# Parks v. Brown > Court of Appeals for the Tenth Circuit · March 1, 1988 · 840 F.2d 1496 URL: https://www.frixlaw.com/law-library/cases/8958219 ## Case - **Full name:** Robyn Leroy PARKS 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 - **Court:** Court of Appeals for the Tenth Circuit - **Decided:** March 1, 1988 - **Citations:** 840 F.2d 1496; 1987 WL 43684 - **Precedential status:** Published - **Opinion:** On rehearing by Baldock - **Judges:** Baldock, McKay, McWilliams - **Cited by:** 17 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Reversed on other grounds by Saffle v. Parks, 494 U.S. 484 (1990). - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8958219 ## How later opinions describe it (automated extraction) - holding counsel’s decision not to call a succession of character witnesses at a capital sentencing hearing a reasonable tactical decision, and noting that the exposure of defendant’s life history might well have prejudiced him further in the eyes of the jury ## Opinion text ON PETITION FOR REHEARING BALDOCK, Circuit Judge. The petition for rehearing largely restates the position of the dissenting member of the panel. Accordingly, there are two points concerning the refusal of the state trial court to instruct on second-degree murder 1 which I deem necessary of further comment. The dissent states: The majority concludes that defendant’s alibi defense precludes any lesser offense instruction, implying that any evidence in the record supporting a lesser offense instruction must come from the defendant to entitle him to the instruction. “Parks testified in his own behalf and denied killing Ibrahim, testifying that he was elsewhere at the time of the homicide. So, there is nothing in defendant’s testimony that would justify giving an instruction on second-degree murder.” Maj. op. at 1501 (emphasis added). Concurrence and Dissent (hereinafter referred to as the Dissent) at 1518. As a threshold matter, this analysis of the majority opinion is inaccurate because the majority did not conclude that the defendant’s alibi defense, by itself, precluded any lesser offense instruction. 2 We merely remarked that there was nothing in defendant’s testimony which would justify giving a lesser offense instruction. That is not to *1522 say we did not consider the other evidence upon which a lesser included offense instruction might be based. To the contrary, in the very sentence following the one quoted by the dissent, we acknowledged that other evidence and found it insufficient in this case. The evidence which counsel relies on in advancing the present argument are the statements made by the defendant to Clegg in the two tape-recorded telephone conversations, particularly the first of the two conversations. We do not agree that these statements made by Parks to Clegg required an instruction to the jury on second-degree murder. Majority Opinion at 1501. Thus, we did not purport to adopt a rule, either directly or by implication, which would require a defendant to testify in order to receive a lesser offense instruction. In this case, as in others, the test is one of sufficiency of the evidence to warrant such an instruction: “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 offense and acquit him of the greater.” Keeble v. United States, 412 U.S. 205, 208 , 93 S.Ct. 1993, 1995 , 36 L.Ed.2d 844 (1973) (emphasis added). The purpose of constitutionally requiring a lesser offense instruction when the evidence so warrants is to enhance the rationality and reliability of the jury’s deliberations. Spaziano v. Florida, 468 U.S. 447, 455 , 104 S.Ct. 3154, 3159 , 82 L.Ed.2d 340 (1984). If, after viewing the evidence in its entirety, there is insufficient evidence to warrant a lesser offense instruction, the defendant would not be entitled to such an instruction because the lesser offense option would diminish, rather than augment, the rationality of the jury process. See id. Thus, I cannot agree with the dissent’s characterization of our holding on this issue. I fail to see how any reading of the majority opinion would permit an implication that in order for there to be an instruction on a lesser offense, testimony requiring such an instruction must come from the defendant himself. Further, a defendant may deny participation in a crime and still be entitled to a lesser offense instruction provided the evidence, from whatever source, would enable the jury to rationally convict the defendant of the lesser offense. The evidence in this case simply is insufficient to warrant an instruction on the offense of second-degree murder in the course of committing a credit card felony. As a preliminary matter, I note the state trial judge’s concern about the lack of physical evidence supporting a lesser offense theory. For example, no credit card or imprinted charge slip was introduced. 