Salazar v. State

tests, administered, of those the results controlled sub- effect alcohol and/or Appellant if the could have had on

stances in- those substances had been found language in Hooks gested by Appellant. Our very clear. As we stated: makes this [Bjecause jury might in need assistance assessing understanding and mental disor in which would render an accused ders sane, testimony routinely expert admit insanity is raised.

ted when the defense When, case, a defendant at as testimony expert on the

tempts to elicit possessed or issue of whether he she crime in requisite intent to commit the question, testimony be exclud such should “[njo Gabus, Here, supra, spe

ed. as knowledge needed to understand cial from these facts and draw conclusions Id., Anyone P.2d at 256. who them.” temper tantrum or a has ever witnessed urge fight, felt an to strike out another attempted explain away a person or bad appreciated have the nature of deed could before, during after the Hooks’ actions “[Wjhere experiences the normal murder: jurors qualifications laymen permit proper conclusions Jfromthe them to draw circumstances, expert facts and conclusions opinions Id. or are inadmissible.” 862 P.2d at 1279. reasons, I 14 For the above concur matter. the decision of the Court SALAZAR, Appellant, Maximo Lee Oklahoma, Appellee. STATE of No. F-96-1496. Appeals Court of of Oklahoma. Criminal Dec. 1998. Rehearing Denied Feb.

317

OPINION

JOHNSON, Judge. tried 1 Maximo Lee Salazar was of First jury and convicted of one count (21 O.S.Supp.1982, Degree Murder 701.7(A)) Degree § and one count of First 1431) (21 O.S.1981,§ in the District Burglary County, of Comanche Case No. CRF- The found the existence 87-460. aggravating and rec- three circumstances1 (10) the murder and ten ommended death for imprisonment burglary. years for Appellant’s affirmed convic- this Court burglary, but vacated tions for murder of death and remanded the case the sentence resentencing.2 2 In a new sentenc- November ing proceeding was conducted before the O.S.Supp. Honorable Allen McCall. See jury again § returned a 701.10a. death, only but found the exis- sentence of aggravating tence of one circumstance —the great knowingly created a risk of defendant person. In death to more than one Salazar State, P.2d this v. 1996 OK CR for a reversed and remanded the case sentencing hearing finding the evidence third aggrava- support to the sole was insufficient ting the sentencer relied. factor on which ¶ sentencing proceeding was 3 A third Hess, Mark Barrett and Steven OK Indi- Allen conducted before the Honorable Division, gent System, Captal Trial Defense 28-31, Finding 1996. McCall on October Norman, Oklahoma, for defendant. aggravating of two circumstances— existence purpose for the of the murder was committed Lawton, Schulte, Attorney, Robert District avoiding preventing a or or lawful arrest Oklahoma, for the state. continuing posed a prosecution; and Salazar Luker, Chief, Capital H. Division William society jury again returned a threat —the Norman, OK, Division, Appeals for Direct Judgment of death. From this and sentence appellant. Sentence, appeals. Salazar ¶ Edmondson, are set out in Attorney 4 The facts of this case General W.A. Drew Salazar, Humes, Oklahoma, in 852 P.2d at 731-32. L. Assistant detail Williams OK, General, summary, thé City, this case involves brutal stab- Attorney Oklahoma bing nine-year-old Jennifer Prill. murder appellee. (1) great occurred when the trial knowingly 2. The Court found error the defendant created a (2) person; punish- of death to more than one risk to instruct the on the court failed purpose of avoid- murder was committed for the option imprisonment of life without ment prosecution; preventing or a lawful arrest or possibility parole. (3) probability of a that the and the existence vio- defendant would commit criminal acts of continuing threat to lence that would constitute a society. statutory supports other which burglarizing 24,1987, was Salazar August On circumstances, may Cache, the case aggravating Oklahoma. Prill residence may in the Salazar and a death verdict be and found be remanded awoke Jennifer n sought. instructed Jennifer living simply, room. Salazar Put when there evi- followed her he bedroom where to her return circumstances aggravating dence in the neck. twice fatally her stabbed reversal, and requires record and error taking ap- Thereafter, the house fled Salazar may wiped and a defendant slate is clean and a eight in cash dollars proximately six to subjected any punishment authorized be subsequently keys. Salazar of car set including by law death. later and a few weeks arrested confessed (footnote omitted). Salazar, 919 P.2d at murder. support in the record to Finding evidence “continuing aggravator and threat” both the I. JEOPARDY DOUBLE aggravator, prosecution” arrest or the “avoid In his second a third the case for Court remanded error, constitutional contends his sentencing proceeding. and his jeopardy against double protections a fair law and process of rights to due acknowledges 7 While Salazar sentencing proceeding have been vio reliable re ruling, he contends the Court’s Court’s ag that all of the maintains lated. Salazar contrary prior deci to our mand decision alleged against him circumstances gravating State, sions Crawford rejected on the resentencing were in the first 627, 643; Cheney v. 1995 OK 840 P.2d Under evidence. grounds of insufficient 74, 83; Perry v. P.2d CR circumstances, his sec asserts these He 535-37. CR OK rights his under resentencing violated ond right to ruling violates his further asserts the Fifth, Amend Eighth and Fourteenth disagree. law. protection of the We equal States Constitution ments of the United application of analysis and Po The Court’s II, 9 and Okla Sections Article Salazar, 1127, represents at 919 P.2d land homa Constitution. position on this issue. current this Court’s discussed, the State al- previously 6 As argument Thus, equal protection Salazar’s aggravating circumstances leged three CR 1990 OK fails. See Stafford jury re- resentencing proceeding. first 738, 740-41, circum- aggravating jected of the three two 113 L.Ed.2d stances, solely on the its verdict and based jeopardy double review of Salazar’s Further per- to more than one “great risk of death judica- by of res is barred the doctrine claim appeal, this Court aggravator. On son” ta. sup- to was insufficient the evidence found determining wheth- aggravator. port this yet for could be remanded

