Castro v. State, F-85-205

• Decision Date: 03 December 1992
• Docket Number: No. F-85-205,F-85-205
• Citation: 844 P.2d 159,1992 OK CR 80
• Parties: John Walter CASTRO, Sr., Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 159

844 P.2d 159

John Walter CASTRO, Sr., Appellant, v. The STATE of Oklahoma, Appellee.

No. F-85-205.

Court of Criminal Appeals of Oklahoma.

Dec. 3, 1992.

Rehearing Denied Jan. 8, 1993.

An Appeal from the District Court of Noble County; Lowell Doggett, District Judge.

John W. Castro, Sr., appellant, was convicted of Count I--Murder in the First Degree, and Count II--Larceny of an Automobile, in the District Court of Noble County, Case No. CRF-83-70. Appellant was sentenced to death on Count I, and twenty (20) years imprisonment on Count II. From this Judgment and Sentence, appellant appeals. AFFIRMED.

Royce A. Hobbs, Kurtis M. Kasper, Perry, Trial Counsels for appellant.

Joseph A. Wideman, Dist. Atty., Dan Allen, Asst. Dist. Atty., Newkirk, Trial Counsels for appellee.

Thomas Purcell, Asst. Appellate Public Defender, Oklahoma City, for appellant.

Michael C. Turpen, Atty. Gen., Jean M. LeBlanc, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

BRETT, Judge:

Appellant, John Walter Castro, Sr., on September 26, 1983, was charged in the District Court of Noble County, Case No. CRF-83-70, with Count I: Robbery with a Firearm, Count II: Larceny of an Automobile, and Count III: Murder in the First Degree. A Bill of Particulars was filed against appellant in this case on November 8, 1983, alleging two aggravating circumstances: (1) that the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution; and (2) that there exists the probability that appellant would commit criminal acts of violence that would constitute a continuing threat to society. On September 6, 1984, the information was amended to Count I: Murder in the First Degree, in violation of 21 O.S.1981, § 701.7, and Count II: Larceny of an Automobile, in violation of 21 O.S.1981, § 1720.

Jury trial was held February 4 through March 11, 1985. The jury found appellant guilty on both counts. After finding the existence of the second aggravating circumstance, that there exists the probability that appellant would commit criminal acts of violence that would constitute a continuing threat to society, the jury sentenced him to death for Count I. The jury assessed twenty (20) years imprisonment for Count II. From this judgment and sentence, appellant has perfected his appeal to this Court. We affirm.

On April 17, 1983, appellant was hitch-hiking from Ponca City, Oklahoma, where he lived with his girlfriend, Patti DeNoya, to Oklahoma City. Appellant and Ms. DeNoya had been arguing. He ended up in Stillwater where he was picked up by a police officer at 1:30 or 2:00 in the morning. The officer found him a motel room for the night. Appellant phoned Ms. DeNoya collect to let her know where he was and that he would be home the next day. On April 18, 1983, appellant hitch-hiked to a gas station called Bill's Corner to see about catching a bus to Oklahoma City. He was told that the next bus would not be for many hours, so appellant decided to hitch-hike to Oklahoma City. While appellant was outside of the store eating a snack, Beulah Grace Cox pulled into the parking lot. Appellant knew Ms. Cox through Ms. DeNoya, so he approached her. Ms. Cox told appellant that she was headed to Stillwater; she was a student at Oklahoma State University. She asked him where he was headed, to which he replied, the campus. She gave him a ride.

On the way, Ms. Cox told appellant about her studies at Oklahoma State University. She told appellant that she was learning how to mess with peoples minds. This made appellant angry at her. According to appellant, the two shared a couple of marijuana cigarettes along the way. She pulled off the main road at one point to a wooded area because appellant had to urinate. At some point, appellant pulled a gun on her because he decided to steal her car. She got out of the car, as did appellant. She asked him if he was going to kill her, to which he said no. She asked him if he was going to rape her, to which he said no. These questions made him even more angry. He decided to take her car and leave her in the wooded area. Instead, he went back to where she was squatted on the ground and shot her in the head. Then he shot her two or three more times to make sure that she was dead. As a result, Ms. Cox died of gunshot wounds to the head.

Appellant drove the decedent's car to Oklahoma City. The next day, he washed the car in order to remove any of his fingerprints. Then he parked the car in front of the bus station with the windows down in hopes that someone would steal the car or at least the contents. He phoned Ms. DeNoya collect from the bus station and he told her that he did something bad--that he had killed someone.

