Marquez-Burrola v. State

6-101.27(D)that § reading of only This is teacher, id. career reinstate board board's district school with consistent is sustaining the dismissal. 6-101.27(D)(1), or § health, safety and welfare duty protect 6-101.27(D)(Q). § Id. its students. de the trial reads opinion The Court's T28 vesting the as § 6-101.27 provisions novo Conclusion IV. career fire a authority to discretionary final disagree. I courts. district with teacher district conclusion, the school separation a implicates reading 13Such education special this dismissal board's ex over control placing for violation powers evidence by the supported both teacher judiciary." employees branch ecutive I laws. abuse child our consistent constitu avoid be read must The statutes affirming the today's opinion join in cannot I would possible. all if at infringement tional contrary to both that is order court's district The the statute. meaning plain assign law. evidence so novo trial de provides statute record by the limited is not court district board; it district school made bring board district the school requires dis support evidence competent forth court the district upon places missal; adequacy duty to determine ie., dismissal, it re supporting OK CR if determine court district quires Appellan MARQUEZ-BURROLA, Isidro supported dismissal board's district school t the evidence. by preponderance acknowledged court Here, the district Oklahoma, Appellee. STATE dismissed board district the school to a abuse physical or mental teacher D-2003-1140. No. abuse 6-101.22, and dеfined student, $ citing of Oklahoma. Appeals Criminal child's Court harm to threatened harm or respon- person health, safety or welfare 17, 2007. April 0.8.2001, same, citing sible used ordinary force 7102(B)(1), except § § 844 citing discipline, at and yelled testified teacher stu- education special sixth-grade slapped the school angry he was because dent testimony proved This superintendent. abuse physical mental caused the teacher testimony is evi- teacher's a child. But, the dismissal. support for dentiary question beyond went court district the evidence preponderance

whether physi- mental inflicted teacher showed district child. upon the

cal abuse authority out set statutory its exceeded decided, in its 6-101.27(D), and 0.S$.2001, § not be should teacher

discretion, abuse incident

dismissed teach- to decide That discretion child. only in the school is vested fire hire or er to court. in the district board district § Const. 1, Okla. Art. Arnett,

Michael Norman Hollingsworth, City, OK, Oklahoma attorneys for defendant at trial. Burns,

Bret lidewell, Jason Assistant District Attorneys, Chickasha, OK, attorneys for the State at trial. Morehead,

Michael D. Sandra Mulhair Cinnamon, Indigent System, Defense Nor- man, OK, attorneys appellant on appeal. Edmondson, W.A. Drew Attorney General Oklahoma, Preston Draper, Saul Assistant Attorney General, OK, City, Oklahoma attor- neys for the appeal. State on OPINION JOHNSON, C. Vice Presiding Judge. T1 Appellant, Isidro Marquez-Burrola, was charged in the District Court of Grady County, Case CF-2002-45, No. with First (21 Degree 0.S8.2001, Murder 701.7(A)). § The State alleged two aggravating cfreum- in support stances (1) of the death penalty: that the murder especially heinous, atro- cious, cruel; (2) or that there existed reasonable probability Appellant would constitute a continuing threat society. Jury trial was February 3-6, 2008, held be- fore the Honorable Richard Dyck, G. Van District Judge. The found Appellant son, that. after work back to. of both existence charged, guilty ° him drove Appellant Jr., testified Isidro cireumstances, recom- aggravating asked son morning; when school district of death. a sentence mended school, up after him pick Appellant if on Octo- Appellant formally sentenced would, "looked but said Appellant 20, 2008. ber something." sad way if he was other wife called his morning, Later FACTS at her brother's to visit arranged killed February 2 On the children. home, ostensibly to talk about throat cutting her wife, Enriqueta, arrived, spoke Enriqueta When married couple had knife. outside; with a her broth- told she him briefly with chil- had three years, going seventeen to visit they some girlfriend er's teenagers. dren, themof two call soon. she would and that counselor small the same up in grown his wife day, a truck later time A short moved they in Mexico. town high- driving along driver saw brothers Oklahoma, one where passen- body in the way with blood-soaked homicide, Appellant time At the lived. police. notified seat of ger car, Mexico, work- a citizen remained by the Okla- stopped vehicle was Oklahoma, Edmond, company ing for lay body Enriqueta's Patrol. Highway homa systems. installing sprinkler trooper seat. passenger the front Appel- evidence she had presented appear The State that it did T3 testified not arrested was The Appellant very long. of his wife. for and distrust jealousy dead lant's wit- children, other and filet knife teenage A blood-stained couple's incident. without car. instances seats nesses, to the front testified between was toward violence and occasional aggression Enriqueta that autopsy revealed An T7 Enriqueta accused Appellant Enriqueta. neck, one her cuts to separate four suffered days be- A few affairs. having extramarital eighty approximately through cut which a co- assaulted homicide, Appellant fore esophagus, neck, severing her of her percent piece awith Rodriguez, worker, Joselito structures, leaving but trachea, venous and be- allegedly pipe, sprinkler-system PVC autopsy also The artery intact. main slept with to have Rodriguez claimed cause to En- knife cuts defensive several revealed time, period of During this wife. severed almost hands, which one of riqueta's brother, Jose her in with moved Enriqueta testified examiner medical finger. The Nunez- Alicia girlfriend, his Marquez, and con- remained could Enriqueta she brother her told She Ortaga. fatal after minutes several scious he was because leave to planned her flow to continued injury, as blood and violent. jealous too breathе, albeit able was still and she brain than rather homicide, her neck Appel- opening through the day before T4 The leav- The blood nose. about Julian, mouth brother, through concerned her was lant's her severed out him to see brain drained well-being ing and took her medi- lungs. The Ap- into her seeped counselor. and spiritual veins "brujo," or Mexican Enriqueta problems, concluded cal ‍​‌​​‌‌‌​‌‌‌‌‌​‌‌​‌​‌​‌​‌‌​‌​‌‌​​‌​‌​​​​​‌‌‌​‌​​‌‍examiner counselor pellant told in her own death, drowned but counselor, promised only bled prayed of cuts number Appel- Although process. in the later date. blood at a back come wound frothing around neck, company truck routinely drove lant work, blood, defensive and the aspirated phone while cell caused company carried hands, all led Enriqueta's homicide, wounds he left day before on the Enrique- to conclude examiner job site. medical at a phone truck nor instantaneous neither was ta's death homicide,Appel- morning of 'I 5 On painless. explained employer, lant called claimed The defense had some troubles marital having . Appel- passion. heat of in a wife killed that he of, said care to take things police lant told driving that while with his competency issue summary below. A wife that morning, she admitted to a number the relevant proceedings helpful. of affairs with other men and insulted his day 1 11 The after his arrest in mid-Febru- masculinity. Appellant said enraged he was ary formally charged knife, these stаtements and large used a Degree First Murder. Counsel and an kept box, glove to eut his interpreter appointed expense. at State wife's throat. The presented defense also March appointed late counsel filed psychiatric testimony showing that since the Application Compe- Determination of homicide, Appellant reported had delusions tency, and the trial court Appel- committed of seeing his wife hearing speak lant to Eastern Hospital State for evaluation. jail him in his cell. Appellant himself testi- 9, 2002, April On the district court received a fied that he wife, knew he had killed his report hospital officials concluding that that he did not believe really she was dead. Appellant competent to stand trial.

