Ochoa v. State

grant enough of sum- upon which rest

mary judgment. Conclusion

V. con- scope 28 Due to the of information writings which signed

tained exist questions present-

this cause and the factual venture, joint allegations of a

ed Plaintiffs grant summary

we reverse the trial court’s

judgment, opinion vacate Appeals this cause fur-

Civil and remand proceedings.

ther

¶ 29 CERTIORARI PREVIOUSLY CIVIL APPEALS

GRANTED. COURT OF

OPINION VACATED. REVERSED AND

REMANDED FOR FURTHER PRO-

CEEDINGS. V.C.J.,

SUMMERS, HODGES, WATT,

HARGRAVE, ALMA WILSON and

JJ., concur.

KAUGER, C.J., part, concurs dissents part.

LAVENDER, J., dissents. J., ALA, participating.

OP

1998 OK CR 41 OCHOA,

George Appellant, Oklahoma, Appellee.

The STATE of

No. F-96-339. Appeals of

Court of Criminal Oklahoma.

June Aug.

Rehearing Denied

589 Greer, Richard,

Kurt Public Bert Assistant Defenders, City, Appellant for at Oklahoma trial. Maey, Attorney,

Robert District Susan Caswell, Attorney, Assistant District Okla- City, trial. Appellee homa for at Merritt, Carolyn L. Assistant Public De- fender, City, Appellant ap- for Oklahoma peal. Edmondson, Attorney

W.A. Drew General Oklahoma, Humes, L. William Assistant General, Attorney City, Appel- Oklahoma appeal. on lee OPINION CHAPEL, Judge. Presiding ¶ George jointly was tried with Ochoa by jury in Torres Oklahoma Coun- Osbaldo Court, ty No. District Case CF-93-4302. was of two counts of First convicted Aforethought, in Degree Murder with Malice 701.7(A) O.S.1991, § of 21 and one violation Burglary, Degree of First in violation count O.S.1991, At the § 1431.1 conclusion of trial, capital sentencing phase of the the the jury aggravating the of two found existence (1) proba- there existed the circumstances: bility commit criminal acts that Ochoa would continuing violence that constitute a would of two of first 1998 OK CR 40. was also convicted counts 1. Torres burglary. degree malice See Torres murder (2) knowingly clothing he society,2 claimed observed blood the threat than the men. of death to more great created a risk jury person.3 recommended Ochoa one The shootings, 5 A short time before the murders and to death both

be sentenced at a parked Torres and Ochoa their car twenty imprisonment for bur- years house. A one of friend’s witness observed L. glary.4 Honorable Charles Owens The gun men take a from the trunk of the car accordingly. appeal- sentenced put gun pants. gun was in his This and sentence to this Court.5 ed his conviction gun different from the used the murders. men was

The stated one witness Facts identify other Ochoa. She could not man, it the other but asserted was early morning hours of During the put gun in his man' —and not Ochoa—who 12, 1993, July and his Francisco Morales pants. witness testified that Another wife, Yanez, killed Maria were shot and man with Ochoa was Torres. City their home. the bedroom of Oklahoma Torres jury 6 The convicted Ochoa and daughter gunfire The sound woke Yanez’s proceeded counts the case on all Christina, years old in the sum- who was trial. capital sentencing phase of The State told mer of called 911 and 1993. Christina posed argued that Ochoa and Torres a con- step-fa- operator she believed her society tinuing threat to based on the circum- ther, Morales, may firing gun. have been and the stances of murders defendants’ telephone, hanging up After she looked Locos, membership in Southside a local light A on in the out her bedroom door. gang. To show that Ochoa created a risk of room; living saw Christina two men. One person, to more than one the State death wearing a white and the man was t-shirt the death of the two victims and the offered wearing other man a black t-shirt. presence of children in the home at the three man in t-shirt Christina the black stated presented The time of murders. defense hand, something had in his she did not but mitigation personal history, his Ochoa’s initially know what it was. Christina denied illness, history of mental 'his men- borderline men, knowing eventually but identi- the two pleas mercy his tal retardation and from man in t-shirt fied Ochoa as the the black family. found the eidstence of both man in t-shirt. and Torres as the the white weighing aggravating circumstances. After shooting 3 The also awakened evidence, mitigating aggravating Francisco, step-brother, who was Christina’s jury imposed penalty. the death in, years eleven old the summer of 1993. man in t-shirt Francisco the black saw Competence to Trial Stand identify He could shoot father. appeal 7 The first issue Ochoa raises on gunman. competent to is whether he was stand trial police quickly to responded 4 The argues 1996. Ochoa his case should be re- call. route to the Christina’s 911 While en the determination that he versed because home, arrested competent Officer trial was made under Coats was to stand Yanez/Morales Ochoa, walking togeth- convincing who “clear Torres and were the old and evidence” stan- dard, Supreme The infirm a short from the homicide. which the Court ruled er distance nervous, Cooper v. The sweating and and Coats in Oklahoma.6 State contends men were 2.1, O.S.1991, 701.12(7). § § Rule Rules the Oklahoma Court of of Appeals, App. Title Ch. Criminal 701.12(2). O.S.1991, § 3. 21 6.517 U.S. 348 116 S.Ct. 134 L.Ed.2d 498 both 4. Torres also sentenced to death for Supreme Cooper, In the ruled Court (20) years twenty imprisonment murders and to unconstitutional Oklahoma’s standard for deter- burglary. for mining competent whether a defendant is to statute, O.S.1991, trial, trial. The stand a a new 5. Ochoa also filed motion for 1175.4(B),provided § a a crim- that defendant in request request supplement the and a record competent hearing. prosecution presumed to stand evidentiary inal is this motion for Since O.S.1991, incompetence by timely, proves unless he his clear was not it is denied. 22 trial filed report, Dr. the error, Based on Smith’s the case deuce. if Court finds should that the the appreciate “able to for a court found Ochoa but remanded retro- not be reversed him,” charges and “able consult competency hearing. Although against spective rationally assist in the lawyer his and competency was decided with question of Ochoa’s The court convincing preparation of his defense.”12 infirm and evi- “clear under standard, proceedings re- ordered the resume. the case need be dence” retrospective a nor remanded for versed finding supports 10 This evidence hearing. competency un- competent trial to stand Ochoa jury trial “preponderance Ochoa waived on the evidence” der of competency. only a report When defendant Dr. is the issue of standard. Smith’s jury competency nothing and the a trial hear record. is waives evidence in the There court, ing report suggest held before the trial Court be is that Ochoa would question proof. of incompetent will de novo the whether of review under lower burden finding Murphy, that the supports appeal, argues a defen Dr. record On Ochoa competent during trial is to stand under sen- dant who testified on Ochoa’s behalf testimony evidence” “preponderance tencing, provided stand new would have competency to competent A defendant’s stand trial under ard.7 Ochoa was not to stand ability as of a present proof. defined “the A review of trial is the now-lower burden charged with a person Murphy’s testimony support arrested crime does not charges below, and to understand nature of we claim. Based on the record find proceedings brought against him and to ef competent trial that Ochoa was to stand and fectively rationally show, de and assist his failed to based on defense counsel a corollary, evidence, a statutes in- preponderance fense.” As Oklahoma he was incompetency present inability as “the competent. define charged a person arrested for or with a also that trial counsel nature crime to understand the failing challenge was ineffective for against proceedings brought him charges and Because competency determination.13 we effectively rationally assist in his and to find, record, on a de novo review of the based defense.”9 compe- would have been deemed ¶ Here, in proceeding before the under preponderance tent stand trial counsel, court, Ochoa, stipu through standard,

trial preju- was not the evidence report to Dr. Warren which lated Smith’s diced trial counsel’s actions. Counsel was (1) appreciated found Dr. Smith not ineffective. charges against although him nature of brief, reply ¶ 12 In his Ochoa also remember the event for which he

