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Harris v. State

Court of Criminal Appeals of Oklahoma

September 26, 2019

DONNIE L. HARRIS, JR., Appellant
v.
THE STATE OF OKLAHOMA, Appellee.

          AN APPEAL FROM THE DISTRICT COURT OF LEFLORE COUNTY THE HONORABLE JONATHAN K. SULLIVAN, DISTRICT JUDGE

          PETER ASTOR JAMES BOWEN COUNSEL FOR DEFENDANT

          MARGARET NICHOLSON ASST. DISTRICT ATTORNEY COUNSEL FOR THE STATE

          KRISTI CHRISTOPHER RAYMOND E. DENECKE COUNSEL FOR APPELLANT

          MIKE HUNTER ATTORNEY GENERAL OF OKLA. JOSHUA L. LOCKETT COUNSEL FOR APPELLEE

          OPINION

          KUEHN, VICE PRESIDING JUDGE

         ¶1 Appellant, Donnie Lee Harris, was charged in the District Court of LeFlore County, Case No. CF-2012-113, with Felony Murder in the First Degree (21 O.S.2011, § 701.7 (B)). The State sought the death penalty, and alleged two statutory aggravating circumstances in support thereof: (1) that the murder was especially heinous, atrocious, or cruel; and (2) that Appellant knowingly created a great risk of death to more than one person. 21 O.S.2011, § 701.12 (2), (4). Jury trial was held December 9 through 18, 2013 before the Honorable Jonathan K. Sullivan, District Judge. The jury rejected several lesser forms of homicide as alternatives to the charge, found Appellant guilty of First Degree Murder, found both aggravating circumstances, and imposed a sentence of death. Formal sentencing was held February 12, 2014.

         SUMMARY OF THE TRIAL PROCEEDINGS

         ¶2 Appellant was convicted of killing his girlfriend, Kristi Ferguson, by intentionally dousing her with gasoline and setting her on fire. The couple had been in a tumultuous relationship for several years. Late on the evening of February 18, 2012, Appellant and Ferguson showed up at the home of Martha Johnson in Talihina. Appellant lived with his father, brother, and others in a home near Johnson's. Johnson and her son testified that Ferguson, nearly naked, was screaming for help on their front porch. Part of her bra was melted to her chest. The Johnsons smelled gasoline and burned flesh. As they waited for an ambulance to arrive, Appellant repeatedly tried to keep Ferguson from talking, saying things like, "Shut the fuck up. Shut your fucking mouth. Just shut your fucking mouth. You're going to get me in fucking trouble. Don't say another fucking word." Ferguson was heard to say, "Donnie, look at me. Look what you did to me, " to which Appellant replied, "I know."

         ¶3 Emergency personnel also testified that Appellant tried to keep Ferguson from telling them what happened. The paramedics repeatedly asked Appellant to get out of their way as they attended to Ferguson. As Ferguson was carried to the ambulance, Appellant ran alongside, repeatedly exclaiming that he was sorry, that he loved her, and "We took it too far." Once Ferguson was secured inside the ambulance and away from Appellant, she said, "I don't want him in here. Keep him away from me. Keep him away from me. Don't let him near me. He did this to me.... He threw kerosene on me and set me on fire."

         ¶4 After the ambulance left, Appellant walked to the home of his friend, Melvin Bannister. (At trial, Bannister testified that Appellant said he had gotten into a fight with Ferguson, and that some candles caught their house on fire.) When police made telephone contact with Appellant, he initially refused to reveal his location, but eventually agreed to be transported to the police station for an interview. Several witnesses said that Appellant reeked of gasoline; he had a serious burn to his left hand. A lighter was found in his pocket, although he later told a detective that he did not smoke.

         ¶5 Appellant gave authorities vague and inconsistent accounts of what happened. [1] On February 19, 2012, after a brief discussion with Talihina Police Officer Justin Klitzke, Appellant had a more extensive interview with State Fire Marshal Agent Tony Rust, who had been dispatched to investigate the fire. Appellant told Klitzke that he kept a Crown Royal bottle of gasoline on a table in his bedroom, but said he had no idea how the fire started. Appellant wrote a four-page account of what happened for Agent Rust where he claimed that while he and Ferguson were in his bedroom, a fire of unknown origin broke out "in an instant, " and quickly "jumped to a blaze" on Ferguson's clothes. When Rust told Appellant he did not believe that account, Appellant exclaimed, "I didn't splash gasoline on her and set her on fire."

