Valdez v. State

VALDEZ, Appellant, Gerardo Oklahoma, Appellee.

The STATE of

No. F-90-461. Appeals of

Court of Criminal Oklahoma. 15, 1995.

March April

Rehearing Denied

367 Robles, City, Robert R. Oklahoma for de- of what occurred evening: there on that Val- gun fendant at trial. dez shortly obtained a after the three house; men into went Valdez told Barron Pybas, Appellate Indigent Jamie D. Asst. going he was kill him began slapping and Defender, Norman, appellant appeal. for on Barron; Valdez showed Barron a Bible and Singleterry, Atty., Melvin R. Dist. W.R. it, told him according homosexuals do Moon, Chickasha, Atty., Asst. Dist. for State five; not deserve to Valdez asked Barron if at trial. him; he wanted Valdez to castrate or kill Gen., Loving, Atty. Susan Brimer A. Diane made Barron remove his clothes and Blalock, Gen., Atty. Asst. City, began hitting Barron; Oklahoma for then slapping appellee appeal. Barron eventually got angry and started back;

fighting Valdez then shot Barron twice forehead, OPINION in the but fight- Barron continued ing; Valdez hit Barron in the side of the CHAPEL, Presiding Judge. Vice gun; head lay with the while Barron on the Gerardo Valdez was tried couch, Valdez retrieved a kitchen knife and Degree convicted of First Malice Afore- throat; slit Barron’s Barron shook and then thought O.S.Supp. Murder violation of 21 died. Barron, Valdez and Orduna carried 701.7(A), § in the District Court of the couch surrounding rug to Valdez’s Grady County, No. Case CRF-89-139. The backyard and burned them. Barron’s scant jury found the following existence of the remains were discovered there about three aggravating three circumstances: that Val- months later. posed dez continuing society; threat to strategy Valdez’s trial admit guilt was to especially heinous, the death was atrocious or insanity but raise testimony defense. His cruel; and, homicide, that in perpetrating the about the preceding, including events and great Valdez created a risk of death to more following the murder was consistent with person. than one In accordance with the Orduna’s. Valdez testified that homosexuali- jury’s recommendation, the Honorable James ty according Bible, is a sin to the and he R. Winchester sentenced Valdez to death. help wanted to Barron understand the error We affirm. ways. of his angry Valdez said he became question The in murder April occurred in and killed Barron when Barron refused to Valdez, evening, victim, 1989. One and the listen to message. the Bible’s Barron, Juan through met mutual friends in a bar. Barron was a appar- homosexual who PRETRIAL AND JURY SELECTION ently showed an in interest Valdez. Testimo- ISSUES ny throughout revealed that evening, argues in his first Barron and occasionally Valdez talked and statutory the Oklahoma definition of embraced. While approxi- Valdez consumed competence found at 22 O.S.Supp.1991, ten, mately 3.2 beers the course of the 1175.1, § is unconstitutional because it does evening, he and other witnesses testified that not Supreme reflect the United States he did not become drunk. competence Court’s definition of set forth in closed, When the bar Valdez took Dusky his v. United States.1 Under the Su friend, Orduna, Martin and Barron to his preme standard, compe Court an accused is house. Orduna testified he was 1) reluctant to they tent to possess stand trial if a rational enter thought because he Valdez and Barron as well as a factual understanding of the going did, were to have sex. 2) Orduna howev- proceedings them, against and can ration er, go inside Valdez’s house with ally Valdez and assist counsel.2 An accused is consid Barron. following is Orduna’s account competent ered they under section if 1175.1 402, 402, 788, 789, Estelle, 1. 362 U.S. 80 S.Ct. 4 L.Ed.2d tutional law.” White v. (1960). 757, 758, (1983) (Marshall, J., dissenting). “[wjhether 2. We compe- note that a defendant is question tent to stand trial is a of federal consti- competency charges trial court’s final determina- nature of the “understand the can [them], tion, Roger Enfield, citing an from against and affidavit brought proceedings Ph.D., Quinn effectively in that Dr. failed to rationally assist which states [can] competence. sufficiently analyze claims defense.” Oklahoma’s [their] affidavit, Dr. Enfield states that Dr. competence does not meet the definition Quinn’s analysis than did not meet Standard 7-3.7 Supreme Court standard because rather Health requiring that an be able to ration- of the ABA Criminal Justice Mental accused ally factually object proceed- understand Standards Valdez failed to merely Quinn’s competency evaluation to the ings, requires it that an accused be Dr. competency pro- nature trial court’s determination. Ac- to understand the of the able cordingly, plain only.6 for ceedings. review is error recently rejected this attack on the We have determined the section We constitutionality competence, in definition re- of section 1175.1 Lambert 1175.1 which State,3 quires concluding that there little or no that an accused understand the nature is Supreme statutory proceedings, our terms and of the meets Court difference between Further, Supreme Accordingly, Quinn in both Dr. dur- Dusky. used standards. those require judge during appear that state his evaluation and the Court does post-examination competency subsequent use exact and ra- legislatures “factual constitutionally Dusky. hearing applied appropri- in This terminology set forth tional” reaching in Supreme competence fact that definition of their is evidenced ate fit to respective has used other than conclusions that Valdez was Court itself since terms example, Quinn’s trial. Dr. written competence. to define For stand evaluation these Missouri,4 in 22 requirements that to set forth Drope v. the Court found also met Clause, O.S.1981, 1175.3, § thus competent the Due and was sufficient. be under Process largely conclusory, capacity un- defendant must have “the While the evaluation was object pro- require the nature and section 1175.3 does not that such derstand counsel, him, ceedings against report provide consult sort of details set forth preparing and to assist his defense.”5 ABA Standard 7-3.7.7 Further, argues finding court’s the trial the trial Valdez next did an competent competence determination that he not constitute abuse court’s begins argu post-examina An at the process. due He his discretion.8 accused violated competency hearing presumed compe by claiming and is ment that trial court tion proving Quinn Dr. failed and thus bears the burden of competency evaluator John tent convincing and evid adequately incompetence whether he had a clear to consider question Because understanding and of the ence.9 whether rational factual fact, competent is is one of the stan simply instead focused accused proceedings, and appellate is whether the rec he the nature of the dard of review whether understood to argument valid evidence which tended proceedings. Valdez concludes his ord reveals determination.10 upon sufficiency support the trier of fact’s an overall attack with (Okl (Okl.Cr.1994). Siah v. 487 888 P.2d 494 7. See also .Cr.1992)(concluding "[t]his that Court has never 162, 171, 896, 903, 95 S.Ct. 43 4. 420 U.S. imposed analysis for the lower court to a static (1975). L.Ed.2d competency post-examination apply in all hear ings-”). - Moran, U.S. -, See also 5. Id. Godinez 2680, 2685, -, S.Ct. at 487. (1993) examples 8. Id. (citing Drope Dusky as both standard). competency of the federal O.S.1981, 1175.4(B). § 9. See errors counsel failed to 6. Plain are errors which which, objection preserve through a trial but 10. See Miller review, upon appellate are clear from the record 1988). rights. See States v. and affect substantial Olano, United -, -, 1777-78, L.Ed.2d Quinn spent Dr. that experience justice testified one and with system, the criminal Valdez; evaluating one-half hours intelligence Val- incapa- his low rendered competent participate dez was to and assist validly waiving his Miranda rights. ble defense; in his and that Valdez understood Defense counsel neither filed a motion to potentially the nature and severe conse- suppress objected this statement nor to its quences charge against him. In his grounds admission on the it was not evaluation, Quinn written Dr. found that Val- voluntarily made.13 proposition This will mentally dez was coherent and not ill accord- plain therefore be reviewed for error. ing to in the definition set forth the Okla- 24, 1989, evening July On the several any homa statutes. did Valdez not offer murder, months after Barron’s Deputy Terry hearing witnesses at the and thus failed to Cunningham, Investigator Dan Benson and prove meet incompetence. his burden to Detective Susan Hart executed a search war- This record contains sufficient evidence to rant at Valdez’s Deputy Cunning- residence. support judge’s the trial determination that gave Miranda ham Valdez the warning upon competent Valdez was to stand trial. This entering Cunningham his home. testified proposition is denied. that Valdez conversed him English in proposi Valdez claims in his eleventh appeared rights. understand his tion that refusing the trial court erred in any firearms, if When asked he had grant his motion for individual voir dire. He produced police a .22 revolver. The then presented grounds support two of his mo looked for Barron’s they remains which be- jurors tion: exposed who had been lieved backyard were located barbecue pretrial publicity give about the case could pit. They appeared found what to be a bone information; prejudicial ju others and that fragment. respond honestly ques rors would more The officers then asked accompa- Valdez to bias, concerning prejudice tions and death ny police station, them to the local and he penalty they if questioned attitudes were agreed. Investigator Benson administered separately. another Miranda warning upon their arrival. acknowledges right there is no Again, spoke English without the individual voir dire.11 The trial court’s deci- interpreter. aid of an Throughout the inter- grant deny sion to a motion for individual rogation, any Valdez denied involvement in discretionary voir dire is a one.12 Valdez has Barron’s death. presented support evidence to a conclu- sion that the trial court abused its discretion driving home, While back to Valdez’s Cun- in denying his motion for individual voir dire. ningham told Valdez he would if feel better Therefore, is denied. he told them the truth. Benson then asked if Valdez he would show them what he had ISSUES