er the matter II. JURY SELECTION sentencing proceeding, this Court another eighth proposition of er 8 In his Supreme Court’s thoroughly addressed ror, court commit contends the trial 147, Arizona, 476 in Poland v. U.S. decision when it refused ex reversible error ted (1986). 1749, L.Ed.2d 123 S.Ct. 90 juror Francois for cause. prospective cuse concluded: dire, juror Francois indicted that During voir or a review- if either the trial court [T]hat life the sentence of not consider she could that, after removal ing court finds Upon further parole. possibility with the factors, of- the residual infirm Salazar, by questioning both State sentencing pro- at the the state fered on nu unequivocally stated juror Francois sentence, ceeding support a death will not consider all that she could merous occasions acquitted of defendant has been then the stat options. further punishment She three jeopardy precludes penalty and death one predisposed that she was not ed sentencing proceedings seek- any further Thereafter, counsel defense However, punishment. if there ing a death verdict. passed juror morning Francois for cause.3 Under session. The trial court found that circumstances, these this pattern excluding issue has not been no minorities had been properly preserved appellate for review. prosecution shown. He further found the Moreover, Salazar has failed to demonstrate had articulated “valid reasons” for the dis- that the trial court abused its discretion juror missal of Gilder. jury

when it refused to excuse Francois for ¶ 11 There will seldom be much evi State, 123, cause. See Lewis v. 1978 OK CR bearing dence on the issue of whether the 81, 586 P.2d prosecutor’s explanation race-neutral for a peremptory argues challenged ninth should 9 Salazar his be believed. Neill, proposition prosecutor 896 P.2d of error that at 547. The best evi sufficiently failed to a neutral dence often will be the demonstrate demeanor of the attorney peremptory challenge against reason for his who challenge. exercises “[Ejvaluation minority juror, Eric prosecutor’s Gilder. See Batson of the state of 1712, Kentucky, credibility 476 U.S. mind on S.Ct. based demeanor and lies ” (1986). claim, L.Ed.2d 69 ‘peculiarly judge’s province.’ To assert Batson within a trial Neill, primia a defendant must make a facie show 896 P.2d at 547 quoting Hernandez v. York, prosecutor peremptory that the exercised New 500 U.S. challenges 1869, 114 (1991). on the basis of race. Neill v. L.Ed.2d “The trial 537, 546, 1994 OK CR 896 P.2d discriminatory court’s decision on the issue of denied, 1080, 116 791, 133 cert. 516 U.S. S.Ct. intent will not be overturned unless we are (1996). L.Ed.2d requisite After this convinced that clearly the determination is made, showing has been the burden shifts to erroneous.” Id. Salazar has failed to demon prosecutor to articulate a race neutral strate ruling erroneously the trial court’s explanation Thus, striking related to the allegation case made. of error is de juror Neill, question. 896 P.2d at 546. nied. The trial court must then determine whether ¶ 12 In his tenth of er prov the defendant has carried his burden of ror, jury Salazar submits he was denied a ing purposeful discrimination. Id. composed aof fair cross section of the com response juror 10 In Gilder’s remov- munity operation of the because of 38 O.S. jury al panel, from the defense counsel en- 1991, 28, § persons age which allows over the objection: following tered the seventy opt out of service. This Honor, Your the State has used two of it’s rejected consistently argu Court has (sic) challenges three to excuse minorities ment. See Le v. 1997 OK CR panel, on only recog- there are three — 535, 545-46, denied, U.S. —, cert. nizable allege ap- minorities. that We it (1998); S.Ct. L.Ed.2d 702 pears pattern excusing to be a minori- Bryan jury panel ties from the and this is a — 338, 365, —, violation—in violation of Mr. Salazar’s L.Ed.2d 299 rights.... provide any compelling has failed to reason prosecutor responded The to defense coun- prior for this Court to revisit its decisions. allegations by sel’s explaining why first he proposition This of error fails. juror had jury. removed Hines from the He explained then that he had decided to remove III. EVIDENCE juror Gilder wearing gold because he was “a ¶ ear,” earring in approximately tab each was 13 propo- Salazar contends his fourth Salazar, age the same as sleep- and had been sition of error that his statements made to 4, in the during police September back of the courtroom the on 6 of and 8 1987 were ed, 3. Some confusion later arose as to whether de- "Based on the Court’s observations the of challenge answers, fense counsel had withdrawn his for juror totality and the of her I feel she result, given cause. As a defense counsel was an fairly punishment op- can consider all three opportunity challenge. to re-raise his The trial tions.” challenge. court denied counsel's The court stat-

