APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY THE
HONORABLE RAY C. ELLIOTT, DISTRICT JUDGE
DEMARGIO BROWN PRO SE JAMES ROWAN (STANDBY COUNSEL) CATHERINE
HAMMARSTEN (STANDBY COUNSEL) ASSISTANT PUBLIC DEFENDERS
ROWLAND DANIEL GRIDLEY ASSISTANT DISTRICT ATTORNEYS OKLAHOMA
LEWIS JAMIE D. PYBAS INDIGENT DEFENSE SYSTEM ATTORNEYS FOR
SCOTT PRUITT ATTORNEY GENERAL CAROLINE E. J. HUNT ASSISTANT
ATTORNEY GENERAL ATTORNEYS FOR APPELLEE
VICE PRESIDING JUDGE.
Appellant, Fabion Demargio Brown , was charged conjointly
with Brodric Lontae Glover and Emily Ann Matheson with two
counts of first degree murder in violation of 21 O.S.2011,
§ 701.7, and one count of conspiracy to commit murder in
violation of 21 O.S.2011, § 421, in the District Court
of Oklahoma County, Case No. CF-2012-938.  The State
filed a Bill of Particulars alleging two aggravating
circumstances: (1) the defendant knowingly created a great
risk of death to more than one person; and (2) the defendant
committed the murder for remuneration or the promise of
remuneration or employed another to commit the murder for
remuneration or the promise of remuneration. 21 O.S.2011,
§ 701.12 (2) and (3).
Fabion's case was severed from his codefendants, and his
trial commenced on June 16, 2014, before the Honorable Ray C.
Elliott, District Judge. The jury found Fabion guilty on all
counts and assessed punishment at death on the two first
degree murder convictions, after finding the existence of
both of the aggravating circumstances. The jury assessed ten
(10) years imprisonment and a $5, 000 fine on the conspiracy
count. Judge Elliott formally sentenced Fabion in accordance
with the jury verdict on August 11, 2014. Thereafter, Fabion
perfected his appeal to this Court. 
Fabion was the estranged husband of the victim, Jessica
Brown. They were in the process of divorcing, and Fabion owed
child support for their two children. The Browns' marital
problems began sometime in 2009, and Jessica Brown told
family and friends that she was afraid of her husband. Ms.
Brown filed for divorce in April 2011, and she received
temporary custody of the children. Fabion's child
visitation was limited by court order but he wanted custody
of their two children or, at least, expanded visitation.
During the summer of 2011, Ms. Brown became pregnant with a
third child. She expressed plans to move back, with her
children, to her home State of Washington to be near her
family. Fabion told friends and acquaintances that he did not
want Jessica to take the children away to Washington. Emily
Matheson testified that Fabion discussed his options,
including the killing of his wife, to get her out of the
On the morning of January 11, 2012, officers of the Midwest
City Police Department responded to a call reporting that two
children, ages six and three, were in the street in front of
Jessica Brown's home. Officers arrived and noticed that
the front door of the home was open. Upon checking the home,
officers found Jessica Brown lying lifeless at the foot of
her bed. She had been shot in the head.
On that same day, Fabion appeared at the Oklahoma County
courthouse for a hearing on his child support. He had told
Matheson that he thought he would go to jail for not paying
support. While he was at the courthouse, he was told that
Jessica was found dead at her house.
Matheson testified against Fabion. She met Fabion in October
2011. They moved into an apartment together shortly
thereafter. After they moved in together, Fabion began
discussing the prospect of murdering Jessica. Fabion was
employed at Club ATL as a disc jockey. Matheson spent quite a
bit of time at the club. They met Brodric Glover at the club.
Glover was employed to clean the club after it closed. Glover
was included in the discussions about killing Jessica.
A plan was conceived whereby Glover would be paid $250
dollars for killing Jessica. Fabion wanted Glover to kill
Jessica during the night while she was at home. Fabion told
Glover how to get into the house and told him he could not
use a.40 caliber weapon, as Fabion had once owned a.40
Matheson testified that the three of them drove by
Jessica's house during the first week of January 2012.
Fabion said that he wanted Jessica killed before his January
11 child support hearing.
On January 9, 2012, Fabion leased a Kia Soul, for one day,
from a rental company located at the Sears store in Quail
Springs Mall. Fabion took out a payday loan that day, met
Glover, gave him $125, and gave him the Kia Soul. Fabion and
Matheson went to a casino that night and rented a room. About
midnight, Glover called and said the killing would not take
place that night.
The next day, January 10, Fabion extended the lease of the
Kia for an additional day. That evening, Fabion asked Jessica
Eckiwaudah to spend the night and hang out. She agreed.
