*1 seeking to supporting brief require appeal of Certiorari and sion, Legislature did not 7, 2001, September fol- order appeal the revocation order from the by should certiorari Agree- Plea denying "Motion to Withdraw petition for revoca- guilty to the plea low a of Court, County in District ment" Cleveland tion. CF-96-1957, is Case No. DISMISSED. Moreover, Rules state: this Court's revoking suspended "Review of an order 1 12 IT IS ORDERED. SO by procedure governed the same is sentence AND THE OUR HANDS WITNESS regular misdemeanor perfection of a day this 15th of SEAL OF THIS COURT 1.2(D)(4). Rule Rule 1.2 felony appeal." February, 2002. appeal dis- and various methods lists the Gary Lumpkin L. /s/ - Ap- "Felony and Misdemeanor tinguishes L, LUMPKIN, Presiding Judge GARY Regular Appeals." peals" from "Certiorari - A. Charles Johnson /s/ - brought felony appеals are misdemeanor JOHNSON, Presiding CHARLES A. Vice 14(A) 3.1(C). Rules & by Petition Error. Judge by brought appeal is therefore A revocation Chapel Charles S. Error, ap- /s/ appropriate "[the Petition CHAPEL, Judge CHARLES S. imposition upon of the peal time commences Reta M. Strubhar /s/ - revoking suspended sentence." Rule order STRUBHAR, Judge RETA M. 1.2(D)(4). Lile -Steve . /s/ Construing Petitioner's Petition for LILE, STEVE Petition in Error as a Writ Certiorari matter from dismissal. would not save this required Petitioner is because Desig- Appeal
file a of Intent Notice (10) days follow- within ten
nation of Record
ing revocation. Petitioner did the order of filing of Intent "The of the Notice
not do so.
Designation of Record
Appeal
appeal District Court's confession of the State's
withdrawal of his advice, justi if to revoke. While this
motion Petitioner, might fiably upon by well relied grounds finding de
be Petitioner was
prived right appeal the of his revocation own,3 through no fault of it cannot order right appeal right no such
create a where by law.
is authorized
{11 THE IT IS THEREFORE ORDER the Petition for Writ
OF THIS COURT that prove petitioner, can he has been de- 3. A who relief in the form of an stances, post-conviction 2.1(E)(1). prived right appeal through no fault of his appeal of a Rule out of time. own, may granted, appropriate be under circum- *5 Bowen, O.ID.S, OK, Sapulpa, James C. which Sun sat to ground drive was on the Matheson, Tulsa, OK, Attorneys next to the Mark D. for car.
Defendant at trial. apartment Steve returned to the police. called the morning, The next Sun's Greer, Drummond, Doug A. Chad E. As- partially body lifeless and clothed was found Attorneys, District sistant Office of District grass nearby next to a road. Sun had Tulsa, OK, Attorney, Attorneys for the State several bruises on her face. She had been trial, at by gunshot killed wound to the head. Zubdi, Offices, Bill Zubhdi Law Oklahoma 1 4 In November Banks was in custo- OK, City, Attorney Appellant appeal. for on dy charges on unrelated when he asked to Edmondson, Attorney speak W.A. Drew County General with the Tulsa District Attor- Oklahoma, Brockman, ney David M. Assistant about the Sun Travis murder. Banks's General, OK, Attorney City, Oklahоma Attor- version of begins ap- Sun Travis's death at 1979; neys Appellee appeal. for proximately p.m. 11:00 on June I
was at a my light convenience store in blue AMC Hornet hatchback when Allen Nelson OPINION asked me a ride. I drove him to what for CHAPEL, Judge: turned apartment out to be Travis's complex; {1 Anthony Rozelle Banks was tried pulled Sun up Travis in her car. Nelson jury Degree and convicted of First Murder car, Travis, my exited began talking to reen- 701.7, 0.S.Supp.1979, § violation of Travis, my tered car requested with County District Court of Tulsa Case No. I drive Apache Apart- them to the Mamor aggrava CF-97-8715. The found three there, ments. Once Nelson and Travis en- (1) ting pre circumstances: that Banks was apartments tered the Iwhile drank beer and viously felony involving convicted of a the use Travis, shirtless, waited. Nelson and now (2) person; or threat of violence to the returned. I drove them around about ten *6 prevent the murder was committed to lawful minutes, when Nelson asked stop me to (8) prosecution; arrest or that the mur Street, car on 86th about three hundred especially heinous, atrocious, der was or crue yards the entrance the Comanche jury's l.1 In accordance with the recom Apartments.