323 ¶ product Sep the of 16 We further they as were not find Salazar’s inadmissible properly tember admitted 4th statement knowing intelligent and waiver. While he a sentencing present hearing. in the Salazar acknowledges vol- Court addressed the September did not confess crimes on and September of his 6th 8th con- untariness 4,1987. Rather, spoke police he to the about 852 P.2d at 733- in Salazar v. fessions alleged surrounding the the circumstances 34, did asserts the Court’s decision Salazar is theft of his car. Salazar’s sole contention sufficiently address whether the State not September that his 4th inad statement was and he was able understand demonstrated missible because of his low intelli borderline intelligently rights waive knowingly and his gence thorough Upon and retardation. a intelligence spite of his borderline low and record, review find of the current we Sala disagree. We retardation. prod zar’s 4th the September statement was ¶ original appeal of 14 In his his knowing intelligent uct of a and waiver. See conviction, argued age “that his Harjo 1994 OK CR interrogators’ I.Q., tech- combined with the denied, 1067, 1071, cert. U.S. stress, niques his attendant rendered (1995). S.Ct. 131 L.Ed.2d 1007 This [September inadmissi- 1997] confession proposition of error is denied. 4 Salazar, P.2d at 733. After re- ble.” In his fifth of er (i.e. viewing characteristics his Salazar’s ror, court erred Salazar submits trial youth capabilities) and mental and the details post-mortem photo allowing into evidence interrogation, the Court found the victim, graphs photo of the crime scene proving met a had its burden State graphs report. and the medical examiner’s that con- preponderance of the evidence 5, 6, specifically He attacks State’s Exhibits voluntarily. Id There- fession was obtained 7, 8, 9, 9a, 11, Except for and 17. after, trial the Court addressed whether exhibit 16 which intro number was never failing “to investi- counsel ineffective evidence, timely duced a into Salazar entered adequately appel- gate and utilize objection challenged of the ex to each now to attack ad- lant’s 'mental retardation’ hibits. missibility of Id. his confessions.” added). photograph Exhibit 5 (emphasis found State’s The Court bloody prove the victim’s bed. Exhibits 15 and failed “to would had confessions body photographs upper are of the present- victim’s have been excluded had trial counsel showing Sala- alleged mental the stab wounds to her neck. ed evidence retarda- argues improp- photographs zar these were Id. tion.” (1) erly they were not admitted because: 701.10a(4) corpus spe prove needed delicti of the 15 Title Section offense; (2) cifically provides they prove were not exhibits and a tran relevant “[a]U circumstances; script testimony aggravating of all and other evidence (3) they merely prior trial introduced to inflame properly admitted in the and sen were jury. disagree. challenged pho- tencing shall be in the sen admissible new We they tographs tencing proceeding_” probative Hum were relevant and as also light shed the circum- phreys v. corroborated and on — —, surrounding In a resen- stances the murder. tencing jury must be proceeding, 141 L.Ed.2d 702 the new Conse already regarding been the circumstances of quently, issue has resolved. educated pun- previously crime in to make reasoned This Court determined that Sala order well case; September instant zar’s 6th and 8th confessions ishment determination. during the were rele- properly the trial. the of murder were admitted first circumstances Thus, posed “continuing to a properly these were admit vant whether Salazar confessions society. present sentencing proceeding. in threat” See Snow v. ted to interrogation. directly September 4. Salazar did not attack the first confession, product it was the 8th but claimed regarding remaining OK CR the crime. The 513 U.S. 130 L.Ed.2d items were relevant to the determination of (1995) (callous nature of a crime is posed “continuing whether Salazar a threat” relevant to the determination of whether a society. capital poses continuing defendant threat ¶ Finally, asserts society). report State’s Exhibit a motor vehicle theft

