Salazar v. State

• Decision Date: 30 December 1998
• Docket Number: No. F-96-1496,F-96-1496
• Citation: 1998 OK CR 70,973 P.2d 315
• Parties: 1998 OK CR 70 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 315

973 P.2d 315

1998 OK CR 70

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

No. F-96-1496.

Court of Criminal Appeals of Oklahoma.

Dec. 30, 1998.

Rehearing Denied Feb. 10, 1999.

An Appeal from the District Court of Comanche County. Allen McCall, District Judge.

¶52 Appellant, Maximo Lee Salazar, was tried by a jury and convicted of one count of First Degree Murder and one count of First Degree Burglary in the District Court of Comanche County, Case No. CRF-87-460. Appellant's convictions were affirmed in Salazar v. State, 1993 OK CR 21, 852 P.2d 729, but his sentence of death was vacated and the matter remanded for resentencing. A resentencing proceeding was conducted on October 28-31, 1996. The jury found the existence of two aggravating circumstances and sentenced Appellant to death. Appellant's sentence of death is AFFIRMED.

Mark Barrett and Steven Hess, OK Indigent Defense System, Captal Trial Division, Norman, Oklahoma, for defendant.

Robert Schulte, District Attorney, Lawton, Oklahoma, for the state.

William H. Luker, Division Chief, Capital Direct Appeals Division, Norman, OK, for appellant.

W.A. Drew Edmondson, Attorney General of Oklahoma, Williams L. Humes, Assistant Attorney General, Oklahoma City, OK, for appellee.

OPINION

JOHNSON, Judge.

¶1 Maximo Lee Salazar was tried by a jury and convicted of one count of First Degree Murder (21 O.S.Supp.1982, § 701.7(A)) and one count of First Degree Burglary (21 O.S.1981, § 1431) in the District Court of Comanche County, Case No. CRF-87-460. The jury found the existence of three aggravating circumstances ¹ and recommended death for the murder and ten (10) years imprisonment for the burglary. In Salazar v. State, 1993 OK CR 21, 852 P.2d 729, this Court affirmed Appellant's convictions for murder and burglary, but vacated the sentence of death and remanded the case for resentencing. ²

¶2 In November of 1994, a new sentencing proceeding was conducted before the Honorable Allen McCall. See 21 O.S.Supp.1993, § 701.10a. The jury again returned a sentence of death, but only found the existence of one aggravating circumstance--the defendant knowingly created a great risk of death to more than one person. In Salazar v. State, 1996 OK CR 25, 919 P.2d 1120, this Court reversed and remanded the case for a third sentencing hearing finding the evidence was insufficient to support the sole aggravating factor on which the sentencer relied.

¶3 A third sentencing proceeding was conducted before the Honorable Allen McCall on October 28-31, 1996. Finding the existence of two aggravating circumstances--the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution; and Salazar posed a continuing threat to society--the jury again returned a sentence of death. From this Judgment and Sentence, Salazar appeals.

¶4 The facts of this case are set out in detail in Salazar, 852 P.2d at 731-32. In summary, this case involves the brutal stabbing murder of nine-year-old Jennifer Prill. On August 24, 1987, Salazar was burglarizing the Prill residence in Cache, Oklahoma. Jennifer awoke and found Salazar in the living room. Salazar instructed Jennifer to return to her bedroom where he followed her and fatally stabbed her twice in the neck. Thereafter, Salazar fled the house taking approximately six to eight dollars in cash and a set of car keys. Salazar was subsequently arrested a few weeks later and confessed to the murder.

I. DOUBLE JEOPARDY

¶5 In his second proposition of error, Salazar contends his constitutional protections against double jeopardy and his rights to due process of law and a fair and reliable sentencing proceeding have been violated. Salazar maintains that all of the aggravating circumstances alleged against him in the first resentencing were rejected on the grounds of insufficient evidence. Under these circumstances, Salazar asserts his second resentencing violated his rights under the Fifth, Eighth and Fourteenth Amendments of the United States Constitution and Article II, Sections 7, 9 and 21 of the Oklahoma Constitution.

¶6 As previously discussed, the State alleged three aggravating circumstances at the first resentencing proceeding. The jury rejected two of the three aggravating circumstances, and based its verdict solely on the "great risk of death to more than one person" aggravator. On appeal, this Court found the evidence was insufficient to support this aggravator. In determining whether the matter could be remanded for yet another sentencing proceeding, this Court thoroughly addressed the Supreme Court's decision in Poland v. Arizona, 476 U.S. 147, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986). The Court concluded:

[T]hat if either the trial court or a reviewing court finds that, after removal of any infirm factors, the residual evidence offered by the state at the sentencing proceeding will not support a death sentence, then the defendant has been acquitted of the death penalty and jeopardy precludes any further sentencing proceedings seeking a death verdict. However, if there is evidence which supports other statutory aggravating circumstances, the case may be remanded and a death verdict may be sought. Put simply, when there is evidence of aggravating circumstances in the record and error requires reversal, the slate is wiped clean and a defendant may be subjected to any punishment authorized by law including death.

