*1 evidence) weight contrary to the when actual or imminent basis sufficient to remain in her current he ordered the child process rights were due The mother's harm. long-term, out- judge trial ruled foster-home environment as when the not violated hence plan, placement permanency placement of the child of-home home long-term out-of- proper. enjoy supervised with her visitation trial court's order must be and mother. The C. affirmed. hence is Visitation C.J., TAYLOR, EDMONDSON, $29 final claim to er The mother's OPALA,KAUGER, V.C.J., HARGRAVE, deny that no factual basis exists ror is REIF, JJ., WATT, AND WINCHESTER Neither is unsupervised visitation. her CONCUR; suggests BTW will be there by unsupervised harmed the mother or COLBERT, J., IN PART CONCURS Further, urges she her fear visitation. PART. AND IN DISSENTS only already will been instilled BTW has by requiring supervised visita reinforced be Although support evidence to
tion. there is say position appeal, on we cannot
each side's tribunal erred when it ordered su
the trial
pervised visitation of the mother with the The counselors have testified that the
child.
genuine.
fear of her mother is
One
child's
hence err when ordered Oklahoma, Appellee. STATE tation.
No. D-2007-825. IV. Appeals Court of Criminal of Oklahoma. SUMMARY 12, 2010. Oct. trial 1 30 We review the court's resolution equita- fact issues under the centuries-old duty It is our to affirm the ble standard. clearly
trial court's decree if it is not con-
trary weight of the evidence. Our review of the massive record reveals
careful evidence, although conflicting there is say judge cannot the trial abused his
we (or findings clearly that his are
discretion recommendations, you Q. when with her "Are those still and her current level of distress changed?" your have recommendations be mother, it is recommended that visitations stopped." '"No, my A. those are still recommendations." ook ik ''The second recommendation was 'Due "Considering the emotional distance between progress that has been made with lack difficulty interacting and the these individuals attempt reunification and the level of distress protected meaningfully set- in a structured and [BTW], attempt it is rec- that continued has session, ting therapy is reason for such as there attempts be ommended that reunification termi- greater regarding the nature and even concern continue, attempts likely i nated. If these prolonged interactions in an unsu- outcome of will continue to deteriorate and her men- [BTW] Close, setting." Report Stephen pervised R. severely functioning may tal health become limit- Ph.D., 2008, record, 10 November p. ed.'"
216
218 *8 Hammarsten, Viol, Cynthia Catherine As- Defenders, City, sistant Public Oklahoma OK, attorneys for defendant at trial. Deutsch, Rowland, Steve Scott Assistant Attorneys, OK, District City, Oklahoma at- torneys for State at trial. Miller, Digilio
Andrea Assistant Public De- fender, Public, County Oklahoma Defender's Office, OK, City, attorney ap- Oklahoma for pellant appeal. on Edmondson, W.A. Drew Oklahoma Attor- General, ney Whittaker, Robert Assistant At- General, torney OK, City, Oklahoma attor- neys appellee appeal.
OPINION Friday May Cuesta-Rod- T4 On calling phone. on her cell riguez tried Fisher Judge. JOHNSON, Presiding Vice A. at him she was work. answered and told She Cuesta-Rodriguez was tried T1 Carlos gone by place her of Cuesta-Rodriguez had County, Case Oklahoma the District Court work, however, not there. and knew she was guilty of CF-2008-3216, found and was him, No. cheating on he went Believing she was 21 0.8. in violation of Degree Murder First to bed. home, tequila, and went drank some imposed the death § The 701.7. came home to dark Katya T5 Chacon the murder was finding that penalty after p.m. 10:00 She saw approximately house atrocious, heinous, or cruel and especially and a note next to tequila empty bottle a continu- presented Cuesta-Rodriguez note, the back of an written on it. The 0.S8.2001, society. See ing threat puntas, you and envelope, said "F- bitches 701.12(4) (7). Virgil Honorable C. The § and 881). (Tr. Vol.2, thought she She goodbye" trial, presided at Black, Judge, who District house, when she heard alone in the but was Judg- accordingly. From this him sentenced room, in the other Cuesta-Rodriguez cough Sentence, appeals raising twen- he and ment telephone her mother. Unable tried to she find none error. We ty-one claims of Katya by telephone, left contact Fisher judg- and affirm the merit relief these claims joined getting off and her as she was house ment and sentence. at a McDonald's They ate a late meal work. restaurant, They initially home. and went FACTS leave, but decided to planned pack Katya overnight. slept Fisher, in the house victim in this remain Olimpia T2 slept in a and Fisher Katya in her own bedroom case, daughter Chacon adult and her Cuesta-Rodriguez in a home that third bedroom. lived with pur- Cuesta-Rodriguezs had Fisher (6 a.m., Katya up and 4:80 woke Around year the cou- after together. chased arguing. Fisher and heard home, relationship their ple purchased two Katya the bedroom where the went into long over Fisher's had become strained persuaded Fisher to come fighting were company packer moving working as hours hope that Katya's bedroom in the Cuesta- Cuesta-Rodriguez's fears that she Cuesta- Rodriguez would leave them alone. Cuesta-Rodriguez would cheating on him. Katya's the women into Rodriguez followed they whenever Fisher and Chacon question argue loudly continuing to bedroom while they going were home about where left the telephone, picked up a with Fisher. Fisher Eventually, doing. they would be and what it out of her snatched but point to the relationship deteriorated time, away. At it the same hand and threw Fisher Cuesta-Rodriguez wanted 45 caliber pulled out a double-barreled he Cuesta-Rodri- out and Fisher wanted move shotgun two .410 shells pistol loaded with guez to move out. right eye1 With and blasted Fisher shot, Katya a baseball mother retrieved her May Fisher went T3 On to hit the bed and tried City bat from under Police Fe of the Oklahoma Santa Station hand. Cuesta-Rod- Department complaint make a domestic Katya swung it grabbed riguez the bat Jeffrey Hauck observed abuse. Officer Katya ran from it to the floor.2 and threw *9 right upper arm and stom- bruising on her call 911 from a and was able to that the house found out Officer ach. When Fisher According to Cuesta- neighbor's photographs of the residence. going to take Hauck was police, Fisher was Rodriguez's statement Cuesta-Rodriguez would bruising that after he shot her so arrested, alive and conscious still she ran out of station. be attempted to wrestle it from gunshot went off as Fisher Katya that the hit the 1. Chacon testified Cuesta-Rodriguez near right said the shot hit of Fisher's face. him. side thought might near her eyes, it have hit her but police Katya Cuesta-Rodriguez beat 2. told eye. left Fisher. a bat before he shot him with baseball gun police Cuesta-Rodriguez that the also told where, he took her to despite DISCUSSION his bedroom out, having eye an blown Fisher continuedto 1. fight struggle. Jury Voluntary Instruction: Intoxication police T7 The first officers arrived on the T 10 Cuesta-Rodriguez claims that his approximately a.m., scene at 4:41 within two constitutional rights process to due and to being dispatched
minutes of by 911. While present a defense were denied the trial one officer took Katya information from near court's refusal to jury issue a instruction on neighbor's house from where she had the defense of voluntary intoxication. called other approaching officers Cues- ta-Rodriguer's 111 This Court reviews a trial and Fisher's house could hear screaming Fisher banging on a bedroom court's decision on whether to jury instruct a window as if trying she was on the escape. voluntary defense of The intoxication for an abuse of windows and doors discretion. Fitzgerald to the house were cov- 972 P.2d 1174. burglar ered with only bars that prevent- voluntary Before a intoxication instruction escape, ed her but prevented entry also given, the evidence must be sufficient to es police. attempt The officers' entry first prima tablish a facie case that the defendant by kicking in the front door failed. While was intoxicated point to the he was unable to attempting get through door, the front form deliberate intent to kill. Malone v. gunshot officers heard a and Fisher's ¶34, 22, n. stopped. sereams 185, 197, n. 48. Where the trial court finds 18 Certain that longer insufficient evidence has been introduced to Fisher was no alive, and certain Cuesta-Rodriguez show that the defendant was so intoxicated armed, police summoned powers their tactical his mental team. were overcome and meantime, In he was police unable to form hostage negotiator intent, eriminal court reject either attempted telephone to make instruction contact with instruct that intoxication was not loudspeaker and used a defense to Fitzgerald, the crime. 1998 OK attempt to convince him to come out. ¶68, 43, 1174; CR 972 P.2d at see also Miller Eventually, the tactical team forced their 1977OK way through the front burglar door bars with (holding voluntary that for intoxication to difficulty some using specialized hydraulic murder, be defense to first-degree defendant jam-ram. tool called a must be so intoxicated as to be incapable of was arrested and police taken to the station. intent). forming any criminal gave He statements day detectives that 1 12 The and the day. next case showed both interviews he Cuesta-Rodriguez did consume Fisher, tequila some shooting admitted although he several hours before the murder. Under claimed the first shot was accidental. Photo questioning by police, example, Cuesta- graphs of scene, Fisher's face taken at the Rodriguez said that he consumed two or exhibits, introduced as trial showed se three drinks of tequila, but denied that he injuries vere eyes.3 centered on her enough consumed to make him drunk.4 Kat- T 9 Other facts will be discussed as neces- ya Chacon described Cuesta-Rodriguer sary with Cuesta-Rodriguez's individual "stupid night drunk" on murder, claims of error. but also testified that steady he was on his being In addition inju- else, put situs of Fisher's eyes she somebody her that meant ries, Fisher's (Tr. Vol.2, came in another 347-348). she was "interested in him" eyes context. up According testimony of Fisher's former boyfriend, when Fisher terminated their relation- police, In his statement ship Cuesta-Rodriguez, in favor of Fisher said anger insisted that he acted out of toward Fisher *10 "put eyes that she had somebody her on else" as a result of his seeing belief that she was other (Tr. Vol.2, 347-348). ex-boyfriend The stated he having men, not as a result of consumed alcohol. was familiar with Fisher's use of this unusual phrase previously because she told him that if the ster combining aleohol and effect of Dupy tive tes clearly. Detective talking