“he cannot argues that when a defendant waives alleged responsible,”10 and Ochoa could impose rationally competency on should lawyer his assist trial Court with consult imposed one no a waiver standard similar to the defense. Ochoa offered other evi- added). O.S.Supp.1992, (emphasis § convincing Supreme 8. 22 1175.1 evidence. States, 402, 402, convincing Dusky U:S. the "clear evidence” See v. United ruled that (1960); proof Miller placed high 4 L.Ed.2d 824 too a burden standard 1988). (Okl.Cr. this standard of defendant struck down proof. response Cooper, this Court deter applied proof to be the new burden of mined § O.S.Supp.1992, 9. 22 1175.1. preponderance competency determinations is State, 751, Cooper 924 P.2d 752 the evidence. v. 31,May 10. Tr. at State’s Ex. 1. 1995 (Okl.Cr.1996). O.S.Supp.1996 See 22 ("The court, 1175.4(B) hearing § at the on the Id. 11. determine, by preponderance a application, shall evidence, incompetent.”) person if the is 12. Id. State, 521, (Okl.Cr.1996), 528 v. 932 P.2d 7.See Smith denied, 668, 2522, -U.S. -, Washington, v. 466 U.S. 104 117 13. Strickland S.Ct. cert. 138 L.Ed.2d 2052, (1984). (1997). 674 1023 592 State,14 two lenges; provided, that when or more dealt with the

in v. which Brewer they a have inconsistent defenses procedure followed when defendant defendants to be challenges separate for each aggravating granted shall stipulates circumstance. be to forth.” already post- that as hereinafter set Consis- recognizes defendant This Court statute, jury may tent this Court has stated competency trial be with examination in- Brewer “when defenses of codefendants are affirmatively and the stan- waived15 Moreover, consistent, they to required should not be appropriate is here. dard not knowingly, peremptory challenges.”17 share The Court record that Ochoa intelli- shows affirmatively jury put parameters on “inconsistent gently trial on has some waived State, Indeed, stat- competency. trial In Neill v. the issue of defenses.” eases, ‘inconsistency’ goes to ed “in court to Ochoa several times what some explained culpability jury competency would entail and the level of while other cases a trial on ‘inconsistency’ goes jury guilt it or innocence. hold the to advised Ochoa would to if stated un- the issue is restricted the level trial wished. Ochoa he Where Ochoa culpability, a each co-defendants rights, derstood he understood what co-defendant’s was, may required peremptory he to chal- competency jury trial and wished to be share 18 attorney lenges.” proceed trial. Ochoa’s also stat- the function of the ed that Ochoa understood did have 15 Ochoa and Torres not jury trial, stipulate that Ochoa wanted to The defense of both inconsistent defenses. report, competency which discussed they kill men not Yanez and did above, proceed Ochoa and that wished Torres’ Morales. Since Ochoa and defenses exchange and trial on the merits. This waiv- inconsistent, court did not err were not adequate.16 are did not occur and er Error request peremptory denying separate relief is warranted. challenges. Jury Selection Second, claims that the failing sponte trial erred in to sua court error, proposition 13 In his sixth Harris for cause. Juror Har dismiss Juror procedural complains sub- ris told the court and counsel that he had during occurred selec- stantive error deputy County, in Kern served as sheriff process depriving right tion him of his years, California for seventeen and a half but constitutionally impaneled jury. making now Harris he was retired. also stated claim, arguments. presents three he fair. nor could be Neither Ochoa Torres First, ¶ 14 Ochoa claims error oc moved to strike Harris for cause. Eventual required him curred when the trial court ly peremptory challenge used a peremptory their chal Torres to share nine Harris; objected to the re remove Torres lenges requests each and denied defense moval. separate defendant allotted nine chal be provision lenges. provides, of Title 22 17 At is the issue here Section “[sjher- O.S.1991, 28, § pertinent two more which part: “if defendants states that they join deputy qualified jointly are shall their chal- iffs or sheriffs” are tried State, denied, 273, (Okl.Cr.1982), (Okl.Cr. rt. v. P.2d 14. 650 P.2d ce Woodruff State, 1992). v. P.2d See Neill 459 (1983). 103 S.Ct. L.Ed.2d 999 U.S. (Okl.Cr. 1992) ("[c]o-defendants jointly tried who granted sepa have be inconsistent defenses shall peremptory challenges”). The rate Constitution State, (Okl.Cr. v. 852 P.2d Lillard require together does not that defendants tried 1993) State, (citing Kiser granted separate peremptory challenges. be Stil (Okl.Cr. 1989)). States, 583, 586, son v. United 28, 30, 63 L.Ed. 1154 State, (Okl.Cr.1989) 16. Kiser v. 782 P.2d (defendant affirmatively post-examination (citing waived 827 P.2d at 891 Fox 779 P.2d (Okl.Cr. competency hearing by jury 1989); when he withdrew Fowlerv. cert, 580, denied, (Okl.Cr.1989), proceed hearing requested case motion for 582 1060, 1537, (1990)). hearing). preliminary L.Ed.2d to 110 S.Ct. 775 However, originally Har- Torres were jury. since Ochoa and on a Juror serve active, retired, depu- 1995, opposed to the ended as tried October but case ris was statutory trial, he fall under the ty does not Before the second Ochoa sheriff mistrial. Moreover, Harris disqualification.19 person Juror order moved the trial court to the impartial he be and he living made clear could to allow now the victims’ house penalty. the properly consider death investigators would into their to in- home defense failing sponte to sua The court did not err Apparently the vestigate crime scene. Harris for cause. strike living in the person who was Yanez/Morales investigators refused defense home to allow Finally, complains house. trial court it was into the stated it certain court erred when overruled authority party without to order third com regarding voir dire. Ochoa motions investigators defense into the home and allow denying a court erred in plains trial overruled motion.23 voir dire. This Court motion individual is repeatedly individual voir dire has stated trial, Shortly before second indi required and the decision to allow not intended prosecution learned that the dire left to the sound discretion vidual voir is re-investigate the crime scene. The assis- The trial did not of the trial court.20 court attorney agreed permit de- tant district Ochoa further main abuse its discretion. investigators accompany the State’s fense denying erred in a mo tains that court investigators of the on their re-examination ques death-qualifying ask tion that it certain scene. counsel a letter crime Defense sent challenging the death- tions and motion confirming attorney assistant to the district Although the qualifying nature of voir dire. accompany the investigators that his would questions court to ask certain trial refused investigators crime In a to the scene. State defense, by questions requested letter, handwritten note at the bottom of the posed jury comported with court trial attorney the assistant district wrote: Witherspoon Morgan v. v. Illin Illinois21 agreed neither investi- [defense It is ois,22 not The trial court did commit error mea- gators] photographs will take Moreover, jury. questioning in its interior of the home or surements ques in his trial counsel was not inhibited investigator.24 interfere the technical w/ jurors tioning on the death penalty. prejudice has under this failed to show counsel, According to addendum defense denied. proposition and relief is part a last minute addition original Defense stated deal. counsel Stage of First Trial go they thought it better nonetheless not to proposi- the house with that condition than a number of 19 Ochoa raises investigators accompanied concerning stage go at all. Defense the first tions of error brief, police and the measurements proposition observed In the second trial. officers. process investigation taken was denied he due investiga- were not allowed prosecution investigators Defense denied his because not al- independent investigation were independent to the crime scene. access tors below, police deny confirm correctness of the lowed to stated we For the reasons of the new inves- As a result measurements. proposition. State, (Okl.Cr. 20 L.Ed.2d 21. 391 U.S. P.2d Nickell 1994) (former (1968). agent who knew district attor FBI jury ney from under disqualified was not service O.S.1991, 28); § Okl.Cr. Coats 38 33, 22. 504 U.S. (former deputy sher service). disqualified from iffs not challenge ruling. (Okl.Cr. 23. Ochoa does not Malone v. (“decision 1994) dire of allow individual voir jurors the sound potential also committed to 24. Vol.IIIO.R. at 521. right is not a of the trial court and discretion defendant”). guaranteed a 594 constitution, ing on the court found

