Gilbert Vega, Jr. v The State Of Oklahoma

F-2006-110

Filed: Jul. 19, 2007

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Gilbert Vega, Jr. appealed his conviction for First Degree Felony Murder. His conviction and sentence was life imprisonment without the possibility of parole. Judge Johnson dissented. In this case, Vega was found guilty of murder during an attempted robbery that took place in December 2003. The main issue at trial was whether Vega was involved in the crime. A witness, Marilyn Redhat, testified that three men broke into the home, attacked her, and shot the victim, Francisco Hernandez. Evidence against Vega included testimony from his girlfriend, Rachel Prior, who said he went out that night to rob a home and later confessed to her about the crime. There was also DNA evidence found on a gun linked to the murder and DNA from beer bottles near the crime scene that could not exclude Vega. Vega argued that he did not get a fair trial because some evidence presented was misleading, but the court found that the evidence did not unfairly influence the jury. The court upheld the conviction but sent the case back for resentencing because the rules changed after Vega's trial regarding life sentences.

Decision

The conviction for First Degree Murder is hereby AFFIRMED, but the sentence is hereby REVERSED and REMANDED for resentencing. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2007), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there a denial of a fair trial due to the admission of highly prejudicial charts of a boot/bruise comparison into evidence?
• Did plain error occur when jurors were allowed to take the demonstrative boot/bruise comparison charts and the purchased boot with them during deliberations?
• Was evidence of DNA testing from beer bottles collected near the crime scene irrelevant and prejudicial?
• Should the jury have been instructed about the applicability of the 85% rule in Appellant's case?
• Is the claim of excessiveness of the sentence moot following the remand for resentencing?

Findings

• the court did not err in admitting demonstrative evidence of the boot/bruise comparison
• any error regarding the jury taking the boot/bruise comparison charts with them during deliberations was harmless
• the DNA evidence from the beer bottles was relevant and not prejudicial
• the case must be remanded for resentencing
• the issue of excessive sentencing is moot

F-2006-110

Jul. 19, 2007

Gilbert Vega, Jr.

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, PRESIDING JUDGE:

Appellant, Gilbert Vega, Jr., was tried by jury in the District Court of Oklahoma County, Case Number CF-2003-7032, and convicted of First Degree Felony Murder (while in the commission of Attempted Robbery with a Firearm), in violation of 21 O.S.2001, § 701.7(B). The jury set punishment at life imprisonment without the possibility of parole, and the trial judge sentenced Appellant accordingly. Appellant now appeals his conviction and sentence.

Francisco Hernandez was murdered in his south Oklahoma City home on December 18, 2003. The primary question in the trial was whether or not Appellant was involved in the incident that led to Hernandez’s shooting death. At 11:30 p.m. on the night in question, Hernandez, his girlfriend Marilyn Redhat, and his cousin Jaciento were in the home when, according to Redhat, three men with guns broke in, shouting English and Spanish. The men hit Redhat in the head with a gun and kicked her about the chest and body, while continuing to yell. Redhat said one of the men held up pictures of her kids taken from her purse and threatened to harm them if she spoke about the robbery. Beyond that, Redhat recalled little due to the beating she took and the alcohol she’d consumed that night. However, shortly after the incident, she told one officer that one of the men had threatened to rape her anally if she talked.

Rodney Flores lived across the street from the victim. At the time of the incident, Flores was outside working on his car. He heard gunshots coming from Hernandez’s home, then saw three men running from the house to a minivan parked a few houses away. The men jumped inside the minivan and backed away from the crime scene. (Another neighbor also saw these three men running from the home and jumping into a van.) Flores called 911, then went to help Hernandez. Upon entering the home, he found Hernandez and his cousin had been beaten and bound about the hands and feet with duct tape. Hernandez had also been shot and appeared dead. Officers found evidence of a forced entry and a possible robbery (pulled out drawers, opened cabinets, unwrapped foil packages from the freezer).

