Banks v. State, PC-89-1073

• Decision Date: 19 April 1991
• Docket Number: No. PC-89-1073,PC-89-1073
• Parties: Anthony Rozelle BANKS, Petitioner, v. The STATE of Oklahoma, Respondent.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1286

810 P.2d 1286

Anthony Rozelle BANKS, Petitioner, v. The STATE of Oklahoma, Respondent.

No. PC-89-1073.

Court of Criminal Appeals of Oklahoma.

April 19, 1991.

An Appeal from the District Court of Tulsa County; Joe Jennings, District Judge.

Anthony Rozelle Banks, Petitioner, moved to strike his prior post-conviction application and file a second amended application for post-conviction relief in Case No. CRF-79-3393 in the District Court of Tulsa County before the Honorable Joe Jennings, District Judge. The district court denied both the motion to strike and the filing of the second amended application for post-conviction relief. The district court order is AFFIRMED.

Jim T. Priest, McKinney, Stringer & Webster, Oklahoma City, for petitioner.

Robert H. Henry, Atty. Gen., Sandra D. Howard, Asst. Atty. Gen., Oklahoma City, for respondent.

OPINION

LANE, Vice-Presiding Judge:

Anthony Rozelle Banks, Petitioner, is before the Court on his second application for post-conviction relief. Petitioner was tried jointly with his brother Walter Thomas "Tony" Banks for the murder of David Fremin, a clerk at a Tulsa Git-N-Go convenience store, and was sentenced to death in Tulsa County District Court, Case No. CRF-79-3393. Walter "Tony" Banks was sentenced to life imprisonment. This Court unanimously affirmed the petitioner's judgement and sentence in Banks v. State, 701 P.2d 418 (Okl.Cr.1985), and that of his brother in Banks v. State, 728 P.2d 497 (Okl.Cr.1986). We affirmed the denial by the district court of petitioner's first application for post-conviction relief in PC-86-765 (unpublished order). Petitioner is now asking this Court to review the validity of his conviction and sentence for the third time.

The petitioner recognizes that he must establish ineffective assistance of appellate counsel in order for this Court to consider the bulk of his application for post-conviction relief. Absent ineffective assistance of counsel, seven (7) of the twenty nine (29) issues he raises herein are barred by res judicata for they were raised on direct appeal ¹, see Coleman v. State, 693 P.2d 4 (Okl.Cr.1984); 22 O.S.1981, § 1086. Nineteen (19) of the propositions would be waived for they could have been raised on appeal or on the first application for post-conviction relief ². See 22 O.S.1981, § 1086, Smith v. State, 546 P.2d 1351 (Okl.Cr.1976).

Ineffective assistance of appellate counsel, the second issue raised in the petitioner's brief is thus key to our consideration of the majority of the petitioner's argument and will be addressed first. The petitioner alleges three categories of ineffective assistance of appellate counsel. He argues that the issues presented on appeal were poorly presented; that nine (9) critical issues were not raised; and that appellate counsel failed to investigate and raise four (4) critical issues not readily apparent from the record. His final argument in support of the allegation of ineffective assistance of counsel is that by representing both the petitioner and his brother on appeal, counsel's conflict of interest made him ineffective per se. We will address each of these arguments in the order presented.

An accused person is guaranteed assistance of counsel by both the state and federal constitutions. See Okla. Const. art. II, §§ 7 and 20, U.S. Const. amends. VI, and XIV. The Supreme Court explained in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) that unless the assistance counsel renders is reasonably effective, an accused is denied the constitutional guarantee of counsel. We recognized in Cartwright v. State, 708 P.2d 592 (Okl.Cr.1985) that the Strickland standard of reasonable effectiveness applies to both trial and appellate counsel. Id. at 594. We expressly hold that the standard of reasonable effectiveness applies to both trial and appellate counsel under the state constitution as well.

Addressing the appellant's first argument, we begin with the observation that it is undeniably true that some appellate briefs are written better than others. Those briefs submitted by both appellant and appellee which are well researched, accurate, concise, clear and to the point are of true benefit to the Court. Not all briefs rise to this level of excellence. However, a brief reaches the minimal level constitutionally acceptable if it sufficiently raises relevant issues for the Court to consider and address.