T9 In stage Meanwhile, family enough raised State money relied on the medical to retain Appellant, examiner's testi- counsel for mony in guilt stage formally entered April show that En- the case on 12. On riqueta's 25, 2002, heinous, April death especially retained atro- Ap- filed an cious, or plication cruel. allegation Expert As its Services at State Ex- Appellant posed pense, a continuing asserting threat Appellant's family soci- while ety, the pooled State had guilt-stage counsel, referred to resources to they hire co-worker, assaulted a did not have funds private to retain "a inves- Appellant's prior tigator, an interpreter, instances of psyсhiatrist." verbal and or a physical wife, abuse toward his objection, State filed a to the written and at a itself, cireumstances hearing May the murder the district court de- State also request. evidence that nied the had incidents of combative behavior since he post-examination 12 A competency hear- jail, had been in shortly and that after his ing May 30, was held Appellant, arrest, he had escape. tried to The State counsel, through right waived his to have a presented impact no victim testimony. jury determine competency. his Testimony mitigation, the defense three wit- was received from Dr. Christopher, Samina Appellant's father, mother, nesses: and sis- psychologist who Appellant evaluated at ter. Each testified generally Appellant that Hospital; Eastern State from the officer that good had been a past man in the and asked Appellant arrested crime; charged for the spare to his life. The mitiga- entire himself, and Appellant from Dr. Christo- tion comprised case less than pages fifteen pher testified opinion, that in Appellant transcript. competent was to proceed- understand the him, ings against though even reported

DISCUSSION having hallucinatory experiences where his wife would come to visit with him. Dr. A. COMPETENCY TO STANDTRIAL Christopher felt that experiences these were T10 In Proposition Appellant alleges not atypical persons for in Appellant's situa- subjected he has been pro- tion, to criminal might and be a part normal of his ceedings while incompetent to assist in his process. bereavement Appellant testified defense, own in violation of right his to due that he knew wife, he had killed his but process guaranteed of law as by the United maintained that she came to speak his cell to constitutions, States and Oklahoma He Appellant with him. understood that claims that he procedural was denied due court was to make the final decision as to his process relating to the issue of competency competency, but said ready he was for his trial, that he was denied attorneys substantive stop toying to with him and let him process by due being go forced to go to trial home to his wife family. and The arrest- incompetent, while and that trial ing counsel was officer Appellant testified that had been failing ineffective for adequately to advance able to recount details of why how and purpose; for funds denial the court's arrest. of his time at his wife killed right his denied (3) was Appellant based competent, Appellant found court trial competency hear- assistance expert and conclusions Christopher's Dr. on _ finding Ap- in (4) erred court ing; observations. own court's (5) trial; stand competent pellant hearing in competency {13 Between fact, to stand was, incompetent in Appellant February in trial May 2002 ineffective counsel trial, and defense funds received sought and defense dur- сompetency Appellant's challenging investigator an hire court trial (6) trial court itself; ing the trial. preparation in psychiatrist to be competent Appellant finding in erred defense, by the Montero, retained Dr. evalu- (7) present- sentenced; Appellant In Novem- in October Appellant ated appeal. in to assist incompetent ly Appel- request, own State's at the ber State sub-arguments at Eastern again three first evaluated 115 The lant was that, After review- if he Hall. assumption Dr. Terese Hospital, depend conjunction with constitution indigent, he was evaluations prior found ing the to be Appellant conduct own, experts funds both to state ally their entitled Montero under Both Dr. made competent. inquiry that very same presently jury's After trial. testified competency-evaluation Hall statutory Dr. Oklahoma's seq.)1 (22 et §§ 1175.1 a new 0.8. moved verdict, procedure assertions, the court relies Appellant alternatively asked these support jury to empanel Oklahoma, 105 S.Ct. sentencing and 470 U.S. stay formal Ake v. (1985), held that competent which L.Ed.2d whether determine due requests an ex These to make is able to be sentenced. the defendant "[when reversal court Dr. Montero's the trial showing large part threshold parte after competency significant likely to be sanity opinion during must, observing ... the State personally in his defense factor by Dr. evaluated again access to defendant minimum, trial. assure hearing was compеtency Hall, further conduct and a will psychiatrist competent no ultimately found held, evalua and assist examination appropriate competency. doubt reason presentation new tion, preparation, at 1096. S.Ct. Id. mind, defense." we turn facts these T 14 With law any case however, are, unaware compe- trial-level claims what require toAke reads substan- him both denied tency proceedings Indeed, Supreme Ake the it does. claims process. due procedural tive competent ato "access cautioned finding Court (1) court erred trial the claims appropriate an conduct will who psychiatrist purposes indigent not was that he necessarily require not does examination" hearing and re- competency post-examination right given be the defendant expert defense for a funds provide fusing to liking personal of his psychiatrist (2) a "choose time; issue Id. own." hire his funds receive or to challenging not ineffective was if defendant, whether counsel; competency-evaluation assist statutory Oklahoma's competency al regain incompetent, could as follows. may summarized be scheme whether future; by time in reasonable may raised some competency be question of of treatment mentally in need ill or is defendant counsel, or by defense defendant, prosecutor, and whether law; are defined by filing terms those Upon the sponte. sua court releаsed, likely pose a defendant, if competency, determination application Once others. or to himself significant threat appli- hearing to examine a hold shall court compe submitted, post-examination report is al- are facts if sufficient determine cation held; hearing, evidence hearing tency is defendant's a doubt leged create presented, is competency regarding doubt, finds such If the competency. defense, decides by the requested jury if judge, or appro- by be examined is ordered defendant competent to stand defendant whether professionals then These professionals. priate v. seq.; Allen §§ et 1175.1 O.S. 22 See questions: answering five report, submit ¶¶2-4, P.2d 956 Oklahoma, OK 1998 to understand able defendant whether 918, 919. is able charges; whether nature 756 83, 105 S.Ct. at 1096. See also Brown v. already provided law had Appellant with a 15, 743 1987 OK CR P.2d ¶ constitutionally acceptable competency evalu (an indigent 137 claiming defendant a need procedure ation at no charge, and because expert assistance "is not public entitled to defense provided counsel was later funds to 'shop funds to around' until he finds 'hired psychiatrist hire a similarly concluded, gun' with a opinion")2 favorable Under that Appellant competent, Oklahoma's competency proce evaluation Appellant can prejudice show no resulting dure, doubts as to competency may be raised from the trial сourt's initial failure to fund party either itself; the court psychiatric expert.3 experts upon called to assess the defendant's 117 We now turn to whether competency experts appointed are by the supports record the trial court, court's conclusion agents prosecution. competent to stand Supreme trial. Court has held that state-created give substantial deference to the trial

