Salazar v. State

• Decision Date: 05 June 1996
• Docket Number: No. F-94-1276,F-94-1276
• Citation: 1996 OK CR 25,919 P.2d 1120
• Parties: Maximo Lee SALAZAR, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1120

919 P.2d 1120

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

No. F-94-1276.

Court of Criminal Appeals of Oklahoma.

June 5, 1996.

Rehearing Denied Aug. 7, 1996.

Mark Barrett, William Luker, Oklahoma Indigent Defense System, Capital Trial Division, Norman, for Appellant at trial.

William H. Luker, Deputy Division Chief, Capital Direct Appeals Division, Oklahoma Indigent Defense System, Norman, for Appellant on appeal.

Robert Schulte, District Attorney, Roy Calvert, Assistant District Attorney, Lawton, for the State at trial.

W.A. Drew Edmondson, Attorney General of Oklahoma, William L. Humes, Assistant Attorney General, Oklahoma City, for Appellee on appeal.

OPINION

STRUBHAR, Judge.

Appellant, Maximo Lee Salazar, was tried by jury and convicted of one count of Murder in the first degree (21 O.S.Supp.1982, § 701.7(A)) and one count of Burglary in the first degree (21 O.S.1981, § 1431) in the District Court of Comanche County, Case No. CRF-87-460, the Honorable Jack Brock, District Judge, presiding. The jury found three (3) aggravating circumstances ¹ existed and recommended death for the murder and ten (10) years imprisonment for the burglary. The trial court sentenced Appellant accordingly.

Appellant appealed his Judgment and Sentence to this Court. In a published opinion, Salazar v. State, 852 P.2d 729 (Okl.Cr.1993), this Court affirmed Appellant's convictions for murder and burglary, but vacated the sentence of death and remanded the case for resentencing because the jury was not instructed on the punishment option of life without the possibility of parole.

A jury was empaneled and a new sentencing proceeding conducted before the Honorable Allen McCall on November 14-17, 1994. See 21 O.S.Supp.1993, § 701.10a. The jury again returned a sentence of death, but only found one aggravating circumstance existed. ² From this Judgment and Sentence, Appellant appeals. It is with unmistakable frustration that we reverse and remand this case for a third sentencing hearing.

I.

The facts of this case are set out in detail in Salazar v. State, 852 P.2d at 731-32. Stated briefly, Appellant burglarized the Prill residence in Cache, Oklahoma on August 24, 1987. The Prill's nine year old daughter, Jennifer, awoke and found Appellant in the living room. Appellant instructed Jennifer to return to her bedroom where he followed her and fatally stabbed her twice in the neck. Appellant then fled from the Prill home with approximately six to eight dollars in cash and a set of Gary Prill's car keys. Shortly thereafter, the police arrested Appellant after he reported his car stolen and the police found the car with the Prill's car keys in it. Appellant subsequently confessed.

II.

In his first proposition of error, Appellant argues the evidence was insufficient to prove beyond a reasonable doubt that he knowingly created a great risk of death to more than one person. 21 O.S.1981, § 701.12(2). The State responds by arguing that "the factual circumstances peculiar to the present case demonstrate that, when [Appellant] killed Jennifer, he created a risk of death to the others in the home due to the close proximity of the others to the murder, the nature of the relationships involved, and the great probability that ... the others would be awakened and come to the aid of Jennifer." Appellee's Brief at 8-9.

This Court again is faced with the arduous task of parsing through the facts of a tragic crime to determine whether a defendant should be eligible for the death penalty. We must first determine whether Appellant knowingly created a great risk of death to more than one person when he killed Jennifer Prill in her bedroom while her parents and younger sister were asleep in their bedrooms. It is undisputed that Appellant had no contact with anyone else in the house on the night of the murder. The State presented no evidence Appellant awakened or sought out any other member of the Prill family before or after he killed Jennifer. Nor was there any evidence Appellant went to the other bedrooms to investigate whether there were family members present or items of value.

To determine whether the State has met its burden in proving an aggravating circumstance, this Court reviews the record in the light most favorable to the State to determine whether any rational trier of fact could have found the facts necessary to support the aggravating circumstance beyond a reasonable doubt. Powell v. State, 902 P.2d 1119, 1120 (Okl.Cr.1995); Malone v. State, 876 P.2d 707, 718 (Okl.Cr.1994); Fisher v. State, 736 P.2d 1003, 1011 (Okl.Cr.1987), cert. denied, 486 U.S. 1061, 108 S.Ct. 2833, 100 L.Ed.2d 933 (1988). We have also phrased the standard of review as "whether there was any competent evidence to support the State's charge that the aggravating circumstance existed." Perry v. State, 893 P.2d 521, 533 (Okl.Cr.1995)(quoting Bryson v. State, 876 P.2d 240, 259 (Okl.Cr.1994), cert. denied, 513 U.S. 1090, 115 S.Ct. 752, 130 L.Ed.2d 651 (1995)). The Powell court treated both standards as the same. Powell, 902 P.2d at 1120.