GUILT/INNOCENCE body. done with they the When returned to two, Valdez’s home early morning the Valdez claims that 25, 25, July 1989, July his hours of 1989 confession Valdez showed should not have them against been where he had gave body. Depu- admitted because burned Barron’s he ty Cunningham read the Miranda knowingly statement without then and intelli his Miranda gently waiving warning time, rights. a third Valdez and asked if Valdez he dispute does not police properly rights. the fact that understood his Valdez said he did. administered the Miranda warning. Cunningham He ar When sign asked Valdez to gues inability sufficiently form, that his speak rights to waiver of Valdez asked to read it English, and understand prior his lack of signed first. Valdez then the waiver and 69, 11. See Fontenot v. 881 P.2d judge’s 13.Defense counsel also declined the of- 1994); 707, (Okl. Malone v. Denno, hearing fer to hold a under Jackson v. Cr.1994). 368, 1774, 378 U.S. 84 S.Ct. 12 L.Ed.2d 908 (1964), gave to determine whether Valdez (Okl.Cr.1993), 12. Trice v. voluntarily. confession - denied, U.S. -, rt. 114 S.Ct. ce (1993). I understand it some- sign I it because con- and having killed Barron. His to confessed me lawyer and he want to ask thing a tape played was to about taped and the was fession looking for a that’s what I’m questions and jury. response indicat- lawyer.” claims his Valdez custody clearly in at was Valdez happen- about what was he was confused ed enti and therefore of his confession the time lawyer. speak to to a ing to him and wanted warning. A reasonable to the Miranda tled felt not have position would man in Valdez’s clearly shows that taped interview The police offi company of two free to leave English. speak perfect does not Valdez killing someo had admitted to whom he cers However, many of Ben- answers questioning police continued ne.14 Because fully compre- suggest that he questions son’s Mi required administering the Valdez after asked of being said to and what was hended heavy bears a bur randa warning, the State correctly example, Valdez him. For waiver was valid.15 that Valdez’s den to show proper questions about the clearly answered surround totality of the circumstances birth, name, his date of spelling of his his must show that interrogation ing the address, number, security his social a full awareness “made with waiver was Barron. gun used to shoot he had caliber being right abandoned nature of the both the concerning questions many of the While to aban consequences of the decision and the surrounding Barron’s murder circumstances don it.”16 answer, many only “yes” or “no” required substan- questions also elicited more of the of his low intel- argues that because to under- was able inability fully responses. tive quotient and his ligence being had left asked who that he English language, he was stand comprehend the night question in him on the the bar with understanding either the nature incapable of Martin, Barron”); (“Alfonso, those indi- what consequences of abandon- rights or the of his (“Alfonso Borjas. last names were viduals’ of his lack of com- As evidence them.17 know”); taken Martin, he had I don’t where first notes that Benson prehension, Valdez (“I him to the work. He work take leading questions Alfonso by asking interrogated him Pocasset”); Dairy in what he for Daniel’s allowing to tell by simply rather than (“I him want he would do to interrogation told Barron story. argues that his He castrate”); response Barron said what Benson in this manner because proceeded to”); (“No wheth- said he don’t want clearly he unable would be realized Valdez times”); (‘Tea couple Barron er he shot own words. Val- describe the events immediately died of his Barron responses he whether points to one of the then dez die”); (“No, he did what he did interrogation. wounds gave the end toward (“I cut him my pocket knife and take then whether he Benson asked Valdez When and, throat”); whether burned signed the Miranda waiver and vol- willingly (“I couch, carpet put in the body put in the police, Valdez untarily agreed to talk to the it”). and burned put a lot of firewood it a little bit “Yes. I understand responded, 420, 442, ability person in may impair of a McCarty, Acuities 468 U.S. Berkemer v. 14. See rights] in a free custody Miranda [their L.Ed.2d 317 to waive 104 S.Ct. Heredia-Fernandez, v.U.S. and aware manner.” Louisiana, Tague Cir.1985). (9th See also F.2d valid, (1980). 652, be such a To Cir.1986) (6th Short, F.2d 469 790 U.S. voluntary. Colorado been must also have waiver rights of Miranda (holding waiver that accused’s 157, 167, Connelly, 479 U.S. unintelligent accused unknowing where and Burbine, (1986); Moran v. 473 93 L.Ed.2d under English, had a deficient spoke broken 1135, 1141, 412, 421, 89 S.Ct. language noth standing English and knew analysis does Our waiver L.Ed.2d system). justice ing criminal about the American Valdez does this issue because not address Bautista-Avila, F.3d U.S. v. But see involuntary. waiver was claim that his Cir.1993) (9th (concluding ac that an 1365-66 warnings Span Burbine, Miranda S.Ct. who received U.S. at cused 16. Moran v. those that he understood who then stated at 1141. ish and them). intelligently knowingly waived rights and Appeals Court of for United States 17. The "language recognized that dif- has Ninth Circuit Cunningham rights testified after he admin- to counsel and sup- should have been Valdez, istered the Miranda warning to he pressed. preceding facts this statement whether he asked Valdez understood those confessing police were as follows. After to rights. handing Valdez said he did. Prior to during early 25th, morning July hours of form, Cunningham him the written waiver arrested, police Valdez was to taken English. read asked Valdez whether he could formally charged.21 station and Valdez made could, apparently Valdez said he and asked appearance his initial in court on the 26th. Cunningham if he could read the form him- again approximately Also on the 26th at self. After Valdez reiterated that 10:00 he form, a.m.,22 understood what was on Grady County the waiver Sheriffs office con- Benson, Cunningham sign asked to it. Immigration tacted U.S. and Naturalization during interrogations present who was all Special Agent speaks Service A.J. Irwin who Valdez, gave testimony consistent with Cun- Spanish. fluent Irwin was asked to assist “in ningham’s. investigation in which Mexican Nationals prospective suspects were trial, and material wit- During defense counsel did not at- fact, According nesses.”23 tempt impeach testimony. report, to to In Irwin’s agreed none of the witnesses18 called the defense to offer his assistance “to ensure that stage any the first of trial offered language discrepancy no jeopardize would testimony concerning Valdez’s lack of edu- investigation anticipated and criminal cation, difficulty comprehending his En- prosecution alleged perpetrators.”24 glish,19 specifically inability or more his trial, At Irwin clarified his role the investi- understand the Miranda warning which had gation. He testified that he was at that time been read to him. Considered in the absence assigned Apprehension to the Alien Criminal specific support evidence his lack of Program. program joint That “involve[d] ef- claim, comprehension Valdez’s assurances forts with state and local law enforcement evening over the course of the that he under- agencies investigating matters where aliens stood his Miranda rights, coupled with his suspected are activity.”25 of criminal objectively ability verfiable to understand questions posed and answer the speaking to him dur- After with witnesses Orduna and interrogation,20 provide the final Borjas, suffi- regards Irwin interviewed “in proof knowingly intelligent- cient that he alienage legal immigration his status ly Miranda rights waived his prior to con- in the United States.”26 The entire inter- 25th, fessing July on 1989. This view Spanish per was conducted in is denied. request. According report, Irwin Irwin’s identified emphasized himself and twice proposition, his third Valdez claims his 26th, July Agent only Valdez that he was confession to A.J. Ir- there “to establish win violated his Fifth and Sixth alienage legal Amendment immigration [Valdez’s] sta- Valdez, psychia- 18. Those witnesses included two 21. The State in its brief claims that counsel was psychologist. appointed trists and a for Valdez on the 25th. According Mynatt,

19. psy- to Dr. Cecil the State report 22. Irwin's reflects that his contact with Valdez, chiatrist who examined Valdez under- trial, however, July Valdez occurred on 25th. At English. Mynatt stood some testified there were Irwin testified that he believed he had erred in things some about which he and Valdez could report meeting actually and that the took English. psychologist converse in Defense Dr. place July 26th. Phillip Murphy J. also testified that Valdez “is in average range functioning.” of intellectual brief, (Irwin’s Appellant's Exhibit 3 1at Mem- He also testified that some of the written tests Investigation). orandum of English. administered to Valdez were in Id. argues significant 20. Valdez it is that he was provided interpreter proceedings an in all which IV, pp. 25. Tr. 70-71. However, interrogation. occurred after his Val- English, only occasionally dez testified at trial in brief, asking interpreter Appellant's for assistance. 26. Exhibit 3 at 8. ‘Yes, said, I under- police. ad- Valdez Irwin then States.”27

tus the United sign I it a little bit and I it because stand the Miranda warning. Valdez ministered lawyer something it about a understand to to information told he wished offer Irwin questions me that’s want to ask what he presence the assistance or without lawyer.”32 looking was not I’m for legal counsel.28 again interroga- until the Irwin questioned n initially immigration described his tion. Irwin he wanted He then told “that status. Spanish speaking custody law an to with a Once accused “ex- converse concerning pressfes] police matter his desire with the official to deal enforcement counsel, subject only through In his is not to [he] for he was incarcerated.”29 which interrogation by until further the authorities report, again noted that he told Valdez Irwin him, un has been to to information counsel made available did not have offer he further less the accused himself initiates about the homicide. Irwin told Valdez communication, exchanges, or conversations immigration sta- was satisfied with Valdez’s police.”33 police If reinitiate com Yet, story with telling his tus. Valdez insisted on suspect with a who has invoked munication proceeded explain what Spanish and counsel, right any Fifth Amendment his happened night he Barron. on the killed Miranda subsequent simply is invali waiver trial, prosecutor At not ask Irwin did Additionally, Fifth Amendment d.34 Rather, story. he asked describe Valdez’s present during counsel custodi right to have told Irwin to tell what Valdez interrogation non-offense-specific. is Once al Irwin, that “he was not [Valdez] which was invoked, police may interro it not initiate is an ... did not intend to use insane and any offense, pres concerning past or gation testi- insanity plea or defense.”30 Irwin also ent, charged uncharged.35 for hav- fied showed no remorse that Valdez July Clearly, Irwin 26th prosecutor The reiterated initiated killed Barron. purport stage interrogation. Although he did so during remorse Valdez’s lack of second immigration support continuing edly to ask Valdez his argument about closing homicide, ques not about status and This will be aggravator. proposition threat constitutionally pro tioning have been would plain only for error because reviewed July if close of the hibited Valdez had —at the suppress nor neither moved to this statement Fifth his Amend 25th statement —invoked objected Irwin when testified. present. have We right to counsel now ment Fifth claim Amendment Valdez bases that issue. turn to theory at the initial end of his Mi- confession,31 July recently he invoked his Supreme 25th held Court police- randa right to counsel for all future in Davis v. United States36 the Fifth any possi- interrogations concerning right present initiated have counsel Amendment implicated. might interrogation ble in which he be is not invoked crime custodial statement, clearly unambiguously July suspect At 25th the close Valdez’s unless a Only that can asked him he had it.37 those statements Detective Benson whether asserts expression “reasonably signed spoken be construed to be willingly the waiver form and 27. 34. Id. Id. 28. Id. 176, Wisconsin, 171, 501 U.S. 35. McNeil (1991); Ari L.Ed.2d 158 S.Ct. 29. Id. at 10. Roberson, 675, 684, 108 S.Ct. U.S. zona XV, (1988). p.

