Remigio Rivas v The State Of Oklahoma

F 2003-648

Filed: Jun. 6, 2003

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Remigio Rivas appealed his conviction for First Degree Rape by Instrumentation and Lewd Acts with a Child under Sixteen. Conviction and sentence were affirmed, but modified to seventy-five years for each count, to run concurrently. Judge Lumpkin dissented.

Decision

The convictions on Counts 1 - 4 in Oklahoma County District Court, Case No. CF 2001-5709, are hereby AFFIRMED, but the sentences are MODIFIED to Seventy-Five (75) years imprisonment on each Count, to run concurrently.

Issues

• Was the trial court impartial in questioning a State's child witness in chambers without the presence of the parties and the child's father?
• Did the prosecution present improper evidence and make inflammatory arguments that infringed on Mr. Rivas' right to remain silent?
• Did the admission of other crimes evidence prejudice the jury and deprive Appellant of a fundamentally fair trial?
• Did irrelevant, improper, and misleading evidence result in an inflated sentence for Mr. Rivas?
• Was Mr. Rivas denied a fair trial due to biased jurors remaining on the jury and ineffective assistance of counsel in challenging them?
• Did ineffective assistance of counsel deny Mr. Rivas' right to a fundamentally fair trial?
• Did the cumulative effect of the alleged errors deprive Appellant of a fair trial?

Findings

• No relief required on Proposition One.
• No relief is warranted on Proposition Two.
• The admission of other crimes evidence did not deprive Appellant of a fundamentally fair trial.
• Relief granted on Proposition Four; sentences modified from 100 years to 75 years imprisonment.
• Proposition Five is denied; no biased jury or ineffective assistance of counsel demonstrated.
• No additional errors warrant relief.
• Convictions affirmed; sentences modified to 75 years imprisonment on each count, to run concurrently.

F 2003-648

Jun. 6, 2003

Remigio Rivas

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

JOHNSON, PRESIDING JUDGE: Appellant, Remigio Rivas, was convicted by a jury in Oklahoma County District Court, Case No. CF 2001-5709, of First Degree Rape by Instrumentation, in violation of 21 O.S.2001, §§ 1111, 1111.1, and 1114 (Count 1), and of Lewd Acts with a Child under Sixteen, in violation of 21 O.S.2001, § 1123 (Counts 2-4), after prior conviction a felony. Jury trial was held on April 21st – April 24th, 2003, before the Honorable Tammy Bass-Jones, District Judge. The jury set punishment at One Hundred (100) years imprisonment on each count. Judgment and Sentence was imposed on June 6, 2003, in accordance with the jury’s verdict, and Judge Bass-Jones ordered the sentences be served consecutively. Thereafter, Appellant filed this appeal.

Appellant raises seven propositions of error:
1. The trial court abandoned the role of impartial judge and became an advocate by questioning a State’s child witness in chambers after excluding the parties and the child’s father;
2. The prosecution presented improper evidence and made inflammatory argument including comments upon Mr. Rivas’ right to remain silent, contrary to his Fifth Amendment rights guaranteed by the Oklahoma and United States Constitutions;
3. Admission of other crimes evidence prejudiced the jury, deprived Appellant of a fundamentally fair trial, and warrants reversal of the conviction or modification of the sentence;
4. Irrelevant, improper, and misleading evidence resulted in an inflated sentence;
5. Mr. Rivas was denied a fair trial before an unbiased jury by the trial court’s plain error in allowing biased jurors to remain on the jury and defense counsel’s ineffectiveness in failing to properly challenge all biased jurors for cause and preserve the full complement of peremptory challenges;
6. Ineffective assistance of counsel denied Mr. Rivas’ right to a fundamentally fair trial; and,
7. The cumulative effect of all the errors addressed above deprived Appellant of a fair trial.

