Torres v. State

*1185 OPINION DENYING POST - CONVICTION RELIEF

CHAPEL, Presiding Judge.

T1 Osbaldo Torres was tried by jury, convicted of two counts of first degree murder and other charges, and received two sentences of death in Oklahoma County District Court, Case No. CF-19938-4802. This Court affirmed Torres's convictions for murder, and the United States Supreme Court denied Torres's Petition for Certiorari. 1 This Court denied Torres's first Application for Post-Conviction Relief on August 4, 1998. 2 Torres's application for federal habeas relief was *1186 denied. 3 This Court subsequently denied Torres's second Application for Post-Convietion Relief. 4 On April 29, 2004, Torres filed a Subsequent Application for Post-Convietion Relief The State filed a Response on May 11, 2004. Briefs were also filed on behalf of amict curiae the Government of the Republic of Mexico and international law experts and former diplomats. On May 13, 2004, this Court remanded the case for an evidentiary hearing. The hearing was held on November 29, 2004. The trial court submitted findings of fact and conclusions of law, and both parties filed briefs in response to those findings and conclusions.

T2 While his application for post-convietion relief was pending before this Court, Torres also pursued clemency proceedings. On May 13, 2004, the same day as this Court's Order remanding for an evidentiary hearing, Governor Brad Henry granted Torres clemency and commuted Torres's death sentences to life without the possibility of parole. 5 All issues relating to Torres's sentences of death are thus rendered moot.

13 We remanded for an evidentiary hearing on two issues: (a) whether Torres was prejudiced by the State's violation of his Vienna Convention rights in failing to inform Torres, after he was detained, that he had the right to contact the Mexican consulate; and (b) ineffective assistance of counsel. This Court commends Judge Twyla Mason Gray and counsel on a thorough, well-conducted hearing. Briefly summarized, Judge Gray found that Torres was prejudiced by the violation of his Vienna Convention rights. She did not specifically find Torres's counsel was ineffective, noting that standards for capital counsel may have changed since the time of Torres's trial. . For the reasons discussed below, we agree with Judge Gray's findings but find no relief is required.

$4 In finding that Torres was prejudiced by the violation of his Vienna Convention rights, the trial court used the following three-prong test: (1) whether the defendant did not know he had a right to contact his consulate for assistance; (2) whether he would have availed himself of the right had he known of it; and (8) whether it was likely that the consulate would have assisted the defendant. This test, which has been used by several jurisdictions, was suggested in the specially concurring opinion to this Court's Order remanding the case for an evidentiary hearing. 6 Under this test, prejudice is presumed if all three factors are present. This Court did not formally adopt this test when remanding the case. We adopt it now. In doing so, we describe the evidence required for proof under the third prong of the test. The defendant must present evidence showing what efforts his consulate would have made to assist in his criminal case. The majority of jurisdictions considering the Vienna Convention question have adopted some version of this test. 7 The common- thread in *1187 each is a threshold requirement that a defendant make some showing of how his consulate would have aided him. 8

11 5 We reject any construction of the third prong of the test which would require a defendant to show that the consular assistance would, or could, have made a difference in the outcome of the criminal trial. Appellate review in the criminal justice system necessarily involves balancing uncertainties. In each eriminal trial, a factfinder determines guilt or innocence beyond a reasonable doubt. In most trials there may be some doubt, and some questions may remain unanswered. Very rarely, a conviction may later be shown to be wrongful by subsequent evidence of actual innocence such as DNA testing or a confession by a third party. Also very rarely, an evidentiary or legal error may so obviously inflame a jury's passions as to render its sentencing determination unreliable as a matter of law. More usually, a defendant will present evidence of factual or legal errors which may or may not have affected a jury's decision and which thus cannot be shown to have affected a verdiet or sentence.