30. 73. Tr. 100 L.Ed.2d 704 supra 31. two. See - -, 129 L.Ed.2d 36. U.S. S.Ct. (1994). brief, Appellant’s 22. Exhibit 2 at Arizona, 484-85, 33. Edwards v. at -, at 2355. Id. S.Ct. 1880, 1885, 374 request ambiguous

of a desire for the assistance of an attor- for An counsel. invoca- ney”38 are considered actual invocations of right tion of the Fifth Amendment to counsel right suspect to counsel. If a makes an require question- “do[es] the cessation of 42 ambiguous equivocal or reference to an attor- Thus, ing.” subsequent neither Irwin’s in- ney which a reasonable officer under the terrogation testimony nor his trial recounting only circumstances would have understood as parts interrogation of that violated Valdez’s counsel, possible right invocation of the to rights. Fifth Amendment questioning need not cease.39 While none argues Valdez also that because he responses police interroga- the accused’s to appointed prior been counsel to Irwin’s given purported tion after the invocation can interrogation, Irwin violated his Sixth invocation,40 interpret prior be used to all rights by initiating Amendment further con prior existing purport- circumstances to the versation with without pres counsel help ed invocation can be used to determine ent. right Valdez’s Sixth Amendment unambiguously an accused whether and un- counsel attached when the Information was equivocally requested presence of an at- filed, day which occurred the before Irwin’s torney.41 interrogation.43 point, At that officials were case, gave complete con- constitutionally forbidden to initiate further police making fession to the before the con- interrogation concerning with Valdez the of fusing statement he now contends invoked charged.44 fense with which he had been right to counsel. He made that state- Amendment Miranda Unlike the Fifth right ment at interrogation the close of the and in counsel, right the Sixth Amendment response having to Benson asked wheth- “offense-specific.”45 counsel is At the time willingly signed er he had the waiver of interrogation, Irwin Valdez’s Sixth rights police. form and talked to the Consid- right Amendment to counsel had attached ering given the fact that Valdez had a com- only charge. Therefore, to the murder Ir plete prior and uncounseled confession win remained within constitutional bound statement, making interrogating offi- approached aries when he concerning reasonably cers could not have construed potential yet uncharged but as immigration expression statement be a clear aof violations. desire for attorney the assistance of an at all subsequent interrogations. question The next is whether most, statement,

At read con- State remained within constitutional bound entirety, text and in ambiguous its was an it testify aries when called Irwin to concern- Wisconsin, 178, 38. McNeil v. lawyer 501 U.S. at judicial proceed- 111 at or after the time that S.Ct. at 2209. ings against have been initiated him—'whether by way charge, preliminary hearing, of formal Assessing objective 39. these statements from an indictment, information, ”), arraignment.’ viewpoint proof "avoidfs] difficulties of and ... Illinois, 682, 689, quoting Kirby v. 406 U.S. provide[s] guidance conducting to officers inter 1877, 1882, (1972) S.Ct. (plurali- 32 L.Ed.2d 411 States, rogations,_” Davis v. United course, ty opinion). Of the Sixth Amendment - U.S. at -,114 S.Ct. at 2355. right regardless attaches of whether an accused specifically Illinois, requests Michigan 91, 97, counsel. v. Jack- 40. Smith v. 469 U.S. son, 625, 490, 494, 633, 6, (1984). 1404, 475 U.S. n. 83 L.Ed.2d 488 106 S.Ct. at See also Book (Okl.Cr.1993). er v. n. 89 L.Ed.2d 631 Illinois, 41. Smith v. 469 U.S. at 105 S.Ct. at Jackson, Michigan 475 U.S. at (concluding nothing "[w]here about the (concluding S.Ct. at 1408-09 that "the Sixth request leading for counsel or the circumstances right Amendment postarraign- to counsel at a up request ambiguous, to the would render it all interrogation requires ment at least as much cease.”). questioning must protection [per Edwards v. as the ] Fifth Arizona States, U.S. at -, right any Amendment to counsel at Davis v. United custodial - interrogation."). S.Ct. at 2355. Williams, 387, 398, 43. See Brewer v. Wisconsin, 45. McNeil v. 501 U.S. at 1232, 1239, (1977) (con- S.Ct. S.Ct. at 2207. cluding person help that "a is entitled to the of a Rather, exchange which initiated the about mg about homicide Valdez statements during charges Irwin his at- spontaneously made to the murder and thus waived Valdez immigration Clearly, any ev- counsel right interview. tached Sixth Amendment “pertain[ed] had obtained that spontaneous idence Irwin made and unsolicited when he immigration] charges as to which [possible killing. remarks about the These remarks right Amendment to counsel through Sixth properly at trial were thus admitted at not would have been “admissible attached” testimony. raised in arguments Irwin’s However, a offenses.”46 Val- trial of those proposition are denied. was, right Amendment to counsel dez’s Sixth interrogation, firmly attached during Irwin’s argues proposi in his fourth Valdez charge. Edwards v. to the murder Under presented insufficient evi tion that the State Arizona, to Ir- any statements made Valdez prove beyond him a reasonable dence sane in- concerning charge win the murder were theory simply His is that his evi doubt. trial unless that Valdez admissible at we find insanity more stronger and dence was subject the conversation on that reinitiated of sani believable than State’s evidence right and his thus waived Sixth Amendment ty. Phillip Murphy Defense witness Dr. J. to counsel.47 right from testified that Valdez did not know forth v. Arizona The rule set Edwards killing. wrong at the time of the Valdez prevent police badger- “designed is from spent Murphy long Dr. a time inter claims waiving previously into his a defendant him, police reports all viewing read available rights....”48 have Miranda We asserted talking spent time other witnesses and Irwin to initiate established that was free reaching his wit before conclusion. State subject of Val- questioning of Valdez Mynatt Drs. Cecil F. and Fernando nesses report immigration status. Irwin’s re- dez’s right Romero testified Valdez knew that Irwin flects and Valdez does contest wrong at the killed Barron. from time he questions did his in fact confine Valdez’s their were less claims conclusions Valdez immigration status. After Irwin finished they upon cur because based credible were immigration questions, told Irwin he Valdez sanity argument is sory evaluations. This Spanish-speaking offi- wanted to talk with meritless. cial that his of the homi- to ensure account accurately interpreted. Irwin told cide was trials facing Defendants criminal compelled he was not to discuss Valdez therefore, must, bear presumed are sane immigration sta- homicide and Valdez’s sanity in placing their the initial burden acceptable. Upon tus insis- court de doubt.50 Once the trial reasonable tence, “allowed to offer his [Valdez] Irwin this bur that a defendant has met termines question.”49 of the events ... account den, sanity presumption vanishes beyond badger talking proving into bears burden of Irwin did not State pre- did killing. arguably doubt that the defendant about the While Irwin reasonable would from a mental disease which with a comfortable environ- not suffer sented Valdez crime, distin incapable him of either in which to talk about that have rendered ment right wrong appre guishing crime. between question did not Valdez about that consequences of his constitutionally prohibited ciating the nature and Irwin was not court found that im- acts.51 The trial in this case questioning from Valdez about Valdez’s status, doubt as attempt to had established a reasonable migration and he did not it sanity, charges. and instructed the interrogate him about the murder to his brief, (emphasis Appellant’s 3 at 10. 46. S.Ct. 49. Exhibit Id. at at 2207-08 added). (Okl.Cr. v. 50. Kiser Arizona, S.Ct.

