Banks v. Workman

• Decision Date: 05 September 2012
• Docket Number: No. 10–5125.,10–5125.
• Citation: 692 F.3d 1133
• Parties: Anthony Rozelle BANKS, Petitioner–Appellant, v. Randall WORKMAN, Warden, Oklahoma State Penitentiary, Respondent–Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

692 F.3d 1133

Anthony Rozelle BANKS, Petitioner–Appellant,

v.Randall WORKMAN, Warden, Oklahoma State Penitentiary, Respondent–Appellee.

No. 10–5125.

United States Court of Appeals,Tenth Circuit.

Sept. 5, 2012.

Thomas D. Hird, Assistant Federal Public Defender, Oklahoma City, OK, (Randy A. Bauman, Assistant Federal Public Defender, with him on the briefs) for Petitioner–Appellant Anthony Banks.

Jennifer B. Miller, Assistant Attorney General for the State of Oklahoma, Oklahoma City, OK, (E. Scott Pruitt, Attorney General for the State of Oklahoma, with her on the briefs) for Respondent–Appellee Randall Workman.

Before MURPHY, O'BRIEN, and GORSUCH, Circuit Judges.

GORSUCH, Circuit Judge.

After Sun Travis was abducted, raped, and shot dead, an Oklahoma jury found Anthony Banks, by that time already in prison for another killing, guilty of murdering Mrs. Travis and sentenced him to death. After an unsuccessful direct appeal and two rounds of collateral review in state court, Mr. Banks filed a federal habeas petition. The district court denied his petition but granted him a certificate of appealability to pursue several arguments before this court. After careful review and in accord with the decisions of all the courts that have preceded us, we hold none merits relief.

I

A

Mrs. Travis, a Korean national, met her future husband when he was serving in the American military on deployment in Korea. The two married and moved to Tulsa, where it appears they lived happily. That is, until one day in 1979 when Mrs. Travis was kidnaped on her way back from work. The next time Mr. Travis saw his wife, she was dead.

At first, the police knew very little. Mrs. Travis's husband was at home preparing dinner when he looked out the window and saw his wife's car pull into the apartment complex's parking lot, apparently followed by another vehicle. After several minutes passed and she didn't come inside, he went out to check on her. She was nowhere to be seen. Mr. Travis sensed something was amiss because the car was parked at an odd angle with the headlights still on and the driver's door open. The pillow that Mrs. Travis kept on the driver's seat was lying in the street.

The next morning, a fuller picture emerged. A man on a tractor discovered Mrs. Travis's body in a roadside ditch. She had suffered a gunshot wound to the head, and her face bore recent bruises. Her blouse was missing and her panties were ripped and lying by her feet. The medical examiner found semen on her clothing, in her vagina, and in her anus. Still, the police had no leads for months.

But finally Anthony Banks approached investigators with information, hoping he could use it to secure lenient treatment for unrelated robbery charges. On his account, he was present during the crime but his friend, Allen Nelson, was responsible. Mr. Banks claimed he was giving Mr. Nelson a ride across town when Mr. Nelson asked him to pull over at what turned out to be Mrs. Travis's apartment complex. According to Mr. Banks, Mr. Nelson left the car and spoke for a few minutes with Mrs. Travis. The pair then returned to the car together and Mr. Nelson asked Mr. Banks to drive to a nearby apartment complex. Once there, Mr. Banks stayed in the car drinking beer while the other two went inside. Eventually, they got back on the road and drove until Mr. Nelson told Mr. Banks to pull over. It was then, according to Mr. Banks, Mr. Nelson took his victim out of the car and shot her in the head. As they were driving away, Mr. Nelson noticed Mrs. Travis's blouse and purse lying in the back seat and asked Mr. Banks to pull over again so that he could discard them in a nearby storm drain. Mr. Banks disavowed any participation in the killing and claimed he was simply along for the ride.

Despite Mr. Banks's statement, the local authorities felt they didn't have enough evidence to charge either Mr. Banks or Mr. Nelson with the crime. And so the case went cold.

B

Nearly two decades passed before a police investigator decided in 1997 to take a fresh look at the case with the help of DNA testing. DNA testing by two different analysts revealed that the seminal fluid in Mrs. Travis's crotch area matched Mr. Banks's DNA, the fluid found in the rectal area matched Mr. Nelson, and the semen on her pants was a mixture of the two men's DNA. One of the analysts said the likelihood of a random African American individual matching the DNA sequence attributed to Mr. Banks was on the order of 1 in 300 billion.

