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F-2004-874

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Deitric Benard Pierson v The State Of Oklahoma

F-2004-874

Filed: Jun. 21, 2006

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Deitric Benard Pierson appealed his conviction for Sexual Abuse of a Child. The conviction and sentence were originally for life imprisonment. Judge Lumpkin dissented regarding the modification of Pierson's sentence. In summary, Deitric Pierson was found guilty of sexually abusing his wife’s daughter, who was 12 years old. During the trial, there were many witness statements, but the girl did not testify in court. Pierson argued that this was unfair to him and that it violated his rights. The court agreed to change his punishment to 30 years in prison, instead of life, because they found some mistakes in how the sentence was explained. However, Judge Lumpkin disagreed with this shorter sentence, believing the jury's choice of life imprisonment should be respected.

Decision

The judgment of the District Court shall be AFFIRMED; however, the sentence shall be ordered MODIFIED to a term of thirty (30) years imprisonment. 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 a violation of Appellant's constitutional right to confront and cross-examine the witnesses against him due to the introduction of hearsay evidence?
  • did the State's use of peremptory challenges based on race deny Appellant a fair trial?
  • did the trial court err by failing to instruct jurors about the requirements for serving a percentage of the prison sentence before being eligible for parole?
  • is Appellant's sentence excessive and subject to modification?
  • should Appellant's conviction be reversed or sentence modified based on cumulative error?

Findings

  • the court did not err in the admission of hearsay evidence
  • there was no error in the racial composition of the jury
  • the trial court committed plain error by failing to instruct the jury on parole eligibility, warranting a modification of the sentence
  • the issue of excessive sentence is moot due to the modification
  • there is no cumulative error warranting further relief
  • the judgment of the District Court is affirmed; the sentence is modified to thirty (30) years imprisonment

F-2004-874

Jun. 21, 2006

Deitric Benard Pierson

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LEWIS, JUDGE: Deitric Benard Pierson, Appellant, was convicted of Sexual Abuse of a Child in violation of 10 O.S.Supp.2002, § 7115(E) in the District Court of Oklahoma County, Case No. CF-2003-3541, before the Honorable Jerry D. Bass, District Judge. The jury assessed punishment at life imprisonment, and the trial court sentenced accordingly. Pierson has perfected an appeal of the District Court’s Judgment and Sentence.

In support of the appeal, Pierson raises the following propositions of error:
1. Introduction at trial of voluminous hearsay from the alleged victim, who refused to testify, denied Appellant’s constitutional right to confront and cross-examine the witnesses against him, and the statute under which the hearsay evidence was admitted is unconstitutional in part.
2. The State’s use of peremptory challenges to remove prospective jurors based on race denied Appellant a fair trial by a jury comprised of a fair cross-section of the community, in violation of Appellant’s rights to due process and equal protection.
3. The trial court erred in failing to instruct the jurors that Appellant would have to serve 85% of any prison sentence imposed, prior to earning points or being considered for parole.
4. Appellant’s sentence is excessive and should be modified.
5. Appellant’s conviction should be reversed or the sentence modified, based on cumulative error.

After thorough consideration of Pierson’s propositions of error and the entire record before us on appeal, including the original record, transcripts, exhibits, and briefs, we have determined that the judgment of the District Court shall be affirmed, but the Sentence should be modified.

A short recitation of the facts is necessary to the resolution of the issues in this case. Twelve-year-old L.H. told her mother that Pierson, L.H.’s stepfather messed with her. She later told her mother that Pierson stuck his thing in her. L.H. told her grandmother that Pierson pulled her pants down and stuck his thing down between her legs. L.H. showed her mother and grandmother a shirt that Pierson had stained with his ejaculate. DNA testing revealed a positive match. At the hospital, L.H. was interviewed by a hospital social worker. L.H. told her that Deitric got on top of her and held her hands down with one of his hands. With the other hand, Deitric unzipped his pants and he pulled her shorts and panties down to her ankles. She said that Deitric got some liquid stuff on her shirt. She said that the liquid stuff came from his weenie. L.H. told the social worker that Deitric rubbed his penis on her pubic hairs and put it in her private and it hurt. She said he was on her for about three minutes.