         ¶6 On February 24, 2012, Appellant was interviewed by LeFlore County Investigator Travis Saulsberry. That interview was recorded and played for the jury at trial. He volunteered to Saulsberry (as he had to Officer Klitzke) that he kept a Crown Royal bottle full of gasoline on a table in his bedroom. Appellant maintained that he did not know how the fire started. However, from the beginning, he conceded that the gasoline-filled bottle played a part. Initially he theorized that Ferguson may have kicked the bottle off of the table. When directly confronted about how the fire started, Appellant offered various possible scenarios. Almost in the same breath, he claimed that it might have been caused by candles or a faulty space heater, but he later said there were no lit candles in his bedroom at the time. When confronted with Melvin Bannister's claim that he had blamed the fire on candles, Appellant denied making such a claim. When confronted with a recording of Bannister's statement to that effect, Appellant replied that he "didn't know what else to say." At one point he told Saulsberry, "I don't know how it happened." Still later, Appellant claimed that Ferguson actually grabbed the Crown Royal bottle full of gasoline and "threw it down, " causing the bed to catch fire. Appellant accused every other witness of being untruthful or mistaken. [2]

         ¶7 Because firefighters had to return to the scene several times to put out "hotspots, " Agent Rust was unable to safely inspect it until a few days after the fire. He collected pieces of a Crown Royal bottle found in the debris and sent this evidence, along with clothing Appellant was wearing at the time of his arrest, to the Oklahoma State Bureau of Investigation for analysis. According to OSBI Criminalist Brad Rogers, the pieces of the bottle contained traces of an ignitable fluid such as gasoline.

         ¶8 Ferguson was eventually flown to Oklahoma City for treatment of second- and third-degree burns over fifty percent of her body. She also suffered other fire-related trauma such as lung damage. She succumbed to her injures a few weeks later. The burn patterns on her skin were consistent with those made by a liquid accelerant such as gasoline. Doctors testified that the pain associated with Ferguson's injuries would have been unimaginable.

         ¶9 The State presented evidence that the relationship between Appellant and Ferguson was tumultuous, that Appellant had made a number of menacing and threatening statements to and about Ferguson, and that Ferguson had sought a protective order against Appellant. A few weeks before the fire, Ferguson moved out of Appellant's home to live with a friend, Jenny Turner. Turner testified that Appellant threatened to kill Ferguson several times, saying things like, "I will kill you before I see you happy in Talihina." On one occasion, Appellant drove by Turner's home, waved a handgun and said, "I wanted y'all to see my new friend." Turner also recalled that a week before the fire, Appellant tried to run over Ferguson in his car.

         ¶10 The defense presented testimony from several of Appellant's family, who described the relationship between Appellant and Ferguson and their observations during the fire. None of them had personal knowledge about how the fire started.

         ¶11 In the first stage of the trial, the jury found Appellant guilty of First Degree Felony Murder in the Commission of First Degree Arson, rejecting the lesser alternative crimes of Second Degree Murder (Depraved Mind), First Degree Manslaughter (Heat of Passion), and Second Degree Manslaughter (Culpable Negligence). The jury's guilty verdict on a capital offense led to a second, capital sentencing phase of the trial. The State adopted the first-stage evidence to support its two aggravating circumstances. It presented victim impact testimony from Ferguson's father, mother, stepmother, and sister. It also presented brief expert testimony about the pain Ferguson likely suffered as a direct result of her burns. The defense presented many friends and family who testified to Appellant's upbringing, work habits, religious conviction, and general character as a good person whose life should be spared. The defense also presented a psychologist who examined Appellant and a mitigation specialist who provided a summary of Appellant's life story. After being instructed on how to consider the evidence relevant to sentencing, the jury recommended punishment of death.

         ANALYSIS

         ¶12 In Proposition I, Appellant claims his inability to review certain materials has denied him his right to a meaningful appeal. Both trial counsel and appellate counsel designated, for the record on appeal, a "complete transcript" of each proceeding, and all exhibits "offered by any party, whether admitted or not." During the pendency of the appeal, appellate counsel filed several objections claiming the appeal record was not complete. Several times, we remanded the case to the district court to determine whether items were in fact missing, and if so, whether they could be recovered. [3] The materials at issue here fall into two groups: (1) omissions from the transcript of proceedings below, and (2) physical evidence presumably lost or destroyed before the appeal was perfected.

         ¶13 Appellant complains that no record exists of a motion hearing held December 4, 2013, a few days before trial began. The fact that a hearing was held on that date is not in dispute; in fact, counsel for both parties were in substantial agreement about much of what was discussed, including Appellant's complaints about his attorneys' communication with him. Importantly, both counsel also recalled stipulating that the State would substitute photographs and laboratory reports for much of its physical evidence. However, the district court concluded that no transcript or reporter's notes from the hearing could be found. Over Appellant's objection, we accepted the trial court's findings and conclusions, and deemed the appeal record complete.