¶ LaFrance, Larry filled out copy Officer was 19 State’s Exhibit 17 is a improperly admitted into report. evidence. He con medical examiner’s Salazar as tends this evidence was cumulative and report serts the vio admission of this was error O.S.1991, (c) 2803(8)(a), (b), § lated 12 it as was cumulative to Dr. Robert Dix’s (d). agree. testimony. investigative We Exhibit 9 is an report He further maintains the report prepared by law prejudicial probative was more than enforcement and because gynecological public excep does not fall within the drawing it contained a records which hearsay O.S.1991, tion to the rule. light bruising illustrated areas of around See 2803(8). However, § review, Upon victim’s we labia. we find er find this error no beyond ror. harmless in reasonable doubt report merely case as the was cumulative to ¶ briefly 20 Dr. Dix Robert testified dur testimony regarding Officer LaFranee’s sentencing proceeding regarding report. theft “very bruising faint to one side of the labia.” 23 Salazar’s fifth of error is Dr. Dix report stated the medical that the denied. “faint margin crescentic discoloration at the majora appear[ed]

of each of the labia ... IY. VICTIM IMPACT EVIDENCE pigmentation.” be a report natural The fur hymen ther states that the victim’s was in ¶ 24 Salazar maintains in his third presented tact. No evidence was proposition of error that the use of victim sexual Consequently, contact this case. impact sentencing proceeding evidence at his report we find the medical examiner’s did not rights violated Eighth his under the improperly jury.5 or mislead confuse the See Fourteenth Amendments of the United O.S.1991, § Although portions 2403. II, States Constitution and Article Sections 7 report were cumulative to the medical and 9 of the Oklahoma Constitution. Salazar testimony, examiner’s Salazar has failed to first contends that much of impact the victim prejudiced show how deprived he was or of a statutory guidelines. evidence fell outside the O.S.1991, right. substantial arguably While impact some of the victim 2104(A). .S.1991, § § See also 20 O 3001.1. testimony was admissible to show the emo Any report error in the admission of this was psychological tional and impact of the homi clearly harmless. family, on cide and to show a brief deceased, glimpse of the life of the challenges, 21 Salazar next on probative asserts the value of this evidence grounds relevancy, the introduction of Mr. outweighed by prejudicial its effect. (State’s keys 6), Prill’s Exhibit the knife § (State’s O.S.Supp.1993, pro- Title 7), found his car Exhibit the knife vides: (State’s 8), sheath found his car Exhibit (State’s 9A) gun found in his car Exhibit impact “Victim statements” means infor- photograph financial,

and a emotional, the stolen items taken mation about the psy- (State’s from the Huddleston chological, physical residence Ex effects of a violent 11). keys hibit of Mr. admission Prill’s crime on each victim and members of their explained initially how Salazar was family, person designated by connected immediate or Although guilt the murder. by family Salazar’s or victim members of the proceeding, not at issue in this this evidence victim and includes information about the victim, resentencing was relevant to educate the surrounding circumstances fact, report unexplained medical examiner’s would arisen due to Dr. Dix’s brief and may testimony have resolved regarding genital bruising. confusion which have

