Donnie L. Harris, Jr. v The State of Oklahoma

D-2014-153

Filed: Sep. 26, 2019

For publication

Prevailing Party: Donnie L. Harris, Jr.

Summary

**# Donnie L. Harris, Jr. appealed his conviction for First Degree Murder. Conviction and sentence: death. # Kuehn dissented.** In this case, Donnie L. Harris, Jr. was charged with First Degree Murder for killing his girlfriend, Kristi Ferguson, by dousing her in gasoline and setting her on fire. The state sought the death penalty, claiming the act was especially cruel and put others at risk. During the trial, various witnesses testified that Harris tried to stop Ferguson from speaking and made inconsistent statements about how the fire started. The jury found Harris guilty and sentenced him to death. He argued his trial was unfair because he could not access certain evidence and was denied the chance to present expert testimony about fire investigation. Harris also claimed the state did not preserve evidence that might have helped his defense. The court reviewed his arguments but ultimately upheld the conviction and death sentence. The judges reviewed the issues raised by Harris and found no significant errors that would change the outcome of the trial. The court stated that Harris had a fair trial and that there was enough evidence to support his conviction and the death sentence.

Decision

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Issues

Was there a denial of the right to a meaningful appeal due to incomplete trial records?
Did the trial court deny a fair trial by refusing to allow expert testimony?
Was there a denial of due process due to the state's failure to preserve physical evidence?
Was there a failure to disclose evidence affecting the credibility of the investigator?
Did the trial court err by admitting evidence of other crimes and intimidation against the victim?
Was there an error in allowing hearsay statements in testimony?
Did prosecutorial misconduct affect the fairness of the trial?
Was there sufficient chain of custody established for physical evidence presented at trial?
Did the trial court appropriately address emotional disturbances in the courtroom during trial?
Was the jury properly instructed on considering mitigating evidence during sentencing?
Was the victim impact testimony admitted during sentencing appropriate and not overly prejudicial?
Was the evidence sufficient to support the aggravator of creating a great risk of death to more than one person?
Was there ineffective assistance of counsel concerning the presentation of expert testimony and exploration of mitigating evidence?
Does the definition of especially heinous, atrocious, or cruel violate constitutional standards of vagueness?
Is the death penalty itself unconstitutional due to its application, reliability, and the nature of execution?
Was the motion for a new trial based on newly discovered evidence improperly denied?
Did cumulative errors in the trial process influence the imposition of the death penalty?

Findings

the court erred in denying the right to a meaningful appeal due to incomplete records
the trial court did not err in excluding expert testimony or imposing a mistrial regarding the expert's absence
the court did not err in failing to preserve certain physical evidence as it lacked apparent exculpatory value
the court did not err in failing to disclose evidence affecting the credibility of a witness
the trial court did not abuse its discretion in admitting other crimes evidence
the trial court did not commit plain error in admitting hearsay statements
the trial court did not err in denying a mistrial based on prosecutorial misconduct
the trial court did not err in admitting the cigarette lighter under the chain of custody
the trial court did not err in denying a mistrial over emotional disturbances during testimony
the jury instructions regarding mitigation evidence were adequate
the admission of victim impact testimony did not violate the defendant's rights
the evidence was sufficient to support the jury's finding of great risk of death aggravator
the claims of ineffective assistance of counsel were denied due to the presumption of reasonable counsel performance
the challenges to the death penalty's legality were denied as they had been previously addressed
the motion for a new trial was dismissed due to lack of jurisdiction and untimeliness
the cumulative errors did not warrant relief or affect sentencing
the court affirmed the decision of the lower court

D-2014-153

Sep. 26, 2019

Donnie L. Harris, Jr.

Appellant

v

The State of Oklahoma

Appellee

SUMMARY OPINION

KUEHN, VICE PRESIDING JUDGE:

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. 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

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.

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. Don’t let him near me. He did this to me. He threw kerosene on me and set me on fire.

After the ambulance left, Appellant walked to the home of his friend, Melvin Bannister. 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. Appellant gave authorities vague and inconsistent accounts of what happened.

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.

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 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.

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.

Ferguson was eventually flown to Oklahoma City for treatment of second- and third-degree burns over fifty percent of her body. She succumbed to her injuries 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.

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.

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.

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

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. 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.

Appellant complains that no record exists of a motion hearing held December 4, 2013, a few days before trial began. 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.

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.

As to the transcript of proceedings, Appellant acknowledges that it is his burden to show prejudice from any perceived omissions. Failure to provide a complete record of every word spoken, or every action taken, in the proceedings below is not per se reversible error. 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.

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.

The Court concludes that the materials submitted as part of the motion for new trial filed in this case will not provide any evidence that could reasonably be expected to render the outcome of the trial different.