         ¶14 Appellant has also catalogued several points in the trial proceedings where a participant's response is not recorded. These complaints fall into two categories: (1) where prospective jurors were asked to raise their hands in response to certain questions, but no record is made of how each individual panelist responded; and (2) where the response of a prospective juror or witness is described as "inaudible" by the court reporter. Finally, during the preparation of the appeal, appellate defense counsel attempted to locate physical evidence collected at the scene of the fire. This Court remanded the case to the district court to determine if this evidence still existed, but apparently it does not. Again, we note that the parties agreed to introduce photographs in lieu of most of the physical evidence related to this case.

         ¶15 As to the transcript of proceedings, Appellant acknowledges that it is his burden to show prejudice from any perceived omissions. Parker v. State, 1994 OK CR 56, ¶¶ 25-27, 887 P.2d 290, 294-95. Failure to provide a complete record of every word spoken, or every action taken, in the proceedings below is not per se reversible error. Harris v. State, 2007 OK CR 28, ¶ 7, 164 P.3d 1103, 1108-09. If the record is so incomplete that this Court cannot conduct a meaningful review, then relief may be warranted, particularly in capital cases where we are statutorily obligated to review the appropriateness of the death sentence. See Black v. State, 2001 OK CR 5, ¶¶ 83-88, 21 P.3d 1047, 1075-76. [4] Yet Appellant makes no attempt to show prejudice in this proposition. Instead, he claims prejudice will be shown as the omissions relate to other propositions of error, specifically Propositions III, VIII, XV, and XVII. [5] We will revisit the purportedly missing evidence and testimony as necessary in those claims. Proposition I is denied.

         ¶16 Propositions II, III, and IV share some factual background. The State's primary evidence against Appellant in the guilt phase consisted of Ferguson's statements immediately after the fire, Appellant's own incriminating statements and conduct after the fire, and his inconsistent and sometimes fanciful explanations in interviews with authorities. Appellant's defense team retained the services of an expert to assist in reviewing the State's handling of the investigation. In Proposition II, Appellant claims he was denied a fair trial because he was unable to present expert testimony to the jury. In Proposition III, he claims he was denied a fair trial because the State failed to preserve physical evidence from the fire scene. In Proposition IV, he accuses the State of failing to disclose evidence affecting the credibility of the investigator who collected evidence from the scene.

         ¶17 The fire occurred on the evening of February 18, 2012. The State Fire Marshal's Investigator, Tony Rust, spoke with Appellant and collected his clothing shortly after Appellant was taken into custody in the early morning hours of February 19, but Rust was unable to safely inspect the scene of the fire or collect evidence from it until a few days later. Rust submitted the physical evidence he collected to the OSBI in late February 2012. It was examined and analyzed in May 2012. Appellant's defense team hired its expert, David Smith, in late October 2012. Almost a year later, in September 2013, Smith submitted a brief report outlining his own conclusions about Agent Rust's investigation. Smith lives in Arizona. His report was based on documents, photos, and other material provided by defense counsel. There is no indication that Smith visited the scene of the fire; he did not personally inspect or test any physical evidence, and never asked to do so. A copy of Smith's report is included in the trial record as Court's Exhibit 2.

         ¶18 Smith was listed as a potential witness for the defense. Sometime during the first day of jury selection (December 9, 2013), defense counsel received word that Smith had suddenly developed a serious medical condition which prevented him from traveling. Counsel notified the trial court of the situation on the second day of jury selection (December 10), and provided an update after the third and final day of jury selection (December 11), telling the court that Smith would be sending paperwork about his condition. The State began presenting its evidence on the morning of December 12. That same day, defense counsel filed a verified motion for mistrial based on Smith's unavailability. The court heard argument on the motion on December 13. The State rested its guilt-stage case on the morning of December 14. Although defense counsel renewed his request for mistrial several times during the trial, documents substantiating Smith's condition were not received by the court until after the State had rested.

         ¶19 In Proposition II, Appellant claims the trial court's refusal to grant a mistrial, or at least a continuance, until Smith (or a replacement) could be brought in, infringed on his Sixth Amendment right to compulsory process, and ultimately violated his Fifth Amendment right to present a complete defense. We review a trial court's refusal to grant a mistrial or a continuance for an abuse of discretion. Jackson v. State, 2006 OK CR 45, ¶ 11, 146 P.3d 1149, 1156 (mistrial); Marshall v. State, 2010 OK CR 8, ¶ 44, 232 P.3d 467, 478 (continuance).

