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White v. State

Court of Criminal Appeals of Oklahoma

February 14, 2019

ROY LEE WHITE JR., Appellant







          KUEHN, JUDGE.

         ¶1 Appellant, Roy Lee White Jr., was convicted by a jury in Comanche County District Court, Case No. CF-2015-642, of Count 1: First Degree Murder (21 O.S.Supp.2012, § 701.7 (A)) and Count 2: Possession of a Firearm After Conviction of a Felony (21 O.S.Supp.2014, § 1283). On April 4, 2017, the Honorable Gerald Neuwirth, District Judge, sentenced him in accordance with the jury's recommendation as follows: Count 1, life imprisonment without parole; Count 2, ten years imprisonment. [1] This appeal followed.

         ¶2 Appellant's convictions arise from the murder of Donald Brewer, on the evening of December 3, 2015, in a room at the Super 9 Motel in Lawton. Brewer died from multiple gunshot wounds to the head and chest. The motel room had been rented by Frank Crowley; Crowley was personally acquainted with both Appellant and Brewer. According to Crowley, Brewer was visiting with him when Appellant came to the room. Crowley said he knew there was some sort of disagreement between the two men about money. Crowley testified that Appellant and Brewer briefly argued about the perceived debt before Appellant brandished a black revolver, shot Brewer (who was unarmed) several times, and then fled. Brewer died at the scene.

         ¶3 As soon as he thought it safe to leave the room, Crowley ran across the street, where he saw a patrol car, and frantically told the officer that his friend had just been shot. Crowley described the gunman as wearing a red sweatshirt and carrying a black backpack. As another officer was responding to the scene, he saw Appellant walking away from the Super 9 Motel, wearing a tank top. The officer found that peculiar, as it was December and the weather was cold. When the officer tried to talk to Appellant, Appellant began to run, but he was eventually apprehended.

         ¶4 Appellant initially told police that he was running because he had heard gunshots. He later told a detective that he had gone to the Super 9 Motel to see his friend "Short," and that he was standing in the doorway of Short's room when he heard gunshots. The detective knew Crowley, and knew that Crowley's nickname was "Short."

         ¶5 When police searched pathways leading away from the motel, they found a sweatshirt and backpack in the grass behind a nearby building. According to the officer who found them, they appeared to have recently been discarded there, because there was moisture on the surrounding grass but the sweatshirt and backpack were dry. The backpack contained a quantity of marijuana and a.32 caliber revolver.

         ¶6 At trial, Crowley testified that the revolver police found in the backpack looked like the gun Appellant used to shoot Brewer. It was the same color as the one Crowley described, and had a small loop (known as a "lanyard ring") at the bottom of the grip, as Crowley described. Crowley said that Appellant shot at Brewer until he ran out of bullets; the cylinder of the found revolver was full of empty shells. A state ballistics examiner testified that the pistol was operable, but she could not determine whether the one bullet fragment retrieved from the crime scene had been fired by that pistol, because the fragment was too damaged to make a comparison. The examiner did, however, conclude that the fragment had the same class characteristics as bullets that would fit the revolver.

         ¶7 Police obtained swabs from Appellant's hands and face to test for gunshot residue. They also submitted the revolver, backpack, and sweatshirt, as well as a buccal swab from the inside of Appellant's cheek, to the Oklahoma State Bureau of Investigation to attempt a DNA comparison. At trial, the criminalist who conducted the tests explained that Appellant was excluded as the donor of DNA recovered from the backpack, and that the sample obtained from the sweatshirt was simply not suitable for analysis. However, Appellant's DNA was consistent with traces found on the revolver. The criminalist testified that the odds of finding a "random match" between the revolver sample, and an unrelated individual in the general population, were 1 in 26. The gunshot-residue (GSR) test detected particles swabbed from Appellant's face which were comprised of a mixture of lead, barium, and antimony -- elements found in gunshot residue, and not normally attributable to any other source.

         ¶8 Appellant did not testify. The jury found him guilty as charged of First Degree Murder. After an additional proceeding where evidence of Appellant's prior convictions was introduced, the jury also found him guilty of Possessing a Firearm After Felony Conviction.

