United States v. Corley, Odell ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 05-1120 & 05-1798
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ODELL CORLEY,
Defendant-Appellant.
____________
Appeals from the United States District Court
for the Northern District of Indiana, Hammond Division
No. 02 CR 116—Rudy Lozano, Judge.
____________
ARGUED DECEMBER 11, 2006—DECIDED MARCH 24, 2008
____________
Before ROVNER, WILLIAMS, and SYKES, Circuit Judges.
ROVNER, Circuit Judge. 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
2 Nos. 05-1120 & 05-1798
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 discover-
ing 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
Nos. 05-1120 & 05-1798 3
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 prose-
cution 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 regard-
ing 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.
I.
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 chal-
lenge 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
4 Nos. 05-1120 & 05-1798
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
Nos. 05-1120 & 05-1798 5
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. acknowl-
edged 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 question-
naire 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 question-
naire as to whether African-Americans are treated differ-
ently 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 question-
ing 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 ques-
tions 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 impor-
tance 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.
6 Nos. 05-1120 & 05-1798
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 objec-
tion 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. re-
sponded 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 posi-
tion 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 have confidence in a verdict, which is what R.G. seemed
to imply (not to mention that those standards—which the
defense counsel argued as imposing a heightened stan-
dard—are lower than the reasonable doubt one).
The prosecutor identified a second concern in challeng-
ing R.G., which was R.G.’s statement that when he was
young, a close family member was accused of robbery
and imprisoned for years, and that it affected him because
someone he looked up to had been taken away from
him and he believed it was unfair. R.G. stated that the
relative acknowledged that he was wrong when R.G. was
older. Even though R.G. expressed that he later found
out the relative was guilty, he nevertheless spent years
believing the justice system was unfair to a person impor-
tant in his life. The prosecutor was entitled to believe that
the experience could have had an impact on him that
persisted even after the relative’s guilt was discovered.
The district court did not clearly err in holding that the
Nos. 05-1120 & 05-1798 7
peremptory challenge was not exercised in a discrimina-
tory manner.
Although Corley also argues that the court did not
follow the three-step Batson process, the record belies that
assertion. The defense counsel began by pointing to
factors that indicated that race could have been a factor
in the challenge. When the argument by defense counsel
seemed to veer into whether a race-neutral reason
was possible, the district court cut off the counsel, asking
whether he was arguing the question of pretext or
whether he was still providing a basis to require the
government to respond. That sequence recognized the
progression from the first to the second step of the Batson
process. The government then proffered its race-neutral
reasons, namely R.G.’s focus on the impact that DNA
evidence had on his decision regarding the death penalty,
as well as the concern with R.G.’s experience as a
child being separated from a person whom he looked up
to and his childhood perception of an unfair judicial
system.
The district court did not then explicitly declare that the
government had provided a race-neutral reason and that
the inquiry would proceed to step three. That is because
defense counsel proceeded directly into the argument that
the reasons were insufficient and that similarly-situated
white jurors were treated differently. The ensuing dis-
cussion was clearly a step three argument, and there is no
formalistic requirement that the steps be labeled and
explicitly delineated, as long as it is clear from the
record that each step was in fact considered. Here, the
prosecutor provided facially neutral reasons, and there-
fore the defense counsel properly progressed to the final
step of attempting to prove that the strike was discrim-
8 Nos. 05-1120 & 05-1798
inatory. See Purkett v. Elem, 514 U.S. 765, 768 (1995) (noting
that any race-neutral reason is sufficient at this step, even
if not persuasive or even plausible.) The district court
proceeded to hear Corley’s arguments regarding the
similarly-situated jurors as well as the government’s
contention that R.G.’s statements were different in nature
and not comparable. See Coulter v. McCann, 484 F.3d
459, 465 (7th Cir. 2007) (noting that at step three the
court weighs the evidence to determine if the non-dis-
criminatory reason is credible, including consideration
of similarly-situated jurors permitted to serve.) The
court then held that the government had provided race-
neutral non-discriminatory reasons based on the DNA
statements and the comments regarding the relative
with the conviction that R.G. had believed was unfair.
Although it would be more helpful for the district courts
in these Batson cases to explicitly make credibility deter-
minations, and perhaps state on the record the basis for
rejecting the comparisons with the similarly-situated
jurors, there is no ambiguity in this record. The court
accepted the government’s argument, that determination
is supported by the record, and it is not clearly erroneous.
II.
