CUESTA-RODRIGUEZ v. State of Okla.

Decision Date12 October 2010
Docket NumberNo. D-2007-825.,D-2007-825.
Citation2010 OK CR 23,241 P.3d 214
PartiesCarlos CUESTA-RODRIGUEZ, Appellant v. STATE of Oklahoma, Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma








An Appeal from the District Court of Oklahoma County; The Honorable Virgil C. Black, District Judge.

Catherine Hammarsten, Cynthia Viol, Assistant Public Defenders, Oklahoma City, OK, attorneys for defendant at trial.

Steve Deutsch, Scott Rowland, Assistant District Attorneys, Oklahoma City, OK, attorneys for State at trial.

Andrea Digilio Miller, Assistant Public Defender, Oklahoma County Public, Defender's Office, Oklahoma City, OK, attorney for appellant on appeal.

W.A. Drew Edmondson, Oklahoma Attorney General, Robert Whittaker, Assistant Attorney General, Oklahoma City, OK, attorneys for appellee on appeal.


A. JOHNSON, Vice Presiding Judge.

¶ 1 Carlos Cuesta-Rodriguez was tried in the District Court of Oklahoma County, Case No. CF-2003-3216, and was found guilty of First Degree Murder in violation of 21 O.S.2001, § 701.7. The jury imposed the death penalty after finding that the murder was especially heinous, atrocious, or cruel and that Cuesta-Rodriguez presented a continuing threat to society. See 21 O.S.2001, § 701.12(4) and (7). The Honorable Virgil C. Black, District Judge, who presided at trial, sentenced him accordingly. From this Judgment and Sentence, he appeals raising twenty-one claims of error. We find none of these claims merit relief and affirm the judgment and sentence.


¶ 2 Olimpia Fisher, the victim in this case, and her adult daughter Katya Chacon lived with Cuesta-Rodriguez in a home that Fisher and Cuesta-Rodriguez had purchased together. In the year after the couple purchased the home, their relationship had become strained over Fisher's long working hours as a moving company packer and Cuesta-Rodriguez's fears that she was cheating on him. Cuesta-Rodriguez would question Fisher and Chacon whenever they left the home about where they were going and what they would be doing. Eventually, the relationship deteriorated to the point that Cuesta-Rodriguez wanted Fisher to move out and Fisher wanted Cuesta-Rodriguez to move out.

¶ 3 On May 20, 2003, Fisher went to the Santa Fe Station of the Oklahoma City Police Department to make a complaint of domestic abuse. Officer Jeffrey Hauck observed bruising on her right upper arm and stomach. When Fisher found out that Officer Hauck was going to take photographs of the bruising and that Cuesta-Rodriguez would be arrested, she ran out of the station.

¶ 4 On Friday May 31, 2003, Cuesta-Rodriguez tried calling Fisher on her cell phone. She answered and told him she was at work. Cuesta-Rodriguez had gone by her place of work, however, and knew she was not there. Believing she was cheating on him, he went home, drank some tequila, and went to bed.

¶ 5 Katya Chacon came home to a dark house at approximately 10:00 p.m. She saw an empty bottle of tequila and a note next to it. The note, written on the back of an envelope, said “F--- you bitches and puntas, goodbye” (Tr. Vol.2, 381). She thought she was alone in the house, but when she heard Cuesta-Rodriguez cough in the other room, she tried to telephone her mother. Unable to contact Fisher by telephone, Katya left the house and joined her as she was getting off work. They ate a late meal at a McDonald's restaurant, and went home. They initially planned to pack and leave, but decided to remain in the house overnight. Katya slept in her own bedroom and Fisher slept in a third bedroom.

¶ 6 Around 4:30 a.m., Katya woke up and heard Fisher and Cuesta-Rodriguez arguing. Katya went into the bedroom where the two were fighting and persuaded Fisher to come to Katya's bedroom in the hope that Cuesta-Rodriguez would leave them alone. Cuesta-Rodriguez followed the women into Katya's bedroom while continuing to argue loudly with Fisher. Fisher picked up a telephone, but Cuesta-Rodriguez snatched it out of her hand and threw it away. At the same time, he pulled out a double-barreled .45 caliber pistol loaded with two .410 shotgun shells and blasted Fisher in the right eye. 1 With her mother shot, Katya retrieved a baseball bat from under the bed and tried to hit Cuesta-Rodriguez in the hand. Cuesta-Rodriguez grabbed the bat as Katya swung it and threw it to the floor. 2 Katya ran from the house and was able to call 911 from a neighbor's residence. According to Cuesta-Rodriguez's statement to police, Fisher was still alive and conscious after he shot her so he took her to his bedroom where, despite having an eye blown out, Fisher continued to fight and struggle.