mendation, the Honorable Thomas C. Gillert car, 15 Travis exited to the front of sentenced Banks to death. rear, Nelson to the which he circled after around to the and shot Travis in front
FACTS head. Nelson returned to the car and asked anyone. me not to tell away, We drove until 6, approximately p.m. At 11:80 on June Nelson noticed a drain sewer and asked me 1979, returning Sun Travis was home from stop. He discarded Travis's blouse and work,. driving As she apart- was into her drain, purse in the then returned to the car. complex Street, College ment on South her I drove him home.2 (Steve Travis) husband heard their car muf- peered apartment statement, filer and out the Despite window. Banks's made in 1979, He saw designated Sun drive toward her open the Travis case remained until parking 1997, spot, light a analysis also noticed blue or performed when DNA was on sperm samples obtained from the victim and following white hatchback automobile A her. clothing. analyst her passed. Concerned, DNA David Muniec few minutes Steve sperm lot, testified that thе found on Travis's walked outside to the where he discover- parked mixture, car wrong space clothing ed the in the matching with was a both Banks's and DNA. headlights Nelson's Muniee also pillow upon dome and on. The 0.$.1991, § 1. 21 (paraphrased). 701.12. The Bill of Particulars State's Exhibit 52 alleged also that Banks would commit criminal acts of violence that a would constitute continu- ing society. threat to The did not find that aggravator this existed. in the affida- existed vaginal material misstatements found on a sperm
testified trial court warrant. sperm on an vit for search and the Banks matched swab motion, the mis- finding first that Chem- Forensic Nelson. denied matched anal swab that the DNA testified and see- Kempton also not material representations were ist Julie offending lan- ond, mixture of was a that even without pants on Travis's found supported allegations guage, DNA. other sufficient and Nelson's Banks's agree. cause. We finding probable a PRETRIAL TO RELATING ISSUES correctly that se stated 10 The affidavit PROCEEDINGS a victim of obtained from had been men VI, argues Banks 17 In cause murder. Probable assault and sexual allowing the erred in court the trial then established Banks's blood was to obtain the Sec pursuant him prosecute State in the admissions as outlined by his own Information, claiming preju ond Amended accompanying admitted affidavit. - of the State's had no notice in that he dice the crimes." Nelson committed Nelson "when degree mal him for first prosecute intent Thus, assuming arguendo mis we find fails. This claim aforethought ice murder. sup thе search warrant representation, charged Banks was by probable cause.4 August ported T8 On aforethought malice with by Information hearing on preliminary June At murder. RELATING TO FIRST ISSUES objec for, and without the State asked PROCEEDINGS STAGE authority amend the granted,
tion was {11 I, asserts In alternatively charge Banks Information to to convict was insufficient the evidence felony aforethought murder with malice evaluating degree murder. him of first of the felonies in the commission murder sufficiency, considers it this Court by force fear. On rape kidnapping and to the State to light favorable in a most mistakenly filed an the State June fact "any rational trier of whether determine only charging Banks Information Amended elements of the essential could have found murder, felоny corrected the error but with beyond reasonable charged the crime by filing the Second August charged alternatively Banks was doubt."5 alleging afore malice Information Amended aforethought and murder malice with felony murder thought murder kidnapping or forcible of a in the commission rape by foree or kidnapping or commission jury verdict form indicates rape. The prejudiced as he was not fear. Banks was the evidence guilty of both and *7 was found upon the same convicted based tried and 6. him of both sufficient to convict given no was charges that he was evidence and Propo hearing.3 preliminary at tice of State, to the light most favorable € 12 a denied. sition is and Nel- that Banks evidence established the аpart- car to Travis's drove Banks's son II, Banks claims InT9 arrival, they complex. Upon Travis's ment overruling his motion erred in the trial court car, Apache the their drove to foreed her into to obtain quash the warrant issued search apart- into an Apartments, forced her Manor suppress the DNA sample and his blood her, re- ment, anally raped vaginally and that Banks contended it revealed. State, (information P.2d O0.S.1991, OK CR 984 may v. 1999 § be Lambert 304 3. 