feet and Cuesta-Rodriguez's mental diprospan of alco Cuesta-Rodriguez smelled oid tified that suffering state; Cuesta-Rodriguez the shoot was a.m., hours after that four 9:15 hol at murder, report that Cuesta- his the at the time of ing, depression but stated from only slightly intoxicated. appeared depres Rodriguez that have concluded and would certainly support an infer evidence system This psychotic belief sion created intoxicated, Cuesta-Rodriguez was that ence in de mind that resulted Cuesta-Rodriquez's making a of to the level not rise it does but Cuesta-Rodriguez contends lusions. Cuesta-Rodriguez showing that prima facie voluntary to his testimony was relevant this incapable of that he was was so intoxicated includ and to the lesser intoxication defense State, v. Charm intent. See forming criminal manslaughter upon which of ed offense 754, 761 P.2d OK CR jury was also instructed. concerning de evidence (finding that where conflicting, was of intoxication fendant's level a trial court's eviden- T14 review We impairment insufficient there was discretion. tiary rulings an abuse of for as to defendant's doubt reasonable to raise 45, 148, v. Jackson intent to requisite criminal ability to form To constitute an abuse P.3d 1165. murder)5 This conclu first-degree commit discretion, conclusion the trial court's that Cues- the fact supported sion is well logic clearly against judgment must be events well ta-Rodriguez remembered Perryman presented. facts and effect of the account of a detailed give police to enough sur cireumstances shooting and the 904. 1995 OK Valdes rounding it. See ¶¶ 56-58, (explain {15 instance, judge trial court In give de who is able to ing that defendant objection to Dr. Choca's the State's sustained tailed, circumstances account of lucid alcohol, dipros- stage testimony about first argue to that he was pressed hard crime is voluntary part of the depression as pan, at the time of the significantly intoxicated by finding the evidence intoxication defense incident). its court did not abuse The trial to raise the impairment insufficient of alcohol Cuesta-Rodriguer's re by denying discretion agree. voluntary defense. We intoxication on the defense of jury instruction quest for a of the in the record can find no evidence We voluntary intoxication. showing that Cuesta- stage proceeding first diprospan.6 ingested the steroid Rodriguez record, therefore, simply was there On this Testimony Expert Exclusion of testimony about proposed no basis for and aleohol diprospan the combined effects ¶ 13 Cuesta-Rodriguez claims voluntary intoxication defense. part of a rights present to the trial court violated pro Furthermore, find that we cannot allow failing trial to and to a fair defense Cuesta-Rodriguer's testimony posed about Choca, testify in Dr. psychologist, James voluntary intoxi depression was relevant to guilt phase of the during the his defense murder degree first cation defense Cuesta-Rodriguez, Dr. According trial. offense of the lesser included nega charge or to have testified about Choca would get Cuesta-Rodriguez opportunity give Cuesta-Rodriguez's reply brief and at oral According Dupy, although Cuesta-Rodriguez Cues- argument, sleep. asserted counsel for some intoxicated, interview with appeared slightly detectives ended their initial he ta-Rodriguez drained, tired, intoxicat- because he was too emotionally appeared also does not ed to continue. respond. slow to any portion where this point of the trial record contrary, De- To the can be found. information during stage and the second 6. Pr. Choca testified terminating specifically denied tective Carson that on told him stated intoxication, instead that and stated interview injected with day himself murder he stopped because Cuesta-Rodri- the interview was diprospan. feeling guez sleepy Detective and not well. Dupy was terminated testified that interview
225
State,
e.g.,
manslaughter.7
key pieces
See
Mott v.
1951
note were
exculpatory
of
68,
145,
166,
94
232 P.2d
OK CR
Okla.Crim.
were essential to his defense.
(holding
that when defendant
claims
1119 We review a district court's denial of a
destroyed by
mental
faculties have been
motion to
for an
dismiss
abuse of discretion.
intoxication, appropriate
chronic
defense is
State,
Bewley
11, ¶ 9,
v.
1985 OK CR
intoxication).
insanity,
voluntary
not
1357,
P.2d
An
abuse of discretion here
unreasonable,
"any
is
unconscionable and ar
¶ 16 Moreover, we are not convinced
bitrary
proper
action taken without
consider
qualified
testify
that Dr.
was
to
as to
Choca
ation
pertaining
of the facts and law
combining
of
alcohol and the ster
effects
State,
matter
submitted." Nee Williams v.
diprospan.
during
oid
Dr. Choca testified
2008 OK CR
sentencing phase
of the trial. His testi
(quoting Harvey v.
1969 OK CR
mony
psychologist
there reveals that he is a
¶ 9,
denied,
338),
cert.
555 U.S.
nothing
with a Ph.D. There is
in the record
--,
(2009).
129 S.Ct.
apparent destroyed, before the evidence was and be of such a nature that the defendant comparable would be unable to obtain evi Evidentiary Issues by reasonably dence other available means." Id. Neither condition is met in this case. contends a defendant can by "[UJnless show faith bad that the trial court erred when it denied his police, potentially destruction of useful motion to dismiss the case based on his evidence does not process constitute a due City claims that Depart the Oklahoma Police violation." Torres v. failing ment acted bad faith to collect ¶ 24, 962P.2d 13. preserve certain evidence from the crime Specifically, Cuesta-Rodriguez ¶ 21 scene. alleg explain did not police es that acted bad faith court, here, explain the district nor does he saving empty tequila bottles that were shown tequila how the bottles themselves would photographs saving the scene and not any exculpatory have been more than the "goodbye Katya note" that Chacon read photographs present of the bottles were According before she fled the house. ed at trial. photographs The of the two Cuesta-Rodriguez, bottles, liquor bottle, bottles and tequila one of which was a 7. The trial court's decision to instruct the on cheating cheating me, me, she's on over passion manslaughter heat of as a lesser included again, and over and that seems to be the whole showing offense was based on evidence this, gist angry that he was because of some angry at Fisher for cheat- imagined infidelity part real or on the ing According on him. to the trial court: victim. going give you passion I'm the heat of (Tr. Vol.5, 888). says-the thing says, because he first he ever *12 226 clear judgment must be conclusion or court's Cuesta-Rodriguez's statement corroborated of the facts logic and effect ly against the shots of or three had two that he police 39, ¶ 11, CR Perryman, 1999OK presented. Any the murder. evening before tequila the P.2d at 904. on apparent not is exculpatory value further record, likely not was
the face of 2404(B) 00.98.2001, governs $ 126 Title because, as seene at the to officers apparent crimes, of other of evidence the admission testified, presence of the Carson Detective acts, prohibits specifically wrongs, or bad at crime commonplace is liquor bottles trait a character prove intended to evidence scenes. acted person in order to show person of a trait. Other crimes note, Katya conformity with that Cha- regard to 122 With however, prove permissible, after she the house evidence she fled testified that con intent, plan, motive, preparation, opportunity, leaving it in Cuesta- it, presumably read of mistake or knowledge, identity, or absence testi- Detective Carson Rodriguez's control. note, he would Id. accident. had found that if he fied it had obvious it because preserved have alterca previous 127 Evidence testimony, on this Based inculpatory value. to the issue spouses is relevant tions between possession took police ever clear that it is not State, 1994 v. OK of intent. Hooker looking it. Additional- despite note of the also, ¶ Duvall v. 1359. See 887 P.2d inculpatory value is obvi- ly, while the note's State, 64, 6, 825 P.2d 1991OK CR Cuesta- ous, is not. exeulpatory value its ("Itlhe testimony showing ill relevance of to the district explain Rodriguez did threats, by one or similar conduct feeling, note, here, how the court, explain nor does he marital homicide another in a spouse toward by police, was if it had been found even Court"); by this established case has been why paper itself would exculpatory, 296, ¶ 10, 1988 OK CR Lamb v. than the exculpatory any more have been ("[elvidence previous alterca read it. testimony Katya Chacon who and a deceased is appellant tions between failed 123 Because malice, motive, or in relevant to establish showing that the note and his burden of meet tent, constitutes though such evidence 'even exeulpatory value possessed tequila bottles ")(quoting of another crime' Villa photo- that the he failed to show and because 8, ¶ 7, nueva testimony about graphs of the bottles 860). of Cuesta-Rod- Because evidence reasonably comparable substi- note were not was relevant prior attack on Fisher riguez's themselves, we do not the items tutes for intent, the trial court did motive and to show its discretion district court abused find the admitting it. its discretion not abuse motion to dis- denying Cuesta-Rodriguez's miss. Hearsay Autopsy Result as Testimonial claims that his T28 Evidence Crimes Other right to confront wit- Amendment Sixth Cuesta-Rodrigues claims ad- him violated against was nesses by the trial court's a fair trial
he was denied
evidence, spe-
hearsay
of testimonial
mission
com
of other crimes. He
admitting evidence
report
cifically
contained
information
Jeffrey
testimony of
Officer
plains about
body.
