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Frederick v. State

Court of Criminal Appeals of Oklahoma

May 25, 2017

DARRELL WAYNE FREDERICK, Appellant,
v.
THE STATE OF OKLAHOMA, Appellee.

         AN APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY THE HONORABLE TIMOTHY R. HENDERSON, DISTRICT JUDGE

         APPEARANCES AT TRIAL

          JAMES T. ROWAN TIM WILSON ASSISTANT PUBLIC DEFENDERS, COUNSEL FOR APPELLANT

          DAVID W. PRATER DISTRICT ATTORNEY SUZANNE LAVENUE CLAYTON NIEMEYER ASSISTANT DISTRICT ATTORNEYS, COUNSEL FOR THE STATE COUNSEL FOR THE STATE

         APPEARANCES ON APPEAL

          GINA K. WALKER ASSISTANT PUBLIC DEFENDER COUNSEL FOR APPELLANT

          E. SCOTT PRUITT, ATTORNEY GENERAL OF OKLAHOMA JOSHUA L. LOCKETT ASSISTANT ATTORNEY GENERAL

          OPINION

          LUMPKIN, PRESIDING JUDGE

         ¶1 Appellant Darrell Wayne Frederick was tried by jury and convicted of First Degree Malice Murder (Count I) (21 O.S.2001, § 701.7 (A)), Assault and Battery with A Dangerous Weapon, After Former Conviction of Two or more Felonies (Count II) (21 O.S.2001, § 645), and Domestic Abuse Assault and Battery (Count III) (21 O.S.2001, § 644 (C)), Case No. CF-2011-1946, in the District Court of Oklahoma County. In Count I, the jury found the presence of three aggravating circumstances: 1) the defendant was previously convicted of a felony involving the use or threat of violence to the person; 2) the murder was especially heinous, atrocious and cruel; and 3) the existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society, and set punishment at death. In Counts II and III, the jury recommended imprisonment for twenty-five (25) years and one year, respectively. The trial judge sentenced Appellant in accordance with the jury's determination and ordered all sentences to run consecutively. Appellant now appeals his convictions and sentences. [1]

         ¶2 On March 26, 2011, between 5:30 and 6:30 p.m., Da'Jon Diggs arrived at the home of her grandmother, Connie Frederick (hereinafter referred to as the deceased). The deceased was 85 years old and had been deaf and mute her entire life. She lived in the same house in northeast Oklahoma City in which she had raised six children. Ms. Diggs attended college in another city but frequently stopped by to check on the deceased. Ms. Diggs, like much of her family, communicated with the deceased through sign language. Also living at the deceased's home at the time was Appellant, her fifty-five (55) year old son. He had been living with the deceased since his release from prison in 2009.

         ¶3 Ms. Diggs entered the home to find Appellant and the deceased "fussing" in the kitchen. Ms. Diggs later explained that despite being mute for speech purposes, the deceased could still make some sounds and was "yelling" at Appellant through guttural noises and sign language involving exaggerated movements with her hands. Ms. Diggs saw Appellant aggressively grab food out of the deceased's hands. Appellant called the deceased a "bitch" and told her to get out of the kitchen. He then shoved her against the kitchen counter. Ms. Diggs intervened and took the deceased to her bedroom, where she was able to calm her.

         ¶4 Meanwhile, Appellant had retreated to his own bedroom. When Ms. Diggs returned to the kitchen to get the deceased a drink of water, Appellant appeared and told her not to take anything to the deceased. Ms. Diggs ignored this warning and took something to eat and drink to the deceased. The deceased wanted juice instead of water and tried to go to the kitchen. However, Appellant prevented her from entering the kitchen. Ms. Diggs then volunteered to go to the store for some juice.

         ¶5 While out of the house, Ms. Diggs phoned both her mother, who lived out of state, and her uncle, Tobias Frederick, to discuss her frustrations with Appellant. Both were the deceased's children and Tobias Frederick was an Oklahoma City Police Officer. Ms. Diggs told both her mother and her uncle that she was afraid Appellant would seriously hurt her or the deceased. When Ms. Diggs returned to the house, she heard Appellant answer the phone. Ms. Diggs was able to determine that it was her uncle Tobias that had called. He told Appellant that he had to leave the deceased's home and find another place to live. Appellant replied angrily, "man, I ain't got time for this" and hung up the phone. Ms. Diggs could hear Appellant yelling into the phone. Ms. Diggs headed for the deceased's bedroom and told her to stay in the bedroom no matter what happened. Ms. Diggs then shut the bedroom door.

         ¶6 Ms. Diggs headed into another room to retrieve her phone and call police when Appellant charged at her yelling, "oh, you have a problem with me too? I'll take you bitch." Appellant attacked Ms. Diggs, shoving her against the wall. The struggle moved from room to room with Diggs attempting to defend herself. Eventually, she was able to push Appellant off of her, causing him to stumble and she ran out of the house. Appellant chased after her.

