Musonda v. St., 2019 OK CR 1
Trial court properly denied defense request for discovery of reports or statements of prosecution expert psychologist consulted by, but never called as a witness for, prosecution. The Criminal Discovery Code exempts legal work product from discovery. 22 O.S.2021, § 2002(E)(3). The exemption is not absolute, but prosecutor’s conversations with expert who was never retained, or endorsed as a witness, who reviewed defense expert notes but never examined the defendant was work product. The State acknowledged its duty to disclose exculpatory evidence, and Stated that the consultation produced no exculpatory information. Trial court did not plainly err when it conducted no in camera review of expert’s findings for anything exculpatory. No request for review was made, and mere speculation on appeal is insufficient.
White v. St., 2019 OK CR 2
Warrantless swabbing of an arrestee’s face and hands for gunshot residue was reasonable and proper search incident to arrest, by which lawfully arrested suspect and any area in his immediate control may be searched to prevent danger to the officers or others and prevent destruction of evidence. Restitution order of $4,966 to Crime Victims Compensation Fund contains no indication how figure was calculated, and is vacated.
Thompson v. St., 2019 OK CR 3
Sexual assault victim’s out-of-court statements to SANE nurse that defendant committed numerous sex crimes against her were made for the primary purpose of obtaining treatment and were non-testimonial under Crawford. Exam was in emergency room; a portion of exam was devoted to medical issues; law enforcement was not involved; the nurse was a professional for whom evidence collection was secondary. Despite investigative component of exam, statements were admissible under medical diagnosis hearsay exception, and were non-testimonial.
Truskolaski v. St., 2019 OK CR 4
Reversed denial of post-conviction relief, holding that petitioner’s filing and litigation of federal habeas corpus after direct appeal, but before seeking state post conviction relief, had no bearing on whether claims were cognizable. The issues that can be raised in state post-conviction are those which (1) were not and could not have been raised on direct appeal; and (2) support a conclusion that the outcome of the trial would have been different but for the errors or that the defendant is factually innocent. Federal habeas corpus do not constitute a prior proceeding which raises the procedural bar to claims raised in second or subsequent post-conviction proceeding.
Conroy-Perez v. St., 2019 OK CR 5
Reversed revocation of suspended sentence, holding appellant’s evidence of his inability to pay DA probation fees because of personal injury required further findings, including a determination of whether appellant carried his burden to show his admitted failure to pay was not willful due to inability to pay despite good faith efforts to do so.
Stewart v. St., 2019 OK CR 6
Affirmed conviction for DUI manslaughter, holding that the warrantless seizure of an incriminating blood sample, authorized by 47 O.S.2021, § 10-104(B), was incompatible with Missouri v. McNeely, 133 S.Ct. 1552, 1556 (2013), and violated the Fourth Amendment. The Court overruled its recent prior cases upholding this statute in Cripps v. St., 2016 OK CR 14, ¶ 8, Bemo v. St., 2013 OK CR 4, Sanders v. St., 2002 OK CR 42, and Guest v. St., 2002 OK CR 5. Seizing officer’s good faith reliance on statute precluding application of the exclusionary rule under Illinois v. Krull, 107 S.Ct. 1160 (1987).
Martinez v. St., 2019 OK CR 7
Denied post-conviction relief to petitioner convicted of murder and 2 counts of shooting with intent to kill as a juvenile, finding that consecutive, 85% sentences of life and a total of 30 years did not violate the Eighth Amendment as interpreted in Miller v. Alabama, 132 S.Ct. 2455, (2012) and Montgomery v. Louisiana, 577 U.S. ___, 136 S.Ct. 718 (2016). Sentences would be analyzed separately rather than cumulatively to determine whether each one denies a realistic opportunity to obtain release in juvenile’s lifetime.