Olimpia Fisher's
autopsy
on
from
jury that he observed
told the
Hauck who
Jordan,
examiner who
Fred
the medical
Dr.
report
when she
bruising
Olimpia
Fisher
had retired
autopsy on Fisher
performed May
eleven
him on
ed an assault to
Gofton,
Jeffrey
Dr.
time of trial and
days
she
murdered.
before
Examiner,
in his
testified
Medical
the Chief
regarding the
testified
place. Dr. Gofton
evidentiary
a trial court's
125 We review
by Dr.
body conducted
examination
Jackson,
discretion.
rulings for an abuse of
To
opinions on Fisher's
P.3d at 1165.
gave
his own
Jordan
on Dr.
death based
injuries and cause of
discretion,
trial
an abuse of
constitute
McCarty
132 In
1998OK CR
Jordan's observations as recorded in
au-
¶¶
85-89,
1116, 1136-37,
topsy report. Cuesta-Rodriguez
conviction
contends
*13
autopsy report
pre-
that because the
was
grounds,
reversed on other
Jordan,
Gofton,
pared by Dr.
not Dr.
he was
accepted
this Court
the busi
right
denied his constitutional
to confront Dr.
ness record rationale and held that
a Chief
challenge
findings
and
Jordan
and conclu- Medical
properly testify
Examiner could
in
autopsy report.
sions contained
the
autopsy findings
the
of another medical ex
aminer, even
finding
absent a
of unavailabili
ruling admitting
A trial court's
or
ty, under
exception
the business record
excluding evidence is reviewed for an abuse
hearsay
0.98.1991,
the
rule codified at 12
Jackson,
45, 48,
of discretion.
2803(6).
decided,
§
McCarty
however,
was
at
146P.3d
before
Supreme
the United States
Court's
180 In
Washington,
Crawford
2004 decision in
and its more re
Crawford
50-51,
U.S.
S.Ct.
cent decisionin Melendes-Diaz v. Massachu
(2004),
L.Ed.2d 177
the
Court held
Supreme
setts,
--,
557 U.S.
129 S.Ct.
that
the Sixth Amendment confrontation
(2009),
L.Ed.2d 314
which was decided while
right applies
only
not
testimony,
in-court
appeal
pending.
(ie.,
hearsay
but also to testimonial
out-of-
Supreme
the'
Melendes-Diaz,
court statements that are
in
testimonial
na
Court
prepared by
held that
ture).
reports
analysts
The Confrontation Clause forbids the
at a
laboratory
state crime
declaring that a
hearsay
admission of testimonial
unless the
substance was cocaine were testimonial state-
testify
declarant
is unavailable to
and the
ments,
analysts
and that
prepared
the
who
prior opportunity
defendant had
to cross-
reports
were
purposes
witnesses for
examine the
Id. at
124 S.Ct.
declarant.
Thus,
Sixth
Id. at 2532.
at 1374. Testimonial
statements
are not
Amendment.
the Court concluded that absent a showing
limited to formal
gov
made to
statements
analysts
were
officers,
testify
unavailable to
pretrial
ernment
but also include
defendant
prior opportu-
had a
statements
a declarant would reason
and
nity
them,
to cross-examine
the defendant
ably expect
to be
prosecutorially.
used
Id.
at
American
{35
case,
circumstances
sur
In this
the
{34
Oklahoma, a medical examiner is
suspi
rounding
death warranted the
Fisher's
investigate deaths under
by law to
required
homicide.
her death was a criminal
cion that
including violent
variety
circumstances
of
therefore,
cireumstances,
it is
Under
these
cireum-
suspicious
deaths under
deaths and
Dr.
under
to assume that
Jordan
reasonable
988(A).
00.98.2001,§
The medi-
stances. 68
containing
findings
report
his
stood that
promptly turn over to the
must
cal examiner
used in a criminal
opinions
and
would be
relating
attorney copies of all records
district
autopsy report
prosecution. Dr. Jordan's
the medical examiner
to a
for which
death
statement,
Dr.
a testimonial
and
Jordan
was
investigation is advisable.
further
believes
meaning of the
within the
was
witness
949(A)(2).
comple-
§
On
0.8.Supp.2004,
Clause.8
Confrontation
a medical examiner
investigation,
tion of his
investigat-
copies
reports
his
to
must send
Testimony
B. Dr. Gofton's
with an official interest
ing agencies
$86
testifying,
Prior to Dr. Gofton
Further,
0.8.2001,
"[alny
§ 942.
case.
objected
grounds
on the
attorney
other
enforcement
or
law
district
report
prepared by Dr.
autopsy
that the
was
may, upon
copies of
request,
official
obtain
subject
to cross-
who would not be
Jordan
deemed
or other
information
such records
hearing argument from
examination. After
necessary
performance
of such district
counsel,
judge
court
overruled
district
attorney's
law enforcement official's
or other
9838(A)(Q).
0.8.2001,
§
objection
explanation other than
official duties."
without
framework,
following
statement:
statutory
it is obvious
Given this
appellate
applied
(2009) (holding
courts have
8. At least
three
is testimonial
that
autopsy report
reports
involving autopsy
under
and therefore inadmissible
Melendez-Diaz
Melendez-Diaz
cases
showing
expert
that forensic ana-
as
wit
and
absent
and substitute medical examiners
Crawford
testify
lyst
and
had
autopsy
was unavailable to
defendant
courts found that
re
nesses. All three
also,
cross-examine).
prior opportunity to
See
ports
that the
of homicides were testimonial and
Martin,
269, 283-88
report
v.
291 SW.3d
who wrote the
was
State
medical examiner
allowing
purposes.
(Mo.App.2009){holding that error
See
for Confrontation Clause
witness
200,
autopsy
medical examiner who did not conduct
299 S.W.3d
209-210
Wood v.
testify
report of medical examiner who
(Tex.App.2009)(holding
under
about
that
Melendez-
Diaz,
autopsy
admitting autopsy
involving
re-
autopsy report
death
was
did conduct
and
that
port
died of smoke inhalation
suspected
to show that victim
was testimonial
statement
homicide
harmless,
autopsy
despite
report
claim that
was
examiner who wrote
was
and that medical
meaning
and that medical examiner's
testimonial evidence
within
of Confrontation
witness
testimony
therefore
violated Confrontation
Clause);
Avila,
744,
454 Mass.
Commonwealth
1014,
(2009)(holding
that
given
912 N.E.2d
1029-1030
means of victim's
death was
Clause,
trial,
disputed
testimony
perform
was cumula-
victim's
examiner who did not
medical
who,
testifying,
evidence of forensic toxi-
preparation
tive of other admissible
autopsy
but
toxicology report
cologist
autopsy report
that victim's
revealed
and related materials of
reviewed
body).
performed autopsy,
monoxide in her
is not
fatal amounts
carbon
medical examiner who
Lewis,
see,
on direct
But
Clause,
under Confrontation
People
Mich.App.
permitted,
(2010) (finding no Confrontation
N.W.2d 461
about
examination,
to recite or otherwise
testify
where sub-
underlying
findings
medi
Clause violation under
factual
of unavailable
Melendez-Diaz
autopsy
autopsy report;
testified about
stitute medical examiner
cal examiner as contained in
report prepared by
examiner on
testimony
another medical
be
to his or
examiner's
must
confined
autopsy
required
grounds
re-
that state statute
and,
these,
as to
the examiner
her own opinions
cross-examination);
regardless
ports
certain circumstances
State v. Lock
under
is available for
lear,
contemplated).
prosecution is
304-05
whether criminal
363 N.C.
681 S.E.2d
record,
going
0.8.8upp.2002, §§
I'm
rules at 12
purpose
For the
it
apparent
testimony,
testimony,
from the trial record
allow the
admit
my request
of Crimi-
and it's
Court
upon
these rules were the basis
which
that,
case,
they
if
Appeals
get this
nal
testimony
Dr. Gofton's
was offered
ad
clarify by published opinion
prop-
they
§
expert
mitted. Under
an
witness
they
disagree
procedure,
agree
if
or
er
opinion
base an
on
facts
data
are
what occurred.
evidence, provided
not admissible in
that the
560).
(Tr. Vol.8,
type
inadmissible facts or data are of a
rea
1 37 After Dr. Goftonintroduced himself
sonably
by experts
particular
relied on
briefly
rule,
summarized his edu-
expert may
field. Under this
an
base
experience,
cation and
he was asked
solely
opinion
hearsay.
on inadmissible
if
prosecutor he had reviewed the records
Lewis v.
autopsy performed by Dr. Jordan. Over
§
1166-67. Under
an ex
objections
defense counsel's
the State intro-
pert
may generally
witness
disclose
direct
diagrams
three
from Dr.
re-
duced
Jordan's
underlying
examination the facts or data
*15
depicted
types
and
port that
the locations
opinion.