         ¶7 Outside, neighborhood kids were playing. Seeing Appellant chase after Ms. Diggs, they shouted at her that Appellant had a brick or rock in his hand. Appellant chased Ms. Diggs around the yard, waving the brick or rock at her. Ms. Diggs ran to the neighbor's home and borrowed a phone to call the police. Appellant, who was dressed only in pajama pants, shouted at the neighborhood children and ran inside the house. He returned a few minutes later, fully dressed. By the time police arrived, Appellant had run around the back of the house. Bystanders heard the rattle of a chain link fence and Appellant was not seen or heard from the rest of the day.

         ¶8 Ms. Diggs followed police into the deceased's home. They found the deceased lying face down on the floor in her bedroom. The deceased had severe bruising and swelling on both sides of her head to the extent that one eye was nearly swollen shut. When asked who injured her, the deceased signed the letter "D" which she used to identify Appellant. The deceased was taken to the hospital. Once there, she was immediately operated on to reduce the pressure in her brain. She had developed a significant subdural hematoma on the left side of her skull. The deceased survived the surgery but never regained consciousness. She passed away two to three weeks later. The cause of death was listed as blunt force trauma to the head.

         ¶9 Appellant was located a day after the deceased's beating. He was found walking along the street approximately three blocks from the deceased's home. When approached by police, he initially gave a false name but soon admitted his identity. His right hand was significantly swollen and his right finger was cut and bleeding. There was blood on his clothes. Bloodstains were also found in his bedroom at the decedent's home. Further facts will be set forth as necessary.

         JURY SELECTION

         ¶10 In his first three propositions of error, Appellant asserts that he was denied a fair and impartial jury in several ways during jury selection. In Proposition One, Appellant asserts he was denied his state and federal constitutional rights to due process by the trial court's denial of his request to remove seven specific potential jurors for cause. Shortly before the exercise of the peremptory challenges, the defense moved to excuse for cause prospective jurors (hereinafter known by their initials) M.S., J.L.W., T.S., S.S., D.M., J.W., and J.S. The trial court denied the request as to each potential juror. Defense counsel later used peremptory challenges to remove all but one of these prospective jurors. The State used a peremptory challenge to remove potential juror J.S.

         ¶11 "In order to properly preserve for appellate review an objection to a denial of a challenge for cause, a defendant must demonstrate that he was forced over objection to keep an unacceptable juror." Eizember v. State, 2007 OK CR 29, ¶ 36, 164 P.3d 208, 220 (citing Browning v. State, 2006 OK CR 8, ¶ 8, 134 P.3d 816, 828.) "This requires a defendant to excuse the challenged juror with a peremptory challenge and make a record of which remaining jurors the defendant would have excused if he had not used that peremptory challenge to cure the trial court's alleged erroneous denial of the for cause challenge." Id.

         ¶12 Here, Appellant did not request additional peremptory challenges, nor did he identify which allegedly unfit jurors he would have excused had he been granted more challenges. As a result, Appellant has waived this claim for appellate review and we review only for plain error. Browning, 2006 OK CR 8, ¶ 9, 134 P.3d at 828. Under the test set forth in Simpson v. State, 1994 OK CR 40, ¶¶ 10, 26, 30, 876 P.2d 690, 694, 699, 701, this Court determines whether the appellant has shown an actual error, which is plain or obvious, and which affects his or her substantial rights. This Court will only correct plain error if the error seriously affects the fairness, integrity or public reputation of the judicial proceedings or otherwise represents a miscarriage of justice. Id. Hogan v. State, 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923. See also Jackson v. State, 2016 OK CR 5, ¶ 4, 371 P.3d 1120, 1121; Levering v. State, 2013 OK CR 19, ¶ 6, 315 P.3d 392, 395.

         ¶13 In Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841, 851-52 (1985), the United States Supreme Court held that the proper standard for determining when a prospective juror may be excluded for cause because of his or her views on capital punishment is "whether the juror's views would 'prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'" See also Jones v. State, 2009 OK CR 1, ¶ 14, 201 P.3d 869, 877; Warner v. State, 2001 OK CR 11, ¶ 8, 29 P.3d, 569, 573. The Court added that this standard does not require a juror's bias be proved with "unmistakable clarity." Wainwright, 469 U.S. at 424, 105 S.Ct. at 852. The Supreme Court further addressed the issue in Morgan v. Illinois, 504 U.S. 719, 729, 112 S.Ct. 2222, 2229, 119 L.Ed.2d 492 (1992), wherein the Court held that, "[a] juror who will automatically vote for the death penalty in every case will fail in good faith to consider the evidence of aggravating and mitigating circumstances as the instructions require him to do." Such prospective jurors are to be removed from the jury panel for cause. Id. The Morgan and Wainwright decisions require that jurors be willing to go into the trial with no preconceived notions regarding the appropriate penalty, death or life. The selection of jurors involves many subtle observations, and trial courts have broad discretion when considering a request to excuse a juror for cause. Underwood v. State, 2011 OK CR 12');">2011 OK CR 12, ¶ 37, 252 P.3d 221, 240 citing Wainwright, 469 U.S. at 425, 105 S.Ct. at 853. See also Eizember v. Trammell, 803 F.3d 1129, 1135 (10th Cir.2015)("the trial judge is best positioned to determine whether a potential juror will be able to follow his or her instructions-and that a court of appeals removed from the live proceedings must afford significant deference to the trial judge's assessments").