47. 451 U.S. at Edwards 1989). at 1885. Harvey, Id. See also Johnson v. Michigan 1992). 1176, 1180, S.Ct. Romero, proved According not convict him unless the State murder. to Dr. could beyond a reasonable doubt.52 sane was calm and lucid the interview. might again told Dr. Romero he kill if Valdez The issue before us is whether the faced with the same circumstances. presented sufficient evidence to meet State trial court makes the this burden. Once the examining psycholo- Valdez then called his legal defendant has determination the gist, Murphy. Murphy Dr. Dr. testified that as to or her raised a reasonable doubt he interviewed Valdez for almost five hours. sanity, sanity question “a issue becomes tests, administering four Murphy After Dr. jury, of fact for the sole determination of the killing concluded that at the time of the ... must consider all of the evidence [which] acting Valdez was under the delusion that merely testimony of presented, not commanding him God was to reform Barron. expert reviewing witnesses....”53 homicide, therefore, At the time of the Val- conclusion, jury’s “will [neither] Court distinguish right dez was unable to from inquire credibility into the of the witnesses wrong appreciate or the nature and conse- conflicting testimony.”54 weigh nor Accord quences Murphy of his acts. Dr. also charac- ingly, uphold jury’s finding if we must schizophrenia. terized Valdez’s illness as there was sufficient evidence from which a Mynatt The State called Drs. and Romero rational trier of fact could have concluded Mynatt rebuttal. Dr. testified that sane Valdez was when he murdered by Murphy the four tests used Dr. in evaluat- Barron.55 ing Valdez could not have assessed Valdez’s presented sup- The evidence in this case mental condition as it had been twelve ported jury’s conclusion that Valdez was months earlier. He concluded Valdez was During sane when he killed Juan Barron. its schizophrenic, not but testified that even if chief, testimony case in the State elicited were, appreciate he he could still the differ- from several witnesses who were with Valdez right wrong. Mynatt ence between and Dr. preceding the bar for several hours giving testified he was uncomfortable witnesses, murder. One of these Martin Or- opinion on the issue of whether Valdez knew duna, actually lolling. observed the All but right wrong night from on the of the murder. Orduna testified that Valdez did not seem However, Mynatt Dr. upon stated that based angry Barron appeared and to be ac- information, the available he would conclude cepting reciprocating and Barron’s homosex- that Valdez did know the difference between witnesses, ual advances. None of the includ- right wrong appreciate and could Orduna, testified that Valdez was mental- consequences nature and of his acts on that ly unstable. occasion. Dr. Romero testified Valdez knew My- Valdez’s first two witnesses were Drs. right wrong appreciated from the conse- natt and examining Romero. After quences night of his acts of the mur- hour, Mynatt, for psychiatrist, one Dr. der. concluded that Valdez was not insane under Murphy’s Valdez himself undermined Dr. M’Naghten test. Valdez told that he theory delusion when he testified that God night did not lose control on the murder, Barron, did not him kill command only but and that wanted to show Barron the did not ways. God command him to kill My- error of his homosexu- Valdez also told Dr. passages natt that it als. Valdez stated that certain was worse to be a homosexual Romero, than to kill the Bible teach that one. Dr. a Mexican homosexuals do not de- psychiatrist assisting Mynatt, really Dr. serve to live. He testified he did described why Barron, his interview with know he Valdez but did not at that killed but that he did jury time tell the whether he concluded Val- so when Barron refused to listen to Valdez’s dez was denouncing homosexuality. sane insane at the time of the “sermon” 52. The trial court administered the four standard id. instructions, OUJI-CR 728-31. 55. Id.

53. Kiser v. 782 P.2d at 407. who, degree manslaughter rather than murder. might person kill another testified he jury Barron, his teach- claims the in this case could not have to listen to He refused like objective under the administered stan- ings. found adequately provoked and dard that he was testimony from witnesses jury heard The guilty manslaughter rather than mur- thus at the time of the with Valdez who were judge failed to also der. Because the trial crime, who later evaluated from the doctors instruction, give degree murder a second condition, from mental argues, jury no choice but was left with that the concluded State himself. degree him of first murder. Val- to convict beyond doubt that proven a reasonable given object did not to the instructions dez he committed the was sane when plain all but error. and has thus waived evidence, reviewing this we killing. After jury’s supports conclusion. find that it suggested “adequate We have This is denied. necessary provocation” to reduce murder to manslaughter “provocation is which would proposition, Valdez at In his fifth a reasonable man to lose his normal cause man degree passion heat of tacks the first The Commission Comment self-control.”58 slaughter administered to the instructions Instructions also to the Uniform Criminal acknowledges that trial court’s jury. He [necessary suggests provocation that “the ones, uniform but instructions mirrored the prove passion be such as to must] heat alter the definition of urges this Court to person in in the passion induce a reasonable in those “adequate provocation” contained Neither Valdez position of the defendant.”59 uniform in instructions.56 In the current any eases that nor the State cite Oklahoma jury, to the struction which was administered depth in discussion of provided have a more as “adequate provocation” is defined provocation be adequate whether should to any improper conduct of the deceased person or a measured how a reasonable naturally rea the defendant which ward person in would have the defendant’s shoes sonably arousing a would have the effect of reacted. passion a reason sudden heat of within person position in the of the defen- able dant_ only basis for Valdez asserts as his real determining de- whether the in Bechtel v. altering the instruction that adequate provoca- ceased’s conduct was State,60 problems recognized the this Court tion, person judged as a the conduct is man” using hypothetical “reasonable intelligence disposition reasonable in cases. Valdez mis- standard self-defense respond would to it.57 holding. Bechtel sanc- construes Bechtel’s argues the instruction should be mod- syn- of the “battered woman tioned the use particular jury a to consider a ified to allow in a de- appropriate cases which drome” subjective state of mind when defendant’s a argues self-defense. We held that fendant adequate making the determination whether (Defense modified version of OUJI-CR disagree. provocation existed. We self-defense; deadly justifiable use of force), subjec- given “in all Battered Wom- employing the should be claims that Syndrome The modified version have al- eases.”61 of reasonableness would tive test any refer- 743 does not contain jury alleged mental of OUJI-CR lowed his to consider “reasonable” or “reason- determining he was ence to the terms infirmities in whether may ably,” factfinder consider the guilty first so that the adequately provoked and thus 457, p. degree to OUJI-CR passion” portion 59. Commission Comment of first 56. The "heat of elements, manslaughter passion has four heat of provocation.” "adequate of which is one (Okl.Cr.1992). P.2d added). (emphasis 57. OUJI-CR 58. Brown v. 61. Id. Scott, Jr., 1989), quoting LaFave & A. Sub W. (2d § ed. 7.10 at 252 stantive Criminal Law 1986). [subjective] “from the

defendant’s actions dant is entitled to a lesser included offense standpoint only of a reasonable battered wom- instruction when there is reasonable justify evidence to an.”62 it.64 The trial court must determine as a matter of law whether the not, claims, This as Valdez Court did rec- presented evidence at trial is sufficient to ognize problems using inherent a reason- justify an instruction on a lesser included person able in all standard self-defense cases. Any offense.65 doubt must be resolved Rather, give recognized we that to full effect administering favor of the instruction.66 The syndrome to battered woman evidence in give failure to lesser included offense instruc- cases, require self-defense instructions must supported by tions the evidence constitutes specifically consider how bat- reversible error.67 must We therefore first tered woman have reacted would under the reasonably determine whether the evidence circumstances. In all other self-defense supported degree depraved second mind eases, OUJI-CR 743 is to be administered in murder instruction. original its form. principle extenuating degree “The elements of second circumstance de 1) praved voluntary manslaughter mind murder are: [in is death of a hu cases] the fact 2) man; defendant, victim, by that the caused conduct which immi when he killed the was 3) nently dangerous passion engendered person(s); in to was a state of in him another 4) (i.e., defendant; by adequate the conduct was that of provocation provoca- an a the depraved tion which conduct evinced a in would cause a reasonable man to mind extreme self-control).”63 5) disregard life; of lose his normal human the conduct Valdez does is not any done taking not raise constitutional or with the intention of other substan- the life of harming any challenge objective particular tive to this individual.68 The reasonable person by evidence in this case standard which Oklahoma law indicates Valdez’s acts intentionally, adequacy provocation purposefully measures the of were indisput neces- ably sary This manslaughter. to reduce murder to directed toward Juan Barron. We evi precluded sponte find dence appropriate this is the alone a sua standard and thus instruc deny tion on proposition. Valdez’s fifth the lesser included offense of second degree murder.69

For proposition, his sixth claims the trial court’s failure to by administer failing also claims that degree voluntary second murder jury murder, intoxi degree instruct the on second cation instructions denied him a provide fair trial. the trial jury court failed to response We note in option to Valdez’s second convicting de of non-capital of a 70 gree murder instruction claim required by that a defen- offense as Beck v. Alabama. 11, State, 88, 62. (Okl.Cr. Id. at n. 10. 69. See Dennis v. 561 P.2d 94 1977) (finding degree second murder instruction Scott, Jr., Law, inappropriate 63. Lafave & where "the Substantive defendant intended to Criminal supra. very persons shoot at the whom he admitted State, shooting.”). Compare Boyd v. 839 P.2d - 1363, (Okl.Cr.1992), denied, State, 1273, (Okl.Cr.1993), 1367 rt. 64. Hooks v. U.S. 862 P.2d 1280 ce - -, 3005, denied, U.S. -, 1870, (1993) 113 S.Ct. 125 L.Ed.2d rt. 697 114 S.Ct. ce (1994); State, (finding degree applicable 128 L.Ed.2d 490 second Fowler v. murder statute 779 580, (Okl.Cr.1989), denied, premeditated P.2d where there was cert. no intent to kill any particular person). U.S. 110 S.Ct. 108 L.Ed.2d 775 70. 447 U.S. 100 S.Ct. 65. Hooks v. 862 P.2d at 1280. (1980) (declaring unconstitutional an Alabama prohibiting judges giving juries statute trial from (Okl.Cr. O’Bryan capital option convicting cases the of defen- 1994). lesser, non-capital supported dants of offenses evidence). Arizona, See also Schad v. Id. 624, 646, 2491, 2505, U.S. 115 L.Ed.2d (1991) (noting goal that the in Beck was to 68. Palmer v. factfinding pro- “eliminate the distortion of the 1994). jury cess that is created when the is forced into given the innocence choice condemned Beck v. Ala- recognizes jury that his was bama. convicting non-capital him of option manslaughter. He degree offense of first next turn claim that We to Valdez’s however, mean- claims, option that this was jury have on should been instructed jury requires the

