Parks v. Brown

• Decision Date: 28 October 1988
• Docket Number: No. 86-1400,86-1400
• Parties: Robyn Leroy PARKS, Petitioner-Appellant, v. John N. BROWN, Warden, Oklahoma State Penitentiary, McAlester, Oklahoma; Larry Meachum, Superintendent, Oklahoma Department of Corrections; and Michael C. Turpen, Attorney General of Oklahoma, Respondents-Appellees. . On Rehearing En Banc
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1545

860 F.2d 1545

57 USLW 2332

Robyn Leroy PARKS, Petitioner-Appellant, v. John N. BROWN, Warden, Oklahoma State Penitentiary, McAlester, Oklahoma; Larry Meachum, Superintendent,

Oklahoma Department of Corrections; and Michael C. Turpen,

Attorney General of Oklahoma, Respondents-Appellees.

No. 86-1400.

United States Court of Appeals, Tenth Circuit.

On Rehearing En Banc Oct. 28, 1988.

Vivian Berger, New York City (Lewis Barber, Jr., Oklahoma City, Okl., with her on the brief), for petitioner-appellant.

Robert A. Nance, Asst. Atty. Gen., Deputy Chief, Federal Div. (Robert H. Henry, Atty. Gen. of Oklahoma, with him on the brief), Oklahoma City, Okl., for respondents-appellees.

Before HOLLOWAY, MCKAY, LOGAN, SEYMOUR, MOORE, ANDERSON, TACHA, BALDOCK, BRORBY and EBEL, Circuit Judges.

EBEL, Circuit Judge, delivers the opinion and judgment for the Court, in which LOGAN, JOHN P. MOORE, STEPHEN H. ANDERSON, TACHA, BALDOCK, and BRORBY, Circuit Judges, join as to Part I, and HOLLOWAY, Chief Judge, and McKAY, LOGAN, SEYMOUR, and MOORE, Circuit Judges, join as to Part II.

In 1978, an Oklahoma jury convicted petitioner-appellant, Robyn Leroy Parks, of first-degree murder and, after further hearing, sentenced him to death. After exhausting his state remedies, he sought and was denied habeas corpus relief in the United States District Court for the Western District of Oklahoma. He then appealed to this court, and a divided panel affirmed the district court. We agreed to a rehearing en banc on two of petitioner's arguments, and we now reverse his death sentence.

At petitioner's trial, the state established the following. Abdullah Ibrahim, a native of Bangladesh, worked part-time at a gas station in Oklahoma City, Oklahoma. On the morning of August 17, 1977, a motorist stopped at the gas station and found Ibrahim dead inside the station booth. Ibrahim died from a single gunshot wound in the chest from a .45-caliber pistol. The police found an unused gas credit card slip in the booth, with the license number "XZ-5710" written on it. The police traced this number to an automobile in which Parks had an interest.

An informant told police that Parks was involved in the murder and gave police an address at which Parks might be found. Although the police did not find Parks at that address, they found a car in the vicinity of the address with the license number "XZ-5710." Inside the car they found a prescription-drug bottle with Parks' name on it, a belt with the initials "R.L.P.," and eight .45-caliber bullets.

The police then talked with Parks' former roommate, James R. Clegg, Jr. After being offered a reward, Clegg allowed police to tape record two telephone conversations that he had with Parks, who was then in California. During the first conversation, Parks admitted to shooting the gas station attendant. Parks told Clegg that after he saw the attendant come out of the station booth and look at his license plate number, he was afraid that the attendant would call the police because he was using a stolen credit card to pay for the gas. He said that he was concerned about being stopped by the police because he had guns and dynamite in his car. During the second conversation, Parks told Clegg where he had hidden the murder weapon. At that location, police found a .45-caliber pistol and ammunition.

In the District Court of Oklahoma County, a jury found Parks guilty of the first-degree murder of Ibrahim. After further hearing, the same jury sentenced him to death. The jury found only one of the three statutory aggravating circumstances that were charged--that the murder was "committed for the purpose of avoiding or preventing a lawful arrest or prosecution." See 21 Okla.Stat. Sec. 701.12. ¹ Parks' conviction and sentence were affirmed on direct appeal by the Oklahoma Court of Criminal Appeals. Parks v. State, 651 P.2d 686 (Okla.Crim.App.1982). The United States Supreme Court denied certiorari. Parks v. Oklahoma, 459 U.S. 1155, 103 S.Ct. 800, 74 L.Ed.2d 1003 (1983).