         ¶14 Having thoroughly reviewed the responses of prospective jurors, M.S., J.L.W., T.S., S.S., D.M., and J.W., we find none of them expressed any preconceived notions of the appropriate punishment or views which would prevent or substantially impair the performance of his or her duties as a juror in accordance with the instructions and his or her oath. Therefore, we find the trial court did not abuse its discretion in denying the challenge for cause. Finding no error, we find no plain error.

         ¶15 On appeal, Appellant acknowledges the failure to request additional peremptory challenges or identify jurors as required by this Court, but now names four additional jurors who sat on the jury, S.C., S.H., J.H., and N.M., and argues they were similarly unfit to serve. "Any claim of jury partiality must focus on the jurors who ultimately sat." Rojem v. State, 2006 OK CR 7, ¶ 36, 130 P.3d 287, 295 (citing Ross v. Oklahoma, 487 U.S. 81, 86, 108 S.Ct. 2273, 2277, 101 L.Ed.2d 80 (1988)). See also Eizember, 2007 OK CR 29, ¶ 70, 164 P.3d at 229. This is because the loss of peremptory challenges is "not of constitutional dimension." Ross, 487 U.S. at 88, 108 S.Ct. at 2278. Appellant must establish prejudice in order to warrant relief. Rojem, 2006 OK CR 7, ¶ 36, 130 P.3d at 295.

         ¶16 Juror S.C. was one of the initial 30 persons called to the jury box. Under questioning by the State, he said he could keep an open mind as to all punishments. Defense counsel questioned prospective jurors based upon a hypothetical situation of "a guilty murderer, intentional killing and no excuses and no justification for it." When asked for his "feelings about the death penalty" in that situation, Juror S.C. replied, "I feel primarily that the punishment should fit the crime" and "I would be willing to listen to any circumstances that might be pertinent to that". When asked if he was "leaning toward one of the three [punishment] options", SC said, "I think initially I would be predisposed to think for the death penalty because that's what was made (sic) it out to the victim."

         ¶17 Juror S.H. told the court he could consider all three possible punishments. When asked by the prosecutor if he had any "qualms with either three of those punishments", S.H. replied, "not really, no." When asked to explain his answer, he said "it would be difficult but, yes, I could do it." S.H. said he could give "meaningful consideration" to the death penalty if the State proved its aggravating circumstances. He said "it'd be tougher" to give meaningful consideration to life without parole" but he could do so and that he would want to "hear the whole story." He explained it would not be impossible for him to consider life without parole and life imprisonment.

         ¶18 In response to questioning by defense counsel regarding his "thoughts" about the death penalty, S.H. said he "would really hate to be the one that says, yes, you have to die, but it's my duty." He indicated he understood that even if the State proved an aggravating circumstance, the State must still prove the aggravating circumstances outweigh the mitigating evidence and that even in that situation, he was not required to impose the death penalty. When asked if he leaned in any particular way, S.H. said he would "have to hear all - hear everything first." Under defense counsel's hypothetical, he said he would "lean more toward the death penalty, but I would listen to what everyone had to say and consider all three." S.H. disagreed with defense counsel's statement that in all first degree murder cases, the death penalty would be the first option. S.H. said he would have to hear all the facts and could consider a sentence of life without the possibility of parole for intentional malice aforethought murder. S.H. admitted though that at that point, he had no direction "on what malice and all that other stuff is by law", but said that at that moment, he would probably "lean away from life with the possibility of parole."

         ¶19 Juror J.H. initially told the court that he could consider all three punishment options. In response to the State's questions, J.H. said "the severity of the crime should actually in my opinion fit the punishment", but he could consider all three punishments. In response to defense counsel's hypothetical, J.H. said he could consider all three punishments. He said he would not "lean toward any of the three options more than any other option", "depending on the severity of the murder." J.H. said he would want to know about the mitigating evidence and that it might make a difference to him.

         ¶20 Juror N.M. also initially told the court he could consider all three possible punishments. Under questioning by the State, he said that if death was determined to be the appropriate punishment, he would not have a problem signing that verdict. N.M. indicated he could consider a sentence of life without parole if that was warranted by the evidence. Under questioning by defense counsel, N.M. said he did not have "a problem with the death penalty", explaining that it depended on "if it fits the crime." He said he was "kind of" one of those people "who are an eye-for-an-eye kind of person" but he wanted to know all of the evidence. He said he would listen to all of the mitigating evidence, and that his mind was not "pre-formed or pre-made up..., to death or life without parole" until he had heard all of the evidence.

