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IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA SAMUEL COSBY, ) ) Appellant, ) NOT FOR PUBLICATION ) V. ) Case No. F-2017-849 ) THE STATE OF OKLAHOMA, ) FILED ) IN COURT OF CRIMINAL APPEALS Appellee. ) STATE OF OKLAHOMA APR – 4 2019 JOHN D. HADDEN SUMMARY OPINION CLERK LEWIS, PRESIDING JUDGE: Samuel Cosby, Appellant, was tried by jury and found guilty of assault and battery with a deadly weapon, in violation of 21 O.S.2011, § 652, in the District Court of Oklahoma County, Case No. CF-2015-6696. The jury sentenced him to life imprisonment and the Honorable Timothy R. Henderson, District Judge, pronounced judgment and sentence according to the jury verdict.¹ Mr. Cosby appeals in the following propositions of error: 1. The trial court committed reversible error by refusing to fulfill its gatekeeping function under Daubert v. Merrill Dow Pharmaceuticals to make a pre-trial ruling on the admissibility of the State’s firearms identification testimony; 1 Appellant must serve 85% of his sentence before being eligible for consideration for parole. 22 O.S.Supp.2014, § 13.1(5). 2. Firearms examiner Patrick McLaughlin’s expert testimony based on unreliable analysis was overstated and misleading and denied Mr. Cosby his due process right to a fair trial in violation of both the state and federal constitutions; 3. Admission of a jail phone call made by Appellant while in the Oklahoma County Jail violated the due process clause of the federal and Oklahoma constitution and Okla. Stat. Tit. 22, § 1175.1; 4. Evidentiary errors violated Mr. Cosby’s state and federal rights to due process and a fair trial; 5. Instructional error denied Appellant a fair trial; 6. Mr. Cosby was denied his right to effective assistance of counsel. Appellant claims in Proposition One that the trial court abused its discretion in refusing to grant a pretrial hearing pursuant to Daubert U. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167 143 L.Ed.2d 238 (1999), to determine whether expert opinion on firearm and tool- mark examination was reliable. While counsel did, in fact, ask for a pretrial hearing, counsel did not object to the introduction of the expert’s testimony during trial. This Court, therefore, is limited to reviewing the evidence for 2 plain error only. 12 O.S.2011, § 2104 (a court may take “notice of plain errors affecting substantial rights although they were not brought to the attention of the court.”) See Hancock v. State, 2007 OK CR 9, I 72, 155 P.3d 796, 813 (holding that contemporaneous objections must be made at the time the alleged error is being committed). To be entitled to relief for plain error, an appellant must show: “(1) the existence of an actual error (i.e., deviation from a legal rule); (2) that the error is plain or obvious; and (3) that the error affected his substantial rights, meaning the error affected the outcome of the proceeding.” Hogan v. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923. See also Simpson U. State, 1994 OK CR 40, II 3, 11, 23, 876 P.2d 690, 694, 695, 698. This Court will only correct plain error if the error seriously affects the fairness, integrity or public reputation of the judicial proceedings or otherwise represents a miscarriage of justice. Hogan, 2006 OK CR 19, I 38, 139 P.3d at 923. Tool-mark and firearm examination is generally accepted and admissible at trial and no pretrial hearing is required. Miller v. 3 State, 2013 OK CR 11, 112-13, 313 P.3d 934, 973-74.2 There is no plain error in the failure to hold a pretrial hearing on the reliability of this evidence. This proposition and Proposition Two are tied closely together. In Proposition Two, Appellant claims that the expert’s testimony was unreliable and the expert overstated the results of the science. Appellant cites to several scientific articles dating between 1984 and 2009 to explain the unreliability of such tool-mark and firearm examination. Again, we will review for plain error only as Appellant stated he had no objection at trial. McLaughlin opined that the eleven (11) shell casings found at the scene were fired from the same firearm. And that those found casings matched the casings fired from the firearm found in Appellant’s room. Appellant’s articles criticize the science. This, however, is not enough to show that the expertise is unreliable. Showing the science has been criticized is not enough. Day U. State, 2013 OK CR 8, I 8, 303 P.3d 291, 296. Moreover, the jury was 2 Appellant cites our unpublished case of Farr v. State, No. F-2014-642 (Okl.Cr. Nov. 2, 2015), wherein this Court references People v. Robinson, 2 N.E.3d 383 (III. App. 2013). Both opinions hold that tool-mark and firearms identification is generally accepted and admissible at trial and no pre-trial hearing is required. 