Both the social worker and the treating physician testified that this statement was used to determine a course of treatment and diagnosis. The doctor was unable to do an examination because, by that time, L.H. was extremely agitated and refused to be examined. Later, that same evening, L.H. was interviewed by a police officer; his testimony regarding the statement mirrored that of the social worker. A few days after the incident, L.H. was interviewed by a police detective. She told the detective the same story she told the social worker and the police officer on the night of the incident.

In proposition one, we find that the admission of testimony is left to the sound discretion of the trial court, and this Court will not reverse that decision unless an abuse of discretion is shown. Pickens v. State, 2001 OK CR 3, I 21, 19 P.3d 866, 876. An abuse of discretion is a clearly erroneous conclusion and judgment, one that is clearly against the logic and effect of the facts presented. C.L.F. v. State, 1999 OK CR 12, I 5, 989 P.2d 945, 946. We find that the trial court followed 12 D.S.Supp. 1998, § 2803.1, and found that the statements appeared reliable under the circumstances under which they were made, and that the time, content and totality of circumstances surrounding the taking of the statement provide sufficient indicia of reliability so as to render them inherently trustworthy. F.D.W. v. State, 2003 OK CR 23, IT 4, 80 P.3d 503, 504 [emphasis in original]. Pierson objected on these grounds, but he did not object on confrontation clause grounds even though Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), was decided prior to the start of his trial. Therefore, we review for plain error only. The United States Supreme Court, in Crawford, held that the confrontation clause requires that testimonial hearsay statements may be admitted as evidence against an accused at a criminal trial only when the declarant is unavailable to testify and the defendant has had a prior opportunity to cross-examine the declarant. Crawford, 124 S.Ct. at 1369-1374; See Mitchell V. State, 2005 OK CR 15, I 16, 120 P.3d 1196, 1202. The Supreme Court noted non-testimonial hearsay might still be admissible against an accused in a criminal trial if the declarant were unavailable and the statement bore an adequate indicia of reliability. Id. The Court in Crawford did not explicitly define testimonial statements, but it did discuss three types of statements they considered to be testimonial: ex parte in-court testimony, extra-judicial statements contained in formalized testimonial materials, and statements made under circumstances which would lead an objective witness to reasonably believe that such statement would be available for use at a later trial. Crawford, 124 S.Ct. at 1364. Whatever else the term [testimonial] covers, it applies at a minimum to police interrogations. Id., 124 S.Ct. at 1374.

Several hearsay statements are at issue here. We find, under the facts of this case, that the statements the victim made to her mother and to her grandmother were non-testimonial. We find that the statements made to the social worker at the hospital, whether or not they were testimonial in nature, were admissible under the medical diagnosis and treatment exception. 12 O.S.2001, § 2803(4)(Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain or sensations; if reasonably pertinent to diagnosis or treatment.); See Kennedy v. State, 1992 OK CR 67, IT 11, 839 P.2d 667, 670. Although we find that the statements to the police officer and to the police detective were testimonial in nature under the Crawford analysis, their admission was harmless as the statements merely mirrored those statements that were properly admitted. See 20 O.S.2001, § 3001.1 (Reversal may not be predicated on error unless it is the opinion of the reviewing court that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.). Here there was no miscarriage of justice in the conviction and the admission did not constitute a substantial violation of a constitutional or statutory right. Therefore, we grant no relief based on this proposition.

We find, in proposition two, that the trial court determined that the race neutral reasons offered by the State were sufficient. The ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike. Purkett U. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834 (1995). Pierson has not persuaded us that the trial court abused its discretion in finding that the State’s race neutral reasons were legitimate and did not deny equal protection. Id.; Cleary U. State, 1997 OK CR 5 35, I 6, 942 P.2d 736, 742-43. Accordingly, we find no error in this proposition.