325 Ledbetter, at This evidence is 933 P.2d 891. crime, in the crime was which the manner of simple and concise statement opinion of a limited to a victim’s and the perpetrated, sentence, amplifi- without recommended the sentence. recommended cation. Id. 77, P.2d CR 1995 OK Cargle 831, denied, 828, 117 S.Ct. 806, 519 U.S. cert. ¶ given opportunity the 28 When (1996), 100, this Court con L.Ed.2d 54 recommendation, Mr. Prill make a sentence impact evidence should “victim that cluded stated, “I remorse to simply don’t feel unique characteristic to those be restricted carry I we should defendant. feel wards the died, the who has the individual which define Ms. Prill stat with the death sentence.” on circum prospective contemporaneous and fitting ed, other “I don’t see that there’s death, and how surrounding that stances death, The death sentence. end than the financially, emo have circumstances those judge and of sentence without benefit death im physically and tionally, psychologically, I freely my child. jury gave was what he immediate of the victim’s pacted on members he can take from her and be not see that do family.” Applying the keep his own.” entitled to victim, case, ¶26 im present In the nothing improper in analysis, we find above through vic was offered pact evidence recommendation. Mr. Prill’s brief sentence Gary Linda Prill. Salazar parents, and tim’s penalty recom Ms. Prill’s death We do find Prills’ tes challenges portions several However, amplified. we was over mendation portions of timony. glance, At first some to the did not contribute sen find this error testimony appear problematic. challenged The case in this case. State’s tence rendered testimony However, impact the victim when Moreover, strong. aggravation context, entirety it is and in read its on properly instructed trial court testimony occurred. clear no error impact Conse victim evidence. the use of death emo how the victim’s demonstrated allegation of error fails. quently, this physically af tionally, psychologically finally victim submits 29 Salazar family. See victim’s immediate fected the irrelevant, operates as an impact evidence Moreover, the testi Cargle, 909 P.2d at 828. nonstatutory “superaggravator” improper, jury with a provided the mony properly every capital always present be that will personal char glimpse” the victim’s “quick negates argues such case. Salazar State, 1996 Parker v. OK acteristics. proce penalty narrowing function death 989, denied, cert. 917 P.2d CR provide. This issue required to are dures L.Ed.2d 721 U.S. rejected Cargle, 909 was addressed (1997) (“[Vjictim relating to impact evidence State, 1997 Mollett v. See also P.2d of the victim personal characteristics 12-13, P.2d CR OK impact of the crime on emotional — —, family consideration is a relevant victim’s persuaded not are We L.Ed.2d juries.”). sentencing capital Oklahoma’s revisit this issue. er further asserts 27 Salazar Ms. Prill were when Mr. and ror occurred MISCONDUCT PROSECUTORIAL V. re recommendation permitted to make a proposition of In his seventh In Ledbetter v. punishment. garding specific allega error, 880, 890-91, raises several The ma misconduct. prosecutorial tions impact recommenda that victim Court held not challenged comments were jority are admissible.6 a death sentence tions for Thus, as to these objected at trial. timely However, evi that “this cautioned plain comments, all but has waived heightened ... with a will be viewed dence State, 1990 OK CR Hunt v. probative- error. See scrutiny apply the degree as we 1368; Quilliams analysis.” value-versus-prejudicial-effect this issue. persuaded to revisit We are not issue. acknowledges decision in this Court’s 6. Salazar Ledbetter, requests that we reexamine but he 55, (1986). 990, 992-93; CR Consequently, OK 779 P.2d Harris v. L.Ed.2d 1 prosecu- a State, 34, 1359, 1989 OK CR 777 P.2d very tor responding must be cautious when review, Upon plain careful we find no error argument to a defendant’s that he does not occurred. continuing society constitute a threat to be- prisoner cause he is a model and does not ¶ 31 As to the remainder of this pose prison population. a threat to the allegation, prosecu Salazar first contends the any argument State must avoid that a defen- improperly tor upon province encroached the good prison dant’s behavior is irrelevant jury by telling jury they of the the that had a capital Moreover, sentencing proceeding. duty to return a sentence of death. Salazar improperly the State must itself avoid limit- complains prosecutor appealed the to the ing “society” by informing jury the term “strengths” jury on the to work with those that the any particular term is not limited to jurors support did penalty. who not the death segment population. of the argument objection This was met with an which was overruled trial court. Fol ¶34 Upon review of the instant lowing objection, prosecutor Salazar’s case, prosecutor we find the improperly did continued: attempt “society” limit the term as used jurors. with