Sears v. St., 2019 OK CR 8
Affirmed revocation of a suspended sentence. Revocation was not invalid because the hearing did not occur within 20 days of arraignment on the petition and plea of not guilty, as required by 22 O.S.2021, § 991b(A). A defendant cannot acquiesce in delay, or request a continuance, then obtain reversal under 20-day time limitation. Grimes v. St., 2011 OK CR 16, ¶ 7, 251 P.3d 749, 753. The Court remanded with instructions for the trial court to address claim that the court had misstated the amount of time served when granting appellant credit. The Court would no longer no longer require an appellant to file an additional pleading in trial court requesting an order nunc pro tunc to correct an error in time calculation.
Johnson v. Elliott, 2019 OK CR 9
Granted writ of prohibition against the trial court’s denial of a jury in re-sentencing after the petitioner was granted relief from his life without parole sentence under Miller v. Alabama, 567 U.S. 460 (2012). The trial court’s conclusion that petitioner waived his right to jury sentencing when he pled guilty years ago is contrary to Stevens v. St., 2018 OK CR 11, ¶¶ 31, 38-40, 422 P.3d 741, 749-751. A jury is mandatory under § 929© if requested within 20 days of remand for re-sentencing. Section 929(B) allows the trial court to impanel jury using its discretion. Because the trial court erred in denying jury on grounds of waiver, the Court remanded for a discretionary determination whether to seat a jury under § 929(B).
St. v. Wallace, 2019 OK CR 10
Reversed suppression of evidence from defendant’s cell phone and remanded. The initial warrantless seizure and accessing of phone was reasonable because society’s interest in preventing destruction of evidence can supersede for a limited period a possessory interest in property, if there is probable cause to believe property is associated with crime. The investigator had probable cause to believe the phone contained evidence of child abuse and neglect. He seized the phone and put it in protective mode to prevent deletion of evidence, without accessing personal messages or data. The trial court also erred in finding the subsequent warrant to search the phone invalid, as the defendant did not challenge either the affidavit or the warrant, only the initial seizure and access to the phone. Warrants are presumed to be valid until the defendant shows the contrary. The trial court should have deferred to the magistrate’s determination of probable cause, and should have considered whether the good faith exception to the exclusionary rule applied if the warrant was invalid.
Luna-Gonzales v. St., 2019 OK CR 11
Affirmed conviction for domestic assault and battery with a dangerous weapon. The defendant was not entitled to credit against sentence under 57 O.S.2021, § 138(G) for time spent in jail awaiting trial. This statute does not govern credit for jail time awaiting trial, but rather the accrual of credit against sentence while waiting in jail after sentencing. Credit for time served before sentencing is discretionary. Appellant was in custody since arrest because of a deportation hold, not because he was unable to make bond. Credit was not required under the Equal Protection Clause, as the Court had required in Holloway v. St., 2008 OK CR 14, ¶¶ 8-11. The court refused to give credit for time served because appellant had refused to cooperate with the pre-sentence investigation.
Moore v. St., 2019 OK CR 12
Affirmed conviction for first degree murder. Evidence that appellant attacked an inmate and a detention officer in separate incidents at the county jail was properly admitted under 12 O.S.2021, § 2404(B). Appellant struck cellmate with fists on the back of the head, and was separated from his cellmate by a guard. Appellant later told the guard he did cellmate a favor because he could have killed him. In second incident, appellant left his cell, knocked over some trays, and struggled with a guard. The evidence was admitted to show absence of mistake or accident. Such evidence must be clear and convincing, probative of a disputed issue and not outweighed by prejudicial effect, visibly connected to the charged crime, necessary to support the State’s burden of proof, and accompanied by contemporaneous and final limiting instructions. These acts were admissible where the defendant claimed the victim died from a drunken fall and other evidence indicated victim was beaten and strangled. Other incidents were similar enough to be visibly connected to the charged crime and to indicate that accidental death was less probable than murder. The trial court gave limiting instructions confining evidence to question of absence of mistake or accident.
Lavorchek v. St., 2019 OK CR 13
Affirmed convictions for first degree robbery, using a firearm in the commission of a felony, conspiracy to commit a felony, three counts of kidnapping, and three counts of assault with a dangerous weapon. Convictions did not violate 21 O.S.2021, § 11, because the appellant and an accomplice repeatedly threatened, pushed around, and confined three people for nearly an hour. Considering the length of time involved and many distinct violent acts to terrorize and restrain the victims, the separate punishments for robbery, assault with a dangerous weapon, and kidnapping were proper. Because appellant was not charged with robbery with a firearm, he could properly be charged with first degree robbery and using a firearm in the commission of a felony.
