Torres v. States

OPALA, Justiсe, judge’s concurring for a removal the court on the in result. legislative Judiciary. question The is one of ¶ Assuming the subsection in- intent. against petitioner, O.S.Supp. voked this ¶8 legislative “The intent behind 1404(B)5, § imposes disqualification a statute is to be ascertained from the whole upon judicial candidates for a office rather light general purpose act in and ob constituting merely ground than for ject.” Pump Brewington, TRW/Reda breaeh-of-discipline proceedings before the (Okla.1992). plain A unam Judiciary, provision the critical biguous statute will be “accorded the mean solely that addresses itself to nonelected ing expressed by language used.” judges inapplicable is to be declared to an ¶ language 9 The in section 1404 used appointed municipal judge whose race for provides grounds for removal of “[additional office, by special unlike that judge, does not judicial pro- officer” in addition to those [a] adversely professional harmony affect VII-A, vided article section of the Okla- discipline among judges. courthouse Main- explicitly provides homa Constitution. It taining harmony discipline in the court- the statute is to be enforced house goal is the intended of the in- Judiciary. qualifications Court on the No for 1404(B)5 provision §in voked and the sole candidacy appear in the text of the statute. prompted legislature concern that to en- Legislature 10 The could have created protection. judiciary act the law’s bears qualification judicial candidacy. another for responsibility constitutional guard against However, language of section 1404 and application statutory overbroad restric- penalty violating the statute demon- upon qualified tions individual’s freedom to Legislature’s provide strate the intent to public seek a office. Judiciary Court on the with an additional ground judge’s for a removal. The statute is WILSON, JJ., ALMA completely SIMMS and qualifications filing silent as to public as a candidate for office. absent.

¶ 11 The Board’s construction of section provision

1404would render the enforcement meaningless.

in the statute The Court on Judiciary judicial would never remove a simultaneously appointive

officer for holding challenging

office and an incumbent District

Judge previ- because the Board would have ously candidacy. disallowed the “This Court 1998 OK CR will not Legislature assume that the has done TORRES, Appellant, Osbaldo A. a vain and useless act. Hill v. Board of Education, (Okla.1997). ¶ 12 apply Section 1404 does not to the Oklahoma, Appellee. The STATE of so, controversy.

instant Because this is Court need not address the Board’s construc- No. F-96-350. hereby tion of that statute. The Board is place commanded to Petitioners name on the Appeals Court of Criminal of Oklahoma. Judge, ballot for District Seventh Judicial District, Office June Rehearing Aug. Denied ASSUMED; ORIGINAL JURISDICTION WRIT OF TO MANDAMUS ISSUED

RESPONDENT STATE ELECTION

BOARD. KAUGER, V.C.J., C.J., SUMMERS, HODGES, LAVENDER, HARGRAVE WATT, JJ., concur. Fore, Bethany, Appellant

Sharon trial. Drummond,

James A. Sandra Mulhair Cin- namon, Division, Capital Appeals Direct Oklahoma Indigent System, Defense Nor- man, Appellant appeal. for on Macy, Attorney, Robert District Susan Caswell, Attorney, Assistant District Okla- City, Appellee homa for at trial. Edmondson, General, Attorney W.A. Drew Humes, Attorney William L. Assistant Gen- eral, Appellee appeal. for CHAPEL, Presiding Judge.

¶ 1 jointly A. Torres was Osbaldo triеd with George jury in Ochoa Oklahoma Court, County District Case No. CF-93- jury The convicted Torres of two Degree counts of First Murder with Malice O.S.1991, Aforethought, in of 21 violation 701.7, § Degree and one count of First Bur- O.S.1991, glary, § in violation of 1431.1 capital At the sentencing conclusion of phase jury of the found the exis- (1) aggravating tence of two circumstances: probability there that Torres existed would commit criminal acts of violence that continuing would constitute a threat to soci- (2) ety,2 knowingly and created great person.3 more risk death to than one jury The recommended Torres be sentenced twenty death for both murders and to years imprisonment burglary.4 The Hon- O.S.1991, 701.12(2). § 1. Ochoa was also of two counts of first convicted degree burglary. malice murder See Ochoa OK CR Ochoa was also sentenced death for both 1998). (20) years twenty imprisonment murders and to burglary. O.S.1991, 701.12(7). § 2. 21 pants. witness also testified Another L. sentenced orable Charles Owens parked car at the his another man appealed conviction Ochoa and accordingly. Torres This witness testified friend’s house. sentence this Court. The car. wit- Ochoa was driver Torres as the man with ness also identified Facts Ochoa, although was inconsis- she somewhat ¶2 During early morning hours of identification, in stated the tent her she 12, 1993, Morales July Francisco passenger wearing a white t-shirt. wife, Yanez, shot and killed Maria were City Oklahoma home. the bedroom their jury convicted Ochoa After gunfire daughter Yanez’s The sound woke counts, proceeded Torres on all case Christina, yeаrs old the sum- who was phase The capital sentencing of trial. called and told mer of 1993. Christina posed continuing argued State step-fa- her operator believed she society threat to based the circumstances Morales, ther, firing gun. may have been murders, membership in the of the Torres’ telephone, hanging up the she looked After Locos, unadju- gang, a local and an Southside light A was on out her bedroom door. Torres was burglary dicated committed when room; saw two men. One living Christina juvenile. a risk of To show Torres created wearing a white t-shirt and man person, than one the State death more wearing a black t-shirt. man was other offered victims and the death in the t-shirt stated the man black Christina at the presence three children the home hand, something but she had in his presented The time of murders. defense initially denied know what was. Christina mitigation personal history and men, knowing eventually but identi- the two jury pleas mercy family. from his man in the black t-shirt fied Ochoa cir- aggravating found of both the existence in the t-shirt. Torres as the man white and weighing aggravating After the cumstances. evidence, imposed jury mitigating and the shooting also f 3 The awakened penalty. the death Francisco, step-brother, who was Christina’s years summer of 1993. old the eleven saw man in the black t-shirt Francisco the Transcript Mistrial identify not the his father. He could shoot ¶ originally tried 7 This case was gunman. jury when the was unable October 1995 and responded police quickly 4 The innocence, guilt the to reach verdict on a en route to the Christina’s сall. While a mistrial. Torres did not court declared home, Coats Officer arrested

