223 P.3d 980 (Okla.Crim.App. 2009), D-2006-627, Sanchez v. State

Docket Nº:D-2006-627.
Citation:223 P.3d 980, 2009 OK CR 31
Opinion Judge:LEWIS, Judge.
Party Name:Anthony Castillo SANCHEZ, Appellant v. STATE of Oklahoma, Appellee.
Attorney:Silas R. Lyman, Diane Box, Matthew Haire, Norman, OK, attorneys for defendant at trial. Tim D. Kuykendall, District Attorney, R. Richard Sitzman, Asst. District Attorney, Norman, OK, attorneys for the State at trial. Michael D. Morehead, Janet Chesley, Norman, OK, attorneys for appellant on appea...
Judge Panel:C. JOHNSON, P.J., A. JOHNSON, V.P.J., LUMPKIN and CHAPEL, JJ.: Concur.
Case Date:December 14, 2009
Court:Court of Appeals of Oklahoma, Court of Criminal Appeals of Oklahoma
 
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223 P.3d 980 (Okla.Crim.App. 2009)

2009 OK CR 31

Anthony Castillo SANCHEZ, Appellant

v.

STATE of Oklahoma, Appellee.

No. D-2006-627.

Court of Criminal Appeals of Oklahoma.

December 14, 2009

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An Appeal from the District Court of Cleveland County; the Honorable William C. Hetherington, District Judge.

Silas R. Lyman, Diane Box, Matthew Haire, Norman, OK, attorneys for defendant at trial.

Tim D. Kuykendall, District Attorney, R. Richard Sitzman, Asst. District Attorney, Norman, OK, attorneys for the State at trial.

Michael D. Morehead, Janet Chesley, Norman, OK, attorneys for appellant on appeal.

W.A. Drew Edmondson, Attorney General, Jennifer Strickland, Asst. Attorney General,

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Oklahoma City, OK, attorneys for appellee on appeal.

OPINION

LEWIS, Judge.

¶ 1 Anthony Castillo Sanchez, Appellant, was tried by jury and found guilty of Count 1, murder in the first degree, in violation of 21 O.S.Supp.1996, § 701.7(A); Count 2, rape in the first degree, in violation of 21 O.S.1991, § 1114(A)(3); and Count 3, forcible sodomy, in violation of 21 O.S.Supp.1992, § 888(B)(3), in Cleveland County District Court, Case No. CF-2000-325.1 The State alleged the murder involved three statutory aggravating circumstances: The murder was especially heinous, atrocious, or cruel; the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution; and the existence of a probability that Appellant would commit criminal acts of violence that would constitute a continuing threat to society. 21 O.S.1991, § 701.12(4), (5), and (7). The jury found all three aggravating circumstances and sentenced Appellant to death for murder in the first degree, forty (40) years imprisonment and a $10,000 fine for rape in the first degree, and twenty (20) years imprisonment and a $10,000 fine for forcible sodomy. The Honorable William C. Hetherington, District Judge, presided over the trial and pronounced the judgment and sentence on June 6, 2006. This Court stayed execution of the judgment and sentence on June 14, 2006. Mr. Sanchez appeals.

FACTS

¶ 2 Jewell Jean " Juli" Busken lived in the Dublin West Apartments on East Lindsey Street in Norman, near the University of Oklahoma, where she studied ballet. In the winter of 1996, she had completed her course requirements for graduation. Ms. Busken planned to return to her parent's home in Arkansas and enroll in graduate school. She had packed most of her belongings earlier in the week. Her parents were to arrive in Norman on December 20, 1996, to collect her things in a U-Haul trailer and accompany her back to Arkansas.

¶ 3 Ms. Busken spent the evening of December 19, 1996, visiting with her college friends, exchanging Christmas gifts and goodbyes. She had planned to give her friend, Megan Schreck, a ride to Will Rogers Airport early on the morning of December 20, so the two decided to stay up all night long. Ms. Busken and Ms. Schreck left Schreck's apartment on West Lindsey Street and ate at the Kettle around 2:00 a.m., returning to the apartment around 3:00 a.m. Ms. Busken fell asleep for a short while, and they headed toward the airport around 4:30 a.m. Around 5:00 a.m. on December 20, 1996, Ms. Busken dropped off her friend. She left Will Rogers Airport driving her red Eagle Summit, which bore an Arkansas license plate.

¶ 4 Around 5:30 a.m., back at the Dublin West apartments where Ms. Busken lived, at least three people heard a woman scream in terror. William Alves, a Norman Police officer, lived at the apartments and worked off-duty security. When Alves heard the screaming, he went outside and looked, but saw nothing. Jackie Evans lived across the parking lot from Ms. Busken. She also heard a woman's scream, and a man saying " just shut up and get in the car." Ms. Evans described a car door opening, then closing, the sound of footsteps, and another car door opening and closing. She then heard the car start and quickly drive away. Norman Police officer Kyle Harris arrived at the apartments around 5:51 a.m. in response to a 911 call reporting the screams. He could find nothing suspicious at the apartment.

