Banks v. State, F-81-179
| Citation | 1985 OK CR 60,701 P.2d 418 |
| Decision Date | 30 May 1985 |
| Docket Number | No. F-81-179,F-81-179 |
| Parties | Anthony Rozelle BANKS, Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Robert S. Lowery, Tulsa, for appellant.
Michael C. Turpen, Atty. Gen. of Oklahoma, William H. Luker, Asst. Atty. Gen., Oklahoma City, for appellee.
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 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, 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
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:
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 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 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. 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):
After the court has asked jurors as to their legal qualifications, it is hardly necessary for the state or defendant's counsel to...
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