On June 6, 1983, appellant was arrested in his home in Ponca City on an unrelated charge. During a search of the home, to which appellant consented, officers found a gun that was later determined to be the murder weapon. Appellant admitted to the officers that he was the owner of the gun.

While in the Kay County jail awaiting trial on the unrelated charge, appellant told Steven Wayne Gregory, a fellow inmate, that he had killed someone in Stillwater. The first part of August 1983, appellant made a map showing the location of the decedent's body and showed this map to Gregory. On August 10, 1983, in hopes of receiving favorable treatment from the District Attorney's office, Gregory told an investigator from that office, Raymond Ham, about the map. Ham and Gregory, along with other law enforcement personnel, went to Noble County to see if they could locate the body. Gregory was able to lead the officers to the area mapped out by appellant, where they found the skeletal remains of a body, which was later determined to be those of Beulah Grace Cox. Later that same day, Gregory was transferred to the Noble County jail for his own protection. A shakedown of the cells at the Kay County jail revealed the map that Gregory had told the investigator about in appellant's cell. When the jailers removed the map from appellant's cell, appellant admitted that the map was his, but that they did not have the right to remove that from his cell.

Appellant admitted several times to different people that he killed Beulah Grace Cox. Although each statement was a little different, the basic facts of how appellant killed the decedent remained constant. On September 30, 1983, while in the Kay County jail, appellant told the jailers that he wanted to talk. Raymond Ham, the investigator from the District Attorney's office, went to see appellant. Appellant told Ham that he wanted to talk and that he wanted his attorney present. After his attorney arrived, appellant was advised of his Miranda ¹ rights by both his attorney and Ham. Appellant confessed to killing Ms. Cox, as well as other crimes. On February 21, 1984, after being advised of his rights, appellant confessed to Charles Blair of the Kay County Sheriffs Department of killing Ms. Cox. That conversation was recorded. At the trial in Kay County on the unrelated charge, on April 16, 1984, appellant testified that he killed Ms. Cox. ² Later, appellant was transferred to Noble County to await trial on these charges. Then on June 29, 1984, appellant was creating a commotion in his cell in the Noble County jail. When the deputy sheriff went to see what the problem was, appellant told the deputy that he had killed Ms. Cox. At trial, appellant objected to each of these statements being admitted into evidence.

At trial, appellant's defense was not guilty by reason of insanity. He testified during the second stage that he did in fact kill Beulah Grace Cox, but that he did not know why or whether he would kill someone again if he only received life imprisonment.

Because appellant's first and ninth assignments are related, we will address them together. Appellant contends in his first assignment that he was deprived of a fair trial due to a conflict of interest because his attorney in the Kay County case represented both appellant and Gregory. In his ninth assignment he argues that his confession to Investigator Ham on September 30, 1983, was inadmissible because he had not yet been brought before a magistrate on these charges and because of the supposed conflict of interest. He requests an evidentiary hearing in order to "reveal [the] extent of the prejudice caused by this conflict." (Appellant's Brief 16).

Appellant argues that he was prejudiced by this "conflict" in that his attorney in Kay County, Ken Holmes, was present when appellant confessed on September 30, 1983, to Ham in the Kay County jail and that previously Mr. Holmes had represented Gregory on his pending charges. The record reflects that at the time of the September 1983 confession, Mr. Holmes was not representing Gregory; Tom Rigdon had been court-appointed to represent Gregory in May 1983. Since Mr. Holmes was not appellant's attorney at trial on the charges at issue in this appeal, the only effect this possible "conflict" could have, would been on the admissibility of the September 30, 1983, confession. We find no conflict; however, even if such a conflict did in fact exist, that would not necessarily mean that appellant's statement was involuntarily given.

A confession is deemed voluntary if "it is the product of an essentially free and unconstrained choice by its maker." Young v. State, 670 P.2d 591, 594 (Okl.Cr.1983). Voluntariness is determined by a consideration of the totality of the circumstances. Palmer v. State, 788 P.2d 404, 407 (Okl.Cr.1990). On that date, appellant stated that he wanted to talk to someone from the district attorney's office. Investigator Ham went to the jail to see what appellant wanted. Almost immediately, appellant stated he wanted his attorney present. Ham ceased any further conversation with appellant until his attorney arrived. After both his attorney and Ham advised appellant of his Miranda rights, appellant confessed to Ham about the Kay County...