Corley next argues that the district court abused its
discretion and violated his Fifth and Eighth Amendment
rights in allowing the government to introduce evidence
of unadjudicated conduct at sentencing. In the penalty
phase of the trial, the prosecution sought to prove Corley’s
future dangerousness as a non-statutory aggravating
factor. Specifically, the factor of “future dangerousness”
entailed evidence that
Nos. 05-1120 & 05-1798 9
the Defendant is likely to commit criminal acts of
violence in the future which would be a continuing
and serious threat to others, as demonstrated by proof
of a continuing pattern of violence, the Defendant’s
low rehabilitative potential, and/or his mental condi-
tion.
Penalty Phase Instruction # 11. Toward that end, the
government presented evidence that Corley was responsi-
ble for the 1988 murder of Wanda McNeal in Atlanta,
Georgia. McNeal had been set on fire while sleeping on
a couch on a porch, and the resultant injuries were fatal.
Corley had not been tried for that crime, and therefore
it constituted unadjudicated conduct. The jury in this
case found beyond a reasonable doubt both that Corley
murdered McNeal, and that the government had proven
beyond a reasonable doubt the existence of that non-
statutory aggravating factor of future dangerousness.
First, Corley challenges the introduction of evidence
regarding that unadjudicated conduct as contrary to the
statutory framework of the Federal Death Penalty Act
(FDPA), which contains no provision expressly allowing
the consideration of unadjudicated conduct. Corley
points out that the FDPA, in listing factors that a juror
should consider as aggravating, repeatedly refers only
to “convictions.” It is a stretch, however, and one not
supported in law, to contend that the FDPA’s recognition
that prior convictions are relevant factors in aggravation
should be read as precluding the consideration of other
actions by the defendant that did not result in a trial or
conviction. In fact, the FDPA specifically provides that
the jury “may consider whether any other aggravating
factor” supports a death sentence, 18 U.S.C. § 3592(c), and
states that at the sentencing hearing “information may be
10 Nos. 05-1120 & 05-1798
presented as to any matter relevant to the sentence . . . .”
18 U.S.C. § 3593(c). Corley cannot demonstrate that the
FDPA’s references to convictions meant to preclude
consideration of actions that had not yet resulted
in convictions, particularly given the widespread accep-
tance that evidence of future dangerousness is indeed a
relevant consideration in the sentencing process.
Similarly, Corley cannot succeed on his claim that the
admission of evidence pertaining to unadjudicated crimes
violates the Fifth and Eighth Amendments. The notion that
consideration of unadjudicated conduct is inherently
unconstitutional has been rejected by the Supreme Court
and by a plethora of circuit courts that have considered
it. In Williams v. New York, 337 U.S. 241 (1949), the Court
upheld consideration of unadjudicated conduct in the
penalty phase of a capital case. Corley argues that
aspects of the Williams decision have since been rejected
in subsequent decisions. See Woodson v. North Carolina,
428 U.S. 280, 304-05 (1976) (holding, contrary to Williams,
that the death penalty is qualitatively different from a
sentence of imprisonment) and Gardner v. Florida, 430 U.S.
349, 357-58 (1977) (concluding that the due process clause
applies to capital sentencing). However, since those
decisions were issued, the Court has again repeated
that holding of Williams, noting that it had previously
upheld the constitutionality of considering a defendant’s
past criminal behavior even if no criminal conviction
resulted from that behavior. Nichols v. United States, 511
U.S. 738, 747 (1994). Although Corley emphasizes that
Nichols was not a capital case, nothing in Nichols indicated
that the Court considered the Williams holding to be
limited, or that it was no longer good law as to cases
involving the death penalty.
Nos. 05-1120 & 05-1798 11
Moreover, every circuit to consider the issue has held
that unadjudicated conduct may be considered in the
process of assessing aggravating factors, and many
courts have specifically recognized the relevance to the
factor of future dangerousness. See, e.g., Cummings v.
Polk, 475 F.3d 230, 238 (4th Cir. 2007) (noting that there
is authority in the 4th Circuit and the Supreme Court that
evidence of unadjudicated crimes may be utilized in a
capital sentencing trial); Brown v. Dretke, 419 F.3d 365, 376-
77 (5th Cir. 2005) (“admission of unadjudicated offenses
in the sentencing phase of a capital trial does not violate
the eighth and fourteenth amendments,” nor does the
Constitution require “that unadjudicated extraneous
offenses be proved beyond a reasonable doubt”); United
States v. Lee, 274 F.3d 485, 494 (8th Cir. 2001) (“the admis-
sion of evidence of unadjudicated prior offenses at a
capital sentencing hearing is constitutionally permissible
and not inherently prejudicial”); United States v. Cooper,
91 F. Supp. 2d 90, 106-108 (D.D.C. 2000) (noting that
numerous federal courts and the majority of states have
held that the use of unadjudicated criminal activity is
constitutionally permissible in a capital sentencing hearing,
and listing cases). We have not directly addressed the
issue, although we implicitly reached the same holding
in Pitsonbarger v. Gramley, 141 F.3d 728, 735-36 (7th Cir.
