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George OCHOA

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Burglary
Number of victims: 2
Date of murder: July 12, 1993
Date of arrest: Same day
Date of birth: August 6, 1964
Victim profile: Francisco Morales, 38, and his wife Maria Yanez, 35
Method of murder: Shooting
Location: Oklahoma City, Oklahoma County, Oklahoma, USA
Status: Sentenced to death on March 21, 1996. Executed by lethal injection in Oklahoma on December 4, 2012
 
 
 
 
 
 

Summary:

38 year old Francisco Morales and his 35 year old wife, Maria Yanez, were shot and killed in the bedroom of their home in the early morning hours. Morales was shot 12 times and Yanez was shot 11 times.

The sound of the gunfire woke Yanez’s 14-year-old daughter, who called 911 before looking out her bedroom door. She saw two men, and eventually identified them as Ochoa and Osvaldo Torres.

Ochoa and Torres were arrested a short distance from the murders. A short time before the shootings, Torres and Ochoa parked their car at a friend’s house, and a witness observed one of the men take a gun from the trunk of the car and put the gun in his pants.

Both Torres and Ochoa were tried and sentenced to death for the murders. However, in 2004 former Gov. Brad Henry commuted Torres’ sentence to life in prison without the possibility of parole. During his 2004 clemency hearing, Torres admitted that he had planned to burglarize Morales’ and Yanez’s home. “I never killed anyone. And I never knew George was going to kill anyone.”

Citations:

Ochoa v. State, 963 P.2d 583 (Okla.Crim. App. 1998). (Direct Appeal)
Ochoa v. State, 136 P.3d 661 (Okla.Crim. App. 2006). (PCR)
Ochoa v. Workman, 451 Fed.Appx. 718 (10th Cir. 2011). (Habeas)

Final/Special Meal:

A large meat lover’s pizza and a large Coke.

Final Words:

“I’m innocent."

ClarkProsecutor.org

 
 

Oklahoma Department of Corrections

Inmate: GEORGE OCHOA
Alias: Juan Lopez, Jorge Salaises
ODOC# 243148
Birth Date: 08/06/1974
Race: Hispanic
Sex: Male
Height: 5 ft. 09 in.
Weight: 150 pounds
Hair: Black
Eyes: Brown
Convictions:

CASE# County Offense Conviction Term Start

93-4302 OKLA Murder In The First Degree 03/21/1996 DEATH Death 04/01/1996

 
 

Oklahoma Attorney General

News Release

12/04/2012

George Ochoa - 6 p.m. Oklahoma State Penitentiary in McAlester

Name: George Ochoa
DOB: 08/06/1974
Sex: Male
Age at Date of Crime: 18
Victim(s): Francisco Morales, 38 Maria Yanez, 35
Date of Crime: 07/12/1993
Date of Sentence: 03/21/1996
Crime Location: Victim’s home in Oklahoma City
Judge: Charles Owens
Prosecuting: Robert Macy and Susan P. Caswell
Defending: Kurt Geer and Bert Richard

Circumstances Surrounding Crime:

Ochoa was convicted and sentenced to death for the first-degree murders of Francisco Morales and Maria Yanez. The murders occurred in the early morning hours of July 12, 1993. Ochoa and an accomplice broke into the Morales home while the family was asleep. Ochoa immediately entered the bedroom where Morales and Yanez were sleeping and shot both victims. Morales and Yanez each suffered a minimum of nine gunshot wounds.

The victim’s three children were in the home at the time of the murders and were awakened by the sounds of gunshots. Yanez’s daughter initially denied knowing the two men, but eventually identified Ochoa as the man in her home wearing a dark shirt. Morales’s son, although unable to see a face, saw the man in the dark shirt, Ochoa, shoot his father. En route to the crime scene, police stopped Ochoa and his accomplice who were walking nearby. The men, who matched the description given by the victim’s children, appeared nervous and sweaty.

In October 1995, Ochoa was tried for two counts of murder and burglary in the first degree. During deliberations, the jury was unable to reach a verdict and the court declared a mistrial. In March 1996, Ochoa was retried and found guilty of all counts and sentenced to death for the two murder counts. Ochoa also was given 20 years for burglary.

Statement from Attorney General Scott Pruitt:

“George Ochoa was found guilty by a jury of his peers and given the death sentence for ending the lives of Francisco Morales and Maria Yanez,” Attorney General Scott Pruitt said. “My thoughts are with the family, especially Francisco and Maria’s children, for what they have endured for the past 19 years.”

 
 

Oklahoma to execute inmate for 1993 home-invasion killings

By Steve Olafson - Reuters.com

Dec 4, 2012

OKLAHOMA CITY | (Reuters) - A man convicted of killing a couple in their bed in 1993 was scheduled to be executed on Tuesday, despite claims by his attorney that he should be spared because he is insane.

Federal courts in Oklahoma and Denver refused on Monday to stop the execution of George Ochoa, 38. He and Osbaldo Torres were convicted of first-degree murder in the shooting deaths of Francisco Morales and Maria Yanez in Oklahoma City. Ochoa would be the sixth person executed in Oklahoma in 2012 and the 41st in the United States this year if his lethal injection is carried out as scheduled at 6 p.m. CST (7 p.m. EST) at a state prison in McAlester.

U.S. District Judge David Russell of the Western District of Oklahoma and the U.S. 10th Circuit of Appeals in Denver denied last-minute claims that Ochoa's mental health had deteriorated so greatly that he should not be executed. Ochoa's appeals have focused on his mental state since the 2002 U.S. Supreme Court ruling that mentally incompetent people cannot be put to death. His attorney, James Hankins of Oklahoma City, has said in court documents that Ochoa has become so irrational that he can no longer communicate with him.

Authorities never determined a motive for the slayings, which occurred while three children were in the home. Ochoa has maintained his innocence. Torres, a Mexican also convicted and sentenced to death, had his sentence commuted to life in prison without parole in 2004.

The ruling led the federal appeals court in Denver to order a new trial to determine Ochoa's mental competency at the time of the killings. A jury in 2005 decided he was not mentally retarded.

 
 

Oklahoma executes man for 1993 shootings

By Sean Murphy - News=K.com

December 5, 2012

McALESTER — A death row inmate was executed Tuesday for the 1993 shooting deaths of an Oklahoma City couple. George Ochoa, 38, was given an injection of lethal drugs at the Oklahoma State Penitentiary at McAlester. He was pronounced dead at 6:07 p.m. The punishment came less than a month after the state Pardon and Parole Board rejected Ochoa’s request that it recommend Gov. Mary Fallin reduce his death sentence to life in prison.

Ochoa is one of two men convicted of first-degree murder in the shooting deaths of Francisco Morales, 38, and Maria Yanez, 35. Investigators say Morales was shot 12 times and Yanez 11 times in their bedroom on July 12, 1993. The couple’s three children were inside the house at the time of the shootings.

Ochoa claimed he had been shocked and suffered injuries during his incarceration, but prosecutors said his claims of hallucinations and harm were likely an attempt to feign mental incompetence. Courts prohibit the execution of people who do not understand why they are being punished. Officials said earlier psychological evaluations showed no evidence of delusions or hallucinations, and that claims about such didn’t start until he was charged.

Ochoa lost a late attempt at having his execution postponed when the U.S. Supreme Court on Tuesday denied his request for a stay. A federal appeals court on Monday rejected arguments that Ochoa was mentally unfit to be executed and a challenge to the state’s procedure for determining sanity.

Prosecutors said there was little evidence to suggest a motive for the killing, but no doubt that Ochoa and his co-defendant, Osbaldo Torres, 37, were responsible. Ochoa and Torres were stopped by police near the crime scene and were described by police as “sweating and nervous,” court records show. Torres, a Mexican citizen, was also convicted of first-degree murder and sentenced to death in the shootings, but his sentence was reduced by then-Gov. Brad Henry in 2004. Henry imposed a sentence of life without parole after Mexican government officials raised concerns that Torres was not given a chance to speak with the Mexican consulate after being accused, as required by international conventions.

 
 

Oklahoma death row inmate’s last words: 'I’m innocent'

By Rachel Petersen - McAlesterNews.com

December 4, 2012

McALESTER — Death row inmate George Ochoa, 38, was the sixth inmate to be executed this year in Oklahoma. His death sentence was carried out by prison officials this evening in the death chamber at the Oklahoma State Penitentiary. Department of Corrections Director Justin Jones told prison officials inside the execution chamber to proceed with the execution process. At 6:01 p.m., the blinds covering windows between the witness room and the death chamber were raised. Ochoa raised his head from the death gurney briefly and looked into the witness room.

OSP Deputy Warden Art Lightle asked Ochoa if he had any last words. “I’m innocent,” Ochoa said. Ochoa spoke no other words other than those. At 6:02 p.m. Lightle said, “Let the execution begin.” After the lethal dose was administered to Ochoa, his eyes blinked multiple times. He chewed slightly on his lower lip. Then he lifted his head slightly. His head then came to rest back on the death gurney and his eyes closed. By 6:06 p.m., color had drained from Ochoa’s face and at 6:07 p.m., the attending physician pronounced Ochoa’s time of death.

Witnessing the execution were two media representatives, 10 Department of Corrections officials and 19 members of the victims’ family. Twelve of those 19 were in the witness chamber and the remaining witnesses watched the execution via video tele-feed from one floor below the execution chamber. Although there were five members of Ochoa’s family scheduled to witness his execution, none of those five were in the witness room when he was executed. Ochoa requested for his last meal a large meat lover’s pizza and a large Coke, which was served to him at around noon Tuesday, according to prison officials.

“Ochoa was convicted and sentenced to death for the first-degree murders of Francisco Morales, 38, and wife, Maria Yanez, 35,” said Oklahoma Attorney General Scott Pruitt in an earlier press release. “According to the report, Morales suffered 12 gunshot wounds and Yanez suffered 11 gunshot wounds while in their bedroom ... The victim’s children were in the home at the time of the murders.” According to court records, Morales and Yanez were shot and killed in their bedroom in the early morning hours of July 12, 1993. The sound of gunfire woke Yanez’s 14-year-old daughter, court records state, and she called 911 before looking out her bedroom door. “(She) saw two men,” court records state. The young girl at first denied knowing the men, but eventually identified them as Ochoa and Osvaldo Torres, court records state. The young girl’s 11-year-old step-brother saw one of the men shoot his father, court records state. Ochoa and Torres were arrested “a short distance from the homicide,” court records state. “A short time before the shootings, Torres and Ochoa parked their car at a friend’s house,” court records state. “A witness observed one of the men take a gun from the trunk of the car and put the gun in his pants.”

Both Torres and Ochoa were tried and sentenced to death for the murders. “However, in 2004, former Gov. Brad Henry commuted Torres’ sentence to life in prison without the possibility of parole,” Pruitt continues in his press release. During his 2004 clemency hearing, Torres admitted that he had planned to burglarize Morales’ and Yanez’s home. “I never killed anyone. And I never knew George was going to kill anyone.” Ochoa had been in custody with the Oklahoma Department of Corrections since April 1, 1996, less than two weeks after he was convicted in Oklahoma County of first degree murder.

 
 

George Ochoa

ProDeathPenalty.com

During the early morning hours of July 12, 1993, Francisco Morales and his wife, Maria Yanez, were shot and killed in the bedroom of their Oklahoma City home. The sound of gunfire woke Yanez's daughter Christina, who was 14 years old in the summer of 1993. Christina called 911 and told the operator that she believed her step-father, Morales, may have been firing the gun. After hanging up the telephone, she looked out her bedroom door. A light was on in the living room; Christina saw two men. One man was wearing a white t-shirt and the other man was wearing a black t-shirt. Christina stated the man in the black t-shirt had something in his hand, but she did not know what it was.

Christina initially denied knowing the two men, but eventually identified Ochoa as the man in the black t-shirt and Torres as the man in the white t-shirt. The shooting also awakened Christina's step-brother, Francisco, who was eleven years old in the summer of 1993. Francisco saw the man in the black t-shirt shoot his father. He could not identify the gunman.

The police quickly responded to Christina's 911 call. While en route to the Yanez/Morales home, Officer Coats arrested Torres and Ochoa, who were walking together a short distance from the homicide. The men were sweating and nervous, and Coats claimed he observed blood on the clothing of the men. A short time before the shootings, Torres and Ochoa parked their car at a friend's house. A witness observed one of the men take a gun from the trunk of the car and put the gun in his pants. This gun was different from the gun used in the murders. The witness stated one of the men was Ochoa. She could not identify the other man, but asserted that it was the other man-and not Ochoa-who put the gun in his pants.

Another witness testified that the man with Ochoa was Torres. The jury convicted Ochoa and Torres on all counts and the case proceeded to the capital sentencing phase of trial. The State argued that Ochoa and Torres posed a continuing threat to society based on the circumstances of the murders and the defendants' membership in the Southside Locos, a local gang. To show that Ochoa created a risk of death to more than one person, the State offered the death of the two victims and the presence of three children in the home at the time of the murders. The defense presented in mitigation Ochoa's personal history, his history of mental illness, his borderline mental retardation and pleas of mercy from his family. The jury found the existence of both aggravating circumstances. After weighing the aggravating and mitigating evidence, the jury imposed the death penalty.

 
 

Ochoa v. State, 963 P.2d 583 (Okla.Crim. App. 1998). (Direct Appeal)

Defendant was convicted in the District Court, Oklahoma County, Charles L. Owens, J., of two counts of first-degree murder with malice aforethought and one count of first-degree burglary, and was sentenced to death. Defendant appealed, and the Court of Criminal Appeals, Chapel, P.J., held that: (1) evidence supported determination that defendant was competent to stand trial; (2) defendant validly waived jury trial on competency; (3) defendant and accomplice were properly required to share peremptory challenges; (4) challenge for cause to juror who was former deputy sheriff was properly denied; (5) limitations on investigation of crime scene by defendant, while improper, did not warrant relief; (6) State's destruction of fingerprints was not in bad faith; (7) denial of continuance was not an abuse of discretion; (8) severance of trials was not required, as defendant and accomplice did not have mutually antagonistic defenses; (9) admission of photographs of victims was within trial court's discretion; (10) evidence supported convictions; (11) improper comments by prosecutor did not create plain error; (12) evidence was insufficient to establish continuing threat aggravating circumstance; but (13) offenses established aggravator of great risk of death to more than one person, and warranted death sentence. Affirmed. Strubhar, V.P.J., concurred in the result and filed opinion. Lumpkin, J., concurred in the result and filed opinion. Lane, J., concurred in the result.

CHAPEL, Presiding Judge.

¶ 1 George Ochoa was tried jointly with Osbaldo Torres by a jury in Oklahoma County District Court, Case No. CF–93–4302. Ochoa was convicted of two counts of First Degree Murder with Malice Aforethought, in violation of 21 O.S.1991, § 701.7(A) and one count of First Degree Burglary, in violation of 21 O.S.1991, § 1431.FN1 At the conclusion of the capital sentencing phase of the trial, the jury found the existence of two aggravating circumstances: (1) there existed the probability that Ochoa would commit criminal acts of violence that would constitute a continuing threat to society,FN2 and (2) Ochoa knowingly created a great risk of death to more than one person.FN3 The jury recommended Ochoa be sentenced to death for both murders and to twenty (20) years imprisonment for burglary.FN4 The Honorable Charles L. Owens sentenced Ochoa accordingly. Ochoa appealed his conviction and sentence to this Court.FN5

FN1. Torres was also convicted of two counts of first degree malice murder and burglary. See Torres v. State, 1998 OK CR 40. FN2. 21 O.S.1991, § 701.12(7). FN3. 21 O.S.1991, § 701.12(2). FN4. Torres was also sentenced to death for both murders and to twenty (20) years imprisonment for burglary. FN5. Ochoa also filed a motion for a new trial, request to supplement the record and a request for an evidentiary hearing. Since this motion was not filed timely, it is denied. 22 O.S.1991, § 953, Rule 2.1, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App.

Facts

¶ 2 During the early morning hours of July 12, 1993, Francisco Morales and his wife, Maria Yanez, were shot and killed in the bedroom of their Oklahoma City home. The sound of gunfire woke Yanez's daughter Christina, who was 14 years old in the summer of 1993. Christina called 911 and told the operator that she believed her step-father, Morales, may have been firing the gun. After hanging up the telephone, she looked out her bedroom door. A light was on in the living room; Christina saw two men. One man was wearing a white t-shirt and the other man was wearing a black t-shirt. Christina stated the man in the black t-shirt had something in his hand, but she did not know what it was. Christina initially denied knowing the two men, but eventually identified Ochoa as the man in the black t-shirt and Torres as the man in the white t-shirt.

¶ 3 The shooting also awakened Christina's step-brother, Francisco, who was eleven years old in the summer of 1993. Francisco saw the man in the black t-shirt shoot his father. He could not identify the gunman.

¶ 4 The police quickly responded to Christina's 911 call. While en route to the Yanez/Morales home, Officer Coats arrested Torres and Ochoa, who were walking together a short distance from the homicide. The men were sweating and nervous, and Coats claimed he observed blood on the clothing of the men.

¶ 5 A short time before the shootings, Torres and Ochoa parked their car at a friend's house. A witness observed one of the men take a gun from the trunk of the car and put the gun in his pants. This gun was different from the gun used in the murders. The witness stated one of the men was Ochoa. She could not identify the other man, but asserted that it was the other man—and not Ochoa—who put the gun in his pants. Another witness testified that the man with Ochoa was Torres.

¶ 6 The jury convicted Ochoa and Torres on all counts and the case proceeded to the capital sentencing phase of trial. The State argued that Ochoa and Torres posed a continuing threat to society based on the circumstances of the murders and the defendants' membership in the Southside Locos, a local gang. To show that Ochoa created a risk of death to more than one person, the State offered the death of the two victims and the presence of three children in the home at the time of the murders. The defense presented in mitigation Ochoa's personal history, his history of mental illness, his borderline mental retardation and pleas of mercy from his family. The jury found the existence of both aggravating circumstances. After weighing the aggravating and mitigating evidence, the jury imposed the death penalty.

Competence to Stand Trial

¶ 7 The first issue Ochoa raises on appeal is whether he was competent to stand trial in 1996. Ochoa argues his case should be reversed because the determination that he was competent to stand trial was made under the old “clear and convincing evidence” standard, which the Supreme Court ruled infirm in Cooper v. Oklahoma.FN6 The State contends that if the Court finds error, the case should not be reversed but remanded for a retrospective competency hearing. Although the question of Ochoa's competency was decided under the infirm “clear and convincing evidence” standard, the case need not be reversed nor remanded for a retrospective competency hearing.

FN6. 517 U.S. 348 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996). In Cooper, the Supreme Court ruled unconstitutional Oklahoma's standard for determining whether a defendant is competent to stand trial. The statute, 22 O.S.1991, § 1175.4(B), provided that a defendant in a criminal prosecution is presumed competent to stand trial unless he proves his incompetence by clear and convincing evidence. The Supreme Court ruled that the “clear and convincing evidence” standard placed too high a burden of proof on the defendant and struck down this standard of proof. In response to Cooper, this Court determined the new burden of proof to be applied in competency determinations is preponderance of the evidence. Cooper v. State, 924 P.2d 751, 752 (Okl.Cr.1996). See 22 O.S.Supp.1996 § 1175.4(B) (“The court, at the hearing on the application, shall determine, by a preponderance of the evidence, if the person is incompetent.”)