Salazar, 919 P.2d at 1127 (footnote omitted). Finding evidence in the record to support both the "continuing threat" aggravator and the "avoid arrest or prosecution" aggravator, this Court remanded the case for a third sentencing proceeding.

¶7 While Salazar acknowledges this Court's ruling, he contends the Court's remand decision was contrary to our prior decisions in Crawford v. State, 1992 OK CR 62, 840 P.2d 627, 643; Cheney v. State, 1995 OK CR 72, 909 P.2d 74, 83; and Perry v. State, 1995 OK CR 20, 893 P.2d 521, 535-37. He further asserts the ruling violates his right to equal protection of the law. We disagree. The Court's analysis and application of Poland in Salazar, 919 P.2d at 1127, represents this Court's current position on this issue. Thus, Salazar's equal protection argument fails. See Stafford v. State, 1990 OK CR 74, 800 P.2d 738, 740-41, cert. denied, 499 U.S. 927, 111 S.Ct. 1328, 113 L.Ed.2d 260 (1991). Further review of Salazar's double jeopardy claim is barred by the doctrine of res judicata.

II. JURY SELECTION

¶8 In his eighth proposition of error, Salazar contends the trial court committed reversible error when it refused to excuse prospective juror Francois for cause. During voir dire, juror Francois indicted that she could not consider the sentence of life with the possibility of parole. Upon further questioning by both the State and Salazar, juror Francois unequivocally stated on numerous occasions that she could consider all three punishment options. She further stated that she was not predisposed to any one punishment. Thereafter, defense counsel passed juror Francois for cause. ³ Under these circumstances, this issue has not been properly preserved for appellate review. Moreover, Salazar has failed to demonstrate that the trial court abused its discretion when it refused to excuse jury Francois for cause. See Lewis v. State, 1978 OK CR 123, 586 P.2d 81, 82.

¶9 Salazar argues in his ninth proposition of error that the prosecutor failed to sufficiently demonstrate a neutral reason for his peremptory challenge against a minority juror, Eric Gilder. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). To assert a Batson claim, a defendant must make a primia facie showing that the prosecutor exercised peremptory challenges on the basis of race. Neill v. State, 1994 OK CR 69, 896 P.2d 537, 546, cert. denied, 516 U.S. 1080, 116 S.Ct. 791, 133 L.Ed.2d 740 (1996). After this requisite showing has been made, the burden shifts to the prosecutor to articulate a race neutral explanation related to the case for striking the juror in question. Neill, 896 P.2d at 546. The trial court must then determine whether the defendant has carried his burden of proving purposeful discrimination. Id.

¶10 In response to juror Gilder's removal from the jury panel, defense counsel entered the following objection:

Your Honor, the State has used two of it's (sic) three challenges to excuse minorities on the panel, there are only three recognizable minorities. We allege that it appears to be a pattern of excusing minorities from the jury panel and this is a violation--in violation of Mr. Salazar's rights....

The prosecutor responded to defense counsel's allegations by first explaining why he had removed juror Hines from the jury. He then explained that he had decided to remove juror Gilder because he was wearing "a gold tab earring in each ear," was approximately the same age as Salazar, and had been sleeping in the back of the courtroom during the morning session. The trial court found that no pattern of excluding minorities had been shown. He further found the prosecution had articulated "valid reasons" for the dismissal of juror Gilder.

¶11 There will seldom be much evidence bearing on the issue of whether the prosecutor's race-neutral explanation for a peremptory challenged should be believed. See Neill, 896 P.2d at 547. The best evidence often will be the demeanor of the attorney who exercises the challenge. "[E]valuation of the prosecutor's state of mind based on demeanor and credibility lies 'peculiarly within a trial judge's province.' " Neill, 896 P.2d at 547 quoting Hernandez v. New York, 500 U.S. 352, 365, 111 S.Ct. 1859, 1869, 114 L.Ed.2d 395, 409 (1991). "The trial court's decision on the issue of discriminatory intent will not be overturned unless we are convinced that the determination is clearly erroneous." Id. Salazar has failed to demonstrate the trial court's ruling was erroneously made. Thus, this allegation of error is denied.

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