.1983). We modified the death sentence to life imprisonment in that case because of improper instruction on one of the aggravating circumstances. That ruling does not help the appellant's contention herein because there was no error in the given instructions. The eleventh assignment of error is therefore without merit.
XII. The appellant next asserts that his motion to strike allegation number three from the Bill of Particulars should have been granted. He contends that the Bill of Particulars must include statements of the evidence that the State intends to introduce to show aggravation. He relies on the language of 21 O.S.1981, § 701.10 which reads in pertinent part: HN11Go to the description of this Headnote.Only such evidence in aggravation as the State has made known to the defendant prior to his trial shall be admissible. The purpose of the Bill of Particulars is to allow the accused to prepare a defense. The defendant herein was notified on January 26, 1981, that the State would seek the death penalty against him and which aggravating circumstances it would seek to prove, the Bill of Particulars having been filed previously. On February 2, two weeks before the trial commenced, the State made known during a hearing on motions that it intended to introduce Judgments and Sentences from three prior convictions for Robbery with Firearms in order to show that Banks would be a continuing threat to society. The prosecutors also stated that they would rely on the evidence from their case in chief in order to prove the other aggravating circumstances. At the February 17th trial, the State did in fact introduce the evidence it had specified and in the manner promised. The notice given in this case was sufficient to permit Banks to prepare his defense; therefore this assignment is without merit. The appellant also challenges the constitutionality of the aggravating circumstance that he would probably be a continuing threat to society. He asserts that it is vague and overbroad. We do not agree. See Johnson v. State, 665 P.2d 815 (Okl.Cr.1982).
In addition to the arguments raised by the appellant we must HN12Go to the description of this Headnote.make three determinations in review of the death sentence imposed in this case: whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor; whether the evidence supports the jury's or judge's finding of a statutory aggravating circumstance; and whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. 21 O.S.1981, § 701.13(c). We have fully reviewed the transcript and find it devoid of prejudice or bias. While there were some improper comments we are confident that they did not influence the passions of the jury or otherwise prejudice the jury against the appellant.
Our second determination regards the sufficiency of the evidence showing aggravating circumstances. The jury was instructed on three aggravating circumstances: (1) the defendant was convicted of prior felonies involving the use or threat of violence to the person; (2) the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution; and, (3) the existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. Traci Bank's testimony that Anthony killed David Fremin to avoid being identified is sufficient to support a finding that the murder was committed to avoid arrest or prosecution. The State introduced three certified Judgments and Sentences for Armed Robbery that were final at the time of trial below. Any one of these would be sufficient to support the jury's finding that he had been convicted of prior felonies involving the use or threat of violence to the person. Both the manner in which the murder was committed and the prior armed robbery convictions support a finding that Banks would probably commit future acts of violence constituting a continuing threat to society.
Finally, our third determination concerns the proportionality of the sentence in this case as compared to those in similar cases. In Hays v. State, 617 P.2d 223 (Okl.Cr.1980), the defendant shot the attendant of a shoe store twice in the head at close range during a robbery. The entry wounds were below the left and right ears. The defendant had been convicted of several previous felonies and he offered no evidence or testimony at trial despite the fact that he took the witness stand in his own defense. His death sentence was affirmed. The present case is similar to Hays in that the defendant shot the victim twice in the head at close range during a robbery. While Anthony Banks was, unlike Hays, not intoxicated when he killed Fremin, the difference does not significantly affect the proportionality between the two. In Parks v. State, 651 P.2d 686 (Okl.Cr.1982), the defendant killed a filling station attendant who had written down his license plate number. Parks feared that the attendant would discover that the credit card he was using was not his own. The jury panel therein found only one of the three charged aggravating circumstances: that the murder was committed to avoid prosecution. There were recorded telephonic conversations in which the defendant stated that he killed the attendant for that very purpose. The death sentence was affirmed on appeal.