Fabion, Matheson and Eckiwaudah played video games until
about midnight. The three then turned in for the night.
Eckiwaudah went to sleep on the couch.
At about 3:00 a.m. that night, Glover called Matheson and
told her that the killing was done. She relayed the
information to Fabion. Fabion gave her $125, and she drove
Fabion's pickup to the Belle Isle Wal-Mart to meet Glover
and pay him the $125. Eckiwaudah saw Matheson leave the
Glover was at the Wal-Mart in the Kia Soul with two other
individuals. After meeting with Glover, Matheson returned to
The investigation revealed that Jessica Brown died from two
nine millimeter caliber gunshot wounds to the head. Jessica
Brown's unborn child was viable at the time of her death,
as her pregnancy was 24 weeks and two days along. The
authorities utilized video surveillance tapes, wire-taps,
cell phone usage data, and interviews before arresting
Matheson, Fabion and Glover. Matheson was the first to be
arrested. During her first contact with police, she denied
any involvement, but later confessed to the murder plot.
Glover did not testify.
ISSUES RELATED TO WAIVER OF COUNSEL AND PRO SE
In proposition one Fabion claims that the waiver of his right
to counsel was not voluntary, knowing or intelligent. A
defendant's right to waive representation by counsel and
proceed pro se is found in the Sixth Amendment to
the United States Constitution.  Faretta v.
California, 422 U.S. 806, 818-21, 95 S.Ct. 2525,
2532-34, 45 L.Ed.2d 562 (1975). A waiver of the right to
counsel is voluntary, knowing and intelligent when a
defendant is informed of the dangers, disadvantages, and
pitfalls of self-representation. Faretta, 422 U.S.
at 835, 95 S.Ct. at 2541; Mathis v. State, 2012 OK
CR 1, ¶ 7, 271 P.3d 67, 71-72.  These dangers
"must be 'rigorous[ly]' conveyed." Iowa
v. Tovar, 541 U.S. 77, 89, 124 S.Ct. 1379, 1388, 158
L.Ed.2d 209 (2004).
In determining whether a defendant has intelligently elected
to proceed pro se, the question is not the wisdom of
the decision or its effect upon the expeditious
administration of justice.
[A]n "intelligent" decision to waive counsel and
proceed pro se is not the same as a
"smart" or well-thought decision. The issue is
whether the defendant was adequately informed and aware of
the significance of what he was giving up, by waiving the
right to be represented by counsel.
Mathis v. State, 2012 OK CR 1, ¶ 8, 271 P.3d
67, 72. Even when a defendant exhibits an unrealistic or
foolish view of his case and possible defenses, he may still
be granted the right to choose self-representation.
Maynard v. Boone, 468 F.3d 665, 678 (10th Cir.
2006). It is only necessary that a defendant be made aware of
the problems of self-representation so the record establishes
that he understands that his actions in proceeding without
counsel may be to his ultimate detriment. Id. at
Fabion claims that he was forced to choose between either
unprepared, ineffective counsel, or waive counsel and
represent himself. Undoubtedly, a defendant who faces a
choice between incompetent or unprepared counsel and
appearing pro se faces a constitutional dilemma.
United States v. Padilla, 819 F.2d 952, 955 (10th
Fabion cites several instances where he complained about
counsel before he decided to ask the trial court to allow him
to represent himself. His complaints centered on a lack of
communication and the inability to assert a speedy trial
right. He voiced complaints about access to discovery
materials, claimed counsel was misinforming him about
significant legal issues, and improperly coercing him into
taking a plea deal. Fabion continuously sent letters to the
trial court complaining about his appointed counsel. Finally,
in a letter dated March 10, 2014, Fabion requested that he be
allowed to represent himself.
On March 13, 2014, the trial court conducted a hearing on
Fabion's request pursuant to Faretta. As part of
that hearing, the trial court specifically inquired whether
or not Fabion was requesting to represent himself because
counsel was constitutionally ineffective. A defendant's
complaints about counsel must rise to the level of
ineffectiveness that would allow a defendant to assert a
right to new counsel. Padilla, 819 F.2d at 955.
This Court has recognized valid reasons for discharge of an
appointed counsel and appointment of new counsel; they
include demonstrable prejudice against the defendant,
incompetence, and conflict of interest. Johnson v.
State, 1976 OK CR 292, ¶ 33, 556 P.2d 1285, 1294.
Neither a personality conflict nor disagreements over the
conduct of the defense constitute valid reasons. Id.