The evidence connecting Appellant to the crime came primarily from Appellant’s girlfriend Rachel Prior. Prior testified that Appellant, who was unemployed, and his cousin, owner of a minivan, left that night with the stated goal to make some money. Appellant kept two guns in Prior’s bedroom. He returned at about ten p.m., went into the bedroom briefly, then left in a hurry. According to Prior, Appellant returned between 2 and 3 a.m. He awoke her by placing a gun to her head, then began accusing her of cheating. When she twice denied this accusation, Appellant twice fired a round into the ceiling. Appellant later calmed down and told Prior he, his cousin, and a third man had gone in the minivan to rob a home that supposedly had a great deal of drugs and money inside. Appellant thought he might have killed someone. He told Prior that after they’d broken into the home, the man would not say where the drugs and money were, so they beat everyone up. Appellant said he’d kicked the woman so hard that she excreted feces onto his boot, then showed Prior the stain. He told Prior they’d threatened to anally rape the woman if she told anyone. When the man kept staring at his face, Appellant fired a shot, then his accomplices shot the man. They then left in the minivan, driving backwards down the street. Prior later found a pistol inside a red stocking cap in the shed behind her house while cleaning. Her uncle called police, who came and retrieved the gun. Later, Prior told police about what Appellant had told her that night. The gun found at Prior’s home matched bullet casings and a projectile found at the crime scene, and DNA on the gun’s trigger positively matched Appellant’s DNA.

In proposition one, Appellant claims he was denied a fair trial by the admission of highly prejudicial charts of a boot/bruise comparison into evidence. Appellant claims the State was wrongly allowed to make comparisons of a shoe-print shaped bruise found on the decedent to an overlay of a print from a sample boot. Appellant alleges prejudice because the State never made any connection between Appellant and the boot. The boot in question did not belong to Appellant; it had been purchased by a police detective at a local store with the assistance of Appellant’s girlfriend. The evidence at trial indicated the victim had been battered by someone using a pair of Lugz brand boots. Ms. Prior indicated that Appellant owned such a pair of boots and was wearing them on the night in question. When those boots were not recovered, Prior helped pick out a similar boot, as she’d helped Appellant buy the boots from Shoe Carnival. According to Prior, the boots were the same brand and similar to the ones Appellant wore on the night in question, though not necessarily identical. The State argues, and the record indicates, that the purchased boots were offered as demonstrative evidence. That is, no one was claiming that these were the boots used at the crime scene that night. Rather, the boots were used to assist the State in visually presenting its theory of the case. Appellant’s claims of prejudice or misleading the jury on this point are overblown. The admissibility of demonstrative evidence is a question of legal relevance within the sound discretion of the trial court, whose ruling will not be disturbed on appeal absent an abuse of discretion. We find no abuse of that discretion here by using the purchased boot as demonstrative evidence of the boot used in the crimes. Nor do we find the relevance of the boots or comparison charts used by the State’s expert was substantially outweighed by the danger of confusing the issues and misleading the jury. The record does not support a claim that jurors were misled by this rather straightforward evidence. While the comparison charts were not particularly strong evidence of guilt, especially when compared to much stronger DNA and other evidence that clearly linked Appellant to the crimes, they were not misleading, nor were they prejudicial. And finally, Appellant’s bold claim that the science behind this testimony somehow decided the verdict is without any serious merit.

In proposition two, Appellant claims plain error occurred when jurors were allowed to take the demonstrative boot/bruise comparison charts and the purchased boot with them as an exhibit during deliberations. Appellant claims this violated Mitchell v. State, which found plain error when the trial court allowed an expert’s timeline, offered by the State as a demonstrative aid, to be admitted as a regular exhibit and thus taken with the jury into deliberations. The parties spend most of their time here arguing over whether or not those charts (and the boots) qualify as demonstrative aids or as demonstrative evidence or as regular evidence. But we need not decide that question today, as we find any conceivable error was harmless, as no prejudice resulted—even if these items are considered mere demonstrative aids that shouldn’t have been submitted to the jury. The boot and boot/bruise comparisons were a sideshow in this trial, as compared to the main attraction of Prior’s testimony, the murder weapon, and DNA evidence on the recovered gun. The evidence of guilt was strong, and the boot/bruise comparisons cannot be said to have somehow decided this verdict. Besides, Mitchell was reversed for a series of errors, and the demonstrative aid error was therein noted as rather minor.