         ¶21 None of these four jurors was challenged for cause by Appellant. A review of the voir dire shows that each of these four jurors affirmed their ability to consider all three punishment options, to listen to all of the mitigating and aggravating evidence, and abide by their duty as a juror to impose the most appropriate punishment based on the evidence. None of these four jurors indicated they were irrevocably committed to a particular punishment before trial began. None of these four jurors expressed views on capital punishment which would prevent or substantially impair the performance of his or her duties as a juror in accordance with the instruction and his or her oath. The record shows that each was qualified to serve and could be a fair and impartial juror. Appellant has not shown he was forced to keep an unacceptable juror after he had exercised all of his peremptory challenges. Thus, he has not established prejudice sufficient to warrant relief. This proposition is denied.

         ¶22 In Proposition II, Appellant contends the trial court erred in denying defense counsel's request to voir dire potential jurors as to their ability to consider all three possible punishments in the event Appellant was convicted of murdering his mother. The record shows defense counsel repeatedly asked the court to be allowed to posit questions based upon the facts of the case to gauge the prospective jurors' views on punishment. Defense counsel particularly wanted to voir dire on the hypothetical situation of a defendant convicted of first degree murder where the victim was the defendant's mother. The trial court would not allow defense counsel to present that hypothetical to the jury but did allow questioning regarding the prospective juror's attitudes on the death penalty in the hypothetical situation of first degree intentional murder.

         ¶23 The purpose of voir dire examination is to ascertain whether there are grounds to challenge prospective jurors for cause and to permit the intelligent use of peremptory challenges. Warner v. State, 2006 OK CR 40, ¶ 15, 144 P.3d 838, 858. The manner and extent of voir dire is within the discretion of the trial court whose rulings will not be disturbed on appeal absent a clear abuse of discretion. Eizember, 2007 OK CR 29, ¶ 67, 164 P.3d at 228. To facilitate jury selection, the trial court may restrict questions that are repetitive, irrelevant or in regard to legal issues upon which the trial court will instruct the jury. Hogan v. State, 2006 OK CR 27, ¶ 13, 139 P.3d 907, 917 . No abuse of discretion will be found so long as the voir dire is conducted in a manner which affords the defendant a jury free of outside influence, bias or personal interest. Eizember, 2007 OK CR 29, ¶ 67, 164 P.3d at 228.

         ¶24 This Court has previously rejected claims of abuse of discretion by the trial court in restricting defense counsel from asking questions dealing with the specific facts of the case on trial or hypothetical situations mirroring the facts of the case on trial. Black v. State, 2001 OK CR 5, ¶ 19; 21 P.3d 1047, 1058; Jackson v. State, 1998 OK CR 39, ¶ 12, 964 P.2d 875, 883. In both Black and Jackson, we found no abuse of discretion as defense counsel's questions were an effort to test jurors' willingness to accept the theory of defense rather than to test their impartiality.

         ¶25 In the present case, we likewise find no abuse of discretion. Defense counsel's hypothetical questions regarding the specific facts that the murder victim was the defendant's mother seemed designed to test the jury's willingness to accept the theory of defense rather than to test their impartiality. Further, counsel's questions were an attempt to prejudice the case and try the capital sentencing stage of the trial before it had begun. Appellant argues that questioning on the specific facts of the case was relevant as several potential jurors said that the status of the victim as a family member might make a difference in their ability to consider all three punishments. None of the three prospective jurors named by Appellant (in a footnote to this proposition) actually sat on the jury that rendered the verdict in this case.

         ¶26 This Court has held that it is "not interested in whether or not a certain question was allowed to be asked, but rather whether the defendant was allowed sufficient voir dire to determine if there were grounds to challenge a particular juror for cause and to intelligently exercise his preemptory challenges." Jackson, 1998 OK CR 39, ¶ 11, 964 P.2d at 883. Here, the trial court allowed considerable leeway in questioning regarding the potential jurors' views on punishment.

         ¶27 Appellant compares his case to Turner v. Murray, 476 U.S. 28, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986), a capital case, where the trial judge refused the defendant's request to question prospective jurors on the issue of racial prejudice. The Supreme Court held that a capital defendant accused of an interracial crime is entitled to have prospective jurors informed of the race of the victim and questioned on the issue of racial bias. Id., 476 U.S. at 36-37, 106 S.Ct. at 1688. The Supreme Court explained that "[b]ecause of the range of discretion entrusted to a jury in a capital sentencing hearing, there is a unique opportunity for racial prejudice to operate but remain undetected." Id., 476 U.S. at 35, 106 S.Ct. at 1687. Further finding that "the risk of racial prejudice infecting a capital sentencing proceeding is especially serious in light of the complete finality of the death sentence", the Court said that by refusing to question prospective jurors on racial prejudice, "the trial judge failed to adequately protect the defendant's constitutional right to an impartial jury." Id., 476 U.S. at 35-36, 106 S.Ct. at 1688. Appellant's reliance on Turner is misplaced. Appellant's attempt to put the concerns regarding the risk of racial prejudice infecting a capital sentencing proceeding on the same footing as a potential juror's knowledge that the crime on trial involved matricide is not persuasive.