Id. Under certain limited cireum-
injuries
body.
he observed on Fisher's
Dr.
stances,
expert
may
witness
disclose the
jury
explained
Gofton
to the
the nature of
underlying
opinion
facts and data
his
if
even
injuries
diagrams
noted on the
and
recit-
they are inadmissible as evidence. 12
in
ed other observations mentioned
Dr. Jor-
Lewis,
2705(d);
§
0.8.Supp.2002,
1998 OK
report. He
that a firearm
dan's
concluded
CR
T44 In error, Cuesta-Rodriguez harmless Clause violation is delivered the fatal shot frontation importance interval, of the wit must consider the eye. During we her left with her case, testimony whether out, State's ness's right eye could blown have testimony cumulative of other evi reasonably consciously concluded Fisher dence, or absence of evidence presence physical experienced great and mental suf- contradicting the out-of- corroborating fering. Consequently, even if Dr. Gofton's points, and the on material court statements testimony long how Fisher have about prosecution's case. strength of the overall gunshot remained conscious after second 6, 128, Littlejohn v. consideration, is eliminated from there was (citing Delaware v. Van 297-98 enough remaining evidence to show conscious Arsdall, 475 U.S. 106 S.Ct. suffering in the interval between the first (1986)). 1438, L.Ed.2d 674 and second shots. testimony Dr. about Fisher's T45 Gofton's conclusion, 147 In Dr. autopsy Jordan's injuries, in Dr. as described Jor- external report was a testimonial statement. Dr. Jor report accompanying hand-drawn dan's dan was therefore witness within the mean diagrams largely were cumulative 'of the ing of the Confrontation Clause as construed photographs injuries depicted in same and Melendez-Diaz. Under the Crawford at the murder Fisher's face and head taken case, therefore, cireumstances of this the dis- properly that were entered into evi- scene clogure of the Dr. autop contents of Jordan's testimony of Detective John dence with the sy report Dr. Gofton violated Cuesta- Fiely. photographs, These more detailed Rodriguez's right of We are diagrams, than Dr. confrontation. graphic Jordan's doubt, beyonda satisfied reasonable howev eye clearly depicted Fisher's shattered sock- er, the disclosure of the information ets, skull, Additionally, bones. Dr. nasal autopsy report taken from the did not con diagram showing annotated bruises Jordan's Cuesta-Rodriguezr's tribute conviction or body were cumulative elsewhere on Fisher's punishment.11 Jeffrey extent to Officer Hauck's to some jurors that testimony in whichhe told he saw *17 upper right arm and on Fisher's
bruises when she initiated a domestic abuse
stomach complaint approximately two weeks before Discovery Moreover, death. Dr. Jordan's observa- her brain, bleeding bruising and but tion of Cuesta-Rodriguez 148 claims the State any significance swelling, no was not of to the comply to failed with Oklahoma Criminal Discovery § at 22 0.8.8upp.2002, case. Code State's by providing notice that Detective not Steve [ Furthermore, if Dr. even Gofton's tes- at trial Carson would be a witness not entirety, timony is discounted in its there providing summary anticipated a of his testi- than was still more sufficient evidence for the mony. Specifically, Cuesta-Rodriguez claims jury consciously to conclude that Fisher suf- that Detective Carson was not listed in the fered before her death. As at discussed Summary Testimony State's of Witness that below, length testimony police greater of was filed on October 2004. This claim is Chacon, Katya officers and as well as Cues- clearly Page refuted record. five of ta-Rodriguez's police statements to showed Summary Testimony of Witness Cuesta-Rodriguez State's that when fired the first pro- lists Detective Carson as a witness and pistol right eye, from into Fisher's blast his Instead, summary anticipated testimony of his she was not rendered unconscious. vides showed that she as follows: this evidence continued Having prepare
11. found a medical examiner to his or her own confrontation error this course, resulting from a substitute medical examin- report testify case from it. Of such testifying non-testifying as to the contents of a er report provided must be to the defendant in a report, medical examiner's we believe it would timely manner. practice be better in future cases for a substitute Coleord, Carson-OCPD, considered 551 When this Okla-
Steve it light most favorable to the was City, Oklahoma homa fact to permit a rational trier of sufficient assigned to case. Homicide Detective Cuesta-Rodriguez intended to conclude consistently reports previ- with testify Will with either the first or second kill Fisher hearing preliminary ously provided and showing that despite some evidence gunshots testimony. sponsor consent search Will intoxicated, intoxicated but not so he was Katya from Cha- 47th obtained 807 SW. ren- powers mental were overcome that his sponsor taped video confession con. Will forming in- incapable him of criminal dering the crime seene defendant. Worked tent. 47th. 807 S.W. (0.R.547). merit to this claim. There is no Jury Manner and Selection: Extent of Voir Dire
Sufficiency
Evidence: First
claims that
Degree Murder
by the trial
selection method used
judge
provide
adequate
him with an
did not
claims that
question poten
opportunity
meaningfully
support
there was insufficient evidence
jurors
ability
tial
on their
to follow the law
par
degree murder.
conviction for first
determining
degree
for first
mur
sentence
contends
ticular
Cuesta-Rodrigues
complains specifical
der.
intent
to murder Fisher was
evidence of his
judge
permit
trial
not
ly that
court
did
he
to overcome evidence that
insufficient
jurors
allowed
questioning
individual
but
unable to form the
intoxicated and therefore
questioning
group
only en masse
with
(Re.,
kill
malice afore
specific intent
yes-no questions. According to Cuesta-Rod-
sufficiency
considering a
thought). When
riguez
superficial
was a
mode of examin
claim,
we review the evidence
the evidence
ing jurors
provided
little information
prosecution
light
most favorable
jurors
thereby
about
individual
denied
any
of fact
whether
rational
trier
determine
opportunity
peremp
him
to exercise his
the essential elements of
could have found
intelligently.
tory challenges
Cuesta-Rodri-
beyond
crime
a reasonable
doubt.
complains
placing thirty poten
guez also
132, ¶ 7, 709
Spuehler v.
jurors
in the courtroom for voir dire
tial
(citing
Virginia,
Jackson v.
203-04
examination,
created uncomfortable
condi
99 S.Ct.
443 U.S.
jurors
atmosphere
tions for the
(1979)).
L.Ed.2d
interest,
bias,
discovering
*18
conducive to
Cuesta-Rodriguez
Katya
Chacon saw
partiality.
right
side of her face and
shoot Fisher on
153 The manner and extent of voir
Cuesta-Rodriguez
police
admitted to
that he
of the trial court
dire is within
discretion
only
Cuesta-Rodriguez was the
shot Fisher.
rulings
trial
voir dire
will not
and the
court's
person
police
in
Fisher when
the house with
appeal unless the court's
be disturbed on
stop
gun-
with a second
heard her screams
manifestly
clearly erroneous or
decision was
Robertson,
Testimony from
shot.
Gordon
State,
Hogan v.
2006 OK CR
unreasonable.
examiner
for the Oklahoma State
firearms
¶ 13,
907, 917,
reh'g granted,
Investigation,
Bureau of
showed
There is no
2006 OK CR
priate the record shows were where Jury Instructions *19 responses in their about the death not candid Spoliation A. Evidence penalty, responses or that were tailored to State, 159 claims his jury avoid service. v. 2006 Stouffer 46, ¶ 12, 245, right a fair OK CR 147 P.3d 257. Cuesta- constitutional to trial was violated give prof trial Rodriguez does not that were the court refused to when allege jurors responses any jury concerning in their or that fered instruction the not candid State's alleged preserve failure to collectand certain juror provided responses tailored to avoid that, argues only argues that trial jury service. He had he evidence. He the court question jurors jurors they in sequestered been able to should have instructed that could dividually, probed deeply he couldhave more negative draw inference from the failure of trying juror police preserve liquor to collect and bottles to find bias. the absence 234 Cuesta-Rodriguezs that by we convinced written
and a note a trial We review way by crime scene.12 evidence of prejudiced from the some the items that was collected and intro- an these jury instructions for rulings on court's State, duced. 2007 Eizember v. discretion. abuse of 208, 111, 29, 164P.3d OK CR {61 showing In the absence of a of bad therefore, {60 by al police, faith instruction liquor actual bottles were While lowing jury negative to draw a inference evidence, the preserved and not collected of evidence was not from the destruction liquor at the presence of bottles fact of the State, 1998 OK appropriate. See Torres by photographs of the was established scene ¶ 24, 3, (holding that CR 962 P.2d 13 It police. is not obvious taken bottles by po faith unless defendant can show bad have themselves would why the bottles us lice, potentially destruction of useful evidence photo- exculpatory than the any more been process violation and does not constitute due into that were entered graphs of the bottles allowing jury negative instruction draw was last The handwritten note evidence. inference from destruction of is not possession Cuesta-Rodriguez's when seen in warranted). trial its The court did abuse reading after it. Katya fled the house Chacon by denying Cuesta-Rodriguer's re discretion that officers did Detective testified Carson they searched the quest negative for a inference instruction. not find the note when had, they if and stated further house B. Reasonable Doubt it and they certainly would have collected trial,. contends 162 also this, Despite preserved it for the sub- jury rights process that his to due were violated stance of the note was disclosed Katya proffered what it when the trial court refused his when Chacon testified as to why jury Again, it is not to us instruction on reasonable doubt. We said. obvious any consistently repeatedly and have been more excul- have held note itself would Katya testimony patory than Chacon's about self-explanatory, reasonable is and that doubt cireumstances, clarifying meaning these we rather than what it said. Under phrase, definitions of reasonable doubt tend police no evidence that the failure of see jury.13 to confuse the We decline to revisit liquor and a note from the collect bottles are issue. scene constituted bad faith conduct. Nor State, Cuesta-Rodriguez requested following jury"); in- doubt for the Al-Mosawi v. 59, ¶ 27, ("[this struction: OK CR 929 P.2d Court long consistently giving has condemned presented There has been evidence that the of an instruction as to the definition of the term preserve State in this case failed to or collect giving 'reasonmable doubt' and held that evidence that existed at the home of Carlos State, error"); same is Romano v. Fisher, specifically Olimpia Cuesta and note 74, ¶ 55, ("[iJt any 909 P.2d is error for Olimpia written Carlos Cuesta to Fisher 'beyond party try to define a reasonable Katya Chacon that would have shown Defen- State, "); CR doubt' Smallwood 1995 OK just Olimpia dant's state of mind hours before ("[It ¶ 51, 907 P.2d is well settled that empty tequila killed bottles and Fisher was self-explanatory the term 'reasonable doubt' is glass a shot that would have corroborated tes- prosecutor it is error for the trial court timony that was intoxicated at the Defendant attempt jury"); to define it for the Cheatham v. Olimpia time Fisher was killed. 32, ¶ 55, OK CR preserve The failure of the State to this evi- (it well is settled term 'reasonable presumption dence creates rebuttable self-explanatory and doubt' is is not to be defined missing qualities evidence has or charac- instructions"); LaFevers v. 1995 OK favorable Defendant and ad- teristics 26, ¶ 29, (this CR Court has presumption verse to the State. This could be consistently held that 'reasonable doubt' is self- to raise a reasonable doubt that De- sufficient error); any explanatory and it instruction on point he fendant was not intoxicated to the Summers v. 1985 OK specific could not form the mental intent of ("lilt or the aforethought. 91, 92 is error trial court malice *20 (O0.R.1180). prosecutor attempt to define reasonable doubt jury"); OK CR State, to the Underwood v. 1983 948, 28, ¶ 9, (" 1, ¶ 51, State, 659 P.2d 950 'reasonable doubt'
13. v. 2004 OK CR 84 See Harris 731, ("we self-explanatory, long disapproved is and ... definitions thereof do have P.3d 750 meaning by clarify phrase, attempts to define but rather the trial court reasonable
235
Bordenkircher,
religion.