Yanez/Morales transcript request mistrial be transcribed the Ochoa, walking togeth- were Torres and who At of before trial. the conclusion the second short distance from the homicide. The er a trial, Torres’ trial counsel filed a the second nervous, sweating and and Coats men were Appeal Designation a Notice of Intent clothing on the of he observed blood claimed Designation of The of Record did Record. the Subsequent the men. tests revealed re not the mistrial and the court mention of Torres’ clothes. presence blood on filing porter it. did not transcribe Prior brief, ¶5 shootings, appeal appellate his counsel Shortly the Torres before report unsuccessfully tried to have the court parked car at a friend’s house. and Ochoa a argues a er transcribe the mistrial.5 Torres A one of the men take witness observed process appellate that in the put car and it in error occurred gun from the trunk of the transcription a of because not receive pants. gun was different from the he did However, the Torres the mistrial. reason in the The witness stat- gun used murders. transcription of the mistrial did not receive a of the was Ochoa. She could not ed one men this man, comply failed to with identify asserted the oth- is because he but other transcription. seeking put gun in his Court’s rules er man —and not Ochoa— 0-96-839, (Okl.Cr.) 0-96-839, Hodgen, May Hodgen, 1997 Order Nov. 5. See Torres (Not Publication). Publication); (Okl.Cr.) (Nоt for Order for Torres appeal only specific, that appeal, 8 On Torres under limited circum- First, in- language Designation of the of Record party may supplement stances. transcript the mistrial and that cluded appellate by appears record motion “when reporter and the District court Court should timely from the record an item designat- part mistrial have assured of ed to be included in the record has been appeal. the record on A review of record provision apply excluded.”8 This does not request clear trial makes counsel did not trial counsel did not include the transcription of purposes the mistrial for designation mistrial in her of record and page of appeal. of On 3 of the Notice Intent appellate counsel file written re- Appeal, counsel indicated that the court quest a supplementation of record reporter transcrip- be should reimbursed thirty days appointment. within of jury February tion of the trial held Second, 3.11(B)(2) provides Rule sentencing hearing held March pertinent part: anywhere no 1996. There is mention mistrial. Attached to the Notice of Intent to party when a files a motion to either Appeal Designation is the of Record. The designation amend record counter Designation makes no mention the mistrial designate part of the record to include transcript. conjunction read in with When transcript any proceeding conducted Appeal the Notice of Intent to it is clear that during the trial court the course of the Designation of Record refers to the proceedings any trial court in this case or was conducted March item admitted as evidence the trial does not include the mistrial. court original but included des- ¶ 9 The Appeal Notice Intent also record, ignation may the court allow appoints Indigent the Oklahoma Defense supplementa- amendment and direct the (OIDS) System to represent ap- tion of the with the item designat- record peal. appointment This was effective March ed. 29, 1996, date on which the trial court 3.11, signed Appeal the Notice of Intent Under this subsection Rule O.S.1991, appointment of counsel. Under 22 Designation should have filed an amended § appellate attorney Torres’ OIDS was Record with Court. He did not. In- supplement designation authorized “to stead, after the District Court advised Torres by as by filing record filed the trial counsel a original Designation that the did not include supplemental designation written of rec- transcription of mistrial he the and that provide ord.” This Court’s Rules transcription of pro- would not order “[a]ny supplemental designation of record ceeding specific showing absent some of pursuant to of Section 1362 Title 22 must be need, writ of Torres filed a mandamus with (30) thirty days ap- within of of filed date A this Court. writ mandamus was not the of 7 Appellate pointment.” counsel did file a appropriate he vehicle. Torres notes that designation supplemental written of record pursuant filed the of mandamus to writ Rule thirty days appоintment. within of When 2.4(B). However, 2.4(B) Rule the concerns appellate supplemental counsel fails file a to responsibility appellate of counsel to assure designation days, thirty of record within Rule timely complete filing and of on the record 2.1(B)(3), Rules Oklahoma Court of of appeal. procedure It is not the to use to 22, Ch.18, Appeals, App. Criminal Title Designation amend the of Record. Rule (1996) provides “request supple- that the to 3.11(B)(2)requires Torres to file an amended pursuant ment the shall record be Rule Designation with this Court in order to ac- 3.11” of this Court’s Rules. quire transcript proceed- of a of mistrial ings. a 10 Rule 3.11 of this Court’s Rules al- Since Torres did not file motion party supplement a Designation lows the record on amend the of with Record this O.S.1991, 3.11(B)(1), § 6. 22 8. Rule Rules the Oklahoma Court of of 22, Ch.18, (1998). Appeals, App. Criminal Title 2.1(B)(3), 7. Rule Rules Oklahoma of of 22, Ch.18, Appeals, App. Criminal Title (ii) strong If such a Court determines Court, comply with the re- this has faded he exists, 3.11(B)(2). the mat- possibility it shall remand of Rule quirements evidentiary for an ter to the trial court 3.11(B)(3)provides supple- 12 Rule process, utilizing the adversarial hearing, may be allowed mentation of the record findings the trial court to make and direct First, Rule circumstances. other solely fact conclusions of law of and 3.11(B)(3)(a) supplementation provides that application. in the issues raised supplement may as “to be allowed so (in) remand, the trial court shall Upon presented appeal matters record on with evidentiary hearing thir- an within conduct part of the District included as a to and (30) ty days date of remand. from the [are] ... [where] [m]atters Court record hearing, trial court shall make a of a timely properly part as and admitted findings fact conclusions of written of and trial set out Sections motion for new court law to be submitted within Rule of the 22 and 2.1 953 Title and (30) evidentiary thirty days hearing. of the Appeals.”9 Criminal Rules the Court of findings of and conclusions of law The fact timely file a motion for a new failed availability of the evi- shall determine the trial, supplement cannot therefore he witness, the effect of evidence dence or 3.11(B)(3)(a). record under Rule proceedings; court or witness on the trial 3.11(B)(3)(b) the final av- 13 Rule offers or whether the failure use witness may supple- through litigant enue which strategy, if item was trial of evidence appeal. Rule ment record or witness was cumulative evidence 3.11(B)(3)(b)provides: impacted the would have verdict rendered. (iv) findings fact conclusions of ineffective assis- allegation an When strong upon given an law of trial shall be predicated court tance of counsel by determining trial counsel to deference this Court allegation of failure of counsel; proposition appellate ade- properly available evidence or raised utilize identify however, investigate to this Court shall determine quately dur- trial counsel was could have been made available ultimate issue whether which proposi- ineffective. the course alleging tion error ineffective assistance (v) may A be supplemental brief filed in the is raised brief-in- (15) trial counsel days within fifteen after party either appellant, appellate may chief counsel findings con- the trial court’s written evidentiary application submit an supple- in this A clusions are filed Court. together setting hearing, with affidavits to ten mental brief shall be limited alleged constitute inef- out those items pages shall issues con- address This assistance trial counsel. fective supplementation. A re- cerning record procedure following Court will utilize quest page limitation must to exceed regarding inef- adjudicating applications in setting specific a writing be in forth filed counsel based on fective assistance trial need. basis for not in the record: transcript through sought the mistrial Torres (i) mandamus, strong presump- which this Court two writs of In order to rebut the application an regularity proceedings and Torres has now filed tions of of trial denied. evidentiary counsel, hearing but has failed to application for an competency of trial the record be request infor- in this motion and affidavits must contain sufficient transcript. supplemented with the mistrial to this clear and mation show However, Propositions I IX possi- in of his convincing strong is a evidence there brief, fail- does claim trial counsel was bility trial counsel was ineffective for she failed identify complained-of part at least in because utilize ineffective to or have mistrial transcribed either before to evidence. 3.11(B)(3)(a), Rules the Oklahoma Rule 22, Ch.18, App. Appeals, Criminаl Court of Title

H Nonetheless, trial, or trial. Tor- after second Before the second Ochoa moved the avail again person living res has once failed to himself trial court to order the now procedures proper obtaining investigators tran- the victims’ house to allow his hearing a For script transcript. investigate or on the into their to home the crime reasons, proposition is Apparently person these this denied. scene. living who was in the home to refused allow Yanez/Morales

Peremptory Challenges investigators defense into the house. The trial court authority stated was without to ¶ 14 proposition In his second er party order third to allow defense investi- ror, argues the court erred gators into the home and overruled the mo- give him refusing separate and Ochoa tion. peremptory challenges. Section 655 of Title provides, in pertinent part: “if or Shortly before the second jointly they more are defendants tried shall Ochoa prosecution learned that the intended join challenges; provided, in their that when re-investigáte the crime scene. assis- two or more defendants have inconsistent attorney tant district agreed permit de- they granted separate shall be defenses chal investigators accompany fense the State’s lenges for each defendant as hereinafter set investigators on their re-examination statute, forth.” with this Consistent crime scene. Defense counsel sent letter Court has “when the stated defenses of code- аttorney confirming to the assistant district inconsistent, they are be fendants should not investigators that his accompany would required peremptory challenges.”10 to share investigators to State the crime scene. In a “in put parameters The Court has some letter, handwritten note at the bottom of the consistent defenses.” Neill attorney the assistant district wrote: cases, Court stated “in some the ‘inconsisten agreed It that neither investi- [defense cy1 goes culpability to the level of while gators] photographs take will measure- ‘inconsistency’ goes other eases the guilt ments of the interior of the home or inter- or innocence. Where issue restricted investigator.12 fere the technical w/ culpability, to the level of each co-defendant’s counsel, According to Ochoa’s may required per co-defendants be addendum share part last minute emptory challenges.”11 addition was not original deal. Ochoa’s counsel stated ¶ 15 Torres Ochoa in- have they thought go that nonetheless it better to consistent defenses. The defense of both to the house with that condition than not to they men did not kill Yanez and go investigators accompanied at all. Ochoa’s Since Morales. Ochoa and Torres’ defenses police investigation and observed the inconsistent, were not the court did not err measurements taken officers. request separate denying per- investigators Ochoa’s were not allowed emptory challenges. independent investigation and wеre not al- police lowed confirm the correctness of the Stage First of Trial measurements. As a result of the new inves- proposition 16 In er tigation, prosecution produced his third dia- new ror, gram that the trial court arbi claims the interior of the house that dif- trarily provide respects diagram refused to him with access fered certain from the earlier, the crime scene. As first court discussed Ochoa offered the trial. The trial original and trial ended mistrial. found the differences were minor. State, 273, State, (citing v. 825 P.2d 276 P.2d at 891 v. 11. 827 Fox 779 10. ‍‌​‌‌‌‌​‌​​‌‌‌​‌‌‌​​‌​‌‌​‌‌‌​‌‌​​​‌‌‌​‌‌​​‌​‌‌​​​‍Woodruff 884, 1992). (Okl.Cr.1989)); See Neill v. 891 580 562 (Okl.Cr.1989), Fowler v. (Okl.Cr. 1992) (“co-defendants jointly tried who 1060, denied, 494 U.S. 110 granted-sepa have be inconsistent defenses shall 1537, (1990)). S.Ct. 108 L.Ed.2d 775 peremptory challenges”). rate The Constitution require together does not that defendants tried O.R. at 12. Ochoa Vol. Ill granted separate peremptory challenges. be Stil 583, States, son v. United 250 U.S. 28, 30, (1919). 63 L.Ed. 1154 12 ¶ Here,