         ¶20 As noted, after jury selection had begun, the defense team learned that Smith, its fire expert, had developed a serious medical condition, and had been advised by his physician not to travel. Counsel appears to have communicated this development promptly to the prosecutor and the court. At the end of December 10, the second day of jury selection, lead defense counsel made reference to prior off-the-record discussions about how to proceed, mentioned a "potential, maybe, solution" that the prosecutor had suggested, and said he would probably be filing a motion for mistrial if Smith was indeed unable to travel. On December 11, the final day of jury selection, defense counsel told the court that Smith was sending paperwork about his condition. The State began presenting its evidence on the morning of December 12. That same day, defense counsel filed a verified motion for mistrial based on Smith's unavailability, with a brief "no travel" directive, presumably from Smith's physician and scribbled on a prescription pad, attached to the motion. The court heard argument on the motion on December 13, but declined to take any action without additional information. The State rested its guilt-stage case on the morning of December 14. Although defense counsel renewed his request for mistrial several times during the trial, documents substantiating Smith's condition were not received by the court until after the State had rested on December 14. The court commented that a brief continuance might have been possible, but defense counsel could never say how much additional time was needed before Smith could appear or a replacement expert could be obtained.

         ¶21 From this record we conclude the following: (1) a continuance was at least considered, initially, as a possible remedy to the situation, and the prosecutor suggested some other alternative, possibly testifying by video; (2) defense counsel never formally requested a continuance; and (3) instead of formally requesting a continuance, or seeking alternative means of securing Smith's testimony without interrupting or delaying the trial, defense counsel took a different tack and moved for a mistrial, on the theory that Appellant had a constitutional right to demand the physical presence of his witnesses.

         ¶22 The Compulsory Process Clause of the Sixth Amendment, in conjunction with the Due Process Clause of the Fifth Amendment, have been interpreted to guarantee the accused a fair opportunity to secure and present relevant evidence. States may not enact laws or enforce rules that arbitrarily and unfairly prevent the accused from presenting relevant evidence. See generally Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967) (invalidating state evidence rule declaring accomplices to be "incompetent" as witnesses unless they were testifying for the prosecution or had been acquitted); Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 2146, 90 L.Ed.2d 636 (1986) (invalidating state rule barring defendant from presenting evidence to jury relevant to the voluntariness of his confession).

         ¶23 States may, however, enforce reasonable rules of procedure that apply to both parties. For example, in Taylor v. Illinois, 484 U.S. 400, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988), the trial court barred the defendant from presenting a material witness as a sanction for failing to disclose that witness to the prosecution during pretrial discovery. The Court began by noting that, unlike other Sixth Amendment rights (such as the right to confront one's accusers), the Compulsory Process Clause "is dependent entirely upon the defendant's initiative"; the decision whether to invoke that right "rests solely with the defendant." 484 U.S. at 410, 108 S.Ct. at 653. The Court then observed that our adversary system could not function without rules of procedure that "govern the orderly presentation of facts and arguments to provide each party with a fair opportunity to assemble and submit evidence to contradict or explain the opponent's case." Id. at 411, 108 S.Ct. at 654. Ultimately, the Court concluded that barring Taylor's defense witness was an acceptable sanction under the circumstances, because the Sixth Amendment "does not confer the right to present testimony free from the legitimate demands of the adversarial system." Id. at 412-13, 108 S.Ct. at 655 (quoting United States v. Nobles, 422 U.S. 225, 241, 95 S.Ct. 2160, 2171, 45 L.Ed.2d 141 (1975)).

         ¶24 As Appellant claims the trial court's refusal to accommodate his situation to his satisfaction was tantamount to denying him the right to present a defense, he must show (1) that the court prevented him from obtaining or presenting evidence; (2) that the court's action was arbitrary or disproportionate to any legitimate evidentiary or procedural purpose; and (3) that the excluded evidence "would have been relevant and material, and... vital to the defense." Washington, 388 U.S. at 16, 87 S.Ct. at 1922. The requirement of materiality is in keeping with other situations where a defendant has been denied access to evidence, whether by loss, destruction, or concealment by the prosecution. See United States v. Valenzuela-Bernal, 458 U.S. 858, 867-69, 102 S.Ct. 3440, 3446-47, 73 L.Ed.2d 1193 (1982).

         ¶25 As to the first two Washington criteria, Appellant was not barred from presenting Smith's testimony as punishment for failing to follow procedure, or as a result of some arbitrary rule. A defendant's right to present a defense is not unlimited; it is subject to reasonable restrictions. United States v. Scheffer, 523 U.S. 303, 308, 118 S.Ct. 1261, 1264, 140 L.Ed.2d 413 (1998). Defense counsel did not formally request a continuance, but if he had, it would properly have been denied on the information provided to the court at the time. If a continuance is requested due to an absent witness, the proponent must inform the court of "the probability of procuring [the absent witness's] testimony within a reasonable time, and what facts [counsel] believes the witness will prove, and that he believes them to be true." 12 O.S.2011, § 668. Defense counsel did none of these things.