4 properly instructed on the use of expert testimony by OUJI-CR 2d, 9-42.³ The admission of the expert testimony was not error, thus it did not constitute plain error. Appellant claims in Proposition Three that the trial court improperly admitted into evidence a telephone call made by him while in the Oklahoma County Jail. Appellant did object to the introduction of this evidence at trial. The admission of this evidence lies within the sound discretion of the trial court and, when the issue is properly preserved for appellate review, we will not disturb the trial court’s decision absent an abuse of discretion. Pavatt U. State, 2007 OK CR 19, I 42, 159 P.3d 272, 286. An abuse of discretion is a clearly erroneous conclusion and judgment, 3 Testimony has been introduced of certain witnesses who purport to be skilled in their line of endeavor or who possess peculiar knowledge acquired by study, observation, and practice. You may consider the testimony of these witnesses, and give it such weight and value as you think it should have, but the weight and value to be given their testimony is for you to determine. You are not required to surrender your own judgment to that of any person testifying, based on that person’s education, training or experience. You need not give controlling effect to the opinion of such witnesses for their testimony, like that of any other witness, is to be received by you and given such weight and value as you deem it is entitled to receive. OUJI-CR 2d, 9-42 (2000 Supp.) 5 contrary to the logic and effect of the facts presented. Neloms v. State, 2012 OK CR 7, I 35, 274 P.3d 161, 170. At trial, counsel argued that the phone recordings were made while proceedings had been suspended due to competence proceedings. See 22 O.S.2011, § 1175.2 Criminal proceeding “means every stage of a criminal prosecution after arrest and before judgment, including, but not limited to, interrogation, lineup, preliminary hearing, motion dockets, discovery, pretrial hearings and trial.” 22 O.S.2011, I 1175.1(4). This list includes evidence collected directly involving interaction between a defendant and enforcement officials. The phone calls were made voluntarily by Appellant without the direct involvement of law enforcement and there was no evidence that Appellant did not know that the call was being recording or that he was unable to understand what he was doing. His statements were neither coerced, nor were they privileged communications. A statement is voluntary when it is free of coercion and is “the product of an essentially free and unconstrained choice by its maker.” Gilbert U. State, 1997 OK CR 71, I 42, 951 P.2d 98, 111; Fontenot v. State, 1994 OK CR 42, I 6, 881 P.2d 69, 75. There is no 6 evidence that Appellant was of such incompetence that he could not understand that his jail phone calls were being recorded. Id. I 18, at 77. At trial, Appellant also claimed that the recording was not relevant to any of the issues at trial and if so, any probative value was substantially outweighed by the danger of unfair prejudice. See 12 O.S.2011, § 2403. Here, the recording was relevant to show a consciousness of guilt. He was planning an insanity defense which would render him not criminally responsible for his actions. See Dodd v. State, 2004 OK CR 31, I 36, 100 P.3d 1017, 1033 (post crime activity that can be interpreted as showing a consciousness of guilt is admissible). The trial court did not abuse its discretion in allowing the recording to be introduced at trial. Lastly, Appellant claims that it was error for the prosecutor to use the statements in closing because Appellant did not raise the insanity defense. Appellant did not object to the argument. When read in context, the prosecutor was first telling the jury that these statements were statements indicating a consciousness of guilt and that sanity was not an issue for them to consider. There was no plain error in the prosecution’s argument. 7 In Proposition Four, Appellant claims evidentiary errors were made by the trial court. Appellant objected to the following evidence, thus we review for an abuse of discretion as defined above. Appellant complains about the testimony of the emergency surgeon detailing the lifesaving surgery performed on the victim. When measuring the relevancy of evidence we give the evidence its maximum probative value and its minimum reasonable prejudicial effect. Harmon v. State, 2011 OK CR 6, I 48, 248 P. 3d 918, 937. Appellant claims that there was no dispute that the victim was shot, SO the evidence was not relevant. Every element of the offense was at issue in this case, as it is in every criminal trial. The mere fact that a defendant chooses a trial, instead of entering a plea, and admitting guilt, places the burden on the State to prove every essential element of a criminal charge at trial. Goode v. State, 2010 OK CR 10, I 56, 236 P.3d 671, 682. This Court will not bridle the State or dictate what evidence the State may use to prove its case, as long as the evidence comports with the rules of evidence. The State was charged to prove that these injuries were caused by a firearm; that the victim was assaulted and battered by 8 the use of a firearm (a deadly weapon). 