¶ restrictions the State the the appeal, argues that Torres 18 On failing investigators petty, to order the State are placed erred on Ochoa’s trial court independent investi- to the defense unjustified improper. allow and The State con However, Torres scene. gation of the crime necessary were tended that restrictions of the in the re-examination was not involved in prevent interference with the State’s to investigators Only Ochoa’s victims’ home. argument spurious. vestigation, but investigators Ya- to accompanied the State dismayed place the State would are that We home, dispute over and the nez/Morales unnecessary inappropriate barriers such and counsel investigation was between Ochoa’s legitimate prop front a defendant’s Moreover, attorney. Torres district prepare attempt to his defense. Nonethe er dia- object the use of the State’s did not to less, that re has failed to show Torres the re-exam- grams prepared were after investigators placed on Ochoa’s strictions Thus, home. ination Yanez/Morales deprived him his curtailed his defense or only. plain error we Torres’ claim for review Torres process. Although to indi right due error, claim of In his diagrams Ya- cates that Brady Maryland13 and v. Torres relies first home—the one used nez/Morales addressing the State’s withhold- other cases trial and the one used this trial —differ are exculpatory These cases evidence. another, significantly from he has not one did with- point not on because State are significant what these differences shown exculpatory from Torres. hold evidence they In con or how affected his defense. Rather, question is whether the State’s trast, trial noted that the differ court precluded putting from restrictions Torres slight. Torres has failed ences were depriving thus him of due on his defense deny we plain error occurred and show that Davis,14 People v. process and a fair trial. In relief.17 granted a motion York trial court New the crime scene allow the defendant access to proposition In er his fourth attorney harshly district criticized the ror, arrest be his invalid trying to limit the defendаnt’s access probable lacked cause to cause Officer Coats (1) The court stated the district the scene. arrest of execute his warrantless possessory in the attorney had no interest (2) file a motion to Ochoa. Since Torres attorney no had property, the district suppress any or quash ac- the arrest statutory authority to limit defendant’s scene, therefrom, any by the plain cess effort review we error. derived attorney improper. so district do was stated, “The test for This Court has Virginia,15 v. Henshaw Commonwealth of valid warrantless arrest is whether —at to a crime scene the defendant wished access made officer had moment the arrest was possession party. of a which was third probable cause make whether at that denial of access to the court found facts within moment the and circumstances may deprive crime the defendant scene knowledge and which he had reason- process Relying fair trial. on the due and a trustworthy sufficient ably information were constitution, the court found the state believing prudent man in to warrant access court should have ordered scene, had or was commit- the error was harmless.16 the defendant committed crime but why we cannot determine how U.S. 83 S.Cl. 10 L.Ed.2d order and Kyles Whitley, particular 514 U.S. See also order. court issued (1995); 131 L.Ed.2d 490 State S.Ct. Munson, (Old.Cr. 1994). 886 P.2d 999 briefly proposition, men- 17.In his third Brady violation occurred tions that second (N.Y.Co. Misc.2d N.Y.S.2d destroyed unusable latent when Officer Goforth Ct.1996). fingerprints taken scene. This from crime 338, (1994). detail in discussion of issue is examinеd in our Va.App. 415 15. 19 451 S.E.2d proposition of error. Torres' fifth Davenport, v. So.2d 16. Ochoa also cites State 696 1997), (La. simply a which is one sentence 999 find, ting process that due an offense.”18 Torres asserts Offi- violation. We in the ab- faith, description showing Coats not a of the sence of cer did have a of bad failure provide he the trial court to defendants until after arrested men. an instruction al- However, reading lowing jury fair of the a negative record below to draw inference supports trial court’s conclusion that Offi- from the destruction evidence does not description right process. Coats violate Torres’ to due cer heard defen- Howev- er, arresting prior may over the radio them. such an appropriate dants instruction be an Further, per- Coats testified the men were sanction where the defense has made a show- spiring there was blood on Torres’ faith. bad clothes. These factors the trial ¶25 VII, Proposition In Torres ar probable court’s conclusion that there was gues Officer injected Mullenix an evi- proposition cause to arrest. is This denied. dentiary harpoon proceedings into the expressed opinion about the defendants’ V, In Proposition guilt. testimony about which Torres be ought granted that the relief because complains during arose Ochoa’s cross-exami destroyed fingerprints the State latent objection nation of Mullenix. There nowas might were but which have unusable con to the comment23 we plain review for ridge tained sufficient infоrmation be of error. exculpatory Young- value. Arizona v. blood,19 Supreme Court held “unless a ¶26 This evidentiary Court has defined can criminal defendant show bad faith “(1) harpoons as they generally follows: are part police, preserve poten failure officers; (2) by experienced police made they tially useful evidence not does constitute a (3) statements; voluntary they are are will- process denial of due law.”20 This fully jabbed inadvertent; than rather adopted Youngblood Hogan standard they inject indicating information other v. State.21 Torres not has shown that the crimes; (5) they prejudice are calculated destroyed in bad State acted faith when it defendant; (6) they prejudicial are prints the latent is not relief warranted. rights of the defendant on trial.”24 Con- claims, trary to Torres’ Mullenix’s Officer

¶ 24 Torres also the trial a legitimate response contends comment was to cross- jury questions posed by court should have instructed the examination Ochoa’s they Moreover, a negative could draw inference from counsel. Mullenix not did intro- crimes; fingerprint Officer Goforth’s destruction of duce simply information of other he disagree. process evidence. We Due pursue does indicated that he not another impose suspect not “an undifferentiated and absolute in this case because he believed the duty to preserve police retain and to right all material arrested the had men. The offi- might evidentiary sig testimony be evidentiary conceivable cer’s harpoon not particular prosecution.”22 nificance in Moreover, As under our case law. the officer’s “ earlier, stated testimony unless defendant can show that he right believed he had the police, by poten suspects” bad faith destruction was invited and made in re- tially sponse usefid evidence question does constitute a to a Ochoa’s counsel. State, 361, (Okl. 58, v. Youngblood, 18. Castellano 585 P.2d 365-66 22. 488 U.S. at S.Ct. at 337 Cr.1978). O.S.1991, ("A § peace (1988). See warrant, may, person officer without a arrest committed, felony ... [w]hen a has in fact been 703, Odum believing and he has reasonable cause for 1982) ("unless objection evidentiary made it”). person arrested have committed harpoons any error is deemed waived and can 333, appeal”). U.S. 109 S.Ct. L.Ed.2d 281 be raised for the first time on (1988). (Okl. Bruner Id. at 109 S.Ct. at 334. Cr.1980). (Okl.Cr.1994), 21. 877 P.2d cert. de nied, 513 U.S. 130 L.Ed.2d 14 evidence, counsel, by the prejudiced not by Torres was was invited

Because the comment failing was not to plain er- trial counsel ineffective not constitute does the comment object.29 ror.25 evi- alleges three f 27 Torres ¶ Next, tri Torres contends the of eighth proposition dentiary errors his to allowing Officer Coats al court erred First, objects Joyce to Gil Torres error. testify post-arrest made remarks about testimony sample ev regarding blood christ’s that after Officer Coats testified Torres. object to Gilchrist’s did not idence. Torres arrest, and Ochoa were taken to their Torres object

testimony he did not at trial and separated. tes police station and Coats 44, 52, We 68. of Exhibits admission tified: error. plain review (MR. MACY) Q. What did defendant examination, Ms. Gilchrist 28 On direct say your presence? Torres found on Torres’ shirt that the blood testified (OFFICER COATS) As I observed A. of “Morales with blood was consistent desk, look he would sitting him at Soto,”26 with also consistent blood and was (indicat- down, up ceiling at look Torres.27 Torres claims both Ochoa and his from ing), he shake head would only testified examination Gilchrist on direct side, eight approximately side blood was consistent with that Morales’ shit, shit, say he his times shake head shirt. This claim is incor- on Torres’ stain eight (indicating), approximately shit examination, At Gil- the end direct rect. times. shirt that the blood on Torres’ christ testified say you? Q. anything else to Did he with the blood of all three was consistent that, he when A. He asked —after asked cross-examination, addition, during men. to be And later going he was booked. again pointed that the on out blood counsel I statement believe he he made the all with the blood of shirt was consistent thirsty and tired. also testified that blood three men. Gilchrist Q. statements made Were those on a fence near the victim’s house found presence? your blood. consistent with defendants’ Yes, they A. were.30 complains this evidence was f 29 Torres objected testimony this on the have ad- Torres probative and should not been not hearsay and that the state- Although probative grounds value evi- stated mitted.28 against argu- not a statement interest Torres’ shirt is ment was the blood on dence weak, might it be misconstrued. Counsel also ably admission of the evidence did prej- expressed is cоncern about use the word prejudice Torres. Since there no objection udice, evi- The court overruled plain error did occur. The “shit.” testimony. on the fence had and allowed dence the blood stronger value as tended probative Although urges admis- place near the crime scene. Admis- error, he of this evidence reversible sion plain was not error. of that evidence sion any authority support fails to cite obligation to is the cite Alternatively, claim. It defendant’s support appeal on object authority to claims constituted ineffec- counsel’s failure However, authority him.31 provide that since we will not tive assistance counsel. O.S.1991, State, (Okl. §§ Mahorney 28. See 12 2401-03. v. 25. Cr.1983) question (finding error in the asked "no Washington, appellant's to the brother cross-examination 29. v. U.S. Strickland question coun was invited defense S.Cl. 80 L.Ed.2d since examination”). questioning line on direct sel's Tr. Vol. Vat 118-19. By Gil- VII at 165. "Morales Soto” 26. Tr. Vol. Morales, referring VanWoundenberg the male Francisco christ ("defendant (Okl.Cr.1986) cite relevant and victim. must authority specific his assertions Wolfenbarger appeal”);