competency evaluation schemes such as Okla court's conclusion on this issue. See Short satisfy homa's process due concerns related 15, T9, 1999 OK CR competency to the of an accused to stand Missouri, judicial trial. 1090-91. A Drope See compe 420 U.S. determination of 896, 904, tency requires (1975). S.Ct. reading 48 L.Ed.2d 103 more than clinical reports. It involves assessing the knowledge We find that statutory competen Oklahoma's credibility cy expert witnesses, relevant evaluation scheme satisfied assessing the procedural lay witnesses, observations of process due concerns in this case. personally observing the defendant's de {16 any event, defense counsel did juries meanor-all of which and trial judges, ultimately request and receive court funds to charged with determining competency, are psychiatrist. hire his own Dr. Montero was better-equipped to handle than we are. At explore retained issues, mental health in post-examination hearing, the trial court cluding but not competency, limited to fоund Appellant competent based on Dr. anticipation Thus, of trial. even if Ake did Christopher's evaluation, (in lay testimony require psychiatric that a expert of the indi cluding Appellant's), and on the court's own gent defendant's choosing own appointed observations of Appellant in prior proceed to conduct a second competency evaluation ings. recognized The court after already one, state law had provided ideation, exhibited strange some but deferred find provided such an expert's to the conclusion that such behavior expert. General, See Walker v. Attorney was not all that unusual for in Ap someone (10th Cir.1999) (Ake F.3d errors pellant's situation. supports record subject are analysis). harmless-error A trial court's determination of competency, claim of ineffective assistance of counsel re based on the information available to it at quires the defendant only show not that time. performance counsel's professionally un reasonable, but performance that the actually Furthermore, Appellant was re-evalu- prejudiced him. Washington, Strickland v. ated twice shortly before trial. Dr. Montero 668, 687, U.S. 104 S.Ct. evaluated in October 2002. He 674, (1984). L.Ed.2d 698 Because Oklahoma Christopher's reviewed Dr. initial evaluation 2. Accord Dirickson quest v. State, 329 after already defendant had Ark. 572, 953 55, (1997) ("Stated S.W.2d simply, the State pursuant evaluated to competency Oklahoma's required pay is not to for a shop defendant to statutes, evaluation expert and the spe defense ‍​‌​​‌‌‌​‌‌‌‌‌​‌‌​‌​‌​‌​‌‌​‌​‌‌​​‌​‌​​​​​‌‌‌​‌​​‌‍from doctor to doctor until he finds one who will cifically charged assessing with the defendant's incompetent declare him proceed to with his competency subsequently agreed with the initial case, present trial.... appellant was ex- finding State, competency); of Wallace v. of. amined at the state and, thus, the re- hospital, 18, ¶11 3, 366, 1997 OK CR & n. 935 P.2d quirements satisfied"). under Ake were (any 370-71 & n. 3 appoint error in failure to expert particular defense point at a pro Mullin, (10th See also Allen v. 368 F.3d 1220 harmless, ceedings expert where such Cir.2004) (no regard Ake expert error with time). appointed at a later competency, assistance ap- where trial court pointed experts several at defense counsel's re- THE EVIDENCE OF Ap- B. SUFFICIENCY agreed that and before months from six CONVICTION THE TO SUPPORT compe- for criteria met the presently pellant Hall, Eastern from Dr. trial. tency to stand 3, contends Appellant Proposition T20 In Appellant evaluated Hospital, State in- trial was evidence that these two with agreed November late First conviction to sustain sufficient that commented evaluations previous that, but claims He Murder. Degree intermittent reported still Appellant while mis- prosecutor's errors instructional wife, hearing his seeing and experiences law, applicable about statements her out killed had he that admitted hе Degree First him of convicted have Thus, information jealousy. disagree. anger and Manslaughter. We trial, several the time available pre [ Appellant charged 21 The State by Appellant, chosen including one experts, his murder, he cut alleging that meditated nor neither gave kill intent specific throat wife's Appel- that to believe reason any material killed deny that he did not Appellant her. in doubt. suddenly competency lant's in a heat he acted wife, that but claimed his claim that reject Appellant's therefore We trial premeditation. without passion, failing to ineffective Jury Instructions the Uniform court used during the competency challenge (Premeditated) Degree First to both relevant Strickland, 104 S.Ct. 466 U.S. itself. Passion) (Heat of Degree and First Murder at 2064. claims now Manslaughter. actively pur offense related a lesser when doubt, contains {19 record Without defense," the State's "affirmative as an sued Appel questions raises transformed. proof is burden particularly are health We lant's mental him find jury could before claims rejected the fact troubled murder, it was re premeditated guilty exchange for guilty plead offers several instructions, first specific under quired, At a hear parole. life without a sentence his heat-of- disproved had State that the find weeks just a few January ing held doubt. reasonable beyond a theory passion offer; final its made the State rejected considered previously We interрreter, through an speaking Appellant, law on characterization made it, admitting had declined politely pre in the context Specifically issue. innocence, ask maintaining his "errors" man heat-of-passion murder meditated that he requesting forgiveness, ing for the Uniform have held slaughter, his wife home to return allowed be offenses, two to these relevant Instructions indi the record portions of Other children. an one conjunction with considered when delu some exhibits Appellant still cate that as to both. law other, correctly state noted, the 4Butas we behavior. sional ¶¶ 37-44, CR 2006 OK Hogan v. for con basis a substantial trial court State, 2001 922-925; Black at the competent Appellant was cluding that 1065-67; ¶¶ 44-48, P.3d OK CR Appel not evaluate need We of trial. time ¶¶6, 18- OK McCormick competency regarding claim lant's continue We 899-901. modify necessary to sentenced, find as we position. adhere Prop (see discussion sentence complains ¶ 22Appellant below). Proposition To the extent osition applicable law misstated prosecutor and ev- framework procedural challenges the support defense, facts compe finding Appellant identiary basis at trial claimed defense. trial, it is denied.5 to stand tent alleged that his reject Appellant's claim interview, re- post-trial During one 4. va necessarily affects incompetency current wife since not "seen" he had ported that v. proceedings. Fisher appellate lidity of these However, that she he claimed trial. before ¶¶ 1272, 845 P.2d sys- 16-17, 79, jail OK CR through intercom State, 1992 to him talked still tem. 758 killed his wife in an rage uncontrollable car, after Appellant's own state she made a surprise admission ments, of marital and the nature of the wounds inflict infidelity and insulted his masculinity. ed, support all jury's conclusion Ap prosecutor reminded jury insulting pellant deliberately meant to kill his wife. words alone could not State, ¶¶ justify a Harris v. 1, 2004 homicide. 44-45, OK CR 84 This entirely was an correct statement 731, P.3d 749. Proposition 3 is denied. (@nd) law. 4-98; OUJI-CR No. Washington State, ¶13