         ¶28 The limitations imposed upon the defense's voir dire in this case were proper. See Harmon v. State, 2011 OK CR 6, ¶ 9, 248 P.3d 918, 928. The record shows that defense counsel was permitted to question the potential jurors at length about their attitudes toward the death penalty. The district court's limitation on the use of a hypothetical question involving the specific facts of the case did not prevent defense counsel from fully exploring the potential jurors' views on the death penalty. The voir dire allowed was broad enough to enable defense counsel to challenge prospective jurors for cause and to intelligently exercise peremptory challenges. We find no abuse of the trial court's discretion and this proposition of error is denied.

         ¶29 In Proposition III, Appellant contends the trial court erred in accepting the State's explanation for removing prospective Juror R.G. with a peremptory challenge in the face of Appellant's objection under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). "The Equal Protection Clause forbids the prosecution from challenging potential jurors solely on account of their race." Mitchell v. State, 2011 OK CR 26, ¶ 41, 270 P.3d 160, 173 (quoting Batson v. Kentucky, 476 U.S. at 89, 106 S.Ct. at 1719). Further:

In order to raise an equal protection challenge to the State's use of peremptory challenges, the defendant must first make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Then, the burden shifts to the prosecutor to articulate a race-neutral explanation related to the case for striking the juror in question. The trial court must then determine whether the defendant has carried his burden of proving purposeful discrimination. The trial court's findings are entitled to great deference, and we review the record in the light most favorable to the trial court's ruling.

Id. (internal citations omitted).

         ¶30 When the State sought to excuse R.G. with a peremptory challenge, Appellant objected and raised a Batson challenge. When asked to give a race-neutral explanation for the removal, the State gave five: 1) that R.G. caused a significant delay on the first day of voir dire by absenting himself from the courtroom and thus causing the court to adjourn early for the day; 2) when called to the jury box, R.G. responded, "shit"; 3) he had been previously prosecuted and convicted by the district attorney's office (the same office prosecuting Appellant), for embezzlement, receiving a two year deferred sentence; 4) his father had been previously prosecuted and convicted of armed robbery, the same crime which would be used for enhancement purposes in the second stage; and 5) his beliefs indicated he would not consider the death penalty as he considered it too light of a punishment. Appellant takes issues with each of the State's explanations, finding them merely a pretext to conceal racial discrimination.

         ¶31 The record reflects that late in the day, on the first day of jury selection, R.G. asked to be excused for the restroom. When he did not return after approximately 20 minutes, the court adjourned for the day. When asked about this the next day, the prospective juror indicated he did not return to the courtroom because he felt ill but he felt fine the next day. The court accepted his explanation and continued with voir dire. Defense counsel raised an objection and moved for a mistrial because the court's initial conversation with the prospective juror was in private. The court relayed to counsel the reason for the prospective juror's absence and denied the objection and motion for a mistrial. Both the State and the defense waived calling the prospective juror to repeat what he had told the judge. Neither the State nor the defense voiced any objection to continuing on with voir dire. Appellant asserts the State expressed no hesitation in proceeding with voir dire and that the issue was resolved to both party's satisfaction. The record indicates the State did not voice any opinion at that point as to R.G.'s presence in the venire.

         ¶32 Appellant compares R.G.'s situation to that of prospective juror P.B. who also caused delays in jury selection. The record shows that P.B. simply missed a part of jury selection by showing up late the second day. Noting that the prospective juror was not present for the start of proceedings that day, the court continued on with jury selection. No objections were raised by the State or the defense and there was no delay in the proceedings. Defense counsel eventually asked for P.B.'s excusal, with no objection by the State, due to her failure to follow the concepts and questions discussed in jury selection. This record shows P.B.'s situation was very different from that of R.G.'s. The State's decision not to seek P.B.'s excusal due to her being late on the second day does not support Appellant's argument that the first reason given for excusing R.G. was not race-neutral.

         ¶33 Appellant claims that the State questioned R.G. "in a light hearted manner" about his response when called to the jury box. Therefore, he claims that to use that later to excuse him was racially motivated. It is not clear from the record whether the exchange between the prosecutor and R.G. was in a light hearted manner. What is clear from the record is that R.G. said he did not want to be on the jury panel, explaining that he "wanted to stay in [his] little corner in the back of the courtroom." This Court has found that a prospective juror's desire not to sit on a jury a sufficient race-neutral rationale for excusal by peremptory challenge. Smith v. State, 2007 OK CR 16, ¶¶ 13-15, 157 P.3d 1155, 1162-63.

         ¶34 Appellant challenges the third and fourth reasons for removal - R.G.'s prior prosecution and conviction by the same district attorney's office involved in the trial and his father's prior conviction - by arguing that these reasons had a disparate impact upon minorities and by pointing out two prospective jurors whom the State did not seek to excuse who had either personal prior convictions or family members with prior convictions.

         ¶35 Past criminal history, either of a prospective juror or of a relative, has been found to be a race neutral reason for removal. Coddington v. State, 2006 OK CR 34, ¶ 14, 142 P.3d 437, 444; Harris v. State, 2004 OK CR 1, ¶ 22, 84 P.3d 731, 743; Black, 2001 OK CR 5, ¶ 32, 21 P.3d at 1061-1062; Short v. State, 1999 OK CR 15, ¶ 15, 980 P.2d 1081, 1092. While Appellant points to two jurors who had prior convictions or relatives with prior convictions, he fails to acknowledge two other prospective jurors, not identified as members of a minority, who were excused based upon either their own prior conviction or that of a boyfriend. These strikes show that the State was not acting with any racially motivated pretext when it sought R.G.'s removal for these two reasons.