         ¶26 Nor did defense counsel make a record of any alternative remedies that were considered, such as having Smith testify remotely, and why no alternative to Smith's physical presence was feasible. See e.g. Harris v. State, 2004 OK CR 1, ¶ 10 n.3, 84 P.3d 731, 740 n.3 (live video testimony employed in capital murder trial where, ten days into the trial, terrorist attacks shut down air travel nationwide). The record shows that defense counsel had considered the possibility of having Smith testify by video, but instead took the position that the right to compulsory process included the absolute right to insist upon in-person testimony from any witness considered important to the defense. There simply is no authority for such a position. [6]

         ¶27 In our view, this is a case of unfortunate timing, with defense counsel ultimately unwilling to try to mitigate his predicament. By the time the trial court received the barest details of Smith's situation, the State's case-in-chief was well under way. Defense counsel could not offer even a ball-park estimate of when the defense could be ready. In its extended colloquy with defense counsel on December 13, the trial court discussed relevant case law, and expressed considerable understanding of the medical condition that Smith had apparently experienced. As for Smith's situation, all the court had before it was a doctor's note, scribbled on a prescription pad, advising Smith not to travel. The court took no action at that time, but invited counsel to bring more information as he received it. By the end of that same day, the State's guilt-stage case was almost complete. By the time the court received detailed information about Smith's status on December 14, the State had already rested its case.

         ¶28 Even if Appellant could show that the trial court's refusal to abort or pause the trial was unreasonable and disproportionate, he must still show that he was denied the right to present information material to his defense, and a reasonable likelihood that such information, if presented, would have affected the jury's verdict. Washington, 388 U.S. at 16, 87 S.Ct. at 1922; Valenzuela-Bernal, 458 U.S. at 873-74, 102 S.Ct. at 3450. Appellant was not denied a fair opportunity to use Smith's contribution to this case. Smith's written report summarizes the work he had done and the conclusions he had drawn. As we have noted, Smith never visited the scene or sought to inspect any physical evidence. He had no palpable alternative explanation for how the fire started. His only task was to critique the methods used and opinions reached by the State's investigator, Agent Rust. After reviewing the materials provided to him, Smith's conclusions were that Rust (1) failed to follow "recognized practices and methodologies, " resulting in opinions that were "scientifically flawed"; (2) failed to establish a "competent ignition source" or "ignition scenario"; and (3) failed to formulate or test alternative hypotheses for how the fire started.

         ¶29 The gist of Smith's two-page report is that Rust was unable to independently establish, through physical evidence (i.e., ignoring what eyewitnesses told him), a probable scenario for how and where the fire began. Where the fire began was never in dispute; according to Appellant and others in the house at the time, it began in his bedroom. How the fire began -- and more precisely, how Ferguson came to be covered in gasoline -- was disputed, but the various possibilities Appellant suggested to police were just that: possibilities. They were inconsistent with what Ferguson said, they were inconsistent with what Appellant had told Melvin Bannister, and they were inconsistent with one another. Appellant finally told Detective Saulsberry he had "no idea" how the fire started. As for the gasoline, Appellant initially told Saulsberry that Ferguson must have accidentally knocked the bottle off the table; later, he claimed that Ferguson (inexplicably) smashed the bottle into the flames on purpose.

         ¶30 While it may generally be the task of the Fire Marshal to investigate the cause of a fire with unknown or suspicious origin, Smith's expert opinion seems to fault Rust for paying attention to important primary evidence: the statements of Appellant and Ferguson, the only eyewitnesses to the fire's beginnings. Agent Rust focused on collecting the remains of the Crown Royal bottle because Appellant told Rust (and others) that he kept that bottle, full of gasoline, in his room, and because Appellant himself said the gasoline played a part in the fire. Appellant's strategy was to claim that the fire might have been an accident -- that it might have been caused by, say, a spark from an overloaded electrical outlet -- and that Agent Rust failed to eliminate those kinds of possibilities. Defense counsel took Rust to task for his methods and opinions. Appellant himself notes that trial counsel's cross-examination of Rust was "extensive." Counsel flatly told Rust, "I'm trying to show this jury that you did a poor investigation."

         ¶31 Appellant has not shown this Court that Smith himself could have been any more effective in disputing Rust's theory. Rust never denied that an electrical spark can cause a fire; he simply had no evidence on which to rest such a theory in this case. If Smith had attended the trial, defense counsel still would have cross-examined Rust, in presumably the same manner, in the State's case-in-chief. Smith's testimony would have been somewhat cumulative, since he had conducted no tests or examinations, and had no specific, evidence-based alternative theories of his own. The State obligated itself to proving that Appellant intentionally set fire to Ferguson. The foundation of its theory consisted of the things Appellant and Ferguson said immediately after the fire. The State was only required to dispel any reasonable doubt about its theory; it was not required to disprove all other conceivable ones. [7]