T6 The essence of a Vienna Convention claim is that a foreign citizen, haled before an unfamiliar jurisdiction and accused of a crime, is entitled to seek the assistance of his government. Even if that assistance cannot, ultimately, affect the outcome of the proceedings, it is a right and privilege of national citizenship and international law. The issue is not whether a government can actually affect the outcome of a citizen's case, but whether under the Convention a citizen has the opportunity to seek and receive his government's help. This protection extends to every signatory of the Convention, including American citizens. It is often impossible to say whether a particular action in a criminal trial could affect the outcome. However, it is possible to show what particular assistance, if any, a government would offer its citizen defending against a crime in a foreign country. That is the right and privilege safeguarded by the Convention. This Court is unwilling to raise the bar beyond that which the Convention guarantees. If a defendant shows that he did not know he could have contacted his consulate, would have done so, and the consulate would have taken specific actions to assist in his criminal case, he will have shown he was prejudiced by the violation of his Vienna Convention rights.

17 This test for prejudice from a violation of Vienna Convention rights is consistent with the direction of the International Court of Justice decision, Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America ) [Avena ]. 9 Avena noted that the remedy directed in that case, the judicial review we here undertake, should be done "with a view to ascertaining whether in each case the violation of Article 36 com *1188 mitted by the competent authorities caused actual prejudice to the defendant in the process of administration of eriminal justice." 10 The phrase "actual prejudice" can refer only to prejudice flowing from the violation of the purpose of the Convention provision. That purpose is to ensure that a foreign citizen has the opportunity for aid from his or her government in an unfamiliar criminal jurisdiction. Whether or not the aid results in a different case outcome, a citizen must be actually prejudiced when he is denied aid his government would have provided.

18 Reviewing the evidence presented in the evidentiary hearing, as well as the evidence submitted to this Court, we find that, under the unusual cireumstances of this case, with regard to his convictions for first degree murder, Torres has not shown he was actually prejudiced by the State's failure to inform him of his rights under the Vienna Convention. Torres has provided ample evidence that the Mexican government takes its consular obligations to its citizens very seriously, particularly when those citizens are capital defendants in another country. The Mexican government has a tradition of active assistance extending back to the 1920s, and provided extensive assistance to capital defendants in 1998, the year of Torres's arrest. Had the consulate been contacted, it would have monitored Torres's case, consulted with and offered assistance to his attorney, and helped gather evidence, particularly in preparation for the second stage of trial. "[The protection of Mexican nationals who face capital proceedings or capital trials is one of the highest priority of the Mexican Consular representatives. All their efforts are focused on trying to avoid the imposition of the death penalty." 11 Among consular officials' most important duties are the gathering of mitigation evidence and locating mitigating witnesses in Mexico and the United States. After belatedly entering into Torres's case, Mexico hired two bilingual investigators, two gang experts, a mitigation expert and a neu-ropsychiatrist, to assist in developing mitigating evidence for the appellate process. All the evidence presented supports the conclusion that consular assistance, in Torres's particular circumstances, would have focused on obtaining a sentence of less than death. Evidence did not specifically show how consular assistance would have assisted in the guilt phase of the trial.

I 9 Torres clearly showed that the Mexican government would have expended considerable resources on the capital phase of his case. If Torres were still under a capital sentence, this would indeed amount to a showing of prejudice. However, the Governor's grant of clemency in Torres's case ensures that Torres is not subject to the death penalty. Any assistance Mexico could have given in this regard has become moot. Torres did not present evidence showing he was prejudiced in the guilt/innocence stage of trial by the Vienna Convention violation. Under these cireumstances, Torres is not entitled to relief from his convictions, and has already received relief from his capital sentences. No further relief is required.

$10 We also asked the district court to determine whether trial counsel was ineffective. Mary Bane, an experienced capital criminal defense attorney, testified that, in her opinion, trial counsel was ineffective for failing to use a gunshot residue expert, and have the bloodstain evidence tested, to support Torres's claim that his co-defendant shot the victims. 12 However, under Oka-homa law, Torres would be liable for murder even if his co-defendant shot the victims, because the two were acting together. We thus cannot find that counsel's failure to retain a gunshot residue expert and test the blood evidence would have affected the jury's verdict of guilt. That information might have affected the jury's decision to sentence Torres to death. However, as Torres no longer faces the death penalty, that possibility no longer exists. We find that, given the grant of clemency, Torres was not prejudiced by counsel's failure.