1998), in stating that the due process clause does not
require that a jury find that uncharged criminal conduct
occurred beyond a reasonable doubt before it can con-
sider that conduct for capital sentencing. We now make
explicit that we join those circuits in recognizing that it is
not inherently unconstitutional for a jury, in assessing
the aggravating factor of future dangerousness, to con-
sider unadjudicated criminal conduct.
12 Nos. 05-1120 & 05-1798
That does not mean that such conduct may be con-
sidered in all cases. As Corley and the government recog-
nize, the district court in determining whether such
information may be considered must consider a number
of factors, including the reliability of the evidence, the
prejudicial and probative impact of the evidence, and the
burden of proof both for determining reliability and for
a jury to determine whether the conduct may be consid-
ered. In this case, the district court recognized the sig-
nificance of those factors in assuring that Corley’s rights
were protected. Before the court would allow the jury
to hear the evidence, the court conducted a two-day
hearing to determine the reliability of the evidence
against Corley. The court, applying the standard agreed
to by the parties, found “that the evidence linking De-
fendant to the Atlanta murder was sufficient to allow a
reasonable jury to find, beyond a reasonable doubt, that
Defendant committed the Atlanta murder.” Although
Corley disputes that finding, he essentially asks us to
reweigh the evidence, attributing greater weight to some
testimony over other testimony. That is not the province
of this court. It is not enough to demonstrate that a
jury could properly have found that Corley was not
responsible for the murder. The evidence presented in
support of the murder claim was reliable, and was suffi-
cient to allow a jury to find guilt beyond a reasonable
doubt. It included witnesses who placed Corley at the
scene of the crime at the time of the fire, a gas can found in
his car, a bottle on a lanyard similar to one he had pos-
sessed that was found at the scene and emitted gas fumes,
and incriminating statements made by Corley.
The court further found that the probative value of the
Atlanta evidence was not outweighed by the potential
Nos. 05-1120 & 05-1798 13
for creating prejudice, confusing the issues, or mislead-
ing the jury. Corley disputes that conclusion as well,
maintaining that the danger of “prejudicial spillover”
was so great that evidence of the unadjudicated murder
should not have been admitted. Essentially, Corley
argues that a jury which has just convicted a defendant
of a capital crime is unlikely to be impartial in consider-
ing the defendant’s guilt as to the unadjudicated offense.
This argument would apply to all instances in which
unadjudicated offenses are raised in the penalty phase of
a capital case. But as we have already noted, such use has
already been upheld by the Supreme Court and every
circuit to consider it. Corley ultimately relies only on an
unpublished district court case, United States v. Gonzalez,
2004 WL 1920492 (D. Conn. Aug. 17, 2004), for his argu-
ment, but even under the reasoning of that case his argu-
ment fails. In that case, the court noted that Gonzalez
would be “uniquely prejudiced” by the introduction of
evidence of four unadjudicated murders as aggravating
factors because of the nature of the murders and the
similarity to the underlying capital murder. Id. at *6.
Specifically, the four additional murders introduced
as aggravating factors, while unrelated to the capital
murder, were not readily separable because they arose
from factual patterns similar to the underlying crime,
thus increasing the risk that the jury would use its finding
of guilt on the capital offense in its determination of guilt
in the penalty phase. Id. The capital crime involved a
murder-for-hire in which Gonzalez shot the victim point
blank from the back of a motorcycle. Id. at *5. The four
additional unadjudicated offenses were all murders, all
alleged to have been committed by Gonzalez as a passen-
ger on a motorcycle, and three out of four were murders-
for-hire. Id. at *6. Faced with those unadjudicated offenses
14 Nos. 05-1120 & 05-1798
that, though unrelated, were factually similar, the court
concluded that the danger of prejudicial spillover was
too great. Id. That is a strikingly different situation than
the one presented here. The only similarity between the
unadjudicated conduct and the capital crime is that
they both involved murder. There is no further factual
similarity between the underlying offense of murders of
persons not known to him with a gun in the course of a
bank robbery, and the unadjudicated claim of murder
by setting on fire a person with whom he had a personal
relationship at a residence. Accordingly, Corley has
failed to demonstrate that the district court should have
excluded the evidence based on the prejudicial nature
of the evidence.