15 Moreover, we find Torres’ statements be proposition warrants reversal. As we error, relevant and admissible. We also find it find no relief not warranted. hard to use of believe the the word ¶ 36 Torres claims the evidence jurors “shit” so would shock the as influ- is insufficient to support his convictions for ence Accordingly, their verdict. we conclude burglary murder and in proposition his tenth probative that the value of the out- proceeded error. The State under the weighed prejudicial its effect and the theory that Torres aided and abetted the court err in allowing testimony.32 did not

commission of the crimes and that Ochoa was likely most the triggerman. To convict Tor ¶33 Third, objects to the a principal murder, res as for malice “the 111-123, admission 105-09 Exhibits State directly [has] establish either that he photographs which were crime scene of both committed each degree element of first mal victims. At continuing Torres raised a ice murder or that he aided and abetted objection photographs use of color as another its commission.”36 “Aiding and opposed to black and white photographs. He abetting in requires a crime the State to object on any grounds. not other procured show that the accused the crime to done, aided, assisted, abetted, be or advised eigh 34 The State introduced encouraged or commission pictures teen of the victims’ bodies. The 37 crime.” This Court has repeatedly stated decision photographs to admit rests within “only slight participation is needed to the sound discretion trial court.33 person’s change spectator status from mere “The admissibility test for of a photograph is Moreover, into aider an and abettor.”38 “in gruesome inflammatory, whether or a malice prove murder case the State must but its probative whether value is substan personally aider abettor intended the tially outweighed by danger of unfair death of the victim and aided and abettеd Moreover, prejudice.”34 probative “[t]he with full knowledge of the intent of the value photographs of murder victims can 39 perpetrator.” be ways, manifested in including numerous nature, showing the extent and location of ¶ 37 supports The evidence a find wounds, delicti, establishing corpus de ing that parked Torres and ear Ochoa a few picting scene, the crime and corroborating blocks from the shortly home Yanez/Morales Here, testimony.”35 medical examiner’s before One murders. witness identified exhibits probative 105-09 and 111-123 are Ochoa one of men in car. She wounds, the nature and extent of the corrob identify could not the other man but stated orating the medical testimony, examiner’s de that other took gun man from the picting the crime scene and establishing cor put trunk of the gun ear his waist pus delicti. The trial court did not abuse its gun Teeh-9, band. was not a which was discretion admitting photo the color gun killings. used Christina Yanez graphs. hearing testified after gun number of ¶35 Finally, cu- 911, that the shots and after she called she looked out mulative effect the errors discussed under living into the room and saw Torres and (Okl.Cr. 1985) ("where State, appellant 203, 116 (Okl.Cr.), cites no 35. Trice v. error, denied, 1025, authority 638, assignments we will cert. 510 U.S. 114 S.Ct. 126 him”). (1993). search books for L.Ed.2d 597 State, 431, (Okl.Cr.), Spears 36. P.2d O.S.1991, §§ 32. 12 2401-03. denied, 678, 516 U.S. 116 S.Ct. (1995). O.S.1991, § L.Ed.2d 527 See 21 State, (Okl. 33. McCormick v. P.2d Spears, Cr.1993). P.2d at (Okl.Cr.1993), 34. Hooks v. denied, rt. 511 U.S. 39. Johnson v. ce 1996). 128 L.Ed.2d 490 assisted, abetted, done, aided, advised be or standing together. Christina testified

Ochoa encouraged the commission of something in his holding that Ochoa Moreover, presence mere whilе hand, identify what it was. crime.”43 could not she but act, “only a moving constitute criminal talking and does not were and Ochoa Torres change participation is needed slight men arrested Both were back and forth. spectator into an only a from mere killings person’s status shortly and together after killings. Torres aider and abettor.”44 away from the blocks few was consis- clothing which had blood on ¶40 Jury In Torres blood, and victim blood tent with his Ochoa’s 11-12, to the which are identical structions footprint A consistent with Morales’ blood. Jury Instruc Oklahoma Uniform standard footprint was found a short distance Torres’ (OUJI-CR ed.) aiding ed. 1st tions 1st front home. The from Yanez/Morales forth abetting,45 adequately not set and did looked like house door of the Yanez/Morales aiding abetting in of and the elements kicked in. had been Torres contends the malice murder case.46 ¶38 Obviously, illegally entered Torres aiding abetting instructions re and standard Torres home with Ochoa. the Yanez/Morales specific kill in a malice place the intent to present at crime merely more than intent, general ease with a criminal murder supports circumstantial evidence scene. The thus, proof. lessening the State’s burden intent, given finding particularly ¶41 question appropriate here —the gun with him that Torres had a evidence aiding abetting instructions in a malice and illegally he prior killings and that to the in murder case—was answered Johnson v. home.40 “Where entered the Yanez/Morales Torres, in appellant Like John State.47 verdict, support the we there complained that the trial court erred son findings it is jury’s since will disturb using Instructions on the Oklahoma Uniform jury weigh province of the the exclusive degree aiding abetting in a malice and first the facts.”41 and determine the evidence Torres, argued murder ease. Like Johnson proposition This denied. jury replace a instructions allowed the XI, specific to kill general intent with a intent Proposition 39 lessening changing the State’s bur instructions thus or complains the trial court’s rejected proof. This The Johnson Court aiding abetting were defective. den and argument finding that these instructions that “in a malice ease has held murder conjunction with the instructions on first prove the and abettor the State must aider out degree properly murder set Oklahoma personally intended the death of the victim jury’s channeled the discretion. knowledge with foil law and and aided and abetted Accordingly, we “Aiding controls here. find perpetrator.”42 intent Johnson properly set requires the the instructions Torres’ case abetting in a crime State law, did not diminish the State’s procured the crime forth the show the accused 431, State, (Okl.Cr.) Spears Logan, P.2d 438 F.2d v. 900 40. Torres cites v. 710 Sanders/Miller Cir.1983) 645, (10th denied, 1031, (citations omitted), 646-47 and Anderson cert. 516 U.S. State, 291, (1939). 678, 66 P.2d 794 These Okl.Cr. 91 L.Ed.2d 527 distinguishable are because in them the cases support there was no evidence courts found Here, design premeditated ac to kill. finding can intent discussed tions 1st ed. 204-05. OUJI-CR State, 309, (Okl.Cr. in Johnson 1996). ed., 46. The used the OUJI-CR 1st trial court State, 121, (Okl.Cr. P.2d 41. McBrain v. into About a month which went effect 1988). issued the revised after Ochoa's this Court ed. 2d OUJI-CR State, P.2d 42. Johnson v. 1996). P.2d Cannоn v. Accord (Okl.Cr.1996). 47. 928 315-16 denied, (Okl.Cr.), S.Ct. 516 U.S. (1996); but see Conover v. 134 L.Ed.2d 219 (Okl.Cr.1997). proof adequately burden channeled Prosecutorial Misconduct Plain jury’s discretion. error ¶45 In proposition his sixth of er occur. ror, alleges prosecutor en ¶42 complains Torres also because gaged during misconduct both the first separate aiding instructions do not out ‍‌​‌‌‌‌​‌​​‌‌‌​‌‌‌​​‌​‌‌​‌‌‌​‌‌​​​‌‌‌​‌‌​​‌​‌‌​​​‍set stage First, second trial. com abetting instructions for murder plains prosecutor that the committed revers burglary. We find the instructions are not ible error when impeach he tried to Maria misleading confusing, and relief is not testimony prior Cauldron’s with her testimo warranted. ny taken at the objected mistrial. Ochoa ¶43 proposition In his twelfth objection the was sustained. Neither Ochoa error, Jury Torres that Instruction 6 nor Torres asked for further admonishment Jury is erroneous. Instruction 6 instructed or for moved a mistrial. The trial court jury that: by error sustaining objection.51 cured the the person may No be convicted of Murder Relief is denied. Degree First the unless his conduct caused ¶ 46 Torres prose- next contends that the person allegedly the death the A killed. cution committed reversible error in both the by is death caused conduct if the is conduct first stages and second of trial. At bringing substantial factor in the about object failed to many com- death and the dangerous conduct is or now appeal. ments raised as errors on Tor- destroys life.48 objections. res waived has such com- Other instruction; objection There was no to the ments about which complains Torres now fall plain we review errоr. parameters within broad of effective ad- out, 44 As points the comments vocacy and do not constitute error. None- essentially 1st OUJI-CR ed. 426—which is theless, prosecutor’s several of the comments as same Instruction 6 in this case— warrant closer examination. given recommend instruction be when the actual of death disputed. cause is ¶47 During stage closing first The State concedes that the facts of this ease argument, prosecutor argued: “All I’ve do not giving warrant In instruction. say got why you think asking do we’re Smith v. State49 a similar error occurred. n you you to convict? Do think trying we’re There, error, despite finding the Court found prosecute somebody that’s innocent?”52 instructions, that when as a “[t]he read objected stating to the comment whole, accurately applicable state the law is a presumption “there of innocence.”53 preclude possibility jury stated, correct, court The trial “That’s but— may appropriate have believed it to convict State,55 proceed.”54 In Miller v. Appellant of the Court degree first murder absent prose was Likewise, found it fundamental error for finding of intent.”50 in- here the closing cutor state in jury argument struction did not “[the confuse as its role lessen proof. away the State’s burden cloak of ripped has] innocence been Torres has by testimony faded to show how he bur- from him men— three men, such by dened an actually. instruction. There no four stands [The defendant] plain error. Likewise, guilty charged.”56 in Hamilton 48. Vol. Ill O.R. at 573. 52. Vol. VIII Tr. at 185. (Okl.Cr. 1996).

