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Nicholson v. State

Court of Criminal Appeals of Oklahoma

April 26, 2018

IKE FRANK NICHOLSON, JR., Appellant
v.
THE STATE OF OKLAHOMA, Appellee.

          AN APPEAL FROM THE DISTRICT COURT OF OSAGE COUNTY HONORABLE M. JOHN KANE IV, DISTRICT JUDGE

          STUART ERICSON ATTORNEY FOR DEFENDANT

          VIRGINIA SANDERS ATTORNEY FOR APPELLANT

          R. KYLE ALDERSON ASSISTANT DISTRICT ATTORNEY ATTORNEY FOR THE STATE

          MIKE HUNTER ATTORNEY GENERAL JENNIFER B. WELCH ASSISTANT ATTORNEY GENERALATTORNEYS FOR APPELLEE

          OPINION

          LEWIS, VICE-PRESIDING JUDGE.

         ¶1 Ike Frank Nicholson, Jr., Appellant, was tried by jury and convicted of second degree murder, in violation of 21 O.S.2011, § 701.8 (1), in the District Court of Osage County, Case No. CF-2015-340. [1] The jury sentenced Appellant to life imprisonment. The Honorable M. John Kane IV, District Judge, pronounced judgment and sentence accordingly. [2] Mr. Nicholson appeals.

         FACTS

         ¶2 Appellant and his girlfriend, Carrie Lira, traveled from Bethany to Tulsa in late October, 2015, hoping to locate Carrie's missing sister, Kelli. They learned from Antwuan Adamson that Vallon Broadus might be holding Kelli against her will. On the evening of October 21, Appellant, Carrie Lira, and Antwuan Adamson met at Megan Burkett's residence in Tulsa, expecting that Vallon Broadus might be there with Kelli. Neither Broadus nor Kelli were there when they arrived. They parked their car around the corner, and sat waiting in Antwuan Adamson's car just down the street from the residence.

         ¶3 Within an hour or two, Vallon Broadus drove up to Burkett's house in a red car and parked in the driveway. Antwuan Adamson had gone inside the Burkett residence before Broadus arrived, and saw some of the incident that followed on a home video surveillance monitor. [3] By Appellant's own account, he got out of a vehicle and quickly approached the car driven by Vallon Broadus, carrying a 12 gauge shotgun and yelling for Kelli to "get out of the car!" [4] Carrie Lira began driving Adamson's car toward the driveway to block Broadus's exit.

         ¶4 According to Appellant, the red car suddenly lurched backward in his direction, spinning its tires in the gravel, requiring him to step to the left side to avoid being hit. Appellant later admitted to police that he pointed the shotgun's attached flashlight into the driver's eyes as the car went by. He also admitted that the shotgun discharged as he pointed it at the driver, sending several pellets through the driver's windshield, striking and killing Vallon Broadus. The car backed into a large post and stopped.

         ¶5 After seeing part of the incident on camera, Antwuan Adamson quickly walked outside the house. There he saw the Appellant lowering the barrel of the shotgun from a shooting position. Appellant was standing about ten feet to the front side of the red car. Adamson got into his car. Appellant, still carrying the shotgun, jumped in the back seat and told Adamson to drive him around the corner. He drove to a nearby apartment, where Appellant and Carrie Lira got out. Adamson said Appellant took the shotgun with him. Adamson drove away. The shotgun was never recovered. Appellant and Carrie Lira were later arrested in Oklahoma City.

         ¶6 In a subsequent recorded interview with investigators, which was played for the trial jury, Appellant stated as Broadus's car came toward him, "I think I shot him. I think I shot the windshield." He denied intending to kill Broadus, saying he wanted to intimidate him and make him cooperate in efforts to find Carrie's sister, Kelli. After the shooting, Appellant and Carrie got in Adamson's car, rode with Adamson around the corner to their own car, and escaped the scene. Appellant essentially claimed he committed an accidental shooting, and fled in a panic because of his past run-ins with the law. The recording also showed that Appellant declined the investigator's request that he provide a DNA sample for comparison. Further facts will be discussed as necessary to the resolution of the issues on appeal.

         ANALYSIS

         ¶7 In Proposition One, Appellant argues that the trial court erred in finding prosecution witness Antwuan Adamson unavailable to testify at trial and admitting the transcript of his preliminary examination testimony. He also argues the admission of the transcript violated his constitutional right to confrontation. This Court reviews the trial court's finding of a witness's unavailability for abuse of discretion. Mathis v. State, 2012 OK CR 1, ¶ 20, 271 P.3d 67, 75. An abuse of discretion is a clearly erroneous conclusion, contrary to the logic and effect of the facts presented. Pullen v. State, 2016 OK CR 18, ¶ 4, 397 P.3d 922, 925.

         ¶8 We find that the trial court's finding that Adamson was unavailable was not clearly erroneous, and admission of the transcribed testimony was not an abuse of discretion. Because the witness was unavailable, and Appellant had a prior opportunity to cross-examine the witness at preliminary examination, admission of the transcript at trial did not violate Appellant's right to confrontation. Mathis, 2012 OK CR 1, ΒΆ 19, 271 P.3d at ...


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