In the present case Anthony Banks told his girlfriend that he killed the store attendant in order to avoid being identified in the robbery. The jury herein also found that he had committed the murder to avoid prosecution. We therefore find that the sentence given Anthony Rozelle Banks in this case is proportionate to similar cases in our state. We have also considered other cases in which the death penalty was affirmed for murders during armed robberies. Some of these murders involved multiple victims. See, e.g., Robison v. State, 677 P.2d 1080 (Okl.Cr.1984); Dutton v. State, 674 P.2d 1134 (Okl.Cr.1984); Coleman v. State, 668 P.2d 1126 (Okl.Cr.1983). These cases do not, however, tend to indicate that Bank's sentence is disproportionate.
The sentence of death by lethal drug injection in accordance with 22 O.S.1981, § 1014 is therefore AFFIRMED. PARKS, P.J., CONCURS IN RESULTS. BUSSEY, J., CONCURS.
Banks v. State, 43 P.3d 390 (2002 Okla. Crim. App. 2002). (Direct Appeal)
The court determined that viewing the evidence in a light most favorable to the State, the victim was taken forcibly from her parking lot, and transported to an apartment, where she was forced to have intercourse. Upon completion of these crimes, the victim was executed on the roadside. All the elements of felony murder in the commission of rape or kidnapping were satisfied. The only question for the jury was who committed the crimes. Defendant was one of the rapists, and he may or may not have actually pulled the trigger; if he did not, he may nevertheless have encouraged it. The court ruled that a rational jury could have convicted defendant of malice aforethought murder. Furthermore, any error in allowing a witness to be questioned after he attempted to invoke his Fifth Amendment privilege was harmless beyond a reasonable doubt, because it did not contribute to the jury's verdict. The evidence established that the aggravating circumstances outweighed the mitigating circumstances and that the jury was not influenced by passion, prejudice or any arbitrary factors. The judgment was affirmed.
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.
1 21 O.S. 1991, § 701.12. The Bill of Particulars also alleged that Banks would commit criminal acts of violence that would constitute a continuing threat to society. The jury did not find that this aggravator existed.
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. 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. 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. 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
2 State's Exhibit 52 (paraphrased).
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 testified that the sperm found on a vaginal swab matched Banks and the sperm on an anal swab matched Nelson. Forensic Chemist Julie Kempton also testified that the DNA found on Travis's pants was a mixture of Banks's and Nelson's DNA.
ISSUES RELATING TO PRETRIAL PROCEEDINGS
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. 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.
3 22 O.S. 1991, § 304 (information may be amended at any time as long as defendant's rights not materially prejudiced).
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. 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
4 Skelly v. State, 1994 OK CR 55, 880 P.2d 401, 406 (warrant containing misrepresentations not voided where otherwise supported by probable cause).
ISSUES RELATING TO FIRST STAGE PROCEEDINGS
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 both 6.
5 Spuehler v. State, 1985 OK CR 132, 709 P.2d 202, 204-05 quoting Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). 6 Lambert v. State, 1999 OK CR 17, 22, 984 P.2d 221, 229 (When a general verdict of first degree murder is returned, we consider the conviction to be a felony murder conviction. However, we will also address Banks's arguments regarding the sufficiency of the evidence for malice aforethought murder.)
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 to the car, and drove to 36th street where one or the other shot Travis in the head. HN1Go to the description of this Headnote.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
7 21 O.S.Supp. 1976, § 701.7. 8 Torres v. State, 1998 OK CR 40, 962 P.2d 3, 15, cert. denied, 525 U.S. 1082, 119 S. Ct. 826, 142 L. Ed. 2d 683 (1999). 9 Id., quoting Spears v. State, 900 P.2d 431, 438 (Okl.Cr. 1995), cert. denied, 516 U.S. 1031, 116 S. Ct. 678, 133 L. Ed. 2d 527 (1995).
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. 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. HN2Go to the description of this Headnote.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
10 21 O.S. 1971, § 741. 11 21 O.S. 1971, § 1111.
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. 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.
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 benefited from both arguments by allowing the jury to infer that his brother, Walter, could have committed the crimes. However, neither argument affected the sufficiency of the evidence to convict Banks of malice aforethought or felony murder in the commission of a kidnapping or forcible rape. This Proposition is denied.
