Banks v. Reynolds, 94-5156

• Decision Date: 26 April 1995
• Docket Number: No. 94-5156,94-5156
• Citation: 54 F.3d 1508
• Parties: Anthony Rozelle BANKS, Petitioner-Appellee, v. Dan M. REYNOLDS, Warden, Oklahoma State Penitentiary, McAlester, Oklahoma; Susan B. Loving, Attorney General of Oklahoma, Respondents-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1508

54 F.3d 1508

Anthony Rozelle BANKS, Petitioner-Appellee, v. Dan M. REYNOLDS, Warden, Oklahoma State Penitentiary, McAlester, Oklahoma; Susan B. Loving, Attorney

General of Oklahoma, Respondents-Appellants.

No. 94-5156.

United States Court of Appeals, Tenth Circuit.

April 26, 1995.

Sandra D. Howard, Asst. Atty. Gen. (Susan B. Loving, Atty. Gen., with her on the brief), Oklahoma City, OK, for appellants.

James T. Priest, McKinney, Stringer & Webster, P.C., Oklahoma City, OK, for appellee.

Before MOORE, ANDERSON, and BALDOCK, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

Anthony Rozelle Banks was convicted of first-degree murder for the 1978 shooting of David Fremin, and he presently is incarcerated at the Oklahoma State Penitentiary under a sentence of death. Mr. Banks filed this, his first federal habeas corpus petition, raising twenty-seven claims. The district court entered judgment in favor of Mr. Banks on three of these claims: (1) that the prosecution had suppressed exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); (2) that Mr. Banks received ineffective assistance from his trial counsel; and (3) that he received ineffective assistance from his appellate counsel. ¹ The court ordered that Mr. Banks was to be retried within 120 days or the writ of habeas corpus would issue. The State has appealed. ²

After careful review of the record in this case, we hold that the prosecution's failure to disclose material exculpatory evidence to the defense rendered the jury's verdict and death sentence constitutionally infirm. Accordingly, exercising jurisdiction pursuant to 28 U.S.C. Sec. 1291, we affirm.

BACKGROUND

On April 11, 1978, David Fremin, the night clerk at a Git-N-Go convenience store in Tulsa, Oklahoma, was shot and killed during an armed robbery. Approximately one week later, a preliminary information was filed against Terrence Wallace Dean, and he was arrested for the crime. Two witnesses, William Gullick and Thomas Landsaw, identified Dean, through a photographic lineup, as having been in the store just prior to the murder. ³

On May 31, 1978, the charges against Dean were dropped and an indictment was obtained against another man, Norman Lee Hicks. Hicks' name had been inserted as the payee on one of the money orders taken in On November 7, 1979, eighteen months after the crime, while in the Tulsa County jail on an unrelated charge, Anthony Banks gave a recorded statement to a Tulsa County assistant district attorney, Ron Shaffer, implicating Billy James McClure as the individual who had murdered David Fremin. ⁵ During the course of this statement, Mr. Banks acknowledged his own presence at the scene of the crime, but denied any involvement in the robbery or the murder. Two days later, Anthony's brother, Walter Thomas Banks, also gave a statement to the district attorney's office implicating McClure. The State filed murder charges against McClure on November 14, 1979.

                the Git-N-Go robbery.  At the preliminary hearing, Gullick and Landsaw both testified that they had misidentified Dean as the individual they had seen in the store the morning of the murder, and that it had in fact been Hicks whom they had witnessed. 4  In addition, Wayne Conn testified that Hicks had confessed the crime to him while the two were in jail together.  Following the preliminary hearing, Hicks was bound over for trial on the first-degree murder charge.  Several months later, however, the State amended the indictment to possession of a forged instrument and dropped the first-degree murder charge.  Hicks pled guilty to the forgery charge.  Throughout the proceedings, Hicks was represented by Leslie Earl, an attorney with the Tulsa County Public Defender's Office
                

The information was amended on July 29, 1980, to include charges against Anthony and Walter Banks, as codefendants in the Fremin murder. On September 9, 1980, following a preliminary hearing, Anthony and Walter Banks were bound over for trial. The court granted a demurrer with respect to McClure, however, finding insufficient evidence to bind him over. R.Vol. II, Banks Prelim. at 197-98.

The Tulsa County Public Defender's Office had been appointed to represent both Anthony and Walter Banks. However, because of a conflict of interest, the office withdrew as counsel to Walter. He was represented at trial by Howard Sell, a private Tulsa attorney. Anthony Banks was represented by Leslie Earl, the same public defender who previously had represented Norman Hicks on the Fremin murder charge.