After thorough consideration of the propositions raised, the Original Record, transcripts, briefs and arguments of the parties, we have determined Appellant’s conviction and sentence should be affirmed, but the sentences modified as set forth below. Nothing in the trial court’s conduct was so grossly prejudicial that Appellant was deprived of a fundamentally fair trial and no relief is required on Proposition One. Peters v. State, 1986 OK CR 169, 1 8, 727 P.2d 1386, 1388. Prosecutorial questions and argument relating to the silence of family members was not an improper comment on Appellant’s right to remain silent. Slaughter v. State, 1997 OK Cr 78, I 124, 950 P.2d 839, 872 (right to remain silent is a personal right which cannot be asserted on behalf of another).

The prosecutor’s comments on Appellant’s access to witnesses and evidence were permissible and argument relating to reasonable doubt was not error. Pickens v. State, 2001 OK CR 3, I 39, 19 P.3d 866, 879, cert. denied, 536 U.S. 961, 122 S.Ct. 2668, 153 L.Ed.2d 842 (2002); Phillips v. State, 1999 OK CR 38, 9 22, 989 P.2d 1017, 1028. The prosecutor did not engage in improper vouching. McElmurry v. State, 2002 OK CR 40, I 136, 60 P.3d 4, 31. Trial counsel’s objection to improper argument relating to Appellant’s lack of admission of guilt was sustained and no admonishment was requested. This Court will not reverse a conviction for prosecutorial misconduct unless the cumulative effect of such conduct deprived the defendant of a fair trial. Pickens, 2001 OK CR 3, I 44, 19 P.3d at 881. No relief is warranted on Proposition Two.

The admission of other crimes evidence did not deprive Appellant of a fundamentally fair trial. See e.g. Huskey v. State, 1999 OK CR 3, I 3, 989 P.2d 1, 3; Pickens v. State, 2001 OK CR 3, I 21, 19 P.3d at 876 (admissibility of evidence is within the discretion of the trial judge and reversal is not warranted absent a clear abuse of discretion). We find merit to Proposition Four. State’s Exhibits 2 and 4 referred to a prior felony conviction which should not have been disclosed to the jury. State’s Exhibit 3 was irrelevant as it was the wrong docket sheet. Trial counsel’s failure to object to the admission of these exhibits or his failure to request the exhibits be redacted fell below an objective standard of reasonableness as there was no valid reason for putting this prejudicial information before the jury during second stage proceedings. Evidence of an earlier prior conviction likely contributed in some form to the jury’s imposition of punishment and we cannot say with confidence that it did not. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Accordingly, we grant relief on Proposition Four and hereby modify each of Counts 1-4 from one hundred (100) years imprisonment to seventy-five (75) years imprisonment.

Proposition Five is denied. The record does not demonstrate Appellant was tried by a biased jury or that trial counsel was ineffective for failing to challenge certain jurors. The trial court properly denied the request that Juror Callaway be excused for cause. Harris v. State, 2004 OK CR 1, I 18, 84 P.3d 731, 742 (judging the credibility of potential jurors’ promises to be fair and impartial is left to the trial court); see also Hawkins v. State, 1986 OK CR 58, 9 6, 717 P.2d 1156, 1158; Hanson v. State, 2003 OK CR 12, I 11, 72 P.3d 40, 48. Overall, trial counsel’s performance was reasonable and he provided adequate assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). However, as noted in Proposition Four, we can find no valid reason for trial counsel’s failure to object to the irrelevant and prejudicial evidence offered by the State to prove Appellant’s prior conviction. We modify as previously noted, and no further relief on this proposition of error is required. We have granted relief on the error identified in Proposition Four. No additional errors were identified which, individually or cumulatively, warrant relief. Ashinsky v. State, 1989 OK CR 59, I 31, 780 P.2d 201, 209.

DECISION

The convictions on Counts 1 – 4 in Oklahoma County District Court, Case No. CF 2001-5709, are hereby AFFIRMED, but the sentences are MODIFIED to Seventy-Five (75) years imprisonment on each Count, to run concurrently.