tigation, produced a dia- the state prosecution new gram of interior of the house that dif- have although the trial court should respects diagram fered in scene, certain from to the the error ordered access crime trial first trial. The court offered at the was harmless.29 were minor. found the differences Here, the restrictions the State appeal, On placed investigators petty, are on Ochoa’s ability denying investigators the to take his unjustified improper. The con- State independent deprived him of measurements necessary were tended that the restrictions argument, process. making In due in- prevent interference with the State’s Brady Maryland25 and Ochoa relies on v. vestigation, argument is spurious. but this addressing other the State’s withhold cases dismayed place We are that the State would ing exculpatory evidence. These eases are unnecessary inappropriate such barriers not point on did with not because the State legitimate prop- front of defendant’s exculpatory hold evidence from Ochoa. Sim ilarly, analogy dealing to cases attempt prepare Ochoa’s with er his defense. Nonethe- presentation the State’s of false evidence26 less, has these failed to show no point are not because there is reason on or deprived curtailed his defense restrictions presented false evidence. believe State right process. Although him of his due apropos argument is that the More Ochoa’s diagrams Ochoa claims that two one —the precluded put him State’s from restrictions used in the first trial and the one used in this ting depriving thus him his defense of due another, significantly from one trial —differ process support In and a fair trial. significant he has not shown what these dif- argument, cites several out-of-state they or how affected de- ferences are Although binding these cases are cases.. contrast, fense. In the trial court noted that Court, the how on this cases indicate other only slight. According- were differences problems. courts have treated similar ly, improper we find the State’s action did Davis,27 People In v. a New York neither nor harm Ochoa and reversal granted trial court motion to allow the an appropriate modification of sentence is access to crime scene and defendant remedy. harshly attorney criticized district trying to limit the defendant .access argues, 25 Ochoa also under this (1) scene. The court the district at stated error, ought proposition of that relief to be torney possessory no interest in the had granted destroyed because latent State (2) attorney property, had no district fingerprints that were unusable but which statutory authority to ac limit defendant’s might ridge have contained sufficient infor scene, any cess to effort mation of exculpatory to be value. In Ari attorney improper. district to do so was Youngblood,30 Supreme zona v. Court Virginia,28 Henshaw v. Commonwealth of held “unless criminal defendant can show a crime defendant wished access to scene part police, bad faith on the failure to possession party. which in the of a third preserve potentially useful evidence does not of access court found denial process a denial of constitute due of law.”31 may deprive crime the defendant of scene Rely adopted Youngblood This process due and fundamental fairness. standard 1194, 83, 25. Davenport, 29. also cites v. U.S. State 696 So.2d (1963). Kyles Whitley 1997), (La. simply See also 514 U.S. which a one sentence (1995); 115 S.Ct. State v. L.Ed.2d why we cannot how order and determine Munson, (Okl.Cr.1994). 886 P.2d 999 particular court issued order. (9th 26. Young, 17 F.3d 1201 United States 30. Cir.1994). (1988). L.Ed.2d 281 (N.Y.Co. Misc.2d N.Y.S.2d Ct.1996). Id. Va.App. 451 S.E.2d 415

595 ready, a requested them has not shown announcement Hogan v. Ochoa in State.32 a investigate to and moved for in when it continuance acted bad faith that the State prosecutor stated he would severance. destroyed prints, relief the latent and testify. The trial not call informant to warranted. for a continu- court denied Ochoa’s motions a 26 Ochoa raises related ance and severance. Proposition arguing in VIII that complaint ¶28 court Ochoa asserts trial court should have instructed the the trial failing grant This by erred to a continuance. negative infer jury they that could draw a to “the whether Court has stated decision from Officer Goforth’s destruction of ence rests grant deny or a motion for continuance disagree. Due fingerprint evidence. We of the trial court within the sound discretion impose does not “an undifferentiat process be absent abuse of and will not disturbed duty pre and absolute retain and ed considering such might discretion.”34 “When be of conceiva all material serve continuance, a we overruling of a motion for particular evidentiary significance in a ble earlier, the entire record ascertain will examine stated prosecution.”33 As unless any the appellant whether or not suffered police, can bad defendant show faith Here, although prejudice by the denial.”35 potentially useful evidence destruction continuance, the court denied the defense process a due violation. does not constitute counsel tried to with the informant speak had im cites two out-of-state cases dire, case was still voir but while Ochoa’s higher police, on but this pose a standard talk. There is noth informant refused to by Hogan is controlled v. State and case find, ing indicating that additional time would Youngblood. Arizona v. We position. changed his has not faith, have showing of bad fail absence prejudiced by shown he was the denial of provide an instruc ure of the trial court The court did not abuse its continuance. allowing negative in draw a tion discretion. from the of evidence ference destruction pro due right not violate Ochoa’s does 29 Ochoa also However, may an such instruction be cess. ought Torres’ to have been severed. trial appropriate sanction where defense an “mutually antag Where defendants have two showing of bad faith. has made defenses,” ought trials to be separate onistic III, relates Proposition joinder may compelling held trials trial, prosecu- day of