Fabion's complaints were revealed during the
Faretta hearing. The trial court was very careful in
its inquiry about Fabion's dissatisfaction with appointed
counsel. See United States v. Silkwood, 893 F.2d
245, 248 (10th Cir. 1989). Indeed, Silkwood held
that a trial court must, in order for a waiver of counsel to
be deemed voluntary, delve into reasons why a defendant is
dissatisfied with counsel and wants to proceed with
self-representation. Id. This requirement ensures
that a defendant is not exercising "a choice between
incompetent or unprepared counsel and appearing pro
Fabian's complaints, however, did not rise to the level
that would have allowed him the appointment of a new
attorney. His complaints were mere personality conflicts and
disagreements. Fabion again complained that his attorney
tried to convince him to enter a plea instead of risking the
death penalty. He argued that counsel, in his words,
"insinuated" that he could not get a fair trial
because of his biracial marriage.
Counsel responded and told the court that she as well as
other attorneys involved in the case explained to him about
the expected racial makeup of the jury. Counsel indicated
that there was some evidence (in the form of text messages)
that Fabion knew, well in advance of meeting with his
attorneys, that trial would be difficult because of the
difference in race between him and his wife. These
conversations, in the worst case scenario, are things that
experienced trial counsel would point out to a client, so a
client could make informed decisions.
Fabion was allowed to further specify his dissatisfaction. He
stated that he believed his attorney wasn't totally
honest, as he had asked his attorney certain questions and
she would give an answer, but he would research and find
cases supporting a contradictory answer. He claimed he even
found a case where his attorney was involved and when he
asked his attorney about it, he got no response. Fabion then
generally complained that there was a lack of communication,
because he didn't always get responses to his letters,
and sometimes he did not "get a clear answer." He
complained he didn't get explanations about the
contradictory research. He stated that he was "having
issues getting those why's...." He summed up his
complaint by saying that he didn't trust that he was
getting "her best and I think I can do it better
Fabion expressed no dissatisfaction with co-counsel who was
new to the case. Fabion's explanation was that he
believed it would be a lot better for him if he went ahead
and did it himself. Judge Elliott made the finding that
Fabion was "not dissatisfied with [counsel]... because
of their incompetence or their unpreparedness."
The record supports the trial court's decision and
indicates that Fabion was not forced between the choice of
accepting ineffective, incompetent counsel and the choice of
representing himself; thus, his choice was not improperly
coerced. On appeal, Fabion has not set forth any basis for
the belief that his appointed attorneys were not providing
adequate legal assistance.
Once the trial court determined that Fabion's decision of
self-representation was not based on a valid belief that his
appointed attorneys were constitutionally ineffective, the
trial court proceeded to warn Fabion about the dangers of
self-representation. The trial court pointed out to Fabion
that, in his request to act as his own attorney, he admitted
he didn't know what he was doing. Fabion explained that
he meant that he was not familiar with the court rules and
procedures. He claimed he could present the facts
"easily, " because he knew "the facts better
than anyone else that would be present. And therefore, I
would have an advantage in that area."
Judge Elliott acknowledged that he might know more about the
facts, but he would also be required to know the law and the
rules and procedures of the district court. Judge Elliott
explained that his own bench book had taken him twenty-five
years to compile, and Fabion would be expected to know the
applicable rules, procedures and laws, whether based on
cases, statutes or rules.
Judge Elliott told Fabion that he would be expected to know
as much as his appointed attorneys who were among the
"most experienced death penalty litigators in this
State." He noted that part of their job is to "save
your life" in a death penalty case. He explained that it
is the attorney's job to examine the evidence and the law
and make recommendations to their clients based on the law,
the evidence, and their combined experience. Judge Elliott
warned Fabion against listening to legal advice from others
sitting in the jail or others out on the street. He also
explained that if he was "not guilty" his attorneys
would want a result that reflects that truth, even though
their primary objective is to "save your life."
Judge Elliott then explained the real possibility of the
death penalty being carried out in Oklahoma.
During the hearing, Judge Elliott warned Fabion several times
that the trial court was limited on giving Fabion advice on
rules and regulations such as issuing subpoenas, admitting
evidence, and conducting voir dire. He explained
that the decision for Fabion to represent himself was
Fabion's alone, and his decision to accept a plea deal
was also his decision and no one could make him "sign
Judge Elliott warned Fabion that his chances of getting a
fair trial were less likely if he represented himself,
because he would not "understand the nuances of trying a
death penalty case." He opined that the "stakes are
too high" for self-representation in a death penalty
case. Judge Elliott emphasized the fact that this could be a
life or death decision.
