Kendell Paul Sparrow v The State Of Oklahoma

F-2017-762

Filed: Nov. 18, 2018

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Kendell Paul Sparrow appealed his conviction for Murder in the First Degree. The conviction and sentence were life imprisonment with the possibility of parole. Judge Rowland wrote the opinion, and Judge Kuehn dissented in part. In this case, Kendell Sparrow was found guilty of murder. He argued that his rights were violated when the court allowed a witness's earlier testimony to be used instead of having that witness appear at the trial. Sparrow said this made his trial unfair. However, the court decided that the prosecution made reasonable efforts to find the witness, and Sparrow had already questioned this witness in the previous hearing, so his rights were not broken. Sparrow also claimed that the evidence against him wasn’t strong enough to convict him. The court checked the evidence and decided it was enough to find him guilty beyond a reasonable doubt. Therefore, they upheld the lower court's decision and affirmed Sparrow's sentence.

Decision

The Judgment and Sentence of the district court is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2018), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Issues

• was the introduction at trial of the preliminary hearing testimony of a witness in violation of his constitutional right to confrontation and due process of law?
• was the evidence legally sufficient to convict him of first-degree murder?

Findings

• the court did not err in admitting the preliminary hearing testimony of the witness
• the evidence was sufficient to support the conviction for first degree murder

F-2017-762

Nov. 18, 2018

Kendell Paul Sparrow

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

ROWLAND, JUDGE: Appellant Kendell Paul Sparrow appeals his Judgment and Sentence from the District Court of Payne County, Case No. CF-2015-699, for Murder in the First Degree (Malice Aforethought), in violation of 21 O.S.2012, § 701.7. The Honorable Phillip C. Corley, District Judge, presided over Sparrow’s jury trial and sentenced him to life imprisonment with the possibility of parole in accordance with the jury’s verdict. Sparrow appeals raising the following issues: (1) whether the introduction at trial of the preliminary hearing testimony of a witness violated his constitutional right to confrontation and denied him a fair trial; and (2) whether the evidence was legally sufficient to convict him of the crime charged. We find reversal is not required and affirm the Judgment and Sentence of the district court.

1. The trial court admitted the preliminary hearing testimony of a witness upon the finding that the witness was unavailable at trial. Sparrow challenges this decision on appeal arguing that the trial court’s ruling was error which deprived him of his constitutional right to confrontation, due process of law, and a fair trial. While Sparrow objected at trial to the introduction of the witness’s preliminary hearing testimony on state law grounds, he did not raise a constitutional challenge below. Accordingly, Sparrow has waived review of his constitutional claim for all but plain error. Tyron v. State, 2018 OK CR 20, IT 38, 423 P.3d 617, 632. See also Miller v. State, 2013 OK CR 11, I 104, 313 P.3d 934, 971. To be entitled to relief for plain error, Sparrow 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, 9 38, 139 P.3d 907, 923.

The Sixth Amendment to the United States Constitution requires that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him. U.S. Const. amend. VI; Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923 (1965) (Sixth Amendment’s right of an accused to confront the witnesses against him is likewise a fundamental right and is made obligatory on the States by the Fourteenth Amendment.). In Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 1365, 158 L.Ed.2d 177 (2004), the United States Supreme Court held that the Sixth Amendment’s right to confrontation bars the admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination. While the Supreme Court did not comprehensively define testimonial statements, it did hold that, [w]hatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing. Id., 541 U.S. at 68, 124 S.Ct. at 1374.

As to the first requirement, a witness is not ‘unavailable’ for purposes of the exception to the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial. Ohio v. Roberts, 448 U.S. 56, 74, 100 S.Ct. 2531, 2543, 65 L.Ed.2d 597 (1980), overruled on other grounds, Crawford, 541 U.S. at 36, 124 S.Ct. at 1354 (citations omitted). The lengths to which the prosecution must go to produce a witness is a question of reasonableness, and [t]he ultimate question is whether the witness is unavailable despite good-faith efforts undertaken prior to trial to locate and present that witness. Id. (quotations omitted). See also Hardy v. Cross, 565 U.S. 65, 70, 132 S.Ct. 490, 494, 181 L.Ed.2d 468 (2011) (The lengths to which the prosecution must go to produce a witness is a question of reasonableness.).