         ¶32 Appellant claims the record is "replete" with instances where Smith's expert testimony would have been material and favorable, but he does not give any examples. We find Smith's role to be somewhat attenuated. He was not an eyewitness to the events giving rise to the charge, nor was he offered as a crucial witness in mitigation of sentence. He could not provide expert guidance as to Appellant's capacity to understand the nature and consequences of his acts. Cf. Frederick v. State, 1995 OK CR 44, ¶¶ 16, 25-26, 902 P.2d 1092, 1095-96, 1098 (capital defendant, whose sanity was in question, was denied a fair trial when court refused to grant a continuance to allow a psychiatrist to examine him); Coddington v. State, 2006 OK CR 34, ¶¶ 81-82, 90, 142 P.3d 437, 458, 460 (capital defendant was denied a fair trial by exclusion of his mother's video-taped testimony from the sentencing phase of trial). [8] Rather, Smith's opinions only tangentially relate to Appellant's guilt or innocence, because they merely call into question the thoroughness of investigator Rust whose greatest error was failing to look through the charred remains of the fire scene for ways to bolster theories that not even Appellant could credibly offer. We conclude that the material aspects of Smith's proffered expert opinion were sufficiently presented through the cross-examination of Agent Rust.

         ¶33 An abuse of discretion is an unreasonable, unconscionable and arbitrary action taken without proper consideration of the facts and law pertaining to the matter submitted. Cuesta-Rodriguez v. State, 2010 OK CR 23, ¶ 19, 241 P.3d 214, 225. A defendant's right to present evidence is one of the core guarantees of due process. But given Appellant's apparent refusal to seriously consider viable alternatives (such as remote testimony), and his inability to estimate how much additional time was needed, we cannot say the trial court abused its discretion in refusing to abort or indefinitely pause a trial that was already well under way. [9] The record shows the trial court fairly and thoughtfully considered the situation as it developed. Furthermore, we do not believe Smith's absence prevented defense counsel from using his report to its fullest practical value. Appellant was not denied the right to present a defense to the crime; rather, through unfortunate circumstances and his own tactical decisions, he was unable to use impeachment evidence in a way that he now considers optimal. Considering the limited utility of Smith's critique, and the strong evidence of Appellant's guilt, we find no reasonable probability that Smith's presence would have affected the outcome of the trial. Valenzuela-Bernal, 458 U.S. at 873-74, 102 S.Ct. at 3450. Proposition II is denied.

         ¶34 In Proposition III, Appellant claims he was denied due process because the State failed to preserve certain physical evidence. The Due Process Clause of the Fourteenth Amendment obligates the State to preserve evidence that might be expected to play a significant role in a suspect's defense. California v. Trombetta, 467 U.S. 479, 488-89, 104 S.Ct. 2528, 2534, 81 L.Ed.2d 413 (1984). This obligation is not triggered unless the exculpatory value of the evidence is apparent before its destruction, and the evidence is such that the defendant would be unable to obtain comparable evidence by other reasonably available means. Id. When the exculpatory value of the evidence is not apparent, a less stringent test applies. If the State failed to preserve evidence that can only be called potentially useful to the defense, then no relief is warranted unless the defendant can show bad faith on the State's part. Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 337, 102 L.Ed.2d 281 (1988); Cuesta-Rodriguez, 2010 OK CR 23, ¶ 20, 241 P.3d at 225.

         ¶35 As noted, Agent Rust collected physical evidence from the scene, as well as the clothing Appellant was wearing and the lighter he was carrying when he was arrested. Rust sent those items (except the lighter) to the Oklahoma State Bureau of Investigation for examination, which found traces of gasoline, or components of gasoline, on them. The OSBI analysis took place in May 2012. The evidence was then returned to LeFlore County authorities. However, at some point after testing, the evidence was lost. [10]

         ¶36 We first consider whether this evidence had any apparent exculpatory value. The simple answer is that, if the evidence had had any tendency to substantiate any part of the defense theory, or contradict the State's theory, then defense counsel would have at least asked to inspect it. Instead, counsel stipulated that photographs of the evidence were sufficient for the jury's purpose. Similarly, if the prosecutor had felt this evidence materially advanced the State's theory, she presumably would have introduced it. In reality, there was nothing particularly probative about the physical evidence for either party, as it only tended to corroborate what was never in dispute: that Appellant owned a cigarette lighter, that he had a Crown Royal bottle full of gasoline in his bedroom, and that the gasoline played some part in the fire that killed Ferguson. The OSBI's findings were entirely consistent with these facts and, in the end, no surprise to anyone. Indeed, Appellant does not take issue with those findings. We fail to see any exculpatory value in this evidence which would have been readily apparent before it went missing. Appellant offers no theory of how any of this evidence might have been parlayed to his advantage with additional examination or testing. Nor does he allege any bad faith on the part of the State in allowing this evidence to be lost or destroyed, which is fatal to any claim that the evidence was at least potentially useful to the defense. [11]

         ¶37 Once again, we stress that neither Appellant's defense lawyers nor his expert ever asked to inspect any of this evidence before trial. [12] Given the totality of the evidence presented, we can understand why: there was nothing to be gained from it. Due process does not impose "an undifferentiated and absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance in a particular prosecution." Youngblood, 488 U.S. at 58, 109 S.Ct. at 337. Appellant has failed to show either (1) that the State permitted the loss or destruction of physical evidence whose exculpatory value was apparent at the time, or (2) that the State acted in bad faith in permitting the loss or destruction of physical evidence with even potential value to the defense. Proposition III is denied.