that on the second antag Mutually error.36 result in reversible previous afternoon an revealed that the tion occur each onistic defenses when defendant jail County had exculpate informant the Oklahoma inculpate other and seeks to attorney stated, district advised assistant “it is not himself.37 The Court has enough had claimed to have shot killed Torres the defenses co-defen allegedly inconsistent, also Yanez and Morales. Torres in conflict are oth dants are present shootings. be Ochoa was at erwise To considered claimed unreconcilable.. theory ‘mutually antagonistic,’ the two theories This claim contradicted the State’s the victims and Torres aided defense must be direct contravention that Ochoa shot killing. Upon hearing parties place must each blame with abetted in their information, Court has further co-defendant.”38 The Ochoa’s counsel withdrew State, 1339, (Okl.Cr. 1157, (Okl.Cr.1994), 36. v. P.2d cert. de Cannon 32. 877 nied, State, 1992); 513 U.S. 115 S.Ct. P.2d Lafevers (1995). (Okl.Cr.1991). Youngblood, at S.Ct. at 337. Lafevers, 819 P.2d at 1365. (Okl.Cr. P.2d 34. Salazar 1993). 38.Id. at 1365-66. (Okl.Cr.1994), Bryson v. denied, U.S. rt. ce 130 L.Ed.2d 651 next attempt to cast contends stated “one defendant’s subsequent identification of Christina’s is not itself a sufficient blame the other Christina saw men was tainted because trials,”39 and require separate reason The at the crime scene. men handcuffs alone, defenses, conflicting standing “[m]ere support this record does not contention. prejudice showing not the of do constitute testimony is no that Christina ever There necessary judicial for severance.”40 prior telling Officer saw defendants police at the station that was Mullenix not The defenses here were in her home that one of the men she saw earlier, mutually antagonistic. As stated that, points testimony after night. Ochoa they of did not defense both men was that arrest, their Ochoa and Torres were taken commit the and both focused their crime men crime held in there scene and handcuffs eye-witness undermining attack on testi possible Ya- time. It was for some Further, mony. call the the State did not neighbors to see the defendants nez/Morales Thus, testify.41 informant to the defendants However, arrest. there no evi under was any engage finger-pointing did not sort of Christina saw the defendants or dence court err in or blame. The trial did not there, they even knew were and defense refusing to sever the defendants’ trials.42 questioned never this counsel Christina about Moreover, Macy matter. Officer Brett testi error, proposition 31 his fourth of step fied that nor her neither Christina Ochoa, time, challenges ad- for the first brother Francisco came into contact with missibility of Christina Yanez’s identification at on defendants the crime scene. Based of him and Torres. Since did not record, this Ochoa has failed to show that lodge contemporaneous objection a to the show-up there was a and we identification evidence, only granted upon be a relief will say totality cannot that under the of showing a result plain error occurred as circumstances identification was Christina’s admission of evidence. Accordingly, ad tainted unreliable.44 and/or testimony of her mission and identification ¶ 32 Christina’s identification proper. was Ochoa and was crucial to the State’s Torres Initially, knowing men ease. she denied alleges 34 error Ochoa also it was killed parents. who her Christina admitted testify for Detective Mullenix explaining initial made the denial she police at Christina identified Ochoa sta frightened. initial denial because she was Again lodge tion. Ochoa failed to a contem initial not denial does render Christina’s objection poraneous plain and we review for inadmissible; subsequent witness, identification This stated error. Court has “a merely goes evidence of credibili making issue an after in-court identification of defendant, ty reliability, proper may testify which was a issue ‘at particular times, day, place, [he or had she] for the to decide.43 time Neill, State, 1124, at 886. 43. See v. 846 P.2d 1134 39. 827 P.2d Woodruff (Okl.Cr.), denied, 934, cert. 114 S.Ct. States, Id. at v. 506 886-87. See United Zafiro 349, (1993) (jury 126 L.Ed.2d 313 is exclusive 933, 534, 938, 538, U.S. 113 S.Ct. weight judge credibility of evidence (1993) ("[m]utually antagonistic are 317 defenses witnesses). State, 291, v. 876 P.2d 295 Snow Cf. ”). prejudicial per se not denied, (Okl.Cr.1994), cert. U.S. '30 S.Ct. L.Ed.2d L.Ed.2d 1120 (Okl.Cr.1994), 41. See Plantz (1995) (noting cautionary eye-wit instruction denied, U.S. rt. ce 1130, necessary in ness identification was (1995) (finding sever L.Ed.2d structing jury judge was sole witness that it pres required ance not where defendants did credibility proper). was mutually antagonistic did and State ent defenses incriminating by non- not introduce statement co-defendant). testifying Biggers, Neil v. U.S. See (1972); L.Ed.2d Tibbetts Neill, (absent discre- 827 P.2d at 886 abuse of (Okl.Cr.1989). tion, try joint- trial decision to defendants court’s appeal). ly will not be disturbed on there see, port the trial court’s conclusion that recognize identify occasion proposi- This probable to arrest. person who committed was cause as the defendant crime.’”45 However, “[o]nly the identifier is denied. tion an testify that identification was may several com 36 Ochoa makes an Testimony party third made.... alleged evidentiary in his plaints about errors made, particular or that identification First, proposition of error. seventh is ... error.”46 None- person identified sought intro complains prosecution theless, in- testimony such follows “[w]hen gang affiliation dur duce evidence of Ochoa’s by the accused court identification Although stage first of trial. the trial ing the found to be the error has been identifier ruled was inadmissi court that such evidence harmless.”47 Here, it was error Mullenix during stage, prosecution elicited first ble testify him one of that Christina told to suspects Tays that from Officer —Ochoa Nonetheless, the was Ochoa. the intraders might gang members. be Torres — testimony merely cumulative was testimony.49 objection was There no to testimony. prej- The error not Christina’s during closing argument, four occasions On not and relief is warranted. udicial defendants, prosecution referred to the prop in his fifth 35 Ochoa claims directly indirectly, gang as mem either or arrest is invalid of error his osition objected of the com bers. Defense to two probable cause Officer Coats lacked because grounds was ments on the that the statement arrest to execute his warrantless of Ochoa evidence;50 objections were over not stated, This Court has “The and Torres. plain ruled. We review these claims for er arrest is for a valid warrantless whether test prosecution ror and we are troubled that the at the moment arrest was made inject attempted deliberately gang evi probable to make it— officer had cause stage only into the first trial. Not dence at the facts and cir that moment whether regarding did evidence comments knowledge his and of cumstances within gang membership violate the trial Ochoa’s reasonably trustworthy infor he had which order, also evidence was court’s but such prudent warrant a mation were sufficient to guilt question to the or inno irrelevant believing had com man in that the defendant way gang as was no cence evidence an offense.”48 committing mitted was murders. connected to the Yanez/Morales’ did have asserts that Officer Coats not gang in the we find the use evidence While until he description of the defendants after a error, stage Ochoa has first of trial be However, reading a men. arrested the fair sufficiently was failed show that error supports the trial court’s of the record below Accordingly, prejudicial. relief is denied. the de conclusion that Officer Coats heard that, complains over radio 37 Ochoa next scription of the defendants Further, objection, al tes Officer Robertson was arresting them. Coats over prior testify about inconclusive results perspiring and there was lowed tified men were sup- gun powder FBI examination. These residue on Torres’ clothes. factors blood State, 950, (Okl.Cr. waives when he fails 737 952 49. A defendant error 45. Scales v. P.2d State, 1075, 1987) (quoting objection v. P.2d 1078 lodge contemporaneous Hill 500 a at trial. (Okl.Cr.1972)). 1351, State, (Okl.Cr.1994), v. 887 P.2d 1365 Hooker 164, denied, 858, rt. 516 U.S. ce 1204, State, (Okl.Cr. 815 46. Kamees v. P.2d 1207 (1995). L.Ed.2d 106 133 omitted). 