49. 932 P.2d 53. Id. 50. 534. Id. at See Sadler v. 846 (Okl.Cr. 1993). Id. (Okl. v. Woodruff (Okl.Cr. 1992). 55. 843 P.2d 389 Cr.) (In reviewing prosеcutorial misconduct claims, sustaining Court objection has found that denied, error), court cures U.S. 126 L.Ed.2d 313 State,57 find the errors case we found it error for outcome the Court inno harmless. cloak of prosecutor to state defendant; stripped had from cence been of Counsel Ineffective Assistance however, found the error harmless. the Court Here, use although prosecutor ¶49 did not error, proposition In his ninth innocence,” his “cloak of rhetori phrase trial counsel was ineffective. Torres claims prosecute question cal that he would reviewing claims of ineffec- standard Tor impermissibly treaded on innocent man tive of counsel is well-established assistance argu presumption Supreme innocence. Such res’ set out and was Nonetheless, Strickland, like Washington,63 ment cannot be condoned. Strickland Hamilton, two-part test for review- the comment did affect the Court set out of counsel: claims of ineffective assistance relief not warranted. verdict and A claim that coun- convicted defendant’s stage closing ar 48 In second so as to re- sel’s assistance was defective prosecutor argued quire if the of a conviction or death gument, the reversal First, components. to a sentence has two the jury the term sentenced defendants perfor- that defendant must show counsel’s imprisonment the have defendants would requires was deficient. This show- mance the cold food and shelter while victims “he ing that counsel made errors so serious graves.”58 This Court has condemned their functioning that was not as the counsel prosecutor,59 by the arguments similar same guaranteed “counsel” the defendant Nonetheless, to and we continue do so here. Second, the Amendment. defendant Sixth objection to was no the comment there performance must show that the deficient say comment we can not that the constituted prejudiced requires This the defense. plain prosecutor error. The also overstated seri- showing that counsel’s errors were so argued that mo gang evidence and deprive of a fair ous as to the defendant killings gain higher to status tive for the was trial, trial whose result is Un- reliable. The gang. in the evidence did showings, less a defendant makes both it addition, im prosecutor In this claim. cannot be said that conviction or death jury justice to properly pleaded with the do from in the sentence resulted a breakdown way bring you can do that is “and adversary process that renders the result He also told back sentence death.”60 unreliable.64 case, jury penalty “If this a death isn’t prosecutor is?”61 It is for a to what error a number com- 50 Torres raises not in is error refer facts evidence plaints performance trial counsel’s about prosecutor personal opin to state his inef- allegedly demonstrate that counsel was outset, appropriateness as to the of the death ion At the Tor- fective under Strickland. prose are penalty.62 complains We disturbed res that trial counsel was ineffeс- appeal by employing failing object cutor risked reversal on tive to Christina Yanez’s However, has improper tactics. Torres identification of him as one of the intruders. such claim, making that the counsel failed show comments affected (Okl.Cr.1997), penalty by stating, opinion as the death 57. 937 P.2d sonal denied, - U.S. -, proper 'this deserves it ... This 118 S.Ct. L.Ed.2d defendant (1998). penalty justice ... and de- case for the death argument was not based on mands it.’ Such any aggravating supporting alleged evidence cumstance, cir- 58. Vol.XTr. at286-87. simply a but was statement Mr. Macy’s appropriate- personal opinion to the as (Okl.Cr.1995). 59. Duckett v. and, such, penalty as ness of the death was clearly improper.”) 60. Vol.XTr. at 301. 2052, 80 63. 466 U.S. L.Ed.2d at Id. McCarty v. 1988) ("Mr. Macy per- improperly expressed 104 S.Ct. at 2064. at length failed obtain a time was ineffective because she between crime and confron- transcript of the mistrial that would have tation.67 iden- been vital to counsel’s attack Yanez’s claim, 53 In connection with his tification. repeatedly states that first Christina Second, that tri ¶ 51 Torres claims him identified which was held over in failing to move al counsel was ineffective years after the incident. This is incor suppress Yanez’s identification Christina preliminary rect. hearing, At the which of him. Torres asserts that Christina’s iden held four months after Christina’s mother tification was so tainted and unreliable step-father killed, were Christina identi objected to had trial counsel her identifica fied both Ochoa men who com tion the court would have been night were in her home the murders. pеlled suppress the identification. Al At preliminary hearing, Christina also initially knowing though Christina denied that she had indicated identified Torres explained parents, who her she men killed police prior officers to her preliminary hear frightened why and that is she she ing testimony, although it is unclear when recognizing denied the men. The initial de she police.68 first identified Torres to the subsequent nial does render Christina’s Thus, least, very at the Christina identified inadmissible; identification killings. Torres four months after merely goes credibility to the issue delay four identifying month Torres does reliability, proper which was a issue not render Christina’s identification inadmis jury to decide.65 sible. However, Torres that claims ¶54 implies improper Torres also that Christina’s identification was so unreliable police suggestive tactics circumstances suspect as a of and that matter law it should tainted Christina’s identification. The record suppressed. have been This Court has stat- simply does not claim. an ed that identification admissible “as leaving Christina describes her house and long ‘totality it reliable as was under the of meeting police with officers after the homi- the circumstances.’”66 has cides. There is no evidence that she saw opined: prior telling either defendant Officer Mul- danger sought the Since to be avoided is police lenix at the station that was one Ochoa suggestiveness misidentifieation due to the night of the she in men saw her home that lineup, of the the factors to be considered and there is no that Officer evidence Mulle- reliability in determining the of the subse- suspects nix who told her the were. Torres upon quent in-court identification focus the simply improper has not police shown that of quality the witness’s observations before type improper actions or some of an “show- lineup These in- occurred. factors up” identification occurred. opportunity clude: of witness view ¶55 crime; Moreover,

the criminal at the of the evi ample time wit- there attention; of degree accuracy ness’s of wit- of supporting accuracy dence Christina’s criminal; prior description ness’s in identification. Christina saw the two men certainty of parents night level demonstrated witness her home the murders. confrontation; living in light time and The men had on a turned 1124, State, 925, v. See Tibbetts v. 778 P.2d Woodruff 188, 1989), (Okl.Cr.), denied, citing Biggers, Neil v. 409 U.S. 510 U.S. S.Ct. 34 L.Ed.2d 401 (1993) (jury 126 L.Ed.2d 313 is exclusive judge credibility weight and witnesses). Snow v. Cf. (Okl.Cr.1994), denied, rt. U.S. ce testimony, preliminary hearing In her (1995) (noting cau S.Ct. 130 L.Ed.2d 1120 she Christina seems to indicate that identified tionary eye-witness instruction on identification Torres and Ochoa with in interview Officer necessary instructing juiy not that it was only Mullenix. This interview was conducted judge credibility proper). was sole of witness was shootings. hours At Christina after stated she named Ochoa at that time. has light. him. Because Torres failed to saw them in that diced room Christina prejudiced, we counsel clothing matches show he was find trial description of Ochoa’s Her description description, her brother’s was ineffective. her clothing clothing matches the men’s of both tri Finally, claims that wearing they when were ar- the men' were failing al counsel was ineffective to test the shortly Although after murders. rested However, blood found on Torres’ shirt. men, knowing initially denied she she Joyce sam Gilchrist testified that blood denial was made out fear. stated her ple “con taken from Torres’ shirt had been defendants, identifying the Christina’s Since analysis” run sumed and she could not find, unwavering. has We been identification appears it.75 all further tests on It also circumstances, totality on the based pants blood found on Torres’ and belt properly identification was admit- Christina’s analysis76 had been consumed in the ted,69 prejudiced by and Torres was not was further that Gilchrist not able do object to the evidence.70 counsel’s failure to subtype testing on PGM these articles clothing. was Trial counsel not ineffective addition, ¶ 56 In failing testing impossi further do that trial counsel was ineffective because she Accordingly, this claim is ble. denied.77 eyewitness identification failed retain ex perts challenge Christina’s identification. Downing.71