¶ 8 Ochoa waived jury trial on the issue of competency. When a defendant waives a jury competency trial and the hearing is held before the trial court, this Court will review de novo the question of whether the record supports a finding that the defendant is competent to stand trial under the new “preponderance of the evidence” standard.FN7 A defendant's competency to stand trial is defined as “the present ability of a person arrested for or charged with a crime to understand the nature of the charges and proceedings brought against him and to effectively and rationally assist in his defense.” FN8 As a corollary, Oklahoma statutes define incompetency as “the present inability of a person arrested for or charged with a crime to understand the nature of the charges and proceedings brought against him and to effectively and rationally assist in his defense.” FN9

FN7. See Smith v. State, 932 P.2d 521, 528 (Okl.Cr.1996), cert. denied, 521 U.S. 1124, 117 S.Ct. 2522, 138 L.Ed.2d 1023 (1997). FN8. 22 O.S.Supp.1992, § 1175.1 (emphasis added). See Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 789, 4 L.Ed.2d 824 (1960); Miller v. State, 751 P.2d 733, 736–37 (Okl.Cr.1988). FN9. 22 O.S.Supp.1992, § 1175.1.

¶ 9 Here, in a proceeding before the trial court, Ochoa, through counsel, stipulated to Dr. Warren Smith's report in which Dr. Smith found (1) Ochoa appreciated the nature of the charges against him although “he cannot remember the event for which he is alleged responsible,” FN10 and (2) Ochoa could consult with his lawyer and rationally assist in his defense. Ochoa offered no other evidence. Based on Dr. Smith's report, the court found Ochoa “able to appreciate the charges against him,” FN11 and “able to consult with his lawyer and rationally assist in the preparation of his defense.” FN12 The court ordered the proceedings to resume.

FN10. May 31, 1995 Tr. at State's Ex. 1. FN11. Id. FN12. Id.

¶ 10 This evidence supports the finding that Ochoa was competent to stand trial under the “preponderance of the evidence” standard. Dr. Smith's report is the only evidence in the record. There is nothing in the report to suggest that Ochoa would be incompetent under the lower burden of proof. On appeal, Ochoa argues that Dr. Murphy, who testified on Ochoa's behalf during sentencing, would have provided testimony that Ochoa was not competent to stand trial under the now-lower burden of proof. A review of Murphy's testimony does not support this claim. Based on the record below, we find that Ochoa was competent to stand trial and defense counsel failed to show, based on a preponderance of evidence, that he was incompetent.

¶ 11 Ochoa also argues that trial counsel was ineffective for failing to challenge the competency determination.FN13 Because we find, based on a de novo review of the record, that Ochoa would have been deemed competent to stand trial under a preponderance of the evidence standard, Ochoa was not prejudiced by trial counsel's actions. Counsel was not ineffective. FN13. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

¶ 12 In his reply brief, Ochoa also argues that when a defendant waives a jury trial on competency the Court should impose a waiver standard similar to the one imposed in Brewer v. State,FN14 which dealt with the procedure to be followed when a defendant stipulates to an aggravating circumstance. This Court already recognizes that the post-examination competency jury trial may be affirmatively waived FN15 and the Brewer standard is not appropriate here. Moreover, the record shows that Ochoa knowingly, intelligently and affirmatively waived jury trial on the issue of competency. Indeed, the trial court explained to Ochoa several times what a jury trial on competency would entail and advised Ochoa that it would hold the jury trial if Ochoa wished. Ochoa stated he understood his rights, he understood what a competency jury trial was, and he wished to proceed to trial. Ochoa's attorney also stated that Ochoa understood the function of the jury trial, that Ochoa wanted to stipulate to the competency report, which is discussed above, and that Ochoa wished to proceed to trial on the merits. This exchange and waiver are adequate.FN16 Error did not occur and relief is not warranted.

FN14. 650 P.2d 54, 63 (Okl.Cr.1982), cert. denied, 459 U.S. 1150, 103 S.Ct. 794, 74 L.Ed.2d 999 (1983). FN15. Lillard v. State, 852 P.2d 756, 757 (Okl.Cr.1993) (citing Kiser v. State, 782 P.2d 405, 408–09 (Okl.Cr.1989)). FN16. Kiser v. State, 782 P.2d 405, 408 (Okl.Cr.1989) (defendant affirmatively waived post-examination competency hearing by a jury when he withdrew motion for hearing and requested case proceed to preliminary hearing).

Jury Selection

¶ 13 In his sixth proposition of error, Ochoa complains that procedural and substantive error occurred during the jury selection process depriving him of his right to a constitutionally impaneled jury. In making this claim, Ochoa presents three arguments.

¶ 14 First, Ochoa claims error occurred when the trial court required him and Torres to share their nine peremptory challenges and denied defense requests that each defendant be allotted nine separate challenges. Section 655 of Title 22 provides, in pertinent part: “if two or more defendants are tried jointly they shall join in their challenges; provided, that when two or more defendants have inconsistent defenses they shall be granted separate challenges for each defendant as hereinafter set forth.” Consistent with this statute, this Court has stated “when the defenses of codefendants are inconsistent, they should not be required to share peremptory challenges.” FN17 The Court has put some parameters on “inconsistent defenses.” In Neill v. State, the Court stated “in some cases, the ‘inconsistency’ goes to the level of culpability while in other cases the ‘inconsistency’ goes to guilt or innocence. Where the issue is restricted to the level of each co-defendant's culpability, co-defendants may be required to share peremptory challenges.” FN18

FN17. Woodruff v. State, 825 P.2d 273, 276 (Okl.Cr.1992). See Neill v. State, 827 P.2d 884, 891 (Okl.Cr.1992) (“[c]o-defendants tried jointly who have inconsistent defenses shall be granted separate peremptory challenges”). The Constitution does not require that defendants tried together be granted separate peremptory challenges. Stilson v. United States, 250 U.S. 583, 586, 40 S.Ct. 28, 30, 63 L.Ed. 1154 (1919). FN18. 827 P.2d at 891 (citing Fox v. State, 779 P.2d 562, 568 (Okl.Cr.1989); Fowler v. State, 779 P.2d 580, 582 (Okl.Cr.1989), cert. denied, 494 U.S. 1060, 110 S.Ct. 1537, 108 L.Ed.2d 775 (1990)).

¶ 15 Ochoa and Torres did not have inconsistent defenses. The defense of both men was that they did not kill Yanez and Morales. Since Ochoa and Torres' defenses were not inconsistent, the court did not err in denying the request for separate peremptory challenges.

¶ 16 Second, Ochoa claims that the trial court erred in failing to sua sponte dismiss Juror Harris for cause. Juror Harris told the court and counsel that he had served as a deputy sheriff in Kern County, California for seventeen and a half years, but that he was now retired. Harris also stated he could be fair. Neither Ochoa nor Torres moved to strike Harris for cause. Eventually Ochoa used a peremptory challenge to remove Harris; Torres objected to the removal.

¶ 17 At issue here is the provision in 38 O.S.1991, § 28, which states that “[s]heriffs or deputy sheriffs” are not qualified to serve on a jury. However, since Juror Harris was a retired, as opposed to active, deputy sheriff he does not fall under the statutory disqualification. FN19 Moreover, Juror Harris made clear he could be impartial and he would properly consider the death penalty. The court did not err in failing to sua sponte strike Harris for cause. FN19. Nickell v. State, 885 P.2d 670, 676 (Okl.Cr.1994) (former FBI agent who knew district attorney was not disqualified from jury service under 38 O.S.1991, § 28); Coats v. State, 56 Okl.Cr. 26, 33, 32 P.2d 955, 958 (1934) (former deputy sheriffs not disqualified from jury service).

¶ 18 Finally, Ochoa complains the court erred when it overruled certain motions regarding voir dire. Ochoa complains the trial court erred in denying a motion for individual voir dire. This Court has repeatedly stated individual voir dire is not required and the decision to allow individual voir dire is left to the sound discretion of the trial court. FN20 The trial court did not abuse its discretion. Ochoa further maintains that the court erred in denying a motion that it ask certain death-qualifying questions and a motion challenging the death-qualifying nature of voir dire. Although the trial court refused to ask certain questions requested by the defense, the questions the trial court posed to the jury comported with Witherspoon v. Illinois FN21 and Morgan v. Illinois. FN22 The trial court did not commit error in its questioning of the jury. Moreover, trial counsel was not inhibited in his questioning of jurors on the death penalty. Ochoa has failed to show prejudice under this proposition and relief is denied.

FN20. Malone v. State, 876 P.2d 707, 711 (Okl.Cr.1994) (“decision to allow individual voir dire of potential jurors is also committed to the sound discretion of the trial court and is not a right guaranteed a defendant”). FN21. 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). FN22. 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992).

First Stage of Trial

¶ 19 Ochoa raises a number of propositions of error concerning the first stage of trial. In the second proposition of his brief, Ochoa argues he was denied due process because the prosecution denied his investigators independent access to the crime scene. For the reasons stated below, we deny this proposition.

¶ 20 Ochoa and Torres were originally tried in October 1995, but the case ended in mistrial. Before the second trial, Ochoa moved the trial court to order the person now living in the victims' house to allow defense investigators into their home to investigate the crime scene. Apparently the person who was living in the Yanez/Morales home refused to allow defense investigators into the house. The trial court stated it was without authority to order a third party to allow defense investigators into the home and overruled the motion. FN23. Ochoa does not challenge this ruling.

¶ 21 Shortly before the second trial, Ochoa learned that the prosecution intended to re-investigate the crime scene. The assistant district attorney agreed to permit defense investigators to accompany the State's investigators on their re-examination of the crime scene. Defense counsel sent a letter to the assistant district attorney confirming that his investigators would accompany the State investigators to the crime scene. In a handwritten note at the bottom of the letter, the assistant district attorney wrote: It is agreed that neither [defense investigators] will not take photographs or measurements of the interior of the home or interfere w/ the technical investigator. FN24. Vol. III O.R. at 521. According to defense counsel, the addendum was a last minute addition and was not part of the original deal. Defense counsel stated that nonetheless they thought it better to go to the house with that condition than not to go at all. Defense investigators accompanied the police and observed the measurements and the investigation taken by the officers. Defense investigators were not allowed an independent investigation and were not allowed to confirm the correctness of the police measurements. As a result of the new investigation, the prosecution produced a new diagram of the interior of the house that differed in certain respects from the diagram offered at the first trial. The trial court found the differences were minor.

¶ 22 On appeal, Ochoa argues that denying his investigators the ability to take independent measurements deprived him of due process. In making this argument, Ochoa relies on Brady v. Maryland FN25 and other cases addressing the State's withholding of exculpatory evidence. These cases are not on point because the State did not withhold exculpatory evidence from Ochoa. Similarly, Ochoa's analogy to cases dealing with the State's presentation of false evidence FN26 are not on point because there is no reason to believe the State presented false evidence. More apropos is Ochoa's argument that the State's restrictions precluded him from putting on his defense thus depriving him of due process and a fair trial. In support of this argument, Ochoa cites several out-of-state cases. Although these cases are not binding on this Court, the cases indicate how other courts have treated similar problems.

FN25. 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). See also Kyles v. Whitley 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995); State v. Munson, 886 P.2d 999 (Okl.Cr.1994). FN26. United States v. Young, 17 F.3d 1201 (9th Cir.1994).

¶ 23 In People v. Davis,FN27 a New York trial court granted a motion to allow the defendant access to the crime scene and harshly criticized the district attorney for trying to limit the defendant access to the scene. The court stated (1) the district attorney had no possessory interest in the property, (2) the district attorney had no statutory authority to limit defendant's access to the scene, and (3) any effort by the district attorney to do so was improper. In Henshaw v. Commonwealth of Virginia,FN28 the defendant wished access to a crime scene which was in the possession of a third party. The court found that denial of access to the crime scene may deprive the defendant of due process and fundamental fairness. Relying on the state constitution, the court found that although the trial court should have ordered access to the crime scene, the error was harmless.FN29

FN27. 169 Misc.2d 977, 647 N.Y.S.2d 392 (N.Y.Co.Ct.1996). FN28. 19 Va.App. 338, 451 S.E.2d 415 (1994). FN29. Ochoa also cites State v. Davenport, 696 So.2d 999 (La.1997), which is simply a one sentence order and we cannot determine how or why the court issued that particular order.

¶ 24 Here, the restrictions the State placed on Ochoa's investigators are petty, unjustified and improper. The State contended that the restrictions were necessary to prevent interference with the State's investigation, but this argument is spurious. We are dismayed that the State would place such unnecessary and inappropriate barriers in front of a defendant's legitimate and proper attempt to prepare his defense. Nonetheless, Ochoa has failed to show that these restrictions curtailed his defense or deprived him of his right to due process. Although Ochoa claims that the two diagrams—the one used in the first trial and the one used in this trial—differ significantly from one another, he has not shown what these significant differences are or how they affected his defense. In contrast, the trial court noted that the differences were only slight. Accordingly, we find the State's improper action did not harm Ochoa and neither reversal nor modification of sentence is an appropriate remedy.

¶ 25 Ochoa also argues, under this proposition of error, that relief ought to be granted because the State destroyed latent fingerprints that were unusable but which might have contained sufficient ridge information to be of exculpatory value. In Arizona v. Youngblood,FN30 the Supreme Court held “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” FN31 This Court adopted the Youngblood standard in Hogan v. State.FN32 Ochoa has not shown that the State acted in bad faith when it destroyed the latent prints, and relief is not warranted.

FN30. 488 U.S. 51, 58, 109 S.Ct. 333, 337, 102 L.Ed.2d 281 (1988). FN31. Id. FN32. 877 P.2d 1157, 1161 (Okl.Cr.1994), cert. denied, 513 U.S. 1174, 115 S.Ct. 1154, 130 L.Ed.2d 1111 (1995).

¶ 26 Ochoa raises a related complaint in Proposition VIII arguing that the trial court should have instructed the jury that they could draw a negative inference from Officer Goforth's destruction of fingerprint evidence. We disagree. Due process does not impose “an undifferentiated and absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance in a particular prosecution.” FN33 As stated earlier, unless a defendant can show bad faith by the police, destruction of potentially useful evidence does not constitute a due process violation. Ochoa cites two out-of-state cases that impose a higher standard on police, but this case is controlled by Hogan v. State and Arizona v. Youngblood. We find, in the absence of a showing of bad faith, the failure of the trial court to provide an instruction allowing the jury to draw a negative inference from the destruction of evidence does not violate Ochoa's right to due process. However, such an instruction may be an appropriate sanction where the defense has made a showing of bad faith. FN33. Youngblood, 488 U.S. at 58, 109 S.Ct. at 337.

¶ 27 In Proposition III, Ochoa relates that on the second day of trial, the prosecution revealed that the previous afternoon an informant in the Oklahoma County jail had advised an assistant district attorney that Torres had claimed to have shot and killed Yanez and Morales. Torres also allegedly claimed Ochoa was present at the shootings. This claim contradicted the State's theory that Ochoa shot the victims and Torres aided and abetted in their killing. Upon hearing this information, Ochoa's counsel withdrew their announcement of ready, requested a continuance to investigate and moved for a severance. The prosecutor stated he would not call the informant to testify. The trial court denied Ochoa's motions for a continuance and severance.

¶ 28 Ochoa asserts the trial court erred by failing to grant a continuance. This Court has stated “the decision whether to grant or deny a motion for continuance rests within the sound discretion of the trial court and will not be disturbed absent abuse of such discretion.” FN34 “When considering the overruling of a motion for a continuance, we will examine the entire record to ascertain whether or not the appellant suffered any prejudice by the denial.” FN35 Here, although the court denied the continuance, defense counsel had tried to speak with the informant while Ochoa's case was still in voir dire, but the informant refused to talk. There is nothing indicating that additional time would have changed his position. Ochoa has not shown he was prejudiced by the denial of the continuance. The court did not abuse its discretion.

FN34. Salazar v. State, 852 P.2d 729, 735 (Okl.Cr.1993). FN35. Bryson v. State, 876 P.2d 240, 254 (Okl.Cr.1994), cert. denied, 513 U.S. 1090, 115 S.Ct. 752, 130 L.Ed.2d 651 (1995).

¶ 29 Ochoa also argues his and Torres' trial ought to have been severed. Where two defendants have “mutually antagonistic defenses,” separate trials ought to be held and compelling joinder of trials may result in reversible error.FN36 Mutually antagonistic defenses occur when each defendant seeks to inculpate the other and exculpate himself.FN37 The Court has stated, “it is not enough that the defenses of the co-defendants are inconsistent, in conflict or are otherwise unreconcilable. To be considered ‘mutually antagonistic,’ the two theories of defense must be in direct contravention and the parties must each place blame with the co-defendant.” FN38 The Court has further stated “one defendant's attempt to cast blame on the other is not in itself a sufficient reason to require separate trials,” FN39 and “[m]ere conflicting defenses, standing alone, do not constitute the showing of prejudice necessary for judicial severance.” FN40

FN36. Cannon v. State, 827 P.2d 1339, 1341 (Okl.Cr.1992); Lafevers v. State, 819 P.2d 1362, 1364 (Okl.Cr.1991). FN37. Lafevers, 819 P.2d at 1365. FN38. Id. at 1365–66. FN39. Neill, 827 P.2d at 886. FN40. Id. at 886–87. See Zafiro v. United States, 506 U.S. 534, 538, 113 S.Ct. 933, 938, 122 L.Ed.2d 317 (1993) (“[m]utually antagonistic defenses are not prejudicial per se ”).

¶ 30 The defenses here were not mutually antagonistic. As stated earlier, the defense of both men was that they did not commit the crime and both men focused their attack on undermining the eye-witness testimony. Further, the State did not call the informant to testify.FN41 Thus, the defendants did not engage in any sort of finger-pointing or blame. The trial court did not err in refusing to sever the defendants' trials.FN42

FN41. See Plantz v. State, 876 P.2d 268, 273 (Okl.Cr.1994), cert. denied, 513 U.S. 1163, 115 S.Ct. 1130, 130 L.Ed.2d 1091 (1995) (finding severance not required where defendants did not present mutually antagonistic defenses and State did not introduce incriminating statement by non-testifying co-defendant). FN42. Neill, 827 P.2d at 886 (absent abuse of discretion, trial court's decision to try defendants jointly will not be disturbed on appeal).

¶ 31 In his fourth proposition of error, Ochoa, for the first time, challenges the admissibility of Christina Yanez's identification of him and Torres. Since Ochoa did not lodge a contemporaneous objection to the evidence, relief will only be granted upon a showing that plain error occurred as a result of the admission of this evidence.

¶ 32 Christina's identification of Ochoa and Torres was crucial to the State's case. Initially, she denied knowing the men who killed her parents. Christina admitted this initial denial explaining she made the initial denial because she was frightened. The initial denial does not render Christina's subsequent identification inadmissible; the evidence merely goes to the issue of credibility and reliability, which was a proper issue for the jury to decide. FN43. See Woodruff v. State, 846 P.2d 1124, 1134 (Okl.Cr.), cert. denied, 510 U.S. 934, 114 S.Ct. 349, 126 L.Ed.2d 313 (1993) (jury is exclusive judge of weight of evidence and credibility of witnesses). Cf. Snow v. State, 876 P.2d 291, 295 (Okl.Cr.1994), cert. denied, 513 U.S. 1179, 115 S.Ct. 1165, 130 L.Ed.2d 1120, '30 L.Ed.2d 1120 (1995) (noting cautionary instruction on eye-witness identification was not necessary and instructing jury that it was sole judge of witness credibility was proper).

