Tenth Affirms Capital Conviction and Sentence, Rejecting Claims of Improper Prosecutorial Questioning, Comments, and Suppression of Evidence
Banks v. Workman, 2012 WL 3834733 (9/5/12) (Okl.) (Published) - The 10th affirms yet another addition to the death penalty rolls in Oklahoma. It was improper for the trial judge to let the state repeatedly question the defendant's brother in front of the jury. He repeatedly refused to answer based on his Fifth Amendment privilege. One of the questions was whether the petitioner admitted to the brother that he killed the victim. This error was harmless. [The evidence was strong that the victim was forced to enter the car and that the petitioner was present for the abduction and killing and DNA evidence indicated the petitioner raped the victim. And besides the state didn't argue for any inference from the brother's silence]. The 10th suggested the petitioner defaulted the argument that the questioning affected the malice-aforethought theory of conviction, not just the felony murder theory. But, in any event, there was ample evidence the petitioner aided and abetted the murder where he drove the car. And the questioning was not prejudicial with respect to the death sentence. [The petitioner never made a residual doubt argument. Even if the jury would have otherwise thought the petitioner was not the triggerman, contrary to what the brother's questioning implied, juries kill non-triggermen lots of times, the 10th says. And the state presented evidence the petitioner explained he previously shot a cashier in the head because "dead men tell no tales." And the petitioner had a really bad record and the murder was heinous.]
The note the state suppressed indicating the petitioner's brother possibly committed the murder was not material because it wasn't admissible [it was double hearsay and the note might have referred to a different murder by the brother and hearsay rules applied at the death phase] and wouldn't lead to admissible evidence [if the brother was involved, the petitioner would already have known that, since he admittedly was present]. The 10th found a claim to be defaulted because Okl.'s rules governing successive petitions were adequate, even though state courts have some discretion to consider a successive petition, and the rules were independent from a federal constitutional determination, since more than just the existence of a valid constitutional claim was required before a court would consider a successive petition. The petitioner contended there was cause for the default: the failure of post-conviction counsel to raise the ineffectiveness of appellate counsel for failing to raise the ineffectiveness of trial counsel for failing to raise the intoxication of the defense's own expert witness [do you follow that?]. Martinez v. Ryan, 132 S. Ct. 1309 (2012),in which the S. Ct. permitted IA of post-conviction counsel to be cause under certain circumstances, was inapplicable here because (1) it only applies to allegations of trial, not appellate, counsel, and (2) Oklahoma, unlike Arizona in Martinez, does allow appellate counsel to raise the ineffectiveness of trial counsel on direct appeal.
Various prosecutor comments did not warrant relief. Implying during the guilt phase that the petitioner had a prior record was proper where it put in context his volunteering to authorities information about the crime. Evidence supported the claim the petitioner took turns with another man in raping the victim. It was wrong to refer to the petitioner as an animal, monster and a Mafia-style killer. But this was harmless. [The bulk of the argument was just fine and the crime was so gruesome the prosecutor couldn't inflame the jury much more]. The exhibit listing all of the petitioner's crimes with the title "trail of terror," even if improper, was not prejudicial. [The jury rejected the claim the petitioner was a continuing threat.] It was an improper comment on silence to say, in response to the claim the defendant had a religious conversion: "the petitioner has never come forward, not even in this week, to be accountable for what has taken place." But the error was harmless because the judge instructed the jury to ignore that comment and the jury is presumed to follow its instructions. Cumulative error was not prejudicial enough. The 10th ends with the tried and true bromide: "Mr. Banks may not have received a perfect trial, if such a thing exists, but he did receive a trial that conformed to the constitution and laws of the U.S. That's all we can require."
The note the state suppressed indicating the petitioner's brother possibly committed the murder was not material because it wasn't admissible [it was double hearsay and the note might have referred to a different murder by the brother and hearsay rules applied at the death phase] and wouldn't lead to admissible evidence [if the brother was involved, the petitioner would already have known that, since he admittedly was present]. The 10th found a claim to be defaulted because Okl.'s rules governing successive petitions were adequate, even though state courts have some discretion to consider a successive petition, and the rules were independent from a federal constitutional determination, since more than just the existence of a valid constitutional claim was required before a court would consider a successive petition. The petitioner contended there was cause for the default: the failure of post-conviction counsel to raise the ineffectiveness of appellate counsel for failing to raise the ineffectiveness of trial counsel for failing to raise the intoxication of the defense's own expert witness [do you follow that?]. Martinez v. Ryan, 132 S. Ct. 1309 (2012),in which the S. Ct. permitted IA of post-conviction counsel to be cause under certain circumstances, was inapplicable here because (1) it only applies to allegations of trial, not appellate, counsel, and (2) Oklahoma, unlike Arizona in Martinez, does allow appellate counsel to raise the ineffectiveness of trial counsel on direct appeal.
Various prosecutor comments did not warrant relief. Implying during the guilt phase that the petitioner had a prior record was proper where it put in context his volunteering to authorities information about the crime. Evidence supported the claim the petitioner took turns with another man in raping the victim. It was wrong to refer to the petitioner as an animal, monster and a Mafia-style killer. But this was harmless. [The bulk of the argument was just fine and the crime was so gruesome the prosecutor couldn't inflame the jury much more]. The exhibit listing all of the petitioner's crimes with the title "trail of terror," even if improper, was not prejudicial. [The jury rejected the claim the petitioner was a continuing threat.] It was an improper comment on silence to say, in response to the claim the defendant had a religious conversion: "the petitioner has never come forward, not even in this week, to be accountable for what has taken place." But the error was harmless because the judge instructed the jury to ignore that comment and the jury is presumed to follow its instructions. Cumulative error was not prejudicial enough. The 10th ends with the tried and true bromide: "Mr. Banks may not have received a perfect trial, if such a thing exists, but he did receive a trial that conformed to the constitution and laws of the U.S. That's all we can require."
posted by Anonymous at 2:48 PM
<< Home