1991) (citation State, objection grounds for the 50. An is waived if Id. at 1207-08. See Trim v. (Okl.Cr.1991). appeal. objection than were different at trial State, (Okl.Cr.), cert. v. 900 P.2d Valdez denied, (Okl. 585 P.2d 48. Castellano U.S. S.Ct. O.S.1991, ("A Cr.1978). peace § See (1995); Mitchell warrant, may, person without arrest a officer denied, (Okl.Cr.1994), rt. ce committed, felony has been ... in fact [w]hen 133 L.Ed.2d 50 believing cause for and he has reasonable it"). person have arrested to committed hearsay51 prejudicial rights of the defendant on testimony This and should testimony However, find the trial.”53 Officer Mullenix’s allowed. we have been evidentiary harpoon. Mullenix’s com- deny not an relief. error harmless legitimate response ment was counsel’s Third, Oehoa contends Moreover, questions. cross-examination adequate showing make an State failed to did not information of Mullenix introduce testify per was unavailable to Garcia crimes; simply he other indicated he did trial, disagree. prosecution At son. We suspect in this pursue another case be- they could not the trial court that advised police he had arrested the cause believed the to intro Francisco Garcia and wished locate testimony right is not an men. officer’s testimony trial in lieu duce from the first evidentiary harpoon to grant and we decline long held testimony. “This has live relief. satisfy threshold must two the State Next, objects to a number of prior testimony may requirements be before including photographs trial Ex- admitted at prosecution evidence. The admitted into 111-123, 105-09 and which were crime hibits ‘(1) unavailability of prove, [t]he must actual victims, photographs and Ex- scene of both good despite faith and due dili witness 62, photographs which found in hibit included gent presence of the efforts to secure the trial, purse. only the victim’s At Ochoa ob- (2) trial; and, transcript of the witness at the jected objec- Exhibits 107. His to 106 and testimony bears a sufficient indicia witness’ tions were overruled. reliability of to afford of fact a the trier ¶ satisfactory evaluating the truth of basis pho 41 to admit The decision ”52 testimony.’ prior the Ochoa contends tographs within rests the sound discretion of prong satisfy failed to the first admissibility the State the trial court.54 “The test for due of because it did not exercise gruesome this test is it photograph of a not whether diligence locating To the con inflammatory, Garcia. probative its or but whether trary, attempted lo adequately to substantially outweighed by the State value is dan properly Moreover, cate the trial ruled prejudice.”55 and court ger Garcia of unfair “[t]he diligence. Ad exercised due probative photographs the State value of of murder testimony previous mission of Garcia’s ways, can victims be manifested numerous nature, not including showing error. extent and lo wounds, corpus establishing of cation de- ¶ Fourth, asserts that 39 Ochoa licti, scene, depicting the crime and corrobo injected evidentiary har an Officer Mullenix rating testimony.”56 the medical examiner’s poon trial. This has defined into the “(1) case, they' although 42 In evidentiary harpoons as follows: by experienced police eighteen pictures of generally are made State introduced the vic statements; (2) officers; they voluntary trial, only objected at are tims’ bodies (3) photo willfullyjabbed photographs. than inad two they are rather two of These (4) inject vertent; they graphs gruesome indicat were no than information more (5) crimes; Moreover, ing they calculated to other sixteen. exhibits other are 105-09 defendant; they are prejudice probative and 111-123 were of nature 896, State, (Okl. argue not the evidence is 54. McCormick v. P.2d 898 51. The State does 845 State, Rather, citing Cr.1993). hearsay. Simpson v. (Okl.Cr.1994), contends that P.2d 690 the State plain error is not warranted under the relief (Okl.Cr.1993), State, 1273, 55. Hooks v. 862 P.2d Simpson is not the correct standard standard. denied, U.S. rt. S.Ct. ce 1870, objected because review this error defense (1994). L.Ed.2d grounds hearsay. testimony on the State, State, (Okl.Cr.), (Okl.Cr. McCarty 212-13 56. Trice 853 P.2d P.2d 1995) denied, (quoting Smith v. cert. (Okl.Cr. 1976)). L.Ed.2d 597 (Okl. Bruner v. Cr.1980). “Aiding abetting in wounds, perpetrator.”58 corroborated and extent of requires the State to show that the a crime testimony, depicted the medical examiner’s done, or procured the crime be accused corpus de- scene and established crime abetted, aided, assisted, advised encour- admitting not err trial court did licti. The aged the commission the crime.”59 More- photographs. these over, presence does not constitute while mere complains about 43 Ochoa also act, “only slight participation is criminal a purse and Exhibit which was the victim’s person’s change a status from needed thereof, including photographs of contents spectator mere into aider abettor.”60 Generally, their deaths. the victims before ¶47 argues the standard Okla- deaths photographs of victims before their Jury 1st ed. homa Uniform Instructions ease, and, in this probative57 are not ed.) (OUJI-CR aiding abetting, 1st been photographs should not have admitted. case, given which were However, object did the evi inadequate to set forth the were elements plain has to show error dence and he failed abetting in malice aiding and a murder stage trial. occurred in either 11-12, Jury At are Instructions case.61 issue that, Finally, as a 1st are identical to OUJI-CR ed. 204- which whole, deprived errors discussed above aiding 05. Ochoa contends standard sentencing a trial or fair hear- him of fair abetting replace specific in- instructions grant disagree relief ing. We and decline kill in malice murder case with tent to error. proposition under intent, thus, lessening the general criminal proposi- proof. 45 The issue Ochoa’s ninth burden of State’s aiding and appropriate is the tion error question appro 48 The here —the malice abetting to be used in a instructions in a priate aiding abetting and instructions that when the evidence reflects murder case malice murder case—was answered in John de- aided and abetted in first the defendant Ochoa, appellant Like in son v. State.62 outset, murder. it should gree malice At the complained that the trial court Johnson theory of the case be noted that State’s using in the Oklahoma Uniform In erred shooter and that that Ochoa was the in aiding abetting and a first structions on killings. and abetted Torres aided Ochoa, Like degree malice murder case. supports theory. this Ochoa The evidence argued the instructions allowed Johnson sug- appears argue that the evidence also replace general specific for a jury to intent may simply and gests he have aided lessening changing the intent to kill thus or best, is, killings. in the This claim at abetted proof. The Johnson Court State’s burden of Nonetheless, review Ochoa’s tenuous. we rejected argument finding these objections abetting aiding to the and instruc- conjunction with the instruc instructions in tions. degree properly murder set out tions first jury’s dis and channeled has Oklahoma law 46 This Court stated According here. must cretion. Johnson controls murder ease the State “in a malice ly, in find instructions Ochoa’s case personally and we prove aider abetter law, did not diminish properly set forth of the victim and aided tended the death proof adequately the State’s burden knowledge full of the intent abetted with State, (Okl.Cr. Id. Peninger 57. 811 P.2d 60. (admission 1991) photograph of victim before proper). death not ed., used the OUJI-CR 1st 61. The trial court effect in About a month which went into 1981. State, (Okl. 928 P.2d 315-16 58. Johnson v. trial, this Court issued revised after Ochoa's State, Cr.1996). 904 P.2d Accord Cannon OUJI-CR 2d ed. (Okl.Cr.1995); but Conover v. see 1997). (Okl.Cr. 928 P.2d at 315-16. (Okl.Cr.) Spears v. denied, omitted), (citations cert. 133 L.Ed.2d 527 revealed The evidence at trial agree. Plain error jury’s discretion. channeled and Torres went to Ochoa Yanez/Morales not occur. did July early morning hours of during the home complains because the also Ochoa car several They parked their separate aiding out do not set instructions and removed the victims’ home blocks from abetting for murder instructions forcibly entered the car. The men gun from are not burglary. find the instructions We and Torres’ activi- home. Ochoa the victims’ misleading confusing, and relief is not or children, ties awakened Yanez/Morales warranted. ac- some of the defendants’ observed who error, proposition of In his tenth son, Francisco, ob- Morales’ victim tions. Jury Instruction 6 is erro- Ochoa man in a t-shirt shoot served a black Jury 6 instructed Ochoa’s Instruction neous. Christina, daughter, victim Yanez’s father. jury that: t- the man in the black Ochoa as identified may of Murder in person be convicted No as the oth- identified Torres shirt. Christina Degree unless his conduct caused the First arrest- home. Both men were er man her person allegedly killed. A the death distance from ed a short Yanez/Morales by conduct if the conduct is death is caused supports amply home. This evidence bringing about the factor substantial burglary. for murder Ochoa’s convictions dangerous death and the conduct destroys life.63 Prosecutorial Misconduct instruction; objection no There was XX, Proposition alleges plain review for error. we during prosecutorial occurred misconduct and sec- closing arguments in both the first points out the com 51 As Ochoa trial, failed to stage of trial. At ond ed. 426—which is ments to OUJI-CR 1st object many of the comments now raised essentially as Instruction 6 the same appeal. has waived such errors on as only be the instruction case—recommends which objections. comments about Other of death is dis given when the actual cause complains fall the broad now within that the facts of puted. The concedes State advocacy and do not parameters of effective giving the instruc this case do not warrant Nonetheless, error. several constitute a similar error tion. In Smith v. State64 closer exami- error, prosecutor’s comments warrant There, finding the despite occurred. instructions, nation. when “[t]he found that Court whole, accurately applica the a state read as closing During stage ¶ ar first preclude possibility the the ble law and argued: got “All I’ve gument, prosecutor the appropriate to

