Salazar v. State

• Decision Date: 29 April 1993
• Docket Number: No. F-88-569,F-88-569
• Parties: Maximo Lee SALAZAR, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 729

852 P.2d 729

Maximo Lee SALAZAR, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-88-569.

Court of Criminal Appeals of Oklahoma.

April 29, 1993.

Rehearing Denied Aug. 30, 1993.

An Appeal from the District Court of Comanche County; Jack Brock, District Judge.

Maximo Lee Salazar, appellant, was convicted of First Degree Murder and First Degree Burglary in the District Court of Comanche County, Case No. CRF-87-460, sentenced to death and ten (10) years imprisonment, respectively, and appeals. The Judgment and Sentence for First Degree Burglary is AFFIRMED. The conviction for First Degree Murder is AFFIRMED, but the sentence of death is VACATED and the cause is REMANDED for RESENTENCING.

Barry Benefield, Oklahoma City, William H. Luker, Deputy Appellate Public Defender, Norman, for appellant.

Robert Schulte, Dist. Atty., Roy M. Calvert, Asst. Dist. Atty., Lawton, Robert H. Henry, Atty. Gen., A. Diane Hammons, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

CHAPEL, Judge:

Maximo Lee Salazar, appellant, was tried by jury and convicted of the crimes of First Degree Murder (21 O.S.Supp.1982, § 701.7(A)) and First Degree Burglary (21 O.S.1981, § 1431) in Comanche County District Court Case No. CRF-87-460. The jury set punishment on the burglary conviction at ten (10) years imprisonment. Following a second stage proceeding, the jury recommended appellant be put to death for the murder conviction. The trial court sentenced accordingly and appellant appeals.

During the early morning hours of August 24, 1987, nine (9) year old Jennifer Prill awoke to find appellant burglarizing her family's Cache, Oklahoma, residence. When appellant noticed Jennifer, he instructed her to return to her room. Appellant followed Jennifer to her bedroom and stabbed the child twice in the neck as she lay on her bed. Appellant then covered the child and fled the scene. Jennifer's body was discovered by her father later that morning. The medical examiner determined Jennifer bled to death as a result of a stab wound which severed her right jugular vein. It was determined that approximately eight dollars ($8.00) and a set of car keys had been stolen during the burglary.

At approximately 1:30 A.M. on August 29, 1987, Lawton police officers responded to a burglar alarm at Kelly's Corner convenience store. As the officers arrived at the scene, they observed a car leaving Kelly's Corner at a high rate of speed. The officers directed a spotlight into the driver's side of the vehicle and noticed two occupants. Officer LaFrance testified that the driver appeared to be an Hispanic male. After a high speed chase, the occupants abandoned the vehicle and escaped on foot. The car was impounded and inventoried. Among the items recovered from the vehicle were a blood-stained knife and the Prill's car keys. Papers discovered in the car, as well as a check of the VIN number, indicated that the abandoned vehicle belonged to appellant. At approximately 2:33 A.M. on that same morning, appellant telephoned police and reported his car stolen. The record reveals appellant is not Hispanic, but is American Indian.

Eric Bradbury testified he and appellant burglarized Kelly's Corner and then fled from police. After separately eluding police, the two met and appellant phoned in the stolen car complaint. Bradbury stated appellant did not seem overly concerned about his car, but that he was "really paranoid about something that was in it." Appellant specifically mentioned a set of keys. Appellant was questioned by police on September 6 and 8, 1987. During the second interview and after acknowledging his Miranda rights, appellant confessed to the Prill burglary and the murder of Jennifer Prill.

The medical examiner opined the knife wounds on Jennifer Prill could have been made with the knife discovered in appellant's car. It was also determined the blood on the knife was consistent with the victim's blood type. Further expert testimony revealed three head hairs and one pubic hair recovered from the trauma pants placed on the victim during resuscitation efforts and at the crime scene were consistent with appellant's hair.

I. ISSUES RELATING TO JURY SELECTION

Appellant asserts that the trial court erred by refusing to excuse prospective juror Cummins for cause. Appellant's primary complaint concerns Ms. Cummins response to a question posed by defense counsel during voir dire. The record reveals counsel asked Ms. Cummins whether she had "any sense that if you find Mr. Salazar guilty of this crime, that you owe it to someone, anyone, to find that he should receive the death penalty?" Ms. Cummins answered, "I think we'd owe it to the community." (Tr. 136-37). Appellant claims Ms. Cummins' response to this and two related questions demonstrated she felt obligated to impose the death penalty. We disagree.