Judge Elliott next informed Fabion, as required by
Patterson v. Illinois, 487 U.S. 285, 108 S.Ct. 2389,
101 L.Ed.2d 261 (1988), of the pitfalls of representing
himself, some of which he had already covered. Judge Elliott
again explained that he would be bound by the same rules as
his attorneys; he would have to voice objections in the same
form as attorneys do, and have a legal basis for the
objection. Fabion would have to follow courtroom procedures
and local court rules, and he would have to conduct himself
in the same manner required of attorneys. Judge Elliott
explained that Fabion would get no preferential treatment due
to his lack of experience and training. Judge Elliott also
explained, that in his experience, a jury would not "cut
[Fabion]... any slack" because he was representing
himself. Judge Elliott again reminded Fabion that he, as the
Judge, could not tell him or advise him on the proper way to
conduct a trial.
Judge Elliott noted that Fabion seemed very confident, but
warned that his reasonableness could be blinded by his
confidence. Judge Elliott also noted that, unlike many
defendants, Fabion seemed very articulate, but being
articulate does not mean that he would be well versed in the
law or in the procedures that he would be bound by. The
record indicates that Fabion was twenty-four years old when
he was charged. Fabion had already revealed that he was able
to research legal matters by filing many pro se
documents. The trial court finally advised that Fabion would
be responsible for unfavorable rulings when Fabion did not
follow the proper procedures.
One of Fabion's attorneys spoke up and reminded Fabion,
and the trial court, that, to preserve the record on appeal,
a remedy must be suggested. He was concerned that Fabion
would not properly preserve a record for appeal. Judge
Elliott added that Fabion risked the chance of error being
waived on appeal because he did not preserve issues during
trial. Judge Elliott explained that even the best trained
lawyers make mistakes, so just imagine the mistakes he might
make as someone untrained in the law. Even after these
weighty warnings, Fabion acknowledged that he understood the
pitfalls and still wanted to represent himself.
Judge Elliott continued to question Fabion to determine
whether he was making a knowing decision. He asked Fabion if
anyone was encouraging him to represent himself, and Fabion
indicated that no one was encouraging him to represent
himself. To the contrary, Fabion indicated that his appointed
attorneys warned him to be certain before he "step[ped]
off the dock." Fabion assured the trial court that he
was making this decision of his own free will, that he had
not been forced or threatened to make this decision, and no
one had made him any promises in exchange for his decision.
Finally, Judge Elliott warned Fabion that if he engaged in
misconduct, obstructionism, or disruption of the proceedings,
he was authorized to terminate Fabion's
self-representation, and Fabion indicated that he understood.
Throughout the proceeding, Judge Elliott emphasized the
serious nature of the death penalty. He informed Fabion, that
if found guilty of the crimes, the lowest sentence he could
get would be eighty-five percent on a life sentence,
Judge Elliott found that Fabion was articulate, confident and
no doubt competent enough to undertake the decision to
represent himself. Judge Elliott expressed no doubt that
Fabion understood everything he had explained to him. Judge
Elliott, therefore, granted Fabion's motion to represent
The record is abundantly clear that the trial court advised
Fabion of the dangers (that he was not well versed in the law
and procedure) and the pitfalls of self-representation as
required by Faretta. See Braun v. State,
1995 OK CR 42, ¶¶ 13-14, 909 P.2d 783, 788-89.
Whether a valid waiver of counsel exists is determined from a
totality of the circumstances including the individual facts
of the case and the experience and conduct of the defendant.
Id. ¶ 12, at 788.
The third part of this claim (subpart C) is the argument that
the record does not support the finding that Fabion's
choice to choose self-representation was intelligently made.
He argues that the trial court, first, did not fully explain
the order of trial, specifically the nature of a penalty
phase in a death-penalty trial; second, did not explain and
clarify the role of standby counsel and inconsistently made
pronouncements regarding standby counsel's duties; third,
misinformed Fabion about his ability to subpoena witnesses;
and fourth, failed to inform Fabion that his ability to
conduct legal research and view discovery would be diminished
if he waived his right to an attorney. These complaints are
not borne out in the record.
It seems that Fabion's argument under the first part of
the proposition is that his waiver could not be knowing and
intelligent because he did not possess the intelligence of an
attorney who is familiar with the trial procedure and rules.
His general argument is the failure to explain the order of
trial, especially the second stage.