Chadwell v. St., 2019 OK CR 14
Affirmed convictions in forty counts of lewd acts with a child under 16. The age of the victim is an element of lewd acts with a child under 16, including enhanced crime with minimum penalty of twenty-five years when the victim is under 12. The defendant has a 6th Amendment right to demand this element be proved beyond a reasonable doubt under Apprendi v. New Jersey, 120 S.Ct. 2348, 2362-63 (2000), but error is harmless if it appears beyond a reasonable doubt that the error did not contribute to the verdict. Overwhelming and un-contradicted evidence showed that child victims were under 12. Failure to instruct on age element was harmless beyond a reasonable doubt.
Tafolla v. St., 2019 OK CR 15
Affirmed convictions for assault and battery with a dangerous weapon and unlawfully carrying a weapon. Evidence of defendant’s membership in United Aryan Brotherhood, a racist prison gang, was proper part of res gestae, as well as evidence of motive, intent, common scheme or plan, and other exceptions under 12 O.S.2021, § 2404(B), for racially motivated attack on African-American victim. Defendant’s racist attitudes or beliefs was relevant and did not violate the 1st Amendment. Officer’s testimony about statements made by non-testifying victim violated right to confrontation, but error was harmless. The Court also rejected claim that convictions for carrying brass knuckles and assault with a dangerous weapon violated 21 O.S.2021, § 11 or double jeopardy.
St. v. Cousan, 2019 OK CR 16
Reversed order suppressing evidence. Detention and search of the defendant after he left premises for which a search warrant had been issued did not comply with Michigan v. Summers, 452 US. 692 (1981) which held that officers executing a search warrant may detain persons on the premises while the warrant is served without reasonable suspicion or probable cause; or Bailey v. United States, 568 U.S. 186, 202 (2013) which held that detention incident to execution of a search warrant is limited to the immediate vicinity of the premises. However, search of defendant’s person was incident to his arrest on probable cause of drug distribution at the time of the stop. A named informant in possession of drugs had told police that defendant was selling crack cocaine from his motel room. The officers’ belief that the warrant authorized their detention and search is irrelevant, because the search was objectively reasonable as incident to a probable cause arrest.
Holtzclaw v. St., 2019 OK CR 17
Affirmed convictions of numerous rape and sexual assault crimes committed by an on-duty police officer, and sentences of more than 320 years, after highly publicized trial. Sufficient evidence showed required rape element of using or threatening force or violence through express or implied threat of incarceration, where defendant officer arrested victims and gave them choice to have sex or go to jail. Numerous counts were properly joined in a single trial. The charges were similar, allegedly committed in same part of the city in just over six months. Pattern of offenses committed in the same way, against similar victims, where proof of one crime was relevant to prove the other charges. Joinder was proper and no unfair prejudice occurred. 22 O.S.2021, § 436. The trial atmosphere did not violate due process. Appellant did not request a change of venue. The court repeatedly admonished jurors to decide the case based on evidence rather than incidents or publicity. Protests and courthouse incidents had no effect on jurors. Total sentence of 263 years was not excessive, as each sentence represents a consequence of a separate crime on a single victim.
A.O. v. St., 2019 OK CR 18
Reversed delinquency adjudication for child sexual abuse and modified judgment to assault and battery. The Legislature did not intend for prosecutors to circumvent the age-differential element of lewd acts with a child under age 16, which requires the defendant to be three years older than the victim, 21 O.S.Supp.2022, § 1123(A), simply by charging child sexual abuse under 21 O.S.2021, § 843.5(E), which includes lewd acts or proposals to child under 18. Age-differential element of lewd act must also be proved to show child sexual abuse. Defendant was not three years older than the victim and un-consented touching was assault and battery.