In proposition three, Appellant complains about evidence of DNA testing from two beer bottles that were collected near the crime scene the day after the murder, near the place where the getaway minivan had been parked. The State tested DNA samples from those bottles and found a DNA mixture that could not exclude Appellant as a donor. The State presented those results during its case in chief, and the testimony was admitted. Appellant claims this evidence was irrelevant and prejudicial because it came under the cloak of science. The State, however, claims the evidence made a pertinent fact more probable than would have been the case without the evidence and that the possibility of prejudice was extremely low. We tend to agree with the State on this point. The State often presents such evidence in criminal trials in order to show a thorough investigation and that it is not attempting to somehow hide the ball. Again, this evidence, as compared to stronger evidence admitted in this trial, did not decide the verdict, tip the scales of justice, or somehow confuse the jury. Further, there was some circumstantial relevance to the evidence in that Appellant could not be excluded as a donor of the DNA. We therefore reject this proposition.

In proposition four, Appellant claims his jury should have been instructed about the applicability of the 85% rule to his case. Appellant was tried before Anderson was published, however, so the trial court and attorneys were not cognizant of the changes that were about to take place. The State claims that Anderson should not affect this case as it was decided after his trial and language in the opinion suggests a prospective only application. This Court, however, has granted similar relief under Anderson to appeals that were pending when the case was handed down and to regular appeals that were filed thereafter. Accordingly, although the conviction in this case stands, the case must be remanded to the District Court for resentencing. Concerning proposition five, excessiveness of the sentence, we find that issue is now moot as per our resolution of proposition four.

DECISION

The conviction for First Degree Murder is hereby AFFIRMED, but the sentence is hereby REVERSED and REMANDED for resentencing. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2007), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

1. Okla. Stat. tit. 21 § 701.7(B)
2. Owens v. State, 1987 OK CR 24, 747 P.2d 959, 961
3. 12 O.S.2001 § 2403
4. Mitchell v. State, 2006 OK CR 20, 136 P.3d 371
5. Harris v. State, 2000 OK CR 20, 13 P.3d 489, 495
6. Foster v. State, 1986 OK CR 19, 714 P.2d 1031, 1036
7. Simpson v. State, 1994 OK CR 40, 876 P.2d 690, 695
8. 12 O.S.2001 § 2401
9. 12 O.S.Supp.2003 § 2403
10. Anderson v. State, 2006 OK CR 6, 130 P.3d 273, 279

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.7 - Felony murder
• Okla. Stat. tit. 12 § 2403 - Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time
• Okla. Stat. tit. 12 § 2401 - General admissibility of relevant evidence
• Okla. Stat. tit. 21 § 701.8 - Sentence of life imprisonment without parole
• Okla. Stat. tit. 22 § 18 - Criminal appeals
• Okla. Stat. tit. 22 § 16 - Rules of court

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

No US Code citations found.

Other citations:

No other rule citations found.

Case citations:

• Owens v. State, 1987 OK CR 24, 747 P.2d 959, 961
• Mitchell v. State, 2006 OK CR 20, 136 P.3d 371
• Harris v. State, 2000 OK CR 20, 13 P.3d 489, 495
• Foster v. State, 1986 OK CR 19, 714 P.2d 1031, 1036
• Simpson v. State, 1994 OK CR 40, 876 P.2d 690, 695
• Anderson v. State, 2006 OK CR 6, 130 P.3d 273, 279