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F-2005-58

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Alishia Faith Mackey v State Of Oklahoma

F-2005-58

Filed: Dec. 14, 2006

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Alishia Faith Mackey appealed her conviction for permitting child abuse and failure to report child abuse. Conviction and sentence affirmed on the first count (permitting child abuse) with a punishment of twenty years in prison and a $500 fine on the second count (failure to report), which was dismissed due to double punishment issues. Judges Chapel and Lumpkin dissented on different aspects of the case.

Decision

The Judgment and Sentence on Count 1 (permitting child abuse in violation of 10 O.S. 2001 § 7115(B)) is AFFIRMED. The case is REMANDED with direction that the district court vacate the Judgment and Sentence on Count 2 (failure to report child abuse in violation of 10 O.S. 2001 § 7103) and dismiss that portion of the case. Under Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18 App. (2005), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Issues

  • Was there a violation of Mackey's rights under the Confrontation Clause when the child-victim testified from behind a screen?
  • Did the district court err by failing to instruct the jury on the affirmative defense of duress sua sponte and was Mackey's trial attorney ineffective for not requesting it?
  • Did the district court err by failing to instruct the jury on the statutory child abuse defense under 21 O.S. § 852.1 and was Mackey's trial attorney ineffective for not requesting it?
  • Did the district court err by restricting cross-examination of two witnesses?
  • Did Mackey's convictions for permitting child abuse and failure to report child abuse constitute impermissible multiple punishments in violation of double jeopardy principles and statutory prohibitions?
  • Was Mackey denied due process by prosecutorial misconduct during closing arguments and through public comments made by the prosecutor prior to trial?
  • Is Mackey's twenty-year sentence for permitting child abuse excessive?
  • Does the cumulative effect of errors in Mackey's case require reversal of her convictions or modification of her sentence?

Findings

  • the court erred regarding the violation of Mackey's confrontation rights, but the error was harmless
  • the district court did not err by not instructing the jury on the affirmative defense of duress
  • the district court did not err by not instructing the jury on the statutory child abuse defense
  • the district court did not abuse its discretion in restricting cross-examination of two witnesses
  • Mackey's convictions do not violate constitutional double jeopardy principles, but the punishment for failure to report must be vacated
  • prosecutorial misconduct did not deprive Mackey of a fair trial
  • Mackey's twenty years sentence is not excessive
  • Mackey's cumulative error argument is without merit

F-2005-58

Dec. 14, 2006

Alishia Faith Mackey

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

A. JOHNSON, JUDGE: Alishia Faith Mackey1 was tried by jury in the District Court of Muskogee County, Case No. CF-2004-57, and found guilty of permitting child abuse in violation of 10 O.S. 2001 § 7115(B) (Count 1) and failure to report child abuse in violation of 10 O.S. 2001 § 7103 (Count 2). The jury set punishment at twenty years imprisonment on the permitting count and imposed a $500 fine on the failure to report count.2 Associate District Judge Norman D. Thygesen sentenced Mackey in accordance with the jury’s verdict. From this judgment and sentence, Mackey appeals.

Mackey raises the following claims: (1) her rights under the Confrontation Clause of the United States and Oklahoma Constitutions were violated when the child-victim was permitted to testify at trial from behind a screen; (2) the district court erred by not instructing the jury sua sponte on the affirmative defense of duress and her trial attorney was constitutionally ineffective for not requesting it; (3) the district court erred by not instructing the jury sua sponte on the statutory child abuse defense found at 21 O.S. 2001 § 852.1 and her trial attorney was constitutionally ineffective for not requesting it; (4) the district court erred by restricting cross-examination of two witnesses; (5) her convictions for permitting child abuse and failure to report child abuse constitute impermissible multiple punishments for the same act in violation of the double jeopardy provisions of the United States and Oklahoma Constitutions as well as the statutory multiple punishment prohibitions at 21 O.S. 2001 § 11; (6) she was denied due process by prosecutorial misconduct during closing argument and through public comments made by the prosecutor prior to trial; (7) her twenty year sentence on the permitting child abuse conviction is excessive; and (8) the cumulative effect of errors in her case require reversal of her convictions or modification of her sentence.

We briefly address each of these claims: (1) Maryland v. Craig, 497 U.S. 836, 855, 110 S.Ct. 3157, 3169, 111 L.Ed.2d 666 (1990), holds that to comply with the Confrontation Clause requirement of face-to-face confrontation between an accused and the witnesses against her, a State must make a showing of necessity in order to protect a child-witness from the trauma of testifying by means other than face-to-face with the defendant in a child abuse case. This constitutional requirement is embodied in the Uniform Child Witness Testimony by Alternative Methods Act, codified at 12 O.S. Supp. 2004 §§ 2611.3-2611.9. Section 2611.7 provides in relevant part that in a criminal proceeding a child-witness may testify other than face-to-face if the judge finds by clear and convincing evidence that the child would suffer serious emotional trauma that would substantially impair the child’s ability to communicate with the finder of fact if required to be confronted face-to-face by the defendant. In this instance, the record contains no finding of necessity by the district court, and contains no evidence of necessity presented by the State. Therefore, we conclude that Mackey’s confrontation rights were violated. Nonetheless, the error was harmless and does not warrant reversal because the remaining evidence of guilt was more than sufficient to support Mackey’s convictions on both counts. See Coy v. Iowa, 487 U.S. 1012, 1021-22, 108 S.Ct. 2798, 2803, 101 L.Ed.2d 857 (1988)(holding that denial of confrontation rights is subject to harmless error analysis and explaining that after finding confrontation error, harmlessness must be determined on basis of remaining evidence).