¶ 5 Ryan James worked with Juli Busken at the OU Golf Course. They were close friends. Mr. James had plans to meet Ms. Busken for lunch on December 20, 1996. When he arrived at Ms. Busken's apartment around 11:00 a.m., he noticed her car was gone. Mr. James returned to work at the golf course. He checked Ms. Busken's apartment again when he got off work around 4 p.m., hoping they would have dinner together, but she still had not returned home. Mr. James was worried about Ms. Busken and checked with his grandparents

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to see if she had called or visited their home, as she often did. She had not been there, either. Mr. James and his grandfather searched for Ms. Busken, even driving to Will Rogers Airport trying to find her. Mr. James' grandfather knew OU Police Chief Joe Lester. They contacted Chief Lester early in the evening of December 20, 1996, to report that Ms. Busken was missing. Juli Busken never returned.

¶ 6 Randy Lankford saw something unusual lying along the shoreline of Lake Stanley Draper around noon on December 20, 1996. He may have persuaded himself it wasn't a human body he had seen, but whatever it was still troubled his mind after he returned home. Lankford returned to the lake with his wife after dark that evening. Shining their lights down onto the shore, the Lankfords believed they saw a body lying at the water's edge. They reported the matter to a nearby police station, and police soon descended on the scene to investigate the body and preserve evidence. From the physical description in a Missing Persons report originating from Norman concerning a female student, Oklahoma City police quickly deduced they had found the body of Juli Busken. Chief Joe Lester gave the awful news to Bud and Mary Busken, who had arrived in Norman just a short time before, that the search for their missing daughter was over. A long search for Juli Busken's killer had only begun.

¶ 7 Ms. Busken's body was clothed when she was found, but her jeans were unbuttoned and unzipped, and her underwear was partially rolled down her thighs. She was found lying face down, her head and shoulders in the shallow freezing water, her hands bound behind her with black shoe laces. Her prized opal and diamond ring, a gift from her parents, was missing from her finger and has never been found. Crime scene technicians recovered a possible pubic hair from her stomach when she was turned over. Investigators could see Ms. Busken had been shot in the head.

¶ 8 At the autopsy, the Medical Examiner observed that Ms. Busken's nose and forehead were scratched and bruised, and blood was in her left nostril. Several oval shaped bruises were seen on her inner thigh. She was also bruised in a small area near the labia, and a small scrape was found in the perianal region. Fecal matter was smeared in an area on her buttocks. The Medical Examiner preserved swabs of her oral, vaginal, and anal cavities for DNA analysis. The death wound was a contact gunshot to the rear of the skull, traversing the brain from back to front, left to right, and slightly upward before coming to rest in the frontal area of the skull, causing multiple fractures and catastrophic brain injury. The Medical Examiner recovered the fatal bullet, later identified by caliber as .22 Long Rifle. Subsequent ballistics analysis showed the barrel of the weapon that fired the fatal bullet marked it with sixteen lands and grooves and a right-hand twist.

¶ 9 Police recovered several items of evidence from the crime scene at Lake Stanley Draper, including a discarded pink leotard bearing the initials " JB," wiped with apparent fecal matter. A tissue smeared with apparent fecal matter was also recovered. Investigators could see two sets of footprints leading to the water's edge, and one set leading away, which they marked and photographed. From multiple cuttings of Ms. Busken's garments, the anal swab obtained from the body, and a pair of pajama bottoms recovered from Ms. Busken's vehicle, criminalists later identified the presence of human spermatozoa. Criminalists eventually used the genetic material recovered from Ms. Busken's panties and the pink " JB" leotard to develop the DNA profile of an unknown suspect.

¶ 10 Sightings of Juli Busken and her abductor reported by other witnesses narrowed the timeframe within which Ms. Busken was kidnapped and killed. Janice Keller saw a small red car like Juli Busken's near Lake Stanley Draper between 6:45 and 7:00 a.m. on the morning of December 20, 1996. Keller saw a young man, she approximated between age twenty-five and thirty, driving the car. In the passenger seat, she could see a woman who seemed somewhat younger, with her hair pulled back and prominent bangs in front. In the young woman's remarkably large eyes and facial expression, Ms. Keller

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sensed the presence of fear. She also noticed how the male driver looked angry. Ms. Keller contacted police about her sighting after hearing of the Juli Busken murder, but was not interviewed until two years later. She provided police with her own profile drawing of the man she saw, and helped develop a composite drawing admitted at trial.

¶ 11 David Kill was on his way home from a night shift at Tinker Air Force Base, driving back toward Norman that morning around 7:10 to 7:15 a.m. He encountered a red compact car bearing an Arkansas license plate driving away from Lake Stanley...

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