*1189 Bane also compared counsel's performance with the standards currently expected of counsel in capital cases. Bane testified that counsel was ineffective for failing to hire an expert on eyewitness identification, to counter the testimony identifying Torres, and for failing to insist that counsel or a representative be present when the State conducted measurements at the scene of the crime. Bane also indicated that counsel should have hired a second chair counsel and an investigator. Bane faulted counsel for waiting until just prior to trial to ask to sever Torres's case from his co-defendant's. She criticized counsel's apparent lack of focus during the proceedings, as shown by erratic lines of questioning and closing argument sections. Bane testified that counsel should have, at the least, objected to some instructions given, and preferably should have submitted instructions herself. On cross-examination, Bane seemed to agree with the prosecutor that many of her criticisms ultimately went to counsel's failure to take actions which, had they been taken, might have resulted in a sentence other than death. Insofar as this was the case, any deficiencies in representation have been remedied by the Governor's grant of clemency.

112 Torres correctly notes that customs of practice for capital defense attorneys have evolved since his trial. During testimony and argument, Torres relied on the American Bar Association guidelines for minimum standards of counsel in capital cases, arguing that trial counsel's performance as described above failed to meet those standards. 13 As early as 1984, the United States Supreme Court recognized the ABA Standards for Criminal Justice for defense counsel, noting that these are only guidelines and declining to adopt them as a set of formal rules of representation. 14 We also recognize the utility of guidelines for effective capital counsel. However, we will not find that capital counsel was per se ineffective simply because counsel's representation differed from current capital practice customs, even where the differences are significant. A defendant must still show that he was prejudiced by counsel's representation. 15 Torres has not made this showing. Several witnesses testified that, based on objective review and comparison with similar cases and current practice, they felt counsel's actions were inadequate. This alone does not show prejudice. Each witness stated counsel should have taken the steps described by Ms. Bane in order to be effective. However, no witness presented any evidence suggesting that these or any other particular steps by trial counsel would have affected the trial's outcome. We cannot find trial counsel ineffective on this record. 16 We also find that, insofar as his convictions for first degree murder are concerned, trial counsel was not ineffective for failing to raise the Vienna Convention violation, based on our discussion above, as Torres has not shown prejudice from that failure.

113 After a thorough evidentiary hearing, the trial court found that Torres had been prejudiced by the violation of his Vienna Convention rights, and declined to find whether trial counsel had been ineffective. Upon review, this Court concludes, first, that Torres suffered actual prejudice regarding his Vienna Convention claim only in the context of his capital sentence. The record shows that the Mexican government would have, and subsequently has, offered Torres assistance in finding and presenting mitigating evidence in order to avoid the imposition *1190 of the death penalty. Second, we find that, while evidence does not show trial counsel's acts or omissions would have affected the jury's determination of guilt, trial counsel's performance might have affected the jury's decision to impose death. However, Torres no longer faces a sentence of death. The Oklahoma Constitution and statutes vest in the Governor the power to both commute and impose restrictions on sentences after criminal conviction. 17 The Governor exercised that power in this case. By Executive Order he granted clemency with the condition that Torres shall not be eligible to be considered for parole for the remainder of his life. 18 A commuted sentence has the same legal effect as though the sentence had originally been for the commuted term. 19 We find that Torres is not entitled to relief from his convictions for murder either as a result of Vienna Convention violations or through counsel's actions. We find that Torres was actually prejudiced by the failure to inform him of his rights under the Vienna Convention, and by counsel's acts or omissions which might have affected his sentencing. However, the Executive Branch grant of clemency and limitation of Torres's sentence to life without the possibility of parole renders these issues moot. Consequently, no relief is required. Torres's application for post-conviction relief is denied.