22 (When degree long any general defendant's of first at as a verdict amended time 229 materially prejudiced). rights not we consider the conviction returned, murder However, felony we a murder conviction. to be State, Skelly 1994 OK CR arguments regarding address Banks's will also (warrant containing misrepresentatiоns not sufficiency malice afore- the evidence for the supported by probable otherwise voided where murder.) thought cause). P.2d CR Spuehler v. 1985 OK Virginia, quoting Jackson v. 204-05 L.Ed.2d 560 car, turned to the and drove to 36th street in the commission of a kidnapping or forcible rape, either of which it easily could have where one or the other shot Travis in the done. To kidnapping, establish the State head. prove had to that the victim unlawfully 113 To convict Banks of malice secretly seized against confined her murder, aforethought jury the had to find will.10 To rape, establish forcible the State that he caused the unlawful death of a human prove had to the victim was forced to aforethought,7 with malice or aided and abet havе by intercourse someone other than her ted another the commission the murder spouse.11 kill, personal with the intent to and with 117 The evidence established that Travis knowledge perpetrator's of the intent to kills.8 was murdered in the commission of both "Aiding abetting requires in a crime the Viewing felonies. the light evidence in a procured State to show that the accused the most favorable the victim was done, aided, assisted, abetted, crime to be or forcibly taken lot, from her parking as indi- encouraged advised or of the commission by lights cated the car misplaced driving crime." pillow. She transported was then to an T argues 14 Banks the evidence was apartment, where she was forced to have insufficient because the prove State did not intercourse, as established the bruises and that he either shot Travis or aided and abet- body semen on her and the semen found on ted Nelson when he police shot her. In his her Upon completion clothes. these statement, presence Banks admitted his at crimes, the victim was on executed the road- scenes, all crime but claimed that Nelson side. All elements of murder unilaterally acted when he killed Travis. rape commission of kidnapping or were met. only question jury presence Banks's admitted was who at com- mitted the crimes.
crime scenes is consistent with the evidence.
participation
His denials of
culpability
and/or
118 Banks was one of
perpetrators.
two
arе not. Banks's DNA was found on evi-
presence
He admitted his
at all relevant
loca-
gathered
dence
corpse
from the victim's
tions;
it was his car that was used to abduct
clothing, establishing
participation
victim;
partly
it was
his semen found on
rape. Although
forcible
the State admits
clothing
victim's
and his semen
alone
uncertainty over whether Banks or Nelson
vaginal
swab.
Travis,
actually
shot
a
could have be-
T
argues
19 Banks
that the DNA evidence
he,
lieved that Banks had done so-or
at
was inaccurate because his brother's DNA
minimum,
a
aided and abetted in
mur-
compared
was not
to that obtained from Tra-
der-especially
given
fingered
that Although
experts
vis.
agreed
the DNA
Nelson as the
partner.
sole sexual
What
sibling's
DNA could skew statistical
re-
seems obvious is that Travis was killed to
sults,
change
that observation did not
their
rapists'
conceal her
identities. Banks was
opinion that Banks's DNA matched that ob-
rapists.
one
may may
He
not have
tained from the victim. Banks also claims
actually pulled
trigger;
not,
if he did
he
that his
testify
brother's
refusal
based
*8
may
encouraged
nevertheless have
Nelson to
upon the
supports
Fifth Amendment
his
such,
do so.
jury
As
a rational
could have
possible guilt
brother's
these crimes.
aforethought
convicted Banks of malice
mur-
The record indicates
instead that Walter
der.
