Banks v. State

• Court: United States State Court of Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
• Writing for the Court: BRETT; BUSSEY
• Citation: Banks v. State, 728 P.2d 497, 1986 OK CR 166 (Okla. Crim. App. 1986)
• Decision Date: 06 November 1986
• Docket Number: No. F-81-633,F-81-633
• Parties: Walter Thomas BANKS, Appellant, v. STATE of Oklahoma, Appellee.

Page 497

728 P.2d 497

Walter Thomas BANKS, Appellant, v. STATE of Oklahoma, Appellee.

No. F-81-633.

Court of Criminal Appeals of Oklahoma.

Nov. 6, 1986.

Robert S. Lowery, Tulsa, for appellant.

Michael C. Turpen, Atty. Gen., William H. Luker, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

BRETT, Judge:

On April 11, 1978, the appellant, Walter Thomas Banks, and his brother, Anthony Rozelle Banks, robbed a convenience store at the corner of 36th and Sheridan streets in Tulsa. Anthony shot and killed the clerk on duty, David Paul Fremin, while Walter stood watch outside. The two brothers were charged with First Degree Murder and were tried conjointly in Tulsa County District Court, Case No. CRF-79-3393, the Honorable Joe Jennings presiding. The jury found both defendants guilty as charged and sentenced Anthony to death by lethal injection; the sentence for Walter was life imprisonment. The death sentence for Anthony Banks has been affirmed. Banks v. State, 701 P.2d 418 (Okl.Cr.1985). Walter Banks has perfected this appeal.

The murder case had been unresolved for many months when Anthony Banks, seeking leniency on an unrelated armed robbery charge, offered to give information on Fremin's murder. On November 7, 1979, Anthony gave a statement to an assistant district attorney for Tulsa County, which statement was tape-recorded and later played for the jury. In this statement Anthony said that he and the appellant, Walter Banks, were buying beer and snacks at the Git-N-Go store when a man named McClure entered the store with a gun, told them to leave, and then shot the clerk. McClure then, according to Anthony, left the store with a paper bag and the cash drawer and forced Walter and Anthony at gunpoint to give him a ride across town.

After Anthony gave this statement, the police made some progress with physical evidence left at the crime scene and identified a latent fingerprint as that of Anthony Banks. On November 9, 1979, appellant herein, Walter Banks, gave a statement corroborating Anthony's account of the murder. However, Walter said that McClure had been with him and Anthony all evening at a party and that McClure left the party with them when they took another friend home. The discrepancies between the two stories raised further police suspicions and soon police were able to locate Anthony's ex-wife, Traci Banks, who gave a much different account of the evening's events.

At trial Traci testified that she and appellant Walter Banks, his brother Anthony, Becky Moore and another man, were in Walter and Anthony's apartment in Tulsa. 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 testified that as she helped Anthony count the money he told her that he and Walter had robbed the Git-N-Go store at 36th and Sheridan and that Walter had kept watch outside while Anthony killed the clerk.

Walter testified, however, that he and Anthony had left the apartment to take a drunken friend home and that Anthony had expressed some regret that since he was unemployed he could not help Walter pay their rent. According to Walter, Anthony stated that he would have to "make a hustle" to come up with some money. Anthony dropped Walter off at the apartment of Walter's girlfriend and picked him up again about forty-five minutes later with a paper sack and a money drawer in the back seat. The two returned to their apartment, Walter taking time to park the car. When he entered the apartment Anthony and Traci were counting money. Thus, if believed, Walter's testimony would have placed him at his girlfriend's apartment at the time of the murder rather than with Anthony as Anthony stated.

The appellant first argues that he was prejudiced by the trial court's refusal to grant a severance so that he and his codefendant might be tried separately.

The record clearly shows, however, that the appellant withdrew his motion for severance and acquiesced to a joint trial. At a hearing on motions held on December 19, 1980, Walter Banks' attorney stated, "First, I would inform the court that my client Walter Banks requests that I withdraw our motion for severance." The trial judge then asked the appellant himself whether he wished to withdraw his motion for severance and the appellant responded affirmatively. The court then allowed the motion to be withdrawn. At a later hearing on February 9, 1981, the appellant again stated, through his attorney, his desire not to present a motion for severance. He did not reassert or present such a motion at any time thereafter and announced ready for trial at the outset of trial proceedings on February 17, 1981.