Torres cites United States Capital Sentencing Issues Downing, the Third Circuit held that expert ¶59 his thir contends testimony regarding identification is witness proposition the trial teenth court erred contingent admissible but trial court’s failing give stage second instructions determination that evidence is reliable jury’s that would focus the attention on the He also cites United misleading.72 culpability of individual each defendant. Smith,73 in States which Sixth Circuit Specifically, he states that trial court expert error found that to exclude in given should have an Enmund/Tison78 testimony eyewitness identification but State,79 However, in Cannon v. struction. error concluded that the was harmless.74 in Court found that an this Enmund/Tison might expert stage required 57 be that testi- struction is the second While mony regarding eyewitness jury of a murder case identification malice where has case, during properly would in this Tor- been instructed the first have been admissible presented aiding any stage abetting res has not evidence show trial on and the testimony degree have first malice expert what that would re- elements of murder. to show how the Cannon controls here.80 In the first stage he has vealed and failed expert preju- jury properly on present failure to such Torres’ instructed 188, 375, Biggers, 69. See Neil v. U.S. 93 S.Ct. 76. Id. 173. 409 (1972); 401 34 L.Ed.2d Tibbetts v. 778 925, (Okl.Cr.1989). P.2d 928-29 In his 77. connection with claim ineffective counsel, an assistance of Torres also seeks evi- complains 70. Torres also about Rebecca Cas- dentiary hearing. evidentiary an We find that taneda's identification ever, the defendants. How- deny hearing re- not warranted and Torres' has failed show that the admis- quest. sion of identification was error or that trial counsel was ineffective. Arizona, 137, 78. 481 U.S. S.Ct. See Tison 1224, (3d Cir.1985). 71. 753 F.2d 1676, (1987); 95 L.Ed.2d 127 Enmund v. Flori- da, 458 U.S. 73 L.Ed.2d Id. 72. at 1226. (1982). Cir.) (6th curiam), (per 73. F.2d denied, (Okl.Cr.1995). U.S. S.Ct. L.Ed.2d 143 urges 80. Torres Court to abandon our hold- this at 1107. ing We in Cannon this issue. decline do Tr. VII at 165. so. Vol. skill, degree knowledge, experience, training first malice the elements of murder may testify in opin- In education the form of an aiding abetting. accordance n with ion In Cannon, Taylor or otherwise.” find that the trial court we Court considered whether DNA evidence was declining give an not err Enmund/Ti- § under admissible The Court noted stage son in the second of Tоrres’ instruction Supreme that the Court in Daubert had re- trial. cently changed for evaluating the standard ¶ 60 Torres’ fourteenth and fifteenth the admissibility of scientific evidence under propositions continuing of error concern the Rule Federal of Evidence 702. This Court aggravating sup- threat circumstance used adopted the stating Daubert “Dau- standard XIV, port Proposition death sentence. In judges bert makes clear that trial must con- argues the trial court erred in allow- gatekeepers, tinue ensuring to act that all gang evidence of his affiliation to be novel scientific evidence is both reliable and prove continuing introduced to threat. In Daubert, In relevant.”85 with accordance XV, Proposition the evidence Taylor held that the trial court should hold jury’s finding insufficient pretrial “a hearing Daubert ... to determine posed continuing society. that he a threat to sufficiently whether such evidence is ‘reliable’ related, propositions closely These are and ‘relevant’ to warrant admission.”86 together. and we consider them case, 63 In Torres’ Officer Flowers tes provides that 61 Oklahoma the death extensively tified gangs about and the South- penalty may appropriate be considered Locos, gang side with which Torres was punishment degree for first murder supposed to be affiliated. The trial court did cases, specific narrowly certain which are pre-trial hearing prior not hold a Daubert by statutory circum- aggravating defined It testimony. simply Flowers’ conducted At continuing stancеs.81 issue here hearing in which Flowers testified to his aggravating threat circumstance which Okla- experience, credentials and relia but probabili- homa as “the defines existence bility testimony. of his court allowed ty defendant would commit criminal testimony on gangs. Flowers’ We find acts of violence that would constitute con- Taylor applicable is not here tinuing society.”82 prove threat To this allowing court did not err the officer’s circumstance, aggravating the State relied on conclusion, testimony. reaching In we (1) (2) itself, facts of the crime find Texas Appeals decision Locos, affiliation with the Southside a local Nations, Nations v. State87 instructive. unadjudicated gang, prior juvenile Appeals the Texas Court of ruled that the burglary offense. expert eye have court should admitted testimony, witness identification because ¶ 62 Torres that admission testimony such concerned knowl “specialized gang of his affiliation evidence was error. opposed edge” knowledge.” as to “scientific First, he gang asserts admission of the thorough lengthy analysis, After a and evidence violated Daubert Merrell Dow Texas court concluded Daubert should not Inc.,83 Pharmaceuticals, Taylor and apply specialized knowledge. to areas of O.S.1991, § provides State.84 “If scientific, ¶ specialized technical or other reviewing Taylor, 64 In evi it is knowledge Taylor will assist the trier of fact to applied dent that to or Daubert novel evidence,”88 understand the evidence or to determine а new but “scientific or technical issue, qualified expert Taylor specialized fact in a an to witness as extend Daubert O.S.1991, § 81. 21 701.12. 85. Id. at 329. O.S.1991, 701.12(7). §

82. 21 (footnotes omitted). Id. at 339 U.S. ‍‌​‌‌‌‌​‌​​‌‌‌​‌‌‌​​‌​‌‌​‌‌‌​‌‌​​​‌‌‌​‌‌​​‌​‌‌​​​‍S.Ct. 125 L.Ed.2d (Tex.App.1997). 87. 944 S.W.2d 795 (Okl.Cr.1995). Taylor, 889 P.2d at 339. simply was racist Accordingly, showed he we Brotherhood evidence. or non-scientifíc Nations, analysis organization, in which we racist and a member agree with the and/or Taylor, hold that proper and find consistent with that alone is not evidence. Nonethe- Taylor applicable are not to less, and Daubert to all did not close door Court evidence, including testimony non-scientific relating to a defendant’s associa- evidence gangs.89 cases, the nature structure street noted, many The “In tions. Court might example, evidence serve a associational ¶65 argues that Torres next ad showing that a defen- legitimate purpose in violated the gang mission of the evidence society. represents danger dant future Amendments of the First and Fourteenth membership organization A in an defendant’s Supreme constitution violated federal killing any that endorses identifiable In ruling in Dawson v. Delaware.90 Court’s example, might relevant to a group, for be Dawson, opinion in majority Chief Justice his inquiry into will jury’s whether defendant First Four Rhenquist held that “the dangerous be in the future.”94 prohibit the Amendments introduction teenth capital sentencing proceeding the fact in a Here, at issue Torres’ member- the defendant a member that' in the In contrast ship Southside Locos. Brotherhood, Aryan organization called Dawson, introduced evi- the State has relevance to the the evidence no where gang, in membership dence of Torres’ proceeding.”91 in being issues decided South- but also introduced evidence Although recognized “the First activity rang- engaged Locos in criminal side right protects an individual’s Amendment trafficking mur- graffiti drug from holding join groups and associate with others membership in a type der. This criminal beliefs,”92 rejected the Court Daw similar type gang is the of associational evidence membership claim that evidence of son’s Supreme that the Court viewed relevant per Aryan in the Brotherhood was se inad in permissible Dawson. missible. is, however, question next finding of Dawson’s membership does Torres’ or affilia what membership Aryan Brotherhood to be in the tion with the Southside Locos mean improper, appears the Court have been continuing ag threat overall scheme (1) struck two facts: the Ar- particularly gravating is no evi circumstance. There was not yan Brotherhood evidence connected or dence that the murders Maria Yanez victim, Dawson’s who to the murder of Morales were connected to the Francisco white; prosecution prove failed gang or done on behalf of to earn status in Aryan was involved in Brotherhood Indeed, in its brief gang. State Rather, activity. any criminal at issue explicitly “No motive was ever dis states simply following stipulation: Dawson was “ appears the cerned for the crime and it Aryan refers ‘The Brotherhood to white may rand picked have been Morales’ home prison gаng began the 1960’sin racist Further, although intro om.”95 the State gangs of ra- response California other en duced evidence that the Southside Locos calling Separate gangs them- cial minorities. activities, variety in a gaged of criminal Aryan exist in selves the Brotherhood now explicitly tie many State failed to Torres to these prisons including Delaware.’”93 state criminal activities. Officer Flowers offered any other evidence of criminal activi- Without Aryan in that made ty, membership the closest connection the State Dawson’s 338, State, (Okl.Cr. 162, Bryan at 112 S.Ct. at 1096. 89. See v. 935 P.2d 360 92. 1997) (finding plain not error under Daubert to composition procedure admit for lead “scientific 162, at at 93. Id. 112 S.Ct. 1096. comparison” type analysis of bullets this procedure did not amount "to novel scientific 166, Id. at 112 S.Ct. at 1098. trigger scrutiny”). which Daubert would 1093, 159, 90. 503 U.S. 112 S.Ct. 117 L.Ed.2d Br. 95. St. at 63. (1992). 309 161, at 112 S.Ct. 91.Id.

