Parks v. Brown, No. 86-1400

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtBefore McKAY, BALDOCK and McWILLIAMS; McWILLIAMS; McKAY; BALDOCK; O'Conner; And you are not here in your individual capacities. You are here as the jury. And Judge Theus is not our good friend, Harold, off the Bench. He is his Honor
Citation840 F.2d 1496
PartiesRobyn Leroy PARKS, Plaintiff-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, Defendants-Appellees.
Docket NumberNo. 86-1400
Decision Date15 July 1987

Page 1496

840 F.2d 1496
Robyn Leroy PARKS, Plaintiff-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, Defendants-Appellees.
No. 86-1400.
United States Court of Appeals,
Tenth Circuit.
July 15, 1987.
As Modified on Denial of Rehearing March 1, 1988.
Suggestion for Rehearing En Banc Granted March 1, 1988.

Page 1498

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

Robert A. Nance, Asst. Atty. Gen., Deputy Chief, Federal Div. (Michael C. Turpen, Atty. Gen., Okl., and Michael W. Elliott, Asst. Atty. Gen., with him on the brief in chief, and Robert H. Henry, Atty. Gen., Okl., with him on appellees' supplemental response brief), Oklahoma City, Okl., for defendants-appellees.

Before McKAY, BALDOCK and McWILLIAMS, Circuit Judges.

McWILLIAMS, Circuit Judge.

In a proceeding in the District Court of Oklahoma County, State of Oklahoma, a jury convicted Robyn Leroy Parks of the first-degree murder of Abdullah Ibrahim, a Gulf gas station attendant, and the same jury, after further hearing, sentenced Parks to death. 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), and the Supreme Court of the United States denied certiorari, Justice Brennan and Justice Marshall dissenting. Parks v. Oklahoma, 459 U.S. 1155, 103 S.Ct. 800, 74 L.Ed.2d 1003 (1983).

Parks then 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. Thereafter, the United States Supreme Court denied certiorari. Parks v. Oklahoma, 467 U.S. 1210, 104 S.Ct. 2400, 81 L.Ed.2d 356 (1984).

On June 29, 1984, eleven days before he was scheduled for execution, Parks filed in the United States District Court for the Western District of Oklahoma a petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. The district court stayed execution, and, on November 5, 1985, in a 33-page opinion, dismissed all of the claims asserted by Parks in his petition except the claim of ineffective assistance of counsel at the penalty phase of the state criminal proceeding. Before ordering an evidentiary hearing concerning the claim of ineffective assistance, the district court determined to first propound interrogatories to the petitioner, Parks. Based on the answers thereto, the district court, by order of February 28, 1986, denied relief on the claim of ineffectiveness of counsel and dismissed all claims. This appeal followed. We are advised that the parties have agreed that no new execution date will be set pending disposition of the present appeal.

The government's case-in-chief established the following. Abdullah Ibrahim, a native of Bangladesh, was attending school in Oklahoma and working part-time at a Gulf gas station in Oklahoma City, Oklahoma. On the morning of August 17, 1977, a motorist who had stopped at the Gulf station at around 4:30 a.m. to buy some cigarettes found the attendant, Ibrahim, dead inside the station booth. Ibrahim's death was caused by a gunshot wound in the chest. No money or other property had been taken from the booth. However, the investigating officers found an unused Gulf gas credit card charge slip in the booth with the letters and figures "XZ-5710" written on it and circled. The police checked out this alpha-numeric combination, and ascertained that it corresponded with the license number of an automobile in which Parks had an interest, possessory, at the least, if not strict legal title thereto.

Parks at this point in the investigation became either a prime suspect or a material witness, and it was ascertained that Parks was then in California. In the meantime the police had contacted a friend of Parks', one James Clegg, and enlisted the latter's aid. Clegg, in Oklahoma, called Parks, in California, on several occasions, and, with Clegg's consent, two phone conversations were tape recorded. In the first of these two recorded conversations, Parks told Clegg that he went to the Gulf station

Page 1499

intending to get gas with a stolen credit card and that the attendant came out of the booth and appeared to write down his license number. Fearing that the attendant would "call the law" and also fearful that if the police caught him they would find guns and dynamite which he had placed in the trunk of his car, Parks decided to kill the attendant so that if "he don't be around there ain't nothing he can tell them noway." In this setting, according to Parks, he went to the station booth and shot and killed the attendant. Apparently, the door to the station booth was partially open and Parks fired one shot which struck Ibrahim in the chest.

In Parks' second taped telephone conversation with Clegg, Parks, still in California, described where he had disposed of the murder weapon. Thereafter the police, accompanied by Clegg, went to the described location, which was miles away from the gas station, and recovered a .45 caliber revolver, together with a holster and ammunition, hidden under a bush. One shot had been fired from the revolver, the other five cylinders containing live ammunition. Parks was later arrested in California and extradited to Oklahoma. Both of the taped telephone conversations were played for the jury.

At trial, Parks testified in his own behalf and denied killing Ibrahim. He testified that at the time of the killing he was in another place, and a witness corroborated his alibi. Parks explained the fact that the license number of his car was found on the unused credit card slip by stating that several days before the homicide he had been in this particular gas station and had purchased gas when he had no money. He said the attendant at that time took down his license number, but that he had returned later on the same date and paid for the gas. Parks also explained his presence in California at the time of his arrest by testifying that subsequent to the date of the killing he had gone first to Kansas City, and then to California, in an effort to buy marijuana. On this general state of the record a jury convicted Parks of first-degree murder and the same jury, after further hearing, sentenced him to death. 1

On appeal to this Court, Parks asserts that his state conviction and sentence is constitutionally infirm for any one, or all, of the following reasons: (1) failure of the state trial court to instruct the jury on a lesser included offense; (2) admission of a prior conviction of Parks for robbery by force and fear; (3) improper comment to the jury by the state prosecutor in the hearing at the penalty phase of the case; (4) error by the trial court in instructing the jury to disregard "sympathy"; (5) incomplete and misleading instruction on aggravating circumstances vis-a-vis mitigating circumstances; (6) ineffective assistance of counsel at the penalty phase hearing; and (7) failure of the trial court to hold an evidentiary hearing on his claim that Oklahoma's death sentence statutes are applied in a racially discriminatory manner. These matters will be considered seriatim.

