Mark Wayne Johnson v The State Of Oklahoma

F-2004-914

Filed: Mar. 2, 2007

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Mark Wayne Johnson appealed his conviction for Child Sexual Abuse. The conviction and sentence were reversed, and he was given a new trial. Judge Lewis dissented.

Decision

The judgment and sentence are hereby REVERSED, and the matter is REMANDED to the District Court of Bryan County for a new trial. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.1 18, App. (2006), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there ineffective assistance of counsel due to failure to consult appropriate expert providers on forensic biological evidence?
• Did the trial court improperly relieve the State of its burden to establish chain of custody of biological evidence?
• Did the trial judge's reprimands to co-counsel in front of the jury adversely affect the fairness of the trial?
• Did the trial court err by excluding evidence that would show witness bias, impacting the right to confront the witness?
• Was trial counsel ineffective in failing to cross-examine the complaining witness and other State witnesses for inconsistencies?
• Did the lack of recorded bench conferences impede the defense’s ability to properly argue adverse rulings?
• Did the cumulative effect of all these errors deprive Appellant of a fair trial?
• Was the sentence of twenty years excessive given Appellant's lack of a criminal record?

Findings

• The court erred by failing to recognize ineffective assistance of counsel due to multiple deficiencies.
• The trial court improperly relieved the State of its burden regarding chain of custody.
• The trial court's chastisement of defense counsel resulted in a fundamentally unfair trial.
• The trial court erred by excluding evidence that would have shown witness bias.
• Trial counsel's failure to properly cross-examine witnesses constituted ineffective assistance.
• The lack of recorded bench conferences led to an inability to challenge adverse rulings.
• The cumulative effect of all errors deprived Appellant of a fair trial.
• The sentence of twenty years was deemed excessive, warranting modification.

F-2004-914

Mar. 2, 2007

Mark Wayne Johnson

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, VICE-PRESIDING JUDGE: Appellant, Mark Wayne Johnson, was tried by jury in the District Court of Bryan County, Case Number CF-01-462, and convicted of Child Sexual Abuse, in violation of 10 O.S.2001, § 7115(E). The jury set punishment at twenty (20) years imprisonment and a $1,000 fine. The trial judge sentenced Appellant accordingly. Appellant now appeals his conviction and sentence. Appellant raises the following propositions of error in this appeal:

I. Counsel’s failure to consult appropriate expert providers on forensic biological evidence resulted in the failure to challenge insupportable claims by the State and its witnesses, which severely damaged the defense and had a clear and convincing probability of affecting the outcome. Thus Appellant was deprived of his right to effective counsel under Amendment VI and Article 2, § 20 of Oklahoma’s Constitution;

II. The trial court improperly relieved the State of its burden to establish chain of custody and to show prevention of biological evidence contamination at the residence where seized and in its later travels, such that the testimony of criminalists and the reports based on analysis of biological evidence were compromised for relevance and should have been excluded as defense counsel moved at trial;

III. The trial judge (a) summoned to the bench and then chastised co-counsel Haney in the presence of the jury and could be heard to threaten Haney with jail, such that Appellant’s case sustained severe damage and his trial was not fair, and (b) sternly rebuked co-counsel Brown in the full presence of the jury and during closing argument and forced Brown to loudly tell the jury he did not mean to violate a motion in limine ruling that counsel could not mention the firing of witness David Joe Woods, Calera’s Police Chief;

IV. The trial court erred by excluding evidence under color of Title 12, Section 2608, which would show witness bias, and which thus was admissible and relevant. This deprived Appellant of his full Sixth Amendment right to confront the complaining witness and to present evidence so crucial that the error cannot be characterized as harmless;

V. Trial counsel’s assistance was ineffective in failing to cross-examine the complaining witness and other State witnesses for numerous inconsistencies and in failing to argue that external corroboration was insufficient to convict due to these inconsistencies and due to the failure of the State’s external forensic evidence as argued in propositions I and II. The demurrer should have been sustained despite these failures;

VI. The court reporter did not record bench conferences, possibly unbeknownst to defense counsel. In one crucial instance this resulted in a ruling adverse to Appellant that was arguably erroneous but which cannot be adequately argued for lack of a sufficient record;

VII. The cumulative effect of all these errors deprived Appellant of a fair trial; and

VIII. The sentence of twenty years was excessive, given Appellant’s lack of a criminal record, and warrants modification.

After thoroughly considering these propositions and the entire record before us, including the original record, transcripts, and briefs of the parties, we find reversal is required, as the record reflects numerous incidents that, when considered cumulatively, amount to ineffective assistance of counsel, as set forth in further detail below.

In reviewing claims of ineffective assistance of counsel, this Court follows the test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Under Strickland’s two-part test, a criminal defendant must overcome the strong presumption that his/her counsel’s conduct falls within the wide range of reasonable professional assistance by showing: [1] that trial counsel’s performance was deficient; and [2] that the defendant was prejudiced by the deficient performance. Unless both showings are made, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.

Appellant’s trial counsel (1) failed to hire appropriate experts on the DNA issue, as set forth in proposition one, (2) violated an in limine ruling that resulted in defense counsel being forced to issue an apology, as set forth in proposition three, (3) failed to make offers of proof regarding court rulings on witnesses, (4) failed to ensure a proper record on bench conferences, (5) failed to provide additional authority requested by the trial judge as to proffered experts, and (6) failed to properly cross-examine the victim regarding inconsistencies in her story, as set forth in proposition five. Considered together, these actions did not amount to reasonable assistance under prevailing professional norms and cannot be considered sound trial strategy. The record clearly shows deficient performance and prejudice under Strickland, in that our confidence in the outcome has been undermined.

DECISION

The judgment and sentence are hereby REVERSED, and the matter is REMANDED to the District Court of Bryan County for a new trial. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.1 18, App. (2006), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

1. 10 O.S.2001, § 7115(E)
2. Title 12, Section 2608
3. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)
4. 20 O.S.2001, § 106.4

Oklahoma Statutes citations:

• Okla. Stat. tit. 10 § 7115 (2001) - Child Sexual Abuse
• Okla. Stat. tit. 12 § 2608 - Evidence
• Okla. Stat. tit. 20 § 106.4 (2001) - Court Reporter Assignments

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:

• Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)