¶ 7 The first police officers arrived on the scene at approximately 4:41 a.m., within two minutes of being dispatched by 911. While one officer took information from Katya near the neighbor's house from where she had called 911, other officers approaching Cuesta-Rodriguez's and Fisher's house could hear Fisher screaming and banging on a bedroom window as if she was trying to escape. The windows and doors to the house were covered with burglar bars that not only prevented her escape, but also prevented entry by police. The officers' first attempt at entry by kicking in the front door failed. While attempting to get through the front door, officers heard a gunshot and Fisher's screams stopped.

¶ 8 Certain that Fisher was no longer alive, and certain that Cuesta-Rodriguez was armed, police summoned their tactical team. In the meantime, a police hostage negotiator attempted to make telephone contact with Cuesta-Rodriguez and used a loudspeaker in an attempt to convince him to come out. Eventually, the tactical team forced their way through the front door burglar bars with some difficulty using a specialized hydraulic tool called a jam-ram. Cuesta-Rodriguez was arrested and taken to the police station. He gave statements to detectives that day and the next day. In both interviews he admitted shooting Fisher, although he claimed the first shot was accidental. Photographs of Fisher's face taken at the scene, and introduced as trial exhibits, showed severe injuries centered on her eyes. 3

¶ 9 Other facts will be discussed as necessary with Cuesta-Rodriguez's individual claims of error.

1. Jury Instruction: Voluntary Intoxication

[1] ¶ 10 Cuesta-Rodriguez claims that his constitutional rights to due process and to present a defense were denied by the trial court's refusal to issue a jury instruction on the defense of voluntary intoxication.

[2] [3] [4] ¶ 11 This Court reviews a trial court's decision on whether to instruct a jury on the defense of voluntary intoxication for an abuse of discretion. Fitzgerald v. State, 1998 OK CR 68, ¶ 43, 972 P.2d 1157, 1174. Before a voluntary intoxication instruction is given, the evidence must be sufficient to establish a prima facie case that the defendant was intoxicated to the point he was unable to form deliberate intent to kill. Malone v. State, 2007 OK CR 34, ¶ 22, n. 48, 168 P.3d 185, 197, n. 48. Where the trial court finds insufficient evidence has been introduced to show that the defendant was so intoxicated that his mental powers were overcome and he was unable to form criminal intent, the court may either reject the instruction or instruct the jury that intoxication was not a defense to the crime. Fitzgerald, 1998 OK CR 68, ¶ 43, 972 P.2d at 1174; see also Miller v. State, 1977 OK CR 189, ¶ 18, 567 P.2d 105, 109 (holding that for voluntary intoxication to be defense to first-degree murder, defendant must be so intoxicated as to be incapable of forming any criminal intent).

¶ 12 The evidence in this case showed that Cuesta-Rodriguez did consume some tequila several hours before the murder. Under questioning by police, for example, Cuesta-Rodriguez said that he consumed two or three drinks of tequila, but denied that he consumed enough to make him drunk. 4 Katya Chacon described Cuesta-Rodriguez as “stupid drunk” on the night of the murder, but also testified that he was steady on his feet and talking clearly. Detective Dupy testified that Cuesta-Rodriguez smelled of alcohol at 9:15 a.m., four hours after the shooting, but stated in his report that Cuesta-Rodriguez appeared only slightly intoxicated. This evidence may certainly support an inference that Cuesta-Rodriguez was intoxicated, but it does not rise to the level of making a prima facie showing that Cuesta-Rodriguez was so intoxicated that he was incapable of forming criminal intent. See Charm v. State, 1996 OK CR 40, ¶ 13, 924 P.2d 754, 761 (finding that where evidence concerning defendant's level of intoxication was conflicting, there was insufficient evidence of impairment to raise reasonable doubt as to defendant's ability to form requisite criminal intent to commit first-degree murder). 5 This conclusion is well supported by the fact that Cuesta-Rodriguez remembered events well enough to give police a detailed account of the shooting and the circumstances surrounding it. See Valdez v. State, 1995 OK CR 18, ¶¶ 56-58, 900 P.2d 363, 379 (explaining that defendant who is able to give detailed, lucid account of circumstances of crime is hard pressed to argue that he was significantly intoxicated at the time of the incident). The trial court did not abuse its discretion by denying Cuesta-Rodriguez's request for a jury instruction on the defense of voluntary intoxication.

2. Exclusion of Expert Testimony

[5] [6] ¶ 13 Cuesta-Rodriguez claims that the trial court violated his rights to present a defense and to a fair trial by failing to allow psychologist, Dr. James Choca, to testify in his defense during the guilt phase of the trial. According to Cuesta-Rodriguez, Dr. Choca would have testified about the negative effect of combining alcohol and the steroid diprospan on...

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