v. 22, 1999 4, OK CR & n. 989 C. FIRST-STAGE INSTRUCTIONS 960, P.2d 968 & n. prosecutor's 4.6 The char Proposition 4, Appellant advances acterization defense as "dis two complaints about the given instructions honorable," "cowardly," and even "dishonest" jury stage the first of trial. Be were all reasonable inferences based on the cause he did bring complaints these evidence. placed himself "honor" the trial attention, court's only review by issue claiming that an insult to his plain State, error. Torres 40, v. 1998 OK CR masculinity was particularly egregious be ¶ 43, 3, 962 P.2d 17. Recognizing trial coun cause of Hispanic heritage. prosecu sel's failure to arguments, make these Appel tor was also free to cast doubt on the "hones appends lant an ineffective-assistance claim ty" of Appellant's pointing to proposition as well. Appellant had, evidence that among other things, placed a filet First, knife his car before complains thаt the killing. State, Turrentine v. the trial 1998 OK CR erred giving jury ¶33, 63, 955, 965P.2d 974-75. superseded (2nd) version of OUJI-CR No. 10-27, dealing with the manner in which the 123 Finally, we turn to whether jury was to consider charged offense the evidence was sufficient support Appel (First Murder) Degree versus the lesser- lant's so, conviction. In doing we must con offense theory (First by Appellant advanced totality sider the to the Degree Manslaughter). State, In Graham v. jury in light most favorable to the State. ¶ 7 2001 OK CR & n. 27 P.3d State, v. Matthews ¶ 35, OK CR 1028 & n. this Court modified OUJI-CR 919-920. The issue is not whether (2nd) No. 10-27 to make it clear that a jury, some other Court, or even this might is not required to unanimously acquit have reached a conclusion, different defendant on charged offense before it whether there was sufficient evidence sup can guilt consider his any lesser offense. port the verdiet actually Id.; reached. Jack Graham was decided trial. son Virginia, U.S. 2781, 2788-89, S.Ct. (1979). 61 L.Ed.2d 560 bring did not Grakam We find sufficient evidence to support to the trial court's attention. The trial court jury's conclusion that Appellant acted with should instruct on the applicable law and use an intent to kill. Appellant's history jeal the Uniform Jury Instructions pos whenever ousy, his conduct in days preceding sible; however, a deviation from the Uniform homicide, his get scheme to his wife to ac Instructions does not automatically result him, company alone, after she had moved reversible error. Phillips 1999 OK out, peculiar presence ¶ 73, large CR of a 989 P.2d knife in 1037-38. The incorrectly reads Lewis v. requirement which is another heat-of-passion ' 24, ¶16, OK 1158, 1166, to hold manslaughter. (2nd) See OUJI-CR No. 4-97. that a infidelity wife's acts of can constitute ade Having found the defendant had a reasonable quate provocation her, killing if the hus opportunity cool, anger for his the trial court rage band's homicidal occurs close in time to his pass had no need to provocation on whether the learning Lewis, of the infidelity. the defen "adequate." This Court found no error in dant killed his wife, and the trial court refused to the trial court's point, determination on this instruct heat-of-passion manslaughter; suggest did not suspicion a mere of marital court found that because the defendant became infidelity-or even a confession of same-would aware of infidelity some time before the "adequate provocation" constitute for heat-of- homicide, he had failed to show that he lacked a passion manslaughter. reasonable opportunity cool, anger for his . You kill them? to intend not (2nd) throat No. of OUJI-CR language the fact to inten[t] somebody without that to do help don't not does in Grakam modified was 10-27 an that without complains was kill." modification the though even Appellant, pre be cannot intent trial, reminder explicit because to prior announced itself, these killing the fact of the Instrue from sumed Uniform this never have the State jury to hold law. the the invited comments statement incorrect to be tion We malice. proving only because burden a lower in Graham to required wаs Relief simply must comments jury prosecutor's suggested disagree. prosecutor charged offense cir external on acquit consider unanimously to asked killing, of lesser surrounding consider even it could cumstances before give to The man (2nd) had omitted advises. 4-63 court No. fense, the trial OUJI-CR Grakam, is knife (2nd) at all. 10-27 used No. which OUJI-CR ner 1027.7 113-6, kill. 18CR to intended 2001 OK he to whether relevant ¶19, State, CR in Grakam OK opportunity Huitt v. took simply We were given attempt instructions in an 876. the instruction P.2d reword case, court the trial law; prosecu this In it clearer. make statements correct (2nd) No. 10- in con proper of OUJI-CR the version gave thereon comments tor's Graham, unlike these before on objections any it existed text; 27 as because Grakam, prose overruled, of the none have been the situation properly issues can be failing cited statements cutor's not derelict was point. this on law State, misstated OK CR said v. Cruse them. make Malaske here. See plain error de no 4 is Proposition findWe ¶11, 67 P.3d ¶14, CR 2004 OK nied. using pre- (trial not err did (@Znd) 10- No. OUJI-CR version Graham OF PHOTOGRAPH D. PRE-MORTEM 27). THE VICTIM be error claims alleges 5, Appellant Proposition instructed expressly not jury was ‍​‌​​‌‌‌​‌‌‌‌‌​‌‌​‌​‌​‌​‌‌​‌​‌‌​​‌​‌​​​​​‌‌‌​‌​​‌‍cause State, in the when fair trial denied presumed cannot aforethought malice Exhibit State's trial, introduced stage of first life. a human taking act mere while taken victim of the photograph addressed adequately is this believe photograph, color The candid alive. she tells (2nd) which No. OUJI-CR before years seventeen some taken sur cireumstances external all jury that Enriqueta smil- day, shows wedding couple's to wheth relevant are homicide rounding the Appel- wedding dress. wearing her ing and intent a deliberate committed er it inflammato- photograph claims lant 2001 OK life. Williams take case. any issue not relevant closing ry and ¶¶ 34-38, 22 P.3d had, by the Legislature our concedes He com such made prosecutor argument, Evidence amended of this time and cut ... knife grab a as, "You don't ments evidence, but such permit expressly Code intending without throat across is unconstitu- the amendment argues How then.... formed [Intent her.... kill photograph objected to somebody's tional. knife across run you could has upon which offense included (2nd) Graham, 10-27 No. OUJI-CR 7. Before deter- required to not You are presented. been read: is not defendant unanimously that mine as to doubt a reasonable you have If may you charged before of, the crime you guilty guilty may be the defendant offense However, of- only lesser offense. guilty lesser included may find him/her consider the defen- unanimously agree that as to doubt you you a reasonable must If fense. offenses, you offense criminal particular all such guilty guilt the defendant dant is any crime. guilty guilty on returning a verdict find must him/her thus: the instruction modified Graham offense. unanimously that agree incorporated into unable you are If since has instruction This charged guilty name] [defendant's (2nd) No. 10-24. OUJI-CR a lesser offense, consider may proceed to you at the admitted, timе it was preserving this appearance victim's is somehow relevant claim for full appellate review. to the issues in the case.8

