Omalza v. State
| Decision Date | 29 December 1995 |
| Docket Number | Nos. F-93-141,F-93-336,F-93-65,s. F-93-141 |
| Citation | 911 P.2d 286,1995 OK CR 80 |
| Parties | Alfredo OMALZA, Ronnie Lee Floyd, David Lee Flippo, Appellants, v. STATE of Oklahoma, Appellee. , and |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Appellants, Alfredo Omalza, Ronnie Lee Floyd and David Lee Flippo, were tried separately by jury in the District Court of Oklahoma County, Case No. CRF-89-4717 before the Honorable James B. Blevins, District Judge. 1 Omalza was convicted of two counts of Murder in the first degree (21 O.S.Supp.1982, § 701.7(A)) and one count of Conspiracy to Commit Murder (21 O.S.1981, § 421). 2 The jury recommended death for both counts of malice murder, after finding the existence of five aggravating circumstances, 3 and one hundred (100) years imprisonment for conspiracy. The trial court sentenced Omalza accordingly. Floyd was convicted of two counts of Murder in the first degree (21 O.S.Supp.1982, § 701.7(A)). 4 The jury recommended death for both counts of malice murder after finding the existence of four aggravating circumstances. 5 The trial court sentenced Floyd accordingly. Flippo was convicted of two counts of Murder in the first degree 6 (21 O.S.Supp.1982, § 701.7(A)) and was sentenced to two consecutive sentences of life without parole. From these Judgments and Sentences, they appeal. For purposes of these appeals, we find it expeditious to consolidate these cases on our own motion for review since common errors necessitate reversal. Rule 3.3, Rules of the Court of Criminal Appeals, 22 O.S.Supp.1993, Ch. 18, App.
On March 9-10, 1988, the bodies of Kim Gaylene Grant and Harrell "Rob" Robinson were found in a shallow grave in a ravine near Lake Stanley Draper in Cleveland County. Robinson had sustained two fatal head wounds and a fatal stab wound that pierced his aorta. Robinson had also sustained numerous post-mortem stab and incise wounds to his head, throat, neck, shoulder, arms and left hand. Robinson's right hand had been amputated and was found laying on his chest. Grant had sustained two fatal stab wounds that passed through her body piercing her heart and lungs. The uncontroverted evidence established they were not killed at the burial site.
The State theorized Patricia Beth Jones conspired with Omalza, her incarcerated boyfriend, to kill Grant so Grant could not testify against Jones in their pending drug case. 7 Omalza then telephoned Floyd and Flippo and told them to lure Grant and Robinson to some location on the pretext of selling them drugs. Omalza ordered Floyd and Flippo to kidnap Grant and Robinson, take them to Floyd's father's house and scare them. If Grant refused to recant her preliminary hearing testimony incriminating Jones, Floyd and Flippo were to kill them and make it look like a suicide.
The State attempted to prove at trial that Grant and her boyfriend, Robinson, were kidnapped, held at Floyd's house and murdered by Floyd and Flippo before being dumped at Draper Lake. The State's case was impeded by the facts that the murder site was never found, no forensic evidence connected Floyd and Flippo to the murders, and that none of the alleged conspirators testified at trial.
Appellants each raise two venue issues for our consideration: that the State did not carry its burden to prove venue was proper in Oklahoma County in each case; and that the contested issue of venue should have been submitted to the jury in each instance. These issues were preserved by the defense attorneys' demurrer to venue at the close of the State's case and by their requests for appropriate instructions.
The Oklahoma Constitution grants an accused the right to be tried in the county in which the crime charged was committed.
In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed or, where uncertainty exists as to the county in which the crime was committed, the accused may be tried in any county in which the evidence indicates the crime might have been committed.