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. 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. HN3Go to the description of this Headnote."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.
12 Jackson v. State, 1998 OK CR 39, 964 P.2d 875, 886, cert. denied, 526 U.S. 1008, 119 S. Ct. 1150, 143 L. Ed. 2d 217 (1999). 13 Id., quoting 12 O.S. 1991, § 2513(B).
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.
14 Johnson v. State, 1995 OK CR 43, 905 P.2d 818, 822.
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.
15 In closing, the State did refer to the "Walter Banks theory" but this was not a comment on his failure to testify. Instead, it was a comment on Banks's assertion that his brother Walter could have been the perpetrator.
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 have is not improper. The prosecutor's arguments were fair comments on Banks's motivation for giving his statement to the police. This proposition is denied.
16 Banks did not object to any of the comments. 17 Bernay v. State, 1999 OK CR 46, 989 P.2d 998, 1008, cert denied, 531 U.S. 834, 121 S. Ct. 92, 148 L. Ed. 2d 52 (2000). (mere suggestion of other crimes does not trigger rules regarding their admissibility).
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.
18 Schad v. Arizona, 501 U.S. 624, 645, 111 S. Ct. 2491, 2504, 115 L. Ed. 2d 555 (1991)(U.S. Constitution does not command use of separate verdict forms on alternative theories of first degree murder). 19 Hain v. State, 1993 OK CR 22, 852 P.2d 744, 752, cert. denied, 511 U.S. 1020, 114 S. Ct. 1402, 128 L. Ed. 2d 75 (1994). (single verdict form proper where evidence supports malice aforethought or felony murder).
ISSUES RELATING TO SECOND STAGE PROCEEDINGS
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. 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.
20 Le v. State, 1997 OK CR 55, 947 P.2d 535, 554, cert. denied, 524 U.S. 930, 118 S.Ct. 2329, 141 L. Ed. 2d 702 (1998).
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. HN5Go to the description of this Headnote.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
21 Tison v. Arizona, 481 U.S. 137, 158, 107 S. Ct. 1676, 1688, 95 L. Ed. 2d 127 (1987). 22 O.R. 472. 23 Cabana v. Bullock, 474 U.S. 376, 392, 106 S. Ct. 689, 700, 88 L. Ed. 2d 704 (1986), overruled in part on other grounds by Pope v. Illinois, 481 U.S. 497, 107 S.Ct. 1918, 95 L. Ed. 2d 439 (1987).
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.
24 Banks also argue in Propositions X and XI that since the jury did not and could not have made an individualized culpability finding, his death sentence was unconstitutional. We disagree and deny those arguments for the reasons stated in this Proposition.
In Proposition XIII, Banks claims that the trial court erred in overruling his Motion to Strike the Previous Felony Aggravating Circumstance as Void or alternatively, grant him a Brewer hearing. 25 Banks specifically argues that error occurred when the State presented the facts of Banks's prior conviction for an unrelated first degree murder charge without a Brewer hearing. These arguments fail.
25 Brewer v. State, 1982 OK CR 128, 650 P.2d 54, 63, cert. denied, 459 U.S. 1150, 103 S. Ct. 794, 74 L. Ed. 2d 999 (1983). (defendant allowed to stipulate to prior violent felonies). 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.
26 Cleary v. State, 1997 OK CR 35, 942 P.2d 736, 746-47, cert. denied, 523 U.S. 1079, 118 S. Ct. 1528, 140 L. Ed. 2d 679 (1998).
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. 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.
27 Smith v. State, 1991 OK CR 100, 819 P.2d 270, 277-78, cert. denied, 504 U.S. 959, 112 S.Ct. 2312, 119 L. Ed. 2d 232 (1992). (HN6Go to the description of this Headnote.when state alleges prior violent felony and continuing threat aggravating circumstances, it may introduce evidence of factual basis for stipulated felony convictions to support continuing threat aggravating circumstance).