         ¶36 Appellant cites to Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) to support his claim that striking potential jurors for criminal involvement has the potential to disparately impact black jurors or to conceal purposeful racial discrimination and this disparate impact alone could be sufficient to support a finding of purposeful, impermissible racial discrimination. Hernandez involved a prosecutor's removal of bilingual, Spanish speaking jurors in a case involving a Latino defendant. In finding a race-neutral basis had been given for the peremptory strikes, a plurality of the Supreme Court said:

In evaluating the race neutrality of an attorney's explanation, a court must determine whether, assuming the proffered reasons for the peremptory challenges are true, the challenges violate the Equal Protection Clause as a matter of law. A court addressing this issue must keep in mind the fundamental principle that "official action will not be held unconstitutional solely because it results in a racially disproportionate impact....Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause." "'Discriminatory purpose'... implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker... selected... a particular course of action at least in part 'because of, ' not merely 'in spite of, ' it's adverse effects upon an identifiable group."

500 U.S. at 359-360, 111 S.Ct. at 1866 (internal citation omitted).

         ¶37 Appellant has failed to show any proof of racially discriminatory intent or purpose as a result of excusing prospective jurors based upon criminal history.

         ¶38 Finally, Appellant asserts that R.G. said he was capable of considering all three possible punishments and gave no answers indicating he could not sit on the jury. While R.G. did say he could consider all three punishments, he also told the prosecutor he felt like a person "should suffer for the rest of their life because death is the easy way out... you could always consider death if it's just overwhelming, but I'd rather have a person suffer and have to deal with it till they die than just put them out of their misery." R.G. reiterated this sentiment when questioned by defense counsel. When asked if he understood that life without the possibility of parole meant just that, R.G. responded, "they have to deal with what they did till they die, not just get out of it by dying." This Court has found no discriminatory intent in the striking of a juror who expressed reservations about his or her ability to impose the death penalty. Harris, 2004 OK CR 1, ¶ 20, 84 P.3d at 743.

         ¶39 A race-neutral reason given by the prosecutor need not rise to the level of justifying excusal for cause, but it must be a "clear and reasonably specific" explanation of his or her "legitimate reasons" for exercising the challenges. Coddington, 2006 OK CR 34, ¶ 11, 142 P.3d at 443. "[A] pretextual reason, that is, one not supported by the record, should be rejected." Bland v. State, 2000 OK CR 11');">2000 OK CR 11, ¶ 16, 4 P.3d 702, 711. In this case, the prosecutor's reasons for excusing R.G. were supported by the record. A record which shows the prosecutor did not exercise peremptory challenges to purposefully discriminate and exclude jurors on the basis of race. The trial court did not abuse its discretion in accepting the prosecutor's reasons for excusing R.G. This proposition is denied.

         FIRST STAGE ISSUES

         ¶40 In his fourth proposition of error, Appellant contends the trial court erred in admitting the decedent's statement identifying him as her attacker. Appellant concedes that no objection was raised at trial to the admission of the statement and therefore our review is for plain error. As previously stated, when we review for plain error, an appellant must show an actual error, which is plain or obvious, affecting his substantial rights. Hogan, 2006 OK CR 19, ¶ 38, 139 P.3d at 923.

         ¶41 Relying on Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) and Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), Appellant asserts that the hearsay statements were testimonial in nature and their admission violated his rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution. The State responds that the decedent's statements met the hearsay exception of a dying declaration and therefore do not violate the Confrontation Clause.

         ¶42 In both state and federal criminal prosecutions, an accused has a right "to be confronted with the witnesses against him." Mitchell v. State, 2005 OK CR 15, ¶ 15, 120 P.3d 1196, 1202 (citing U.S. Const. amends. VI and XIV; Okla. Const. art. 2, § 20). In Michigan v. Bryant, 562 U.S. 344, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011), the United States Supreme Court summed up the law on the right to confrontation as follows:

The Confrontation Clause of the Sixth Amendment states: "In all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him." The Fourteenth Amendment renders the Clause binding on the States. In Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), we explained that the confrontation right does not bar admission of statements of an unavailable witness if the statements "bea[r] adequate 'indicia of reliability.' " We held that reliability can be established if "the evidence falls within a firmly rooted hearsay exception, " or if it does not fall within such an exception, then if it bears "particularized guarantees of trustworthiness."