¶ 33 Ochoa next contends that Christina's subsequent identification of the men was tainted because Christina saw the men in handcuffs at the crime scene. The record does not support this contention. There is no testimony that Christina ever saw the defendants prior to telling Officer Mullenix at the police station that Ochoa was one of the men she saw in her home that night. Ochoa points to testimony that, after their arrest, Ochoa and Torres were taken to the crime scene and held in handcuffs there for some time. It was possible for the Yanez/Morales neighbors to see the defendants under arrest. However, there was no evidence that Christina saw the defendants or even knew they were there, and defense counsel never questioned Christina about this matter. Moreover, Officer Brett Macy testified that neither Christina nor her step-brother Francisco came into contact with the defendants at the crime scene. Based on this record, Ochoa has failed to show that there was a show-up identification and we cannot say that under the totality of the circumstances Christina's identification was tainted and/or unreliable.FN44 Accordingly, admission of her testimony and identification was proper. FN44. See Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Tibbetts v. State, 778 P.2d 925, 928–29 (Okl.Cr.1989).

¶ 34 Ochoa also alleges it was error for Detective Mullenix to testify that Christina identified Ochoa at the police station. Again Ochoa failed to lodge a contemporaneous objection and we review for plain error. This Court has stated “a witness, after making an in-court identification of the defendant, may testify that ‘at a particular day, place, and time or times, [he or she] had occasion to see, recognize and identify the defendant as the person who committed the crime.’ ” FN45 However, “[o]nly the identifier may testify that an identification was made.... Testimony by a third party that an identification was made, or that a particular person was identified is ... error.” FN46 Nonetheless, “[w]hen such testimony follows an in-court identification of the accused by the identifier the error has been found to be harmless.” FN47 Here, it was error for Mullenix to testify that Christina told him that one of the intruders was Ochoa. Nonetheless, the testimony was merely cumulative of Christina's testimony. The error is not prejudicial and relief is not warranted.

FN45. Scales v. State, 737 P.2d 950, 952 (Okl.Cr.1987) (quoting Hill v. State, 500 P.2d 1075, 1078 (Okl.Cr.1972)). FN46. Kamees v. State, 815 P.2d 1204, 1207 (Okl.Cr.1991) (citation omitted). FN47. Id. at 1207–08. See Trim v. State, 808 P.2d 697, 699 (Okl.Cr.1991).

¶ 35 Ochoa claims in his fifth proposition of error that his arrest is invalid because Officer Coats lacked probable cause to execute his warrantless arrest of Ochoa and Torres. This Court has stated, “The test for a valid warrantless arrest is whether at the moment the arrest was made the officer had probable cause to make it—whether at that moment the facts and circumstances within his knowledge and of which he had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the defendant had committed or was committing an offense.” FN48 Ochoa asserts that Officer Coats did not have a description of the defendants until after he arrested the men. However, a fair reading of the record below supports the trial court's conclusion that Officer Coats heard the description of the defendants over the radio prior to arresting them. Further, Coats testified the men were perspiring and there was blood on Torres' clothes. These factors support the trial court's conclusion that there was probable cause to arrest. This proposition is denied. FN48. Castellano v. State, 585 P.2d 361, 365–66 (Okl.Cr.1978). See 22 O.S.1991, § 196 (“A peace officer may, without a warrant, arrest a person ... [w]hen a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it”).

¶ 36 Ochoa makes several complaints about alleged evidentiary errors in his seventh proposition of error. First, Ochoa complains the prosecution sought to introduce evidence of Ochoa's gang affiliation during the first stage of trial. Although the trial court ruled that such evidence was inadmissible during first stage, the prosecution elicited from Officer Tays that the suspects—Ochoa and Torres—might be gang members. There was no objection to this testimony.FN49 On four occasions during closing argument, the prosecution referred to the defendants, either directly or indirectly, as gang members. Defense objected to two of the comments on the grounds that the statement was not in evidence; FN50 the objections were overruled. We review these claims for plain error and we are troubled that the prosecution attempted to deliberately inject gang evidence into the first stage of trial. Not only did the evidence and comments regarding Ochoa's gang membership violate the trial court's order, but also such evidence was irrelevant to the question of guilt or innocence as the gang evidence was in no way connected to the Yanez/Morales' murders. While we find the use of gang evidence in the first stage of trial to be error, Ochoa has failed to show that the error was sufficiently prejudicial. Accordingly, relief is denied.

FN49. A defendant waives error when he fails to lodge a contemporaneous objection at trial. Hooker v. State, 887 P.2d 1351, 1365 (Okl.Cr.1994), cert. denied, 516 U.S. 858, 116 S.Ct. 164, 133 L.Ed.2d 106 (1995). FN50. An objection is waived if the grounds for the objection were different at trial than on appeal. Valdez v. State, 900 P.2d 363, 380 (Okl.Cr.), cert. denied, 516 U.S. 967, 116 S.Ct. 425, 133 L.Ed.2d 341 (1995); Mitchell v. State, 884 P.2d 1186, 1197 (Okl.Cr.1994), cert. denied, 516 U.S. 827, 116 S.Ct. 95, 133 L.Ed.2d 50 (1995).

¶ 37 Ochoa next complains that, over objection, Officer Robertson was allowed to testify about the inconclusive results of an FBI gun powder residue examination. This testimony was hearsay FN51 and should not have been allowed. However, we find the error harmless and deny relief. FN51. The State does not argue that the evidence is not hearsay. Rather, citing Simpson v. State, 876 P.2d 690 (Okl.Cr.1994), the State contends that relief is not warranted under the plain error standard. Simpson is not the correct standard to review this error because defense objected to the testimony on the grounds of hearsay.

¶ 38 Third, Ochoa contends the State failed to make an adequate showing that Garcia was unavailable to testify in person. We disagree. At trial, the prosecution advised the trial court that they could not locate Francisco Garcia and wished to introduce his testimony from the first trial in lieu of live testimony. “This Court has long held that the State must satisfy two threshold requirements before prior testimony may be admitted into evidence. The prosecution must prove, ‘(1) [t]he actual unavailability of the witness despite good faith and due diligent efforts to secure the presence of the witness at trial; and, (2) the transcript of the witness' testimony bears a sufficient indicia of reliability to afford the trier of fact a satisfactory basis for evaluating the truth of the prior testimony.’ ” FN52 Ochoa contends that the State failed to satisfy the first prong of this test because it did not exercise due diligence in locating Garcia. To the contrary, the State adequately attempted to locate Garcia and the trial court properly ruled that the State exercised due diligence. Admission of Garcia's previous testimony was not error. FN52. McCarty v. State, 904 P.2d 110, 128 (Okl.Cr.1995) (quoting Smith v. State, 546 P.2d 267, 271 (Okl.Cr.1976)).

¶ 39 Fourth, Ochoa asserts that Officer Mullenix injected an evidentiary harpoon into the trial. This Court has defined evidentiary harpoons as follows: “(1) they are generally made by experienced police officers; (2) they are voluntary statements; (3) they are willfully jabbed rather than inadvertent; (4) they inject information indicating other crimes; (5) they are calculated to prejudice the defendant; and (6) they are prejudicial to the rights of the defendant on trial.” FN53 Officer Mullenix's testimony was not an evidentiary harpoon. Mullenix's comment was a legitimate response to counsel's cross-examination questions. Moreover, Mullenix did not introduce information of other crimes; he simply indicated that he did not pursue another suspect in this case because he believed the police had arrested the right men. The officer's testimony is not an evidentiary harpoon and we decline to grant relief. FN53. Bruner v. State, 612 P.2d 1375, 1378–79 (Okl.Cr.1980).

¶ 40 Next, Ochoa objects to a number of photographs admitted at trial including Exhibits 105–09 and 111–123, which were crime scene photographs of both victims, and Exhibit 62, which included photographs found in the victim's purse. At trial, Ochoa only objected to Exhibits 106 and 107. His objections were overruled.

¶ 41 The decision to admit photographs rests within the sound discretion of the trial court.FN54 “The test for admissibility of a photograph is not whether it is gruesome or inflammatory, but whether its probative value is substantially outweighed by the danger of unfair prejudice.” FN55 Moreover, “[t]he probative value of photographs of murder victims can be manifested in numerous ways, including showing the nature, extent and location of wounds, establishing the corpus delicti, depicting the crime scene, and corroborating the medical examiner's testimony.” FN56

FN54. McCormick v. State, 845 P.2d 896, 898 (Okl.Cr.1993). FN55. Hooks v. State, 862 P.2d 1273, 1280 (Okl.Cr.1993), cert. denied, 511 U.S. 1100, 114 S.Ct. 1870, 128 L.Ed.2d 490 (1994). FN56. Trice v. State, 853 P.2d 203, 212–13 (Okl.Cr.), cert. denied, 510 U.S. 1025, 114 S.Ct. 638, 126 L.Ed.2d 597 (1993).

¶ 42 In this case, although the State introduced eighteen pictures of the victims' bodies at trial, Ochoa only objected to two of the photographs. These two photographs were no more gruesome than the other sixteen. Moreover, exhibits 105–09 and 111–123 were probative of the nature and extent of the wounds, corroborated the medical examiner's testimony, depicted the crime scene and established the corpus delicti. The trial court did not err in admitting these photographs.

¶ 43 Ochoa also complains about Exhibit 62, which was the victim's purse and contents thereof, including photographs of the victims before their deaths. Generally, photographs of victims before their deaths are not probative FN57 and, in this case, the photographs should not have been admitted. However, Ochoa did not object to the evidence and he has failed to show plain error occurred in either stage of trial. FN57. Peninger v. State, 811 P.2d 609, 611 (Okl.Cr.1991) (admission of photograph of victim before death not proper).

¶ 44 Finally, Ochoa argues that, as a whole, the errors discussed above deprived him of a fair trial or a fair sentencing hearing. We disagree and decline to grant relief under this proposition of error.

¶ 45 The issue in Ochoa's ninth proposition of error is the appropriate aiding and abetting instructions to be used in a malice murder case when the evidence reflects that the defendant aided and abetted in first degree malice murder. At the outset, it should be noted that the State's theory of the case was that Ochoa was the shooter and that Torres aided and abetted in the killings. The evidence supports this theory. Ochoa appears to argue that the evidence also suggests that he may have simply aided and abetted in the killings. This claim is, at best, tenuous. Nonetheless, we review Ochoa's objections to the aiding and abetting instructions.

¶ 46 This Court has stated that “in a malice murder case the State must prove the aider and abetter personally intended the death of the victim and aided and abetted with full knowledge of the intent of the perpetrator.” FN58 “Aiding and abetting in a crime requires the State to show that the accused procured the crime to be done, or aided, assisted, abetted, advised or encouraged the commission of the crime.” FN59 Moreover, while mere presence does not constitute a criminal act, “only slight participation is needed to change a person's status from mere spectator into an aider and abettor.” FN60

FN58. Johnson v. State, 928 P.2d 309, 315–16 (Okl.Cr.1996). Accord Cannon v. State, 904 P.2d 89, 99 (Okl.Cr.1995); but see Conover v. State, 933 P.2d 904, 914–16 (Okl.Cr.1997). FN59. Spears v. State, 900 P.2d 431, 438 (Okl.Cr.) (citations omitted), cert. denied, 516 U.S. 1031, 116 S.Ct. 678, 133 L.Ed.2d 527 (1995). FN60. Id.

¶ 47 Ochoa argues the standard Oklahoma Uniform Jury Instructions 1st ed. (OUJI–CR 1st ed.) on aiding and abetting, which were given to the jury in his case, were inadequate to set forth the elements of aiding and abetting in a malice murder case.FN61 At issue are Jury Instructions 11–12, which are identical to OUJI–CR 1st ed. 204–05. Ochoa contends the standard aiding and abetting instructions replace the specific intent to kill in a malice murder case with a general criminal intent, thus, lessening the State's burden of proof. FN61. The trial court used the OUJI–CR 1st ed., which went into effect in 1981. About a month after Ochoa's trial, this Court issued the revised OUJI–CR 2d ed.

¶ 48 The question here—the appropriate aiding and abetting instructions in a malice murder case—was answered in Johnson v. State. FN62 Like Ochoa, the appellant in Johnson complained that the trial court erred in using the Oklahoma Uniform Instructions on aiding and abetting in a first degree malice murder case. Like Ochoa, Johnson argued the instructions allowed the jury to replace a general intent for a specific intent to kill thus lessening or changing the State's burden of proof. The Johnson Court rejected this argument finding that these instructions in conjunction with the instructions on first degree murder properly set out Oklahoma law and channeled the jury's discretion. Johnson controls here. Accordingly, we find the instructions in Ochoa's case properly set forth the law, did not diminish the State's burden of proof and adequately channeled the jury's discretion. Plain error did not occur. FN62. 928 P.2d at 315–16.

¶ 49 Ochoa also complains because the instructions do not set out separate aiding and abetting instructions for murder and burglary. We find the instructions are not misleading or confusing, and relief is not warranted.

¶ 50 In his tenth proposition of error, Ochoa argues that Jury Instruction 6 is erroneous. Jury Instruction 6 instructed Ochoa's jury that: No person may be convicted of Murder in the First Degree unless his conduct caused the death of the person allegedly killed. A death is caused by conduct if the conduct is a substantial factor in bringing about the death and the conduct is dangerous or destroys life. FN63. Vol. III O.R. at 573. There was no objection to the instruction; we review for plain error.

¶ 51 As Ochoa points out the comments to OUJI–CR 1st ed. 426—which is essentially the same as Instruction 6 in this case—recommends the instruction only be given when the actual cause of death is disputed. The State concedes that the facts of this case do not warrant giving the instruction. In Smith v. State FN64 a similar error occurred. There, despite finding error, the Court found that “[t]he instructions, when read as a whole, accurately state the applicable law and preclude the possibility that the jury may have believed it appropriate to convict Appellant of first degree murder absent a finding of intent.” FN65 Likewise, here the instruction did not confuse the jury as to its role or lessen the State's burden of proof. Ochoa has failed to show how he was burdened by such an instruction. There was no plain error.

FN64. 932 P.2d 521, 533–534 (Okl.Cr.1996). FN65. Id. at 534. See Sadler v. State, 846 P.2d 377, 387 (Okl.Cr.1993).

¶ 52 In his eleventh proposition of error, Ochoa argues the evidence is insufficient to sustain his convictions. We disagree. The evidence at trial revealed that Ochoa and Torres went to the Yanez/Morales home during the early morning hours of July 12, 1993. They parked their car several blocks from the victims' home and removed a gun from the car. The men forcibly entered the victims' home. Ochoa and Torres' activities awakened the Yanez/Morales children, who observed some of the defendants' actions. Francisco, victim Morales' son, observed a man in a black t-shirt shoot his father. Christina, victim Yanez's daughter, identified Ochoa as the man in the black t-shirt. Christina identified Torres as the other man in her home. Both men were arrested a short distance from the Yanez/Morales home. This evidence amply supports Ochoa's convictions for murder and burglary.

Prosecutorial Misconduct

¶ 53 In Proposition XX, Ochoa alleges prosecutorial misconduct occurred during closing arguments in both the first and second stage of trial. At trial, Ochoa failed to object to many of the comments now raised as errors on appeal. Ochoa has waived such objections. Other comments about which Ochoa now complains fall within the broad parameters of effective advocacy and do not constitute error. Nonetheless, several of the prosecutor's comments warrant closer examination.

¶ 54 During first stage closing argument, the prosecutor argued: “All I've got to say is why do you think we're asking you to convict? Do you think we're trying to prosecute somebody that's innocent?” FN66 Torres objected to the comment stating “there is a presumption of innocence.” FN67 The trial court stated, “That's correct, but—proceed.” FN68 Since Ochoa did not object to the comment, we review for plain error. In Miller v. State,FN69 the Court found it was fundamental error for the prosecutor to state in closing argument that “[the cloak of innocence had] been ripped away from him by the testimony of three men—four men, actually. [The defendant] stands guilty as charged.” FN70 Likewise, in Hamilton v. State,FN71 the Court found it error for the prosecutor to state that the cloak of innocence had been stripped from the defendant; however, the Court found the error harmless. Here, although the prosecutor did not use the phrase “cloak of innocence,” his rhetorical question that he would not prosecute an innocent man impermissibly treaded on Ochoa's presumption of innocence. Such argument cannot be condoned. Nonetheless, like in Hamilton, the comment did not affect the verdict and plain error did not occur.

FN66. Vol. VIII Tr. at 185. FN67. Id. FN68. Id. FN69. 843 P.2d 389 (Okl.Cr.1992). FN70. Id. at 390. FN71. 937 P.2d 1001, 1009–10 (Okl.Cr.1997), cert. denied, 522 U.S. 1059, 118 S.Ct. 716, 139 L.Ed.2d 657 (1998).

¶ 55 In second stage closing argument, the prosecutor argued that if the jury sentenced the defendants to a term of imprisonment the defendants would have food and shelter while the victims “lie cold in their graves.” FN72 This Court has condemned similar arguments by the same prosecutor,FN73 and we continue to do so here. Nonetheless, there was no objection to the comment and we can not say that the comment constituted plain error. The prosecutor also overstated the gang evidence and argued that the motive for the killings was to gain higher status in the gang. The evidence did not support this claim. In addition, the prosecutor improperly pleaded with the jury to do justice “and the only way you can do that is bring back a sentence of death.” FN74 He also told the jury “If this isn't a death penalty case, what is?” FN75 It is error for a prosecutor to refer to facts not in evidence and it is error for the prosecutor to state his personal opinion as to the appropriateness of the death penalty. FN76 We are disturbed that the prosecutor risked reversal on appeal by employing such improper tactics. However, Ochoa has failed to show that the comments affected the outcome of his case and we find the errors harmless.

FN72. Vol. X Tr. at 286–87. FN73. Duckett v. State, 919 P.2d 7, 19 (Okl.Cr.1995). FN74. Vol. X Tr. at 301. FN75. Id. at 297. FN76. McCarty v. State, 765 P.2d 1215, 1221(Okl.Cr.1988) (“Mr. Macy improperly expressed his personal opinion as to the death penalty by stating, ‘this defendant deserves it ... This is a proper case for the death penalty ... and justice demands it.’ Such argument was not based on evidence supporting any alleged aggravating circumstance, but was simply a statement of Mr. Macy's personal opinion as to the appropriateness of the death penalty and, as such, was clearly improper.”)

Capital Sentencing Stage of Trial

¶ 56 Ochoa's twelfth and thirteenth propositions of error concern the continuing threat aggravating circumstance used to support his death sentence. In Proposition XII, Ochoa argues the trial court erred in allowing evidence of his gang affiliation to be introduced to prove continuing threat. In Proposition XIII, Ochoa argues the evidence was insufficient to support the jury's finding that he posed a continuing threat to society. These two propositions are closely related, and we consider them together.

¶ 57 Oklahoma provides that the death penalty may be considered an appropriate punishment for first degree murder only in certain specific cases, which are narrowly defined by statutory aggravating circumstances.FN77 At issue here is the continuing threat aggravating circumstance which Oklahoma defines as the “existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” FN78 To prove this aggravating circumstance, the State relied on (1) the facts of the crime itself, and (2) Ochoa's affiliation with the Southside Locos, a local gang.

FN77. 21 O.S.1991, § 701.12. FN78. 21 O.S.1991, § 701.12(7).