ingless: Oklahoma because intoxication, voluntary which could defense from adequacy provocation to assess the have shown a lack of criminal intent suffi viewpoint objective, person an reasonable cient to reduce murder conviction mans precludes consideration of the defen- laughter.71 To be to an instruction entitled state, jury in subjective dant’s mental intoxication, voluntary defense of Val never found that this case could have present sufficient had to evidence dez manslaughter a convic- supported evidence concerning his abili raise a reasonable doubt tion. requisite ty to form the criminal intent.72 burden, Had he met this the trial court would Beck v. Alabama nor Schad Neither required to the volun have been administer jury capital in a case require Arizona tary intoxication instruction even absent a third, non-capital given option where be it73 request for absolutely support does evidence present of intoxi- Valdez failed evidence option. did not The evidence this case a reasonable cation sufficient raise doubt degree support murder instruction a second ability premeditated to his to form a intent as properly precluded thus and the and was not entitled to to kill Barron thus considering particular non-capital from voluntary on the intox- instruction defense hand, option. other the evidence On the testify did that he was “feel- ication. Valdez reasonably supported an on the instruction killing. He at the time of the drunk” of non-capital degree of first heat offense ten, approximately that time consumed 3.2 at passion manslaughter, properly and it was However, gave a detailed beers.74 on Despite Valdez’s attack administered. night of description of his actions on the the mea- by the which that instruction standard including prior to killing, his conduct the provocation, adequacy sures of there is the murder, itself, the murder and his conduct portion no that this of the instruc- indication ability following His to the murder.75 re- absolutely prevented jury from tion Valdez’s his claim on these details undermines count of concluding killing that his act constituted the appeal that he was so intoxicated at time manslaughter degree passion of first heat that he not have of the murder could formed degree aforethought rather than first malice to kill.76 the intent to in this free murder. The case was on posi- who the find man in The witnesses observed that a reasonable killing he Ac- the testified that was way night tion have reacted the he did. of also could Miguel spent Rodriguez, faced who cordingly, jury in this case was not not drunk. prior in to all-or-nothing, or the bar capital murder time with Valdez all-or-nothing capital that the beer was of 3.2 alcoholic con- choice between murder the fact innocence.”). tent. State, 71. v. Crawford Further, events— Valdez's account of these 75. State, 1992). Hogan v. See also substantially especially of the murder itself—was (Okl.Cr.1994). by testimony other wit- corroborated 83; nesses. v. v. 881 P.2d at Fontenot Crawford State, 840 P.2d at 638. P.2d at also 76. See Crawford (con- P.2d at 638 See Crawford description (finding "Appellant's that detailed correctly cluding duty that trial court has a to robbery, larceny surrounding burglary, jury on salient of the law instruct the features was demonstrate^] that he in circumstances by request the evidence without a raised defense). mental and not in the control of his faculties attempted] he to state intoxication advanced assert.”). Murphy he 74. Dr. testified had established ten, consumed less than 3.2 beers Valdez had dispute night of the murder. Valdez does not killing, appear did not failing grant testified Valdez to be abused its discretion in Rivera, drunk. who tended bar on motion for mistrial. Gustavo murder, night of the testified that Valdez not, The evidence at issue was as the State did not seem that intoxicated. Alfonso Bor- argues, gestae part of the res of the murder. jas, who was also with Valdez the bar on improper It was other crimes evidence and murder, night testified that he did clearly prejudicial probative. more than not know whether Valdez was drunk. Mar- therefore, question, is whether its admis- Orduna, tin who was with the bar sion warranted a mistrial. This error was killing, and who later witnessed the testified preserved through timely defense counsel’s they not drunk Valdez was when arrived objection and motion for mistrial. The bur- specifically at Valdez’s house. Orduna stated den is thus on the State show that “falling anything. Valdez was not over or admission error did not “result[ ] a miscar- conversing He seemed be real well and riage justice, ] a substantial constitute! right.”77 walked all This evidence did not violation statutory of a constitutional or warrant an instruction on the defense of right....”80

voluntary Accordingly, intoxication. this ar- presented The State and defense conclu- gument proposition six are denied. sive evidence that Valdez killed Barron. Or- potentially prejudicial duna’s remark was not Valdez claims in sev repeated, through either another witness’s en that improper the admission of other testimony closing or the argument. State’s crimes evidence rendered his trial unfair. improper testimony clearly This thus did not Orduna, the witness who saw Valdez kill contribute to the verdict.81 While the re- Barron, testified that Valdez had told him mark could have undermined Valdez’s insani- Barron was not his first murder victim. Or- ty defense, he undermined it himself when he duna testified that as a result of Valdez’s testified —in direct contravention of Dr. Mur- statement, thought guess going “I I’m phy’s insanity theory God did not com- —that be the third [victim].”78 Orduna’s statement Barron, mand him kill that God had not subject had been the of defense counsel’s homosexuals, told to kill that he did not pretrial motion in limine which the trial court sorry Barron, feel for and that Barron had granted. During hearing, the motion gotten coming what was to him. The trial prosecutor the said he was unaware of this grant court’s refusal to Valdez’s motion for agreed information and that its admission mistrial did not constitute an abuse of discre- prejudicial. could be proposition tion. This is denied. trial, spontaneously

At Orduna proposition, made the In ninth his during remarks at issue narrative-style his improper claims the trial court’s admission of testimony. The State photo did not elicit them. a appeared of the victim as in he life While immediately defense counsel requires and suc- During reversal. trial the State cessfully objected, the trial court picture did not showed a of the victim to Barron’s grant brother, Valdez’s motion for younger mistrial or admon- Sammy, and asked him to jury disregard ish the to identify Sammy remarks.79 Val- it. After identified Barron’s appeal dez claims on photo, that the trial object- court unsuccessfully defense counsel Ill, p. 77. Tr. sponte 157. automatically dence] sua does not consti- tute reversible error unless it arises to the level of Ill, p. 78. Tr. O.S.1981, plain 2104(D).”). § error under 12 jury The trial court failed to admonish the O.S.1991, § 80. 20 3001.1. disregard the evidence and also failed to sua sponte jury proper instruct the about the use of State, 1326, Sattayarak 81. See also v. 887 P.2d judge's "other crimes” evidence. The trial fail- (Okl.Cr.1994) (concluding sponte 1331-32 limiting ure to sua that because administer the instruc- against require State's tion does not case murder defendant automatic was over- reversal. See State, 922, (Okl.Cr.1989) whelming, improperly admitting Jones v. error in 925 other (concluding harmless); State, that "the failure of a trial court crimes evidence was Douma v. give limiting 1163, (Okl.Cr.1988). instruction [on other crimes evi- P.2d 749 1166 improper identify photograph. The on of nesses to Barron’s its admission the basis ed to argues appeal that on in ad- foundation. Valdez trial court thus abused its discretion probative value photograph had no Barron’s mitting photo of Barron.84 Given Juan sympa- only jury to garner admitted Valdez, and was overwhelming against evidence thy. repeatedly This has held Court however, we find that error did not this objection specific is made at trial when proposition the verdict.85 contribute to This objec- evidence, no different the admission is denied. appeal.82 Accord- will be considered tion for ingly, proposition this will be reviewed SENTENCING STAGE ISSUES only. plain error argues thir taken Photographs of homicide victims that his death must be vacated teen sentence jury should be admitted to the life upon unconstitutionally it based because was very limited only under circumstances: heinous, vague defining instructions atro Photographs of [homicide] [taken victims aggravator.86 or cruel He claims the cious they are unless alive] while inadmissible physi delimiting phrase describing “serious to some material issue are relevant not cure unconstitutional cal abuse” does relevancy danger of outweighs the their vagueness of the initial of the definition to the prejudice [W]here defendant.... “heinous, or cruel.” We terms atrocious purpose introducing such there is no admin have determined the instruction evidence, in- pictures into such admission meets stan istered this ease constitutional sympathy consti- vokes dards, consistently type and have denied tutes error.83 proposi of claims Valdez now makes.87 This any photograph Barron’s was not relevant is therefore denied. tion against in the case Bar- issue Valdez. While proposition, fourteenth beyond had been rec- ron’s remains burned aggrava argues continuing threat questioned no one he was ognition, whether 88 being unconstitutionally applied. He tor is victim. That the in fact Valdez’s homicide acknowledges that this Court has consistent identity was not an issue was evi- victim’s aggra- constitutionality ly upheld the prosecutor the fact that asked denced However, wit- this Court any himself nor vator.89 asks neither Valdez State, Oklahoma, (Okl.Cr.1994). 108 S.Ct. 82. Wilson v. P.2d (Okl.Cr.1992), (1988) Clayton photo (acknowledging See also L.Ed.2d denied, - U.S. -, value, probative graph's this Court went lack cert. 123 L.Ed.2d harmless); its on to conclude that admission was ("[Cjonsider- 659 P.2d at 326 Boutwell Staggs v. 804 P.2d 458 83. overwhelming against ing the ... the evidence 866, 1991). State, Shelton P.2d See also v. 793 accused, [photographs taken these of the victim (Okl.Cr.1990) (concluding Court “[t]his 870 that tendency to would not have the alive] while encourage photographs the taken does not use of jury.”). unduly prejudice the before their and we caution of victims demise proof prosecutors of to first seek other forms State, O.S.1981, 701.12(4) ("The § was murder prejudicial.”); Rawlings 86. 21 are less v. which 153, heinous, cruel....”). (Okl.Cr.1987) atrocious, (finding especially 161-62 that 740 P.2d "[ajlthough this Court favor admissions does not alive, showing we are photographs the victim of State, 240, Bryson 876 259 87. See v. P.2d opinion photograph relevant that the was of the State, (Okl. 1994); Mayes 887 v. P.2d 1319 of its discov as to its existence the location State, Cr.1994); 1274 Fisher v. State, (Okl. ery.”); v. P.2d 326 Boutwell - -, denied, (Okl.Cr.1992), rt. U.S. ce Cr.1983) (concluding photos showing victim S.Ct. because victim's while alive were relevant issue). identity was not at O.S.1981, ("The 701.12(7) § existence of a State, (hold- Rawlings at 160 probability See v. commit the defendant would ing court has discretion to determine that trial constitute a acts of violence that would criminal prej- probative photo outweighs value whether of continuing society_"). threat to effect). udicial State, 715-16; Trice v. P.2d at 89. See Malone (Okl. Hayes v. P.2d 538-39 85. See P.2d at 220-21. Cr.1987) Hayes grounds vacated other position, arguing specifically support aggravator alleged.93 reconsider its Specifi- the aggravator applied broadly is too cally the regarding great aggra- of risk death supported solely by since it can be evidence vator, this Court has held that “it is not the of the circumstances of the murder itself. person sup- death of more than one which prior no Because Valdez had documented [it], ports but the defendant’s acts that create conduct, history of criminal did in State of the risk death to another which are in rely solely fact on the circumstances sur- proximity, time, close in terms of location rounding support the murder to the continu- killing and intent to the act of itself.”94 aggravator. threat prove great aggrava- To risk of death Valdez does not claim that the evidence case, argued tor in this the State in the Bill presented in his case was insufficient to es- of Particulars that Valdez threatened to kill jury’s finding continuing tablish the if Orduna killing [Orduna] interfered with the aggravator. simply argues threat He that as help of Barron or dispose refused to a matter of law the circumstances of the trial, body. At Orduna testified that capable sup- murder alone should not be stop cutting when he tried to Valdez from porting aggravator. this This Court has con- knife, Barron with the Valdez asked Orduna sistently rejected argument.90 Ac- if he wanted to die as well. Orduna testified cordingly, is denied. throat, that after Valdez had slit Barron’s proposi Valdez claims in his twelfth became seared. Valdez ordered Orduna to tion that his death sentence should be vacat up clean the blood. Valdez also intimidated great aggravat ed because the risk death telling scared Orduna him that he being applied or91 unconstitutionally is (Valdez) had killed before. Orduna wanted because the evidence in this ease was not leave, to run to his car and but testified he support sufficient to it. This Court has con thought Valdez would shoot him if he tried to sistently upheld constitutionality of this escape. emphasize To his desire that aggravator, both itas is defined and as it is secret, killing kept be Valdez also asked Or- being applied.92 Valdez raises no new theo duna thing whether he wanted the same ries that cause us to reexamine our conclu happened happen to Barron [to] to him. sion. During closing, the State reiterated Orduna’s do, however, agree We that the evi claim that Valdez threatened to kill him if he dence in support this case was insufficient to anyone killing.95 told about the jury’s knowingly conclusion that Valdez great published created a Of the risk of death to more than cases to date which this person one sup- when he killed Court has found sufficient Barron. When evidence to reviewing sufficiency port great sup aggravator, only the evidence risk of death porting aggravator, this Court four involved facts considers similar to those here— light person evidence most favorable to where the found to have been at risk competent the State and asks whether it injured.96 was not also Even these four fac- appeal, 90. See Malone v. argues 876 P.2d at n. 10. 95. On that Orduna's testi- mony should be discounted because it was un- O.S.1981, 701.12(2) ("The § 91. 21 true. defendant Valdez attached an affidavit from Victor knowingly great Grady County jail created a risk of Chevere who was in the death more person. Boijas during they than one Orduna and the time were being held as material witnesses in this case. State, 716; Boijas 92. Chevere claims he See Malone v. 876 P.2d at overheard tell Orduna Snow v. State, 291, (Okl.Cr.1994); that he 876 P.2d "must tell the authorities Mr. 299 Trice v. State, help 853 P.2d at threatened his life and made 219. Orduna dispose of the evidence or the authorities would State, charge participant Bryson Orduna as a 93. v. in the crime.” 876 P.2d at 259. See also Brief, State, Appellant's (concluding Exhibit 4. Malone v. 876 P.2d at 717 independently this Court will review the evidence supporting aggravator cases, following at issue to endangered by- determine 96. In the sufficiency). its great standers who suffered a risk of death were either in the line of the defendant’s fire or were State, injured contemporaneously actually Snow v. 876 P.2d at 297. killed