562 U.S. at 352-353, 131 S.Ct. at 1152 (internal citation omitted).

         ¶43 The Supreme Court overruled Ohio v. Roberts in Crawford v. Washington, 541 U.S. at 60-63, 124 S.Ct. at 1369-1371. In Crawford, the Supreme Court drew a distinction between "testimonial" and "nontestimonial" hearsay statements, noting that "[a]n accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not." 541 U.S. at 51, 124 S.Ct. at 1364. Crawford limited the Confrontation Clause's reach to "testimonial" statements and held that in order for testimonial evidence to be admissible, the Sixth Amendment "demands what the common law required: unavailability and a prior opportunity for cross-examination." Bryant, 562 U.S. at 354, 131 S.Ct. at 1153 (quoting Crawford, at 68, 124 S.Ct. 1354). Under Crawford and its progeny, the test for determining whether the admission of an out-of-court statement offered for the truth of the matter asserted violates the Confrontation Clause focuses on whether the statement was testimonial or non-testimonial. "Only statements of this sort [testimonial] cause the declarant to be a 'witness' within the meaning of the Confrontation Clause. It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause." Davis, 517 U.S. at 821, 126 S.Ct. at 2273.

         ¶44 The State relies on Giles v California, 554 U.S. 353, 128 S.Ct. 2678, 171 L.Ed.2d 488 (2008) to argue that the Supreme Court has said that dying declarations "do not run afoul of the Confrontation Clause." In Giles, the Supreme Court considered whether a defendant forfeits his rights under the Confrontation Clause when a judge determines that a wrongful act by the defendant made the witness unavailable to testify at trial. However, the State did not dispute, and the Supreme Court "accept[ed] without deciding", that the out-of-court statements at issue were testimonial. Id., 554 U.S. at 358, 128 S.Ct. at 2682. Therefore, Giles tells us that the first determination to be made regarding the admissibility of the hearsay statement is whether it is testimonial or non-testimonial. Whether the statement is admissible under an exception to the hearsay rule is a separate issue.

         ¶45 In Crawford, the Supreme Court did not provide a comprehensive list of what it considered to be a "testimonial statement". This came a few years later in Davis v. Washington and Hammon v. Indiana (two cases consolidated for consideration). Davis and Hammon were both domestic violence cases. The Supreme Court expanded upon the meaning of "testimonial" in a situation involving an ongoing emergency. The Supreme Court explained:

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

Davis, 547 U.S. at 822, 126 S.Ct. at 2273-74.

         ¶46 "To determine whether the 'primary purpose' of an interrogation is 'to enable police assistance to meet an ongoing emergency, ' which would render the resulting statements nontestimonial, we objectively evaluate the circumstances in which the encounter occurs and the statements and actions of the parties." Bryant, 562 U.S. at 359, 131 S.Ct. at 1156, (quoting Davis, 547 U.S. at 822, 126 S.Ct. at 2273-2274). Whether an emergency exists and is ongoing is a highly context-dependent inquiry. Id., 562 U.S. at 363, 131 S.Ct. at 1158.

         ¶47 Here, police responded to Ms. Diggs' call to find the 85 year old victim, lying on the floor of her bedroom, face down on her left side. She was unable to get up on her own. Her face was bruised and extremely swollen on the left side. Ms. Diggs went to help her grandmother sit up and keep her from trying to stand up. A police officer asked Ms. Diggs to ask her grandmother whether she was in pain and "who did it?" Ms. Diggs testified at trial that the victim replied by making the sign she used to identify Appellant. Emergency medical personal arrived soon after and Adam Simmons, a responding paramedic, also asked Ms. Diggs to ask her grandmother what had happened. Mr. Simmons testified at trial that Ms. Diggs told him that her grandmother said "her son did it", that he had an object in his hand and there "was an unknown amount of hits." The victim was then transported to the hospital.

         ¶48 "A conversation which begins as an interrogation to determine the need for emergency assistance" can "evolve into testimonial statements." Bryan t, 562 U.S. at 365, 131 S.Ct. at 1159. "This evolution may occur if, for example, a declarant provides police with information that makes clear that what appeared to be an emergency is not or is no longer an emergency or that what appeared to be a public threat is actually a private dispute . " Id. Appellant argues that after the initial questioning of the victim pertaining to her physical condition, the primary purpose of the questioning was to prove past events potentially relevant to later prosecution.

         ¶49 The initial inquiries in this case resulted in the type of nontestimonial statements upheld in Davis. At the time the victim identified Appellant as her attacker, police did not know if Appellant was still in the house, if he was armed, if he had left the house or if he was likely to return. Once named, Appellant was quickly identified as a convicted felon, one potentially armed. The situation soon encompassed not only a threat to the victim but also potentially to the police and the public. "When an officer arrives on the scene and does not know where the perpetrator is, whether he is armed, whether he might have other targets, and whether the violence might continue at the scene or elsewhere, interrogation that has the primary purpose of establishing those facts to assess the situation is designed to meet the ongoing emergency and is nontestimonial." Bryant, 562 U.S. at 371-372, 131 S.Ct. at 1163. The questions asked by the officer and paramedic in this case - what had happened and who had injured the victim - "were the exact type of questions necessary to allow the police to 'assess the situation, the threat to their own safety, and possible danger to the potential victim' and to the public, ... including to allow them to ascertain 'whether they would be encountering a violent felon, '... In other words, they solicited the information necessary to enable them 'to meet an ongoing emergency.'" Bryant, 562 U.S. at 376, 131 S.Ct. at 1166 (quoting Davis, 547 U.S. at 827 & 832, 126 S.Ct. at 2276 & 2279). Based upon the facts in this case, we cannot say that a person in the victim's situation would have had a "primary purpose" "to establish or prove past events potentially relevant to later criminal prosecution." Davis, 547 U.S. at 822, 126 S.Ct. at 2273.