Alexander v. St., 2019 OK CR 19
Appellant was not denied fair trial by being forced to appear in jail clothing. He mentioned his clothing to the jury, but never objected or requested other clothing. The Court also found appellant was not coerced into waiving counsel or forced to represent himself. Appointed counsel was ready. Appellant persisted in wanting to represent himself without reason for thinking counsel was unprepared. Two convictions for possession of a firearm AFCF and knowingly concealing stolen property, based on possession of the same gun, with no temporal break between the alleged acts required reversal of latter conviction under 21 O.S.2021, § 11. The State also conceded error under Watkins v. St., 1991 OK CR 119 in two convictions of drug possession based on two baggies of drugs in one receptacle. The admission of a bar graph exhibit clearly showing appellant did not serve full length of several prior sentences was unfairly prejudicial, but in light of prosecutor’s lack of emphasis on these prior sentences in closing argument, relatively light sentences of 15 years or less on all but charge of burglarizing an elderly victim, with all other sentences running concurrently, any error was harmless and required no relief.
Detwiler v. St., 2019 OK CR 20
Appellant’s consecutive sentences of 46 years, 87 years, life, 10 years, and 3 years for crimes committed as a juvenile did not amount to life without parole in violation of the Eighth Amendment and Graham v. Florida, 560 U.S. 48 (2010). The Court rejected Budder v. Addison, 851 F.3d 1047 (10th Cir. 2017), instead finding that consecutive sentences for multiple crimes do not violate the 8th Amendment as interpreted in Graham.
Hammick v. St., 2019 OK CR 21
Affirmed convictions for armed robbery, burglary, and larceny of a vehicle. The Court rejected appellant’s claim that he never waived his Miranda rights. He invoked his right to counsel during one interrogation, and police stopped the interview. He later initiated further conversations and waived his rights. Appellant appeared capable of understanding his rights, and his requests for counsel were honored until he reinitiated contact with police. The Court likewise denied claim that identification in a photo lineup was improperly suggestive because defendant was the only subject with a neck tattoo, his photo was first, and it was taken outside. The Court also found other crimes evidence of appellant stealing a pistol the day after these crimes was part of res gestae that gave a more complete understanding of chain of events, corroborated the confession, and tended to prove guilt.
Harris v. St., 2019 OK CR 22
Trial court’s denial of a continuance to allow rescheduling of a defense expert’s testimony or replacement of the expert did not require reversal. Defense fire expert was ill and unavailable at the time of trial. The trial court considered continuance or possibly testimony by video. Defense counsel never requested a continuance, but moved for a mistrial, claiming a constitutional right to physical presence of his witness. Compulsory process for defense witnesses is subject to reasonable restrictions. A request for continuance would have been denied, because counsel never informed the court when the witness might be available. Appellant also cannot show prejudice, as expert’s critique of fire investigation failed to undermine basic facts about fire’s origin, or offer any helpful evidence on how the victim was covered in accelerant.
The Court found no denial of due process from the State’s failure to preserve physical evidence. The OSBI analyzed evidence from the scene, which was later lost. Appellant offers no theory of how the evidence would have helped, and does not allege bad faith. Defense counsel stipulated to the use of photographs rather than physical evidence. Nor did the State violate Brady when it failed to disclose an investigation into fire investigator’s job performance several years before this case, his interactions with the prosecution, and other job-related misconduct discovered after the trial. Defense counsel had this evidence, and did not show a reasonable probability that the evidence would have affected the outcome of the trial.
Revilla v. St., 2019 OK CR 30
Affirmed convictions for lewd molestation and forcible sodomy. Trial counsel was not ineffective by omitting to file motion to quash for insufficient evidence after preliminary examination. Child victim was not “unavailable” at preliminary because she claimed a lack of memory about some things. Lack of memory did not render her other hearsay statements, which were admitted by agreement, insufficient to meet corroboration requirements of 12 O.S.2021, § 2803.1(A)(2)(b). Section 2803.1 is not applicable to preliminary hearings. The child witness testified and was cross-examined by both Appellant’s counsel and counsel for his co-defendant. There was no reasonable probability that a motion to quash would have been granted, and counsel was not ineffective.