Work those Go over the evi- “continuing aggravating threat” circum fitting dence However, and work to a end. And stance. error in regard this case, fitting that end is the death jury’s was harmless as it did not affect the penalty. prosecutor verdict. The argued never Sala good prison zar’s conduct was not relevant context, entirety When read in its and in mitigation Moreover, jury evidence. prosecutor merely asking stronger properly instructed “continuing on the ju members to assist the other aggravating circumstance, threat” and the they rors as reviewed the evidence. The supporting aggravating circum prosecutor making proper was also recom stance was more than sufficient. punishment. mendation as to Paxton v. See State, 59, 1309, 1330, 1993 OK CR 867 P.2d Finally, Salazar contends his denied, 886, 227, cert. 513 U.S. 115 S.Ct. trial counsel was failing ineffective for (1994). L.Ed.2d 153 object challenged to the an comments. For ¶ 32 Salazar submits next that the ineffective assistance trial counsel claim to prosecutor by arguing misstated the law that (1) be valid a defendant “must show counsel’s good Salazar’s prison conduct in was not representation objective fell an below stan relevant to whether he constituted a continu (2) dard of reasonableness and the reason society. threat During closing argu that, probability errors, able but counsel’s ments, scope Salazar limited the of the term the results of proceedings would have “society” prison society. to mean During the Boyd been different.” 1996 OK CR closing argument, State’s final prosecutor 922, 925, denied, 915 P.2d cert. 519 U.S. responded by limiting scope the term’s to the (1996). 117 S.Ct. 136 L.Ed.2d 142 community large if Salazar were released. See Washington, also Strickland v. 466 U.S. 104 S.Ct. 80 L.Ed.2d 674 “society” 33 The term as used Salazar has failed to demonstrate that “continuing aggravating threat” cir prejudice resulted. See Newsted v. any segment cumstance is not limited to 908 P.2d population. Berget 1991 OK (“[W]hen a claim of ineffective assistance of 364, 374, CR disposed counsel can through be lack of 113 S.Ct. 121 L.Ed.2d 79 prejudice this Court need not determine (1992). Therefore, parties attempted both performance whether counsel’s was defi improperly scope limit the of the term “soci cient.”). note, however, ety.” We that evidence of good prison Thus, mitigation behavior is relevant having reviewed all the chal- Carolina, Skipper comments, evidence. See lenged v. South individually both and as a 1, 5, 1669, 1671, whole, 476 U.S. grounds we find no for either reversal sentence, jury may regarding have the had the sen- of Salazar’s death or modification parole. tence without of life of error proposition This is denied.