T Oklahoma goes Evidence Code takes a to assert § even if liberal approach in constitutional, 2408 is favor of admissibility. All it did not permit the photograph at issue here. relevant As we presumed evidence is to be admissi recently pointed out in Coddington State, 0.98.2001, ble. 12 § 2402. Relevant evidence ¶¶ OK CR 142 P.3d 452- only should be if probative exeluded its value 53, and as concedes, himself is "substantially" outweighed by danger § 2403 does not categorically permit any prejudice of "unfair" to the opposing party. pre-mortem photograph of the homicide vic 12 0.8.Supp.2002, 2403; § Mayes see also tim; the photograph must be an "appropri ¶ 77, OK CR ate" adjective one. This serves as a remind ("In 1309-1310 dealing relevancy er that photographs which tend to distract evidence, begin with the presumption that from, or needlessly embellish, basic informa in determining whether to admit such evi tion about the victim may tip the scales dence, the judge should lean in favor of toward inadmissibility. The requirement admission"). the Legislature that such photographs "appropriate" be pre § amended 2403 of the Evidence Code to serves the trial court's discretion in deter provide "[I)n prosecution any crim mining admissibility. If the court finds that homicide, inal appropriate photograph of the photograph is not appropriate-i.e., the victim while alive shall be admissible probative its value is substantially out evidence when offered the district attor weighed by danger prejudice, unfair ney to general show the appearance issues, confusion of the misleading jury, condition of the victim while alive." delay, undue presentation needless of cumu evidence, lative or unfair and harmful sur 130 We turn first to Appellant's prise-then it should be excluded. Section claim § amended, as is unconstitu amended, as is not immune to the tional. Initially, Appellant claims the amend overarching principles of admissibility found political ment was a appease move to victims' in the Evidence Code. rights advocates. may true, This yet case, 33 In this prosecutor offered a Appellant offers no authority suggesting that single photograph Enriqueta day on the a statute's constitutionality hinges on pol she Appellant. married The photograph was ities behind it. Our task simply to consid not misleading; while passage of seven er the statutory language in light of other years teen certainly can general affect one's relevant statutory and provi constitutional appearance, the photograph was introduced ¶ sions. Young, State v. 14, 27, 1999 OK CR through couple's daughter Leticia, 989P.2d testified that her appearance mother's had ¶ 31 Appellant next § claims that 2408 is changed little since the photograph was tak facially unconstitutional because оnly per en. Our review of the photo crime-seene prosecutors, mits defendants, to offer graphs corroborates this assessment. We photographs of a homicide victim. We dis agree with the State that while a photograph agree. The statute does not expressly bar a of a homicide victim in her wedding dress defendant from introducing evidence, such might, in contexts, other be an inappropriate and we find nothing in the general more evocation of sympathy, the facts of this case provisions of the Evidence Code which would cast the photograph in a substantially different prevent him just from doing that, ght.9 li Appellant and the victim had long so any potential 8. As for statute, abuses of the arguments cemetery. from the Neither of these fanciful scenarios envisions are well scenarios remotely even contemplated beyond plain thereof, language any and in § they event did not occur in this trial. speculates, example, future, prose- in the responding objection, defense counsel's might attempt cutors photographs offer prosecutor claimed that he had asked En- grave, headstone at the victim's closing or deliver riqueta's family supply photographs several he was arrest After Even years. seventeen some married been by police was advised interviewed, Appellant killed estimation, Appellant State's silent had right she to remain believing that (1) that he jealоusy, out wife (2) lawyer, him. consult unfaithful right request to Mexico, children, of whom he had two of citizen three victim called being of position consulate. difficult Mexican the from placed assistance heard jury also Appellant interpreter, trial. through an Speaking as witnesses crime, Appellant's the police after without to that talk to only agreed not deteriorated, even that and to right health his mental declined also but lawyer present, killing his admitted while appeal, time the On consulate. Mexican the contact still she believe to wife, claimed he still ad- timely he was that concedes Appellant very much. missed and loved and alive Mexican the contact right to of his vised not did issue short, photograph the In "other state-sanc- that. consulate, but claims so victim the sympathy unfairly evoke him the effectively denied barriers" tioned nature tragic the underscored much com- Appellant assistance. to consular right say cannot involved. all crime this Mexico government the plains unfairly prejudiced Exhibit State's and in his case intervene to permitted not trial Appellant. against defense. in his participate it, admitting discretion its abuse not did denied. is Proposition 5 and is based argument Appellant's party governmental assumption TO CONSU- RIGHT APPELLANTS E. Rela on Consular Convention the Vienna to ASSISTANCE LAR participate to right unilateral has a tions con in anoth Proposition In its citizens "34 prosecution eriminal assistance citi consular to right country, without even signatory tends er a citizen noted, is authority no As offers was violated. consent. zen's Mex and States the United Both Mexico. con To assumption. support such to Convention the Vienna to signatories are consular ico clear treaty makes trary, 77, 100-101 Relations, 21 U.S.T. foreign Consular na aon be forced cannot assistance treaty ). multinational This (hereafter VCCR from refrain shall officers "[Clonsular tional: be relating to contact provisions includes iniswho national aof on behalf taking action coun signatory ain foreign nationals tween expressly if he detention custody or prison, State") consulate (the "receiving try VCCR, Article action." opposes such (the "sending origin country of their unilaterally right fact, T1(c). Mexico's "consular State"). treaty provides proceeding criminal intervene with to communicate free shall officers Appel us, it is because before squarely not sending State nationals claim, making this Mexico, lant, not sending Nationals them. access do standing to lacks himself re freedom same shall State How- denied. therefore 6 is Proposition so. access communication spect discussion our end not ever, does this sending State." officers consular participate efforts Mexico's this §1(a). implement To VCCR, Article did Convention Vienna While defense. receiving aof officials government provision, inter- right unilateral give Mexico not detaining оtherwise arresting or State, upon repeated case, Mexico's vene shall, sending national foreign assistance counsel to offer attempts person inform delay," "without in our role important play an trial consulate, likewise contact right ineffective-counsel disposition has consulate person's inform to now. turn 1(b).% claim, which Id. at detained. so did n any Defense lot. prejudicial least destroyed or her, defaced they had view ask to challenge assertion as a included photographs photographs. other offered photograph subject, F. INEFFECTIVE ASSISTANCE OF progresses capital to a sentencing COUNSEL stage and the State alleged has the "continu ing threat" aggravating cireumstance in sup €37 In Proposition 7, Appellant port of the death penalty. 21 0.$.2001, claims that defense counsel rendered ineffec 701.12(T). § However, tive "continuing assistance in guilt stage of his trial threat" inquiry necessarily invites assess inviting prosecutor to develop evi ment of the past defendant's conduct, dence concerning Appellant's danger future this same conduct may well be ousness. relevant Proposition 2, he claims defense issues raised in guilt stage of a capital rendered ineffective assistance in the See, murder trial. eg., Harris v. stage of failing to 1, ¶ 33, OK CR conduct a meaningful (psychologi investigation po into cal evidence relevant to continuing tential mitigation threat evidence. Because both aggravator was properly claims admitted in guilt involve similar legal principles, we stage to rebut a claim of diminished capaci review them together. ty). That was the case here.10 T 38 In guilt stage trial, the defense ¶ Montero, called Dr. 40 argued had State conducted a pri- psychiatric evaluation Appellant, treatment of his wife supported to ad- the con vance theory its clusion acted intended to kill in a turn, her. In passion. heat of defense Montero counsel attempted characterized Ap- to show that pellant's actions in killing homicide was a his wife as sudden impassioned incon- re sistent sponse, with what Montero used had Dr. concluded Montero's testimony about Appellant's about Appellant's personality. psychological Defense makeup-in essence, counsel specifically asked his whether, Montero support character-to that claim. in opinion, his By Appellant posed formally placing Appellant's a "continuing character for threat as a person'"; violent issue, non-violence in opined Montero opened counsel that he did not. On door to inquiry cross-examination, about other acts which prosecutor might further developed bear on this this line trait, of in- character such as quiry, asking Montero to attempt reflect to escape on his jail. as- from 12 (1) light 0.9.2001, sessment in prior §§ 2404(A)(1), testimony 2405(B); Malicoat v. State, ¶ 1, 2000OK 40, had been CR 992 383, abusive tоward P.2d 403- his wife in (2) past, 04; Douglas the fact v. ¶¶ that Appellant 1997 79, OK CR 24- 25, 951 had attempted P.2d 663. escape from county jail-a fact that yet had not been established 1 41 We tend agree that defense counsel through testimony. Then, in rebuttal, needlessly used the term "continuing threat" prosecutor called Hall, Dr. Terese psychol- a in questioning Montero, Dr. and that because ogist from Eastern State Hospital Ap- where prosecutor point made his in cross- pellant had undergone a competency evalua- examination of witness, this rebuttal testimo- tion, testify that, opinion, ny risk of future violence posed a "moderate" risk of future violence. was not particularly relevant to the issue of 189 claims that the issue of guilt. Nevertheless, we cannot dangerousness future had no place in the say that this temporary shift focus, guilt stage of the and that trial counsel past conduct to future dangerousness, under- ineffective opening the door to the mined confidence in the outcome guilt subject on direct examination of Dr. stage Monte- of the trial predictions ro. agree that a defendant's future dan- based on evidence that was itself relevant gerousness not, strictly speaking, germane guilt-innocence determination. Whether to whether the defendant is guilty of first or not counsel's tactic was professionally un- degree murder; it becomes relevant only if reasonable, we say cannot it likely in a Similarly, capital murder triаl, evidence termination of whether the "espe murder was about the manner of death is invariably almost heinous, cially atrocious, or cruel." See Mali guilt in stage, though even may coat v. State, 2000 OK CR 1, ¶ 42, 992 P.2d 383, be equally relevant to the capital-sentencing de- 404. That was the case here as well.