I. Lesser Included Offense

The state trial court refused to instruct the jury on murder in the second degree and such fact is alleged to render Parks' conviction for first-degree murder unconstitutional. The state trial court initially refused to instruct on second-degree murder on the ground that "there was no evidence as to how much had been charged on the stolen card." The trial court later grounded its refusal to thus instruct on the fact that there was "no evidence" that a credit card offense had been committed. 2 The

Page 1500

Oklahoma Court of Criminal Appeals, on direct appeal, agreed that there was no evidence to support "a lower degree of the crime charged or an included offense...." Parks v. State, 651 P.2d, at 690. 3

The federal district judge in the present habeas corpus proceeding was unimpressed with the reasoning of either the state trial court or the Oklahoma Court of Criminal Appeals on the lesser included offense argument, but nonetheless reached the same result based on Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982) and Palmer v. State, 327 P.2d 722 (Okla.Crim.App.1958). 4 In so holding, the federal district judge concluded that the state had made a prima facie case of the greater offense, i.e., murder in the first degree, and that the evidentiary matter relied on by the defendant, Parks, for requesting an instruction on second-degree murder was "no evidence whatever to refute the allegations of the information." The court commented that, under Palmer v. State, supra, the evidence relied on by Parks, in order to justify the instruction on second-degree murder, must "raise the issue of whether the defendant was guilty of the lesser offense only." We need not attempt to reconcile these different approaches to the problem, since our view of the testimony relied on by the defendant is such that there was no error in the trial court's refusal to instruct on second-degree murder.

In advancing this particular argument, counsel relies heavily on Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). In Beck, the Supreme Court, citing Keeble v. United States, 412 U.S. 205, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973), commented, at p. 635, as follows:

In the federal courts, it has long been "beyond dispute that the defendant is entitled to an instruction on a lesser included offense if the evidence would permit a jury rationally to find him guilty of the lesser included offense and acquit him of the greater." (Emphasis added).

Our analysis of the evidence relied on by counsel in advancing the lesser included offense argument is...

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22 practice notes
  • Hatch v. State of Okl., No. 94-6052
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 14 Junio 1995
    ...of a lesser included offense as defined by state law is constitutionally required when the evidence warrants it. See Parks v. Brown, 840 F.2d 1496, 1500-01 (10th Cir.1987), rev'd on other grounds, 860 F.2d 1545 (1988) (10th Cir.) (en banc), rev'd on other grounds sub nom. Saffle v. Parks, 4......
  • Parks v. Brown, No. 86-1400
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 28 Octubre 1988
    ...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 This rehearing focuses upon two basic issues, both arising from the pen......
  • Moore v. Gibson, No. 98-6004
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 28 Septiembre 1999
    ...decision to seek death penalty, even if improper, were not significant enough to influence jury's sentencing decision); Parks v. Brown, 840 F.2d 1496, 1503-04 (10th Cir. 1987) (prosecutor's comments did not minimize importance of jury's role in fixing sentence), rev'd on other grounds by Sa......
  • Jones v. Trammell, Case No. CIV-07-1290-D
    • United States
    • United States District Courts. 10th Circuit. Western District of Oklahoma
    • 22 Mayo 2013
    ...14 F.3d 554, 558 (11th Cir. 1994), and, therefore, may not be predicated on "'the distorting effects of hindsight.'" Parks v. Brown, 840 F.2d 1496, 1510 (10th Cir. 1987) (quoting Strickland, 466 U.S. at 689). If constitutionally deficient performance is shown, Petitioner must then demonstra......
  • Request a trial to view additional results
22 cases
  • Hatch v. State of Okl., No. 94-6052
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 14 Junio 1995
    ...of a lesser included offense as defined by state law is constitutionally required when the evidence warrants it. See Parks v. Brown, 840 F.2d 1496, 1500-01 (10th Cir.1987), rev'd on other grounds, 860 F.2d 1545 (1988) (10th Cir.) (en banc), rev'd on other grounds sub nom. Saffle v. Parks, 4......
  • Parks v. Brown, No. 86-1400
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 28 Octubre 1988
    ...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 This rehearing focuses upon two basic issues, both arising from the pen......
  • Moore v. Gibson, No. 98-6004
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 28 Septiembre 1999
    ...decision to seek death penalty, even if improper, were not significant enough to influence jury's sentencing decision); Parks v. Brown, 840 F.2d 1496, 1503-04 (10th Cir. 1987) (prosecutor's comments did not minimize importance of jury's role in fixing sentence), rev'd on other grounds by Sa......
  • Jones v. Trammell, Case No. CIV-07-1290-D
    • United States
    • United States District Courts. 10th Circuit. Western District of Oklahoma
    • 22 Mayo 2013
    ...14 F.3d 554, 558 (11th Cir. 1994), and, therefore, may not be predicated on "'the distorting effects of hindsight.'" Parks v. Brown, 840 F.2d 1496, 1510 (10th Cir. 1987) (quoting Strickland, 466 U.S. at 689). If constitutionally deficient performance is shown, Petitioner must then demonstra......
  • Request a trial to view additional results

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