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Brown v. State

Court of Criminal Appeals of Oklahoma

February 15, 2018









         ¶1 Appellant, Fabion Demargio Brown [1], 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. [2] 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).

         ¶2 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. [3]

         I. FACTS

         ¶3 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.

         ¶4 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 picture.

         ¶5 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.

         ¶6 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.

         ¶7 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.

         ¶8 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 caliber weapon.

         ¶9 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.

         ¶10 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.

         ¶11 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.

         ¶12 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 apartment.

         ¶13 Glover was at the Wal-Mart in the Kia Soul with two other individuals. After meeting with Glover, Matheson returned to the apartment.

         ¶14 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.


         ¶15 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. [4] 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. [5] 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).

         ¶16 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 678-79.

         ¶17 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 Cir.1987).

         ¶18 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.

         ¶19 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.

         ¶20 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.

         ¶21 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 se." Id.

         ¶22 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.

         ¶23 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.

         ¶24 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 myself."

         ¶25 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."

         ¶26 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.

         ¶27 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."

         ¶28 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.

         ¶29 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.

         ¶30 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 for anything."

         ¶31 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.

         ¶32 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.

         ¶33 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.

         ¶34 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.

         ¶35 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.

         ¶36 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.

         ¶37 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, "38-plus years."

         ¶38 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 himself.

         ¶39 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.

         ¶40 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.

         ¶41 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.

         ¶42 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.

         ¶43 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 evidence.

         ¶44 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.

         ¶45 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.

         ¶46 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.

         ¶47 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).

         ¶48 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 ...

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