23 between and the Locos’ poses continuing Torres Southside Torres himself threat activity. criminal Officer Flowers testified society. The limited nature of this evidence investigated drive-by shootings' that he begs question: thus the next is the evidence April 11, on 1993 at Sergio’s, occurred support sufficient to continuing threat Sergio’s local club. Torres was in when aggravating circumstance. The answer is no. occurred, shooting and Torres’ car was dam- evidence, gang 69 Other than the aged drive-by shootings. as a result only prove evidence offered the State to shootings, After the told Flowers that continuing threat was the circumstances of he was a member of the Southside Locos. unadjudicated juvenile the murders and an He alsо Flowers when told the second burglary offense. When Torres was thirteen by, people Sergio’s vehicle went inside re- years old, or fourteen he and some other identify any turned fire. Torres refused ' burglarized a taking individuals home a VCR responsi- shooters and he did claim guns. and some coop- and his father bility shootings. Although for the Flowers with police investigation erated in the clip found a from a semi-automatic Torres’ burglary pocket, eventually Flowers did not arrest all stolen one, shooting connection items were with and no recovered. Torres, including charged prose- ever ¶ 70 This has stated evidence of cuted in connection with the This incident. prior criminal must acts “focus on those incident reveals Torres was at a club crimes which indicate the likelihood of future target drive-by shooting;

which was a of a violence.”96 The Court has found that non- reveal, however, does not whether Torres offenses, unadjudicated violent such as bur- engaged any activity himself criminal glary, are prove insufficient to continuing shooting. connection with the The State of- State,97 Cudjo threat. v. the Court found nature, fered else to nothing show the extent “Appellant’s history criminal not sup- does or value of relationship with the port finding [continuing of this threat] gang. While the State’s evidence shows aggravating Although circumstance. Appel- Torres is a member Southside Locos lant had admittedly burglarized grocery present shows that he was at the scene occasions, prior unadjudicated store these drive-by what, of a shooting, it does show burglaries appear to have amounted to noth- if any, criminal acts Torres committed contrast, petty more than thefts.” In behalf of or for the benefit the Southside those eases in which Court has Locos. Such lack of relied connection between the upon unadjudicated gang’s activity criminal offenses to con- and Torres makes evidence, admissible, threat, gang unadjudicated very tinuing while offenses in- marginal value as to question of whether volved violence.98 State, 1333, (Okl.Cr. expert Medlockv. 887 testimony inability P.2d of defendant’s to con 1994) State, 364, State, (quoting 309, Berget rage); v. trol Johnson v. 928 P.2d (Okl.Cr.1991), denied, 1996) 841, (supporting continuing cert. U.S. threat 124, (1992)). previous unadjudicated were S.Ct. threats of violence 121 L.Ed.2d 79 against prior imposing vigi wife and threats of denied, 895, (Okl.Cr.1996), 97. 925 P.2d State, justice); lante v. Allen 923 P.2d — -, (Okl.Cr. 1996), U.S. 117 S.Ct. 136 L.Ed.2d grounds, -U.S. vacated on other -, 117 S.Ct. 137 L.Ed.2d 699 continuing (supporting prior threat was convic State, (Okl.Cr.1996), See Charm weapon, pointing history tions guments of violent ar denied,- U.S. -, cert. 137 L.Ed.2d 707 girlfriend, attempt with wife and (1997) (continuing sup threat victim); police killing kill officer after Duckett v. ported by unadjudicated occurring criminal acts (Okl.Cr.1996) (con including robbery, threatening after murder tinuing supported unadjudicated threat of car); stealing Bryan store kill clerk including robbery fenses brutal attack and 338, (Okl.Cr.1997) 935 P.2d 361 (supporting con provided man who defendant and with food shel tinuing previous ter); Cannon, 89, threat was (Okl.Cr.1995) convic defendant's 904 P.2d 106 unadjudicat- tion for solicitation for murder and (continuing supported by unadjudicated threat acts); State, 521, ed violent Smith v. 932 P.2d contemporane violent criminal act committed (Okl.Cr.1996) (supporting State, 536 continuing murder); ously threat with LaFevers v. 897 P.2d 292, (Okl.Cr.1995), denied, battery for conviction assault and dan with 307 rt. 516 U.S. ce 820, gerous 1095, weapon, history spousal (1996) of abuse and 116 763 S.Ct. 133 L.Ed.2d

24 by of committed act violence in which this an isolated in other cases Likewise 71 drug and alco- sufficient to man suffered from severe the evidence who has found

Court ‘continuing To threat’ continuing aggravating threat hol abuse. establish support circumstance, pattern evi- ‘a of criminal introduced the State must show the State has likely in the fu- acts of violence99 that will continue prior of criminal conduct dence ”103 activity occurring criminal violent ture.’ evidence An instructive case the crime.100 after Here, the State showed that Torres 72 Malone, support In v. State.101 Malone and showed that belonged gang to a street circum- aggravating threat continuing unadjudicated prior Torres had a non-violent stance, evidence that introduced State Moreover, the mur- juvenile while offense. case, the years current before the nineteen deplorable, and were ders Yanez Morales shooting with charged had been defendant by theory, supported which the State’s found that The Court with intent to kill. evidence, Torres was shows that and concluded prior charge be too remote facts, has these the State shooter. Under continuing prove failed to the State pat- evidence to show presented insufficient the Court found Perry v. State102 threat. likely that will con- tern of criminal cоnduct support continu- the evidence insufficient proof, we future. Absent this tinue intro- threat where poses continuing say that Torres cannot circum- support aggravating duced society. threat (1) Perry belief that stance was a witness’ Having Perry, 73 found against he kill him if testified would (2) prove continuing threat of the crime. State failed the circumstances and circumstance, most, “this Court has concluded, proved aggravating “At the State unadjudicated indicating kill wife and (continuing supported by defendant intended to threat State, wife); violence); previous v. threat to kill Johnson Coo and threats of crimes of violence 993, (Okl.Cr.1987) (continuing State, 293, (Okl.Cr.1995) 1002-03 731 P.2d per 314 v. 889 P.2d unadjudicated by supported prior acts of threat violence); (continuing supported by unadjudicated threat State, 734, Hooker, 1351, 720 738 Newsted v. P.2d murder); prior 887 P.2d 1365 995, (Okl.Cr.), denied, U.S. 107 479 S.Ct. (Okl.Cr. 1994) by cert. (continuing supported threat 599, (1986) (continuing threat decedent); 93 L.Ed.2d 599 unadjudicated past violent attacks murders). unadjudicated supported by 1143, (Okl.Cr.1994), three State, 877 P.2d 1156 Revilla v. 764, 1096, denied, 115 rt. 513 U.S. S.Ct. ce 130 (1995) (continuing sup threat L.Ed.2d 661 Bryan, (supporting e.g. at See 935 P.2d 361 violence); ported by unadjudicated threats previous continuing defendant's con threat was 1157, (con (Okl.Cr.1994) Hogan, 877 1162 P.2d and viction solicitation for murder other for Smith, by unadjudicated tinuing supported acts); lewd threat unadjudicated at bad 932 P.2d 536 molestation, shooting out store windows (supporting continuing threat was conviction State, 712, threats); v. P.2d 718-19 battery dangerous weapon, Roberts 868 his assault and with denied, 855, (Okl.Cr.), expert 513 U.S. tory testimony spousal abuse 158, (1994) (continuing Allen, threat L.Ed.2d 96 inability rage); 130 to control his defendant's rape by twenty prior supported acts of and bur continuing (supporting at 621 threat 923 P.2d 417, State, glary); P.2d 435-36 Robedeaux v. 866 prior pointing weapon, histo convictions for denied, 833, (Okl.Cr.1993), 115 513 U.S. girlfriend, rt. ry arguments with wife and violent ce 110, (1994) (continuing 130 L.Ed.2d 57 police killing S.Ct. attempt officer after and victim). kill supported unadjudicated verbal threat physical on decedent’s children attacks State, others); Boyd physical v. 839 attacks on Charm, (finding e.g. P.2d at 763 100. See 924 denied, 1363, (Okl.Cr.1992), cert. 509 P.2d 1375 activity occurring suffi- after murder criminal 908, 3005, 697 S.Ct. 125 L.Ed.2d U.S. (1993) Allen, threat); continuing cient supported by (continuing armed threat (supporting continuing threat was P.2d arrest); unadjudicated resisting robbery and history prior pointing weapon, convictions (Okl.Cr. State, Walker girlfriend, arguments wife and violent with 1992) by unadjudi- (continuing supported threat victim). killing attempt police to kill officer after rape); cated Williamson v. (Okl.Cr.1991) sup (continuing threat (Okl.Cr.1994). P.2d violence); ported by unadjudicated acts Boltz (Okl.Cr.1991), cert. 1995). 102. 893 P.2d denied, 846, 112 116 L.Ed.2d 502 U.S. S.Ct. (continuing supported threat occurring unadjudicated burglary after murder at 536. any Here, authority reweigh remaining ag- the to death.106 the trial court did not alter gravating against mitigat- circumstances requested substance of Torres’ instruc- ing validity to evidence determine the when it mitigating tion modified the evidence brings Propo- death sentence.”104 This us to opportunity instruction. Torres had an present mitigating sition XVI which Torres that the present evidence and did support good evidence is insufficient ‍‌​‌‌‌‌​‌​​‌‌‌​‌‌‌​​‌​‌‌​‌‌‌​‌‌​​​‌‌‌​‌‌​​‌​‌‌​​​‍the second of support deal evidence in of mitiga- aggravating circumstance that Torres creat- adequatеly tion. The court’s instructions re- great ed a risk of death more than mitigating one flect the evidence and trial person. disagree. We Torres and Ochoa court did not abuse modify- its discretion in law, people. killed two Under requested our case instruction. Error did people satisfy killing two sufficient not occur. According-

