holding that unless defendant can show bad faith by police, destruction of potentially useful evidence does not constitute due process violation and instruction allowing jury to draw negative inference from destruction of evidence is not warranted
How later courts described this case
- holding that unless defendant can show bad faith by police, destruction of potentially useful evidence does not constitute due process violation and instruction allowing jury to draw negative inference from destruction of evidence is not warranted
- "This Court has held that in a malice murder case the State must prove the aider and abettor personally intended the death of the victim and aided and abetted with full knowledge of the intent of the perpetrator." (quotation omitted)
- stating these *1153 same elements
- stating these same elements
Written by the judges who cited it.
The opinion
LUMPKIN, Judge,
concurs in results.
¶ 1 I concur in the results reached by the Court, however I cannot join in some of the verbiage used or unsupported conclusionary statements.
¶2 In it’s discussion of Proposition III, the Court fails to recognize that co-defendant Ochoa’s access to the crime scene prior to the second trial was due to an accommodation by the State. The Court recognizes that third parties occupied the home at that time and had denied Appellant’s investigators access. The trial court recognized it did not have authority to direct the third parties to allow the defense investigators into the house. Somehow the State was able to secure permission to return to the house to take measurements and prepare a new diagram. While I agree it would have been more prudent for the State to allow the defense investigators for Ochoa the opportunity to confirm the new measurements, it was not error. In addition, this issue was raised by Ochoa at trial, not Appellant. Therefore, he has waived the issue for review on appeal.
¶ 3 The Court’s discussion of Appellant’s role as an aider and abettor seems to disregard our unanimous decision on that issue in Conover v. State, 933 P.2d 904, 914-16 (Okl.Cr.1997). Regretftdly, the issue raised here is a product of one of the “potential ‘time bombs’ ” I referred to in my separate writing in Johnson v. State, 928 P.2d 309, 321-22 (Okl.Cr.1996) (Lumpkin, J. Concurring in Result). Using the standard set out in Conover , I find the evidence sufficient to support the verdict in this case. The Court should follow our jurisprudence and not try to confuse it.
¶4 I also find the facts relating to the aggravator that Appellant knowingly created *27 a great risk of death to more than one person more compelling than related in the opinion. Appellant and his co-defendant, armed with firearms, entered the home of the victims, in a residential neighborhood, in the early morning hours of July 12, 1993. The front door of the residence was kicked in and the victims gunned down in their bedroom. Three children, ages six (6), eleven (11) and fourteen (14) years were in the house. Fortunately, those children did not run into the hallway. One child called 911 and asked for help. She looked out of her bedroom and saw two men, one she later identified as Appellant. Her stepbrother hid under his bed when he heard the shots. He later testified he saw a man shoot his father as he watched from under the bed. Not only does the murder of the two victims support the aggravator, but also the risk of death to the others who were in the home. This evidence relating to the aggravator not only substantiates the death penalty but also clearly outweighs the evidence presented in mitigation. I therefore concur in the result reached by the Court.