383 killing peo- seriously considered those cases critically different tually cases are similar pie other than the actual victims.97 Valdez’s, because the defendants from 3524, denied, 1246, State, S.Ct. 82 467 U.S. 104 896 P.2d 537 See Neill v. the defendant. (1984) (defendant (defendant (Okl.Cr.1994) people murdered three three dur L.Ed.2d 831 killed State, house); robbery); people State, 887 P.2d in the same Dutton v. McCracken v. who were bank 1994) (defendant (Okl.Cr.1984) (defendant (Okl.Cr. four victims shot 323 674 P.2d 1134 State, robbeiy); 301 during robbery, Walker v. 887 P.2d fatally and also shot one victim (Okl.Cr.1994) (defendant State, mother); to death his stabbed 665 victim’s v. shot the Stafford State, uncle); girlfriend v. 876 (Okl.Cr. 1983), and her Malone other 1205 vacated on P.2d (defendant opened on homicide Oklahoma, 1212, fire P.2d 707 grounds v. 467 U.S. in Stafford nearby porch, on while two men stood (defen victim 2651, (1984) 81 L.Ed.2d 359 104 S.Ct. talking people sat inside and children several workers); six restaurant Davis v. dant executed State, outside); played Snow v. 876 P.2d 291 denied, State, (Okl.Cr.1983), rt. 665 P.2d 1186 ce cubicle, (defendant private but killed victim in 203, 865, 104 S.Ct. 78 L.Ed.2d 177 464 U.S. victim's husband when he attacked and stabbed (1983) (defendant people shot and killed two and State, her); Long looking 883 came for v. there State, others); v. 648 P.2d wounded two Jones 1994) (defendant (Okl.Cr. brutally and P.2d 167 denied, 1155, (Okl.Cr.1982), rt. 459 U.S. 1251 ce simultaneously and stabbed to death a mother 799, (1983) (defen 74 L.Ed.2d 1002 103 S.Ct. State, (Okl.Cr. son); 1289 her Ellis v. 867 P.2d victim, injured critically shot and dant killed one scene, (at 1992) crime defendant shot initial State, (Okl.Cr.1980), others); Chaney v. 612 P.2d 269 two critically; people, fatally at three one and one denied, 1025, 450 U.S. 101 S.Ct. t. cer scene, subsequent crime defendant killed two 1731, (1981) (defendant L.Ed.2d 219 mur 68 people); people Paxton more and shot two more women). dered two State, (Okl.Cr.1993) (defendant v. 867 P.2d 1309 house, range people at close in a small shot three four, victim the first of those the homicide In continuing pursue fatally injuring one and in the who was shot in her home was a woman State, two); remaining 203 Trice v. 853 P.2d awoke, night. saw middle of the Her husband 1993) (Okl.Cr. (defendant raped bludgeoned and floor, living out of bed her to the room rolled fall woman, elderly beat her death an and also gun. grabbed defendant shot three and his eventually severely that he lost retarded son so empty bed. This Court found the times into the State, (Okl.Cr. eye); 20 v. 832 P.2d Stafford great a risk of death to more defendant created 1992) (defendant family and killed a of three shot person empty when he shot at the bed. than one car); they stopped help him with his when State, 889, (Okl.Cr.1987), 898 v. 732 P.2d Brecheen State, (Okl.Cr.1991) (defen 817 P.2d 737 Stout v. denied, 909, 1085, 485 U.S. 108 S.Ct. rt. ce husband); v. dant killed his sister and her Sellers (1988), 244 overruled on other 99 L.Ed.2d denied, State, (Okl.Cr.1991), rt. 809 P.2d 676 ce State, grounds in Brown v. 871 P.2d 56 912, 310, L.Ed.2d 252 U.S. 112 S.Ct. 116 502 (1991) (defendant 1994). in the second case was The victim they lay parents killed his as choked, eventually shot to death. stabbed bed); State, sleeping 779 P.2d 562 in their Fox v. acquaintances who ordered some The defendant 1060, denied, (Okl.Cr.1989), 110 cert. 494 U.S. keep quiet. killing up to clean witnessed 1538, (1990) (defendant 777 S.Ct. 108 L.Ed.2d would was evidence that the defendant There grocery employees room three in back murdered they cooper bystanders shot these have case Fowler of the store—see also codefendant's defendant her. This Court found the ated with denied, State, (Okl.Cr.1989), 779 P.2d 580 rt. v. ce great bystanders knowingly placed these risk 1060, 1537, 110 S.Ct. 108 L.Ed.2d 775 494 U.S. State, 1366, 1373 v. of death. Smith State, (Okl.Cr.1988), (1990)); Nguyen v. 769 P.2d 167 denied, 1033, (Okl.Cr.1986), 483 U.S. cert. 3264, denied, 925, U.S. 109 S.Ct. rt. ce 106 L.Ed.2d 609 (1987). 3277, In the third 97 L.Ed.2d 780 S.Ct. case, (1989) (defendant killed woman to shoot a clerk if the defendant threatened rooms of and two small children in different cooperate Court with him. This she did not State, house); v. 738 P.2d 1349 same Stauffer rt. shooting act of the defendant’s found that denied, 1036, (Okl.Cr.1987), 484 U.S. ce willing killing nearby policeman showed 763, (1988) (defendant shot L.Ed.2d 779 S.Ct. clerk, cany thus his threat to the ness to out fatally, parts people, of same two one in different placing great death. Ross v. her in risk of (Okl.Cr.1984), house); Bowen v. 715 P.2d 1093 117, (Okl.Cr. 1986), affirmed, 487 denied, 473 U.S. 105 S.Ct. rt. ce S.Ct. 101 L.Ed.2d U.S. (defendant (1985) shot and killed 87 L.Ed.2d 660 similar to those in the fourth case with facts party); Cartwright they men as left three Valdez’s, shot and killed the defendant had (Okl.Cr. 1985), other 695 P.2d 548 modified thereafter, Shortly defendant while the man. Cartwright, grounds Maynard yelled leaving, teenagers car at (defen some in a (1988) pulled out his home, The defendant and taunted him. leg couple's woman in dant entered shot causing husband); teenagers, them gun pointed it at the and fatally shot her Stout and throat and denied, escape. light This State, (Okl.Cr.1984), in an effort to to run a red P.2d 617 rt. v. ce knowingly had that the defendant Court held S.Ct. death); Hays teenagers great death. (1985) (defendant placed in risk of people Ro the two to beat State, (Okl.Cr.1980). 1984), State, cert. P.2d bison v. case, Orduna, eyewitness, breathing, In this the had so he retrieved a knife cut and years. Orduna, known Valdez for about three According While Barron’s throat. to Bar- Orduna did witness Valdez commit a horrible ron shook and then died. act, frightening he also seemed to under- argued support The State in of the con- anger stand that was directed to- tinuing aggravator threat that the murder of Assuming

ward Barron and not him. Ordu- callous, Barron was senseless and and that telling na truth was the when he testified Valdez had shown no remorse for what he that kill if Valdez had threatened to him he had done. Some the additional evidence help dispose body, did not Valdez of Barron’s supporting continuing aggravator the threat question thereby the is whether Valdez came from testimony. Valdez’s own great knowingly placed Orduna risk of got coming testified that Barron what was evaluating great death. After the risk of him, might repeat and that he his acts if comparing death evidence in this case and it again faced with the same circumstances. cases, presented comparable to that we stage mitigating First evidence included conclude that he did not and that the evi- testimony that Valdez suffered from mental support dence was thus insufficient to the problems and that he was under a delusion jury’s finding.98 when he killed Barron. pre- The defense