this aggravating circumstance.105 ¶ eighteenth proposition, 76 In his ly, the evidence is sufficient to sustain this mitigating contends evidence out- aggravating circumstance. weighed aggravating evidence in this weigh 74 We now the miti already must case. The Court has addressed this remaining gating against aggra evidence re-weighed mitigating issue when it vating circumstance and whether aggravating determine evidence in this case and found mitiga sustain Torres’ death sentence. supported that the penal- the death tion, youth ty. Torres offered his at the Accordingly, Proposition time XVIII is de- crime, record, his lack aof criminal his nied. history, personal lack of a criminal violent his error, 77 In his final proposition Tor- history ability, and artistic the love of his presents many res of the standard death family him, and their his penalty objections that are raised in most degree participation in the murders was capital routinely cases and which this Court than less co-defendant Ochoa. Tor (1) rejects. jury These claims are: in- family pleaded res’ also mercy. for While jury structions failed inform the the find- compelling Torres’ evidence aspects, had we ings mitigation do not have to be unani- find, aggravating on balance that evi 107(2) mоus; mitigation instructions were people dence the murder outweighs (3) defective;108 the trial court failed to tell mitigating Accordingly, evidence. we jurors they could life life consider without sustain Torres’ death sentence. parole they if aggravating even found an (4) Proposition XVII, circumstance;109 75 In weighing instruc- (5) argues the trial court committed improper;110 reversible tions were Oklahoma’s unconstitutional;111 (6) when penalty error it modified text of Torres’ death requested mitigating jury’s special instructions on finding evi of facts in the second unconstitutional;112 (7) A permitted stage dence. defendant must be of trial was present mitigating all relevant evidence in court refused allow evidence on cost plea effectiveness;113 support of sentence less than the trial court refused to Malone, Duckett, at rejected argument 876 P.2d 110. The Court this 7, (Okl.Cr.1995). 919 P.2d 1351, (Okl.Cr.1994), 105. Hooker v. 887 P.2d denied, rt. 516 U.S. 116 S.Ct. ce 133 L.Ed.2d 106 penal 111. The Court has held Oklahoma's death (1995). Hamilton, ty is constitutional. 937 P.2d (Okl.Cr. 1997). Ohio, 586, 604, 106. Lockett v. 438 U.S. 98 S.Ct. 2954, 2964-65, (1978). 57 L.Ed.2d 973 rejected argument. 112. The Court has this Duckett, Charm, rejected 107. The Court this claim in P.2d at 111 n. 113. The Court has found that it is not error to refuse to allow evidence on the cost effectiveness 108. Id. penalty. of the death Smallwood - denied, (Okl.Cr.1995), rejected argument Harjo, 109. The Court P.2d U.S. -, 1994). 136 L.Ed.2d 330 STRUBHAR, V.P.J., JOHNSON, J., presumption and the of jury the on instruct (9) concur. life;114 Torres the the trial court denied (10) allocution;115 prosecuto-

right of and JJ., LANE, in LUMPKIN and concur is unconstitutional.116 charging rial discretion results. previ- raised in of these issues has been Each LUMPKIN, concurs in Judge, results. rejected by the penalty cases and ous death again grant relief Court. once decline We by in 1 I concur the results reached any on of these issues. Court, join I of however cannot some

verbiage unsupported conclusionary used or statements. REVIEW MANDATORY SENTENCE ¶2 III, Proposition In it’s discussion of O.S.1991, 78 In accordance with recognize the Court fails to that co-defendant (1) 701.13(C), § whether we must determine prior crime scene to the Ochoa’s access to the imposed of under the the sentence death by trial was due to an accommodation second passion, prejudice, any of or other influence recognizes The Court that third the State. (2) factor, arbitrary evi- whether parties occupied the home at that time and jury’s supports finding aggrava- dence of Appellant’s investigators access. had denied Upon ting circumstances. review the rec- recognized The trial court did not have ord, say parties sentence death was authority we cannot the third to allow direct jury investigators was influenced the defense into the house. imposed because the per- Somehow the State was able to secure passion, prejudice, any arbitrary other O.S.1991, 701.13(C). mission to return to the house to take mea- § contrary to factor prepare diagram. surements and new jury aggrava- found existence pru- agree it have more While I would been (1) ting continuing circumstances: threat and for the inves- dent State to allow defense (2) person. risk of death more than one opportunity confirm tigators for Ochoa the support

We found evidence insufficient measurements, it was not error. new continuing aggravating threat circum- addition, this issue was raised Ochoa at stance, but found the evidence sufficient to Therefore, Appellant. he not has support the risk death to more than one appeal. for review on waived issue person. Accordingly, re-weighs the Court mitigating aggravating circumstance. Appellant’s 3 The discussion of Court’s (1) mitigating evidence included: his as an aider and abettor seems to disre role (2) crime, gard issue in youth at the time of the his lack of our unanimous decision (Okl. (3) record, Conover v. 933 P.2d 914-16 his lack of violent criminal Cr.1997). (4) Regretftdly, the issue raised here history, personal history criminal his product “potential of one of the ‘time (5) ability, family artistic the love of his ” my separate writing I bombs’ referred him, support degree their in Johnson v. 928 P.2d 321-22 participation in the less than murders was (Okl.Cr.1996) (Lumpkin, Concurring J. Re family of co-defendant Ochoa. Torres’ sult). Conover, Using the standard set out pleaded mercy. reweighing After also I sufficient to find the evidence evidence, we Torres’ death sen- sustain case. The Court should follow verdict Finding warranting no error tence. other try jurisprudence our and not to confuse it. modification, judgment and sentence ¶4 County relating Oklahoma District Court is AF- to the I also find the facts knowingly Appellant created aggravator FIRMED. rejected require give 114. The Court does 116. The Court has similar claims courts Duckett, presumption prosecutorial charging instruction on the of life. abuse of discretion. Hooker, (Okl.Cr.1994). at grant require 115. The Court does that courts opportunity personal defendant the to make a mercy plea jury. to the 20-22. person

a great risk of death to more than one compelling opinion.

more than related in the co-defendant,

Appellant armed with

firearms, victims, home of the entered the neighborhood, early residential

morning July hours 1993. The front

door of the residence kicked and the gunned

victims down their bedroom. children, (6), ages

Three six eleven (14) years

fourteen in the were house. For-

tunately, run into those children

hallway. One child called 911 and asked for

help. She looked out her bedroom and men,

saw one she later identified as

Appellant. stepbrother Her hid under his

bed when he heard shots. He later

testified he saw man shoot his father he only from

watched under the bed. Not does murder of the two victims

aggravator, but also the risk death to

others who were in the home. This evidence Hill, aggravator Bryce Knight, Tulsa, relating A. Hill & substanti- penalty clearly ates the death but Petitioner. also out- weighs presented mitigation. Whitten, Padgett, A. Layman, Pat Mac- I therefore concur in the result reached Kenzie, Whitten, Tulsa, Padgett and for Re- the Court. spondents.

OPINION ADAMS, Judge. 20, 1997, January again 1 On on 21, 1997,

January Claimant Pamela Evans injured by patient during employ- her 1998 OK CIV APP 98 ment Southern Hills Retirement Center. CENTER, CATE CHIROPRACTIC and, emergency She was seen an room Petitioner, 24, 1997, January began treatment with Dr. Chiropractic Thomas Cate at Cate Center. an agreement Under between her counsel SOUTHERN HILLS RETIREMENT CEN- (CIC), employer’s and her insurance carrier Indemnity TER, ‍‌​‌‌‌‌​‌​​‌‌‌​‌‌‌​​‌​‌‌​‌‌‌​‌‌​​​‌‌‌​‌‌​​‌​‌‌​​​‍Company Connecticut 10, 1997, February Claimant saw Dr. Compensation Court, and the Workers’ Hawkins, Bryan orthopedic J. specialist, Respondents. prescribed physical therapy. who a course of chiropractic Claimant also received treat- No. 90597. throughout February ment from Dr. Cate early and in March. Oklahoma, Appeals

Court of Civil ¶2 In a letter March dated No. Division agent claims for CIC advised Dr. Cate February 10, care rendered Claimant after June 1997, was not authorized because have “[w]e atty an agreement physi- for a w/[Claimant]’s cian.” Dr. Cate continued to treat Claimant until March A 1997. March

Case Details

Case Name: Torres v. States

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Jun 30, 1998

Citation: 962 P.2d 3

Docket Number: F-96-350

Court Abbreviation: Okla. Crim. App.