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. HN7Go to the description of this Headnote.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
28 Romano v. State, 1995 OK CR 74, 909 P.2d 92, 119 cert. denied, 519 U.S. 855, 117 S. Ct. 151, 136 L. Ed. 2d 96 (1996). 29 Id.
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.
30 See Propositions I and IX. 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. HN8Go to the description of this Headnote.We review the evidence presented at trial in a light most favorable to the State to determine if the victim's death was preceded by conscious serious physical abuse or torture. 31
31 Romano, 909 P.2d at 118.
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.
32 Banks continues to assert, as he did in the preceding Propositions, that the evidence did not show that he participated in the acts preceding Travis's death or her death. However, as we have stated, the evidence established that Banks and Nelson committed Travis's kidnapping, rape and murder. 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. 33 Romano v. State, 1993 OK CR 8, 847 P.2d 368, 393, cert. granted in part by Romano v. Oklahoma, 510 U.S. 943, 114 S. Ct. 380, 126 L. Ed. 2d 330 (1993).
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 34 Id. 847 P.2d at 384-85 (verdicts rendered in capital sentencing procedure are general verdicts complying with Art. 7, § 15 of the
Oklahoma Constitution); and Hain v. State, 852 P.2d 744, 747-48 (Okl.Cr.1993), cert. denied, 511 U.S. 1020, 114 S. Ct. 1402, 128 L. Ed. 2d 75 (1994). (Oklahoma capital punishment system constitutional and meets established Supreme Court requirements).
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. HN9Go to the description of this Headnote.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 FOOTNOTES 35 Hain, 852 P.2d at 747-48 (upholding Oklahoma's procedure for death qualifying a juvenile).
ISSUES RELATING TO FIRST AND SECOND STAGE PROCEEDINGS
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 HN10Go to the description of this Headnote.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
36 Selsor v. State, 2000 OK CR 9, 2 P.3d 344, 354, cert. denied, 532 U.S. 1039, 121 S. Ct. 2002, 149 L. Ed. 2d 1004 (2001). 37 Id.
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. Banks next asserts that the prosecutor made improper arguments not based on the evidence. The prosecutor informed the jury that from the State's perspective, he stood proudly with his case and for justice, and that the "people of the State of Oklahoma are entitled to a guilty verdict." Although these arguments suggest that the prosecutor was impermissibly expressing personal opinion, in context, they were simply an assertion to the jury that the evidence supported a verdict of guilt. The comments were not improper. 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
38 Gilbert v. State, 1997 OK CR 71, 951 P.2d 98, 121, cert. denied, 525 U.S. 890, 119 S. Ct. 207, 142 L. Ed. 2d 170 (1998). (prosecutor's comments referring to contrived defense not error).
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 "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." Banks again objected, and the court admonished the jury to disregard the prosecutor's statement. 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.
39 Hammon v. State, 1995 OK CR 33, 898 P.2d 1287, 1305 (trial court's admonishment cures any potential error).
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. 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. In Proposition V, Banks claims that his trial counsel was ineffective. HN11Go to the description of this Headnote.To prevail on this claim, Banks must counteract our presumption that trial counsel's representation was reasonable and based upon sound trial strategy 40 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
40 Selsor, 2 P.3d at 354. 41 Id. 42 Hooks v. State, 2001 OK CR 1, 19 P.3d 294, 317.
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. Second, Banks alleges ineffective assistance in trial counsel's failure to object to inadmissible other crimes evidence. Proposition IV found that the prosecutor's comments were not improper "other crimes" references and fairly commented on the evidence. Accordingly, trial counsel was not ineffective. 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. 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
43 For the reasons asserted in this proposition, we also deny Banks 3.11 Motion to Supplement and Application for Evidentiary Hearing filed on April 9, 2001.
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
44 Selsor, 2. P.3d at 355.
MANDATORY SENTENCE REVIEW
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, HN12Go to the description of this Headnote.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
45 Bernay v. State, 1999 OK CR 46, 989 P.2d 998, 1015 (Okl.Cr.1999), cert. denied, 531 U.S. 834, 121 S. Ct. 92, 148 L. Ed. 2d 52 (2000). 46 Hooks, 19 P.3d at 318.