763 687, 104 S.Ct. at Strickland, 466 U.S. Strickland, way. U.S. 466 prejudice. caused 2006 OK Browning v. 2064; 7 is Proposition S.Ct. 104 ¶ 830-831. denied. Court Supreme years, ¶ 44 In recent al 2, Appellant Proposition applying decisions number conduct issued has failed trial leges that re unique standards Strickland evi potential investigation meaningful mitiga capital preparing sentence, sponsibilities de a death mitigation dence U.S. Taylor, 529 In Willams case. tion assistance to effective right him priving (2000), L.Ed.2d 362, 120 S.Ct. sentencing proceed a fair sen death defendant's vacated Court materials supplementary Based ing. failure claim, counsel's trial finding that conjunction after tence filed evi mitigation available investigate fully court district to the matter remanded performance 3.11, deficient Rule constituted See hearing. dence evidentiary sentencing proceed Criminal affected Court could Oklahoma Rules of 510, 128 Smith, U.S. (2007). The Wiggins App. ing. Ch. 22 O.S. Appeals, (2003), Court L.Ed.2d S.Ct. January held hearing was where sentence to this death submitted vacated hearing again record proved its investigation filed mitigation review. counsel's Court Beard, 545 Rompillo v. in And in this wanting. law of conclusions fact findings of 360 2456, L.Ed.2d 162 S.Ct. also 125 parties U.S. 2006. May on Court defendant's evi the the on vacated (2005), based the Court briefs supplemental filed ne addition, counsel trial hearing. where at the sentence death adduced dence file, which Mexican prosecutor's United review of glected Government "Mexico") granted valuable was leading (hereafter information States contained based brief an amicus file evidence. mitigation of Court leave of sources hearing. evidence recognized has Likewise, this Court encompasses proposition of review Our evidence mitigation of importance critical trial materials, as well of these all that dispute beyond is "It case. capital in a itself.11 record sentenc to the critical evidence mitigating (43 reiterating the by begin Warner case." capital We ainer (citations ¶ 15, claim reviewing a for CR OK standards general OK counsel. omitted). assistance In Garrison ineffective per counsel's defendant's trial that we vacated demonstrate P.3d must ren fail to have counsel's trial deficient so based formance sentence death counsel, essence, without We in evidence. Appellant, such present dered ure Amendment; we attack attempted wisely Sixth in violation counsel trial while reasonable defen performance evidence relatively counsel's weak assess norms. also professional nevertheless, should counsel prevailing light in guilt, ness dant's possibility" "very demonstrate real must anticipated preju convicted, and caused performance be would deficient allegedly defendant were, probability reasonable if be dice; must realized there should confi undermine a sentence question in to work hope" actions best "next proceedings. of the aspects focusing on by outcome in the dence death than less coun explain might presumption history begin with life defendant's accord reasonable, we Id. crime. conduct committed why sel's strategy, questions deference great ways to many are there recognizing claima requires Strickland must case, any given handle light of assessed be ineffective along the decisions strategic many make GRANTED. therein admitted exhibit of an record supplement motion copy corrected hearing with a evidentiary particular cireumstances of the individual counsel.13 Attorneys working on Mexico's Williams, case. Wiggins, and Rompilla behalf were in contact with defense counsel each applied the Strickland standard to a summer of offering, among other different set of facts. Yet cases, those things, sample motions to seek court funds our cases, own share the acknowledgment for experts and services, other including a that mitigation can, quite literally, mitigation investigation.14 make the difference between life and death ¶ 49 Despite the voluminous evidentiary capital case. While give strong hearing, and testimony frоm all three de deference to the district court's findings of fense attorneys case, involved in the the actu fact and conclusions of law following the evi- al defense strategy with regard mitigation dentiary hearing on trial perform- counsel's remains elusive to us. Several conflicting ance, the ultimate issue of whether counsel explanations (1) were offered: that defense ineffectiveis one for this Court to deter- counsel did not know the court could be mine. Rule 3.11(B)(B)(b)iv), Rules petitioned provide additional funds for mit Oklahoma Court Criminal Appeals, 22 igation (2) investigation; that counsel knew O.S., (2006). Ch. App. 'With princi- these additional funds could applied for, but did ples mind, we now address whether not believe the court approve them; counsel's preparation punishment (8) that no additional funds were sought stage can be considered constitutionally ac- because counsel believed their mitigation ceptable. work was thorough and sound. Each of 47 Lead defense counsel was retained these explanations is belied the record. Appellant's family April 2002. Trial was noted, As counsel for Mexico had forwarded early held in February 2008. Counsel hired caselaw and other information to trial coun an associate to assist preparation sel on how to seek court funds mitigation motions and the stage of the assistance. At a hearing just days before trial. That associate left the firm in Decem trial, where counsel for appeared Mexico pro ber about a month before trial. Lead hac vice and expressed concern about the counsel hired a second associate in January course of the second-stage preparation, 20083,again primarily to work on punish court told defense counsel that it would be ment-stage issues. The record shows that very accommodating any properly submit while lead counsel very had capital little ex ted request for additional funds. None was perience, the associates charged with prepar ever filed. No substantive mitigation work ing for the capital sentencing stage had even was done until a week or trial, so before less.12 when new counsel, associate just hired a few 148 Even though Appellant before, declined an weeks spoke with a few family mem invitation to contact the Mexican bers consulate for an hour or two about testifying in arrest, his consular officials were punishment notified stage.15 As earlier, noted about case, his and they enlisted help of the testimony of the family three members Capital Mexican Legal Assistance Pro- who testified in stage com gram (MCLAP) to communicate with prised defense less than fifteen pages of trial tran 12. Lead counsel testified that he had been in- In October trial applied counsel for and volved in capital one past. case in the The first $5000 received psychiatrist to hirе a and an associate employed to assist him capi- had no investigator, pay and to for a transcript of the experience; tal his successor had "third chaired" preliminary hearing. However, psychiatrist's capital one murder trial as an intern. principal role at support trial was to the "heat of passion" defense, and investigator's primary long Mexico has a task history investigate was to providing of first-slage finan- issues. legal cial and support to its charged nationals capital with crimes in the United States The 15. At the evidentiary hearing, lead defense coun- Capital Mexican Legal Program Assistance sel testified that he anticipated also calling Ap- provide established to experienced legal, pellant's foren- son testify mitigation, and that it sic, and support financial to defense counsel was a surprise" "real when he backed out at the around the country represent who minute, Mexican na- last allegedly pressure under from the charged tionals capital with crimes. ‍​‌​​‌‌‌​‌‌‌‌‌​‌‌​‌​‌​‌​‌‌​‌​‌‌​​‌​‌​​​​​‌‌‌​‌​​‌‍family. victim's case. mitigation proper a presenting and wit elaboration, these little With script. insight offer could who anyone Practically had jurors told nesses Profi in Mexico. lived past spare them into asked and person, good a been just for essential, not Spanish ciency life. re witnesses, but potential interviewing pre case doubt ¶ no There records. medical, other school, and viewing very be from challenges several sented at apparent were challenges Indeed, these thirty first spent had ginning. paper Immigration hearing. evidentiary in Mexico. town a small life years delayed. hearing caused work English. little very spoke He at difficulties translation some were There interpret an required by police interrogation challenges Yet, these hearing itself.17 Spanish. no spoke counsel defense Lead er. has counsel Defense overcome.18 were about firm associate, left who first His to ensure steps necessary all take duty to Spanish. no trial, spoke before month present mitigating available Spanish. no spoke investigator 16, 29 at 1 Warner, CROK See ed. preparing associate, tasked second ineffective (defense counsel month than less case mitigation a con request procedure failing to follow interpreter Spanish, some spoke securing attendance purposes tinuance inter a certified necessary. While still dili witness). Had mitigation used and court by the funded preter mitigation implemented formed gently times other proceedings, challenges case, these strategy earlier interpreters unlikely such do" "made could apparent, been Appel victim murder the brother seeking funds bymet been Regardless nephew. twelve-year-old lant's necessary. they were why specifying might have persons these proficient how they were whether languages, hearing, in both evidentiary theAt signifi legal matters relate knew competent witnesses a number communi fact they did cance, whether United family to took him before proceedings nature true unique cate offered them Many of States. considerable issues effectively, are good vignettes moving cern.16 con vie- knew also them character; many of opinion favorable tim chal logistical There sub- made witnesses these Some well.19 investigating directly on bore lenges thorough examination very presenting family suggests that record 16. on remand. issues Appellant alarm to nephew not instructed relay. to supposed he information witness, Fa- one de- hearing, examples, lead a few cite To 19. evidentiary at the addition, wedding of language Pinoncely, officiated to due Felix testified ther counsel fense Appel- known had Enriqueta, and Appellant discuss to difficult barrier, "very it Ap- since State church Catholic local through extended plea offer lant [Appellant] young aas should testified He why we believed child. awas pellant reasons help several on to man, volunteered Appellant accept offer." Schel- J:acobo witness, Another projects. church appellate defense hearing, community After Mennonite in a lemberg, a farmer is reporter's require the to Court Schellemberg tes- moved town. home near re-translated, alleging hearing to be tapes of the about for him for worked Appellant tified translation examples inaccurate several States. United moving years before ten hearing. employed at interpreter the certified prob- medical Enriqueta had recalled He copy an affida- awas motion Attached constantly worried lems, translation. attesting to inaccuracies vit work dutifully off took her, about transcribed, currently testimony as We find spoke Schellemberg also doctor. take her confusing as to require so not context, is read tran- friendship with a close to Substitute Motion re-translation. back- cultural ethnic different their scended Copy GRANTED. Faxed Original Affidavit thai received Testimony was also grounds. Tapes of Reporter's Court to Have Motion His ato blood occasion, donated one DENIED. Hearing Re-Transcribed Evidentiary about much said man, Mennonite about it did esteem Mennonites' court, district commend an- Yet help others. willingness to hurdles clearing these parties, for both stantial sacrifices to attend the evidentiary ture and quantity of mitigating evidence hearing. The local priest, Catholic who had must be based on professional reasonable known since child, he was a was 62 judgment, which requires experience, train- years age, partially blind, and in poor ing, and some basic research into what evi- health; yet he testified at the hearing and dence is available and how might make a offered to return to the United States as difference. We simply cannot discern any often as necessary speak on Appellant's real, coherent mitigation strategy in this behalf.20 case. Even if brief, counsel's eleventh-hour 153 One important purpose of mitigation discussion with Appellant's parents and sis- evidence is to humanize the defendant ter about testifying in stage eyes of jury and, possible, if explain could be deemed sufficient prepara- witness what might have driven him tion, to commit the it surely does begin approach crime. Mayes See Gibson, F.3d true mitigation investigation. Counsel were (10th Cir.2000). We find Supreme untrained in what to look for and go how to analysis Court's in Wiggins particularly rele- looking for it. Their assessments of vant here. In Wiggins, defense counsel's the situation were often inconsistent with mitigation investigation consisted of review- other, each and at times internally inconsis- ing a psychological report, presentence re- tent as well. The amount of given deference port, and a report from a social-services to counsel's strategic depends decisions ageney. The Court faulted counsel the amount of investigation that went into "abandon{ing] their investigation" after hav- them. Strickland, 466 U.S. at ing acquired "only rudimentary knowledge S.Ct. at 2066. We find trial ap- counsel's of [the history defendant's] from a narrow proach to the mitigation aspect of this case set of sources." Wiggins, 589 U.S. at 524- constitutionally unacceptable. 25, 128 S.Ct. at 25987. fact, the Court characterized counsel's failure to investigate 155 We must now consider whether as resulting more from inattention than any- counsel's failure to investigate, develop, and thing else. Id. at 128 S.Ct. at 2587. present an acceptable mitigation case was Under the cireumstances, the Court found prejudicial to Appellant. The trial court that a broader and deeper investigation into agreed with trial opinion counsel's that addi collateral sources of information about tional mitigating evidence would only have defendant's background would have led to been cumulative to that which had pre evidence which could have affected the sen- sented at trial. We believe this conclusion tencing proceeding. qualitative overlooks the difference between ¶ 54 Counsel does not have an obligation having a family member generally ask the any introduce and all evidence that might jury spare the life of defendant, conceivably be considered mitigating. Wig having parties third offer more ob gins, 589 U.S. at 2541; S.Ct. at jective Lott specific amd examples of why the 2004 OK ¶163, defendant's life should spared. Effective 357. But counsel's decisions about the na- capital mitigation requires at least looking other witness, Javier Gomez, a teacher appointed long- and Capital the Trial Division of the Okla- time Appellant's, friend of Appellant testified that Indigent homa System (OIDS) Defense to this godfather was the to his son. When Gomez's son case, and that OIDS, later to apрointed represent died unexpectedly, Appellant money borrowed to Appellant on appeal, direct was able to marshal buy boy's the casket and asked the Mennonite substantial mitigating evidence. This was ac- farmers to lend him a carry truck to Appel- it in. complished with help invaluable attorneys from allegedly lant refused to let pay Gomez him back mitigation and specialists working on behalf of for these efforts. Gomez also recalled that when government the profession- Mexico-the same Appellant began courting Enriqueta, he asked als who had repeatedly offered assistance to trial Gomez to assist her; him serenading the two counsel, and who testified that thorough miti- men built a bonfire next parents' to her home gation investigation might have sang and been to available her. trial, before had trial counsel sought first funds 20. We find it ironic that from Appellant's before the district family court to conduct it. him, retained counsel for the trial court had his explain helped have also rors, might mercy." but for pleas naked "fewa than more the State example, one give To conduct. at 398, 125 S.Ct. at U.S. Rompilla, See mon abusive characterized that understand may well Jurors con and unreasonably jealous always extol was who ster almost will mother defendant's little did The defense wife. his over trolling may give they son; but her virtues the testimony adduced Yet picture. this greater alter to perhaрs treatment, and different that, by all hearing showed evidentiary wit- biased less testimony of at the the to weight, af changed personality accounts, Appellant's life whose man the illuminates which nesses He States. United the to moved ter hands. in their withdrawn. and serious, shy, more became counsel defense lead hearing, theAt T56 family when testimony that also was There mitigation belaboring the that suggested 2001,Appellant visit to came Mexico from jury and the "bored" have might testimony been had Enriqueta to them confided ani- racial latent sort some exacerbated hav about details unfaithful, some gave simply are assessments These mosity. de Had issue. ing confronted conclude record. supported investiga proper conducted counsel fense do- up growing stories relevant been have would tion, this evidence commu- Mexican rural in his things ing good jealousy show to citizens resonated have well might nity might not homicide leading up months Garrison, county. Oklahoma rural aof unfounded, have CROK marked may have problems marital defendant's evidence Hall, Dr. Even health.21 mental his effect failed counsel past," "horrendous competency evaluated one at least moved could present, out trial, pointed request State's less a sentence favor out hold juror information additional report in her evidence mitigating Most death. than help background of a was case in this present failed health. mental fully assess morе ful to positive highlighted nature, different challenge back- efforts character counsel's Trial T 59 aspects funds mitigating to seek powerfully competency, it was client's ground, expert psychiatric aof employment nonetheless. pros- But commendable. a "sec- called fairly be may case This might be jury point, that, at some pect fact The case. stage" ond die live or should decidingwhether evidence undisputed. was wife killed attention demanded one was straightfor- was death to effect design aof testimony undisputed was There beginning. validity legal considerable, ward point at one hearing that evidentiary tenuous. was defense passion" "heat of was deliberations, their into well visually gruesome. was of death manner death impose whether split on evenly be what appeared question only real hearing, defense evidentiary theAt penalty. Most appropriate. sign aas fact pointed cireum- aggravating one supporting viewWe successful. strategy was mitigation a con- constituted (whether Appellant stance how suggesting strongly it as evi- all society), and outcome-deter- tinuing threat might investigation mitigation a real minative (whether second supporting dence been. atrocious, or heinous, especially murder stage of there hearing, guilt evidentiary cruel), theAt T 60 capi- proper whether over discussion trial. much required necessarily strategy effort, tal initi- mitigation aggressive An specialist," "mitigation a so-called of services only not case, would early in ated Appellant's on employed ones as the such ju- eyes of in the humanized outside prowling a cat interpreted occasion daughter, by called the couple's 21. At calling boyfriends Enriqueta's of as one home control- jealous Appellant's to describe State her. wife, one testified toward ling attitude direct appeal. We believe the real issue is 162 Generally, prejudicial error whether defense counsel understands what punishment stage of a capital mitigation kind of evidence can make a would dif warrant vacating the death sentence ference, what kind mitigation of and remanding evidence is to the district court for re- available, and whether sentencing. counsel makes reason Under particular cireum- able efforts to obtain it. case, agree, 'We stances of princi however, this we find that a ple, with the trial court's modification of conclusion that "any sentence is more appropri attorney, investigator, ate. worker, above, social As noted mental evidence support professional, health ing or one of person other the two capa aggravating cireum- ble of obtaining such stances (continuing information long so threat to society) was they are actively weak. Appellant looking it" (emphasis no known criminal ours). Here, however, rеcord. Evidence counsel was not ac mental ill tively taking ness considerable, steps reasonable assemble a tended to ex mitigation plain case. what few reject We instances violent court's conduct suggestion the State able to was the muster. responsibility mental may illness his family played part understand the repeated rejection nature of mitigation own, their plea State's and to offer. A bring relevant substantial evidence amount of compelling defense counsel's doorstep.22 case, mitigation presented evidence was simply did ev- identiary hearing, not devote the where it subjected efforts which have recog vigorous nized, by adversarial testing. the Supreme All of Court the mit Court, and this igating evidence, likely viewed together, make a clearly difference between life outweighed the and death.23 evidence supporting ag gravating cireumstances. Under these T61 Our today decision does not set a unique cireumstances, and in the interests of "magic number" of witnesses to be called in justice, we find that Appellant's sentence mitigation of the sentence, death or number should be MODIFIED to imprisonment life persons to be interviewed for pur- such without the possibility parole. 22 O.S. pose. It does not make capital effective rep- 2001, 1066; § 21 0.$8.2001,§ 701.13; Ullery dependent resentation upon employment State, v. ¶¶ 36, 1999 OK CR 44-46, 988 P.2d of any particular type specialist, presen- 332, 352-58; Mooney State, v. 1999 OK CR tation of any particular type or amount of ¶¶ 57-58, 891; P.2d Washington testimony. simply find that some of the State, v. ¶¶ 1999 OK 49-64, CR 989 P.2d at the evidentiary hear- 960, 975-980; Cudjo State, v. 1996 OK CR ing-evidence which trial counsel admitted 43, ¶¶ 27-32, 900-02; Malone he was completely unaware of-was of such State, ¶¶ v. 1994 OK CR 40-41, 876 P.2d character as to undermine confidence in the 707, 718-19; Livingston 1990 OK death imposed, sentence ¶¶ and that 10-11, counsel's 1058-59. choice not to pursue even this line of mitiga- Appellant's other complaints relating to the tion evidence was professionally unreason- sentencing phase of the trial are rendered able under the cireumstances. moot or otherwise denied.24 Smith 38, ¶¶ 2006 OK CR Cf. people ask the my town about (trial 144 P.3d 159 counsel was deficient in not brother, the whole town is saddened because explaining critical need for psychological expert, brother, my and everybody knows him." seeking court funds for such services if defen deciding Appellant's might fate well them, dant pay could not accept instead have wondered: If what sister said ing client's resignation attitude that such true, ser why then were mone people of these vices help would not anyway). testify? called to 23. We find the testimony brief Proposition Appellant complains of cer- sister, stage, particularly tell- tain comments made prosecutor in sec- ing: ond-stage closing argument, comments which you "If live, would know where we ask the were not outrageous so require as to discussion people, they you would tell how he is.... I ask Although here. the title Proposition pur- you please, you brother, if my knew you if ports challenge the constitutionality of the