11.
cation such as race or
See
364,
testimony clearly related to the this case Impact Superag- B. Victim Evidence as crime, physical effects of the the manner in gravator out, which it was carried and the emotional that victim £71 claims psychological impact of Fisher's murder proving impact evidence is not relevant family. properly It was admitted as her aggravating mitigating either the factors impact victim evidence. necessary perform narrowing function $69 Nevertheless, application penalty. Accord Cuesta-Rodri- the death Cargle Cuesta-Rodriguez, impact guez argues ing that his case is like victim evi State, 1995OK CR 909 P.2d which dence acts instead superaggravator as a sentencing proceeding error in the admission of skews the violation this Court found reject Eighth have impact certain victim evidence that on its Amendment. We argument past statutory requirements face for ad ed this and are not met missibility unfairly preju here. persuaded but was otherwise to revisit the issue See State, 27, ¶ 71, Hogan OK compared probative dicial when to its value. 907, 932; Cargle, impact In the vietim includ Thacker v. 2005 OK CR 1193, 1196; Harris v. testimony by ed extended the sister of one of 731, 752; 1, ¶ 58, 84 P.3d the victims that recounted detailed anecdotes ¶¶ 45-47, college years Murphy v. from the victim's childhood and through age thirty-three. his death
237 (1991). 2608, 115 LEd.2d 720 The trial Jury Impact In- Evidence C. Victim by using 9- court did not err Instruction No. struction OUJI-CR(2d) 45, (Supp.2000), and its lan- ¶ 72 Cuesta-Rodriguez claims that guage referring "unique to the loss to soci- jury improperly instructed: as to the ety" resulting from a victim's death. impact Specifically, scope of victim evidence. Cuesta-Rodriguez complains that Instruction 9-45, OUJI-CR(2d), which the trial court
No. 11
gave as Instruction No. of the second instructions, language contained stage Continuing Sufficiency Threat: permitting jurors to that the victim consider of Evidence may repre was an "individualwhose death Cuesta-Rodriguez claims the society family." unique loss to and the sent support evidence was insufficient to argues phrase Cuesta-Rodriguez jury's finding continuing aggra of the threat society" "unique improperly loss to allowed vating challenge circumstance. We review a jurors impact of to consider the the loss sufficiency aggra of the evidence of an society large the victim on at rather than vating light circumstance most favor impact family. simply the on the immediate any able to the State to determine whether object did not fact rational trier of could have found the trial, fact, language included it this at beyond aggravating circumstance a reason proposed jury instruction. For his own State, able doubt. Jackson v. 2007 OK CR reason, this claim is waived as invited ¶24, 29, 163P.3d v. 1992 OK CR error. See Ellis ¶ 28, (holding that 867 P.2d error support aggravating 176 To cir by defense counsel cannot serve as invited cumstance, that a the State must show defen for because defendant cannot basis reversal present dant will continue to a threat it); profit from invite error and then seek society sentencing. Cudjo after 7, 10, Pierce 902. "A OK CR ("[wle recognized the have often history, defendant's criminal the callousness principal that a defen [sic] well established crime, others, against threats lack of complain of error which he has dant remorse, attempts prevent calls to the invited, predicat cannot reversal be police support are all factors" that can error"). ed such finding continuing threat. Id. The record
{74 Nevertheless, the claim also contains evidence of several of these factors: fails on the merits. While (a) History: A Criminal California convie- 0.9.2001, § is correct that 22 984 does not sale; possession tion for of heroin for impact specifically authorize victim driving for under the influence. arrest concerning "unique the victim's loss to soci (b) Against Threats and Violence Others: ety," he is incorrect in his assertion that the previous girlfriend A a victim obtained scope impact phrase exceeds the of victim against protective order Cuesta-Rodri- testimony permitted by Specifical case law. guez drinking, because he had been ¶77, 69, ly, Cargle, violent; angry, and domestic abuse impact this Court held that "victim against Olimpia Fisher Cuesta permissible evidence is because 'the State Rodriguez in the weeks before the legitimate counteracting has a interest murder that left bruises on her abdo- mitigating evidence which the defendant men and arm. in, put by reminding entitled to the sentencer (c) Preventing As just as the murderer should be consid Calls Police: Fisher individual, attempted police help to call on the ered as an so too the victim is an death, night her represents unique individual whose death hands, telephone from her society particular and in to his fami snatched the loss ly' "(emphasis added)(quoting Payne v. Ten window, against it and shot threw nessee, her. 501 U.S. S.Ct.
(d) outrageously term 'atrocious' means wicked of the Crime: Cuesta- Callousness *23 vile; gunshot pitiless, delivered the first and the term 'cruel' means
Rodriguez as her of Fisher's face right side high degree pain, inflict a or designed to daughter eighteen-year-old pregnant enjoyment to or of the utter indifference Then, suffering of others." Id. rather than watched horror. Cuesta-Rodriguez car- seeking help, Cuesta-Rodriguez fired the T79 When in another room to his bed ried Fisher shotgun cartridge pistol first 410 from his later, after Fisher minutes and several eye, Olimpia Fisher's she was not ren- into escape, him and tried to struggled with struggle. and continued to dered unconscious time, all her in the face a second shot point during struggle, that Fisher At one ignoring desperate her the while banged a barred screamed and on bedroom Furthermore, despite the screams. apparent attempt escape. in an window police officers outside the presence of banging enough Her sereams and were loud could have assisted Fisher house who through police officers to hear the closed gunshot, second before or after doors and windows. The time between the Cuesta-Rodriguez kept them locked right eye, to her and the final fatal first shot the house for another three out of eye min- shot to the left was at least seven hours. time, During this Fisher must have utes. totality, this evidence is sufficient its consciously experienced great physical and jury's finding continuing support suffering. Additionally, mental the facts that aggravating threat factor. Cuesta-Rodriguez fired the shot in the first presence daughter, targeted of Fisher's Fish-
14. eyes, ignored shooting er's her screams after Sufficiency Heinous, Atrocious, Cruel: her, linger for at and allowed her to least of Evidence piti- show that the crime was seven minutes Cuesta-Rodriguez T77 claims the is, less. That the evidence allowed a reason- support evidence was insufficient Cuesta-Rodriguez that able inference intend- heinous, jury's finding that this murder was high degree pain to inflict a and did so ed atrocious, Again, or eruel. we review chal suffering. with utter indifference to Fisher's sufficiency lenge to the of the evidence of an There was sufficient evidence for the aggravating light circumstance in the most aggravating beyond find this factor a reason- favorable to the State to determine whether able doubt. any fact rational trier of could have found the beyond a aggravating cireumstance reason Jackson, 24, ¶ 29, able doubt. 2007 OK CR
163P.3d at 604. Aggravator Heinous Atrocious Cruel Unconstitutional as Overbroad that
178 To establish the murder atrocious, heinous, eruel, or the State claims that (1) heinous, atrocious, aggravating prove: preced must that the murder was or cruel unconstitutionally vague the victim or ed either torture of serious circumstance (2) abuse; face, physical applied the facts and overbroad on its and as to him. consistently rejected circumstances of the case establish that the We have such claims heinous, atrocious, nothing and see to convince us to murder was or cruel. De other cases 19, ¶ 96, change Rosa v. 89 P.3d course here. See Thacker 1156. The "term 'torture' means the cases). great physical anguish (collecting Nor do find the hei infliction of either or we nous, atrocious, aggravator vague or cruel or cruelty." finding Id. A extreme mental physical "great physical "serious abuse" applied overbroad as aggravator require anguish" requires expe that the victim have because the does physical suffering prior showing injuries Cuesta-Rodriguez rienced conscious inflicted on the victim were the result of her death. Id. term 'heinous' means "[The evil; extremely shockingly gratuitous violence. See Mitchell v. wicked or ("we gunshot harm- the second is therefore 2006 OK after argument that recently beyond a reasonable doubt. addressed have less applied and aggravator is 'overbroad circumstance aggravating explained that an upon the 'overbroad' based not become does Mitigating Evidence Limitation cases"); particular applied to manner it is ¶¶ 92-93, DeRosa, 89 P.3d at OKCR claims heinous, (rejecting argument *24 1154-55 Eighth Amendment process his due atrocious, aggravator should be re cruel mitigating were rights present to gratu involving infliction of to cases stricted judge presiding pre over violated when the violence). itous ruling limiting trial motions issued Hamm, testimony expert Dr. on of Cuba. Cuesta-Rodriguez also claims T81 the conditions sur Dr. Hamm had studied heinous, atrocious, aggrava cruel or that the the condi rounding the Mariel Boatlift and by Dr. invalid Gofton's tor was rendered in certain tions the facilities where Cubans manner of testimony Olimpia Fisher's about Cuesta-Rodriguez held such as were while Cuesta-Rodriguezs ar Specifically, death. attempted the United States and Cuba to testimony created the Dr. gues that Gofton's agreement reach an on what to do with them. of death that Fisher's manner impression represented that Dr. Hamm Defense counsel than that been slower described could have provide specific testimony condi would about autopsy report. in Ac by Dr. Jordan his Cuesta-Rodriguez for tions Cuba Dr. Cuesta-Rodriguez, because cording to family as well as the conditions of Cuesta- autop testimony Dr. Jordan's about Gofton's Rodriguez's custody confinement in federal admitted, improperly his con sy report was awaiting while a determination of his status. time Fisher con length to the of clusion as testimony asserted that Dr. Hamm's Counsel any sciously suffering lacked experienced jury understanding essential to the was tes Assuming that Dr. Gofton's foundation. background cultural and historic of Cuesta- may length time timony of Fisher as Rodriguez's mitigation case. The trial court conscious after the second have remained testify that Dr. Hamm could judge ruled admitted, improperly gunshot to her face was general related to the about matters boatlift Regardless of the the error was harmless. nationals, of Cuban but he and detention may have remained length of time Fisher testify specifics Rodri- could not as to the of gunshot, the second other conscious after hearsay testify to state- guez's case