In proposition three, we find that, based on Anderson V. State, 2006 OK CR 6, 130 P.3d 273, plain error occurred in the trial court’s failure to instruct the jury that Pierson would be required to serve 85% of his sentence before being eligible for credits and for parole, and to further instruct that the current Pardon and Parole policy is to treat a life sentence as forty-five (45) years. Therefore, we find that a modification of Pierson’s sentence to a term of thirty (30) years is appropriate. We find that the issues raised in proposition four are moot due to the modification of Pierson’s sentence. In proposition five, we find that there is no error to accumulate and no further relief is warranted based on a cumulative error review. Lott v. State, 2004 OK CR 27, I 165, 98 P.2d 318, 357.

DECISION

The judgment of the District Court shall be AFFIRMED; however, the sentence shall be ordered MODIFIED to a term of thirty (30) years imprisonment. 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.

Contrary to our esteemed colleague’s special vote, Appellant must serve 85% of this thirty (30) year sentence (or 25.5 years) before becoming eligible for parole, not the asserted ten (10) years. See 21 O.S.Supp.2002, § 13.1. The suggestion of modification to fifty (50) years would actually increase the time Appellant would serve before becoming eligible for parole. Any fines and costs imposed shall remain unmodified.

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Footnotes:

  1. Okla. Stat. tit. 10 § 7115(E)
  2. Pickens v. State, 2001 OK CR 3, I 21, 19 P.3d 866, 876
  3. C.L.F. v. State, 1999 OK CR 12, I 5, 989 P.2d 945, 946
  4. F.D.W. v. State, 2003 OK CR 23, IT 4, 80 P.3d 503, 504
  5. Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)
  6. Anderson v. State, 2006 OK CR 6, 130 P.3d 273
  7. 20 O.S.2001, § 3001.1
  8. Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834 (1995)
  9. Cleary v. State, 1997 OK CR 5 35, I 6, 942 P.2d 736, 742-43
  10. 21 O.S.Supp.2002, § 13.1
  11. 12 O.S.2001, § 2803(4)
  12. Kennedy v. State, 1992 OK CR 67, IT 11, 839 P.2d 667, 670

Oklahoma Statutes citations:

  • Okla. Stat. tit. 10 § 7115 (2002) - Sexual Abuse of a Child
  • Okla. Stat. tit. 12 § 2803.1 (1998) - Hearsay Exceptions
  • Okla. Stat. tit. 12 § 2803 (2001) - Medical Diagnosis and Treatment
  • Okla. Stat. tit. 20 § 3001.1 (2001) - Reversal of Conviction
  • Okla. Stat. tit. 21 § 13.1 (2002) - Parole Eligibility

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

  • 12 U.S.C. § 2803(4) - Statements for medical diagnosis or treatment
  • 21 U.S.C. § 3001.1 - Reversal based on error
  • 514 U.S. § 765 - Peremptory challenges and racial motivation
  • 541 U.S. § 36 - Confrontation clause in criminal trials

Other citations:

No other rule citations found.

Case citations:

  • Bramlett v. State, 2018 OK CR 19, I 36, 422 P.3d 788, 799-800
  • Pickens v. State, 2001 OK CR 3, I 21, 19 P.3d 866, 876
  • C.L.F. v. State, 1999 OK CR 12, I 5, 989 P.2d 945, 946
  • F.D.W. v. State, 2003 OK CR 23, IT 4, 80 P.3d 503, 504
  • Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177
  • Mitchell v. State, 2005 OK CR 15, I 16, 120 P.3d 1196, 1202
  • Kennedy v. State, 1992 OK CR 67, IT 11, 839 P.2d 667, 670
  • Anderson v. State, 2006 OK CR 6, 130 P.3d 273
  • Lott v. State, 2004 OK CR 27, I 165, 98 P.2d 318, 357
  • Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834
  • Cleary v. State, 1997 OK CR 35, I 6, 942 P.2d 736, 742-43

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