jury may have believed it you why you asking say to is do think we’re degree murder ab Appellant of first convict trying you think we’re to to convict? Do Likewise, here finding a of intent.”65 sent somebody that’s innocent?”66 prosecute jury not the as to the instruction did confuse stating objected to the comment Torres proof. role or lessen the State’s burden its presumption a of innocence.”67 “there is how he was bur has failed to show correct, stated, “That’s but— The trial court There was no by such an instruction. dened object did not proceed.”68 Since Ochoa plain error. comment, plain error. In we review for the State,69 found it was of Miller v. the Court proposition In eleventh his prosecutor for the to state error, insuffi fundamental error argues the evidence is closing argument that cloak of inno- “[the We dis- to sustain his convictions. cient Id. 67. Vol. Ill O.R. at 573. 63. (Okl.Cr.1996). Id. State, 846 P.2d See Sadler v. Id. at 534. (Okl.Cr.1992).' (Okl.Cr.1993). 69. 843 P.2d 389 at 185.

66. Vol. VIII Tr. by appeal by employing ripped away from him eutor risked reversal on been had] eenee men, However, testimony improper three men —four actu tactics. Ochoa has the such guilty as affected the ally. defendant] stands failed to show that the comments [The Likewise, in Hamilton case the charged.”70 outcome of his and we find errors State,71 the the Court found it error for harmless. inno

prosecutor to the cloak of state defendant; stripped the had been from cence Capital Sentencing Stage Trial however, the found the error harmless. prop- twelfth and 56 Ochoa’s thirteenth Here, although prosecutor did use not continuing error concern the ositions of innocence,” his phrase “cloak of rhetori sup- aggravating circumstance used threat prosecute an question cal that he would not XII, In port Proposition his sentence. death impermissibly man innocent treaded argues the trial court erred allow- presumption of ar Ochoa’s innocence. Such ing gang affiliation to be evidence of Nonetheless, gument cannot be condoned. prove continuing In introduced to threat. Hamilton, like the comment did affect not XIII, argues evidence Proposition plain error did not occur. verdict jury’s finding support insufficient to stage closing In ar second posed continuing society. that he threat to prosecutor if gument, argued related, closely propositions These two are jury to a sentenced the defendants term together. and we them consider imprisonment have the defendants would provides that the death Oklahoma food and shelter while “lie cold victims may appropriate penalty be considered has graves.”72 their This Court condemned only degree first punishment for murder arguments by prosecutor,73 similar same cases, narrowly specific which are certain Nonetheless, do so we continue to here. statutory aggravating circums defined objection no the comment and there was continuing is At issue here tances.77 say we that the comment constituted can Okla aggravating threat circumstance which plain prosecutor also overstated error. The probabili as the “existence of a homa defines mo gang argued evidence and ty that commit criminal the defendant would higher killings gain tive status acts of violence that would constitute con support gang. in the The evidence did tinuing society.”78 prove threat To addition, prosecutor im this claim. circumstance, aggravating relied on State pleaded jury justice properly with the do (2) itself, and of the crime facts bring only way you “and the can do Locos, affiliation with the Southside Ochoa’s He also told back a sentence of death.”74 gang. a local case, penalty “If this isn’t death prosecutor 58 Ochoa that admission evi It is error for a what is?”75 gang affiliation error. As in and it error of his was refer to facts not evidence dence matter, opin reply note in his personal an initial we that prosecutor for the to state his death Ochoa raises the issue whether appropriateness ion to the brief as gang evidence prose- of the affiliation penalty.76 We are that the admission disturbed pressed personal opinion the death as to 390. his 70. Id. at stating, it ... penalty by ‘this defendant deserves 1997), (Okl.Cr. cert. 71. P.2d penalty proper a ... This is case for death denied, -U.S.-, justice argument was it.’ Such demands any alleged aggra- supporting on evidence based circumstance, vating simply a but was statement 72. Vol.XTr. at286-87. opinion appro- Macy's personal as to the of Mr. such, and, (Okl.Cr. 1995). priateness penalty as of the death 73. Duckett clearly improper.”) 74. at 301. Vol.XTr. O.S.1991, § 701.12. Id. at 297. McCarty O.S.1991, 701.12(7). § 78. 21 ("Mr. 1221(Okl.Cr.1988) Macy improperly ex- organization, a racist Merrell Dow Pharmaceut member of a violated Daubert v. and/or icals,79 proper that alone evidence. Nonethe Taylor v. State.80 Because is not less, in not close the door to all raise this issue his brief-in- Court did did not ehief, relating a defendant’s is waived and we will not evidence associa the issue cases, noted, many “In for tions. The consider it.81 Court might example, a associational evidence serve brief-in-chief, 59 In his legitimate purpose showing in that a defen gang that evidence violated admission represents danger society. dant a future Amendments of the First and Fourteenth membership organization in an A defendant’s Supreme federal and violated the constitution any killing identifiable endorses the in v. Delaware.82 In ruling Court’s Dawson group, example, might be relevant to a Dawson, majority opinion in Chief Justice jury’s inquiry into whether the defendant will Rhenquist First held that “the and Four dangerous future.”86 be in the prohibit teenth the introduction Amendments proceeding in capital sentencing of the fact 61 The issue before us is Ochoa’s was member of an the defendant membership in the Locos. In con Southside Brotherhood, organization Aryan called the Dawson, trast here the State introduced no where the evidence has relevance to the only membership in evidence of Ochoa’s being proceeding.”83 issues in the decided gang, but also introduced evidence Although recognized the Court “the First in engaged Locos criminal ac Southside protects right Amendment individual’s tivity drug ranging graffiti to traffick from join holding groups and associate with others ing type membership to murder. This in a beliefs,”84 rejected similar Daw type gang criminal is the of associational membership son’s that evidence of his claim Supreme evidence that the Court viewed as per in Aryan Brotherhood was invalid. se in permissible relevant Dawson. The problem here for the State is not admis finding 60 In evidence of Dawson’s itself, sibility of but the the evidence ultimate membership Aryan in the Brotherhood to be probative partic value of this evidence in this improper, appears to the Court have been ular case. (1) particularly struck two facts: the Ar yan membership Brotherhood evidence was not connected 62 The of Ochoa’s evidence victim, is, in or murder of Dawson’s who was affiliation with the Southside Locos white; best, prosecution prove marginal failed to at value. There is no evi- Aryan that the in Brotherhood was involved dence the murders of Maria or Yanez Rather, any activity. any way in criminal at issue Francisco Morales were connect- following simply stipulation: gang Dawson ed to the committed on behalf or “ Indeed, Aryan gang. ‘The refers earn Brotherhood to a white status in the the State states, prison began gang explicitly racist in in its brief the 1960’s “No motive was response gangs appears California in to other of ra ever for the crime and discerned it gangs picked Separate calling may cial them the Morales’ have been at minorities. home Further, Aryan although selves Brotherhood random.”87 now exist State in- ”85 many including prisons troduced that the state Delaware.’ evidence Southside Locos activities, any engaged variety evidence of criminal activi of criminal Without other ty, membership Aryan utterly Dawson’s State failed to tie Ochoa these simply absolutely showed he criminal is Brotherhood was a racist activities. There no 2786, 579, 161, at 79. 509 U.S. 113 S.Ct. 125 L.Ed.2d 83. Id. S.Ct. at 1095. 112 (1993). 469 162, 84. Id. at at 112 S.Ct. 1096. 319, (OH.Cr.1995). 80. 889 P.2d 162, Id. at 112 S.Ct. at 1096. 3.4(F)(1), 81. Rule Rules Oklahoma Court of of 22, Ch.18, Appeals, App. Criminal Title 166, Id. at S.Ct. at 1098. 112 82. 503 U.S. 112 S.Ct. Br. 309 87.St. at 63.