3 Nor is there any evidence in the record concerning the rightful owner of such a credit card. This lack of evidence is not surprising, because the defense made a tactical decision to pursue an alibi defense and did not introduce any evidence tending to show that a second-degree murder in the course of possessing a stolen credit card occurred. Neither did the defendant elicit any information from the state’s witnesses concerning this theory. Questioned by his retained counsel, the defendant attempted to convince the jury that he was uninvolved with any credit card transaction, stolen or otherwise: Mr. Hood: Okay, Now have you ever used a credit card to do business, any retail business at all? Defendant: No. Mr. Hood: Have you ever applied for a credit card? Defendant: No. Mr. Hood: Have you ever had one in your possession? Defendant: No. *1523 Mr. Hood: Have you ever used any other person’s credit card to make a purchase? Defendant: No. Mr. Hood: All right. When you bought gas, did you pay cash? Defendant: Yes. Rec. vol. VI, tr. vol. Ill at 486, 524. Only the defendant’s taped statements would possibly furnish the basis for a claim that a lesser offense instruction is warranted; however, a close look at the statements indicates that they are totally consistent with the first-degree murder conviction. The state’s theory was that defendant committed murder with malice aforethought, malice being defined as the “deliberate intention unlawfully to take away the life of a human being_” Okla.Stat. tit. 21 § 701.7 (1981). Defendant claims the evidence warranted an instruction on the theory of a second-degree murder, Okla. Stat. tit. 21, § 701.8 (1981), during the commission of the felony of taking or receiving a stolen credit card, Okla.Stat. tit. 21 § 1550.22 (1981). An important distinction between the state’s first-degree theory and the defendant’s second-degree theory concerns defendant’s state of mind. The defendant’s second-degree theory envisions murder without malice aforethought (or unintentional murder) during the commission of the felony of unlawful possession of a credit card. But the defendant’s taped statements to informant Clegg do not support such a second-degree theory — to the contrary, these statements are completely consistent with a deliberate killing. Stated another way, the defendant’s statements, although they mention a stolen credit card, do not rise to the level of creating a factual dispute concerning whether the murder was deliberate or unintentional. See Sansone v. United States, 380 U.S. 343, 350 , 85 S.Ct. 1004, 1009 , 13 L.Ed.2d 882 (1965) (“A lesser-included offense instruction is only proper where the charged greater offense requires the jury to find a disputed factual element which is not required for conviction of the lesser-included offense.”) I have listened to the tapes and reviewed the transcripts, and where the tapes and transcripts differ, I have relied on the tapes themselves. 4 In my view, only one tape furnishes an arguable basis for a second-degree murder instruction. The defendant told Clegg that the victim was standing straight up when he shot him and that the victim had not sounded any alarm. The conversation continued: Defendant: I went there with a credit card, a gas credit card. You see what happened, he come, after I give him the credit card he comes out the booth and comes back and look at my tag number. Clegg: Uh-huh. Defendant: So I know then that if he get the tag number, as soon as I leave he gonna call the law. Clegg: Oh. Defendant: Alright? Clegg: Uh-huh. Defendant: O.K. he gonna call the law, I got them guns, the dynamite and everything in my trunk, right? Clegg: Yeah, I didn’t know that. Defendant: I ain’t gonna get too far before they get on me ... Clegg: Uh-huh. Defendant: So I said the way to do that if he don’t be around then ain’t nothin he can tell them no way. Clegg: So you took— Defendant: I wasn’t going there for what people thought it was. Clegg: Oh, is that right? Defendant: Right, I was there to use that credit, that gas credit card. Clegg: Damn boy, boy you somethin’ else, you somethin’ else man. Defendant: No, but see, that’s what people fail to realize. See if he’d a told on me, see I woulda went anyway. See what I’m sayin’? *1524 Clegg: Yeah. Defendant: And, I just looked at it I might as well, if I’m go, let me go for being a dumb son of a gun, you know a little funky gas credit card. Defendant: I didn’t take a dime. You know, cause I didn’t come there to take no dime, I come there to get me some gas and