         ¶9 In his first two propositions of error, Appellant claims the evidence was insufficient to support either of his convictions. That Appellant is a convicted felon (a necessary element of Count 2) is not disputed; he only challenges the jury's finding that he was the person who possessed the firearm (Count 2) and used that firearm to kill Brewer (Count 1). Given that the State's evidence either tends to prove both crimes or neither, we consider these claims together. Our task is not to re-weigh the evidence to our own satisfaction, but to determine if, from the evidence presented at trial, a rational juror could have found the elements of each crime by proof beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Hogan v. State, 2006 OK CR 19, ¶ 21, 139 P.3d 907, 919. [2]

         ¶10 Appellant claims that the physical evidence linking him to the crime was inconclusive, and that the testimony of Frank Crowley should be disregarded because he was a convicted felon whose testimony was fraught with inconsistency. We disagree. The results of the DNA comparisons were certainly not as strong here as in some other cases; only one of the three unknown samples was even suitable for comparison, and that one (from the pistol) was determined to be a mixture of DNA from more than one source, which materially affected the probative value of any comparison to Appellant's known sample. Nevertheless, the statistical evidence indicated that Appellant was 26 times more likely to have contributed DNA on the pistol than someone else, unrelated to him, chosen at random from the general population. [3] Furthermore, the GSR test revealed telltale (albeit circumstantial) evidence on Appellant's face that he had recently been in close proximity to the discharge of a firearm. [4]

         ¶11 Appellant takes a "divide and conquer" approach to the State's evidence, compartmentalizing it and pointing to perceived weaknesses in each category. But the jury was instructed to consider the evidence as a whole, and we must do the same. Matthews v. State, 2002 OK CR 16, ¶ 35, 45 P.3d 907, 919-920. Crowley's testimony was direct evidence of Appellant's guilt. When direct testimony comes from an eyewitness, the dangers of mistake or intentional falsehood are always a possibility. Any theory that Crowley innocently misidentified Appellant as the culprit is counterbalanced by the fact that he knew Appellant personally. As for the possibility that Crowley simply lied about Appellant's guilt, Crowley's status as a felon is relevant to his general credibility, but it is counterbalanced by the absence of any known motive for him to falsely accuse Appellant of murder. Crowley's credibility may also have been negatively affected by his history of mental health problems, but the issue was explored at trial.

         ¶12 Crowley's credibility as a whole is bolstered by how his claims meshed with other evidence, some of it (but not all) circumstantial in nature. Circumstantial evidence can be very powerful, given that its probative force is usually derived from inferences drawn from a web of unrelated facts. Weaknesses in one or more pieces of evidence may be overcome if, when all the facts are considered together, they present a unified and convincing theory of guilt. [5] Near the murder scene, police found an abandoned pistol which matched Crowley's description of the murder weapon in unique ways. Not only did Crowley describe the revolver's "lanyard ring," but the empty shells in the pistol's chamber corroborated Crowley's account that the shooter fired until he ran out of bullets. DNA retrieved from the gun could have been Appellant's, even though the statistical probabilities were not as strong as seen in some other cases. The defense made much of the fact that the sweatshirt was not the same color as the one Crowley described. But Crowley explained why he might have been mistaken about its color: "I wasn't looking at what he was wearing. I was looking at the gun." Appellant was observed running away from the motel shortly after the shooting, wearing a tank top in winter weather. His path was consistent with where the sweatshirt, backpack, and gun were found, such that he could have deposited the items along the way.

         ¶13 The jury had yet another piece of direct evidence to consider: Appellant's own statements to police. Appellant admitted that he was standing in the doorway of a motel room rented by someone he called "Short" when he heard gunshots and fled. Crowley's nickname was "Short." Appellant did not admit the shooting, nor did he claim to know who the shooter was, but his unsolicited admission to actually being at the scene is certainly peculiar and raises suspicion when considered in light of all the other evidence in the case. The ultimate question is whether all of this evidence, taken together, excludes any reasonable probability that Appellant was not the shooter. We believe a rational juror could conclude, beyond any reasonable doubt, that Appellant (a felon) possessed a firearm, and that he used that firearm to kill Brewer with malice aforethought. Propositions I and II are denied.

         ¶14 In Proposition III, Appellant claims the trial court erred in failing to instruct the jury on Second Degree, Depraved Mind Murder as an alternative to First Degree, Malice Murder. Appellant did not request this alternative at trial, so we review this claim for plain error. McHam v. State, 2005 OK CR 28, ¶ 21, 126 P.3d 662, 670. Plain errors are those errors which are obvious in the record, and which affect the substantial rights of the defendant -- that is, the error affects the outcome of the proceeding. Daniels v. State, 2016 OK CR 2, ¶ 3, 369 P.3d 381, 383. In the context of lesser-related offense instructions, relief is not warranted unless a rational juror could have rejected elements that distinguish the charged crime from the lesser alternative. McHam, 2005 OK CR 28, ΒΆ 21, 126 P.3d at 670. Appellant maintained that he was innocent of the charges. The State's evidence clearly established that the person who shot Brewer did so with the intention of killing him; Crowley testified that the assailant (whom he identified as Appellant) exclaimed, "No one told you that I was a killer" before he started shooting. When Brewer fled into the bathroom and shut the door, the assailant rebuffed Crowley's pleas to stop, saying, "I'm going to kill him" before firing through the bathroom door. Crowley said Appellant fired until he had no bullets left; Brewer sustained ...

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