During pretrial discovery, defense counsel sought from the Tulsa County District Attorney's Office and the Tulsa Police Department any materials "which could reasonably affect the determination of the Defendant's guilt or innocence ... whether or not the State feels the material is exculpatory in nature." R.Vol. II, Motion to Produce (Sept. 12, 1980) at 1. At a motion hearing, in response to defense counsel's inquiry as to whether all exculpatory or mitigating evidence had been turned over, the prosecuting attorney responded, "I do not know of anything in my file that would mitigate punishment that they [defense counsel] don't already have." R.Vol. II, Motion Hearing (Feb. 9, 1981) at 8.

Notwithstanding the request from defense counsel and the affirmative representations of the prosecuting attorney, the prosecution failed to disclose any information regarding the prior arrests of Dean and Hicks, the eye witness accounts, the testimony of Wayne Conn that Hicks confessed the crime to him, the fact that Hicks had been bound over for the Fremin murder on a finding of probable cause, or Hicks' guilty plea on the possession of a forged instrument charge.

Anthony and Walter Banks were tried in February 1981. The following evidence was presented at trial:

(1) Traci Banks, who had been Anthony Banks' girlfriend at the time of the murder ⁶ and who had been living with him at Walter's apartment, testified that at approximately 3:00 a.m. on the morning of April 11, 1978, Anthony, Walter, and a friend, Val Gene Hicks, ⁷ had left the apartment to "go do something" at the Git-N-Go store on 64th and Peoria. R.Vol. II, Trial Tr. at 126. She testified that Anthony and Walter returned at approximately 5:00 a.m. and that Anthony had with him a small brown box containing paper money, coins, food stamps, money orders, and a wallet belonging to David Fremin. Id. at 128-29. She testified that she took note of Mr. Fremin's age, twenty-one, because he "had just had a birthday in February." Id. at 140.

Ms. Banks testified that Anthony told her he and Walter had robbed the Git-N-Go. According to her account, Walter kept watch outside while Anthony went in, robbed the store, and shot Mr. Fremin. She testified that Anthony told her he shot Fremin because he wanted to avoid being identified. Id. at 130-31. Finally, Traci testified that Anthony and Walter left at approximately 5:30 a.m. to go to "the north side" in order to dispose of the brown box, money orders, and wallet. Id. at 131-32.

(2) Walter Banks testified that he and Anthony had left the apartment at approximately 2:00 a.m. in order to take Val Gene Hicks to his apartment. He disputed Ms. Banks' testimony that he and Anthony had discussed going to the Git-N-Go store, however. Walter testified that after the two men dropped Hicks off at his apartment, Anthony told him that he intended to "make some kind of hustle," which Walter took to mean steal some money. Id. at 275, 298. Walter claimed that he did not want to be involved and that he, therefore, had Anthony drop him off at his girlfriend's apartment. ⁸ According to Walter, Anthony returned approximately thirty minutes later, at which time the two of them returned to Walter's apartment. Although he testified that he observed a brown paper sack and a tray in the back seat of the car, Walter claimed he and Anthony did not discuss the items or where Anthony had obtained them. Walter stated that upon return to the apartment, he observed Traci and Anthony counting money. Again, however, Walter claimed that he made no inquiry regarding the money.

(3) Robert Yerton, a fingerprint expert, testified that eighteen latent prints had been lifted from the crime scene. Of those, one palm print, lifted from the counter at the convenience store, was identified as belonging to Anthony Banks.

(4) Anthony Banks testified in his own behalf, relating the same story he previously had told police. He testified that at approximately 2:15 a.m. on the morning of April 11, he and Walter took Val Gene Hicks home. Afterwards, they stopped at the Git-N-Go, a store that Anthony claimed he frequented, in order to get some beer and a sandwich. He claimed that as he stood at the counter talking to Fremin, whom he had known for some time, Billy McClure entered the store carrying a handgun and motioned for Anthony and Walter to leave. ⁹ He testified that as they were exiting the store, they heard a gunshot. McClure then came out of the store carrying the cash drawer and forced the Banks brothers, at gunpoint, to drive him to north Tulsa, where McClure got out and the Banks brothers drove on. Anthony testified that a few days later, as he and Walter cleaned out the car, they found some money orders, apparently left by McClure, which Anthony took to Norman Hicks. Hicks was going to pass the money orders and split the proceeds with Anthony.

Following eight hours of deliberation, the jury found both Anthony and Walter guilty of first-degree murder. During the penalty phase of the trial, the jury found three statutory aggravating factors against Anthony Banks: (1) he had previously been convicted of a violent felony 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 he would commit criminal acts of...