Appeals from the United States District Court for the Northern District of Indiana, Hammond Division No. 02 CR 116-Rudy Lozano, Judge.
The opinion of the court was delivered by: Rovner, Circuit Judge.
Before ROVNER, WILLIAMS, and SYKES, Circuit Judges.
The defendant-appellant Odell Corley was convicted of a number of charges including bank robbery and capital murder, and was sentenced to death on October 27, 2004. He appeals his convictions and his sentence.
The convictions stemmed from Corley's actions with others on August 27, 2002 in robbing a bank, and killing two persons and paralyzing a third at the bank. The robbery attempt was planned in advance and was to involve Corley and four others, Edward Johnson, Andre McGregor, Danyass Gay and Jeanna Ramsey. The roles each would take in the robbery were defined, with McGregor driving and Corley and Johnson entering the bank, and with disguises which consisted of makeup to lighten their complexions, sunglasses, oversized clothes and a bandana. On August 27, Johnson and Ramsey went to McGregor's house. Corley met them there, and they drove Corley in a blue Cadillac to pick up a tan car which they planned to use for the robbery. They stopped at a gas station, where Corley used a phone to call in a bomb threat against area schools in an effort to divert the police.
Once they arrived at the bank, McGregor parked the tan car in the back and Corley and Johnson approached the bank. Corley entered the bank immediately, but Johnson spotted the security guard inside the bank and froze outside the bank. The security video tape captured much of what happened next. The security guard, Keith Hill, went to the door of the bank as Corley was entering. Corley pushed the door in and fired his .45 caliber semi-automatic handgun at Hill as he entered, shooting Hill twice from close range and leaving him paralyzed. Corley than headed towards the teller stations and fatally shot teller Chandler Simpson. Corley leapt over the counter, leaving a palm print, and shot teller Kay Peckat who was crouched behind it. She died as a result of the two bullet wounds. At this point, Corley had only been in the bank for seven seconds. At Corley's command, Johnson entered the bank and retrieved Hill's gun. Upon discovering that the vault was locked, Corley ran out of the bank with an empty bag. The entire ordeal took only 29 seconds.
In the getaway vehicle, Corley berated Johnson for freezing at the bank entrance, and reported that he had shot some people. The three men then met with Ramsey at the blue Cadillac. They removed their disguises and threw the makeup rags, shirts and sunglasses into the tan car and then doused it with gasoline, setting the car on fire. They then left the area and ultimately split up, with Corley taking the guns with him.
At trial, Johnson testified against Corley, and the prosecution also introduced the videotape from the bank, as well as the palm print left at the scene. The prosecution sought the death penalty, and therefore the voir dire included questions concerning the juror's views regarding the death penalty, and the prospective jurors' exposure to publicity regarding the death penalty. In addition, because the defendants in the case are African-American and the victims were white, the prospective jurors' were also queried on their racial views. Corley now raises myriad challenges to both his trial and sentencing, which we address in turn.
The first issue we consider is whether the government exercised its peremptory challenges in a discriminatory manner. The Supreme Court in Batson v. Kentucky, 476 U.S. 79 (1986), reaffirmed that the Equal Protection Clause prohibits a prosecutor from using a peremptory challenge to strike a prospective juror based on race, noting that the harm inflicted by such an action extends beyond the defendant to the entire community, and undermines public confidence in the fairness of our judicial system. Id. at 87. To identify and assess such discriminatory practices, Batson set forth a three-part test for analyzing such claims: first, the defendant must establish a prima facie case of racial discrimination by showing facts and circumstances that raise an inference of discrimination, 476 U.S. at 93-94; second, once the prima facie case is established, the government must offer a race-neutral explanation for the challenged strike, id. at 97; and third, the defendant may then offer additional evidence to demonstrate that the proffered justification was pre-textual or to otherwise establish that the peremptory strike was motivated by a discriminatory purpose, id. at 98. United States v. Stephens, 421 F.3d 503, 509-10 (7th Cir. 2005). In meeting that burden, a defendant may introduce evidence of a pattern of strikes against members of a particular race, disparate questioning by the prosecutor in voir dire, and evidence that the prosecutor's proffered reason for a challenged strike of a prospective juror of a particular race applied just as well to an otherwise-similar prospective juror of another race who was permitted to serve. Miller-El v. Dretke, 545 U.S. 231, 240-41 (2005); Coulter v. McCann, 484 F.3d 459, 464-465 (7th Cir. 2007); Stephens, 421 F.3d at 512-13.
Corley focuses on the challenge to one juror, R.G., who was an African-American prospective juror struck by the prosecutor. The prosecutor provided race-neutral reasons for that strike, namely that R.G. had made a number of statements on the Juror Questionnaire about the impact that DNA had on his decision regarding the death penalty. First, in response to a question asking him to describe his feelings about the death penalty in his own words, R.G. stated:
I wonder how many people have been put to death wrongly since the developed science that has proven individual[s] on death row not guilty? Long before the science of DNA I had debates with a good friend about the death penalty, after the development of DNA science I had to call and change my position.
In response to questioning during voir dire, R.G. acknowledged that in those debates with the friend, he had been arguing in favor of the death penalty and his friend was opposed to it, but that after the development of DNA science he had to call the friend and change his position. R.G. mentioned DNA evidence again later in the questionnaire in response to a question as to whether he had seen any recent publicity regarding the death penalty, stating "The release of individuals off death row after DNA testing prove they were not guilty [in] Illinois." Finally, in response to another inquiry on that questionnaire as to whether African-Americans are treated differently by the criminal justice system and police officers, he answered yes and stated "the number [of] African-Americans on death row that have been freed years later for crimes that they did not commit without anyone ever facing the responsibility for the time that they have lost in [their] lives." Moreover, in response to further questioning regarding whether the science of DNA had changed his view of the death penalty, R.G. stated that it might make it a little fairer because there could be a more definite conclusion, whereas there "might have been some questions about how many people actually went to their death that might have been innocent. But science couldn't prove it at the time." Therefore, R.G. had repeatedly made significant comments that expressed his concern that innocent people had been sentenced to death and the importance of DNA evidence. That was of critical importance to the prosecutor in this case because, as the court and the defense counsel knew, the prosecutor lacked any DNA evidence linking Corley to the crime.
The defense argues that white jurors M.S. and B.K. with similar concerns were not challenged, but those jurors did not express similar concerns. The prosecutor's objection to R.G. was based specifically on his repeated focus on the importance of DNA evidence. M.S. did not mention DNA evidence in her questionnaire at all, and B.K. responded to the question as to any publicity she had seen concerning the death penalty "Recent death penalty reversals as a result of DNA evidence." Neither expressed the degree of concern exhibited by R.G., nor did they indicate that it had caused them to reconsider their position on the death penalty. B.K. expressed the need for "compelling" evidence or a "preponderance of evidence" of guilt before she would impose the death penalty, but that is not the same as wanting DNA evidence in order to ...