evidence, Dr. Gofton's testi independent of by Cuesta-Rodriguez's mother ments made experienced con mony, showed that Fisher or other relatives. suffering prior death. physical to her scious trial, length Dr. Hamm police testified 4 84 At testified Specifically, officers Boatlift, the cireumstances when about the Mariel that Fisher was alive and conscious it, several minutes after they arrived on scene that caused and the conditions of confine- relatively of the daughter be- ment the United States being summoned Fisher's that were incarcer- sereaming and small numbers of Cubans they could hear Fisher cause trying ated. Dr. Hamm also testified about banging window to es- bedroom history prison involving causes and riots Understanding that Fisher had been cape. Cuesta-Rodriguez's incarcerated Marielitos. face several minutes before the shot attempt testimony arrived, photographs did not to elicit having seen counsel police any specifics of Cues- right from Dr. Hamm about showing face the blasted out of Fisher's conclude, or Cues- socket, reasonably ta-Rodriguez's migration via Mariel jurors eye could incarcerated, Gofton, ta-Rodriguez's while testimony by Dr. activities independent any object being con- counsel did not minutes before the fatal in the several previous against doing so physi- strained gunshot, experienced conscious Fisher point during At judge's pretrial ruling. one Any in the admission of suffering. cal error testimony, prosecutor ob- length Dr. Hamm's testimony as to the Dr. Gofton's consciously have suffered testimony's relevance to Cues- time Fisher jected to the judge's response, di- numbers and reasons that some of the Marie- ta-Rodriguez, and the counsel, Cuesta-Rodriguez's was prisons. litos were detained in federal Dr. rected merely "cut to the chase." Hamm also testified as to the conditions un- der which the detained Marielitos were incar- claims that the 1I now cerated, gave to include the conditions that motion in limine pretrial ruling on the State's prison rise the Marielito riots two judge's that the trial court was incorrect and prisons that federal housed them objection sustaining prosecutor's explained Dr. Hamm further that as a result given testimony Dr. that was at trial Hamm's negotiated prison end of the distur- pretrial ruling in accordance with the bances, government agreed the federal incorrect. contends also provide "meaningful combined effect of both of these review" for release or opportunity pres- him rulings deportation denied for all to Cuba incarcerated Ma- mitigation penal- of the death ent evidence explained pro- rielitos. He also the review ty. argues Specifically, cess and how like someone Cuesta-Rodri- *25 opportunity through denied the he was by guez long-term would have been affected testimony provide jury Dr. Hamm's indefinite incarceration and how he would and historic context of with the cultural processed have been for release under the Cuesta-Rodriguez's mitigation case. government's "meaningful federal review procedures." testimony provided This problems %86 There are several jury with cultural and historical context con- First, argument. with Cuesta-Rodri- this Boatlift, cerning the Mariel the Marielito de- guez previous judge's pre did not raise the tainees, by implication, and Cuesta-Rodri- trial, ruling again proffer trial nor did he guez's background as a Marielito. testimony judge to the trial what he wanted present beyond that authorized Additionally, T88 ruling. ruling "A Cuesta-Rodri- pretrial on a motion in advisory guer's erroneously claim that limine is and not conclusive." Kai the trial court objection ser v. sustained the State's relevance ruling pretrial 161. An incorrect on a during testimony Dr. the course of Hamm's grounds motion is not for reversal. a After also fails when considered on the merits. At sustained, party in motion limine is seek point, one when defense counsel asked Dr. ing to introduce the must make an compare prison Hamm to the Marielito riots T6, proof offer of at trial. Id. 162. This prisons involving to riots in other American opportunity affords the trial court an objected prisoners, prosecutor American ruling make a final on the evidence. Id. grounds response of relevance. proper procedure "Failure to follow the con objection, and after some discussion at the testing ruling a in on a motion limine waives bench, judge the trial court sustained the appellate the issue for review." Id. This objection and told defense counsel to "cut to properly preserved appel issue was not (Tr. 1144). Vol.6, agree the chase" with We late It review. is waived. compari the trial court fail to see how prison son of the Marielito riot the Atlan Second, the claim fails sub prison ta federal with other histor- American below, Cuesta-Rodriguez stance. As he did riots, prison ie would have been relevant as here, identify just testimony fails to what he Cuesta-Rodriguez's degree of blamewor precluded presenting pre was from Olimpia thiness in the murder of Fisher. ruling trial on the State's motion in limine. Further, light of Dr. Hamm's extensive The trial record that Dr. Hamm shows testi testimony about the course of the Marielito great length fied at about the Mariel Boatlift testimony prison riots and his about social, political, of 1980 and the and economic Mariel Boatlift and the treatment of the Ma- gave circumstances that rise to it. He also States, rielitos in the United we fail to see testified about the numbers Cubans entered the United States via the Mariel sustaining objec trial how the court's of this (Marielitos), prejudiced Cuesta-Rodriguer's ability tion Boatlift the numbers that were States, provide jury into the with cultural and historical released United and the long, has a stable work 6. Carlos Cuesta Cuesta-Rodriguez's concerning back- context history with Forest Lumber and Dan a Marielito. ground as
Fioroni, the Board. Chairman respect- From 1992 until 2002 he was ed, employee valued of Forest Lumber. Mitigating Misleading Evidence departure from Forest And after his Jury Lumber, Instruction he a cherished and remained Fioroni's, Mr. even trusted friend of claims that continuing to work at Mr. Fioront's defining mitigation in his jury instruction personal residence until the time of his listed the instruction case contradicted has the friend- arrest. Carlos Cuesta jury mitigating cireumstances specific ship support of Dan Fioroni now According to Cuesta-Rod- consider. should and in the future. rendered alleged contradiction riguez, years volun 7. Forseven Carlos Cuesta sentencing proceeding unreliable. teered his time and skills Christ penalty phase, During the April project, where the homes mas mitigat- that defined given an instruction elderly needy persons were as follows: ing circumstances habitable. made safe and which, those cireumstances are Mitigating past employment ex 8. CarlosCuesta's fairness, mercy, ex- sympathy, and periences willingness to work will degree of moral reduce the tenuate or prison commu *26 make his an asset to The determination of culpability or blame. nity productive where inmate workers mitigating are is for circumstances what are needed. facts and cireum-
you under the to resolve family in Cuba that 9. CarlosCuesta has this case. stances of regular contact with he has maintained years, through throughout letters (Instruction 9)). (O.R. No. This Vol. family telephone calls. These and nearly verbatim version was a instruction through deposi appeared members OUJI-CR(2d) 4-78, (Supp. No. Instruction you videotape and asked tions and/or 2007). that: Jury was also instructed The spare Carlos Cuesta's life. introduced as to the has been Evidence son, 10. Carlos Cuesta loves his Carlos mitigating circumstances: following Gonzalez, (Kery) despite and Cuesta to the United 1. Cuesta came Carlos distance, positive and has had time poverty-stricken Com- from the States (Kery) him. Carlos influence on country of Cuba. munist studying to be- Gonzales is Cuesta came to the United 2. Cuesta Carlos of the beautiful come a writer because with 120 thousand other Cubans States family wrote to the letters his father Boat Lift of 1980. during the Mariel years. over the taken into Federal Cuesta was 3. Carlos relationship with entering After into a 11. in 1983 after he was conviet- detention Fisher, began Olimpia Carlos Cuesta possession of heroin for sale ed of serious, debilitating de- to suffer from jail year in and four sentenced to one pression. This condition was made years probation. with aleohol worse self medication eustody, During time in Federal 4. his and other substances. who feared prison in the some Cubans rap- condition Cuesta's mental Carlos Cuesta repatriation revolted. Carlos idly such that it was ob- deteriorated repatri- welcomed
volunteered for and him. dete- those around This vious to family that he would see his ation so condition, combined riorated mental again. substances, other with alcohol and actions Detention, in Carlos Cuesta's culminated During Federal Cuesta caused the May 2008 which productively time to learn used his OlimpiaFisher. death of English. speak and read past years application penalty Carlos Cuesta's neous of the death 13. For the be effectively together, condition has been mitigating mental cause when read cir giv- medications that are stabilized cumstances listed Instruction 10 do not fit county jail. These en to him mitigating within the definition of cireum- symptoms medications ease of de- given stances in Instruction 9. We do not see pression delusions. any example, contradiction. For the fact remorseful, or Jail, County 14. While housed Car- fact that help he volunteered to the el by jail was identified medi- los Cuesta which, derly fairness, needy things are being cal as a candidate for the staff sympathy, merey, could extenuate or re Program, Department WRAP degree culpability duce the of moral or blame program, Mental Health which they good because are evidence of characte actively participated Carlos Cuesta r.15 successfully completed. 15. Carlos Cuesta has behaved well in the further, argues County past Oklahoma Jail 4 however, jurors likely understood these years awaiting while he has been tri- prose- instructions when combined with the al. closing argument foreclosing cutor's them considering 16. Carlos Cuesta is remorseful for caus- proffered mitigating from ev- ing Olimpia death Fisher. idence it did because not tend to reduce his culpability moral or blame for the addition, crime for you may decide that other which he had been exist, mitigating so, cireumstances and if convicted. you should consider those cireumstances as rejected nearly argu 193 We identical well. ment in Harris v. (O.R. (Instruction 10)). Vol. 1287-1288 No. and do the same exception specific
With cireum- Harris, here. As we did we do not read enumerated, stances this instruction was tak- (based Instruction No. 9 on Instruction No. 4-79, directly en from Instruction No. OUJI- 4-78, OUJI-CR(2d)) *27 (Supp.2007) as foreclos CR(2d) (Supp.2007). ing consideration of the cireum- mitigating
Cuesta-Rodriguez argues that these
(based
stances
cited
Instruction No. 10
on
instructions,
OUJI-CR(2d)
given,
confusing
4-79,
as
were
to the
Instruction
(Supp.