DECISION

114 Torres's application for post-convietion relief is DENIED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App.(2005), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

C. JOHNSON and A. JOHNSON, JJ.: concur.

LUMPKIN, V.P.J.: concur in part/dissent in part.

. Torres v. State, 1998 OK CR 40 , 962 P.2d 3 , cert. denied, 525 U.S. 1082 , 119 S.Ct. 826 , 142 L.Ed.2d 683 (1999).

. Torres v. State, Case No. PCD-1998-213 (Ok. Cr. August 4, 1998) (Order not for publication).

. Torres v. Mullin, 317 F.3d 1145 (10th Cir.2003), cert. denied, 540 U.S. 1035 , 124 S.Ct. 562 , 157 L.Ed.2d 454 .

. Torres v. State, 2002 OK CR 35 , 58 P.3d 214 , cert. denied, 538 U.S. 928 , 123 S.Ct. 1580 , 155 L.Ed.2d 323 (2003).

. Okla. Const. art. VI, § 10; 57 O.S.2001, § 332.

. Torres v. State, No.2004-442 (Okl.Cr. May 13, 2004) (not for publication)(Chapel, J., specially concurring). See also People v. Preciado-Flores, 66 P.3d 155, 161 (Colo.App.2002); State v. Lopez, 633 N.W.2d 774, 783 (Iowa 2001); Zavala v. State, 739 N.E.2d 135, 142 (Ind.App.2000); State v. Cevallos-Bermeo, 333 N.J.Super. 181 , 754 A.2d 1224, 1227 (A.D.2000); U.S. v. Chaparro-Alcantara, 37 F.Supp.2d 1122, 1126 (C.D.Ill.1999); U.S. v. Esparza-Ponce, 7 F.Supp.2d 1084, 1097 (S.D.Cal.1998); U.S. v. Villa-Fabela, 882 F.2d 434, 440 (9th Cir.1989), overruled on other grounds, U.S. v. Proa-Tovar, 975 F.2d 592 (9th Cir.1992). The test was articulated in U.S. v. Rangel-Gonzales, 617 F.2d 529, 533 (9th Cir.1980). Finding that the defendant had shown he was prejudiced by deportation proceedings which included a Vienna Convention violation, the Court found defendant had met "his initial burden of going forward with evidence that he did not know of his right to consult with consular officials, that he would have availed himself of that right had he known of it, and that there was a likelihood that the contact would have resulted in assistance to him in resisting deportation."

. See, e.g., State v. Byron 683 N.W.2d 317, 323-24 (Minn.App.2004); Hernandez v. U.S., 280 F.Supp.2d 118, 124-25 (S.D.N.Y.2003); Preciado-Flores, 66 P.3d at 161 ; Cevallos-Bermeo, 754 A.2d at 1228 ; U.S. v. Briscoe, 69 F.Supp.2d 738, 747 (D.Virgin Islands 1999); Murphy v. Netherland, 116 F.3d 97, 100-01 (4th Cir.1997); Lopez, *1187 633 N.W.2d at 783 ; Esparza-Ponce, 7 F.Supp.2d at 1097 . See also Darling v. State, 808 So.2d 145, 166 (Fla.2002). In U.S. v. Lombera-Camorlinga, 170 F.3d 1241 (9th Cir.1999), the Ninth Circuit held a defendant has the initial burden to show prejudice resulting from a Vienna Convention violation. After that case was remanded for that determination, the opinion was withdrawn and the case was resolved on rehearing by U.S. v. Lombera-Camorlinga, 206 F.3d 882 (9th Cir.), cert. denied, 531 U.S. 991 , 121 S.Ct. 481 , 148 L.Ed.2d 455 (2000), which determined suppression was not an appropriate remedy whether or not prejudice was shown. Several of these cases adopt or imply a requirement that a defendant show he was actually prejudiced-that is, that the outcome of the case could or would have been different-as a result of the Convention violation. As we explain infra, we reject this construction.