We recently reviewed many of this Court's cases in which the great risk of death aggravator was found. Valdez v. State, 900 P.2d 363, 383 (Okl.Cr.), cert. denied, --- U.S. ----, 116 S.Ct. 425, 133 L.Ed.2d 341 (1995). The Valdez Court reiterated that "it is not the death of more than one person which supports [the aggravator], but the defendant's acts that create the risk of death to another which are in close proximity, in terms of time, location and intent to the act of killing itself." Valdez, 900 P.2d at 382 (quoting Snow v. State, 876 P.2d 291, 297 (Okl.Cr.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1165, 130 L.Ed.2d 1120 (1995)). See also Pennington v. State, 913 P.2d 1356, 1370 (Okl.Cr.1995).

In the majority of the cases in which this aggravator has been upheld, the endangered bystanders who suffered a great risk of death were either in the line of the defendant's fire or were contemporaneously injured or killed by the defendant. ³ Valdez 900 P.2d at 382-83, n. 96. In the four cases where the bystanders were uninjured, the defendant threatened the bystanders and other evidence showed the defendant's intent and willingness to kill the bystanders. ⁴ Id. at 383, n. 97. In all of these cases the defendant had some contact with the bystanders.

This Court again addressed the great risk of death aggravator in Allen v. State, --- P.2d ----, 1996 WL 67516, 67 OBJ 713 (Okl.Cr.1996). In Allen, we found there must be actual risk to bystanders rather than possible risk. We noted this Court would review the evidence introduced at trial and that we would not speculate or consider "what might have been had the circumstances differed slightly." Allen, --- P.2d at ----, 67 OBJ at 716. We concluded that a defendant could not be condemned for what might have occurred, but could be condemned only when his conduct caused a great risk to bystanders. Id. The record must show not a mere possibility of occurrence, but that the defendant's actions caused a serious risk to the safety of others. Id. at ----, 67 OBJ at 717.

In the instant case, Appellant had contact only with Jennifer Prill. Although there is always some amount of risk when one enters an inhabited family dwelling in the nighttime with a knife, the risk in the instant case was not great to the sleeping bystanders given that Appellant killed Jennifer Prill to prevent contact with other family members. The sleeping bystanders did not suffer a great risk of death as Appellant did not seek out members of the Prill family. He did not enter any other bedrooms in search of other victims. Had Appellant come into contact with another member of the Prill family and threatened them, the result would be different.

In light of our holdings in Valdez and Allen where we held that these defendants did not create a great risk of death to bystanders who witnessed the murders, we cannot conclude the evidence is sufficient to sustain the aggravator in the instant case. To find that all murders which occur in a family dwelling inhabited by more than one person always creates a great risk of death to more than one person is too broad an interpretation of this aggravating circumstance. In this case, Appellant did not knowingly create a great risk of death to anyone other than Jennifer Prill. Pennington, 913 P.2d at 1370.

We must now determine what relief is appropriate. This Court has the power to modify Appellant's sentence to life or life without parole ⁵ or remand ⁶ this matter for a third sentencing hearing. 22 O.S.1991, § 1066. We are hesitant to remand this case since errors continue to arise which require reversal and the victim's family must relive this gruesome crime at each sentencing hearing. However, we believe remanding for resentencing is the appropriate remedy since both sentencing juries concluded Appellant should receive the death penalty.

In Poland v. Arizona, 476 U.S. 147, 148, 106 S.Ct. 1749, 1751, 90 L.Ed.2d 123, 128 (1986), the Supreme Court addressed "whether the Double Jeopardy Clause bars a further capital sentencing proceeding when, on appeal from a sentence of death, the reviewing court finds the evidence insufficient to support the only aggravating factor on which the [sentencer] relied, but does not find the evidence insufficient to support the death penalty." The petitioners in Poland were convicted of a double murder arising out of a robbery of a currency courier. Id. at 149, 106 S.Ct. at 1752, 90 L.Ed.2d at 128. At the penalty phase, the State argued the existence of two statutory aggravating circumstances to justify imposition of the death penalty: (1) the murder was committed for pecuniary gain; and (2) the murder was especially heinous, cruel or depraved. Id. The trial judge, acting as sentencer, rejected the "pecuniary gain" circumstance on the theory that the circumstance required proof of a contract killing and there was no proof of...