         ¶38 In Proposition IV, Appellant claims he was denied a fair trial by the State's failure to disclose evidence which could have impeached the credibility of Agent Rust, the State fire investigator who collected evidence and transmitted it to the OSBI. Due process requires the State to disclose evidence favorable to an accused, including evidence that would impeach the credibility of the State's witnesses or the probative force of its physical evidence. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963); United States v. Bagley, 473 U.S. 667, 677, 105 S.Ct. 3375, 3381, 87 L.Ed.2d 481 (1985); Bramlett v. State, 2018 OK CR 19, ¶ 28, 422 P.3d 788, 797. To establish a Brady violation, a defendant need not show that the State intentionally withheld such information. He must, however, show that the evidence had exculpatory or impeachment value, and that it was material, such that there is a reasonable probability that its omission affected the outcome of the proceeding. Id. The question is whether, absent the non-disclosed information, the defendant received a fair trial resulting in a verdict worthy of confidence. Id.

         ¶39 Because Brady claims, by definition, involve information that was not timely disclosed to the defense, they typically do not arise until sometime after trial. We remanded this case during the pendency of the appeal to resolve issues concerning the completeness of the record and the availability of physical evidence (see Proposition III). Information related to the present claim was presented at some of those hearings. Thus, the record before us already contains some of the factual basis for Appellant's Brady claim. Additional affidavits are included in a supplementary filing pursuant to Rule 3.11(A), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019), which provides:

After the Petition in Error has been timely filed in this Court, and upon notice from either party or upon this Court's own motion, the majority of the Court may, within its discretion, direct a supplementation of the record, when necessary, for a determination of any issue; or, when necessary, may direct the trial court to conduct an evidentiary hearing on the issue.

         ¶40 While seldom used, this provision seems well-tailored to the situation before us, where the supplementary materials inform and offer a more complete understanding of matters that were developed during the pendency of the appeal, and which themselves are part of the appeal record. Pursuant to Rule 3.11(A), we GRANT Appellant's request to consider investigators' affidavits and materials attached to them in conjunction with the Brady claim that arose during the post-trial remand hearings. Coddington v. State, 2011 OK CR 17, ¶ 21, 254 P.3d 684, 698.

         ¶41 The information at issue here falls into three categories: (1) an investigation into Rust's job performance, conducted by the Oklahoma State Fire Marshal's Office, several years before this case and unrelated to it; (2) the prosecutor's own interactions with Rust in the past; and (3) other allegations of job-related misconduct which did not come to light until after the trial.

         ¶42 We may easily dispense with the last allegation, because its factual basis simply did not exist at the time of trial. Appellant could not have impeached Rust's credibility with events that had not yet happened. Appellant concedes that the "bulk" of his concerns with Agent Rust's credibility relate to his investigation of this case, and he does not claim that the prosecutor has withheld any information on that subject. Since those allegations arose, the prosecutor has been completely cooperative and forthcoming in transmitting information to Appellant's defense team. [13]

         ¶43 As for the remaining matters, we question whether Brady extends to a prosecutor's personal opinion about a particular officer's work habits, punctuality, or similar issues. We also question whether Brady requires prosecutors to trawl for impeachment ammunition (including confidential personnel information) about every agent, from any arm of law enforcement, who had any involvement in a particular investigation. Given the posture of the case, we need not explore those questions here. The scope of the prosecutor's obligations are moot, because Appellant is not seeking potential Brady material; he already has the material. Regardless of the prosecutor's obligations or good faith, no Brady claim can succeed unless there is a reasonable probability that the evidence in question would have affected the outcome of the proceeding.