(1)
Banks
did not want
to incriminate his
{16
murder,
(2)
To convict Banks of
brother and
did not want to return to his
jury
the
had to find that the victim
prison
was killed
own
term labeled a "snitch." Banks
0.$.Supp.1976,
Id.,
State,
§
7. 21
701.7.
quoting Spears
9.
900 P.2d
438
(Okl.Cr.1995),
cert. denied,
516 U.S.
(1995).
S.Ct. 678,
was neither admitted into evidence nor in
scene. While it remains
actually
unclear who
record,
in
cluded
we review Banks's ar
Travis,
very
shot
it is
clear that either Nel
gument
upon
based
existing
record.
did,
son
just
or Banks
likely
as
to have
127 Banks claims that
the "Trail of Ter-
person
been Banks as the
he self-servingly
prejudicial
ror" title was
inflammatory.
Moreover,
named as the perpetrator.
even if
He nevertheless
Banks,
concedes that had the illus-
it was not
he intended Travis's death
merely
tration
included
summary
to conceal
participation
his
in
raрe.
her
We
convictions,
past
title,
Banks's
without the
it
major
find that
participant
Banks was a
would have been an admissible statement
kidnapping
rape
Travis's
and at a mini
sentencing purposes. We fail to see how this mum intended her
Accordingly
death.
we
find no error.24
unduly prejudicial,
three-word title was
is denied.
it
46,
Bernay
55,
535,
v.
1999 OK CR
989 P.2d
20. Le v.
1997 OK CR
998, 1008,
denied,
denied,
cert
531 U.S.
121 S.Ct.
cert.
524 U.S.
118 S.Ct.
(2000). (mere
(1998).
suggestion
claims Felony continuing support Previous the the to underlying facts to Strike his Motion alter as Void or Proposition is de Aggravating aggravator.27 Cireumstance threat hearing.25 Brewer him a natively, grant nied. error occurred argues that specifically Banks the facts presented the State XIV, $34 when Banks In unrelated for an prior conviction Banks's insufficient to was that the evidence argues a Brewer charge without degree murder first cireumstance аggravating support the fail. arguments hearing. These or to avoid was committed Travis murder the We prosecution. arrest or prevent lawful to First, no reason we see 131 aggravator this previous the evidence finding the review ruling prior change our crime, separate from the cons predicate aggravating proof cireumstance felony violent event, not murder, Banks was any attempt In is titutional.26 the defendant for which regarding his hearing Brewer Consideration prosecution.28 to a ing entitled to avoid conviction; its degree murder first previous to deter evidence the cireumstantial given to introduced properly were facts hypothesis exists "any if reasonable underlying mine aggravating continuing threat the suрport commit intent to defendant's than the other 9 circumstance. predicate crime."2 Particulars, Bill of Amended In its 32 that Tra Here, indicated the evidence 1 35 aggravating circum- four asserted State both kidnapped, that raped and vis continuing threat and including the stances crimes, these Nelson committed Banks and cireum- felony aggravating violent previous Further, her death.30 at least intended also notified The State stances. Travis's hypothesis for only reasonable Robbery counts for two his convictions prevent her done to that it was murder was used to Weapon would be Dangerous awith instigat identifying her assailants and from felony aggrava- previous violent support kidnap prosecution for ing their arrest Brewer, Pursuant ting cireumstance. sufficient, rape. evidence was ping and were convictions stipulated that these felony Proposition is denied. other and this Banks's felonies. for violent degree murder convictions, including his first XV, Banks support the continu-
conviction, used were cireumstance. court erred overrul aggravating alleges that the trial ing threat "heinous, atro ing Motion to Strike {383 also that he should asserts circumstance aggravating and cruel" cious first stipulate to his allowed have been evidence, the trial and that for insufficient prohibit degree murder conviction jury's finding support failed to underlying facts introducing its State pre review the evidence it We existed. merit as claim lacks evidence. This into light favorable to in a most at trial sented degree murder conviction prior first Banks's death was if the victim's to determine violent State previous support was not used to (when (1992). 2312, state 232 119 L.Ed.2d S.Ct. arguments for the reasons agree deny those continuing felony threat alleges prior violent Proposition. stated in this circumstances, may evi it introduce aggravating stipulated con basis for dence of factual 54, 128, State, 650 P.2d OK CR 25. Brewer v. 1982 continuing aggravating support threat victions to 794, 1150, 63, denied, 74 459 U.S. cert. circumstance). (1983). (defendant stipu allowed to L.Ed.2d 999 felonies). prior late to violent CR 909 P.2d State, 74, 1995 OK Romano v. denied, 92, 119, S.Ct. U.S. 117 cert. 519 942 P.2d Cleary OK CR v. (1996). L.Ed.2d 96 746-47, denied, S.Ct. 523 U.S. cert. 140 L.Ed.2d Id. OK CR 27. Smith Propositions and IX. I 270, 277-78, 30. See
401 by preceded physical conscious serious abuse brief or in his motions filed in the trial court.