Whether or not Fabion received training from the trial court
is a non-issue, as a trial court is under no obligation to
train a pro se defendant on trial procedure. Fabion
has no "constitutional right to receive personal
instruction from the trial judge on courtroom
procedure." McKalske v. Wiggins, 465 U.S. 168,
183, 104 S.Ct. 944, 954, 79 L.Ed.2d 122 (1984). The 10th
Circuit Court of Appeals has held that a developed and
complete understanding of courtroom procedure is unnecessary,
if the record shows that the defendant was aware "of the
nature of the charges, the statutory offenses included within
them, the range of allowable punishments thereunder, possible
defenses to the charges and circumstances in mitigation
thereof, and all other facts essential to a broad
understanding of the whole matter." Silkwood,
893 F.2d at 248, quoting Padilla, 819 F.2d at
956-57. A defendant's technical legal knowledge is
totally irrelevant in the assessment of his knowing exercise
of the right to represent himself. Faretta, 422 U.S.
at 836, 95 S.Ct. at 2541; Johnson, 1976 OK CR 292,
¶ 34, 556 P.2d at 1294.
Judge Elliott's explanations and warnings were obviously
sufficient for the first stage of trial where the jury would
only be expected to determine Fabion's guilt or
innocence. The warnings, however, were woefully insufficient
to give Fabion the information to make a knowing and
intelligent waiver of counsel for the punishment stage of a
capital trial. The trial court's explanations were
insufficient to explain the circumstances in mitigation of
punishment. Clearly, the punishment stage of a capital trial
involves the presentation of mitigating evidence or the
knowing and voluntary waiver of the presentation of that
While a trial court is not required to explain, in detail,
the second stage procedure, this Court's jurisprudence
requires that a defendant have some understanding of
mitigating evidence before he waives the presentation of that
evidence. See Wallace v. State, 1995 OK CR 19,
¶ 21, 893 P.2d 504, 512-13. The second stage of a death
penalty case is unique among trials in Oklahoma. The second
stage is the means by which the State is obligated to present
evidence to support the alleged aggravating circumstances
beyond a reasonable doubt, and a defendant is allowed to
present mitigating evidence which might persuade a jury to
recommend a sentence less than death.
A defendant is not required to present mitigating evidence.
Wallace, ¶ 18, at 511. A defendant must,
however, be given the opportunity to present mitigating
evidence. Id. "[M]itigating evidence is
critical to the sentencer in a capital case."
Wallace, ¶ 12, at 510.
To support his overarching complaint under this area of his
brief regarding trial procedure and his complaint about the
lack of instruction about the second stage, Fabion cites
Lay v. State, 2008 OK CR 7, ¶ 11, fn 9, 179
P.3d 615, 620, fn 9, arguing that the trial court did not
explain in detail "how the penalty phase of a trial
works." In Lay, the footnote states that,
Here we find Lay's waiver of counsel was adequate. In a
death penalty case the trial court must explain in detail to
any defendant desiring pro se representation how the
penalty phase of a capital trial works.
The language in this footnote was not necessary to the
holding in the Lay case, thus it is dicta.
See Wainwright v. Witt, 469 U.S. 412, 422, 105 S.Ct.
844, 851, 83 L.Ed.2d 841 (1985) (holding statements in a
footnote were dicta because they were unnecessary to
decide a case). Wainwright does not hold that all
statements in footnotes are dicta as the State
argues; however, here the footnote is clearly dicta.
Dicta, or more precisely obiter dictum, are
words of an opinion which are entirely unnecessary for the
decision of the case, and, therefore, not precedential.
Black's Law Dictionary (10th ed. 2014). In other words
dicta "is an expression in a court's
opinion which goes beyond the facts before the court and
therefore is an individual view of the author and is not
binding in subsequent cases . " See Cohee
v. State, 1997 OK CR 30, ¶ 4, 942 P.2d 211, 219
(Lane, J. concurring in results) (citing Black's Law
Dictionary, 5th ed. 408, 409).
Even though the footnote in Lay was dicta,
our decision in Wallace [supra] holds that a
defendant should know and understand the rights he is
abandoning during a sentencing stage of a capital case.
Wallace sets forth a framework that can be utilized
when a defendant chooses self-representation in a capital
case. Wallace, ¶ 21, at 512-13. As that
framework applies in these types of cases, the trial court
must ensure that a defendant choosing self-representation
understands his rights, not only in the guilt/innocence
process, but also in the sentencing process. In doing so,
1) the trial court must inform the defendant of the
right to present mitigating evidence and what
mitigating evidence is;
2) the trial court must inquire of the defendant
whether he or she understands the sentencing rights;
3) the trial court must inquire of the defendant and
make a determination on the record whether the
defendant understands the importance of mitigating
evidence in a capital sentencing scheme, understands
such evidence could be used to offset the aggravating
circumstances proven by the prosecution in support of
the death penalty, and the effect of ...