603 concerning prior engaged any in cient convictions evidence that Ochoa ever evidence unadjudicated pattern to of crimes show a activity connected with the of criminal kind likely only criminal conduct that will continue The evidence of Locos. Southside ‘continuing its threat’ gang support the future to is that affiliation with Ochoa’s ”88 utterly to The State failed officer that he was a contention.’ police told Ochoa showing make here. sport- Locos and he such a member Southside “cholo,” purported is a of a which a tattoo ed 64 In eases which this Court other The gang membership. of- symbol of State support has the evidence sufficient to found nature, nothing extent else to show fered continuing aggravating threat circum relationship of or value Ochoa’s with stance, of has introduced evidence the State connection between the gang. Such lack of violence,89 unadju- prior of prior criminal acts activity gang’s criminal and Ochoa makes offenses,90 or of criminal dicated evidence evidence, admissible, very of mar- while activity occurring after the crime.91 We have question as of whether ginal value An is" none of that here. instructive case continuing poses himself threat to Malone, support Malone v. Stated.92 to quality of society. marginal this evi- circumstance, continuing aggravating threat question: next begs thus dence introduced evidence that nineteen State support continuing to evidence sufficient case, years before the current the defendant aggravating The an- threat circumstance. charged shooting had been with with intent is no. swer charge kill. to prior The Court found that above, only be too and concluded that the State 63 As stated State not remote Likewise, continuing engaged any prove failed to to show that threat. failed Perry the evi gang activity, but also the State v. State93 Court found criminal continuing support ever dence insufficient failed to show that Ochoa committed only any prior no threat where the evidence introduced crime. Ochoa had criminal unadjudicated support aggravating prior and he no circumstance record had (1) Perry kill him that since a witness’ belief that would offenses. There was no evidence (2) engaged any against Perry, if he and murders had vio- testified con illegal This lack evi- of the crime. The Court lent or activities. of circumstances cluded, most, proved an isolated activity part of on the of “at the State dence criminal contrast act of committed a man who stands in marked with violence present drug suffi- suffered from severe and alcohol abuse. requirement “that the State State, (Okl.Cr.1995) battery dangerous weapon, Perry with his P.2d assault and State, (Okl. tory testimony (quoting Cr.1994)). spousal expert and 876 P.2d abuse Malone v. rage); inability to John defendant’s control son, continuing (supporting 928 P.2d at 318 against previous threat were threats of violence Bryan, e.g. (supporting P.2d at 361 89. See imposing vigilante jus prior wife and tice); Allen, threats of previous continuing defendant’s con threat was (supporting 923 P.2d at 621 continu pointing viction for for murder and other solicitation ing prior threat was convictions for Smith, acts); unadjudicated 932 P.2d at 536 bad weapon, history arguments wife of violent with continuing (supporting threat was conviction for girlfriend, attempt police and kill officer dangerous battery weapon, with his assault victim). killing after spousal expert testimony tory abuse and rage); inabilily control his Allen v. defendant’s e.g. (Okl.Cr.1996), 91. See Charm v. 923 P.2d vacated - denied, -, (Okl.Cr.1996), --, cert. U.S. grounds, - U.S. on other (1997) L,Ed.2d (finding continuing (supporting L.Ed.2d occurring activity after murder suffi criminal prior pointing weap for threat convictions Allen, threat); continuing on, support cient history arguments with wife and violent (supporting continuing threat was P.2d at 621 girlfriend, attempt police to kill officer after history prior pointing weapon, victim). convictions lulling arguments girlfriend, violent with wife victim). killing attempt police kill officer after e.g. Bryan, (supporting at 361 90. See continuing previous threat was defendant’s con- 92. 876 P.2d at 717. for murder and other viction solicitation Smith, acts); unadjudicated 932 bad P.2d at 536 521, (Okl.Cr.1995). (supporting continuing was 93. 893 P.2d threat conviction for expert testimony regarding his mental ill- ‘continuing To threat’ the State establish ness, history and of criminal that his mental illness his bor- pattern ‘a conduct must show present- He also The facts derline mental retardation. likely in the future.’ will continue simply family’s love for him and case not dem- ed evidence of his of crime in this do the pleas mercy. evidence had pattern a of criminal behav- While Ochoa’s onstrate such find, Here, compelling on balance that proved aspects, the that we ior.”94 State Ochoa aggravating of the murder of single in a act of violence and it the evidence engaged people outweighs mitigating the evi- belonged gang. to two showed that Ochoa a street Accordingly, sustain Ochoa’s murders of Yanez Morales dence. we While the and in- deplorable, presented the State has death sentence. were pattern a to show of crim- sufficient evidence XV, Proposition In Ochoa ar likely in inal that will continue conduct present gues impact victim evidence say proof, future. Absent we cannot This improper. in this ed ease was continuing poses threat to soci- spelled parameters victim-impact out ety. required by in As Cargle evidence v. State.97 Cargle, hearing Having the trial court held a before found prove continuing victim-impact threat evidence was introduced. State failed circumstance, Moreover, testimony aggravating victim-impact has of the “this Court reweigh any guidelines authority remaining ag comported witnesses with the set against Cargle. complied gravating mitigat circumstances out court trial with ing Cargle, validity to determine the and there no error. evidence brings Propo death This us to sentence.”95 68 Ochoa contends his six sition that the XIV which proposition teenth that the trial court erred support evidence is insufficient the second failing give stage second instructions aggravating circumstance Ochoa created jury’s that would attention focus on the great per of death to more than risk one culpability individual of each defendant. disagree. son. killed Torres We Specifically, the trial he states court law, killing our case people. two Under given should have in Enmund/Tison98 people satisfy is sufficient to two However, State,99 struction. in Cannon v. aggravating Accordingly, circumstance.96 we this Court found that an in Enmund/Tison find the evidence sufficient to sustain this required stage struction is not in the second aggravating circumstance. of a malice jury murder case where the has during must weigh properly 66 We now the miti been instructed the first gating against remaining aggra stage aiding abetting evidence trial on and the vating degree circumstance and whether elements of determine first malice murder. In stage sustain Ochoa’s death sentence. miti Cannon controls here. In the first trial, gation, youth properly offered his at time of Ochoa’s instructed on crime, record, lack degree criminal his of first malice his elements murder personal history, problems drugs abetting. and on aiding with accordance alcohol, Cannon, showing evidence he func with find that the trial would we court did prison setting, tion in declining give well a structured not err an Enmund/Ti- (Okl.Cr.1995), Cudjo 94. Id. at See P.2d 97. 909 cert. de denied, -U.S. -, (Okl.Cr.1996), nied, -, cert. -U.S. 117 S.Ct. L.Ed.2d (1997) (finding "Ap L.Ed.2d 863 54(1996). S.Ct. pellant's history support does criminal finding aggravating of this circumstance. Al Arizona, 98. See Tison v. 481 U.S. 107 though admittedly Appellant burglarized had (1987); Enmund v. L.Ed.2d Flori- occasions, grocery prior unadjudi- store these da, burglaries appear have cated amounted to thefts.”). nothing petty more than Malone, 876 P.2d at 718. 99. 904 P.2d at 104-05. Hooker, at 1364. adequately mitigating evidence stage of reflected in the second Ochoa’s son instruction abuse trial court not in this case and the did trial. modifying requested Ochoa’s its discretion XVII, Proposition 69 In not instruction. Error did occur. to define argues that the trial court’s refusal XIX, Proposition contends parole of possibility life without aggra- mitigating outweighs the evidence contrary, the trial jury error. To the vating previously have consid- evidence. We the deci actions are consistent with court’s risk this and found that of ered issue warrant this Court.100 Relief is not of sions outweighed person to more than one death ed. mitigating proposition is evidence. This second In another attack on the denied. instructions, argues in jury stage claims in 73 Ochoa raises number of the trial modi- Proposition XVIII that court’s re- twenty-first proposition are which requested instructions on fication of Ochoa’s penalty in death cases and peatedly raised improper. Ochoa’s mitigating evidence was (1) repeatedly denied. These claims are: stage miti- on requested instructions second jury jury failed to inform the instructions twenty-four mitigating gating evidence listed findings mitigation do not have be jury for the to consider in the second factors (2) unanimous;102 mitigating instructions this stage trial. The trial court modified (3) defective;103 failed the trial court were jury provided the with an instruction list and jurors they could consider life life tell containing mitigating The fifteen factors. they aggrava- parole if an without even found the evi- the list because trial court modified (4) circumstance;104 in- weighing ting twenty-four miti- support not all dence did (5) improper;105 were Oklahoma’s structions by requested factors the defendant. gating (6) unconstitutional;106 penalty is death object modifi- counsel to the Defense did findings the second jury’s special of fact in cation. (7) unconstitutional;107 stage trial were per trial court refused to allow evidence on 71 A defendant must be (8) effectiveness;108 court re- present mitigating evi the trial all relevant cost mitted presumption on support plea to instruct the of his for a sentence fused dence (9) life;109 court had the trial denied Ochoa the than death.101 It is clear that Ochoa less allocution;110 prosecuto- present right such opportunity and did indeed an charging rial discretion is unconstitutional.111 mitigating evidence. The court’s instructions Johnson, rejected argument. disagree with 107. The Court has this 928 P.2d at 319. I 100. Duckett, position instructing jury on the Court’s on 919 P.2d at 27. without definition of the sentence life repeatedly parole. We see cases possibility of found that it is not error to 108. The Court has necessary. an is None- where such instruction refuse to allow evidence the cost effectiveness theless, stare I am the doctrine of bound penalty. the death Smallwood deny this decisis to relief on basis. - denied, (Okl.Cr.1995), cert. P.2d --, (1996). 136 L.Ed.2d 330 U.S. Ohio, 438 U.S. 98 S.Ct. 101. Lockett (1978). L.Ed.2d 973 require give The does not courts Court Charm, rejected The Court this claim in Duckett, presumption instruction on the of life. at 773 n. 57. P.2d P.2d at 22. Id. grant require that courts 110. The Court does argument Harjo v. rejected Court 104. The personal opportunity to make a the defendant the (Okl.Cr.1994), cert. 882 P.2d mercy jury. Id. plea of at 20-22. denied, U.S. L.Ed.2d rejected claims on 111. The Court has similar prosecutorial charging discretion. abuse of Duckett, argument rejected Court 105. Hooker, 887 at 1367-68. P.2d at 22. penal- held Oklahoma's death 106.The has Hamilton, ty at 1013. constitutional. (1) youth time of the at the previ- ed: Ochoa’s has been raised Each of these issues (3) (2) record, crime, his rejected by his lack of a criminal penalty cases and ous death (4) drugs history, with personal problems his grant relief again decline to Court. We once (5) alcohol, showing would he and evidence any of these issues. setting, prison function well in a structured XXII, argues Proposition 74 In (6) testimony regarding mental expert his in this ease accumulation of errors that the illness, history and his his mental illness conviction and