The decision to grant or deny a motion for severance is within the sound discretion of the trial court, and this Court will not disturb such a ruling absent a showing of prejudice affecting a substantial right of the defendant. Hightower v. State, 672 P.2d 671, 677 (Okl.Cr.1983). In accordance with our decision in Hightower, we hold that where a defendant withdraws his motion for severance from consideration by the trial court, he fails to properly preserve the severance issue for appellate review. The defendant failed to meet his burden of producing evidence to the trial court to show how he would be prejudiced by the joinder. Id. at 677. Moreover, on this record, we cannot say that the trial court abused its discretion in failing to grant a severance on its own motion. Jones v. State, 527 P.2d 169, 174 (Okl.Cr.1974), overruled on other grounds, Fulton v. State, 541 P.2d 871, 872 (Okl.Cr.1975). This assignment of error is without merit.

Appellant further contends that the admission into evidence of his codefendant's taped confession violated his Sixth Amendment right to confrontation. U.S. Const. amend. VI. Initially, we note that appellant's counsel failed to properly preserve this issue with a timely and specific objection at trial. 12 O.S.1981, § 2104(A)(1).

Nevertheless, the United States Supreme Court has held that the Confrontation Clause is not violated by admitting out-of-court statements made by a codefendant so long as the codefendant testifies as a witness and is subject to full and effective cross-examination. California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 1935, 26 L.Ed.2d 489 (1970). Appellant's right of confrontation was satisfied when his independent counsel engaged in extensive cross-examination of Anthony at trial. See Tennessee v. Street, 471 U.S. 409, ----, 105 S.Ct. 2078, 2081-82, 85 L.Ed.2d 425 (1985). Recently, the United States Supreme Court has made it clear that the presumption of unreliability applicable to the confessions of codefendants is intended to protect the defendant when he is denied the benefits of cross-examination. Lee v. Illinois, --- U.S. ----, ----, 106 S.Ct. 2056, 2062-63, 90 L.Ed.2d 514 (1986). Therefore, on the record presented, appellant's right to confrontation was adequately preserved because Anthony testified at trial and was subject to full and effective cross-examination by appellant's independent counsel.

Likewise, the foregoing reasons demand that the same result applies to Traci Banks' testimony regarding statements made to her by Anthony. The rule announced in Bruton v. United States, 391 U.S. 123, 136-37, 88 S.Ct. 1620, 1628, 20 L.Ed.2d 476 (1968), that limiting instructions are not sufficient to cure prejudice resulting from admitting into evidence a codefendant's extrajudicial confession implicating the defendant, when the codefendant refuses to testify and thus cannot be cross-examined, does not apply here. The reliability of the codefendant's statements was in fact tested by cross-examination.

Moreover, Anthony's so-called "confession" cannot easily be seen as a true confession because it does not directly incriminate either Anthony or the appellant as the perpetrator of the robbery or murder. See Banks v. State, 701 P.2d 418, 425 (Okl.Cr.1985). Anthony's extrajudicial statements are circumstantially damaging to the appellant only to the extent that the jury disbelieved Anthony's claim that Billy McClure committed the robbery, but accepted as true Anthony's statement that the appellant was present at the scene of the murder, in spite of appellant's claim to have been at his girlfriend's apartment. Even so, we find that the truth-seeking process was reliable because the jury was aided by the benefit of cross-examination of Anthony by appellant's independent counsel. Additionally, the appellant was further protected from any unfair prejudice by the limiting instruction given by the trial court informing the jury not to consider Anthony's statements against the appellant. Hence, this assignment of error is without merit.

The appellant next asserts that the trial court committed reversible error in overruling his motion for directed verdict at the close of the State's evidence. We disagree.

In the present case the defendant presented evidence in his behalf after requesting a directed verdict. When, as here, a defendant goes forward with his own evidence, electing not to rely on his motion, he waives objection to the motion's being overruled. Rudd v. State, 649 P.2d 791, 794 (Okl.Cr.1982). This Court will then review the evidence of the entire trial, including the defendant's own, in determining the sufficiency of the evidence. Rudd v. State, 649 P.2d 791, 794 (Okl.Cr.1982).

Admittedly, the State's evidence against the appellant is circumstantial. When such is the case, the State's evidence need not exclude every possibility other than guilt but must merely exclude every reasonable hypothesis other than guilt. White v. State, 607 P.2d 713, 715 (Okl.Cr.1980). This circumstantial evidence will be viewed in the light most favorable to the State. Renfro...