¶ 58 Ochoa argues that admission of evidence of his gang affiliation was error. As an initial matter, we note that in his reply brief Ochoa raises the issue of whether the admission of the gang affiliation evidence violated Daubert v. Merrell Dow Pharmaceuticals,FN79 and Taylor v. State.FN80 Because Ochoa did not raise this issue in his brief-in-chief, the issue is waived and we will not consider it.FN81 FN79. 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). FN80. 889 P.2d 319, 329–30 (Okl.Cr.1995). FN81. Rule 3.4(F)(1), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App.

¶ 59 In his brief-in-chief, Ochoa argues that admission of the gang evidence violated the First and Fourteenth Amendments of the federal constitution and violated the Supreme Court's ruling in Dawson v. Delaware.FN82 In his majority opinion in Dawson, Chief Justice Rhenquist held that “the First and Fourteenth Amendments prohibit the introduction in a capital sentencing proceeding of the fact that the defendant was a member of an organization called the Aryan Brotherhood, where the evidence has no relevance to the issues being decided in the proceeding.” FN83 Although the Court recognized “the First Amendment protects an individual's right to join groups and associate with others holding similar beliefs,” FN84 the Court rejected Dawson's claim that evidence of his membership in the Aryan Brotherhood was per se invalid.

FN82. 503 U.S. 159, 112 S.Ct. 1093, 117 L.Ed.2d 309 (1992). FN83. Id. at 161, 112 S.Ct. at 1095. FN84. Id. at 162, 112 S.Ct. at 1096.

¶ 60 In finding evidence of Dawson's membership in the Aryan Brotherhood to be improper, the Court appears to have been particularly struck by two facts: (1) the Aryan Brotherhood evidence was not connected to the murder of Dawson's victim, who was white; and (2) the prosecution failed to prove that the Aryan Brotherhood was involved in any criminal activity. Rather, at issue in Dawson was simply the following stipulation: “ ‘The Aryan Brotherhood refers to a white racist prison gang that began in the 1960's in California in response to other gangs of racial minorities. Separate gangs calling themselves the Aryan Brotherhood now exist in many state prisons including Delaware.’ ” FN85 Without any other evidence of criminal activity, Dawson's membership in the Aryan Brotherhood simply showed he was a racist and/or a member of a racist organization, and that alone is not proper evidence. Nonetheless, the Court did not close the door to all evidence relating to a defendant's associations. The Court noted, “In many cases, for example, associational evidence might serve a legitimate purpose in showing that a defendant represents a future danger to society. A defendant's membership in an organization that endorses the killing of any identifiable group, for example, might be relevant to a jury's inquiry into whether the defendant will be dangerous in the future.” FN86

FN85. Id. at 162, 112 S.Ct. at 1096. FN86. Id. at 166, 112 S.Ct. at 1098.

¶ 61 The issue before us is Ochoa's membership in the Southside Locos. In contrast to Dawson, here the State introduced not only evidence of Ochoa's membership in the gang, but also introduced evidence that the Southside Locos engaged in criminal activity ranging from graffiti to drug trafficking to murder. This type of membership in a criminal gang is the type of associational evidence that the Supreme Court viewed as relevant and permissible in Dawson. The problem here for the State is not the admissibility of the evidence itself, but the ultimate probative value of this evidence in this particular case.

¶ 62 The evidence of Ochoa's membership in or affiliation with the Southside Locos is, at best, of marginal value. There is no evidence that the murders of Maria Yanez or Francisco Morales were in any way connected to the gang or committed on behalf of or to earn status in the gang. Indeed, the State in its brief explicitly states, “No motive was ever discerned for the crime and it appears the Morales' home may have been picked at random.” FN87 Further, although the State introduced evidence that the Southside Locos engaged in a variety of criminal activities, the State utterly failed to tie Ochoa to these criminal activities. There is absolutely no evidence that Ochoa ever engaged in any kind of criminal activity connected with the Southside Locos. The only evidence of Ochoa's affiliation with the gang is that Ochoa told a police officer that he was a member of the Southside Locos and he sported a tattoo of a “cholo,” which is a purported symbol of gang membership. The State offered nothing else to show the nature, extent or value of Ochoa's relationship with the gang. Such lack of connection between the gang's criminal activity and Ochoa makes this evidence, while admissible, of very marginal value as to the question of whether Ochoa himself poses a continuing threat to society. The marginal quality of this evidence thus begs the next question: is the evidence sufficient to support the continuing threat aggravating circumstance. The answer is no.

FN87. St. Br. at 63.

¶ 63 As stated above, the State not only failed to show that Ochoa engaged in any criminal gang activity, but also the State failed to show that Ochoa ever committed any crime. Ochoa had no prior criminal record and he had no prior unadjudicated offenses. There was no evidence that since the murders Ochoa had engaged in any violent or illegal activities. This lack of evidence of criminal activity on the part of Ochoa stands in marked contrast with the requirement “that the State present sufficient evidence concerning prior convictions or unadjudicated crimes to show a pattern of criminal conduct that will likely continue in the future to support its ‘continuing threat’ contention.' ” FN88 The State utterly failed to make such a showing here. FN88. Perry v. State, 893 P.2d 521, 536 (Okl.Cr.1995) (quoting Malone v. State, 876 P.2d 707, 717 (Okl.Cr.1994)).

¶ 64 In other cases in which this Court has found the evidence sufficient to support the continuing threat aggravating circumstance, the State has introduced evidence of prior criminal acts of violence,FN89 prior unadjudicated offenses,FN90 or evidence of criminal activity occurring after the crime.FN91 We have none of that here. An instructive case is Malone v. State.FN92 In Malone, to support the continuing threat aggravating circumstance, the State introduced evidence that nineteen years before the current case, the defendant had been charged with shooting with intent to kill. The Court found that prior charge to be too remote and concluded that the State failed to prove continuing threat. Likewise, in Perry v. State FN93 the Court found the evidence insufficient to support continuing threat where the only evidence introduced to support this aggravating circumstance was (1) a witness' belief that Perry would kill him if he testified against Perry, and (2) the circumstances of the crime. The Court concluded, “at most, the State proved an isolated act of violence committed by a man who suffered from severe drug and alcohol abuse. To establish ‘continuing threat’ the State must show ‘a pattern of criminal conduct that will likely continue in the future.’ The facts of the crime in this case simply do not demonstrate such a pattern of criminal behavior.” FN94 Here, the State proved that Ochoa engaged in a single act of violence and it showed that Ochoa belonged to a street gang. While the murders of Yanez and Morales were deplorable, the State has presented insufficient evidence to show a pattern of criminal conduct that will likely continue in the future. Absent this proof, we cannot say that Ochoa poses a continuing threat to society.

FN89. See e.g. Bryan, 935 P.2d at 361 (supporting continuing threat was defendant's previous conviction for solicitation for murder and other unadjudicated bad acts); Smith, 932 P.2d at 536 (supporting continuing threat was conviction for assault and battery with dangerous weapon, history of spousal abuse and expert testimony of defendant's inability to control his rage); Allen v. State, 923 P.2d 613, 621 (Okl.Cr.1996), vacated on other grounds, 520 U.S. 1195, 117 S.Ct. 1551, 137 L.Ed.2d 699 (1997) (supporting continuing threat was prior convictions for pointing weapon, history of violent arguments with wife and girlfriend, and attempt to kill police officer after killing victim). FN90. See e.g. Bryan, 935 P.2d at 361 (supporting continuing threat was defendant's previous conviction for solicitation for murder and other unadjudicated bad acts); Smith, 932 P.2d at 536 (supporting continuing threat was conviction for assault and battery with dangerous weapon, history of spousal abuse and expert testimony of defendant's inability to control his rage); Johnson, 928 P.2d at 318 (supporting continuing threat were previous threats of violence against wife and prior threats of imposing vigilante justice); Allen, 923 P.2d at 621 (supporting continuing threat was prior convictions for pointing weapon, history of violent arguments with wife and girlfriend, and attempt to kill police officer after killing victim). FN91. See e.g. Charm v. State, 924 P.2d 754, 763 (Okl.Cr.1996), cert. denied, 520 U.S. 1200, 117 S.Ct. 1560, 137 L.Ed.2d 707 (1997) (finding criminal activity occurring after murder sufficient to support continuing threat); Allen, 923 P.2d at 621 (supporting continuing threat was prior convictions for pointing weapon, history of violent arguments with wife and girlfriend, and attempt to kill police officer after killing victim). FN92. 876 P.2d at 717. FN93. 893 P.2d 521, 536 (Okl.Cr.1995). FN94. Id. at 536. See Cudjo v. State, 925 P.2d 895, 902 (Okl.Cr.1996), cert. denied, 519 U.S. 1126, 117 S.Ct. 981, 136 L.Ed.2d 863 (1997) (finding “Appellant's criminal history does not support the finding of this aggravating circumstance. Although Appellant had admittedly burglarized the grocery store on prior occasions, these unadjudicated burglaries appear to have amounted to nothing more than petty thefts.”).

¶ 65 Having found that the State failed to prove the continuing threat aggravating circumstance, “this Court has the authority to reweigh any remaining aggravating circumstances against the mitigating evidence to determine the validity of the death sentence.” FN95 This brings us to Proposition XIV in which Ochoa argues that the evidence is insufficient to support the second aggravating circumstance that Ochoa created a great risk of death to more than one person. We disagree. Ochoa and Torres killed two people. Under our case law, the killing of two people is sufficient to satisfy this aggravating circumstance.FN96 Accordingly, we find the evidence sufficient to sustain this aggravating circumstance.

FN95. Malone, 876 P.2d at 718. FN96. Hooker, 887 P.2d at 1364.

¶ 66 We now must weigh the mitigating evidence against the remaining aggravating circumstance and determine whether to sustain Ochoa's death sentence. In mitigation, Ochoa offered his youth at the time of the crime, his lack of a criminal record, his personal history, his problems with drugs and alcohol, evidence showing he would function well in a structured prison setting, and expert testimony regarding his mental illness, his mental illness history and his borderline mental retardation. He also presented evidence of his family's love for him and pleas of mercy. While Ochoa's evidence had compelling aspects, we find, on balance that the aggravating evidence of the murder of two people outweighs the mitigating evidence. Accordingly, we sustain Ochoa's death sentence.

¶ 67 In Proposition XV, Ochoa argues that the victim impact evidence presented in this case was improper. This Court spelled out the parameters of victim-impact evidence in Cargle v. State.FN97 As required by Cargle, the trial court held a hearing before the victim-impact evidence was introduced. Moreover, the testimony of the victim-impact witnesses comported with the guidelines set out in Cargle. The trial court complied with Cargle, and there was no error. FN97. 909 P.2d 806, 828 (Okl.Cr.1995), cert. denied, 519 U.S. 831, 117 S.Ct. 100, 136 L.Ed.2d 54 (1996).

¶ 68 Ochoa contends in his sixteenth proposition that the trial court erred in failing to give second stage instructions that would focus the jury's attention on the individual culpability of each defendant. Specifically, he states that the trial court should have given an Enmund/Tison FN98 instruction. However, in Cannon v. State,FN99 this Court found that an Enmund/Tison instruction is not required in the second stage of a malice murder case where the jury has been instructed properly during the first stage of trial on aiding and abetting and the elements of first degree malice murder. Cannon controls here. In the first stage of trial, Ochoa's jury was properly instructed on the elements of first degree malice murder and on aiding and abetting. In accordance with Cannon, we find that the trial court did not err in declining to give an Enmund/Tison instruction in the second stage of Ochoa's trial.

FN98. See Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987); Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982). FN99. 904 P.2d at 104–05.

¶ 69 In Proposition XVII, Ochoa argues that the trial court's refusal to define life without the possibility of parole to the jury was error. To the contrary, the trial court's actions are consistent with the decisions of this Court.FN100 Relief is not warranted. FN100. Johnson, 928 P.2d at 319. I disagree with the Court's position on instructing the jury on the definition of the sentence of life without the possibility of parole. We repeatedly see cases where such an instruction is necessary. Nonetheless, I am bound by the doctrine of stare decisis to deny relief on this basis.

¶ 70 In another attack on the second stage jury instructions, Ochoa argues in Proposition XVIII that the trial court's modification of Ochoa's requested instructions on mitigating evidence was improper. Ochoa's requested instructions on second stage mitigating evidence listed twenty-four mitigating factors for the jury to consider in the second stage of trial. The trial court modified this list and provided the jury with an instruction containing fifteen mitigating factors. The trial court modified the list because the evidence did not support all twenty-four mitigating factors requested by the defendant. Defense counsel did not object to the modification.

¶ 71 A defendant must be permitted to present all relevant mitigating evidence in support of his plea for a sentence less than death. FN101 It is clear that Ochoa had an opportunity and did indeed present such mitigating evidence. The court's instructions adequately reflected the mitigating evidence in this case and the trial court did not abuse its discretion in modifying Ochoa's requested instruction. Error did not occur. FN101. Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978).

¶ 72 In Proposition XIX, Ochoa contends the mitigating evidence outweighs the aggravating evidence. We have previously considered this issue and found that the risk of death to more than one person outweighed the mitigating evidence. This proposition is denied.

¶ 73 Ochoa raises a number of claims in his twenty-first proposition which are repeatedly raised in death penalty cases and repeatedly denied. These claims are: (1) the jury instructions failed to inform the jury the findings for mitigation do not have to be unanimous; FN102 (2) the mitigating instructions were defective; FN103 (3) the trial court failed to tell jurors they could consider life or life without parole even if they found an aggravating circumstance; FN104 (4) the weighing instructions were improper; FN105 (5) Oklahoma's death penalty is unconstitutional; FN106 (6) the jury's special findings of fact in the second stage of trial were unconstitutional; FN107 (7) the trial court refused to allow evidence on cost effectiveness; FN108 (8) the trial court refused to instruct the jury on the presumption of life; FN109 (9) the trial court denied Ochoa the right of allocution; FN110 and (10) the prosecutorial charging discretion is unconstitutional.FN111 Each of these issues has been raised in previous death penalty cases and rejected by the Court. We once again decline to grant relief on any of these issues.

FN102. The Court rejected this claim in Charm, 924 P.2d at 773 n. 57. FN103. Id. FN104. The Court rejected this argument in Harjo v. State, 882 P.2d 1067, 1081 (Okl.Cr.1994), cert. denied, 514 U.S. 1131, 115 S.Ct. 2007, 131 L.Ed.2d 1007 (1995). FN105. The Court rejected this argument in Duckett, 919 P.2d at 22. FN106. The Court has held Oklahoma's death penalty is constitutional. Hamilton, 937 P.2d at 1013. FN107. The Court has rejected this argument. Duckett, 919 P.2d at 27. FN108. The Court has found that it is not error to refuse to allow evidence on the cost effectiveness of the death penalty. Smallwood v. State, 907 P.2d 217, 233 (Okl.Cr.1995), cert. denied, 519 U.S. 980, 117 S.Ct. 431, 136 L.Ed.2d 330 (1996). FN109. The Court does not require courts to give an instruction on the presumption of life. Duckett, 919 P.2d at 22. FN110. The Court does not require that courts grant the defendant the opportunity to make a personal plea of mercy to the jury. Id. at 20–22. FN111. The Court has rejected similar claims on abuse of prosecutorial charging discretion. Hooker, 887 P.2d at 1367–68.

¶ 74 In Proposition XXII, Ochoa argues that the accumulation of errors in this case warrants reversal of Ochoa's conviction and sentence. We disagree and find that the accumulation of errors is not sufficient to grant relief.

¶ 75 In Proposition XXIII, Ochoa argues that the imposition of the death sentence upon him violates the constitution. We find that the application of Oklahoma's capital sentencing scheme to Ochoa is not unconstitutional. FN112. See Thompson v. Oklahoma, 487 U.S. 815, 108 S.Ct. 2687, 101 L.Ed.2d 702 (1988); Pulley v. Harris, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984).

¶ 76 In his final proposition of error, Ochoa argues that this Court should modify Ochoa's sentence under this Court's power to conduct an independent mandatory sentence review.FN113 We find that the imposition of the death sentence was not the result of passion, prejudice or any other arbitrary factor. We decline to modify Ochoa's sentence. FN113. 21 O.S.1991, § 701.13(C).

MANDATORY SENTENCE REVIEW

¶ 77 In accordance with 21 O.S.1991, § 701.13(C), we must determine (1) whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor, and (2) whether the evidence supports the jury's finding of aggravating circumstances. Upon review of the record, we cannot say the sentence of death was imposed because the jury was influenced by passion, prejudice, or any other arbitrary factor contrary to 21 O.S.1991, § 701.13(C). The jury found the existence of two aggravating circumstances: (1) continuing threat and (2) risk of death to more than one person. We found the evidence insufficient to support the continuing threat aggravating circumstance, but found the evidence sufficient to support the risk of death to more than one person. Accordingly, the Court reweighed the mitigating and aggravating circumstances. Ochoa's mitigating evidence included: (1) Ochoa's youth at the time of the crime, (2) his lack of a criminal record, (3) his personal history, (4) his problems with drugs and alcohol, (5) evidence showing he would function well in a structured prison setting, (6) expert testimony regarding his mental illness, his mental illness history and his borderline mental retardation, and (7) his family's love for him. After reweighing the evidence, we sustained Ochoa's death sentence. Finding no other error warranting modification, the judgment and sentence of Oklahoma County District Court is AFFIRMED. JOHNSON, J., concurs. STRUBHAR, V.P.J., and LUMPKIN and LANE, JJ., concur in results.

¶ 1 I concur in results by reason of stare decisis. I maintain my disagreement with the majority and continue to agree with Judge Chapel as reflected in footnote 99. I believe that a jury should be informed on the definition of the sentence of life without the possibility of parole whenever the jury so asks for clarification.

LUMPKIN, Judge: concurs in results.

¶ 1 I concur in the results reached by the Court, however I cannot join in some of the verbiage used or unsupported conclusionary statements.

¶ 2 In it's discussion of Proposition II, the Court fails to recognize that Ochoa's access to the crime scene prior to the second trial was due to an accommodation by the State. The Court recognizes that third parties occupied the home at that time and had denied Appellant's investigators access. The trial court recognized it did not have authority to direct the third parties to allow the defense investigators into the house. Somehow the State was able to secure permission to return to the house to take measurements and prepare a new diagram. While I agree it would have been more prudent for the State to allow the defense investigators for Ochoa the opportunity to confirm the new measurements, it was not error.

¶ 3 The Court's discussion of Appellant's role as an aider and abettor seems to disregard our unanimous decision on that issue in Conover v. State, 933 P.2d 904, 914–16 (Okl.Cr.1997). Regretfully, the issue raised here is a product of one of the “potential ‘time bombs' ” I referred to in my separate writing in Johnson v. State, 928 P.2d 309, 321–22 (Okl.Cr.1996) (Lumpkin, J. Concurring in Result). Using the standard set out in Conover, I find the evidence sufficient to support the verdict in this case. The Court should follow our jurisprudence and not try to confuse it.

¶ 4 The concept of “de novo” review enunciated by the Court at Paragraph 8 [Page 591] is not a part of our jurisprudence. In fact, the case cited by the Court in support of that concept, Smith v. State, 932 P.2d 521, 528 (Okl.Cr.1996), does not address that issue. However, I agree with the Court's conclusion that regardless of how low the standard is, Appellant did not present sufficient evidence to show he was incompetent at the time of trial.