¶ jury may Although 39 consider possibility parole the or of when absence VI. JURY INSTRUCTIONS determining impose what sentence to in a proposition In his first of er 37 case, capital judge a trial not murder ror, court commit Salazar submits the trial required parole explain pro the Oklahoma specifical by refusing to error ted reversible Mollett, jury. cess to a See 939 P.2d at 11. good ly retardation behavior list mental and State, 44, Mayes See 1994 OK 887 also CR prison mitigating For as circumstances. 1288, 1318, denied, 1194, P.2d cert. U.S. State, in Smith v. 1996 OK the reasons stated 1260, (1995); L.Ed.2d 140 S.Ct. — 521, 534, denied, 50, cert. CR 932 P.2d 68, McCracken v. 2522, U.S. —, 138 L.Ed.2d 1023 S.Ct. denied, 334, 859, 323, P.2d cert. (1997),7 allegation error fails. The this of (1995). “[T]he 133 L.Ed.2d 108 mitigating six factors for the trial court listed sufficiently concept parole is to en clear jury’s Salazar’s consideration. “mental/emo juror able rational to understand it with specifically listed as a tional disturbance” explaining Mayes, out it further.” jury mitigating was also circumstance. Consequently, find at we no error.8 1318. mitigating it could other instructed that find ¶40 proposition In his twelfth and consider those cir circumstances existed error, submits the trial court issued Moreover, well. cumstances as defense contradictory on instructions whether the argued mitigating the value of counsel Sala jury sympathy for consider the defen- could good alleged zar’s mental retardation and deciding impose dant when whether arguments. during closing prison behavior Jury In Num- death sentence. Instruction jury, ber court “You instructed contends his sixth 38 Salazar sentiment, sympathy, preju- should not let or trial proposition of error that court erred deliberations_” your dice Instruc- enter jury it further on when failed to instruct the stated, “[E]xcept in this tion that Number parole. During meaning of life without you part may sympathy consider of the trial deliberations, jury note sent out a to the deciding or sentiment for the defendant in stating: Is trial court “Life without Parole. impose whether to the death sentence.” Sa- a person there a chance or other reasons may lazar have con- contends instructions get trial may of Prison?” The court out jury precluded and them from con- fused the brought jurors back into courtroom sympathy determining if the sidering when responded, “The cannot answer death be invoked. sentence should already that than what is in the further repeatedly rejected 41 This Court has instructions. You have all the instructions case, an you you’ll stage this in dual cases which give that I can this issue “anti-sympathy” has incor your solely on instruction been have make decision based penalty stage you porated instructions. point.” at this Salazar sub into what have Ledbetter, 899; Brown v. See 933 P.2d response mits the trial court’s rendered the 56, 73, CR 871 P.2d cert. sentencing proceeding unreliable. 1994 OK Without evidence, denied, 1003, 115 S.Ct. additional instructions or he con 513 U.S. (1994); explain could or L.Ed.2d 423 Fox 1989 OK tends defense not correct any misunderstanding misapprehensions 494 U.S. or CR jury Hearing on Information Considered 7. The Court in Smith found the was not Extraneous precluded considering mitigating effect by Jury pursuant from Trial” and Motion for New dysfunction 2.1(A)(3), and borderline men- Smith's brain the Oklahoma Court Rule Rules tal as the "it retardation instructed (1995) Appeals, App. Title Ch. Criminal what as could determine it wanted to consider O.S.1991, 2606(B). disposi- § Given the and 12 mitigating evidence.” issue, new trial Salazar’s motion for tion of evidentiary hearing de- request for an are error, conjunction with nied. Evidentiary “Application an filed 108 L.Ed.2d 777 stance to this ease. Salazar contends this Although single the instant case involves interpretation aggravator Court’s of this has stage sentencing proceeding, we find the un- subjective been so and undefined that aas derlying prior rejec- rationale of the Court’s applicable jury result the instructions are not applicable tions of this issue to this case. jury’s to narrow sufficient discretion Fox, 779 P.2d at 574-75. objective criteria. This issue is well settled State, by stare decisis. Toles v. ¶42 See 1997 OK First, jury the specifically in- — 45, 180, 192, denied, CR cert. “[mjitigating structed that circumstances are ——, U.S. 118 S.Ct. 141 L.Ed.2d 746 which, fairness, sympathy, those in and mer- (1998); State, Al-Mosawi v. 1996 OK CR cy, may degree extenuate or reduce the 285, cert. — denied, U.S.-, 929 P.2d culpability moral or blame. The determina- 145, 139 (1997); 118 S.Ct. L.Ed.2d 92 Malone tion of mitigating what circumstances are is State, v. 1994 OK CR 876 P.2d 717- you to resolve under the facts and cir- Second, cumstances of this case.” the court potentially mitigating listed six factors for ¶45 Salazar further maintains the trial jury’s the consideration. Some of these fac- regarding aggravator court’s instructions this encompassed aspects tors of Salazar which require failed prove beyond the State to a appreciated could not be unless an element of reasonable doubt that he continuing was a sympathy Finally, jury was allowed. the Contrary assertion, threat. Jury to this In- instructed, specifically you “Even if find that specifically struction No. 15 instructed the aggravating the outweigh circumstances jury that prove beyond the State must a mitigating circumstances, you may impose a reasonable aggra- doubt existence of this imprisonment impris- sentence for life or contention, however, vator. Salazar’s centers onment for parole.” life without Based on prong on the second of the instruction which instructions, these jury a reasonable would required prove “probability” the State to a clearly understand it could sympa- consider that pose Salazar would continue to a threat thy and sentiment when determining wheth- society in the future. Salazar utilizes this impose er to penalty of death. The language support the true crux of his fairly instructions accurately as whole and allegation, “continuing that ag- threat” applicable stated the law. Cleary See gravating circumstance unconstitutionally is State, 736, 745, 1997 OK CR 942 P.2d vague. discussed, previously As this Court -— denied, U.S.-, cert. 118 S.Ct. consistently has “continuing found that (1998). 140 L.Ed.2d 679 allegation This aggravator threat” vague is neither nor over- error fails. Toles, broad. See 947 P.2d at 192. We find ¶ 43 Salazar asserts his thir no reason to revisit this issue. proposition

teenth of error that the instruc given jury tions regarding to the mitigating regard 46 With to the “continu permissive circumstances were worded in ing aggravator, threat” finally con mandatory Thus, rather language. than he unadjudicated tends the use of crimes submits completely could ig have support aggravating of this circumstance vio mitigating nored they if circumstances chose process lated due prohibition against to do so. We repeatedly rejected have this cruel and punishments. unusual support In Mollett, argument. same 939 P.2d at 14- aggravator, of this presented the State evi 15; Ledbetter, 899; 933 P.2d at Pickens v. dence of a Lawton burgla convenience store 328, 339, 1993 OK CR 850 P.2d ry burglary and the of the Huddleston resi denied, 1100, 114 942, 127 cert. 510 U.S. upheld dence. This Court has the use of L.Ed.2d 232 again. We do so here unadjudicated support crimes evidence to “continuing aggravating threat” circum VII. GENERAL SENTENCING ISSUES stance. See Cannon v. ¶44 ¶28, 5, In proposition 838, 853; his eleventh Hooper 961 P.2d eiTor, challenges application 1090, 1107, of 1997 OK CR — “continuing aggravating threat” -, circum- (1998). Moreover, factually appropriate. We substantiated we find the L.Ed.2d 722 death was not not further find sentence of in this case was use passion, prej- imposed under the influence of unconstitutional. arbitrary factor. udice or other his four 47 Salazar submits Therefore, finding error no warrant- that his sentence error teenth modification, Judgment or reversal as it constitutes be vacated of death should of the District Court of Co- Sentence punishment. support of cruel and unusual County AFFIRMED. manche contention, there is Salazar contends against the exe growing national consensus P.J., mentally CHAPEL, lists retarded. He in result.