APPEARANCES AT TRIAL

JOHN ALBERT
ATTORNEY AT LAW
204 NORTH ROBINSON
P.O. BOX 926
NORMAN, OK 73070

LANCE PHILLIPS
ATTORNEY AT LAW
ONE N. HUDSON, SUITE 700
OKLAHOMA CITY, OK 73102
ATTORNEY FOR APPELLANT

KEN STONER
W.A. DREW EDMONDSON
LYNN LOFTIS
ATTORNEY GENERAL OF OKLAHOMA
ASST. DISTRICT ATTORNEYS

KELLYE BATES
320 ROBERT S. KERR, SUITE 505
OKLAHOMA CITY, OK 73102

112 STATE CAPITOL BUILDING
OKLAHOMA CITY, OK 73105
ATTORNEYS FOR STATE

OPINION BY: JOHNSON, P.J.
LILE, V.P.J.: CONCURS
LUMPKIN, J.: CONCURS
CHAPEL, J.: CONCURS
STRUBHAR, J.: CONCURS

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Footnotes:

1. Okla. Stat. tit. 21 § 1111
2. Okla. Stat. tit. 21 § 1111.1
3. Okla. Stat. tit. 21 § 1114
4. Okla. Stat. tit. 21 § 1123
5. Peters U. State, 1986 OK CR 169, 1 8, 727 P.2d 1386, 1388.
6. Slaughter v. State, 1997 OK Cr 78, I 124, 950 P.2d 839, 872.
7. Pickens v. State, 2001 OK CR 3, I 39, 19 P.3d 866, 879.
8. Phillips v. State, 1999 OK CR 38, 9 22, 989 P.2d 1017, 1028.
9. McElmurry U. State, 2002 OK CR 40, I 136, 60 P.3d 4, 31.
10. Huskey v. State, 1999 OK CR 3, I 3, 989 P.2d 1, 3.
11. Pickens v. State, 2001 OK CR 3, I 21, 19 P.3d at 876.
12. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).
13. Harris U. State, 2004 OK CR 1, I 18, 84 P.3d 731, 742.
14. Hawkins v. State, 1986 OK CR 58, 9 6, 717 P.2d 1156, 1158.
15. Hanson U. State, 2003 OK CR 12, I 11, 72 P.3d 40, 48.
16. Ashinsky v. State, 1989 OK CR 59, "I 31, 780 P.2d 201, 209.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1111 (2001) - First Degree Rape
• Okla. Stat. tit. 21 § 1111.1 (2001) - Rape by Instrumentation
• Okla. Stat. tit. 21 § 1114 (2001) - Rape of a child
• Okla. Stat. tit. 21 § 1123 (2001) - Lewd Acts with a Child
• Okla. Stat. tit. 21 § 701.8 (2011) - Sentencing for certain felonies

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:

• Peters v. State, 1986 OK CR 169, 1 8, 727 P.2d 1386, 1388.
• Slaughter v. State, 1997 OK Cr 78, I 124, 950 P.2d 839, 872.
• Pickens v. State, 2001 OK CR 3, I 39, 19 P.3d 866, 879, cert. denied, 536 U.S. 961, 122 S.Ct. 2668, 153 L.Ed.2d 842 (2002).
• Phillips v. State, 1999 OK CR 38, I 22, 989 P.2d 1017, 1028.
• McElmurry v. State, 2002 OK CR 40, I 136, 60 P.3d 4, 31.
• Huskey v. State, 1999 OK CR 3, I 3, 989 P.2d 1, 3.
• Harris v. State, 2004 OK CR 1, I 18, 84 P.3d 731, 742.
• Hawkins v. State, 1986 OK CR 58, I 6, 717 P.2d 1156, 1158.
• Hanson v. State, 2003 OK CR 12, I 11, 72 P.3d 40, 48.
• Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).
• Ashinsky v. State, 1989 OK CR 59, I 31, 780 P.2d 201, 209.