¶ 5 I also find the facts relating to the aggravator that Appellant knowingly created a great risk of death to more than one person more compelling than related in the opinion. Appellant and his co-defendant, armed with firearms, entered the home of the victims, in a residential neighborhood, in the early morning hours of July 12, 1993. The front door of the residence was kicked in and the victims gunned down in their bedroom. Three children, ages six (6), eleven (11) and fourteen (14) years were in the house. Fortunately, those children did not run into the hallway. One child called 911 and asked for help. She looked out of her bedroom and saw two men, one she later identified as Appellant. Her stepbrother hid under his bed when he heard the shots. He later testified he saw a man shoot his father as he watched from under the bed. Not only does the murder of the two victims support the aggravator, but also the risk of death to the others who were in the home. This evidence relating to the aggravator not only substantiates the death penalty but also clearly outweighs the evidence presented in mitigation. I therefore concur in the result reached by the Court.

 
 

Ochoa v. State, 136 P.3d 661 (Okla.Crim. App. 2006). (PCR)

Background: Following appellate affirmance, 963 P.2d 583, of his convictions on two counts of first degree murder and one count of first degree burglary, and of his sentence of death for murders and 20 years' imprisonment for burglary, denial of his original application for post-conviction relief, and filing of his petition for federal habeas relief, petitioner filed second application for post-conviction relief. Following evidentiary hearings, the Court of Criminal appealed remanded for jury trial on issue of mental retardation. The District Court entered judgment on jury verdict that petitioner was not mentally retarded, and petitioner appealed.

Holdings: The Court of Criminal Appeals, C. Johnson, J., held that: (1) burden of proof was upon petitioner to prove mental retardation by preponderance of the evidence; (2) evidence was sufficient to support finding that petitioner was not mentally retarded at time of trial; (3) jury was required to find that petitioner was or was not mentally retarded at time of instant trial, and not at time of offense; (4) jury's awareness that trial in which they were participating was related to criminal matter and that defendant was in custody and had been convicted of a crime did not prejudice petitioner; (5) petitioner's appearance before jury in prison clothing did not violate due process; (6) trial court's order requiring petitioner to wear “shock sleeve” during trial constituted abuse of discretion; (7) such error was harmless; and (8) petitioner failed to meet his burden of proving his mental retardation by preponderance of the evidence. Affirmed. Lumpkin, V.P.J., concurred in result.

OPINION DENYING SECOND APPLICATION FOR POST-CONVICTION RELIEF AFTER REMAND FOR JURY DETERMINATION ON ISSUE OF MENTAL RETARDATION

C. JOHNSON, Judge.

¶ 1 Petitioner, George Ochoa, was convicted by a jury of two counts of First Degree Murder and one count of First Degree Burglary in Oklahoma County District Court, Case No. CF 1993-4302. He was sentenced to death for both murders and to twenty (20) years imprisonment for burglary. We affirmed these judgments and sentences on direct appeal.FN1 This Court denied Ochoa's Original Application for Post-Conviction Relief,FN2 and his federal habeas is pending in the Tenth Circuit.FN3

FN1. Ochoa v. State, 1998 OK CR 41, 963 P.2d 583, cert. denied, 526 U.S. 1023, 119 S.Ct. 1263, 143 L.Ed.2d 358 (1999). FN2. Ochoa v. State, PCD 97-1559 (Okl.Cr. August 4, 1998)(not for publication). FN3. Ochoa v. Mullin, No. 02-6032 (10th Cir.2002)

¶ 2 On December 2, 2002, Ochoa filed a Second Application for Post-Conviction Relief in a Death Penalty Case. We denied relief on Propositions Two and Three and granted Petitioner's request for an evidentiary hearing on Proposition One. Ochoa v. State, PCD 2002-1286 (Okl.Cr. December 17, 2002)(not for publication). An evidentiary hearing was held before the Honorable Susan Bragg on February 3, 2003, but the scope of that hearing was limited and further remand was required. Ochoa v. State, PCD 2002-1286 (Okl.Cr. March 27, 2003) (not for publication). A second evidentiary hearing on the issue of mental retardation was held, and following that hearing, we remanded this case to the District Court for a jury trial on mental retardation. Ochoa v. State, PCD 2002-1286 (Okl.Cr. April 15, 2004)(not for publication).

¶ 3 Jury trial on the issue of mental retardation was held on June 20th-21st, 2005, before the Honorable Virgil Black, District Judge. The jury returned a verdict that Mr. Ochoa is not mentally retarded. (O.R. 116; Tr. 327-328) The trial court filed Findings of Fact and Conclusions of Law in the District Court on July 20, 2005.FN4 Petitioner's Supplemental Brief After Mental Retardation Jury Trial was filed on September 16, 2005. The State of Oklahoma filed its Supplemental Brief on September 23, 2005. FN4. While the trial court's findings of facts and conclusions of law assist this Court in its decision, the jury is the finder of fact in this proceeding. Myers v. State, 2005 OK CR 22,

¶ 7, 130 P.3d 262, 267.

¶ 4 Though this appeal remains part of Mr. Ochoa's post-conviction case, we will review errors alleged to have occurred in this jury trial on mental retardation in the same manner as errors raised on direct appeal from a trial on the merits. Myers v. State, 2005 OK CR 22,

¶ 5, 130 P.3d 262, 265.

¶ 5 Prior to his jury trial on mental retardation, Ochoa asked the trial court to reverse the order of proof and shift the burden to the State to prove he was not mentally retarded beyond a reasonable doubt. The trial court denied the motion prior to voir dire and thereafter instructed the jury that Mr. Ochoa carried the burden of proving mental retardation by a preponderance of the evidence. In his first claim of error, Mr. Ochoa asks this Court “to revisit and overrule its prior decisions regarding the burdens of persuasion and proof in these types of cases and to hold that the State bears the burden of persuasion by the beyond a reasonable doubt standard that the Petitioner is not mentally retarded.”

¶ 6 The Supreme Court, in Atkins v. Virginia, 536 U.S. 304, 317, 122 S.Ct. 2242, 2250, 153 L.Ed.2d 335 (2002), left to the individual States “the task of developing appropriate ways to enforce the constitutional restriction” against the execution of mentally retarded persons.FN5 In response to Atkins, this Court has developed procedures to be followed when a post-conviction applicant, who has previously been sentenced to death, raises a claim that mental retardation bars his or her execution. See Murphy v. State, 2002 OK CR 32, 54 P.3d 556, overruled in part in Blonner v. State, 2006 OK CR 1,

¶ 5, 127 P.3d 1135, 1139; Lambert v. State, 2003 OK CR 11,

¶ 4, 71 P.3d 30, 31-32; State ex.rel. Lane v. Bass, 2004 OK CR 14,

¶ 8, 87 P.3d 629, 631-632.

FN5. In Atkins, the Supreme Court stated “death is not a suitable punishment for a mentally retarded criminal.... Construing and applying the Eighth Amendment in the light of our ‘evolving standards of decency,’ we therefore conclude that such punishment is excessive and that the Constitution ‘places a substantive restriction on the State's power to take the life’ of a mentally retarded offender.” Atkins, 536 U.S. at 321, 122 S.Ct at 2252 (internal citation omitted).

¶ 7 In a post-conviction proceeding, when this Court has remanded the matter for a jury determination on the factual issue of mental retardation, a petitioner must prove mental retardation by a preponderance of the evidence. Bass, 2004 OK CR 14,

¶ 8, 87 P.3d at 631-632; Lambert, 2003 OK CR 11,

¶ 4, 71 P.3d at 31-32. To meet this burden, the petitioner must show he or she functions at a significantly sub-average intellectual level that substantially limits his ability to understand and process information, to communicate, to learn from experience or mistakes, to engage in logical reasoning, to control impulses, and to understand the reactions of others; 2) that his mental retardation manifested itself before the age of 18; and 3) that he has significant limitations in adaptive functioning in at least two of the nine listed skill areas. Myers, 2005 OK CR 22,

¶ 6, 130 P.3d at 266. The jury must consider the evidence presented by the State and by the petitioner and determine whether the petitioner has met this burden. If the jury finds the petitioner is not mentally retarded, the death sentence stands. Myers, id.; Lambert, 2003 OK CR 11,

¶ 5, 71 P.3d at 32.

¶ 8 This procedure has evolved somewhat since our first effort in Murphy, but a constant in the development of this area of the law in Oklahoma is that the burden of proof in a mental retardation jury trial shall be upon the petitioner/defendant to prove mental retardation by a preponderance of the evidence. Murphy, 2002 OK CR 32,

¶ 31, 54 P.3d at 568; Blonner, 2006 OK CR 1,

¶ 3, 127 P.3d at 1139; Lambert, 2003 OK CR 11,

¶ 4, 71 P.3d at 32; Bass, 2004 OK CR 14,

¶ 8, 87 P.3d at 631-632; Myers, 2005 OK CR 22,

¶ 6, 130 P.3d at 265.

¶ 9 Contrary to Ochoa's claim, we do not believe the principles underlying the Supreme Court's decision in Atkins require this Court to overrule our decisions dealing with the burden and standard of proof in mental retardation jury trials. To require the defendant/petitioner to show by a preponderance of the evidence his or her mental retardation to establish ineligibility for a sentence of death does not violate either of Oklahoma's constitutional provisions which ensure due process of law and protect against the infliction of cruel or unusual punishment. See Okla. Const. art.II, §§ 7, 9.

¶ 10 Further, we are not persuaded to restructure our procedure by the New Jersey Superior Court's holding in State v. Jimenez, 380 N.J.Super. 1, 880 A.2d 468 (Ct.App.Div.2005), which requires the State to establish the absence of mental retardation beyond a reasonable doubt. The holding in Jimenez that the burden should be on the State to prove a defendant's mental retardation is based upon that Court's interpretation of its own State Constitution and upon its public policy grounds. Jimenez, 880 A.2d at 489. Accordingly, Ochoa's first proposition of error is denied.

¶ 11 In Proposition Two, Ochoa argues that the Supreme Court's holding in Atkins prohibits the State from executing a person who was mentally retarded at the time the crimes were committed, not at the time of the jury trial on the issue of mental retardation. Evidence presented at Ochoa's jury trial on mental retardation showed that Ochoa scored higher on intelligence tests given in 2003 than on those given to him in 1995 and 1996. Evidence also was presented which showed Ochoa had learned to read and write while incarcerated and suggested his ability to learn to read and write likely contributed to his more current test performance.

¶ 12 Counsel for Ochoa requested the trial court instruct the jury that it must find Ochoa was mentally retarded at the time of the offense and the trial court denied the requested instructions. Ochoa argues that the focus of the Court in Atkins was upon the moral culpability of the offender at the time of the crime and the relevant constitutional inquiry is not whether the offender is retarded at the moment, but rather whether the offender was retarded when the crime occurred. He asks this Court to vacate the jury's verdict because it was rendered upon instructions which required it to find Ochoa was presently mentally retarded.

¶ 13 Although the Court in Atkins did not specifically define “mental retardation” for the individual States and left it to the States “the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences,” there it referenced two generally accepted clinical definitions. Atkins, 536 U.S. at 317, n. 22, 122 S.Ct. at 2250, n. 22. Both definitions require mental retardation to be present before the age of eighteen (18). Atkins, 536 U.S. at 308, n. 3, 318, 122 S.Ct. at 2245, n. 3, 2250 (AAMR definition requires mental retardation to “manifest” before age eighteen; American Psychiatric Association's definition states the “onset must occur before” eighteen (18)).

¶ 14 We disagree with Ochoa's description of mental retardation as a “fluid concept.” While we do not dispute that a mentally retarded person can learn and develop skills, that ability is limited and the ability to learn and to adaptively function suggests the individual was likely not mentally retarded in the first place but fell into that borderline range or classification due to environmental or other factors which affected present ability. The witness at Ochoa's trial acknowledged this when she testified that some people functioning at a low level due to environment, education or impoverishment could move “above the level” of mental retardation classification by increasing his or her abilities to function. That Ochoa may have had an IQ score within the range of 70 to 75 at the time of the crime is relevant but does not prove mental retardation. “I.Q. tests alone are not determinative of the issue of mental retardation.” Myers, 2005 OK CR 22,

¶ 8, 130 P.3d at 268.

¶ 15 The requisite cognitive and behavioral impairments attendant to mental retardation, as defined by this Court in evaluating Eighth Amendment claims, substantially limits one's ability to understand and process information, to communicate, to learn from experience or mistakes, to engage in logical reasoning, to control impulses, and to understand the reactions of others. We do not dispute the fact that a mentally retarded person can learn. However, a person who can learn beyond the accepted clinical definitions of mental retardation does not fall within the definition of those persons who may avoid execution due to mental retardation. The evidence presented at Ochoa's mental retardation jury trial showed he does not function at a significantly sub-average intellectual level that substantially limits his ability to understand and process information, to communicate, to learn from his mistakes, to engage in logical reasoning, to control impulses, and to understand the reaction of others. The jury was properly instructed it must find Ochoa “is” mentally retarded, as opposed to finding that he “was” mentally retarded at the time of the crime.

¶ 16 In his third claim of error, Ochoa contends the trial was fundamentally unfair because the jury learned of Ochoa's prior convictions and because the jury saw Ochoa wearing orange jail overalls and a “shock sleeve.” The record reflects Ochoa chose not to dress out; and, following counsel's request that the trial court admonish him not to act inappropriately during the trial, Ochoa responded to the trial court's admonishments with obvious upset. After the trial court advised Ochoa he would be removed from the court room if he were to be disruptive, Ochoa responded that he was “being railroaded anyway, so it didn't matter to” him. At this point the trial court asked the deputy to put on “the sleeve,” noting that “it may ensure that he won't behave inappropriately.” After the deputy left with Ochoa, the trial court stated, “I've observed them with that on. They don't seem to be a problem.” When Ochoa returned to the court room, counsel said Ochoa wanted to make a record on “the sleeve.” The trial court asked, “he objects to it?” Upon counsel's affirmative response, the trial court stated, “he was going to cause a problem, now he's not.”

¶ 17 The potential jurors were called and the trial court informed the venire the case had “to do with a criminal matter that you will not hear about.” The trial court explained a deputy was present because Ochoa was in custody. So he's not free to leave ... So he's accompanied by a deputy all the time because he's in custody. And he has been convicted of a crime that we're not going to tell you about at this point in time, okay? ... and there's very limited reasons why you might hear it during the trial, but probably not. But he's been convicted of a crime. After a potential juror indicated his best friend graduated from the police academy, the trial court stated, “I don't see any law enforcement officers, but this is a criminal case, okay. Criminal cases are involved in this.” After a potential juror described being robbed at gunpoint and said this was not that kind of case, the trial court stated, “And that's true, but it does have criminal overtones to it.” After voir dire, before court recessed for the day, the trial court noted the breaks were a little bit longer, because “Ochoa's in custody and you're eight floors away from the coffee shop ...” During voir dire, the prosecutor also stated “You understand he's already been convicted of a crime,” and reminded the jurors they were not going to find out what Ochoa was convicted of and might have “unanswered questions.”

¶ 18 Ochoa contends the jury should not have received any information relating to his custodial status and he should not have been “forced” to proceed at trial in prisoner clothing and the shock sleeve. Ochoa relies upon Deck v. Missouri, 544 U.S. 622, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005), and argues he was deprived of due process and a fundamentally fair trial when the jury observed him in obvious restraint without being told why he was in custody.

¶ 19 The jury's knowledge that Ochoa was in custody, that he had previously been convicted, and that the proceeding was related to a criminal matter was not violative of Lambert v. State, 2003 OK CR 11, 71 P.3d 30. While evidence relating to his criminal conviction and sentence of death are not relevant to the proceeding, the jury's knowledge that the proceeding was related to a criminal matter and that Ochoa was in custody and had been convicted of a crime does not create the prejudicial effect Lambert sought to avoid. Ochoa's counsel was not ineffective for not objecting to the trial court's and the prosecutor's remarks informing the jury that Ochoa had been convicted of a crime and/or that this was a criminal related matter.

¶ 20 It is error to compel an accused to appear before a jury in prison clothing where a timely request has been made for civilian clothing. Rhinehart v. State, 1980 OK CR 16,

¶ 8, 609 P.2d 781, 783. However here, the record shows Ochoa's decision to appear before the jury in jail dress was his own. He was compelled by no one but himself. We find no Fourteenth Amendment violation where Ochoa himself made the decision to appear in jail dress and no request for civilian clothing appears in the record. Estelle v. Williams, 425 U.S. 501, 512-513, 96 S.Ct. 1691, 1697, 48 L.Ed.2d 126 (1976).

¶ 21 Ochoa's presence before the jury in the shock sleeve is a more difficult matter. The record does not show Ochoa's counsel objected to the use of such restraint, however Ochoa himself repeatedly objected to its use. The Fifth and Fourteenth Amendments prohibit the use of physical restraints visible to a jury absent a trial court determination, in the exercise of its discretion, that the restraints are justified by a state interest specific to a particular trial. Deck, 544 U.S. at 629, 125 S.Ct. at 2012. The Supreme Court extended this legal principle beyond guilt/innocence proceedings and reversed a death sentence reached by a jury in a trial where a defendant was shackled with leg irons, handcuffs, and a belly chain during the penalty stage of trial. Id. at 2014. Noting the accuracy in decision-making is no less critical in the penalty stage of a capital proceeding, the Court stated the appearance of a defendant in shackles during the penalty phase implies to a jury, as a matter of common sense, that the court authorities consider him a danger to the community ... It also almost inevitably affects adversely the jury's perception of the character of the defendant. And it thereby inevitably undermines the jury's ability to weigh accurately all relevant considerations ... when it determines whether a defendant deserves death. Id. (citations omitted).

¶ 22 Judicial hostility to shackling reflects its concerns towards three fundamental legal principles: 1. the criminal process presumes the defendant is innocent until proven guilty and visible shackling undermines the presumption of innocence and the related fairness of the factfinding process; 2. the Constitution provides the accused with a right to counsel to assist in his defense and the use of physical restraints diminishes that right by interfering with the accused's ability to communicate with his lawyer and assist in his defense; and 3. the routine use of shackles would undermine a dignified judicial process which demands the respectful treatment of the defendant. Id. at 630-631, 125 S.Ct. at 2013. In Deck, the latter two considerations guided the Court's decision. Id. at 632, 125 S.Ct. at 2014.

¶ 23 While the use of shackles or other restraints is clearly not favored, the constitutional requirement against routine restraints is not absolute. Id. A judge, in the exercise of discretion and taking into account the special circumstances of each proceeding, including security concerns, may call for shackling. Id. at 633, 125 S.Ct. at 2014-2015. “But given their prejudicial effect, due process does not permit the use of visible restraints if the trial court has not taken account of the circumstances of the particular case.” Id. at 632, 125 S.Ct. at 2014.

¶ 24 In Oklahoma, Title 22, Section 15 provides No person can be compelled in a criminal action to be witness against himself; nor can a person charged with a public offense be subjected before conviction to any more restraint than is necessary for his detention to answer the charge, and in no event shall he be tried before a jury while in chains or shackles. (emphasis added). This statutory right to be free from shackles may be waived by a defendant who engages in disruptive, contemptuous or disrespectful behavior. Peters v. State, 1973 OK CR 443,

¶ 14, 516 P.2d 1372, 1374-1375. In Phillips v. State, 1999 OK CR 38,

¶ 52, 989 P.2d 1017, 1033, where the appellant claimed he was denied due process and the right to a fair trial when he was forced to wear a stun belt during trial, we held Section 15 “applicable to physical restraints such as a stunbelt.” Id. at

¶ 54, 989 P.2d at 1034. After noting Phillips had not waived his statutory right to be tried free of physical restraints, this Court referred to Phillips' prior outburst at another court proceeding and his violent behavior in county jails. Id. It noted “all parties agreed the stunbelt was not visible to the jury,” no evidence showed Phillips' hands, arms or legs were physically restrained or that the stunbelt hampered his mental abilities. Id. at

¶ 55, 989 P.2d at 1034. Absent such evidence, this Court found the error did not deprive Phillips of a fair trial or have a “substantial influence” on the outcome of the trial. Id.