Armed with this evidence, the State of Oklahoma brought murder charges against Mr. Banks and Mr. Nelson. Because each defendant had made incriminating statements about the other, the court granted a motion to sever. At Mr. Banks's trial and in a single disjunctive charge, the government alleged that he committed first degree murder with malice aforethought and first degree felony murder in the course of rape and kidnaping. At trial, the prosecution introduced all the evidence sketched out above and the jury found Mr. Banks guilty of first degree murder, though its verdict didn't specify whether it found him guilty of murder with malice aforethought or felony murder—or perhaps both.

At the sentencing phase, the government argued death was an appropriate penalty because of the presence of four aggravating factors: (1) Mr. Banks posed a continuing threat to society; (2) the murder was especially heinous, atrocious or cruel; (3) the murder had been committed to avoid lawful arrest or prosecution; and (4) Mr. Banks had prior violent felony convictions. With respect to the first two aggravators, the government rested primarily on the evidence presented during the guilt phase. For the final, prior violent felony aggravating factor, the prosecution showed that Mr. Banks had been convicted of no fewer than eight prior violent felonies: several armed robberies, burglaries, an attempted prison escape, assault and battery, and another murder.¹ And to support its claim Mr. Banks murdered Mrs. Travis to avoid being identified and arrested for the rape, the government introduced evidence that Mr. Banks's previous murder victim, too, had been shot in the head after witnessing Mr. Banks commit a crime (there, the robbery of a convenience store). Mr. Banks's ex-wife testified that Mr. Banks came to her the night of the first murder and told her that he had killed his victim because “dead men tell no tales,” and that he “never shoot[s] below the neck.”

The defense's mitigation strategy at the sentencing phase was to try to show that Mr. Banks had psychological problems and a troubled childhood, but that his condition improved greatly over the many years he had (by that point) lived in prison. Mr. Banks's mother and father testified that Mr. Banks had been abused as a child and put out on the street when he was fifteen. At one point, Mr. Banks's father put a gun to his son's head and threatened to “blow [his] head off” for violating the rules at his father's night club. The defense also presented testimony by a clinical psychologist, Philip Murphy, who said that Mr. Banks suffered from severe psychopathy at the time of the murder. According to Dr. Murphy, the structured environment of prison had changed Mr. Banks so that he no longer posed a significant danger to others. Corrections officers likewise testified that Mr. Banks was a model inmate and the prison chaplain stated Mr. Banks had undergone a genuine religious conversion.

In the end and despite the defense's efforts, the jury voted unanimously to impose the death penalty. The jury found the mitigating circumstances outweighed by three of the four aggravating factors charged by the government—finding that the murder was committed to avoid a lawful arrest; that the murder was especially heinous, atrocious or cruel, and that Mr. Banks had prior violent felony convictions.

The Oklahoma Court of Criminal Appeals (OCCA) denied relief to Mr. Banks in his direct appeal and in his two subsequent state post-conviction petitions. Mr. Banks then filed a federal habeas petition, which the district court denied in a ninety page opinion. Because the district court granted Mr. Banks's motion for a certificate of appealability on a number of issues, the case now comes to us, requiring us to assess whether the government violated his rights under the Confrontation Clause and its duty to disclose exculpatory evidence (Part II); whether the government failed to produce exculpatory evidence (Part III); whether Mr. Banks's due process right to a competent expert and his Sixth Amendment right to effective assistance of counsel were infringed (Part IV); whether various instances of alleged prosecutorial misconduct rendered his trial fundamentally unfair, in violation of the Fourteenth Amendment (Part V); and whether cumulatively any errors here warrant relief (Part VI).

II

Mr. Banks first claims that his conviction violated his rights under the Sixth Amendment Confrontation Clause. We agree with both the OCCA and the district court that the admission of the challenged testimony was harmless, and explain our reasons first with respect to the guilt and then the sentencing phase.

A

The Confrontation Clause challenge stems from the government's decision to call Mr. Banks's brother, Walter Banks, as a witness at trial. Apparently, Walter was at one point long ago facing (unrelated) criminal charges of his own, and hoping for favorable treatment he told police his brother had admitted to shooting Sun Travis. But by the time of the Travis murder trial, nearly twenty years later, Walter wasn't talking. In a hearing outside the presence of the jury, Walter made abundantly clear that he planned to take the Fifth. The judge informed him that he had no valid Fifth Amendment privilege to claim and could be held in contempt for failing to testify. But Walter told the judge this fazed him not at all, since he too was already serving a life sentence. Even so and over Mr. Banks's objection,...