Parks subsequently sought post-conviction relief in the state courts of Oklahoma. The state district court denied relief, and the Oklahoma Court of Criminal Appeals affirmed in an unreported order and opinion. The United States Supreme Court again denied certiorari. Parks v. Oklahoma, 467 U.S. 1210, 104 S.Ct. 2400, 81 L.Ed.2d 356 (1984).

Parks then filed a petition for a writ of habeas corpus in the United States District Court for the Western District of Oklahoma. The district court denied relief, and Parks appealed to this court. A divided panel affirmed the district court's denial of habeas relief. Parks v. Brown, 840 F.2d 1496 (10th Cir.1987). This court agreed to a rehearing en banc, and we now reverse.

This rehearing focuses upon two basic issues, both arising from the penalty phase of petitioner's trial: (1) Whether the prosecutor's summation in the penalty phase concerning juror responsibility diverted the jury from considering the full extent of its responsibility for determining the life or death sentence, in violation of Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985); (2)[a] Whether the penalty phase instruction "You must avoid any influence of sympathy, sentiment, passion, prejudice or other arbitrary factor when imposing sentence," influenced the jury improperly to discount mitigating evidence presented by the defendant; and (2)[b] Whether the combination of the prosecutor's comments concerning the above instruction and the instruction itself, and the absence of any corrective instruction after the arguments, influenced the jury improperly to discount mitigating evidence presented by the defendant? ²

As to the first issue, we hold that the prosecutor's remarks did not violate Caldwell by improperly reducing the jury's sense of its responsibility for the sentencing decision. Therefore, we affirm the district court on that issue. With respect to the second issue, we hold that the anti-sympathy portion of the jury instructions, even when viewed independently from the prosecutor's anti-sympathy remarks, violated the petitioner's eighth amendment rights by creating an impermissible risk of influencing the jury to discount mitigating evidence presented by him. Because we find the anti-sympathy instruction to be unconstitutional, we reverse the district court to the extent that it upheld the constitutionality of the death sentence in this case, and we remand for further proceedings consistent with this opinion.

We begin our analysis of petitioner's claims by noting the special nature of the death penalty. Because of its severity and irreversibility, the death sentence is the "ultimate restraint." Cartwright v. Maynard, 822 F.2d 1477, 1483 (10th Cir.1987) (en banc), aff'd, --- U.S. ----, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988). This qualitative difference from other punishments requires "a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case." Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976). See also Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973 (1978). The Supreme Court has repeatedly stated that a high degree of scrutiny of the capital sentencing determination is required to ensure that the capital sentencing decision does not violate the eighth amendment prohibition against cruel and unusual punishments. See, e.g., California v. Ramos, 463 U.S. 992, 998-99, 103 S.Ct. 3446, 3451-52, 77 L.Ed.2d 1171 (1983). Accordingly, we apply a heightened scrutiny to the prosecutor's statements and jury instructions challenged in this rehearing.

I.

THE PROSECUTOR'S COMMENTS REGARDING JURORS' RESPONSIBILITY

Petitioner argues that certain statements made by the prosecutor during the penalty phase of the trial violated the rule of Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). The Supreme Court in Caldwell held that it is "constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere." Id. at 328-29, 105 S.Ct. at 2639-40. In that case the Court found that it was improper for a prosecutor to have stated to the jury that its decision was "automatically reviewable by the Supreme Court" because, among other things, the statement carried with it "an intolerable danger that the jury will in fact choose to minimize the importance of its role." Id. at 333, 105 S.Ct. 2641. ³

Here, petitioner challenges the following statements made by the prosecutor during the prosecutor's closing argument:

But, you know, as you as jurors, you really, in assessing the death penalty, you're not yourself putting Robyn Parks to death. You just have become a part of the criminal-justice system that says when anyone does this, that he must suffer death. So all you are doing is you're just following the law, and what the law says, and on your verdict--once your verdict comes back in, the law takes over. The law does all of these things, so it's not on your conscience. You're just part of the criminal-justice system that says that when this type of thing happens, that whoever does such a horrible, atrocious thing must suffer death.

Now that's man's law. But God's law is the very same. God's law says that the murderer shall suffer death. So don't let it bother your conscience, you know.

Record, vol. V, at 707-08.

Petitioner argues that those statements diluted the jurors' sense of responsibility for their decision in violation of Caldwell. Although we do not condone the statements made by the prosecutor, we find that the statements did not reduce the jury's sense of its actual responsibility for the sentencing decision and therefore did not violate Caldwell.

A two-step inquiry is appropriate when examining alleged Caldwell...