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.
47 They were as follows: (1) the defendant has been incarcerated since 1979; (2) the defendant has not committed any crimes since 1980; (3) the defendant has changed his personality over the last twenty (20) years; (4) the defendant can be rehabilitated and has shown evidence of that rehabilitation during the period of his incarceration; (5) the defendant had a religious conversion which has changed the way he conducts his life; (6) the defendant is a stabilizing presence in prison society; (7) the defendant conducts himself well in the structured environment of prison; (8) the defendant was under the influence of mental/emotional disturbance; (9) the defendant's emotional/family history; (10) the defendant was turned out of his home when he was fifteen (15) years old; (11) the defendant had no strong father figure to guide his emotional growth until he was incarcerated in prison. 48 The jury found (1) that Banks had previously been convicted of a felony involving the threat or use of violence to a person; (2) that the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution; (3) that the murder was heinous, atrocious and cruel. The jury did not find that Banks would pose a continuing threat to society. 49 We found in Propositions XIV and XV that the evidence was sufficient to support two of the aggravating circumstances. At trial, Banks stipulated to the previous violent felony aggravating circumstance.
The Judgment and Sentence is AFFIRMED. OPINION BY: CHAPEL, J. LUMPKIN, P.J.: CONCUR IN RESULTS, JOHNSON, V.P.J.: CONCUR, STRUBHAR, J.: CONCUR, LILE, J.: CONCUR IN RESULTS, CONCUR BY: LUMPKIN.
Banks v. Workman, 692 F.3d 1133 (10th Cir. Okla. 2012). (Habeas)
Petitioner inmate appealed from the United States District Court for the Northern District of Oklahoma, which denied his habeas petition under 28 U.S.C.S. § 2254, but granted him a certificate of appealability to pursue several arguments before the appellate court.
OVERVIEW: The inmate first claimed that his conviction violated his rights under the Sixth Amendment Confrontation Clause. At trial, the government asked the inmate's brother: Did your brother tell you that he killed the victim? The brother remained silent. The court agreed with both the state appeals court and the district court that the admission of the challenged testimony was harmless. The court failed to accept the inmate's argument that the prosecution violated Brady v. Maryland when the state did not disclose a note written by a corrections officer who interviewed his codefendant's mother. The note was inadmissible because it contained two layers of hearsay. The inmate also asserted that his expert witness came to court intoxicated and his lawyers never bothered to seek a continuance so the witness could sober up. He contended this violated his due process right to a competent mental health expert and his Sixth Amendment right to effective assistance of counsel. The court refused to excuse the inmate's default, rejecting his alternative assertions that Okla. Stat. tit. 22, § 1089(D)(8), was neither adequate nor independent, and that he had shown cause and prejudice for the default.
GORSUCH, Circuit Judge.
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.
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.
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."
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.
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).
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.
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, 2002 OK CR 9, 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. HN1Go to the description of this Headnote.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, HN2Go to the description of this Headnote.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, 1997 OK CR 6, 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
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.
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.
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. HN4Go to the description of this Headnote.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. HN5Go to the description of this Headnote.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, 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 HN6Go to the description of this Headnote.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 HN7Go to the description of this Headnote.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
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.
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 HN8Go to the description of this Headnote.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
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.
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 HN9Go to the description of this Headnote.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 non-compliance 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.
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. HN11Go to the description of this Headnote.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, 2002 OK CR 20, 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, 682 F.3d 880, 485 Fed. Appx. 917 (Okla. Crim. App. 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, 2006 OK CR 25, 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 HN14Go to the description of this Headnote.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 HN15Go to the description of this Headnote.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, 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.
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 HN16Go to the description of this Headnote.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, 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, 1998 OK CR 1, 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.
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). HN18Go to the description of this Headnote.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. HN19Go to the description of this Headnote.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
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.
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.