Having that concluded the evidence mitigation sented two witnesses support great was insufficient to risk of stage Valdez, second of trial. Delfena Val- aggravator, reweigh death we mother, must the re dez’s testified that her son had never maining aggravating two valid circumstances fighter, peace been a loving but been a against mitigating evidence to Maria, determine person. Valdez’s wife of thirteen whether Valdez’s death sentence can stand.99 years, couple testified that had three We must vacate the death sentence children, unless that she had never known her hus- beyond we can conclude a reasonable doubt person, band to be a violent and that she did jury that the imposed would have it absent put not want State him to death. great aggravat the now invalid risk death stage jury Second instruction No. 7 informed or.100 presented evidence had been support following mitigating circum- remaining The two aggravators valid are adult, stances: that as both a child and an 1) heinous, especially the murder was might physical have suffered from 2) atrocious or cruel and that Valdez will problems; and mental cooperat- that he had pose continuing society. threat officials; ed with law enforcement that he cruelty physi- evidence of extreme or serious had consumed alcohol committing before supporting heinous, cal abuse atrocious killing; religious; that he was that he had a aggravator eyewitness cruel came from children; wife and prior three that he had no testimony describing Barron’s final hours of violence; history of steady job; that he had a life, testimony. as well as from Valdez’s own transient; that he was not a drifter or Orduna testified that Valdez forced Barron man; and, family awas that he had been strip began beating him with his fists. truthful. Valdez then shot Barron twice in the fore- die, immediately head. Barron did not but presented support The evidence kept struggling heinous, repeating with Valdez and atrocious or continuing cruel and my “Oh God.” aggravators Valdez then struck Barron on threat compelling. Con- gun. the side of the head versely, with his potential the record’s mitigating evi- testified he noticed that Barron was still carefully dence was insubstantial. After State, testimony 299; improper 98.Part of Orduna’s included Snow 876 P.2d at Trice v. concerning possible other crimes evidence 221; 853 P.2d at Stout v. previously murder Valdez had committed. This (Okl.Cr.1991). support great ag- was used to risk of death gravator. Though we have determined that this 100. Snow v. 876 P.2d at 299. verdict, jury's admission error did not affect the may it have bolstered an otherwise weak case for great aggravator. risk of death

385 in this same contention ag- We addressed reweighing the two valid independently State,104 Long v. that the and concluded writ- against mitigat- the gravating circumstances the trial instruction did not conflict with evidence, beyond a reason- ten conclude we jury limit- was jury “[t]he in would court’s oral instruction: the this case doubt that able [sentencing] [second in consideration to if it had ed its to death even have sentenced Valdez open presented in stage] court.”105 great risk of death matters the invalid not considered no indication this case There is aggravator.101 during sentencing jury was confused proposition considering fifteen that it argues phase, especially the fact Valdez jury precluded support from evidence to all three that because found sufficient during the considering stage alleged aggravators. proposition evidence This is de- first trial, insuf stage of the evidence was second nied. alleged aggrava- prove the three

ficient to argues proposition sixteen sentencing beginning At the tors. stage anti-sympathy instruction that the first incorporate the moved to phase, the State sentencing phase pre incorporated into the stage of stage into the second first evidence fully effectively jury from vented judge granted this motion trial. The trial considering mitigation evidence. We orally jury that it would be advised rejected argument.106 consistently this have testimony that was “allowed to consider the proposition This is denied. guilt or determination previously given at the just complet seventeen, guilt phase the trial ... proposition 102 However, sentencing phase stage instruc adminis ed.” the second instructions claims jury making constitutionally that in tion No. 12 informed the tered in this case were determination, it could “con sentencing they its to make clear to flawed because faded open only here in jurors they the evidence received not have to unani sider did mitigating the defen presented agree the State and mously court on the existence sentencing phase of this they could consider it. This dant evidence before rejected argu proceeding.”103 consistently has Court ment, concluding that current instructions jury could have inter- claims they standards because Supreme meet Court contradictory allegedly instruc- preted these jury unconstitutionally prevent do not any that it could not consider tions to mean mitigating considering evi from a defendant’s making stage when its of the first evidence proposition is denied. dence.107 This regarding existence of the determination eighteenth proposition, Val For his He then claims that be- aggravators. three failing instructions, erred in confusing of dez claims the trial court none cause of these returning a option it necessary prove tell the stage evidence the first findings on regardless of its it into the life sentence aggravators ever made the three mitigating We aggravating and evidence. rendering the stage of the trial —thus second consistently are held that defendants support aggra- those have insufficient to evidence “jury nullifi instruction on object trial not entitled to an failed to to the vators. Valdez 108 is therefore de This all but cation.” and thus waived court’s instruction nied. plain error. 1319; State, State, Mayes at Revilla v. 887 P.2d also 106. See v. 876 P.2d at 300. See