         ¶44 The remaining allegations concern Rust's training and other alleged personnel issues which occurred before this prosecution. We stress that these allegations do not involve claims that Rust ever destroyed, hid, or tampered with any evidence, in this investigation or in any other. In essence, the evidence that developed after trial suggested that Rust had not always followed office policy in his investigations, and that the prosecutor herself had unspecified "issues" with Rust while she briefly supervised him years before. [14] We believe any impeachment value in Agent Rust's general work habits bears little relevance to this case. Appellant claims Rust's credibility was essential -- that the State could not have made its case without him. We disagree. The State's case was built upon the statements of the victim immediately after the fire, and Appellant's own suspicious conduct and statements. Rust's credibility per se was not central to the State's case, because Rust's participation was limited to collecting evidence from Appellant and the fire scene, and -- as we observed in Proposition III -- the probative value of that evidence was marginal as well. Furthermore, Rust's perceived lapses in this case were made apparent to the jury. Defense counsel chastised Rust on cross-examination for not considering alternative theories of how the fire started. The OSBI criminalist who tested the materials Rust submitted to him testified that Rust's preservation of Appellant's clothing was "probably one of the worst" evidence-collection jobs he had seen. [15]

         ¶45 Appellant does not claim any of the evidence Rust collected was tampered with or planted. He does not claim that his statements to Rust were coerced or fabricated. As we have noted, the fact that Appellant kept a liquor bottle full of gasoline in his bedroom, and that gasoline played a part in the fire that killed Ferguson, was never in dispute. Contrary to Appellant's claim, Rust did not "rush to judgment" by focusing on and retrieving pieces of the liquor bottle from the scene; his focus was guided by Appellant's own account of what happened. The only question at trial was whether Appellant intentionally set Ferguson ablaze. Rust never claimed any ability to "prove" that contention.

         ¶46 In a Brady analysis, evidence is material only if there is a reasonable probability that, had the evidence been timely disclosed to the defense, the result of the proceeding would have been different. A "reasonable probability" is one "sufficient to undermine confidence in the outcome." Bagley, 473 U.S. at 682, 105 S.Ct. at 3383. Put another way, evidence is material only if it could "reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." Cone v. Bell, 556 U.S. 449, 470, 129 S.Ct. 1769, 1783, 173 L.Ed.2d 701 (2009) (quoting Kyles v. Whitley, 514 U.S. 419, 435, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995). Evidence with only marginal, incremental, or cumulative impeachment value will rarely meet this standard. Douglas v. Workman, 560 F.3d 1156, 1173 (10th Cir. 2009); United States v. Derr, 990 F.2d 1330, 1336 (D.C.Cir. 1993). The State's case did not rest on Agent Rust's credibility. It did not even rest, to any material degree, on the evidence he collected. Appellant has not demonstrated a reasonable probability that any of the proffered information concerning Agent Rust would have affected the outcome of the trial. Proposition IV is denied.

         CLAIMS OF TRIAL ERROR

         A. Other crimes evidence

         ¶47 In Proposition V, Appellant complains that three witnesses were allowed to relate evidence of other threats and intimidating acts he committed against Ferguson preceding her death. The evidence at issue consisted of the following: (1) testimony that Ferguson once sought a protective order to keep Appellant away from her; (2) testimony that shortly before the homicide, Appellant told a neighbor to "stop helping" Ferguson; and (3) testimony from Ferguson's friend, Jenny Turner, that when Ferguson lived with her in early 2012, Appellant drove by their home, waved a gun out of the car window and said, "I wanted ya'll to see my new friend." According to Turner, Appellant also tried to run over Ferguson and once warned her, "I will kill you before I see you happy in Talihina." Turner said that Ferguson was so afraid of Appellant that she would sleep with a knife under her pillow. The trial court held a hearing on the admission of this evidence, and we review its ruling for an abuse of discretion. Cuesta-Rodriguez, 2010 OK CR 23, ¶ 25, 241 P.3d at 226.

         ¶48 Oklahoma's Evidence Code bars evidence of "other crimes, wrongs, or acts" offered only to show the defendant acted in conformity therewith. 12 O.S.2011, § 2404 (B). Appellant points out that applying for a protective order is not, itself, evidence of any crime that might have been committed by the target of the order, and that asking his neighbor to "stop helping" Ferguson does not amount to a crime or bad act as contemplated by § 2404(B). [16] We agree, but those arguments only undermine his claim that this evidence falls under § 2404(B). We take his complaints to be, in reality, about relevance, and we find this evidence was relevant to show the nature of relationship between the parties.

         ¶49 Where a defendant's domestic partner is the victim (or intended victim) of the charged crime, evidence of prior difficulties between the two can be relevant to show motive, intent, and the absence of mistake or accident. Cuesta-Rodriguez, 2010 OK CR 23, ¶¶ 26-27, 241 P.3d at 226 (spouse); Short v. State, 1999 OK CR 15, ¶ 40, 980 P.2d 1081, 1097 (girlfriend). The State believed Appellant's controlling personality (demonstrated by his words and deeds, and their effect, as shown by Ferguson's fear of him) made it more likely that setting her on fire was no accident. Appellant freely admitted to police that his relationship with Ferguson was a tumultuous one. Appellant's gun-waving and intimidating comments, related by Ms. Turner, were relevant for the same reasons. The trial court gave a ...


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