¶ 25 In Davis v. State, 1985 OK CR 140, 709 P.2d 207, when addressing a claim that the defendant was improperly tried in leg shackles in both stages of a capital murder trial, we held the procedure violated 22 O.S. § 15 and, in the absence of waiver, the trial court had no discretion in the matter, and the defendant should not be handcuffed or shackled during the trial. Id. at

¶ 3, 709 P.2d at 208. In Davis, the record did not establish any disruptive or disrespectful conduct on appellant's part justifying the use of restraints and there was not one “scintilla of evidence that the appellant planned to disrupt the trial.” Id. at

¶ 4, 709 P.2d at 209. The record showed the appellant was shackled at the direction of the county sheriff. Id. This Court reversed the capital murder conviction and sentence in Davis. Id. at

¶ 5, 709 P.2d at 209.

¶ 26 The State did not respond to this claim in its Supplemental Brief and we therefore directed Respondent to answer this claim of error. See Ochoa v. State, PCD 2002-1286 (Okl.Cr. January 31, 2006)(not for publication). The State filed its Response on February 10, 2006.

¶ 27 Although Respondent admits Title 22, Section 15 is applicable to the use of a “shock sleeve,” it argues the statute is inapplicable to this case because Ochoa was forced to wear the sleeve at a mental retardation jury trial after he had already been convicted. We do not agree. The application of Section 15 logically extends to any fact-finding trial processes. As the Supreme Court found in Deck, a jury's observation of a defendant in visible restraints undermines its ability to weigh accurately all relevant considerations. It implies the defendant is dangerous and almost assuredly affects the jury's perception of the defendant's character. Although a defendant's dangerousness has nothing to do with a finding of mental retardation, speculation on the defendant's character based upon observation of visible restraints diverts the jury's attention from its fact-finding mission-in this case, its consideration of the evidence relevant to the determination of a defendant's mental retardation.

¶ 28 The State argues that even if this Court finds the restrictions set forth in Section 15 to be applicable to jury determinations on mental retardation, no error occurred, because the trial court acted within its discretion when it ordered Ochoa to wear the shock sleeve. The State submits the record discloses Ochoa intended to disrupt the trial proceedings and “thus, to maintain order during the proceedings, the trial court properly had a “shock sleeve” placed on the Petitioner.” (Br. of Appellee, pg. 7)

¶ 29 The transcripts show the trial court and defense counsel were concerned with Ochoa's behavior. However, the record does not disclose why they were concerned nor does it reflect Ochoa actually engaged in any violent, disruptive, aggressive or inappropriate behavior prior to the trial court's order requiring him to wear the shock sleeve. At one point, following Ochoa's repeated objection to wearing the shock sleeve and after he asked “why are you putting it on my arm,” the trial court responded “because you had told Ms. Rhone that you were going to be disruptive ...” No testimony was taken from Ms. Rhone and nothing else appears in the record to explain the trial court's concern.FN6 At one point, the trial court told Ochoa the shock sleeve was “like insurance, precautionary.” FN6. This scintilla of evidence may be more than what was before this Court in Davis, but it does not sufficiently disclose the reason for the trial court's concern.

¶ 30 We agree with the State that it is the trial judge's responsibility to control the decorum of the courtroom. See Davis v. State, 1985 OK CR 140,

¶ 1-2, 709 P.2d 207, 210 (Brett, J., specially concurring) However, this record does not sufficiently establish that Ochoa was in fact disruptive, violent or aggressive or that this level of control was needed. The trial court admitted its decision to put the shock sleeve on Ochoa was “like insurance” and was precautionary in nature. The trial court's statement that Ochoa told someone he was going to be disruptive was not sufficient to warrant the action taken by the trial court and its order requiring Ochoa to wear the shock sleeve constituted an abuse of discretion and violated 21 O.S.2001, § 15; Davis, 1985 OK CR 140,

¶ 4, 709 P.2d at 209; see e.g. In re L.B., 1982 OK 47, 645 P.2d 498, 500 (isolated attempt to kick at judge after court interrupted defendant's attempt to promise the court he would behave was not sufficient to warrant hand-cuffing defendant during involuntary commitment proceeding); U.S. v. Durham, 287 F.3d 1297, 1303-1308 (11th Cir.2002)(use of stun belts generally and requirement of close judicial scrutiny).

¶ 31 The State argues the record does not show the shock sleeve was visible to the jury or that the jury knew what the shock sleeve was for, so even if the trial court should not have ordered Ochoa to wear it, no constitutional error resulted. In Phillips, where the parties agreed the stun belt was not visible to the jury and the defendant was not physically restrained and his mental abilities were not hampered, this Court found the defendant was not deprived of a fair trial and the violation of 22 O.S.2001, § 15 did not have a substantial influence on the outcome of trial. Phillips, 1999 OK CR 38,

¶ 55, 989 P.2d at 1033.

¶ 32 Here the record does not show the shock sleeve was visible to the jury. Even if it were visible, we doubt the jury's ability to see the shock sleeve was any more prejudicial to Ochoa than was the fact that the jury saw Ochoa wearing his jail clothing and Ochoa himself made the decision to dress out in jail clothing. Ochoa does not claim the shock sleeve prevented him from physically or mentally assisting his counsel at the mental retardation hearing. While this Court finds the trial court erred and abused its discretion by ordering Ochoa to wear the shock sleeve, Ochoa has not proven this error had a substantial influence on the outcome of the proceeding and has not shown prejudice. See e.g., U.S. v. McKissick, 204 F.3d 1282, 1299 (10th Cir.2000)(court will not presume prejudice where there was no evidence jurors noticed the stun belt).

¶ 33 In his last proposition of error, Ochoa contends the cumulative effect of the errors which occurred at his jury trial on mental retardation resulted in a fundamentally unfair proceeding. We do not agree. While the record does not support the trial court's decision requiring Ochoa to wear the shock sleeve and 22 O.S.2001, § 15 was violated, Ochoa has not shown he was prejudiced by that decision. As noted above, Ochoa himself chose to dress out in his jail clothing. As a result of that decision, the jurors knew he was in custody. Nothing in the record shows the shock sleeve was activated at any time during the trial and nothing in the record suggests it prevented Ochoa from participating and assisting his counsel.

¶ 34 Ochoa did not meet his burden of showing, by a preponderance of the evidence, that he is mentally retarded. He presented only one witness: a clinical psychologist who interviewed him, his family members, reviewed records and administered psychological tests. Although this witness testified Ochoa has significant deficiencies in communications and functional academics, she did not testify that he is mentally retarded. We are not persuaded by the witness's or Ochoa's suggestion that he might have been retarded at the time of his arrest, and apparently the jury was not persuaded by that suggestion either. His ability to learn and improve his intellectual functioning in prison suggests his adaptability and that his prior deficits were likely related to his poor social and economic environment which affected his development.

¶ 35 The single error identified in this appeal did not render Ochoa's trial fundamentally unfair or deprive him of due process. Where only one error is identified and it does not warrant relief, there can be no error by accumulation. Hope v. State, 1987 OK CR 24,

¶ 12, 732 P.2d 905, 908.

DECISION

Ochoa's Second Application for Post-Conviction Relief in a Death Penalty Case is DENIED and his sentence of death is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2006), the MANDATE is ORDERED issued upon the delivery and filing of this decision. CHAPEL, P.J., A. JOHNSON and LEWIS, JJ.: concur. LUMPKIN, V.P.J.: concurs in results.

 
 

Ochoa v. Workman, 451 Fed.Appx. 718 (10th Cir. 2011). (Habeas)

Background: After state court first degree murder convictions and death sentence were affirmed on appeal, 963 P.2d 583, and Oklahoma state post-conviction remedies were exhausted, petitioner filed federal habeas corpus petition. The United States District Court for the Western District of Oklahoma, 2010 WL 915826, denied petition. Petitioner appealed.

Holdings: The Court of Appeals, Michael R. Murphy, Circuit Judge, held that: (1) prosecution's gang-related statements during guilt phase of capital murder trial did not render trial fundamentally unfair; (2) state appellate court's determination that aggravating evidence outweighed mitigating evidence was not unreasonable application of clearly established federal law; (3) petitioner's claim that prosecution pressured witness to testify falsely during capital murder trial was procedurally barred; (4) conclusion of Oklahoma appellate court that jury instructions did not violate Eighth Amendment, was neither contrary to, nor an unreasonable of, federal law; (5) state appellate court's determination that witness's in court identification of petitioner as killer was admissible at capital murder trial was not unreasonable application of law; and (6) state appellate court's determination that trial court's instructions during sentencing phase were proper was not unreasonable application of clearly established federal law. Affirmed.

MICHAEL R. MURPHY, Circuit Judge.

An Oklahoma state jury found George Ochoa guilty of, inter alia, two counts of first degree murder and sentenced him to death. On direct appeal, the Oklahoma Court of Criminal Appeals (“OCCA”) affirmed. Ochoa v. State, 963 P.2d 583, 606 (Okla.Crim.App.1998). After exhausting his Oklahoma state post-conviction remedies, Ochoa filed a 28 U.S.C. § 2254 habeas corpus petition in federal district court. The district court denied habeas relief in an extensive order. Ochoa appeals the district court's denial of habeas relief (No. 02–6032).FN1 Exercising jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, this court affirms the district court's denial of Ochoa's habeas petition.

FN1. After all briefing was complete and Ochoa's appeal was set for oral argument, this court stayed the appeal, upon Ochoa's motion, so he could exhaust an Atkins-based mental retardation claim in state court. See Atkins v. Virginia, 536 U.S. 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (holding that the Eighth Amendment “places a substantive restriction on the State's power to take the life of a mentally retarded offender” (quotation omitted)). Oklahoma held a jury trial on Ochoa's Atkins claim; the jury concluded Ochoa had not proved he was mentally retarded by a preponderance of the evidence. The OCCA affirmed. Ochoa v. State, 136 P.3d 661, 670 (Okla.Crim.App.2006). This court then granted Ochoa permission to file a second § 2254 petition raising his Atkins claim in federal district court. Ochoa v. Sirmons, 485 F.3d 538 (10th Cir.2007). After the district court denied habeas relief, Ochoa appealed to this court. Ochoa's appeal of the denial of his Atkins-based successive habeas petition remains pending before this court (No. 10–6088).

I. BACKGROUND

The following factual background is taken from the opinion of the OCCA on direct appeal. Additional background, both factual and procedural, is set out below where necessary to understand individual issues raised by Ochoa on appeal. During the early morning hours of July 12, 1993, Francisco Morales and his wife, Maria Yanez, were shot and killed in the bedroom of their Oklahoma City home. The sound of gunfire woke Yanez's daughter Christina, who was 14 years old in the summer of 1993. Christina called 911 and told the operator that she believed her step-father, Morales, may have been firing the gun. After hanging up the telephone, she looked out her bedroom door. A light was on in the living room; Christina saw two men. One man was wearing a white t-shirt and the other man was wearing a black t-shirt. Christina stated the man in the black t-shirt had something in his hand, but she did not know what it was. Christina initially denied knowing the two men, but eventually identified Ochoa as the man in the black t-shirt and [Osbaldo] Torres as the man in the white t-shirt.

The shooting also awakened Christina's step-brother, Francisco, who was eleven years old in the summer of 1993. Francisco saw the man in the black t-shirt shoot his father. He could not identify the gunman. The police quickly responded to Christina's 911 call. While en route to the Yanez/Morales home, Officer Coats arrested Torres and Ochoa, who were walking together a short distance from the homicide. The men were sweating and nervous, and Coats claimed he observed blood on the clothing of the men. A short time before the shootings, Torres and Ochoa parked their car at a friend's house. A witness observed one of the men take a gun from the trunk of the car and put the gun in his pants. This gun was different from the gun used in the murders. The witness stated one of the men was Ochoa. She could not identify the other man, but asserted that it was the other man—and not Ochoa—who put the gun in his pants. Another witness testified that the man with Ochoa was Torres.

The jury convicted Ochoa and Torres on all counts and the case proceeded to the capital sentencing phase of trial. The State argued that Ochoa and Torres posed a continuing threat to society based on the circumstances of the murders and the defendants' membership in the Southside Locos, a local gang. To show that Ochoa created a risk of death to more than one person, the State offered the death of the two victims and the presence of three children in the home at the time of the murders. The defense presented in mitigation Ochoa's personal history, his history of mental illness, his borderline mental retardation and pleas of mercy from his family. The jury found the existence of both aggravating circumstances. After weighing the aggravating and mitigating evidence, the jury imposed the death penalty. Ochoa, 963 P.2d at 590; see also generally Torres v. Mullin, 317 F.3d 1145 (10th Cir.2003) (denying federal habeas relief to Ochoa's co-defendant).FN2 FN2. “George Ochoa was tried jointly with Osbaldo Torres by a jury in Oklahoma County District Court, No. CF–93–4302.” Ochoa v. State, 963 P.2d 583, 589 (Okla.Crim.App.1998).

II. STANDARD OF REVIEW

A petitioner is entitled to federal habeas relief only if a state court's merits-based adjudication of his claims “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). This court presumes a state court's factual findings are correct unless the petitioner rebuts that presumption by “clear and convincing evidence.” Id. § 2254(e)(1).

This court first determines “whether the principle of federal law upon which petitioner relies was clearly established by the Supreme Court at the time of the state court judgment.” Bland v. Sirmons, 459 F.3d 999, 1009 (10th Cir.2006). Clearly established law consists of Supreme Court holdings in cases where the facts are similar to the facts in the petitioner's case. House v. Hatch, 527 F.3d 1010, 1016 (10th Cir.2008). “The absence of clearly established federal law is dispositive under § 2254(d)(1).” Id. at 1018. If clearly established federal law exists, this court moves on to consider whether the state court decision was contrary to or an unreasonable application of that clearly established federal law. Bland, 459 F.3d at 1009. “A decision is ‘contrary to’ clearly established federal law ... if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases or if the state court confronts a set of facts ... materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from the result reached by the Supreme Court.” Id. (quotations omitted) (alterations in original). “A state court decision involves an ‘unreasonable application’ of federal law if the state court identifies the correct governing legal principle from [Supreme Court] decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id. (quotation omitted). This court “may not consider issues raised in a habeas petition that have been defaulted in state court on an independent and adequate procedural ground unless the petitioner can demonstrate cause and prejudice or a fundamental miscarriage of justice.” House, 527 F.3d at 1029 (quotation omitted).

III. DISCUSSION

On appeal, Ochoa asserts he is entitled to habeas relief based on each of the following five alleged constitutional errors: (1) admission of evidence about Ochoa's involvement in an Oklahoma City street gang rendered both the guilt and penalty phases of his trial unfair; (2) multiple incidents of prosecutorial misconduct rendered both phases of his trial unfair; (3) the state trial court's refusal to instruct the jury to consider the relative degree of culpability of Ochoa and Torres in arriving at a sentencing decision rendered his death sentences unreliable; (4) admission of allegedly unreliable eyewitness identification evidence rendered his trial unfair; and (5) the trial court's refusal to specifically instruct the jury as to the meaning of “life without the possibility of parole” rendered his death sentences unreliable. As set out more fully below, the majority of Ochoa's claims for habeas relief are foreclosed by this court's decision affirming the denial of habeas relief to Ochoa's co-defendant. See Torres, 317 F.3d at 1148. Ochoa's remaining claims fail on the merits.

A. Street–Gang Evidence

1. Guilt Phase

The basis of Ochoa's claim is set out as follows in the opinion of the OCCA: Ochoa complains the prosecution sought to introduce evidence of Ochoa's gang affiliation during the first stage of trial. Although the trial court ruled that such evidence was inadmissible during first stage, the prosecution elicited from Officer Tays that the suspects—Ochoa and Torres—might be gang members. There was no objection to this testimony. On four occasions during closing argument, the prosecution referred to the defendants, either directly or indirectly, as gang members. Defense objected to two of the comments on the grounds that the statement was not in evidence; the objections were overruled. We review these claims for plain error and we are troubled that the prosecution attempted to deliberately inject gang evidence into the first stage of trial. Not only did the evidence and comments regarding Ochoa's gang membership violate the trial court's order, but also such evidence was irrelevant to the question of guilt or innocence as the gang evidence was in no way connected to the Yanez/Morales' murders. While we find the use of gang evidence in the first stage of trial to be error, Ochoa has failed to show that the error was sufficiently prejudicial. Accordingly, relief is denied. Ochoa, 963 P.2d at 597.

This claim of misconduct is foreclosed by this court's decision in Torres, 317 F.3d at 1158–59 (noting claim by Torres that prosecutors improperly alluded to alleged gang affiliation but rejecting claim on the ground that all of prosecutor's allegedly improper comments taken together did not render trial fundamentally unfair). This court has reviewed the brief Torres filed with this court in his appeal of the denial of his habeas petition. Torres's brief raises a claim that is in all material respects identical to the claim Ochoa is now raising regarding guilt-phase evidence of gang activity. Torres and Ochoa were tried jointly and the evidence against them appears to be equally strong. If anything the case against Ochoa is stronger because the prosecution's theory, supported by the evidence, is that Ochoa was the shooter. Ochoa, 963 P.2d at 599. Accordingly, this court's determination in Torres that the prosecution's gang-related statements during the guilt phase did not, in the context of the entire trial, render the trial fundamentally unfair, applies equally to Ochoa's identical claim. See Torres, 317 F.3d at 1158–59. In any event, at oral argument, Ochoa's counsel conceded that the guilt-phase aspect of Ochoa's gang-related claim of prosecutorial misconduct is foreclosed by the decision in Torres. Thus, the district court properly denied this aspect of Ochoa's claim of habeas relief.

2. Penalty Phase

a. Background

To fully understand the basis of Ochoa's claim for habeas relief flowing from the admission of evidence of gang affiliation during the penalty phase of his trial, it is helpful to set out at length the OCCA's resolution of this issue on direct appeal: Ochoa argues the trial court erred in allowing evidence of his gang affiliation to be introduced to prove continuing threat.... [He further] argues the evidence was insufficient to support the jury's finding that he posed a continuing threat to society. These two propositions are closely related, and we consider them together.

Oklahoma provides that the death penalty may be considered an appropriate punishment for first degree murder only in certain specific cases, which are narrowly defined by statutory aggravating circumstances. At issue here is the continuing threat aggravating circumstance which Oklahoma defines as the “existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” To prove this aggravating circumstance, the State relied on (1) the facts of the crime itself, and (2) Ochoa's affiliation with the Southside Locos, a local gang. ... Ochoa argues that admission of the gang evidence violated the First and Fourteenth Amendments of the federal constitution and violated the Supreme Court's ruling in Dawson v. Delaware, 503 U.S. 159, 112 S.Ct. 1093, 117 L.Ed.2d 309 (1992). In his majority opinion in Dawson, Chief Justice Rehnquist held that “the First and Fourteenth Amendments prohibit the introduction in a capital sentencing proceeding of the fact that the defendant was a member of an organization called the Aryan Brotherhood, where the evidence has no relevance to the issues being decided in the proceeding.” Although the Court recognized “the First Amendment protects an individual's right to join groups and associate with others holding similar beliefs,” the Court rejected Dawson's claim that evidence of his membership in the Aryan Brotherhood was per se invalid.