The district court took further steps to protect the
defendant from potential unfair prejudice in its instruc-
tions to the jury. The jury was instructed that in order to
consider the evidence related to McNeal’s homicide in
assessing the aggravating factor, the jury must first find
beyond a reasonable doubt the two elements of the crime
(that the defendant acted unlawfully and with malice
aforethought and that while so acting, the defendant
caused the death of McNeal.) We note that whether that
standard is required is not an issue in this case. Its rele-
vance is in its reflection of the protections put in place by
the district court to cabin the use of unadjudicated con-
duct in order to minimize the risk of prejudice. The court
further instructed the jury that even if it found beyond a
reasonable doubt that the defendant murdered McNeal,
it need not conclude that the government had established
the aggravating factor beyond a reasonable doubt. The
special verdict form required the jury to separately re-
cord their findings on the questions as to whether the
Nos. 05-1120 & 05-1798 15
government had (1) proven beyond a reasonable doubt
that the defendant murdered McNeal, and (2) proven
beyond a reasonable doubt that “the defendant is likely
to commit criminal acts of violence in the future which
would be a continuing and serious threat to others, as
demonstrated by proof of a continuing pattern of violence,
the defendant’s low rehabilitative potential, and this fact
or circumstance tends to support imposition of the death
penalty.”
In sum, the district court was cognizant of the perils
of reliance on unadjudicated conduct, and the procedures
utilized by the district court insured that only reliable
evidence that convinced a jury of guilt beyond a rea-
sonable doubt was considered. In those circumstances,
Corley cannot demonstrate a violation of his constitu-
tional rights.
Nor can he succeed in his related claim that the district
court erred in allowing the government to introduce
the two photos of McNeal’s charred body post mortem.
Corley argues that the prejudicial impact of the gruesome
photos outweighed any minimal probative value, and
therefore that the admission of those photos was error
which played a substantial role in the jury’s decision
to sentence Corley to death. Under the Federal Death
Penalty Act, during the penalty phase “information may
be excluded if its probative value is outweighed by the
danger of creating unfair prejudice, confusing the issues,
or misleading the jury.” 18 U.S.C. § 3593(c). We will re-
verse a district court’s determination only for an abuse
of discretion. United States v. Johnson, 223 F.3d 665, 674
(7th Cir. 2000). In this case, the government possessed ten
or fifteen photos depicting McNeal’s injuries, and the
district court allowed the admission of two of them. Those
16 Nos. 05-1120 & 05-1798
pictures depicted the state of McNeal’s body after having
been set afire, and were probative of the manner of death,
the extent of the injuries, and the viciousness of the attack.
Moreover, McNeal lived for a brief time after the attack
and, by depicting the extent of the injuries, the photo-
graphs provided context for the jury in determining
McNeal’s condition when she made statements re-
garding her attackers, which Corley relied upon to argue
that others were responsible for the murder. The court
recognized that the government was seeking admission
of only two of the ten or fifteen photographs in its posses-
sion, and held that the prejudice did not outweigh the
probative value. Those two admitted photos pale in
comparison to photos allowed by other courts, in both
number and character. See, e.g., United States v. Sampson,
486 F.3d 13, 43 (1st Cir. 2007) (FDPA case upholding the
admission of autopsy photographs because they shed
light on the manner in which each victim was killed;
noting that although the government had other means of
making its points, “within reasonable limits, the prosecu-
tion—even in a capital case—is entitled to present its case
through the evidence it deems most appropriate.”); United
States v. Fields, 483 F.3d 313, 355-56 (5th Cir. 2007) (FDPA
case upholding the admission of 32 photos, some of them
“shocking,” and noting that “caselaw indicates that
admitting gruesome photographs of the victim’s body in
a murder case ordinarily does not rise to an abuse of
discretion where those photos have nontrivial probative
value.”) We find no abuse of discretion in the decision to
admit the two photos here.
III.