No.
2007)).16
properly
The
was
jury and therefore could have led to an erro-
instructed.
Jury
(9)
15. The version of the Oklahoma Uniform
age;
the defendant's
(10)
character;
Instructions in
at
effect
the time of Cuesta-Rodri-
the defendant's
guez's
(11)
trial
listed evidence of the defendant's
emotional/family history.
the defendant's
example
type
character as an illustrative
of a
specific mitigating
The
circumstances
listed in
°
permissible mitigating circumstance.
See In-
actually given
the
that
instruction
to Cuesta-
4-79, OUJI-CR(2d)
(Supp.2007).
struction No.
Rodriguez's jury easily
categories
fall into these
complete
The
list of OUJI 4-79's illustrative ex-
(see
text).
main
amples
following:
includes the
Expressing
potential
concern about
misuse of
(1)
significant
the defendant
did not have any
language
by prosecutors
of the instruction
history
prior
activity;
criminal
closing argument,
the Harris court directed that
(2) the defendant acted under duress or under
4-78,
language
of Instruction No.
OUJI-
person;
the domination of another
CR(2d)
language stating
(3)
be modified to include
capacity
appreciate
defendant's
"(a)
mitigating
that
circumstances
extenuate
criminality of
conduct or to con-
his/her
blame,
degree
or reduce the
of moral conduct or
requirements
form
conduct
his/her
(b)
separately,
mitigating
that
circumstances
impaired;
of law was
fairness,
(4)
sympathy
mercy
are those which in
or
the defendant was under the influence of
jurors individually
collectively
would lead
or
disturbance;
mental/emotional
(5)
against
imposing
penalty."
decide
willing participant
death
the victim was a
Harris,
conduct;
2007 OK CR
198 We do in one instance, referring when to defense counsel's Miscellany closing argument, prosecutor jurors told section, T100 In you've that "what heard for 20 minutes is the claims, eight challenging raises various sen- (Tr. 1804). Vol.7, guilt trip" Defense counsel instructions, tencing phase jury the constitu- immediately objected judge and the admon- tionality penalty Oklahoma's death prosecutor rephrase ished the the state- scheme, and the manner in which the death statement, rephrasing ment. On penalty is carried out. prosecutor jury: told the know, say guilt trip, you
You
when I
don't
1101 Cuesta-Rodriguez
contends
guilty
your job.
need to feel
doing
about
sentencing phase
jury Instruction
brought
together.
He's the one that
us
It
No.
as taken verbatim from Instruction
is his actions. And I want
to talk about
gerious
4-76, OUJI-CR(2d)
No.
(Supp.2000),
you
sympathy
because
can consider
ly diminished the effect
mitigating
absolutely.
evidence. Cuesta-Rodriguez
object
did not
(Tr.
1806).
Vol.7,
thereafter,
trial,
fact,
shortly
And
this instruction at
he
as the
out,
State points
requested
instruction
said:
very
contains
language
he now claims is
So, yeah,
they
you
when
want
to talk to
defective. This claim is waived. See War
mercy,
you
consider,
about
which
can
and I
ner,
2006 OK CR
and unusual violation of the See Cardenas v. 1985 OK CR ("[ilt Constitutions. See Federal and Oklahoma appellant's is the VIII; Okla. U.S. Const. amend. Const. art. enough burden to include of the record on II, § 9. contends that one appeal permit alleged the review of er drugs penalty used death ror"). plain Hogan There is no error. See v. 38, 139 bromide) (pancuronium may leave Oklahoma P.3d ¶ an inmate awake as two other unnamed (holding plain requires, among error drugs process used in him the cause to suffo things, showing other that error affected slowly argues cate and He also painfully. 0.8.2001, right); § substantial 3001.1 penalty protocol that Oklahoma's death is (prohibiting setting judgment aside of unless (1) flawed it because: shields the identities of reviewing opinion alleged court is of (2) administering drugs; those leaves error constitutes substantial violation of con surrounding certain decisions administration right). stitutional drugs up of the lethal to the individuals (8) them; administering there is no 20. backup plan should a doctor be unavailableto assist the execution aas result of medical Cumulative Error ethics or other cireumstances. Cuesta-Rod- riguez did not raise this issue the trial claims that court. The issue is therefore waived for all if single even no error in his case warrants plain Simpson but error. 1994 OK reversal, an accumulation of errors denied ¶ 2, CR 876P.2d him a fair trial and sentence determination. This Court has held when there are support
1109 In
position
of his
irregularities during
numerous
the course of
drugs
procedures
about which
are used
prejudice
[a] trial that
rights
tend
injection
in the Oklahoma
process,
lethal
defendant,
required
reversal will be
if the
Cuesta-Rodriguez refers
ato
document enti
cumulative effect of all the errors was to
tled "Procedures
Execution of In
deny
DeRosa,
the defendant a fair trial.
regard
mates Sentenced to Death." With
ta-Rodriguez refers. Cuesta-Rodriguez has provided a sufficient record to allow us to Warner,
address this issue. See 2006 OK Mandatory Sentence Review ¶ 148 (finding 0.8.2001, T111 § Title requires where record 701.13 does not set out Oklahoma's injection protocol, lethal this Court to determine appellant's "[wlhether claim the sen- Eighth imposed tence of death was Amendment violation under the influ- based on ref pancuronium passion, prejudice erence ence of any or bromide and "two other ar- factor, bitrary drugs supported by other" newspaper and whether the evidence best"). speculative supports articles jury's judge's "at finding Conse of a record, quently, statutory on this we aggravating cannot find a circumstance." After any review, substantial violation of conducting constitutional this Court or- right against eruel punishment. any or unusual der corrective relief that is warranted
247 0.8.2001, when an instruction on to determine used 21 sentence. affirm or 701.13(E). is warranted is not voluntary intoxication § Malone, 34, ¶ 3, 2007 OK CR inconsistent. (112 in this the record Having reviewed P.J., (Lumpkin, concur at 233-34 168 P.3d Cuesta-Rodriguez's death case, find that we Taylor part). in See ring part/dissenting error, trial result of not the was sentence 1225, State, v. misconduct, improper evi or prosecutorial ¶39, 65, State, 1230; CR v. 1998 OK Jackson testimony and that Cuesta- or witness dence 875, P.2d 964 imposed was not death sentence Rodriguez's II, noted it should be Proposition 3 As to factor, arbitrary any of influence under qualifica experiences and normal prejudice. or passion, provide an laymen likely do not tions of finding that Cuesta-Rod- jury's 1113 The drug illicit understanding the effects of of society threat continuing posed a riguez behavior, ability to control usage one's on in a Fisher Olimpia murdered that he to kill. rationally, form an intent and to think manner, amply atrocious, is heinous, eruel or 34, Coddington v. See Weighing the by the evidence. supported ¶ 437, 42-43, (holding that 449-50 and evidence cireumstances aggravating valid testify that properly could physician medical find, evidence, as we mitigating against been unable to form would have defendant cir- below, aggravating did the intent of malice requisite deliberate mitigating cireum- outweigh the cumstances intoxication.). to cocaine aforethought due stances. testimony ... is based "Expert opinion technical, 'scientific, specialized or other DECISION only by a provided knowledge' and can be {114 Judgment Sentence The expert," 'qualified is as an witness who Pursuant court is AFFIRMED. district skill, issue, experi 'by knowledge, field at 3.15, the Oklahoma Court Rules Rule Malone, 2007 ence, training, or education."" Ch.18, 22, App. Title Appeals, Criminal ¶ 217; 81, 12 34, (quoting 168P.3d OK CR issued (2010), ORDERED MANDATEis 2702). agree § I that there O.S.Supp.2002, filing of this decision. delivery and upon that Dr. to show nothing in the record is Ph.D., qual Choca, was psychologist with a LEWIS, J., JOHNSON, P.J., C. combining testify as to the effects ified to A.J., TAYLOR, concur. diprospan. and the steroid alcohol V, disagree with the LUMPKIN, J., in results. I T4 to Proposition concurs As claim that analysis Appellant's majority's LUMPKIN, in results. Judge, concurs Examin Medical's of the Chief the admission decision in the Court's T1 I concur per testimony regarding autopsy er's in this and sentence judgment affirm in office and the predecessor formed However, disagreement some I have case. from the au diagrams of certain admission at those decisions. arrives the Court in how right to confronta Appellant's topsy violated Medical the Former Chief agree I tion. majority's reliance disagree I with T2 afforded autopsy report 2007OK is not Malone v. 48 of Examiner's upon footnote 48, 185, 48, n. testimo 34, P.3d and is considered any special status 22 n. CR pur Amendment confrontation nial Sixth I. "While there Proposition disposition of its Washington, 541 v. poses under are footnotes exceptions, statements are Crawford 1354, 2,n. 158 2, 124S.Ct. 47 n. prece- U.S. dicta, having no regarded as generally (2004), and Melendes-Diaz L.Ed.2d 1995 OK value." Cannon dential J., --, Massachusetts, 129 S.Ct. ¶ 2, (Lumpkin, 557 U.S. (2009). However, result) 174 LEd.2d Wainwright v. citing concurring in right Appellant's whether 844,851, ascertain properly Witt, 105 S.Ct. 469 U.S. must deter violated we to Confrontation (1985). Further, I continue L.Ed.2d 841 simply a expert Malone, the State's mine whether that our maintain, I forth set conclusions witness's for an absent conduit legal standard regarding the law prior case *32 248 179, J., his own (Lumpkin, 208 P.3d 189 expert offering
whether the State's
is
conclusions,
data,
part
analy
based in
on the
in
concurring
part/dissenting
part).