. Many cases discuss the appropriate remedy for Vienna Convention violations in the context of motions to suppress evidence or dismiss an indictment where a defendant's Vienna Convention rights were violated. Courts discussing this issue have concluded that the Vienna Convention is equivalent to a statute rather than a constitutional provision, and that neither the treaty itself nor any statute authorize these remedies. Given this result, the courts either fail to reach the question of prejudice or treat it as dicta. See, e.g., U.S. v. Duarte-Acero, 296 F.3d 1277 (11th Cir.2002); People v. Preciado-Flores, 66 P.3d 155 (Colo.2002); U.S. v. Jimenez-Nava, 243 F.3d 192 (5th Cir.2001); U.S. v. Page, 232 F.3d 536 (6th Cir.2000); U.S. v. Lawal, 231 F.3d 1045 (7th Cir.2000), cert. denied, 531 U.S. 1182 , 121 S.Ct. 1165 , 148 L.Ed.2d 1024 (2001); U.S. v. Lombera-Camorlinga, 206 F.3d 882 (9th Cir.2000); U.S. v. Li, 206 F.3d 56 (1st Cir.2000); U.S. v. Raven, 103 F.Supp.2d 38 (D.Mass.2000); U.S. v. Alvarado-Torres, 45 F.Supp.2d 986 (S.D.Cal.1999), aff'd, 230 F.3d 1368 (9th Cir.2000).

. 2004 I.C.J. 128 (Judgment of March 31, 2004).

. Avena, 2004 I.C.J. 128 at ¶ 121.

. Testimony of Victor Vribe, Director for Foreign Litigation as the Mexican Minister of Foreign Relations. Tr. 48.

. We note the State also argued that Torres's co-defendant shot the victims.

. ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, § 4.1(A)(1)(Rev.Ed.2003).

. Strickland v. Washington, 466 U.S. 668, 688-89 , 104 S.Ct. 2052, 2065 , 80 L.Ed.2d 674 (1984).

. Wiggins v. Smith, 539 U.S. 510, 521 , 123 S.Ct. 2527, 2535 , 156 L.Ed.2d 471 (2003); Williams v. Taylor, 529 U.S. 362, 390-91 , 120 S.Ct. 1495, 1511-12 , 146 L.Ed.2d 389 (2000); Strickland, 466 U.S. at 687 , 104 S.Ct. at 2064 . In Valdez v. State, 2002 OK CR 20 , 46 P.3d 703, 710 , we found trial counsel was ineffective because counsel's failure to inform Valdez of his Vienna Convention rights resulted in prejudice to the defendant, without which a jury reasonably might have imposed a sentence other than death.

. Torres raised claims of ineffective assistance on direct appeal and post-conviction, which were denied. Rather than apply procedural bar to the claim raised in Torres's Subsequent Application, we remanded the issue for an evidentiary hearing in the context of the issues raised by Avena.

. Okla. Const. art. VI, § 10; 57 O.S.2001, § 332.

. Executive Order 2004-17, May 13, 2004. The record before us clearly indicates that Torres received two separate death sentences for two separate counts of first degree murder. The Executive Order refers to a single death sentence. However, the record is also clear that the Pardon and Parole Board submitted recommendations for clemency as to both sentences, and the intent of the commutation was to commute both of Torres's death sentences. Moreover, in any event, as our opinion indicates, Torres was actually prejudiced in the sentencing proceedings by virtue of the State's failure to provide him notice under the Vienna Convention. Had the Governor not granted clemency, this Court would have been required to grant relief on that claim.

. Okla. Const. art. VI, § 10; Hemphill v. State, 1998 OK CR 7 , 954 P.2d 148, 151 ; Ex Parte Denton, 69 Okla.Crim. 204 , 101 P.2d 276, 278 (1940); Ex Parte Warren, 39 Okla.Crim. 348 , 265 P. 656, 657 (1928).