(2) The district court did not commit error, plain or otherwise, by not instructing the jury sua sponte on the defense of duress. In this instance, the duress theory was neither supported by the evidence, nor tenable as a matter of law. Hogan v. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923; Cipriano v. State, 2001 OK CR 25 11 22-23, 30, 32 P.3d 869, 875-76. Cf. Carter v. State, 1994 OK CR 49, 11 39-41, 879 P.2d 1234, 1240 (finding no error for trial court’s refusal to instruct on second degree murder or first degree manslaughter where defendant’s defense at trial was that he was not involved in murder and giving of instruction would have been inconsistent with defense of non-involvement); Denson v. State, 1970 OK CR 73, 11 3-5, 481 P.2d 190, 191 (finding that despite defendant’s testimony of past beatings, defendant’s testimony did not support duress instruction where defendant testified that she accompanied companion into store and left with no knowledge that companion had taken jewelry because defendant was attempting to establish defense of absence of criminal intent due to lack of knowledge of crime). Because there was no error, trial counsel was not ineffective. Frederick v. State, 2001 OK CR 34, I 189, 37 P.3d 908, 955.

(3) The district court did not commit error, plain or otherwise, for not instructing the jury on the statutory defense to child abuse contained in 21 O.S. 2001 § 852.1. The defense provided by § 852.1(A) is expressly limited to defense against charges brought under that statute. See 21 O.S. 2001 § 852.1(A)(it is an affirmative defense to this paragraph if the person had a reasonable apprehension that any action to stop the abuse would result in substantial bodily harm to the person or the child) (emphasis added). Mackey was charged under 10 O.S. § 7115(B), not § 852.1(A). Therefore, she was not entitled to the defense provided by § 852.1(A). Because Mackey was not entitled to the defense as a matter of law, trial counsel was not ineffective for not requesting it. Frederick v. State, 2001 OK CR 34, I 189, 37 P.3d 908, 955.

(4) The district court neither abused its discretion nor committed plain error in restricting cross-examination of Deputy Brenda Ellis and Mackey’s niece Katherine Hall. See Lott v. State, 2004 OK CR 27, I 126, 98 P.3d 318, 349-50 (applying plain error review and denying relief by holding that objection brought at close of witness testimony was not timely for purpose of preserving error); Scott v. State, 1995 OK CR 14, I 19, 891 P.2d 1283, 1292 (holding that inquiry into criminal arrests is permissible for impeachment purposes by exposing bias, but such evidence must, among other things, be relevant under 12 O.S. § 2401); Mooney v. State, 1999 OK CR 34, 9 52, 990 P.2d 875, 890 (holding that even impeachment evidence must be relevant).

(5) The conviction and punishment for permitting child abuse in violation of 10 O.S. 2001 § 7115(B) and failure to report child abuse in violation of 10 O.S. 2001 § 7103 does not violate constitutional double jeopardy principles. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932). However, because Mackey’s twenty year sentence for permitting child abuse in violation of 10 O.S. 2001 § 7115(B) and her $500.00 fine for failure to report child abuse in violation of 10 O.S. 2001 § 7103 both arise from the same act, those punishments violate the statutory prohibition against double punishment found at 21 O.S. 2001 § 11. Davis v. State, 1999 OK CR 48, 11 7, 13, 993 P.2d 124, 125-26. Accordingly, we find that the Judgment and Sentence on Count 2 (failure to report child abuse in violation of 10 O.S. 2001 § 7103) must be vacated and that portion of the case dismissed.

(6) Despite improper comments being made by the prosecutor during closing argument about sparing the guilty, threatening the innocent, and letting evil flourish, when those comments are considered in light of the entire record, they did not deprive Mackey of a fair trial nor affect the jury’s finding of guilt or punishment. Wackerly v. State, 2000 OK CR 15, I 30, 12 P.3d 1, 12. Furthermore, under the circumstances of this case, Mackey was not deprived of her due process right to a fair trial from pretrial publicity. Harvell v. State, 1987 OK CR 177, 11 13-14, 742 P.2d 1138, 1141.

(7) Considering the nature and circumstances of the offense, Mackey’s twenty year sentence does not shock the conscience of the Court. Accordingly, we decline to modify her sentence. Sanders v. State, 2002 OK CR 42, 9 19, 60 P.3d 1048, 1051; Lee v. State, 1981 OK CR 152, I 22, 637 P.2d 879, 885.