professionals
of other
and conclusions
sis
Marshall,
presented
T6
we were
with
reasonably
upon by experts
relied
expert
situation where an
witness was
State,
197,
229 P.3d
field. See Vann v.
206
simply
gain
a conduit to
admission of a non-
(Alaska
2010) ("when
App.,
government's
testifying expert's
report
and the conclu
expert
simply
is
a conduit
for an absent
29, 232
Id.,
8,
sions therein.
2010 OK CR ¶
analysis,
witness's
courts find a violation of
P.3d at
expert
solely
475. The
testified
clause;
gov
the confrontation
but when the
findings
of the non-testifying expert's
expert
analysis,
ernment's
offers their own
report,
repeatedly
he was
asked about the
part
data
based
on test
obtained from non-testifying expert's findings, answered
people,
other
courts find that
the confronta
questions by
those
reading from the non-
satisfied.");
tion clause is
see also United
expert's
testifying
report, and did not offer
Johnson,
625,
(4th
States v.
587 F.3d
636
opinions
his own
concerning
findings.
Cir.2009) ("An expert witness's reliance on
Id. We determined
allowing
expert
evidence that
would bar if offered
Crawford
testify
findings
contained in the
only
directly
problem
a
becomes
where the
non-testifying expert's
report violated the
witness is used as little more than a conduit
Id.,
8,
Confrontation Clause.
2010 OK CR
hearsay,
or transmitter
for testimonial
rather
31,1
able for see also eross-examination. 9-42A (Supp.2000). majority The explain why fails to analy- [
sis
present
is not used in the
Appellate
case.
expert
8 An
properly testify
witness
courts should be clear and consistent
in es-
to his or her own conclusions based on the
tablishing guidelines
judges
for the
testing
professionals
reasonably
of other
if
Hampton
District Court.
2009 OK relied
upon by experts
in the field. Mar-
*33
30, ¶¶ 30-31,
P.2d at 467.
778
¶ 30,
OK CR
at 475- 1989
shall,
232 P.3d
§ 2708.
the basis of
76; O.S.Supp.2002,
of evidence of
Again,
purpose
12
the
jury
the
to
solely
permit
opinion is
the
places
Code
Evidence
The Oklahoma
expert's opin
credibility of the
the
determine
an ex-
the information
on
few restrictions
30, ¶ 31,
Id.,
778 P.2d at
ion.
his or her
rely
to form
may
upon
pert
467.
informa-
referring to such
In
opinions.
pro-
0.8.1991,
specifically
tion,
§ 2708
12
go
Thus,
testifying expert need not
the
T 9
reasonably relied
type
of a
vides
"Jf
non-testifying expert's
perform the
back and
in
field
particular
in the
by experts
upon
analysis if other
examination,
testing
upon the
inferences
opinions or
forming
reasonably
field would
professionals
be ad-
need not
facts or data
subject, the
exami-
non-testifying expert's
rely upon the
under
Accordingly,
in evidence."
missible
Instead,
the
nation,
analysis.
testing and
in-
may rely upon
expert
2703 an
section
may
at his own anal-
expert
arrive
testifying
if
hearsay
this
to be
considered
formation
upon
reasonably based
ysis and conclusions
reasonably relied
type
is of
information
non-testifying expert.
the
the work of
opinions.
forming their
experts in
upon by
{10
with
may
is consistent
expert
a conclusion
Such
provides, "[the
also
The Code
conclu-
Supreme Court's
the United States
inference and
opinion or
testify in terms of
hold,
"we do not
in Melendezs-Diaz
sion
prior dis-
therefor without
reasons
give his
case,
anyone
whose
data,
the
and it is not
or
underlying facts
the
closure of
establishing
in
testimony may be relevant
The
requires otherwise.
the court
unless
authenticity
sample,
custody,
of
of
to disclose
chain
may
required
expert
be
device,
testing
ap-
must
accuracy of the
on cross-examina-
or
underlying facts or data
0.8$.1991,
ar-
Appellant
§
prosecution's
2705.
part
12
as
pear
person
tion."
Melendes-Dias,
at 2582 n.
no statuto-
129 S.Ct.
provides
case."
section
gues that
jury the
revealing to the
authority
ry
opinion.
underlying Dr. Call's
reasons
{
the neces
present case illustrates
11 The
that this
only mandates
While section
test. Dr.
of the conduit
sity
application
jury if re-
divulged
information be
upon
photo
reasonably relied
Gofton
judge or on cross-examina-
by the
quired
Fisher,
find
Dr. Jordan's
graphs taken
tion,
admission
preclude the
it does not
forming
own
report
his
diagrams and
ings,
request or on
court's
the trial
such absent
his own
as to
Dr. Gofton testified
opinions.
direct examination.
severity
timing,
regarding the
opinion
P.2d at
Lewis,
CR
1998 OK
wounds;
survivability of the different
Lewis,
it was
found that
we
1166-67.
death;
cause,
manner,
mechanism of
rely, part,
psychologist
afor
permissible
was discover
Fisher
of blood where
amount
given
and information
upon hospital records
remained
ed;
that Fisher
probability
and the
forming his
while
physician,
him
gunshot wound.
second
after the
conscious
Id.,
mental state.
the defendant's
opinion of
often refer
testimony Dr. Gofton
Within
¶ 20,
at 1167.
1998 OK
diagrams
findings and his
Dr. Jordan's
enced
discharge
Likewise,
that a
have found
we
opinions
These
opinions.
his
a basis for
as
Hospital and
summary from Eastern State
the basis for
introduced
and the evidence
which
psychological evaluation
unsigned
and did
properly admitted
were
them
arriving
upon
reasonably relied
expert
Dr. Gofton
Clause.
the Confrontation
violate
into
properly admitted
opinion were
at her
and the
examination
subject
to cross
State, 1997 OK CR
Humphreys v.
evidence.
introduced for
was not
opinions
his
basis for
¶¶
permis
26-28,
It is
P.2d
solely to
but
matter asserted
truth of the
rely
professional
expert
for an
sible
credibility
to determine
permit
Revilla
expert is aware.
of whichthe
studies
Ake,
OK CR
expert'sopinion.
1994OK CR
¶30, 31,
at 467.
reasonably
expert
A medical
1150-51.
Dr. Gof-
However,
amount of
medical
a fair
diagnoses of other
rely upon the
parroting the
of his
Ake,
testimony consisted
ton's
forming
opinion.
professionals
report of Dr. Jordan. Dr. Gofton
proper
did not
and did not violate the Confrontation
give
opinion
merely
Marshall,
his own
but
testified as
29-30,
Clause.
previously approved juror the struck method seating in a criminal case. Jones ¶¶5, 7-8, OK CR
533. XI, Proposition As to I further note OK CIV APP this Court mandatory conducts a sen- VRANESEVICH, David M. tence review in every case where a sentence Plaintiff/Appellant, imposed death was that encompasses very Appellant cireumstances alleges. 0.8.2001, $ CRAFT, 701.18. As discussed in PEARL Defendant/Appellee. mandatory review, sentence Appellant's sen- 106,541. No. tence imposed was not under the influence of any arbitrary factor, passion prejudice. Proposition XV, 16 As to I disagree with Appeals Oklahoma, Court of Civil majority's assumption that Dr. Gofton's DivisionNo. 4.
testimony length as to the of time Fisher 9,Oct. 2009. may have remained conscious improper- was ly admitted. Appellant complains that Dr. Rehearing April Denied opinion Gofton's as to length of time Certiorari Dismissed June Fisher have remained conscious was different than that by Dr. Jordan described report. Within Appellant this claim concedes that Dr. Gofton rendered his own
opinion and simply was not a conduit for Dr. report. such,
Jordan's As testimony