or torture.31 Thus, we find no reason to overrule our previous decisions.34
11 judge correctly 37 The trial overruled the
motion and determined that the evidence was XVIII, " 40 In Proposition Banks conscious,
sufficient. While and before her execution, given claims that kidnapped, physi minority Sun Travis was his indigent and assaulted, cally raped status, and sodomized his execution would violate the Con Banks and Nelson.32 Her ordeal lasted over argument stitution. Banks's Nothing fails. two hours. Such evidence was sufficient to suggests the record that pover his race or
prove extreme physical suffering mental and ty jury's contributed to the conviction. The physical constituted serious abuse and sentencing trial and were conducted in accor Thus, torture. we find that the evidence dance with Oklahоma law. capi Oklahoma's supported jury's finding "heinous, punishment tal system is constitutional and atrocious aggravating and eruel" cireum- possible, to the extent assures that the death stance. This is denied. penalty only will against be assessed "crimi nals whose crimes apart 'any set them XI, In Proposition 138 Banks claims " 35 other murder.! that the trial court denying erred in Quash Motion to Bill of Particulars and De clare Penalty the Death Unconstitutional. ISSUES RELATING TO AND FIRST specifically pen asserts that the death SECOND STAGE PROCEEDINGS alty is unconstitutional par because a bill of solely ticulars prosecutor's filed at $41 Proposition VII, In discretion finding probable without a alleges eight separate instances where he In previously rejecting cause. argu this was denied а fair prosecutorial trial due to ment, this Court found that the combination alleged misconduct. Most of the misconduct of the Oklahoma pro statutes and case law objected to, was not waiving plain all but adequate guidelines
vide
prose
to direct the
error.36 We note that
parties may
both
in deciding
cutor
pursue
whether
discuss,
freely
during argument,
reasonable
penalty.33
death
This
is denied.
evidence;
inferences from the
only
error
oc
Proposition XII,
Banks ask this
grossly
if
curs
a
argument
unwarranted
af
previous
Court
ruling up
reconsider
its
fects
rights.37
the defendant's
holding
constitutionality
of Oklahoma's
4 42 Banks first
prosecutor
claims-that
penalty
death
previous
scheme and its
deci
improperly
sympathy
evoked
for the victim.
finding
sion
sentencing procedure
argument,
objected to,
accurately
does not
not
offend the Oklahoma Constitution
requires
rape
because it
a
described the victim's
special
to make
and brutal death.
findings
fairly
of fact.
compelling
Banks offers no
characterized
evidence.
justification
so,
doing
for our
either
in his There was no error.
tution);
31. Romano,
ven't
claim,
counter
Banks must
prevail
To
on this
case." These
focus of this
from the
attention
rep
counsel's
trial
presumption
act our
egregious
particularly
not
comments were
upon
reasonable and based
resentation was
challenging Banks's
may be viewed as
40
"coun
strategy
proof that
with
sound trial
light
the evidence.38
defense
that he
deficient and
performance was
sel's
1
prej
To show
a result."4
prejudiced
was
claim is that
most meritorious
1 45 Banks's
udice,
that absent
must establish
on his
improperly commented
prosecutor
errors,
would
of his case
alleged
the outcome
prose-
right to silence.
