Alfonzo Daniel v The State Of Oklahoma

F 2004-773

Filed: Jan. 2, 2006

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Alfonzo Daniel appealed his conviction for Lewd Acts with a Child under Sixteen and Making Indecent Proposals to a Child under Sixteen. His conviction and sentence were for twenty years on each count, to be served one after the other. Judge Lumpkin dissented from the decision to reverse the conviction.

Decision

The Judgments and Sentences imposed for Counts 2 and 3, in Oklahoma County District Court, Case No. CF 1998-460, are hereby REVERSED AND REMANDED FOR A NEW TRIAL. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2006), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there an error in admitting the videotaped interview of Appellant where it had already been found to be inadmissible?
• Did the trial court err in ruling that the videotaped interview was given involuntarily without having watched the entire videotape?
• Was it an error to allow the hearsay statements of the prosecutrix to be introduced through the testimony of a social worker?
• Was the admission of Marcus Ford's testimony erroneous due to its prejudicial nature and lack of relevance?
• Did the trial court err in admitting the videotape of Mr. Daniel's interview after the police officer had already testified in detail about it?
• Was Mr. Daniel prevented from presenting his defense because the trial court restricted his cross-examination of the prosecutrix?
• Did the trial court commit fundamental error by giving two non-uniform instructions that prejudiced the Defendant?
• Did the trial court err in not recusing herself or failing to inform defense counsel of a possible conflict of interest?
• Did the prosecutors' repeated appeals to the jury's sympathy for the alleged victim deprive Appellant of a fair trial?
• Was it an error to allow the prior testimony of Marcus Ford to be read to the jury without proof of his unavailability?
• Did the trial court err in denying Appellant's request to enforce the plea agreement?
• Was the conviction for Lewd Molestation unsupported by sufficient evidence?
• Did the cumulative effect of all these errors deprive Mr. Daniel of a fair trial?

Findings

• the court erred in admitting the videotaped interview of Appellant
• the court erred in ruling that the videotaped interview was involuntarily given
• the court erred in allowing hearsay statements of the prosecutrix through a social worker's testimony
• the admission of Marcus Ford's testimony was error due to lack of relevance
• the court erred in admitting the videotape after detailed testimony had been given
• the court prevented Appellant from presenting his defense by restricting cross-examination of the prosecutrix
• the court committed fundamental error by giving unnecessary non-uniform jury instructions
• the court erred in not recusing herself due to potential conflict of interest
• the prosecutors' appeal to jury sympathy deprived Appellant of a fair trial
• the court erred in allowing prior testimony of Marcus Ford to be read to the jury
• the court erred in denying Appellant's request to enforce the plea agreement
• the evidence was not sufficient to support the conviction for Lewd Molestation
• the cumulative effect of the errors deprived Mr. Daniel of a fair trial
• reversal is warranted, and the case must be remanded for a new trial

F 2004-773

Jan. 2, 2006

Alfonzo Daniel

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

MISHAEL S. RICHIE
C. JOHNSON, JUDGE:

Appellant, Alfonzo Daniel, was charged in Oklahoma County District Court, Case No. CF 98-460, with First Degree Rape, in violation of 21 O.S.Supp.1995, § 1111 (Count 1), Lewd Acts with a Child under Sixteen, in violation of 21 O.S.Supp.1995, § 1123 (Count 2), and Making Indecent Proposals to a Child under Sixteen, in violation of 21 O.S.Supp.1995, § 1123 (Count 3). Jury trial was held on June 28th–30th, 2004, before the Honorable Susan Caswell, District Judge. The jury found Mr. Daniel guilty of Counts 2 and 3 and set punishment at twenty (20) years on each count. Judge Caswell ordered Mr. Daniel to serve the sentences consecutively. Thereafter, Mr. Daniel filed this appeal.

Mr. Daniel raises twelve propositions of error:
1. The trial court erred in admitting the videotaped interview of Appellant where it had already been found to be inadmissible;
2. The trial court erred when it ruled that the videotaped interview was given involuntarily, without having watched the entire videotape;
3. The trial court erred in allowing the hearsay statements of the prosecutrix to be introduced through the testimony of a social worker;
4. The admission of Marcus Ford’s testimony was error because it was prejudicial but lacked any relevance to the present case;
5. It was error to admit the videotape of Mr. Daniel’s interview, after the police officer who conducted the interview had already testified in detail about the interview; the cumulative nature of this evidence prejudiced the jury against Mr. Daniel;
6. Mr. Daniel was prevented from presenting his defense when the trial court restricted his cross-examination of the prosecutrix;
7. The trial court committed fundamental error by giving two non-uniform instructions which were not necessary to instruct the jury on the relevant law, but which prejudiced the Defendant by making the state’s theory of the case part of the law of the case;
8. The trial court erred in not recusing herself or, in the alternative, informing defense counsel of the court’s possible conflict of interest in Appellant’s case;
9. The prosecutors’ repeated appeal to the jury’s sympathy for the alleged victim deprived Appellant of a fair trial and requires that the convictions be reversed or, in the alternative, the sentences be modified;
10. It was error to allow the prior testimony of Marcus Ford to be read to the jury, as there was no proof that Ford was unavailable to testify in person;
11. The trial court erred in denying Appellant’s request to enforce the plea agreement;
12. The conviction for Lewd Molestation was not supplied by sufficient evidence;
13. The cumulative effect of all these errors deprived Mr. Daniel of a fair trial.

After thorough consideration of the entire record before us on appeal, including the Original Record, the transcripts, exhibits, and briefs of the parties, we find reversal is warranted and this case must be remanded for a new trial.