Corley further argues that he was denied his rights
under the Eighth Amendment and his Fifth Amendment
Nos. 05-1120 & 05-1798 17
right to due process by the government’s misconduct at
the trial. Specifically, he points to two instances of
alleged misconduct during cross-examination in the trial,
and one during the government’s rebuttal argument at
sentencing. The first instance of alleged misconduct
involved the cross-examination of Corley regarding his
alibi defense. Corley maintained that on the day of the
bank robbery, he arrived at his grandmother’s home
around noon and proceeded to cut her grass. He testified
that while he was there, his grandmother informed
him that she had seen a story about the robbery on the
news. The government asked Corley if he was aware
that there were no news reports regarding the robbery
until the late evening hours of the day. Defense counsel
objected, arguing that there were no facts in evidence as
to when the news reports were broadcast, and the court
overruled the objection. The government then proceeded
to ask a series of questions regarding the time that the
robbery occurred and that emergency personnel re-
sponded, apparently to establish a timeline indicating
that the report could not have appeared on the midday
news. The district court then sustained Corley’s objection,
ending that line of questioning.
At the conclusion of the evidence, Corley moved for a
mistrial, and the government responded that it was
merely drawing inferences from facts in evidence. Subse-
quently, the district court offered a curative instruction
that provided:
Ladies and gentlemen, questions were raised during
the trial regarding the broadcast of news reports
concerning the robbery. The question of a lawyer is
not to be considered by you as evidence. It is the
witnesses’ answers that are evidence—not the ques-
18 Nos. 05-1120 & 05-1798
tions posed by the lawyers. At times, a lawyer on cross-
examination may have incorporated into a question
a statement which assumed certain facts to be true,
and asked the witness if those facts were true. If there
is no evidence in the record proving those assumed
facts to be true, then you are not to consider those
facts simply because they were contained in the law-
yer’s question.
In light of that curative instruction, we cannot conclude
that the questioning denied Corley a fair trial. In re-
viewing a claim of prosecutorial misconduct, we consider
first whether the challenged remark by the prosecutor
was improper, and second, whether it prejudiced the
defendant. United States v. Serfling, 504 F.3d 672, 677 (7th
Cir. 2007). In determining prejudice, we examine a num-
ber of factors, including: (1) whether the prosecutor
misstated the evidence; (2) whether the remark implicated
a specific right; (3) whether the defendant invited the
response; (4) the efficacy of curative instructions; (5) the
defendant’s opportunity to rebut; and (6) the weight of
the evidence. Id. “Ultimately, the inquiry turns on whether
the improper statement ‘so infected the trial with unfair-
ness as to make the resulting conviction a denial of due
process.’ ” Id., quoting Darden v. Wainwright, 477 U.S. 168,
181 (1986) (quotation marks and citation omitted).
There was some evidence of record to allow an inference
that a mid-afternoon television report did not occur,
but the question overreached in that it indicated as a
fact that no such news report occurred. Nevertheless,
any confusion potentially demonstrated by the questions
was ameliorated by the very specific curative instruction,
which identified this particular line of questioning and
instructed the jury that it could not credit the assumption
Nos. 05-1120 & 05-1798 19
in that question, but must rely solely on admissible evi-
dence. “As always, we presume that the jury followed
the court’s instructions, absent evidence of an ‘overwhelm-
ing probability’ that it was unable to do so.” Serfling,
504 F.3d at 677. There is no reason to believe that the jury
failed to follow the instruction here. Moreover, the evi-
dence against Corley was substantial, and we have con-
sidered that as the factor “most important” to the prej-
udice inquiry. Id. Accordingly, Corley has failed to demon-
strate that the questioning violated his constitutional
right to a fair trial.
The second allegation of alleged prosecutorial miscon-
duct concerns cross-examination regarding Corley’s
financial situation. Corley testified on direct examination
that he did not have any salaried position but was self-
employed foremost as a portrait artist, but also earned
income with the purchase and sale of cars, detailing
vehicles, and handyman work. On cross-examination, he
testified that he was living at his mother’s house at the
time. When asked if he was paying her rent, he stated
that he had not been there for even a month, and that he
had told his mother that he was not going to live with
her, but would just store his belongings there. He then
testified that he was going to get himself “seven girlfriends
and have seven different places to sleep at every night.”
The government then queried whether he was “just that
good, that seven women would take you in?” to which
he responded affirmatively. A back-and-forth then en-
sued in which he was questioned as to the identity of
these women, to which he responded that he thus far
found only one, although he also maintained that he had
used such a living arrangement in the past. Corley argues
that the line of questioning as to his personal life vio-
20 Nos. 05-1120 & 05-1798
lated a duty to protect a witness from questions that go
beyond cross-examination merely to humiliate. But the
questioning was relevant to Corley’s financial situation,
and whether he had a motive to rob a bank because he
was in poor financial straits. The testimony indicated
that he lived with his mother and did not pay rent,
but Corley raised the unconventional living arrange-
ment in an apparent attempt to indicate that the situation
did not indicate that he was pressed for money. The
government properly explored that testimony to reveal
that Corley was not being truthful as to his plans, and
that he indeed had a motive to rob a bank. There was no
error here.