warrants reversal of Ochoa’s (7) retardation, his and borderline mental disagree and find that sentence. We reweighing the family’s him. After love for is not sufficient accumulation of errors evidence, death sen- we sustained Ochoa’s grant relief. warranting Finding no error tence. other ¶75 XXIII, modification, Proposition judgment In and sentence County of the death sen is AF- imposition that the District Court Oklahoma constitution. We upon tence him violates the FIRMED. capi application that the of Oklahoma’s

find uncons sentencing

tal to Ochoa is not scheme JOHNSON, J., concurs. titutional.112 V.P.J., STRUBHAR, LUMPKIN ¶76 error, proposition In final LANE, JJ., concur results. modify should argues that this Court power sentence under this Court’s STRUBHAR, Ochoa’s Judge: Presiding Vice independent mandatory sentence conduct an concurs in results. imposition find that the

review.113 We by 1 I in results reason of stare concur passion, was not the result of death sentence my disagreement with decisis. I maintain any arbitrary prejudice or other factor. We majority agree with and continue to modify decline to Ochoa’s sentence. Judge Chapel I as reflected footnote 99. jury informed on the believe that should be REVIEW MANDATORY SENTENCE life definition of the sentence of without jury possibility parole whenever the so O.S.1991, In accordance with for clarification. asks (1) 701.18(C), § must determine whether we imposed of death was under sentence LUMPKIN, Judge: concurs in results. any passion, prejudice, or other influence of by I concur the results reached (2) factor, arbitrary whether the evi- Court, join I in some of the however cannot jury’s finding aggrava- supports dence verbiage unsupported conclusionary used or ting Upon of the rec- circumstances. review statements. ord, say of death we cannot the sentence II, by Proposition imposed jury influenced it’s discussion of because the arbitrary recognize prejudice, any other the Court fails Ochoa’s passion, 701.13(C). O.S.1991, prior § crime contrary access to the scene second factor by aggrava- trial was due to an accommodation The found the existence of two (1) par- continuing recognizes The that third ting threat and State. circumstances: occupied person. one ties the home at that time and had of death to more than risk support Appellant’s investigators insufficient to denied access. We found the evidence recognized have authori- continuing aggravating circum- trial court it did not threat stance, ty parties to direct the third to allow the found the evidence sufficient but investigators into the house. to more than one defense Some- support the risk of death permission reweighed how the was able to secure person. Accordingly, the Court State house to take measurements mitigating aggravating circum- return diagram. agree I mitigating prepare includ- a new While evidence stances. Ochoa’s O.S.1991, 701.13(C). Oklahoma, § Thompson 487 U.S. 113. 21 112. See (1988); Pulley 101 L.Ed.2d 702 Hands, clearly out- penalty ates death but also prudent for the been more it would have weighs presented mitigation. investigators for the evidence to allow defense State in the result reached the new I therefore concur opportunity to confirm measurements, it not error. Court. Appellant’s 3 The Court’s discussion to disre abettor seems

role as an aider and in on that issue

gard our unanimous decision (Okl. State, 914-16

Conover v.

Cr.1997). raised Regretfully, the issue here product “potential ‘time is a of one ” my writing separate in I referred to bombs’ 1998 OK CR 43 928 P.2d in v. Johnson TILLEY, Appellant, (Okl.Cr.1996) Joe Vance Concurring in Re (Lumpkin, J. sult). Conover, set in Using the standard out support the I find the evidence sufficient to Oklahoma, Appellee. STATE The Court should follow verdict in this case. try not to confuse it. jurisprudence our F-96-441. No. ¶ 4 “de novo” review concept The Appeals of Criminal of Oklahoma. Paragraph by at

enunciated the Court jurisprudence. our [Page part is not 591] July fact, sup- the case cited the Court Rehearing Aug. Denied concept, port of Smith (Okl.Cr.1996), does address that However, agree I with the Court’s issue. of how low the regardless

conclusion that is, Appellant present suffi- did not

standard incompetent he was at

cient evidence show

the time of trial. relating facts to the 5 I also find the knowingly Appellant created

aggravator person great to more than one risk of death opinion. in the compelling

more than related co-defendant,

Appellant armed with victims,

firearms, home of the entered the early in the neighborhood,

a residential July front

morning hours kicked in and the

door of the residence was gunned their bedroom.

victims down (6), children, ages

Three six eleven (14) years house. were For-

fourteen

tunately, run into the those children did not

hallway. called 911 and asked One child

help. of her bedroom and looked out She men, she later identified as

saw two one under his

Appellant. stepbrother Her hid He the shots. when he heard later

bed shoot his father as he

testified he saw man only the bed. Not does

watched from under support victims

the murder of the two risk death to the

aggravator, but also the home. This evidence

others who were

relating aggravator only substanti-

Case Details

Case Name: Ochoa v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Jun 30, 1998

Citation: 963 P.2d 583

Docket Number: F-96-339

Court Abbreviation: Okla. Crim. App.