cution of the concurs pro which enacted laws states have eleven STRUBHAR, V.P.J., concurs result. restricting hibiting the execution of the or persuaded by not This Court is retarded.9 LUMPKIN, J., specially concurs. argument Penry this at time. J., LANE, in result. 106 concurs Lynaugh, 492 U.S. (1989), Supreme Court held L.Ed.2d 256 STRUBHAR, Presiding Judge: Vice mentally was of the retarded

that execution concurs in results. Eighth Amend per a violation of the not se ¶ Legisla only is best left to 1 in for reason of ment. This issue I concur results I to that a ture. stare decisis. continue believe provide meaningful an- trial court should ¶ error, proposition final of Sa 48 In his jury they questions swer to from when to consider cumula lazar asks this Court parole. meaning ask of life about without alleged grant and errors tive effect of not, do in if the individual errors relief even LUMPKIN, Judge, specially concur. themselves, justify a few such action. While during irregularities this sentenc did occur in join 1 in I the Court’s decision ing proceeding, together, even considered case to make a comment on two and write egregious or numer were not so these errors issues. a fair as have denied Salazar sentenc ous XIV, First, Proposition of Error 2 as trial. See Smith OK CR correctly “that same reasons I stated Ledbetter v. (Okl.Cr.1997).

1998 OK 74CR Stephen Eugene HANES, Appellant, Oklahoma, Appellee. STATE of

No. M-97-1401. Appeals of Criminal of Oklahoma.

Dec. 1998. Dissenting Opinion Feb. 1999. As Corrected Feb. 1999. Rehearing Denied March in its brief notes State — 521, 538, U.S. argument pro- in has failed his Defendant —, L.Ed.2d 1023 S.Ct. this Court or the vide caselaw of citations is This of error denied. in Supreme support of United States his that the execution of a retard- contention VIII. MANDATORY SENTENCE person per of ed is a se violation Oklahoma REVIEW 60-61). (State’s law.” brief at or federal ¶49 In with 21 O.S. accordance 3.5(C)(5), Rule The Oklahoma Court Rules of (1) 701.13(C), 1991, § we must determine 18, App. Appeals, Title Ch. Criminal of (1998), im death whether sentence of was Salazar’s present “Failure to relevant provides passion, preju of posed under the influence require- authority compliance with these (2) factor; dice, arbitrary or other and being result in the issue forfeited ments will jury’s supports the whether the evidence omitted)”. (citations It also appeal on should finding as enu aggravating circumstances issue the record reveals the be noted O.S.1991,§ 701.12. merated in is a Appellant not is retarded whether or disputed appears It an evaluation re- fact. careful and 50 After consideration I.Q. an Appellant has supports ag- 1988 indicated which view of the evidence intelligence, had circumstances, was low but normal well as the evi- gravating as damage. neurological brain no may mitigating, indication which be considered dence 61). (State’s Appellant argues Pg. at brief of death was this Court finds sentence Mexico, York, Arkansas, Colorado, Washing- New Tennessee New include: 9. These states Indiana, Kansas, Kentucky, Maryland, Georgia, ton. functioning he at retarded level of intelligence at the (Ap- time of offense. 93) pellant’s Pg. (Appellant’s brief at reply 15). Pg. brief verdict of supported the evidence this case. addition, 113 In it should be noted the criteria set out in v. Washington, Strickland U.S. S.Ct. 80 L.Ed.2d 674 (1984),for evaluating effectiveness of counsel been explained has further Lockhart v. Fretwell, (1993). Applying L.Ed.2d 180 the Lockhart standard, the record is void trial rendered unfair the verdict suspect rendered or unreliable. LANE, J., concurs in results. ¶ 1 I concur in results because of the impact treatment of victim evidence for the

Case Details

Case Name: Salazar v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Dec 30, 1998

Citation: 973 P.2d 315

Docket Number: F-96-1496

Court Abbreviation: Okla. Crim. App.