A review of the entire transcript of voir dire proceedings reveals Ms. Cummins stated she had no strong feelings about the death penalty; she would have to hear all of the evidence before making a decision; she would give appellant the presumption of innocence; and she would follow the court's instructions. When Ms. Cummins' responses are considered as a whole and in context, it is apparent she was not biased in favor of capital punishment. Accordingly, we find no abuse of the trial court's discretion in refusing to remove Ms. Cummins for cause. See Smith v. State, 727 P.2d 1366, 1370 (Okl.Cr.1986), cert. denied, 483 U.S. 1033, 107 S.Ct. 3277, 97 L.Ed.2d 780 (1987). Furthermore, as was true in Boltz v. State, 806 P.2d 1117, 1122 (Okl.Cr.1991), cert. denied, 502 U.S. 846, 112 S.Ct. 143, 116 L.Ed.2d 109 (1991), "even if error had been found, [Ms. Cummins] was excused by a peremptory challenge, and there is nothing in the record to show that any of the jurors who sat on the trial were objectionable."

In conjunction with the previous argument, appellant contends he was deprived of a fair trial by improper questions asked by the prosecutor during voir dire and the trial court's failure to timely place the prospective jurors under oath. We agree prosecutors should refrain from asking prospective jurors whether they could impose the death penalty "without doing violence to their conscience." See Banks v. State, 701 P.2d 418, 422 (Okl.Cr.1985). The proper inquiry is whether the juror's views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and oath. Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985). After considering all of the questions asked by the court, the prosecution and defense counsel, we find the correct standard was substantially satisfied.

Prior to voir dire, the trial court administered an oath to the initial twelve prospective jurors whereby the jurors swore they would truthfully answer all questions regarding their qualifications to serve as jurors. Following the sixth peremptory challenge, the court recognized it had inadvertently failed to administer such oath to any prospective juror after the initial twelve. Therefore, the court administered the oath to all the remaining venire. Without citing relevant authority, appellant argues this process, combined with the two errors alleged above, deprived him of a fair trial. We have rejected the two previous arguments and now find that this proposition does not require reversal. While the administration of the above oath is appropriate, see Oklahoma Uniform Jury Instructions--Criminal (OUJI-CR) 101, we can locate no legal requirement that such be subscribed to by prospective jurors. Our statutes require only that members of a general jury panel subscribe to an oath regarding their qualifications to sit as jurors, 38 O.S.Supp.1985, § 20.1, and that jurors empaneled for a case swear that they will render a true verdict according to the evidence, 22 O.S.1981, § 601. This assignment of error is dismissed.

II. ISSUES RELATING TO GUILT/INNOCENCE

During the late morning hours on September 6, 1987, appellant was questioned by three law enforcement officials after being advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and signing a form acknowledging he understood those rights. After approximately two and one half (2 1/2) hours of questioning, two of the officers left the room while Lawton Police Detective Ronald Smith continued to question appellant off the record. Approximately fifteen (15) to twenty (20) minutes later, appellant confessed to the instant murder. The tape recorder was then turned back on and appellant's confession was recorded. A second confession was obtained on September 8, 1987, and both statements were transcribed. Following an in camera hearing in which the trial court found the statements were given voluntarily, the transcript of the initial confession was introduced in the first stage of trial. The transcript of the September 8th confession was introduced during the second stage. Advancing two separate arguments, appellant claims in his first assignment of error that his confessions should have been suppressed.

Appellant first asserts the confession of September 6, 1987, was "the product of coercive interrogation techniques practiced against a suspect of limited mental capabilities." ¹ Essentially, appellant argues that his age and I.Q., combined with the interrogators' techniques and the attendant stress, rendered his confession inadmissible. The record reveals that appellant was nineteen (19) years old at the time of his confessions. Three experts testified during appellant's competency hearing on February 5, 1988, regarding his level of intelligence. Respectively, the experts opined appellant had an I.Q. of 65, 67 and something "in the lower 80's." ² The State also adds that appellant finished the tenth grade, could read and write, completed Job Corp training, and passed his G.E.D. test.

While youth and limited mental...