The nature of this constitutional right can best be discerned through the mosaic of case law which has developed around it. Venue is treated differently from other constitutional rights for waiver of this right may be found from a silent record. See Application of Poston, 281 P.2d 776, 783 (Okl.Cr.1955). And while the State bears the burden to prove venue, the standard of proof is not the same as the elements of the crime, i.e., beyond a reasonable doubt, but is merely by a preponderance of the evidence. Rawlings v. State, 740 P.2d 153, 159 (Okl.Cr.1987). Evidence sufficient to establish venue may be direct or circumstantial. Id.; Morris v. State, 363 P.2d 377, 379 (Okl.Cr.1961). Venue, in Oklahoma, is not an element of the crime. Id. (citing Kilpatrick v. State, 90 Okl.Cr. 276, 278, 213 P.2d 584, 585 (1950)). It is not the same as jurisdiction: venue may be waived, but jurisdiction may not. See, e.g., Smith v. State, 554 P.2d 851, 854-55 (Okl.Cr.1976) (venue); Snodgrass v. State, 478 P.2d 965, 967 (Okl.Cr.1970) (venue); Morris, 363 P.2d at 379 (venue); Munson v. State, 758 P.2d 324, 332 (Okl.Cr.), cert. denied, 488 U.S. 1019, 109 S.Ct. 820, 102 L.Ed.2d 809 (1988) (jurisdiction); Guthrey v. State, 374 P.2d 925, 927 (Okl.Cr.1962) (jurisdiction).
Looking first at the evidence to support venue in Oklahoma County, we find the following evidence in the records of these cases. The victims were found approximately one block from the Oklahoma County line in Cleveland County. Robinson's car was found nearby, across the county line in Oklahoma County, on a dead-end dirt trail which was part of a system of off-road trails at Draper Lake. Grant and Robinson were not killed in Cleveland County where they were found. At the time of the murders, Jones, Floyd, Flippo and Robinson were residents of, or staying in Oklahoma County.
The location of the bodies so near the Oklahoma County line, the location of Robinson's car in Oklahoma County, the system of dirt trails leading from Oklahoma County to the grave site, the residence of Jones, Floyd, Flippo and Robinson, and the absence of any evidence beyond the burial site to any other venue is sufficient to prove by a preponderance of the evidence that the murders might have been committed in Oklahoma County. 9 The evidence thus satisfies the Oklahoma Constitution and the State's burden to prove venue by a preponderance of the evidence.
We next examine Appellants' argument that venue is a jury question. Appellants each challenged venue following preliminary hearing by a motion to quash which was granted. This ruling was later withdrawn and reversed. At each trial when the State rested, the defense renewed its challenge of venue by demurrer. The trial court denied the demurrer. At the close of the first stage of each trial, the defense asked that the issue of venue be put to the jury using a requested instruction. The trial court denied the requested instruction in each trial. Appellants argue the trial court thereby committed reversible error.
Having found venue is not an element of the crime, but rather is an element in the determination of the trial court's ability to hear the case, we find venue is solely for the trial court to determine. In the present cases the trial court properly denied the defense request to submit the issue to the jury. We expressly overrule any language to the contrary which may be found in prior cases. 10
In his first assignment of error, Omalza claims he was denied a fair trial because the trial court admitted, over objection, many forms of inadmissible hearsay to his detriment. We agree.
Omalza specifically argues the trial court erred in admitting inadmissible hearsay statements under the coconspirator exclusion. See 12 O.S.1981, § 2801(4)(b)(5). A statement which is offered against a party and made by his coconspirator during the course and in furtherance of their conspiracy is admissible and is not hearsay. 12 O.S.1981 § 2801(4)(b)(5). 11 See also Armstrong v. State, 811 P.2d 593, 597 (Okl.Cr.1991). However, before alleged coconspirator statements can be admitted against a defendant, the trial court is required to hold an in camera hearing to determine whether a conspiracy existed. Harjo v. State, 797 P.2d 338, 345 (Okl.Cr.1990). The conspiracy must be proven by a preponderance of evidence and the trial court may consider the alleged hearsay statements in reaching its decision. Id. A coconspirator's statements satisfy the requirements of reliability and are admissible as non-hearsay substantive evidence only where the trial court finds: a conspiracy existed; both the defendant and the alleged coconspirator declarant were parties to the conspiracy; the statements were made during the duration of the conspiracy; and the statements furthered the goals of the conspiracy. Id.
The trial court properly held the in camera hearing in Omalza's trial. At the conclusion of the hearing the trial court properly found that the State had proved the existence of a conspiracy by a preponderance of the evidence and that Omalza was a party to it. 12 However, when the State sought to admit the co-conspirator statements at trial, the trial court failed to apply the limits of time and...
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