invocation of the
different.42
have been
not "come for-
that Banks had
cutor stated
First,
alleges
assis-
ineffective
€50
taken
what has
accountable for
ward to be
object
counsel's failure
tance
trial
objection
Immediately
an
place."
after
Under
prosecutorial misconduct.
alleged
judge
overruled,
"[yJou
prosecutor stated
-
VII,
misconduct was
the asserted
means,
that,
and what that
conversion
cured
admonish-
or was
either not error
held ac-
he
not been
fact that
has
and the
Banks cannot
ment,
prejudicial.
not
and was
remote-
anything, even
or has said
countable
prejudice.
performance
establish deficient
say
what
ly-willing
to come forward
objected,
and the
again
happened." Banks
Second,
as-
alleges
ineffective
151
object to
failure to
disregard the
in trial counsel's
jury to
sistance
court admonished
Proposi-
other crimes evidence.
inadmissible
prosecutor's statement.
98,
P.2d
OK CR
951
MANDATORY SENTENCE REVIEW
Decision
$55
XVI,
In Proposition
Judgment
157 The
and Sentence is AF-
argues that his death sentence must be va FIRMED.
43.
proposition,
(7)
For the reasons
prison
assеrted in this
society;
the defendant conducts him-
deny
Supplement
we also
Banks 3.11
to
prison;
Motion
self well in the structured environment of
(8)
Application
Evidentiary
Hearing
for
filed
the defendant
was under
the influence of
April
2001.
disturbance;
(9)
mental/emotional
defen-
(10)
dant's
the defen-
emotional/family
history;
dant was turned out of his home when he was
Selsor,
44.
JOHNSON, for deny application. decision Court's concur. 8.11,Rules comply Rule not with does motion LILE, J., concur LUMPKIN, P.J., and Appeals, Criminal Court the Oklahoma results. (2000)in sets out 22, ChLh.18, that it App. Title at an eviden- hoped to be discovered is what J.;: Concurring in Result. LUMPKIN, has which hearing than evidence tiary rather in this reached result I concur T1 Appellant de- already discovered been analy- some disagree with opinion, but in the record. inclusion for to submit sires used. sis information not "sufficient Speculation is Court, First, in its discussion T2 convincing evi- by clear and show Court this. lan I, and abettor aider uses coun- strong possibility trial is a there dence P.2d Torres guage failing utilize or was ineffective sel language from Torres (Okl.Cr.1998). That Seq, complained of evidence". identify the regarding law Oklahoma's with inconsistent 3.11(B)(8)(6)G). Rule this Court's with is in conflict principals issue Con analysis of the same unanimous *14 (Okl.Cr State, P.2d 914-16 v. over disagreement .1997). my restate I therefore concurring my in I did language, as this
with in Torres. opinion
in results Second, respect with
T3 distinguish present situation VIII, CR 10 I find 2002 OK v. in presented Jackson those able NORTON, Appellant, Louis Harold (Okl.Cr.1998) P.2d (Okl.Cr P.2d v. Johnson ruled, in cam- .1995). Here, judge trial Oklahoma, Appellee. The STATE privilege to no valid era, had the witness its not abuse the trial court did Thus invoke. No. F-2000-1359. to be allowing the witness discretion mat- testify regarding the stand called to Appeals of Oklahoma. of Criminal Court informed he had had been he ters to which Moreover, failure to privilege. no valid Feb. implied that Walter testify at least crime, ac- involved personally brief, Appel- knowledged Appellant's in support his fact to to use that
lant seeks claim. of counsel
ineffectiveness Third, Court's use disagree I with the
T4 analysis in its hypothesis"
of a "reasonable sup sufficiency of the
review of a circumstance aggravating
porting the prevent lawful to avoid or committed
murder continues The Court prosecution.
arrest or analysis of evidence in its review this
to use stage guilt in both the
introduced and I continue stage proceedings,
second State, 12 it, Wackerly v. object as I did J., (Okl.Or.2000)(Lumpkin, Concur 1, 20
P.3d results). "Appellant's Finally, upon review
T5 Application Supplement
3.11 Motion