(8) Mackey’s cumulative error argument is without merit. Although we have found harmless error in two instances and granted relief in another, when all the errors are considered in the aggregate, no further relief is required. The total accumulation of error did not render her trial fundamentally unfair, taint the jury’s verdict, or render sentencing unreliable on the single remaining count of conviction. Hogan v. State, 2006 OK CR 19, I 98, 139 P.3d 907, 937.

DECISION

The Judgment and Sentence on Count 1 (permitting child abuse in violation of 10 O.S. 2001 § 7115(B)) is AFFIRMED. The case is REMANDED with direction that the district court vacate the Judgment and Sentence on Count 2 (failure to report child abuse in violation of 10 O.S. 2001 § 7103) and dismiss that portion of the case. Under Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18 App. (2005), the MANDATE is ORDERED issued upon delivery and filing of this decision.

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Footnotes:

  1. 10 O.S. 2001 § 7115(B)
  2. 10 O.S. 2001 § 7103
  3. 10 O.S. 2001 § 7103C
  4. 21 O.S. 2001 § 852.1
  5. 21 O.S. 2001 § 11
  6. 10 O.S. 2001 § 7103
  7. 10 O.S. 2001 § 7115(B)
  8. Blockburger v. United States, 284 U.S. 299 (1932)
  9. Davis v. State, 1999 OK CR 48, 11 7, 13, 993 P.2d 124, 125-26
  10. Wackerly v. State, 2000 OK CR 15, 1 30, 12 P.3d 1, 12
  11. Harvell v. State, 1987 OK CR 177, 11 13-14, 742 P.2d 1138, 1141
  12. Sanders v. State, 2002 OK CR 42, 9 19, 60 P.3d 1048, 1051
  13. Lee v. State, 1981 OK CR 152, "I 22, 637 P.2d 879, 885
  14. Hogan v. State, 2006 OK CR 19, I 98, 139 P.3d 907, 937
  15. Cipriano v. State, 2001 OK CR 25 11 22-23, 30, 32 P.3d 869, 875-76
  16. Hogan v. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923
  17. Carter v. State, 1994 OK CR 49, 11 39-41, 879 P.2d 1234, 1240
  18. Denson v. State, 1970 OK CR 73, 11 3-5, 481 P.2d 190, 191
  19. Frederick v. State, 2001 OK CR 34, I 189, 37 P.3d 908, 955
  20. Lott v. State, 2004 OK CR 27, I 126, 98 P.3d 318, 349-50
  21. Scott v. State, 1995 OK CR 14, 1 19, 891 P.2d 1283, 1292
  22. Mooney v. State, 1999 OK CR 34, 9 52, 990 P.2d 875, 890

Oklahoma Statutes citations:

  • Okla. Stat. tit. 10 § 7115(B) (2001) - Permitting Child Abuse
  • Okla. Stat. tit. 10 § 7103 (2001) - Failure to Report Child Abuse
  • Okla. Stat. tit. 21 § 852.1 (2001) - Child Abuse Defense
  • Okla. Stat. tit. 21 § 11 (2001) - Multiple Punishment Prohibition
  • Okla. Stat. tit. 12 § 2401 - Relevance of Evidence

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:

  • Maryland v. Craig, 497 U.S. 836, 855, 110 S.Ct. 3157, 3169, 111 L.Ed.2d 666 (1990)
  • Coy v. Iowa, 487 U.S. 1012, 1021-22, 108 S.Ct. 2798, 2803, 101 L.Ed.2d 857 (1988)
  • Hogan v. State, 2006 OK CR 19, 1 38, 139 P.3d 907, 923
  • Cipriano v. State, 2001 OK CR 25, 1 22-23, 30, 32 P.3d 869, 875-76
  • Carter v. State, 1994 OK CR 49, 1 39-41, 879 P.2d 1234, 1240
  • Denson v. State, 1970 OK CR 73, 1 3-5, 481 P.2d 190, 191
  • Frederick v. State, 2001 OK CR 34, 1 189, 37 P.3d 908, 955
  • Lott v. State, 2004 OK CR 27, 1 126, 98 P.3d 318, 349-50
  • Scott v. State, 1995 OK CR 14, 1 19, 891 P.2d 1283, 1292
  • Mooney v. State, 1999 OK CR 34, 1 52, 990 P.2d 875, 890
  • Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932)
  • Davis v. State, 1999 OK CR 48, 1 7, 13, 993 P.2d 124, 125-26
  • Wackerly v. State, 2000 OK CR 15, 1 30, 12 P.3d 1, 12
  • Harvell v. State, 1987 OK CR 177, 1 13-14, 742 P.2d 1138, 1141
  • Sanders v. State, 2002 OK CR 42, 1 19, 60 P.3d 1048, 1051
  • Lee v. State, 1981 OK CR 152, 1 22, 637 P.2d 879, 885

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