In our review, we have found no issues that require a reversal of the conviction or sentencing of Appellant in this case. Therefore, the trial record reflects the complete proceedings, and the notice given indicates the State had sufficient evidence to proceed to trial.

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Footnotes:

21 O.S.2011, § 701.7(B)
21 O.S.2011, § 701.12(2), (4)
21 O.S.2011, § 668
Parker v. State, 1994 OK CR 56, 25-27, 887 P.2d 290, 294-95.
Harris U. State, 2007 OK CR 28, I 7, 164 P. 3d 1103, 1108-09.
Black U. State, 2001 OK CR 5, II 83-88, 21 P.3d 1047, 1075-76.
Cuesta-Rodriguez v. State, 2010 OK CR 23, I 86, 241 P.3d 214, 240.
Frederick U. State, 1995 OK CR 44, 16, 25-26, 902 P.2d 1092, 1095-96, 1098.
Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967)
Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 2146, 90 L.Ed.2d 636 (1986)
Taylor U. Illinois, 484 U.S. 400, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988)
Harris U. State, 2004 OK CR 1, I 10 n.3, 84 P.3d 731, 740 n.3
United States v. Valenzuela-Bernal, 458 U.S. 858, 867-69, 102 S.Ct. 3440, 3446-47, 73 L.Ed.2d 1193 (1982)
Payne v. Tennessee, 501 U.S. 808, 831-32, 111 S.Ct. 2597, 2612, 115 L.Ed.2d 720 (1991)
Amended 2014, Laws 2014, SB 1824, C. 258, § 1 (eff. November 1, 2014)
Bland v. State, 2000 OK CR 11, I 112, 4 P.3d 702, 730.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)
Booth U. Maryland, 482 U.S. 496, 501-02, 107 S.Ct. 2529, 2532-33, 96 L.Ed.2d 440 (1987)
United States U. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985)
Martinez U. State, 1999 OK CR 33, II 2-3, 80, 984 P.2d 813, 818, 832
Miller v. State, 2013 OK CR 11, I 186, 313 P.3d 934, 990-91
Duvall v. State, 1991 OK CR 64, II 38-39, 825 P.2d 621, 634

Oklahoma Statutes citations:

Okla. Stat. tit. 21 § 701.7 (2011) - Felony Murder in the First Degree
Okla. Stat. tit. 21 § 701.12 (2011) - Aggravating circumstances
Okla. Stat. tit. 12 § 2404 (2011) - Evidence of other crimes, wrongs, or acts
Okla. Stat. tit. 12 § 2801 (2011) - Hearsay definition
Okla. Stat. tit. 21 § 701.11 (2011) - Instruction on aggravating circumstances
Okla. Stat. tit. 21 § 701.10 (2011) - Victim impact statements
Okla. Stat. tit. 22 § 952 (2011) - Motion for new trial based on new evidence
Okla. Stat. tit. 22 § 953 (2011) - Time for filing motion for new trial
Okla. Stat. tit. 21 § 701.13 (2011) - Mandatory sentence review

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

No US Code citations found.

Other citations:

No other rule citations found.

Case citations:

Bramlett v. State, 2018 OK CR 19, I 36, 422 P.3d 788, 799-800
Parker v. State, 1994 OK CR 56, 25-27, 887 P.2d 290, 294-95
Harris v. State, 2007 OK CR 28, I 7, 164 P.3d 1103, 1108-09
Black v. State, 2001 OK CR 5, II 83-88, 21 P.3d 1047, 1075-76
Cuesta-Rodriguez v. State, 2010 OK CR 23, I 86, 241 P.3d 214, 240
Frederick v. State, 1995 OK CR 44, 16, 25-26, 902 P.2d 1092, 1095-96, 1098
Coddington v. State, 2006 OK CR 34, I 81-82, 90, 142 P.3d 437, 458, 460
Davis v. State, 2011 OK CR 29, I 129, 268 P.3d 86, 121
Martinez v. State, 1999 OK CR 33, II 2-3, 80, 984 P.2d 813, 818, 832
Romano v. State, 1995 OK CR 74, I 90, 909 P.2d 92, 122
Wood v. State, 2007 OK CR 17, I 1, 158 P.3d 467, 470-71
Malone v. State, 2007 OK CR 34, I 62, 168 P.3d 185, 211
Harmon v. State, 2011 OK CR 6, I 1, 248 P.3d 918, 926
Weeks v. Angelone, 528 U.S. 225, 233, 120 S.Ct. 727, 732, 145 L.Ed.2d 727 (2000)
Buchanan v. Angelone, 522 U.S. 269, 276, 118 S.Ct. 757, 761, 139 L.Ed.2d 702 (1998)
Valenzuela-Bernal v. United States, 458 U.S. 858, 867-69, 102 S.Ct. 3440, 3446-47, 73 L.Ed.2d 1193 (1982)