101. See Snow State, (Okl.Cr.1994); State, v. 877 P.2d McGregor v. 885 P.2d State, at 216. 1994). Trice v. 853 P.2d 1319-20; State, Mayes 887 P.2d at 107. See v. V, p. 102. Tr. State, 262; State, Bryson P.2d at Carter v. v. (Okl.Cr. 1994). 1234, 1252, n. 14 879 P.2d added). (emphasis 103. O.R. 262-63; Bryson 876 P.2d at 108. See (Okl.Cr.1993), 104. 883 P.2d at 176. Pickens - -, denied, U.S. cert. (1994); added). Romano v. (Emphasis L.Ed.2d Id. gave extrajudicial MISCONDUCT killing PROSECUTORIAL confession to the ISSUES and then again recounted the details once stand, from the witness it is clear that the eighth proposition, In his Valdez prosecutor’s misconduct did not contribute to prosecuto- claims that numerous instances of jury’s finding the that Valdez indeed commit- rial misconduct rendered his trial unfair. ted the acts for which he was on trial.111 disagree. prose We Valdez first claims the Therefore, appear prosecu- it does not the cutor introduced inadmissible “other crimes” tor’s error undermined Valdez’s case or de- initially evidence. He attacks the admission prived him right of the fair trial. concerning prior Orduna’s statement may murder which Valdez have committed. Third, prosecutor Valdez claims the We addressed this error seven argued misstated the evidence and facts that and concluded that it did not contribute to supported by were not the evidence. He prose the verdict. Valdez next attacks the points prosecutor’s statement, first to the testimony cutor’s elicitation showing during stage closing, first that Valdez had may have taken the victim’s social rope beaten Barron with a and had taken two security burning body. card before It hours to kill him. Because defense counsel appears prosecutor elicited this testimo object portion prosecu did not to this of the ny in insanity order to refute Valdez’s de argument, tor’s we will review this claim for fense and not to show that Valdez had com plain only.112 error light mitted a overwhelming theft. guilt case, support prosecu- The evidence did not any possible evidence of may effect this tor’s conclusion that Valdez jury evidence have had on had beaten Bar- inconsequential. rope. ron with a overwhelming Given the however, guilt, evidence of this minor misin- Secondly, prosecu Valdez claims the terpretation Further, error was harmless. tor proper exceeded the bounds of conduct jurors prosecutor told begin- at the when weapons he showed Valdez the murder ning of any discrepancy his statement that if knife) (gun and asked to demon existed between the argued facts he and the strate how he had used them to kill Juan they be, facts as they remembered them to object, Barron. Defense counsel did albeit rely memory. should on their unsuccessfully, prosecutor when the asked gun, stating Valdez to look at the ‘We don’t Concerning prosecutor’s state having want him gun in his hand.”109 ment that Valdez took “about an hour and complied prosecutor’s with the re probably Barron, two”113 to kill this com quests apparently demonstrated to the hardly ment seems misrepresenta a factual jury what he had done Barron. given tion the rather inconclusive evidence. prosecutor Orduna testified that improperly acted the three men re- arrived questing that at Valdez’s residence at Valdez reenact the murder for about 3:00 or 3:30 a.m., which he was on trial. Even if such a Valdez and reen- Orduna left at remotely relevant, actment poten- were about 6:00 a.m. Neither Valdez’s nor Ordu- tially prejudicial might testimony exactly effect this have had na’s revealed how much precluded on the passed should have its time admis- between their arrival and Bar sion.110 Considering the fact testimony ron’s death. While from both Val- (Okl.Cr.1993), affirmed, might Romano v. 111. While this misconduct have affected Oklahoma, -, insane, jury's refusal to find Valdez (1994). L.Ed.2d 1 testimony own further weakened his in- rather insanity substantial defense. V, p. 109. Tr. 1252-53; 112. See Carter 879 P.2d at e.g., 110. See Ford v. (Okl.Cr.1986) (modifying fifty-year Trim v. sentence 699-700 twenty-five concluding prosecutor's after that the demand cross-examination that defendant V, p. 113. Tr. n pick up weapon the murder and show how he condoned.”). used it “is not to be right to a fair trial.115 killing prived Valdez of suggest that did dez and Orduna denied. they proposition is therefore arrived This an hour after place -within took house, remains time frame at Valdez’s ASSISTANCE INEFFECTIVE prosecutor did assuming the sketchy. Even ISSUES OF COUNSEL took close incorrectly suggest that it Valdez Barron, kill this comment hours to to two proposition, Valdez claims his his tenth objection and is thus not met with was per- was so ineffective that his trial counsel ap- It only plain error review. subject reliability of Val- formance undermined any possible error did not contribute pears “Appellate and sentence. dez’s conviction the verdict.114 of counsel review of an ineffective assistance presumption compe- of begins claim with a misrepresenta factual part As of his tence, upon defendant and the burden is that the Bill of argument, claims tion Valdez performance both a deficient to demonstrate during second Particulars —read to the ultimate resulting prejudice.”116 The and as if Barron had been stage it sound —made whether, allegedly defi- is but for the test para In the burned him. alive when Valdez of the trial performance, the result cient describing supporting the graph the evidence is different.117 Since Valdez would have been heinous, aggravator, cruel atrocious or claiming that ineffective assistance of counsel shooting slitting and throat bill describes the as to his sentence of death well contributed subsequently then states that Valdez conviction, must murder this Court as to his body into ash. This the victim’s incinerated a reason- “whether there is also determine misstatement, clearly it ex not a since is errors, that, probability absent the able Barron but burning was not of plains that the that the ... would have concluded sentencer Further, body. while evidence of his mitigating cir- aggravating and balance of support body burning did not post-mortem did not warrant death.”118 heinous, cumstances aggravator, atrocious or cruel prosecutor did that the the record reflects trial counsel first claims his Valdez attempt this evidence to bolster to use challenge he failed to ineffective because aggravator. competency. expert’s finding of the State Fourth, prosecutor claims the many questions a list of defense provides He during cross- denigrated him badgered and expert Quinn to ask Dr. counsel failed State’s to ob- Defense counsel failed examination. that Valdez was regarding his determination comments, ject allegedly denigrating to these trial. It is clear defense competent to stand waiving plain error review. We thus all but any partic required to follow was not counsel plain find no error. Quinn questioning Dr. ular checklist when Even absent his evaluation Valdez. prosecutor used about Lastly, claims the con suggested questions, the record stages of trial that were tactics both the tri evidence from which tained sufficient sympathy for the victim. intended to elicit that this Court could determine al court and again, contemporaneous no there was Once ability present tactics, possessed sufficient alleged we do Valdez objection to these lawyer as well and a rational consult with his they plain error. not find that constituted understanding proceedings unpreserved in- as factual preserved or None of the against him. We determined misconduct alleged prosecutorial stances of not abuse its that the trial court did they de- one flagrant so in this case were 79, (Okl.Cr.1994), also 881 P.2d at 86. See Fontenot v. v. 96 114. See Allen 668, 687-89, denied, Washington, - U.S. -, Strickland v. 115 S.Ct. cert. 2064-65, (1984). S.Ct. 104 (1994). 130 L.Ed.2d Lock at 2068. See also Id. at 104 S.Ct. P.2d v. 115. See Freeman Fretwell, U.S. -, 113 S.Ct. hart 1994) (concluding will that a conviction L.Ed.2d prosecutorial mis a result of not be reversed as flagrant Washington, 466 U.S. at were so unless the comments 118. Strickland conduct defendant). at 2069. they prejudiced the concluding Fourthly, was com- discretion Valdez claims defense counsel was ineffective because he failed to petent trial. Even if defense coun- to stand investigate present testimony to rebut overwhelmingly sel did not conduct an com- supporting the State’s evidence the three Quinn prehensive interrogation Dr. alleged aggravators. The fact that a defense competency, issue of Valdez’s there is not a attorney investigated could have an issue probability reasonable that had he done so not, thoroughly itself, more does in and of proceeding would have result been constitute ineffective assistance.120 Victor different.119 Chevere, jail Borjas who was in trial, prior allegedly Orduna to Valdez’s over Secondly, Valdez claims defense discussing impend heard the two men their counsel was ineffective because he failed to ing testimony. In an affidavit attached to suppress to file a motion Valdez’s confes brief, Borjas Chevere states told sions, a Jackson-Denno request failed to prosecution, Orduna that to avoid he had to hearing on the voluntariness of the confes testify that help dispose Valdez made him of sions, request to and failed instructions ex body. Barron’s While Valdez claims defense plaining extra-judi admissions standards for failing counsel was ineffective in to call this proposi cial confessions. We concluded might helped available witness who have re extra-judi tions two and three that Valdez’s “great but the State’s risk of death” evi properly cial confessions were obtained. Ac dence, presents no evidence to show that cordingly, defense counsel’s failure to file a defense counsel knew of Chevere at the time suppress prejudice motion to them did not support of trial. This claim does a con Valdez. Defense counsel’s failure to subse clusion that performance defense counsel’s Jackson-Denno quently request a hearing was deficient.121 ineffectiveness, did not constitute because finally, Fifth and claims de present question evidence did not fense counsel was ineffective because he voluntarily whether Valdez confessed. Final object failed to to numerous instances of ly, defense counsel was not ineffective prosecutorial proposition misconduct. failing request jury given that the be eight, alleged we reviewed the instances of “voluntary custodial confession” instruction: prosecutorial misconduct and determined because there was no issue as to whether arguably improper that none of the tactics voluntary, Valdez’s confessions had been flagrant they deprived were so Valdez of rightly precluded was considering from right to a fair trial. Defense counsel’s this matter. object improper failure to nonprejudi but prosecutorial cial trial tactics did not consti Thirdly, Valdez claims defense counsel was tute ineffective assistance. request ineffective because he failed to in- degree on structions second murder and vol- performance Defense counsel’s in this ease untary propo- intoxication. We concluded did not proper undermine[ “so the] function- sition six that the support evidence did not process of the adversarial that the trial either of these instructions. coun- Defense cannot having produced just be relied on as request not, sel’s failure to them did there- result.”122 Even if defense counsel failed to fore, object constitute ineffective assistance. prosecutorial to some instances of mis- Strickland, 694, Washington, hindsight, 119. 466 U.S. at to reconstruct the circumstances of conduct, 104 S.Ct. at 2068. challenged counsel's and to evaluate the time). perspective conduct from counsel’s at the 384, (Okl.Cr.1991), Williamson - denied, -, t. U.S. 112 S.Ct. cer 121. This issue has been rendered moot (1992); 118 L.Ed.2d 308 Boltz v. Court's determination that there was insufficient (Okl.Cr.1991), denied, P.2d cert. support great aggra- evidence to risk of death U.S. vator. Brown, See also Dutton v. 812 F.2d (10th Cir.1987) (holding that a fair assessment of attorney performance requires Washington, every effort Strickland v. 466 U.S. at distorting be made to eliminate the effects S.Ct. at 2064. conduct, any “great intent risk of error did not influence the evidence of his and the one impose person” aggravator. to more than jury’s the death sentence. death decision is denied. This therefore affi- In footnote 95 Court refers to an County Grady inmate in davit from an MANDATORYSENTENCE REVIEW affidavit, ex-parte Jail with Orduna. This duty, statutory we In accordance with our Appel- trial and obtained after attached (1) the death now determine whether must brief, proper part not a the record lant’s is imposed influence of under the sentence play part in our appeal and should no arbitrary any or prejudice, other passion, ease. re- review of the This Court should (2) factor, supports whether the evidence created its review the record strict statutory finding alleged jury’s court mat- through proceedings the trial are satis- aggravating circumstances.123 We properly through prescribed added ters any passion, prejudice nor fied that neither process out in Rule 3.11 supplementation set arbitrary factor to the other contributed rules. of this Court’s sentencing After care- jury’s determination. Further, reviewing Appellant’s claim considering presented, we fully evidence trial court’s of his determination jury’s amply supported it find that also competency process, opinion violated due heinous, cruel and finding of the atrocious or plain only. agree error I reviews for aggravators. continuing threat but scope of review base that decision Finding warranting no error reversal Simpson v. this Court’s decision modification, Judgment of and Sentence (Okl.Cr.1994). P.2d 694-695 This Court trial court is AFFIRMED. applicable case should use its own law where referring to as this rather than federal law JOHNSON, P.J., and LANE and ability to apply our evidence Court has JJ., STRUBHAR, concur. differently The than federal courts. code J., LUMPKIN, concurring plain in results. scope and method error review Simpson. out in set LUMPKIN, Judge, concurring results. in the the first

I concur affirmance of imposition

degree murder conviction and the However, penalty. I find the

of the death vacating death “great of the risk of

Court’s person” aggravating one cir-

to more than supported by facts or is not

cumstance law.

prior case ROBINSON, Appellant, Deon v. Smith In Walanzo denied, 1033, 107 (Okl.Cr.1986), cert. (1987) Hays 97 L.Ed.2d S.Ct. Oklahoma, Appellee. (Okl.Cr.1980), this STATE P.2d aggravator under similar upheld the Court No. F-90-670. pointed wherein the defendant circumstances threatening bystanders. at gun in a manner Appeals of Oklahoma. Court of Criminal Further, that he by Appellant statements May should be previously committed murder ag- supporting as evidence Rehearing Aug. considered Granted not intro- gravator. statements were crime, but were as evidence another

duced closely murder as to be related

so part gestae as the res

admissible fact, are direct the statements

offense. O.S.1981, 701.13(C). §

123. 21

Case Details

Case Name: Valdez v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Mar 15, 1995

Citation: 900 P.2d 363

Docket Number: F-90-461

Court Abbreviation: Okla. Crim. App.