We find that the State showed that reasonable good-faith efforts were undertaken prior to trial to locate the witness. Furthermore, defense counsel had adequate opportunity to develop and challenge the witness’s testimony during cross-examination at the preliminary hearing. Thus, the introduction of the witness’s preliminary hearing testimony did not violate Sparrow’s Sixth Amendment right to confrontation or operate to deny him his right to a fair trial. There was no error here, plain or otherwise.

2. Sparrow also claims that the evidence presented at trial was insufficient to support his conviction for first degree murder because the State did not prove each element of the crime beyond a reasonable doubt. To sustain a conviction for first degree malice murder the State is required to prove that the defendant unlawfully caused the death of another human with malice aforethought. See 21 O.S.Supp.2012, § 701.7(A). This Court reviews challenges to the sufficiency of the evidence in the light most favorable to the State and will not disturb the verdict if any rational trier of fact could have found the essential elements of the crime charged to exist beyond a reasonable doubt. Head v. State, 2006 OK CR 44, II 6, 146 P.3d 1141, 1144. See also Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-04. In evaluating the evidence presented at trial, we accept the fact-finder’s resolution of conflicting evidence as long as it is within the bounds of reason. See Day v. State, 2013 OK CR 58, I 13, 303 P.3d 291, 298. This Court also accepts all reasonable inferences and credibility choices that tend to support the verdict. Coddington v. State, 2006 OK CR 34, I 70, 142 P.3d 437, 456.

The State proved each element of the crime of first degree malice murder beyond a reasonable doubt; this proposition is without merit and relief is not required.

DECISION
The Judgment and Sentence of the district court is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2018), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Click Here To Download PDF

Footnotes:

1. Tyron v. State, 2018 OK CR 20, ¶ 38, 423 P.3d 617, 632.
2. Miller v. State, 2013 OK CR 11, ¶ 104, 313 P.3d 934, 971.
3. Hogan v. State, 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923.
4. U.S. Const. amend. VI; Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923 (1965).
5. Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 1365, 158 L.Ed.2d 177 (2004).
6. Ohio v. Roberts, 448 U.S. 56, 74, 100 S.Ct. 2531, 2543, 65 L.Ed.2d 597 (1980), overruled on other grounds, Crawford, 541 U.S. at 36, 124 S.Ct. at 1354.
7. Hardy v. Cross, 565 U.S. 65, 70, 132 S.Ct. 490, 494, 181 L.Ed.2d 468 (2011).
8. Head v. State, 2006 OK CR 44, ¶ 6, 146 P.3d 1141, 1144.
9. Spuehler v. State, 1985 OK CR 132, ¶ 7, 709 P.2d 202, 203-04.
10. Day U. State, 2013 OK CR 58, ¶ 13, 303 P.3d 291, 298.
11. Miller, 2013 OK CR 11, ¶ 106, 313 P.3d at 971-72.
12. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
13. Bartell v. State, 1994 OK CR 59, ¶ 10, 881 P.2d 92, 96.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.7 (2012) - Murder in the First Degree (Malice Aforethought)
• Okla. Stat. tit. 21 § 701.8 (2011) - Malice Aforethought

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:

• Tyron v. State, 2018 OK CR 20, I 38, 423 P.3d 617, 632
• Miller v. State, 2013 OK CR 11, I 104, 313 P.3d 934, 971
• Head v. State, 2006 OK CR 44, I 6, 146 P.3d 1141, 1144
• Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-04
• Day v. State, 2013 OK CR 58, I 13, 303 P.3d 291, 298
• Coddington v. State, 2006 OK CR 34, I 70, 142 P.3d 437, 456
• Hogan v. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923
• Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923 (1965)
• Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 1365, 158 L.Ed.2d 177 (2004)
• Ohio v. Roberts, 448 U.S. 56, 74, 100 S.Ct. 2531, 2543, 65 L.Ed.2d 597 (1980)
• Hardy v. Cross, 565 U.S. 65, 70, 132 S.Ct. 490, 494, 181 L.Ed.2d 468 (2011)
• Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)
• Bartell v. State, 1994 OK CR 59, I 10, 881 P.2d 92, 96