The claim raised in Proposition 1 warrants relief. The State concedes admission of Mr. Daniel’s videotaped interview violated principles of res judicata. Harrison v. Eddy Potash, Inc., 248 F.3d 1014, 1022 (10th Cir. 2001). The improper admission of an involuntary confession is subject to harmless error analysis. Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 1265, 113 L.Ed.2d 302 (1991); Chapman v. California, 386 U.S. 18, 23-24, 87 S.Ct. 824, 827-828, 17 L.Ed.2d 705 (1967). We cannot find the admission of Mr. Daniel’s videotaped interview harmless beyond a reasonable doubt. The error was not a small or simple defect that had little chance of changing the result of the trial. See Mitchell v. State, 2005 OK CR 15, ¶ 80, 120 P.3d 1196, 1216 ([T]here may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring automatic reversal of the conviction. (emphasis added, citations omitted)). Accordingly, Mr. Daniel’s convictions must be reversed and remanded for a new trial. The remaining claims of error need not be addressed.

DECISION

The Judgments and Sentences imposed for Counts 2 and 3, in Oklahoma County District Court, Case No. CF 1998-460, are hereby REVERSED AND REMANDED FOR A NEW TRIAL. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2006), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

AN APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY
THE HONORABLE SUSAN CASWELL, DISTRICT JUDGE

APPEARANCES AT TRIAL

CHARLES ROUSE
ATTORNEY AT LAW
1330 NORTH CLASSEN BLVD.
OKLAHOMA CITY, OK 73106
ATTORNEY FOR DEFENDANT

PATTYE HIGH
JAMES SIDERIAS
ATTORNEY GENERAL OF OKLAHOMA
ASST. DISTRICT ATTORNEYS
THEODORE PEEPER
OKLAHOMA COUNTY COURTHOUSE
320 ROBERT S. KERR, SUITE 505
OKLAHOMA CITY, OK 73105
ATTORNEYS FOR STATE

APPEARANCES ON APPEAL

THOMAS PURCELL
P.O. BOX 926
NORMAN, OK 73070
ATTORNEY FOR APPELLANT

W.A. DREW EDMONDSON
ASSISTANT ATTORNEY GENERAL
112 STATE CAPITOL BUILDING
OKLAHOMA CITY, OK 73105
ATTORNEYS FOR STATE

OPINION BY: C. JOHNSON, J.

CHAPEL, P.J.: CONCURS
LUMPKIN, V.P.J.: DISSENTS
A. JOHNSON, J.: CONCURS
LEWIS, J.: CONCURS

LUMPKIN, VICE PRESIDING JUDGE: DISSENTS

In her order recommending that Appellant’s petition for Writ of Habeas Corpus be granted, the Honorable Valerie Couch, U.S. Magistrate, found the improper admission of Appellant’s videotaped statements was not harmless error as it had a substantial injurious effect on the jury’s verdict. This was due in great part to the fact that only Appellant’s admission on the tape supported the victim’s testimony that Appellant was ever in the vacant house with the victim and her younger sister, A.H. The victim’s younger sister did not testify at the first trial. At Appellant’s second trial, A.H. did testify and corroborated the victim’s testimony that Appellant was at the vacant house with the girls. A.H. testified that she and her sister went to the vacant house because they thought they saw their oldest brother there. A.H. testified the girls got into the vacant house through the back door. Once inside, A.H. said Appellant came out from the back bedroom into the living room where A.H. and the victim were sitting on the floor talking. A.H. testified that after awhile, Appellant told her to go get some water so he could flush the toilet in the house. A.H. left for her aunt’s nearby house. When A.H. returned with the water to the vacant house, she found the door locked. She knocked on the door, but when no one answered she went back to her aunt’s house and sat on the porch. A.H. said she went back to the vacant house a second time and knocked again. But still no one answered. A.H. went back to her aunt’s house to wait for her sister. When A.H. saw her sister come out of the vacant house, the victim was crying (although she would not tell A.H. why she was crying). Thus, unlike the situation in the first trial, the victim’s testimony placing Appellant at the vacant house was corroborated by testimony other than Appellant’s statements on the videotape. With A.H.’s testimony, the victim’s testimony that Appellant was in the vacant house with the two sisters is fully corroborated. In addition, A.H.’s testimony was direct evidence as to the emotional condition of the victim as she left the house after being there alone with Appellant. As Appellant did not confess to any wrongdoing on the videotape, and as his presence in the vacant house with the two girls was corroborated by testimony other than the videotape, the improper admission of the tape was harmless beyond a reasonable doubt as there is no reasonable probability that the videotape might have contributed to the conviction. Therefore, I dissent to the reversal of the conviction and the remand for a new trial.

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Footnotes:

1. Okla. Stat. tit. 21 § 1111
2. Okla. Stat. tit. 21 § 1123
3. Harrison v. Eddy Potash, Inc., 248 F.3d 1014, 1022 (10th Cir. 2001)
4. Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 1265, 113 L.Ed.2d 302 (1991)
5. Chapman v. California, 386 U.S. 18, 23-24, 87 S.Ct. 824, 827-828, 17 L.Ed.2d 705 (1967)
6. Mitchell v. State, 2005 OK CR 15, I 80, 120 P.3d 1196, 1216
7. Daniel U. Sutter, CIV-2002-209-C (May 23, 2003)
8. Daniel U. Sutter, CIV-2002-209-C (July 23, 2003)
9. Bartell U. State, 1994 OK CR 59, II 14, 881 P.2d 92, 97

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1111 (2011) - First Degree Rape
• Okla. Stat. tit. 21 § 1123 (2011) - Lewd Acts with a Child under Sixteen
• Okla. Stat. tit. 21 § 1123 (2011) - Making Indecent Proposals to a Child under Sixteen

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:

No case citations found.