         ¶50 Because the circumstances of the encounter as well as the statements and actions of the victim and the police/paramedic objectively indicate that the primary purpose of the interrogation was to enable medical assistance to the victim and police assistance to meet an ongoing emergency, the victim's identification of Appellant as her assailant was nontestimonial hearsay. Based upon the facts of this case, we find the Confrontation Clause did not bar the admission of her statement.

         ¶51 Relying on Miller v. State, 2004 OK CR 29');">2004 OK CR 29, ¶ 27, 98 P.3d 738, 744 Appellant asserts that even if we find the hearsay statement nontestimonial, in order for it to be admissible, we must find that it falls within a firmly rooted hearsay exception and there is no firmly rooted exception that fits the statement in this case. Since we decided Miller, the Supreme Court decided Davis and Bryant and made it clear that deciding whether the admission of a hearsay statement violates the Confrontation Clause based upon whether it is testimonial or nontestimonial in nature is a separate analysis from determining whether the statement is admissible under an exception to the hearsay rule. Therefore, for purposes of the Confrontation Clause, we find the statements in this case were nontestimonial and their admission did not violate Appellant's rights under the Confrontation Clause. We find no error and thus no plain error.

         ¶52 Appellant's assertion that there are no hearsay exceptions which fit the statements in this case leads to Proposition V. There, Appellant argues that the improper admission of the decedent's hearsay statements violated his constitutional rights to due process under the Fifth and Fourteenth Amendments. Appellant asserts that the statements were inadmissible as they were unreliable hearsay and were not corroborated by any other evidence. Our review is again for plain error, as Appellant raised no objections to the admission of the decedent's statements. Hogan, 2006 OK CR 19, ¶ 38, 139 P.3d at 923.

         ¶53 As no objections to the admission of the declarant's hearsay statements were raised at trial, there is no record of any discussion regarding the admissibility of the statements. In Proposition IV, the State argued that the decedent's hearsay statements were properly admitted under the dying declaration exception to the hearsay rule. A well recognized exception to the hearsay rule, a dying declaration is defined as a statement made by a declarant, in a prosecution for homicide, while believing that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death. 12 O.S.2011, § 2804 (B)(2). See also Moore v. State, 1988 OK CR 176, ¶ 32, 761 P.2d 866, 871.

         ¶54 Here, the 85 year old victim was found lying on the floor with severe injuries to her face. She was conscious but unable to move on her own accord. She was placed in a "C" collar and immobilized on a back board before being moved onto a stretcher and then to the ambulance. She was able to interact with emergency personnel and insisted on being taken to a hospital different from that suggested by the paramedics. While it is impossible to know exactly what the elderly victim was thinking at the time, we are not convinced that at the time she made her statements to emergency personnel, she believed her death was imminent. Her hearsay statements were not admissible under the dying declaration exception to the hearsay rule.

         ¶55 Another exception to the hearsay rule is that of an excited utterance. Title 12 O.S.2011, § 2803 (2) provides that a statement "relating to a startling event or condition made while the declarant was under the stress of excitement caused by the startling event or condition" is not excluded by the hearsay rule. "An excited utterance must meet three foundational requirements: (1) a startling event or condition; (2) a statement relating to that startling event or condition; (3) made while the declarant is under the stress of excitement caused by the startling event or condition." Martinez v. State, 2016 OK CR 3, ¶ 50, 371 P.3d 1100, 1113; Mitchell, 2005 OK CR 15, ¶ 27, 120 P.3d at 1205. "We examine both the timing of the statement and its spontaneity on a case-by-case basis." Martinez, 2016 OK CR 3, ¶ 51, 371 P.3d at 1113. "Whether a statement qualifies as an excited utterance depends not on a fixed time but on the facts and circumstances." Id. "An excited utterance 'need not be substantially contemporaneous with the startling event or condition... so long as the declarant is under the stress of excitement at the time the statement is made.'" Id.

         ¶56 Here, the elderly victim had been assaulted within moments of being found by the police. She had received a blow which made it impossible for her to move on her own and see clearly. Her responses to the officer and paramedic were her first communications since being assaulted. Considering the timing and circumstances of the decedent's statements, made while she was still under the evident stress of the startling and certainly unexpected assault, we find her statements could have been properly admitted as excited utterances.

         ¶57 A hearsay exception also exists for statements made for the purposes of receiving medical attention. 12 O.S.2011, § 2803 (4). See also Kennedy v. State, 1992 OK CR 67, ¶ 10, 839 P.2d 667, 670. As the decedent's statements were made to emergency medical personnel soon after her assault in response to inquiries regarding her injuries, the statements were properly admitted under this exception. As the decedent's ...


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