21 O.S.2011, § 652(C). The surgeon’s testimony aided in that proof. Therefore, it was relevant. The testimony was not SO graphic that its probative value was substantially outweighed by the danger of unfair prejudice. 12 O.S.2011, § 2403. Even so, any error in the introduction of this evidence did not result in a miscarriage of justice, or constitute a substantial violation of a constitutional or statutory right. 20 O.S.2011, § 3001.1 Next, Appellant complains about the introduction of the victim’s blood soaked clothes and “gruesome” photographs. The victim was shot multiple times and nearly died from exsanguination. The multiple photographs were used to show the multiple gunshots from different angles and perspectives. The photographs were relevant to show the nature and extent of the wounds and that the wounds were caused by a firearm. The photographs, as well as the blood soaked clothing were relevant. The probative value of the evidence, including photographs and testimony regarding the injuries and treatment thereof, was not substantially outweighed by any of the dangers outlined in 12 9 O.S.2011, § 2403. There is no error here, thus this proposition is denied. In Proposition Five, Appellant claims instructional error denied him a fair trial. Jury instructions are within the trial court’s discretion and we review for an abuse of discretion. Mitchell v. State, 2016 OK CR 21, I 24, 387 P.3d 934, 943. “Instructions are sufficient where they state the applicable law.” Id. Appellant complains that the trial court failed to give his requested instruction on inconsistent statements, OUJI-CR 2d 9- 20. Defense counsel requested this instruction during the instruction conference; the prosecution argued against it; the trial court declined to give the instruction. The victim’s testimony was not clearly inconsistent. Moreover, the jury was instructed on credibility of testimony. We cannot say that the trial court abused its discretion in refusing to give this instruction under the abuse of discretion test above. This proposition is denied. Appellant argues in Proposition Six that he was denied the effective assistance of counsel. We review this claim under Strickland U. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 10 674 (1984), requiring that Appellant show not only that counsel performed deficiently, but that Appellant was prejudiced by it. Id., 466 U.S. at 687. In this “highly deferential” inquiry, evidence of deficient performance must overcome a strong presumption that counsel’s actions constituted sound trial strategy. Id., 466 U.S. at 689. Prejudice to the defense occurs when counsel’s deficient performance creates a reasonable probability that the result of the proceeding would have been different. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id., 466 U.S. at 694. Appellant argues that counsel was ineffective by failing to preserve errors raised in propositions three and four. We found that no error occurred in our assessment of these propositions, therefore, we find that counsel was not ineffective in failing to preserve these issues at trial. DECISION The judgment and sentence is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019), the MANDATE is ORDERED issued upon the delivery and filing of this decision. 11 APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY THE HONORABLE TIMOTHY R. HENDERSON, DISTRICT JUDGE APPEARANCES AT TRIAL APPEARANCES ON APPEAL NICHOLAS SOUTHERLAND GINA K. WALKER ERIN MAXWELL 320 ROBERT S. KERR, STE. 611 320 ROBERT S. KERR, STE. 611 OKLAHOMA CITY, OK 73102 OKLAHOMA CITY, OK 73102 ATTORNEY FOR APPELLANT ATTORNEYS FOR DEFENDANT JIMMY HARMON MIKE HUNTER KELLY COLLINS ATTORNEY GENERAL ASST. DISTRICT ATTORNEYS THEODORE M. PEEPER 320 ROBERT S. KERR, STE. 505 ASST. ATTORNEY GENERAL OKLAHOMA CITY, OK 73102 313 N.E. 21ST STREET ATTORNEYS FOR THE STATE OKLAHOMA CITY, OK 73105 ATTORNEYS FOR APPELLEE OPINION BY: LEWIS, P.J. KUEHN, V.P.J.: Concur in Results LUMPKIN, J.: Concur HUDSON, J.: Concur ROWLAND, J.: Concur 12

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