then when he got my number I said man, if I leave, I say, I won’t be two blocks before they be on me cause he goin’, he goin’ tell it that I got, you know a hot credit, gas credit card. I say ... Clegg: An’ you did, I say one thing, you did it without witnesses and I guess that’s the way ... Defendant: Huh? Clegg: I guess if you goin’ to kill somebody, I guess that’s the way to do ’em. Defendant: Yeah, let you and them be there. You know, you don’t need no ten niggers with you to do nothin’... Clegg: No. Defendant: Just you and them and then you ain't got nothin’ to worry about. Rec. vol. V, ct. ex. 39; see also ct. ex. 1 at 2-3, 12. These statements, which were later disclaimed by defendant at trial as complete fabrications, 5 indicate that the defendant contemplated the murder. Twice he remarked that he was going to leave the station after using the credit card. His concern was to avoid apprehension after he left the gas station, and to that end he made a calculated decision to kill the attendant. These statements fully support a deliberate murder, notwithstanding that a credit card may have been involved. The dissent maintains that the jury should have been allowed to determine whether the murder was committed in the course of the felony of possessing a stolen credit card and that the majority has invaded the province of the jury by evaluating the evidence and accepting only that evidence tending to support a first-degree murder. Dissent at 1518-19. I must disagree with this characterization. I have searched the record and simply have found a lack of evidence from which a jury could rationally conclude that an unintentional murder occurred, even if a credit card was involved. The dissent also suggests that the determination that defendant was not entitled to a lesser offense instruction on his second-degree murder theory is inconsistent with a penalty phase instruction on the aggravating circumstance of killing to avoid or prevent a lawful arrest or prosecution. But, the facts needed to suggest second-degree murder are not identical with those suggesting the aggravating circumstance. The state’s theory, supported by defendant’s own admissions on the tapes, was a deliberate murder to avoid arrest for possession of a stolen credit card, weapons and dynamite. The aggravating circumstance allowing the death penalty was that the murder was committed to avoid or prevent lawful arrest or prosecution. In marked contrast, the second-degree murder theory advanced by defendant envisions a non-deliberate homicide committed during the felony of possessing a stolen credit card. Such a theory was not defendant’s account on the taped telephone conversation and it was not his account at trial. The state did not attempt to “have it both ways in the same case.” Dissent at 1519-20 (quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 195 , 83 S.Ct. 554, 581 , 9 L.Ed.2d 644 (1963) (Brennan, J., concurring)). Accordingly, I vote to deny rehearing. . For such a conclusion see Briley v. Bass, 742 F.2d 155 , 164 n. 9 (4th Cir.), cert. denied, 469 U.S. 893 , 105 S.Ct. 270 , 83 L.Ed.2d 206 (1984). . A blank slip with the defendant’s license number written at an angle was introduced into evidence. Rec.vol. V, ct. ex. 17. The slip is entitled "Transmittal of Travel Card Invoices." It is not a credit card charge slip, rather, it is a three-part form whereby a dealer assigns credit card invoices to the oil company for payment. From the columns of figures appearing haphazardly on the front and back of the form, it is apparent that the form was used as a scratch pad, primarily for addition and subtraction of various amounts. . The transcripts of the tapes are not completely accurate, as became evident in the trial, rec. vol. VI, tr. vol. Ill at 492-96. The jury was instructed that the words on the tape prevail. Rec. vol. VI, tr. vol. II at 344-45. Although the words on the tape are not identical to the transcribed version used in the state district court, we do not perceive any material variance. For the sake of accuracy, statements from the tape have been included. . At trial, the defendant claimed that he talked to James Clegg by telephone in order to obtain various Oklahoma telephone numbers from him. Rec. vol. VI, tr. vol. Ill at 475. The defendant said that at the time of the taped conversations he "was fully aware that James was the informant on the case. Id. at 476. Defendant testified that the reason for inventing the story on the tape was to shift police attention concerning the homicide away from his family and friends and onto himself. Id. at 477-78. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8958219. Public record. Not legal advice.