Corley also challenges a statement made by the gov-
ernment in closing argument ostensibly to counter the
impact that the emotional testimony by Corley’s mother
may have had on the jury: “Because there was no histrion-
ics, because there was no raw emotion, don’t assume for
a minute that the sentence of life will be perceived as
justice by the victims of this case.” Corley argues that the
statement was improper because it was a “description of
both the State’s and family’s characterization of the crime.”
Corley does not elaborate and the challenge is fairly
ambiguous. The sentence could be read as asking the
jury not to draw any inferences from the lack of emotions
in the testimony by the victims’ families, as compared
with the very emotional testimony of Corley’s mother.
Even if it is read, as it well could be, as indicating that
the victims will not perceive a life sentence as just,
the objection to the statement was vague; in giving the
basis for his objection, Corley’s attorney merely stated
“I thought we had eliminated that argument earlier in our
discussions.” He was referring to an agreement between
the government and defense that the government would
not elicit from penalty-phase witnesses any testimony
Nos. 05-1120 & 05-1798 21
regarding their opinions on whether Corley should receive
the death penalty. The court was not apprised of that
agreement, nor did defense counsel explain it or seek
a sidebar. Moreover, although defense counsel subse-
quently sought a mistrial, counsel did not seek any
curative instruction.
Corley appears to base his challenge on the Supreme
Court’s holding that it is a violation of the Eighth Amend-
ment for family members of a victim to testify as to the
appropriate sentence. Booth v. Maryland, 482 U.S. 496,
502 (1987), rev’d in part by Payne v. Tennessee, 501 U.S.
808 (1991); Payne, 501 U.S. at 830 n.2; Welch v. Sirmons, 451
F.3d 675, 701-04 (10th Cir. 2006). But here we are faced not
with any such testimony, but with a statement by the
government at closing argument. Corley has not pre-
sented any argument addressing such statements by the
prosecutor at closing argument. We conclude that the one,
isolated, ambiguous statement by the government in this
case is not reversible error in the context in which it
was made and in context of the closing argument and
limiting instructions as a whole. In fact, Corley does not
really argue that the statement alone is reversible error,
but asks us to consider it in combination with the alleged
errors in cross-examination. As discussed above, the cross-
examination was either proper or was properly handled
with the limiting instruction, and therefore that argu-
ment must fail.
Finally, Corley argues that his constitutional rights
were violated by the refusal to give a residual doubt
instruction or to allow a residual doubt argument. This
claim is rather bizarre, because Corley argues on appeal
that he should have been able to argue residual doubt
about the unadjudicated murder of McNeal, not that he
should have been able to argue residual doubt about the
22 Nos. 05-1120 & 05-1798
offense for which he was convicted. His proposed residual
doubt instruction that was apparently rejected, how-
ever, addressed only residual doubt as to his guilt for
the offense itself, and was unrelated to the unadjudicated
murder introduced as an aggravating factor. Moreover,
Corley never explains what argument as to residual
doubt he wanted to make and was precluded from making.
The evidence regarding the unadjudicated murder of
McNeal was presented at sentencing, and Corley had the
opportunity at that time to challenge the evidence. The
utility of a residual doubt instruction at that stage is
questionable. Furthermore, it appears that this claim that
he should have been able to argue residual doubt, and to
have a residual doubt instruction as to the unadjudicated
murder, was never raised in the district court. Corley
specifically disavows any residual doubt argument as to
the guilt for the offense of conviction at this time,
and therefore this claim must fail. We note that even a
residual doubt argument relating to the offense of con-
viction would be likely to fail. In Oregon v. Guzek, 546 U.S.
517, 523 (2006), the Supreme Court held that the Con-
stitution does not give a capital murder defendant the
right to present new alibi evidence at resentencing that
was inconsistent with his prior conviction. The jury in
this case already heard any evidence introduced at trial
casting doubt on his guilt, and therefore it is difficult to
envision how denying a residual doubt argument could be
reversible error. We need not decide that, however, because
Corley raises no challenge on appeal related to residual
doubt as to the offense of conviction. There is no reversible
error here.
The conviction and sentence are AFFIRMED.
USCA-02-C-0072—3-24-08