769 in part/dissents in LEWIS, Judge, concurs DECISION part. is the district {63 of judgment inso- opinion majority { the with I concur 1 is death of The sentence AFFIRMED. I dissent conviction. affirming the far IMPRISONMENT LIFE MODIFIED parole. life without modification the PAROLE. OF POSSIBILITY WITHOUT appropri- the opinion the I am of T2 JOHNSON, sentencing concurs. is to J.: improper A. remedy for ate court. to the back case the remand CHAPEL, coneur J.: LUMPKIN, and P.J. hearing all jury, instructed properly Then a in results. evidence, decide could admissible properly I in Appellant. in part/dissents LEWIS, punishment appropriate concurs J.: the in this strategy mitigation agree part. to tak- however, I dissent deficient, case was JUDGE, in results: concur Chapel, away from the punishment ing the issue in the conviction affirming in I concur jury. modifying case, I concur and this fact, with parole. life without sentence III, I otherwise Proposition exception join and would analysis of agree with thoughtful well-reasoned ‍​‌​​‌‌‌​‌‌‌‌‌​‌‌​‌​‌​‌​‌‌​‌​‌‌​​‌​‌​​​​​‌‌‌​‌​​‌‍majority's APP 33 CIV OK however, cannot, agree I Opinion. al., FELIX, et Aaron III. Proposition analysis of Opinion's Plaintiffs/Appellants, acted was that defense Appellant's afore malice v. without passion heat of in a these Under wife. killing his thought in INC., TECHNOLOGIES, LUCENT trial court I believe cireumstances Defendant/Appellee. de heat-of-passion on instruct should No. 103022. dis burden the State's upon fense as an raised is it, the defense where рrove by raised adequately affirmative Oklahoma, Appeals of Civil Court Hogan my dissent See evidence. 1.No. Division 907, 937-44. CR 2006 OK case, current 8, 2006. However, the facts under Dec. sup sufficient is evidence find that I 2, 2007. April Denied Certiorari convic murder first-degree port af rightly is conviction tion firmed. and 10 at 884. Propositions atrocious, 47 P.3d aggravator, ¶¶37-39, "heinous, cruel" sufficiency the evidence challenge the jury was whether deals argument itself al aggravating circumstances meaning of those support two on

