Ochoa v. State
| Decision Date | 30 June 1998 |
| Docket Number | No. F-96-339,F-96-339 |
| Citation | 1998 OK CR 41,963 P.2d 583 |
| Parties | 1998 OK CR 41 George OCHOA, Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
¶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. 1 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, 2 and (2) Ochoa knowingly created a great risk of death to more than one person. 3 The jury recommended Ochoa be sentenced to death for both murders and to twenty (20) years imprisonment for burglary. 4 The Honorable Charles L. Owens sentenced Ochoa accordingly. Ochoa appealed his conviction and sentence to this Court. 5
¶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.
¶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. 6 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.
¶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. 7 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." 8 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." 9
¶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," 10 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," 11 and "able to consult with his lawyer and rationally assist in the preparation of his defense." 12 The court ordered the proceedings to resume.
¶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. 13 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.
¶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, 14 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 15 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. 16 Error did not occur and relief is not warranted.
¶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." 17 The Court has put some parameters on "inconsistent defenses." In Neill v. State, the Court stated ...
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