In finding evidence of Dawson's membership in the Aryan Brotherhood to be improper, the Court appears to have been particularly struck by two facts: (1) the Aryan Brotherhood evidence was not connected to the murder of Dawson's victim, who was white; and (2) the prosecution failed to prove that the Aryan Brotherhood was involved in any criminal activity. Rather, at issue in Dawson was simply the following stipulation: “ ‘The Aryan Brotherhood refers to a white racist prison gang that began in the 1960's in California in response to other gangs of racial minorities. Separate gangs calling themselves the Aryan Brotherhood now exist in many state prisons including Delaware.’ ” Without any other evidence of criminal activity, Dawson's membership in the Aryan Brotherhood simply showed he was a racist and/or a member of a racist organization, and that alone is not proper evidence. Nonetheless, the Court did not close the door to all evidence relating to a defendant's associations. The Court noted, “In many cases, for example, associational evidence might serve a legitimate purpose in showing that a defendant represents a future danger to society. A defendant's membership in an organization that endorses the killing of any identifiable group, for example, might be relevant to a jury's inquiry into whether the defendant will be dangerous in the future.”

The issue before us is Ochoa's membership in the Southside Locos. In contrast to Dawson, here the State introduced not only evidence of Ochoa's membership in the gang, but also introduced evidence that the Southside Locos engaged in criminal activity ranging from graffiti to drug trafficking to murder. This type of membership in a criminal gang is the type of associational evidence that the Supreme Court viewed as relevant and permissible in Dawson. The problem here for the State is not the admissibility of the evidence itself, but the ultimate probative value of this evidence in this particular case. The evidence of Ochoa's membership in or affiliation with the Southside Locos is, at best, of marginal value. There is no evidence that the murders of Maria Yanez or Francisco Morales were in any way connected to the gang or committed on behalf of or to earn status in the gang. Indeed, the State in its brief explicitly states, “No motive was ever discerned for the crime and it appears the Morales' home may have been picked at random.” Further, although the State introduced evidence that the Southside Locos engaged in a variety of criminal activities, the State utterly failed to tie Ochoa to these criminal activities. There is absolutely no evidence that Ochoa ever engaged in any kind of criminal activity connected with the Southside Locos. The only evidence of Ochoa's affiliation with the gang is that Ochoa told a police officer that he was a member of the Southside Locos and he sported a tattoo of a “cholo,” which is a purported symbol of gang membership. The State offered nothing else to show the nature, extent or value of Ochoa's relationship with the gang. Such lack of connection between the gang's criminal activity and Ochoa makes this evidence, while admissible, of very marginal value as to the question of whether Ochoa himself poses a continuing threat to society. The marginal quality of this evidence thus begs the next question: is the evidence sufficient to support the continuing threat aggravating circumstance. The answer is no.

As stated above, the State not only failed to show that Ochoa engaged in any criminal gang activity, but also the State failed to show that Ochoa ever committed any crime. Ochoa had no prior criminal record and he had no prior unadjudicated offenses. There was no evidence that since the murders Ochoa had engaged in any violent or illegal activities. This lack of evidence of criminal activity on the part of Ochoa stands in marked contrast with the requirement “that the State present sufficient evidence concerning prior convictions or unadjudicated crimes to show a pattern of criminal conduct that will likely continue in the future to support its ‘continuing threat’ contention.” The State utterly failed to make such a showing here. In other cases in which this Court has found the evidence sufficient to support the continuing threat aggravating circumstance, the State has introduced evidence of prior criminal acts of violence, prior unadjudicated offenses, or evidence of criminal activity occurring after the crime. We have none of that here.... The facts of the crime in this case simply do not demonstrate ... a pattern of criminal behavior. Here, the State proved that Ochoa engaged in a single act of violence and it showed that Ochoa belonged to a street gang. While the murders of Yanez and Morales were deplorable, the State has presented insufficient evidence to show a pattern of criminal conduct that will likely continue in the future. Absent this proof, we cannot say that Ochoa poses a continuing threat to society.

Having found that the State failed to prove the continuing threat aggravating circumstance, “this Court has the authority to reweigh any remaining aggravating circumstances against the mitigating evidence to determine the validity of the death sentence.”.... ... In mitigation, Ochoa offered his youth at the time of the crime, his lack of a criminal record, his personal history, his problems with drugs and alcohol, evidence showing he would function well in a structured prison setting, and expert testimony regarding his mental illness, his mental illness history and his borderline mental retardation. He also presented evidence of his family's love for him and pleas of mercy. While Ochoa's evidence had compelling aspects, we find, on balance that the aggravating evidence of the murder of two people outweighs the mitigating evidence. Accordingly, we sustain Ochoa's death sentence. Ochoa, 963 P.2d at 601–04 (footnotes omitted).

In his habeas petition, Ochoa asserted he suffered actual prejudice as a result of the admission during the penalty phase of irrelevant and unconstitutional evidence concerning gang affiliation. He further alleged that the OCCA's reweighing was so terse as to be constitutionally inadequate. The district court rejected both contentions. As to Ochoa's claim of actual prejudice flowing from the admission of the gang evidence, the district court rejected the claim on two independent grounds: (1) when it set aside the continuing threat aggravator and engaged in reweighing, the OCCA eliminated any possibility of prejudice flowing from the admission of gang evidence; and (2) the admission of gang evidence did not render the penalty phase of Ochoa's trial so fundamentally unfair as to deny him due process. As to Ochoa's claim the OCCA's reweighing was constitutionally insufficient, the district court noted the OCCA had actually reweighed Ochoa's mitigating evidence against the sole remaining aggravator and, consistent with the record, properly determined the death sentence remained appropriate.

b. Admission of Gang Evidence

Ochoa's claim comes before this court in an unusual posture. Ochoa proceeds based on an apparent assumption that the admission of gang-related evidence during the penalty phase was error and simply argues the matter of prejudice. The OCCA, however, ruled that the evidence was relevant and admissible under the Supreme Court's decision in Dawson. Ochoa, 963 P.2d at 602. Only after having concluded the evidence was properly admitted did the OCCA turn to the analytically distinct question of whether that evidence was sufficient to support the continuing threat aggravator. Id. at 602–03. At no point in his brief to this court does Ochoa argue the decision of the OCCA—that the gang-related evidence adduced by the prosecution during the penalty phase was admissible—is “contrary to” or an “unreasonable application of” clearly established Supreme Court precedent. 28 U.S.C. § 2254. This alone is sufficient to conclude Ochoa's habeas claim relating to admission of gang-related evidence during the penalty phase fails.

Even if this court were to assume the admission of gang-related evidence during the penalty phase implicated Ochoa's right to a fundamentally fair trial, the record in this case makes it clear he suffered no prejudice as a result of the admission of the evidence. The OCCA's conclusion that the continuing threat aggravator was not supported by sufficient evidence, together with its conclusion after reweighing that the death penalty was still warranted, wrung out of the sentencing phase any possible prejudice flowing from the second-stage gang evidence. See Ochoa, 963 P.2d at 604. That is, during the process of reweighing, the OCCA entirely discounted the continuing threat aggravator and the insufficient evidence the prosecution adduced in support of it at trial. Id. Having done so, it considered only whether the sole remaining aggravator—that Ochoa's conduct created a risk of death to more than one person—outweighed the mitigation evidence adduced by Ochoa. Id. Thus, this court can conclude with absolute confidence that the admission of gang-related evidence during the penalty phase of Ochoa's trial had no impact on the ultimate outcome of the trial.

c. Reweighing

Although Ochoa recognizes state courts can engage in appellate reweighing after invalidating an aggravating circumstance, he asserts the OCCA decision is too terse and generalized to be constitutionally adequate. In support of this contention, Ochoa relies on Stringer v. Black, 503 U.S. 222, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992).FN3 In response, Oklahoma argues this claim is procedurally barred and, in any event, fails on the merits. FN3. In particular, Ochoa relies on the following passage from Black: [W]e have not suggested that the Eighth Amendment permits the state appellate court in a weighing State to affirm a death sentence without a thorough analysis of the role an invalid aggravating factor played in the sentencing process.

We require close appellate scrutiny of the import and effect of invalid aggravating factors to implement the well-established Eighth Amendment requirement of individualized sentencing determinations in death penalty cases. In order for a state appellate court to affirm a death sentence after the sentencer was instructed to consider an invalid factor, the court must determine what the sentencer would have done absent the factor. Otherwise, the defendant is deprived of the precision that individualized consideration demands under [our] cases. Stringer v. Black, 503 U.S. 222, 230–31, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992). This court need not decide whether this claim is procedurally barred because it clearly fails on the merits. 28 U.S.C. § 2254(b)(2) (providing that a habeas petition may be denied on the merits “notwithstanding the failure of an applicant to exhaust” his state court remedies). The Supreme Court has made clear that it has never specified “the degree of clarity with which a state appellate court must reweigh in order to cure an otherwise invalid death sentence.” Richmond v. Lewis, 506 U.S. 40, 48, 113 S.Ct. 528, 121 L.Ed.2d 411 (1992). This lack of specificity has led appellate courts to reject claims similar to Ochoa's, even before the advent of the AEDPA's heightened standard. See, e.g., Jeffers v. Lewis, 38 F.3d 411, 414–15 (9th Cir.1994). Because there is no clearly established Supreme Court precedent on this issue, Ochoa's claim necessarily fails. House, 527 F.3d at 1018.FN4

FN4. In a supplement to his original brief, Ochoa asserts he is entitled to habeas relief pursuant to the Supreme Court's decision in Brown v. Sanders, 546 U.S. 212, 126 S.Ct. 884, 163 L.Ed.2d 723 (2006). The decision in Brown, however, does not relate in any way to the issues raised before the district court in Ochoa's habeas petition. Instead, it announced a new rule applicable to non-weighing death penalty states: We think it will clarify the analysis, and simplify the sentence-invalidating factors we have hitherto applied to non-weighing States ... if we are henceforth guided by the following rule: An invalidated sentencing factor (whether an eligibility factor or not) will render the sentence unconstitutional by reason of its adding an improper element to the aggravation scale in the weighing process unless one of the other sentencing factors enables the sentencer to give aggravating weight to the same facts and circumstances. Id. at 220, 126 S.Ct. 884. Ochoa argues that even though Oklahoma is a weighing state, Mollett v. Mullin, 348 F.3d 902, 918–19 (10th Cir.2003), he should receive the benefit of the rule announced in Brown. Generally, this court will not consider an issue raised for the first time on appeal. Rhine v. Boone, 182 F.3d 1153, 1154 (10th Cir.1999). Ochoa has offered no reason for this court to deviate from this well-established rule. In any event, the Supreme Court made clear in Brown that the rule announced therein did not prevent state appellate courts from engaging in reweighing. 546 U.S. at 217, 126 S.Ct. 884 (“In a weighing State, therefore, the sentencer's consideration of an invalid eligibility factor necessarily skewed its balancing of aggravators with mitigators and required reversal of the sentence (unless a state appellate court determined the error was harmless or reweighed the mitigating evidence against the valid aggravating factors.”) (citations omitted)); see also Wilson v. Mitchell, 498 F.3d 491, 507 (6th Cir.2007) (noting the decision in Brown “leaves intact the Court's prior jurisprudence regarding weighing states”). Furthermore, Brown issued long after the OCCA decided Ochoa's direct appeal. Thus, it was not clearly established for purposes of § 2254(d). Gilson v. Sirmons, 520 F.3d 1196, 1220 (10th Cir.2008).

3. Ex Parte Contacts

a. Background

After trial, an investigator working on Ochoa's behalf interviewed several jurors. According to the investigator, the jury foreman had conversations with the trial judge about security issues relating to the presence of gang-member defendants and gang members in the courtroom during the jury proceedings. In resolving this claim on post-conviction review, the OCCA first noted there was no indication in the investigator's affidavit that the conversation took place during deliberations. Furthermore, the OCCA concluded the security questions were more akin to housekeeping matters not material to guilt or innocence and, therefore, Ochoa was not prejudiced by not being present during the discussion.

Accompanying his § 2254 petition, Ochoa filed a substantially more detailed affidavit. In summary, the investigator averred that the jury foreman: (1) noted significant anxiety on the part of the jury flowing from the defendants' gang membership, (2) learned the defendants were gang members from the arguments of the prosecutors; (3) personally requested extra protection from the trial judge; and (4) indicated the jury imposed the death penalty because Ochoa was a gang member and gang members could not be rehabilitated. Based on the investigator's affidavit, the district court ordered the deposition of both the jury foreman and the trial judge. Those depositions did not bear out the allegations in the investigator's affidavit. In fact, the district court was chagrined by the differences in the affidavit and the deposition testimony. Dist. Ct. Order at 10 (“The investigator's attestations are disturbing when compared with the deposition testimony of [the jury foreman] and [trial judge].”). The depositions revealed that if there was any kind of ex parte contact between the jury and a member of the trial court staff, a doubtful proposition, it was nothing more than a chat with the judge's clerk or secretary about safety concerns. Because the bulk of the investigator's affidavit contained material inadmissible under Fed.R.Evid. 606(b) (disallowing testimony about jury's thought processes) and the remainder was hearsay that the district court deemed incredible, the district court declined to rely in any way on the investigator's affidavit. Accordingly, in resolving this claim, the district court concluded it would only consider that the jury became concerned regarding their safety due to the presence of young men in the courtroom gallery and that the jury foreman expressed this concern to one of the judge's staff—without knowledge of the trial judge—during or after first stage jury deliberations began. FN5. In so concluding, the district court recognized its assumption was contrary to the OCCA's factual determinations, but noted the testimony of the jury foreman was not available to the OCCA.

With the factual background established, the district court moved on to consider whether the jury foreman's brief contact with a member of the trial judge's staff had a “substantial and injurious effect” on the outcome of the trial. See Crease v. McKune, 189 F.3d 1188, 1192–93 (10th Cir.1999) (applying this standard in a similar factual context). With that standard in mind, the district court denied relief. It noted the jury foreman had never received a response from the judge or his staff. Although the foreman remembered increased security later in the trial, the trial judge testified extra security was present throughout the trial. The substance of the discussion involved security and not jury deliberations. Finally, the jury foreman's difficulty recalling any specifics of the conversation, further convinced the district court it was not critical and did not have a substantial or injurious effect on the verdict or sentence.

b. Analysis

On appeal, Ochoa argues the mere fact a meeting between the jury foreman and a member of the trial court's staff took place creates a “high probability that the ability of not only the jury foreman but the rest of the jury to weigh impartially the evidence presented during the proceedings was compromised to Ochoa's detriment.” Relying on the Supreme Court's decision in Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954), he further argues that such ex parte contacts give rise to a strong presumption of prejudice and a corresponding heavy burden on the government to rebut such presumption. Oklahoma counters by noting this claim was resolved by the OCCA in post-conviction proceedings. In those proceedings, the OCCA determined the communication did not occur during deliberations and were not on a matter material to the guilt or the penalty phase. These matters of historical fact are presumed correct absent clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

There exists a substantial procedural impediment to granting Ochoa habeas relief on this claim, albeit one not discussed by any party: the factual basis of the claim Ochoa now raises is significantly different than the factual basis of the claim as presented to the OCCA on post-conviction review. Having failed to adequately develop the factual basis of the claim in state court, Ochoa is precluded from relying on the newly developed evidence to obtain habeas relief. 28 U.S.C. § 2254(e)(2). More importantly, however, because this issue was adjudicated on the merits by the OCCA, Ochoa can obtain habeas relief only by satisfying the demanding requirements of § 2254(d). Harrington v. Richter, ––– U.S. ––––, ––––, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011). The analysis mandated under § 2254(d) is strictly focused on the factual record as it existed at the time of the OCCA's resolution of this claim. 28 U.S.C. § 2254(d)(2) (providing habeas relief may not be granted unless the petitioner demonstrates the state court's adjudication of the claim “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding”); Cullen v. Pinholster, –––U.S. ––––, –––– – ––––, 131 S.Ct. 1388, 1398–1400, 179 L.Ed.2d 557 (2011) (holding “that review under § 2254(d)(1) is [likewise] limited to the record that was before the state court that adjudicated the claim on the merits”). Because Ochoa has not even attempted to demonstrate that the decision of the OCCA, based on the factual record before it, was “contrary to, or involved an unreasonable application of” clearly established Supreme Court precedent or “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented” to the OCCA, § 2254(d) mandates his habeas petition “shall not be granted with respect to” this particular claim. 28 U.S.C. § 2254(d); Cullen, 131 S.Ct. at 1398.FN6

FN6. Even if this court were to consider the evidence newly adduced during Ochoa's federal habeas proceedings, this court would still deny relief on the same grounds stated by the district court. The district court did not abuse its discretion in refusing to consider the affidavit of Ochoa's investigator in resolving the claim. All of the statements therein were hearsay and none of the deposition testimony of the jury foreman supports the allegations in the investigator's affidavit. For that reason, it was perfectly reasonable for the district court to rely exclusively on the actual testimony of the jury foreman and the trial judge in resolving the claim. Furthermore, since the only evidence adduced did not demonstrate any material issues of fact, it was appropriate for the district court to determine the question of prejudice on the basis of the undisputed facts. Based on the testimony of the jury foreman and trial judge, there is no reason to conclude whatever type of ex parte contact took place had a substantial and injurious effect on the outcome of the sentencing proceeding.

B. Prosecutorial Misconduct

1. Testimony of Maria Calderon

At trial, Maria Calderon testified that on the morning of the murders she saw an unidentified man accompanying Ochoa put a small gun in his belt.FN7 While the case was on direct appeal, Calderon signed an affidavit stating she could not be sure the object she observed was a gun. According to the affidavit, Calderon testified the object was a gun under pressure from prosecutors. When Ochoa attempted to raise the issue on appeal by asking the OCCA for a new trial, the OCCA concluded the request was untimely and the issue therefore waived. When Ochoa again raised the issue in his state petition for post-conviction relief, the OCCA again held, in an unpublished order, that the issue was waived: “Trial counsel knew about this issue as it was raised at the first trial. Appellate counsel also knew about this issue, but did not raise it in the direct appeal brief.” FN7. To be clear, Calderon's testimony regarding the presence of a gun did not implicate either Torres or Ochoa in the murders. Calderon testified at trial that she was familiar with the gun used in the murders, a Tech–9, and that the gun she saw was not large enough and was not that make or model.

The district court concluded the matter was subject to a procedural bar. It further concluded Ochoa could not make the necessary showing of cause and prejudice to overcome the procedural bar. In particular, the district court noted Ochoa could not demonstrate prejudice. The only element of Calderon's testimony that was substantially changed was her testimony about the presence of a weapon during her observations of Torres and Ochoa. Because she had made clear during her testimony at trial that the weapon she observed could not have been the murder weapon, the district court resolved that her proposed change in testimony had only a negligible impact on the weight of the evidence against Ochoa. This court's resolution of Torres's identical claim, which came before this court in a procedural posture identical to Ochoa's present claim, precludes the granting of relief to Ochoa:

As to the fourth instance of alleged misconduct—that the prosecution pressured a witness to testify falsely, we agree with the district court that the claim is procedurally barred. Mr. Torres' argument is based on an affidavit of Maria Calderon. The OCCA determined that the claims concerning Ms. Calderon could have been raised on direct appeal, but were not, and they did not support a conclusion that the outcome of the trial would have been different or that the defendant was factually innocent. Our review of the record indicates that Ms. Calderon's affidavit was signed on April 10, 1997, during the pendency of Mr. Torres's direct appeal. Thus, the district court properly concluded that the claim arising out of Ms. Calderon's affidavit “could have been but was not raised on direct appeal.” As a result, Mr. Torres is not entitled to raise this claim unless he can show either (a) cause for the procedural default and resulting prejudice or (b) that a fundamental miscarriage of justice will result if the court does not consider the claim. See Coleman v. Thompson, 501 U.S. 722, 749–50, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).