properly instructed jury. While by we have proposition, of this leged title the State to the As terms. moot, and over- vagueness are now issues findings these rejected constitutional jury's many times aggravator challenges this to submit preliminary decision breadth court's the trial CR OK Murphy v. supported See sufficiently before. jury was to a them substance ¶¶ 876, 883-84. argu 47 P.3d cumulative-error evidence. disposition of this by our argument is mooted extent to the moot is also Proposition 12 ment 9, Appellant claims Proposition part of case. no we find the sentence imposed; bears error, pre jury to instruction due confidence undermines of error accumulation itas considering guilt-stage vented Finally, guilt. jury's verdict mitigating aggravating and pertain to might 8, 2006, relating 4 and December pleadings filed again, stage; in the issue factors § 13.1 O.S. applicability by the modification mooted argument CR OK State, 2006 Anderson challenge to constitutional sentence. 3.4(F), Rules untimely. Rule are DENIED part of aggravator, "continuing threat" Appeals, Title Criminal Court the Oklahoma rejected many we have one Proposition (2006). 0.S., App. Ch. 24 at Murphy, OK past. times

Case Details

Case Name: Marquez-Burrola v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Apr 17, 2007

Citation: 157 P.3d 749

Docket Number: D-2003-1140

Court Abbreviation: Okla. Crim. App.