Man convicted in Tulsa restaurant massacre appeals conviction

Tuesday, May 3rd 2005, 2:26 pm

By: News On 6

DENVER (AP) -- Attorneys for a man sentenced to die for a 1992 massacre in an Oklahoma restaurant told a federal appeals court Tuesday that the trial judge failed to rein in an overzealous prosecutor and that jurors weren't fully informed about sentencing him to life without parole.

Corey Duane Hamilton's attorney told a three-judge panel of the 10th U.S. Circuit Court of Appeals that the conviction must be reversed because the prosecutor told the jury that the presumption of innocence had been stripped away.

The attorney, Robert Jackson, also said the judge improperly barred Hamilton's trial lawyer from telling jurors the difference between a life prison sentence and life without parole.

"This jury very well could have thought they had to sentence him to death to keep him off the streets," Jackson said.

Judge Deanell Tacha said jurors didn't send any questions to the judge or otherwise indicate they were confused. But Jackson said Oklahoma courts have seen numerous murder cases where juries ask for a definition of life without parole. That, combined with the judge's decision not to allow the defense to tell jurors about the issue, violated Hamilton's rights, he said.

Oklahoma Assistant Attorney General Jennifer Dickson said the prosecutor's comment was simply another way of saying he had proved his case. She also said that during jury selection, the prosecutor repeatedly told prospective jurors that Hamilton was presumed innocent.

Hamilton received four death sentences after he and three others were convicted of shooting four people to death during a robbery of a chicken restaurant in Tulsa. The robbers took $2,200 and then lined up the victims in a walk-in refrigerator and shot each in the back of the head.

Three other men were convicted and sentenced to life in prison in the case, but Hamilton received the death penalty in part because one of the co-defendants testified that Hamilton was the gunman.

That co-defendant, Donnie Daniels, later recanted significant parts of his trial testimony but refused to cooperate during a court hearing.

Hamilton's earlier appeals related to Daniels' recantation were rejected.

Jackson also told the appeals court that the trial judge allowed improper testimony during Hamilton's sentencing hearing, letting victims' family members characterize the crime in an emotional presentation that unduly influenced the jury.

Judge Timothy Tymkovich asked Dickson if such testimony violated Hamilton's rights, but she said all such testimony is emotionally charged. She said while the trial judge did not instruct jurors on how to consider the family members' testimony, the judge was not required to do so.