The petitioner does not claim the issues raised on direct appeal and in his first application for post-conviction relief were not fully considered by the Court. He simply argues that they could have been more effectively presented. We find that the briefs submitted on direct appeal and in support of the first application for post-conviction relief were supported with relevant authority, and therefore were sufficient to raise the issues for our consideration. See Tibbitts v. State, 778 P.2d 925 (Okl.Cr.1989), Guy v. State, 778 P.2d 470 (Okl.Cr.1989).

Petitioner next presents nine (9) issues which were not raised previously and argues that appellate counsel's failure to raise these proves he was ineffective. The mere fact that counsel does not raise every nonfrivolous error on appeal is not necessarily evidence of ineffectiveness. In fact, in most cases this is persuasive evidence of effectiveness of appellate counsel. We made this point in Cartwright v. State, 708 P.2d at 594 by quoting Chief Justice Burger who, in writing for the majority in Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983), quoted Justice Jackson:

Legal contentions, like the currency, depreciate through over-issue. The mind of an appellate judge is habitually receptive to the suggestion that a lower court committed an error. But receptiveness declines as the number of assigned errors increases. Multiplicity hints at lack of confidence in any one ... [E]xperience on the bench convinces me that multiplying assignments of error will dilute and weaken a good case and will not save a bad one. Jackson, Advocacy before the Supreme Court, 25 Temple L.Q. 115, 119 (1951).

Jones, 463 U.S. at 752, 103 S.Ct. at 3313, 77 L.Ed.2d at 994. We brought the point closer to home in Cartwright with the following observation of Professor Kershen of the University of Oklahoma College of Law:

The appellate attorney must evaluate the possible legal issues in order to determine which issues are worth pursuing and which issues should be discarded. If he fails to winnow the strong issues from the weak, the attitude of the appellate court may well be anger because the attorney has failed to do his job and as a consequence is wasting the court's time with meaningless verbiage. Kershen, The Written Brief for Criminal Cases in Oklahoma, 35 Okl.L.Rev. 499 (1982).

708 P.2d at 594. Plainly, all nonfrivolous issues need not, and should not be raised in an effective appellate brief. However, failure to raise an issue warranting reversal, modification of sentence, or remand for resentencing may well prove counsel was ineffective. In order to determine if such is the case here, we have addressed each of the errors the petitioner asserts in support of his argument that appellate counsel was ineffective. In light of the fact that this is a capital case, we will set forth our analysis of each of the nine (9) issues raised.

Petitioner filed a motion to suppress his statement to the police in which he stated he witnessed the Fremin murder. When he reasserted the motion at trial, it was denied by the trial court. He did not raise the issue on appeal or in his first application for post-conviction relief, and argues now that it should have been raised. Petitioner argues that the statement should have been suppressed because it was made during the course of plea negotiations. While he was being held on the unrelated charges of burglary, two armed robberies and escape the petitioner sent word via the jailer to the district attorney that he had information regarding an unsolved homicide which he would like to discuss. Petitioner testified that "it is common knowledge in the jail system that if you have some knowledge of a crime that some deals can be made if you testify in another case; you can get leniency on what you are arrested for". The district attorney arranged to talk with him, and in the presence of the district attorney and two or three Tulsa police officers a tape recorded statement was taken. In that statement, which was played to the jury, the petitioner stated that Billy McClure entered the Git-N-Go while he and his brother were there, shot Fremin, and demanded at gunpoint that the petitioner give him a ride to the North side of Tulsa.

Under 12 O.S.1981, § 2410 an offer to plead guilty or nolo contendere to the crime charged or any other crime and statements related to these pleas are, with some exceptions not relevant here, inadmissible. The determinative question is therefore whether the petitioner made his statement in connection with and relevant to an offer to plead guilty or nolo contendere. This court has established a two-step analysis to determine this question. The statement is inadmissible if two (2) factors are present; the accused exhibited an actual subjective expectation to negotiate a plea at the time of the discussion, and this expectation was reasonable given the totality of the objective circumstances. Gillum v. State, 681 P.2d 87, 88 (Okl.Cr.1984).

The record does not support the petitioner's contention that he made his statement in conjunction with a plea of guilty or nolo contendere to any crime. Nowhere in the record does any evidence indicate the petitioner expected to negotiate a plea at the time he made his tape recorded statement. On this record we find that the petitioner made his statement with the subjective expectation of future benefit, but not in the course of plea negotiations as defined by Gillum, Id. Finding that the statement was not made during plea...