We agree with the district court that Mr. Torres has failed to make this showing. In this regard, we recognize that Ms. Calderon's affidavit constitutes a modification of her trial testimony at the first and second trials that an unidentified individual she saw with Mr. Ochoa on the morning of the murders put a small gun in his belt. She now cannot identify the object. At both trials, however, Ms. Calderon's somewhat inconsistent testimony about the gun, its characteristics and the origins of that testimony were subject to adequate cross-examination and impeachment and the jury was left to sort it out. See Tapia v. Tansy, 926 F.2d 1554, 1563 (10th Cir.1991). “[A] conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.” United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). Mr. Torres has failed to establish that the prosecutor knowingly presented false testimony at the second trial, let alone that the testimony was false. See Van Woudenberg v. Gibson, 211 F.3d 560, 569 (10th Cir.2000); Romano v. Gibson, 239 F.3d 1156, 1175 (10th Cir.2001). On the latter point, Ms. Calderon's affidavit does not contradict the substantial remainder of her testimony, its corroboration, or the other facts of the crime. The gun in question was not the murder weapon. Mr. Torres accompanied Mr. Ochoa in breaking down a locked residential door at 2:40 a.m., while Mr. Ochoa was armed with a semiautomatic weapon. The victims were fired upon repeatedly. Rather than leaving promptly, Mr. Torres and Mr. Ochoa remained in the home, yet only a purse was taken. With or without the testimony about the precise nature of the object Mr. Torres placed in his belt, we conclude that Mr. Torres cannot demonstrate prejudice as there is no reasonable likelihood that the testimony on this comparatively small point could have affected the judgment of the jury when considered against the overwhelming evidence of guilt. Torres, 317 F.3d at 1159 (footnotes omitted).

For the same reasons set out by this court in resolving Torres's appeal, Ochoa cannot demonstrate any prejudice relating to Calderon's testimony and thus cannot overcome his procedural default of this issue in state court. Accordingly, the district court correctly denied Ochoa habeas relief on this alleged ground of prosecutorial misconduct.

2. Allegedly Improper Comments

Ochoa sets out a catalog of allegedly improper comments on the part of prosecutors and asserts these comments, taken together, rendered both the guilt and penalty phases of his trial fundamentally unfair. As noted by both the district court and the OCCA, Ochoa never objected at trial to the bulk of these allegedly improper statements. On direct appeal, the OCCA concluded Ochoa “waived” his objections to most of the alleged improper statements by not raising them at trial. Ochoa, 963 P.2d at 600. As to the remaining improper statements, the OCCA concluded they were harmless. Id. at 600–01. On habeas review, the district court recognized that in the normal case misconduct is only grounds for federal habeas relief if it deprived the petitioner of a fundamentally fair trial, an exceedingly high standard. See Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). Ignoring the issue of procedural bar, and considering all allegedly improper comments in the aggregate, Greer v. Miller, 483 U.S. 756, 765–66, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987), the district court concluded Ochoa was not deprived of a fundamentally fair trial.

The allegedly improper remarks fall into the following general categories:

a. Comments by the prosecutor allegedly impacting Ochoa's presumption of innocence and right to remain silent. [7] We begin by recognizing that this particular claim of prosecutorial misconduct is subject to a different standard because it amounts to an argument that the prosecutor's remarks deprived Ochoa of a specific constitutional right. Torres, 317 F.3d at 1158–59. “Where prosecutorial misconduct directly affects a specific constitutional right such as the presumption of innocence or privilege against self-incrimination, a habeas petitioner need not establish that the entire trial was rendered unfair, but rather that the constitutional guarantee was so prejudiced that it effectively amounted to a denial of that right.” Id. at 1158. Nevertheless, this argument fails because Torres specifically held the prosecutors' comments at issue “did not so prejudice the presumption of innocence as to result in a denial of that right” and “hardly resulted in a denial of the privilege against self incrimination.” 317 F.3d at 1158–59.

b. Additional comments on the part of prosecutors tying the murders to gang activity. This argument fails because Torres held that the gang-related comments, even when considered along with all other allegedly improper comments “did not render ... the trial fundamentally unfair.” Id. at 1159.

c. Comments tending to incite societal alarm, elicit sympathy for the victims, and indicate the prosecutors thought this was an appropriate case for the death penalty. This argument fails because it too was rejected in Torres. Id. at 1158 (noting Torres's claim of prosecutorial misconduct centered around “various improper comments during the trial and in closing arguments”); id. at 1159 (concluding catalog of allegedly improper remarks, “[c]onsidered collectively and in the context of the trial as a whole,” “did not render [the] trial fundamentally unfair”).

d. Comments demonizing Ochoa (i.e., referring to him as a murderer and killer) while vouching for a witness (i.e., pointing out one of the responding officers was the prosecutor's son). [8] For those reasons set out in the proceeding paragraph, this argument is foreclosed by this court's decision in Torres.

In concluding Ochoa's claim of prosecutorial misconduct is foreclosed by the decision in Torres, this court specifically reviewed the parties' briefs in Torres to insure Ochoa's claim of prosecutorial misconduct was in all material respects identical to Torres's claim of misconduct. Because Torres's and Ochoa's claims of misconduct are indeed identical in all material respects, and because the trial record of these jointly tried co-defendants is also identical, Torres controls the disposition of Ochoa's claim of prosecutorial misconduct.

Even if this court were to assume, however, that minor differences in the presentation of Torres's and Ochoa's claims of misconduct allowed this court to evaluate Ochoa's claim unrestrained by the outcome in Torres, we would still affirm the district court's denial of habeas relief on this claim. Setting aside all issues of procedural bar and reviewing all allegedly improper prosecutorial comments in the context of the whole trial, it is absolutely clear the comments did not render Ochoa's trial fundamentally unfair. In particular, it is far from clear that all of the remarks identified by Ochoa are improper. At least some of the allegedly improper remarks amount to valid comments on the evidence presented at trial. Ochoa, 963 P.2d at 600 (holding some comments identified by Ochoa fell “within the broad parameters of effective advocacy and do not constitute error”). As to the remaining remarks, we simply note that, contrary to Ochoa's contentions, the evidence against him at both the guilt and penalty phases was sufficiently strong that this court is confident the improper comments had no real impact on the outcome of the trial. Cf. Torres, 317 F.3d at 1154–55 (noting evidence of Ochoa's intent to kill was much greater than evidence of Torres's intent); Ochoa, 963 P.2d at 599 (“[T]he State's theory of the case was that Ochoa was the shooter and that Torres aided and abetted in the killings. The evidence supports this theory.”). Furthermore, most of the improper remarks identified by Ochoa occurred during closing arguments. The jury was instructed, however, to decide the case only on the basis of the evidence produced by the prosecution and was instructed that “Evidence is the testimony received from the witnesses under oath, agreements as to fact made by attorneys, and the exhibits admitted into evidence during the trial.” Considered within the context of the entire trial, this court has no doubt that the improper prosecutorial comments identified by Ochoa did not render his trial fundamentally unfair.

C. Relative Culpability Instruction

Relying on the Supreme Court's decisions in Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), and Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987), Ochoa contends the trial court's refusal to instruct the jury to consider the relative degree of culpability of himself and Torres in arriving at a sentencing decision violated the Eighth Amendment. The OCCA rejected this claim on the merits, determining the Enmund / Tison line of cases did not apply because Ochoa was convicted of committing malice murder. Ochoa, 963 P.2d at 604–05. Relying on that same basis, this court rejected an identical claim raised by Ochoa's co-defendant:

Mr. Torres argues that his death sentence violates the Eighth Amendment because the trial court's instructions failed to direct the jury to give individualized consideration to Mr. Torres's involvement in the homicides. The Eighth Amendment does not permit imposition of a death sentence upon a defendant who did not “himself kill, attempt to kill, or intend that a killing take place or that lethal force be employed,” [ Enmund, 458 U.S. at 797, 102 S.Ct. 3368], or unless that defendant was a major participant in the underlying felony and acted with a “reckless indifference to human life,” [ Tison, 481 U.S. at 158, 107 S.Ct. 1676]. This case does not involve felony murder—the Oklahoma County District Attorney's Office dismissed the felony murder charges against Mr. Torres, and tried him on malice murder counts. Having concluded that the jury instructions adequately instructed the jury on these counts, we must conclude that the OCCA's similar rejection of this Eighth Amendment claim was not an unreasonable application of federal law. Torres, 317 F.3d at 1161.

The facts of Ochoa's case are in all relevant respects identical to the facts of Torres's case, i.e., in trying Ochoa, the prosecution proceeded solely on the basis of malice murder. Furthermore, Ochoa does not assert any infirmities in the jury instructions regarding malice murder.FN8 Because the jury could not have convicted Ochoa of the murders without first finding he acted with intent to kill the victims, the Enmund / Tison line of cases simply does not apply. Id. at 1157–58, 1161. Accordingly, the district court properly denied Ochoa habeas relief on this ground. FN8. Even if Ochoa had challenged the propriety of the trial court's malice murder and aiding-and-abetting instructions, this court would be bound to reject such a challenge based on Torres's conclusion that “the instructions when read reasonably and as a whole[ ] would [not] allow the jury to impute a finding of malice aforethought from one defendant to another.” Torres, 317 F.3d at 1158.

D. Eyewitness Identification Evidence

1. Background

The most crucial evidence at trial was Christina Yanez's eyewitness testimony identifying Ochoa and Torres as the murderers. Ochoa, 963 P.2d at 596. On direct appeal to the OCCA, Ochoa asserted it was error to admit Yanez's in-court eyewitness identification because it was tainted by her observation of Ochoa in handcuffs at the crime scene. Id. He further asserted it was error to admit testimony by Officer Mullenix that Yanez had identified Ochoa as one of the killers during an interview at the police station shortly after the murders occurred. Id. The OCCA rejected both aspects of Ochoa's claim, concluding as follows:

In his fourth proposition of error, Ochoa, for the first time, challenges the admissibility of Christina Yanez's identification of him and Torres. Since Ochoa did not lodge a contemporaneous objection to the evidence, relief will only be granted upon a showing that plain error occurred as a result of the admission of this evidence. Christina's identification of Ochoa and Torres was crucial to the State's case. Initially, she denied knowing the men who killed her parents. Christina admitted this initial denial explaining she made the initial denial because she was frightened. The initial denial does not render Christina's subsequent identification inadmissible; the evidence merely goes to the issue of credibility and reliability, which was a proper issue for the jury to decide.

Ochoa next contends that Christina's subsequent identification of the men was tainted because Christina saw the men in handcuffs at the crime scene. The record does not support this contention. There is no testimony that Christina ever saw the defendants prior to telling Officer Mullenix at the police station that Ochoa was one of the men she saw in her home that night. Ochoa points to testimony that, after their arrest, Ochoa and Torres were taken to the crime scene and held in handcuffs there for some time. It was possible for the Yanez/Morales neighbors to see the defendants under arrest. However, there was no evidence that Christina saw the defendants or even knew they were there, and defense counsel never questioned Christina about this matter. Moreover, Officer Brett Macy testified that neither Christina nor her step-brother Francisco came into contact with the defendants at the crime scene. Based on this record, Ochoa has failed to show that there was a show-up identification and we cannot say that under the totality of the circumstances Christina's identification was tainted and/or unreliable. Accordingly, admission of her testimony and identification was proper.

Ochoa also alleges it was error for Detective Mullenix to testify that Christina identified Ochoa at the police station. Again Ochoa failed to lodge a contemporaneous objection and we review for plain error. This Court has stated “a witness, after making an in-court identification of the defendant, may testify that ‘at a particular day, place, and time or times, [he or she] had occasion to see, recognize and identify the defendant as the person who committed the crime.’ ” However, “[o]nly the identifier may testify that an identification was made.... Testimony by a third party that an identification was made, or that a particular person was identified is ... error.” Nonetheless, “[w]hen such testimony follows an in-court identification of the accused by the identifier the error has been found to be harmless.” Here, it was error for Mullenix to testify that Christina told him that one of the intruders was Ochoa. Nonetheless, the testimony was merely cumulative of Christina's testimony. The error is not prejudicial and relief is not warranted. Ochoa, 963 P.2d at 596–97 (footnotes omitted) (alterations in original). As had the OCCA, the district court concluded, upon habeas review, that Ochoa's claim as to Yanez's testimony failed because there was simply no evidence in the record that Yanez had ever observed Ochoa at the crime scene. Having concluded there was no error in the admission of Yanez's eyewitness identification, the district court concluded the admission of Officer's Mullenix's testimony had not prejudiced Ochoa in any way.

2. Analysis

a. Yanez's In–Court Identification

As noted by both the OCCA and the district court, this claim fails for one obvious reason: Ochoa has never presented any evidence that Yanez saw him when he was brought to the crime scene. Recognizing this critical deficiency in his claim, Ochoa asserts in his reply brief that “Yanez never testified that she saw Ochoa in custody after the homicides; but, she was never asked.” Accordingly Ochoa requests that this court remand this case for an evidentiary hearing on this issue so that he can attempt to establish that an unfairly suggestive show-up did, in fact, occur. Because Ochoa failed to establish the factual basis of this claim in state court, 28 U.S.C. § 2254(e)(2) precludes a federal habeas court from conducting an evidentiary hearing on the matter absent certain enumerated circumstances. Ochoa does not even attempt to argue his claim fits within the narrow enumerated circumstances set out in § 2254(e)(2). Thus, he is not entitled to an evidentiary hearing for the purpose of trying to establish Yanez observed him at the crime scene.

In any event, because this issue was adjudicated on the merits by the OCCA, Ochoa can obtain habeas relief only by satisfying the demanding requirements of § 2254(d). 28 U.S.C. § 2254(d)(2) (providing habeas relief may not be granted unless the petitioner demonstrates the state court's adjudication of the claim “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding”); Cullen, 131 S.Ct. at 1398–1400 (holding “that review under § 2254(d)(1) is [likewise] limited to the record that was before the state court that adjudicated the claim on the merits”). Because Ochoa has not attempted to demonstrate the decision of the OCCA, based on the factual record before it, was “contrary to, or involved an unreasonable application of” clearly established Supreme Court precedent or “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented” to it, § 2254(d) mandates his habeas petition “shall not be granted with respect to” this particular claim. 28 U.S.C. § 2254(d); Cullen, 131 S.Ct. at 1398.

b. Officer Mullenix's Testimony

Ochoa's claim regarding the testimony of Officer Mullenix fails for an equally fundamental reason: the evidentiary rule at issue is one of state law. Ochoa has not identified any provision of the United States Constitution that would prohibit Officer Mullenix from testifying Yanez identified Ochoa as her parents' killer shortly after the murders, given that Yanez herself was a trial witness. “Federal habeas review is not available to correct state law evidentiary errors; rather it is limited to violations of constitutional rights.” Smallwood v. Gibson, 191 F.3d 1257, 1275 (10th Cir.1999).

Even assuming the issue is properly raised in federal habeas, Ochoa has failed to identify any meaningful prejudice flowing from Officer Mullenix's testimony. The entirety of Ochoa's briefing on the question of prejudice is the following: “[T]he error was prejudicial. No other evidence placed Ochoa at the scene. It cannot be said beyond a reasonable doubt that the inadmissible identification testimony ‘did not contribute to the verdict obtained.’ Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).” Merely asserting the existence of prejudice, however, is not enough. Ochoa must instead demonstrate, by reference to the record, exactly how he was prejudiced. As noted above, Christina's in-court identification was entirely proper. Furthermore, under the relevant state evidentiary rule, it would have been entirely proper for Christina to bolster her own in-court identification by reference to her earlier out-of-court identification, if her in-court identification would have been challenged on the basis now raised by Ochoa. Ochoa, 963 P.2d at 597. Given these facts, it is difficult to see how Officer Mullenix's testimony prejudiced Ochoa. Ochoa's citation of Chapman and his reference to a beyond-a-reasonable-doubt standard is inapt. The relevant question is whether this evidentiary error rendered Ochoa's trial fundamentally unfair, thereby amounting to a denial of due process. Duckett v. Mullin, 306 F.3d 982, 999 (10th Cir.2002) (“We may not provide habeas corpus relief on the basis of state court evidentiary rulings unless they rendered the trial so fundamentally unfair that a denial of constitutional rights results.” (quotations omitted)). There is no doubt the answer to that question is no.

E. Instruction as to Meaning of Life Without the Possibility of Parole

Prior to the submission of the penalty question to the jury, Ochoa requested that the trial court instruct the jury that life without the possibility of parole actually meant Ochoa would never be paroled. The trial court refused to give the requested instruction, simply instructing the jury it had three sentencing options: death, life without the possibility of parole, and life with the possibility of parole. The OCCA concluded the trial court's instructions were proper and its refusal to further define the three possible types of punishment was consistent with state law. Ochoa, 963 P.2d at 605. The district court denied habeas relief on the merits, determining the decision of the OCCA was consistent with clearly established Supreme Court precedent. See 28 U.S.C. § 2254(d)(1).

On appeal, Ochoa argues the trial court's refusal to specifically inform the jury that if he was sentenced to life without parole he would never be let out of prison is inconsistent with the Supreme Court's decisions in Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), and Shafer v. South Carolina, 532 U.S. 36, 121 S.Ct. 1263, 149 L.Ed.2d 178 (2001). In Simmons, the Supreme Court held that when a defendant's future dangerousness is at issue, and the only available alternative sentence to death is life imprisonment without possibility of parole, due process requires that the sentencing jury be told the defendant is parole ineligible. 512 U.S. at 156, 114 S.Ct. 2187. The Court reasoned that consideration of a defendant's future dangerousness is affected by the possibility the defendant may be allowed to return to society. Id. at 168–69, 114 S.Ct. 2187. The Court further noted that given the extant understanding in popular culture, the jury might assume any person not executed might at some point be paroled. Id. at 161, 114 S.Ct. 2187. Similarly, in Shafer the Court held, because the jury was only given two sentencing options—life imprisonment or death—without being told the meaning of life imprisonment, the sentence must be reversed. 532 U.S. at 51, 121 S.Ct. 1263.

This court has repeatedly rejected attempts to apply Simmons / Shafer to Oklahoma's three-option sentencing scheme, absent highly unusual circumstances not present in this case. Welch v. Workman, 639 F.3d 980, 1005 (10th Cir.2011) (collecting cases). The false choice at issue in South Carolina simply does not come into play when the jury is told, as it was here, it has three distinct sentencing options and those options distinguish (on their face) between life imprisonment with and without the possibility of parole. Id. Ochoa's claim of constitutional error is foreclosed by this court's precedents.

IV. CONCLUSION

For those reasons set out above, the order of the district court denying Ochoa's § 2254 petition for habeas relief is hereby AFFIRMED.

 
 


George Ochoa

 

George Ochoa

 

George Ochoa

 

 

 
 
 
 
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