Leroy Mitchell, Jr. v The State Of Oklahoma

F-2005-874

Filed: Sep. 19, 2006

Not for publication

Prevailing Party: Leroy Mitchell, Jr.

Summary

Leroy Mitchell, Jr., appealed his conviction for First Degree Rape. Conviction and sentence: 15 years in prison, with the last 5 years suspended. The court decided that he should get a new trial because his rights were not protected properly during the first trial. Some important statements were allowed in that should not have been, which made the trial unfair. Judge Lewis disagreed with only part of the decision.

Decision

The Judgment and Sentence of the District Court is 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 a violation of the Appellant's right to confrontation due to the admission of unreliable hearsay?
• Did the admission of testimonial hearsay violate the Appellant's right to confrontation?
• Were the Appellant's statements coerced and uncorroborated by competent evidence?
• Was the Appellant's right to due process violated by the introduction of other crimes evidence?
• Was the trial counsel ineffective?
• Did the cumulative effect of all errors deprive the Appellant of a fair trial?

Findings

• Mitchell was denied a fair trial by the admission of testimonial hearsay in violation of the Confrontation Clause.
• The trial court failed to make required reliability findings on the admission of hearsay.
• The Judgment and Sentence of the District Court is reversed and remanded for a new trial.

F-2005-874

Sep. 19, 2006

Leroy Mitchell, Jr.

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

CHAPEL, PRESIDING JUDGE:

After a non-jury trial, Leroy Mitchell, Jr. was convicted of First Degree Rape in violation of 21 O.S. 2001, § 1114 in Atoka County District Court Case No. CF-2005-14. The Honorable Doug Gabbard sentenced Mitchell to fifteen (15) years’ imprisonment with the last five (5) years suspended. Mitchell appeals this Judgment and Sentence.

Mitchell raises the following propositions of error:

I. Unreliable hearsay admitted under 12 O.S.Supp.2004, § 2803.1 violated Appellant’s right to confrontation.
II. Admission of testimonial hearsay violated Appellant’s right to confrontation.
III. Appellant’s statements were coerced and were uncorroborated by competent evidence.
IV. Appellant’s right to due process was violated by other crimes evidence.
V. Trial counsel was ineffective.
VI. The cumulative effect of all errors was to deprive Appellant of a fair trial.

After thoroughly considering the entire record before us on appeal, including the original record, transcripts, briefs, and exhibits of the parties, we find Mitchell is entitled to a new trial. We find in Propositions I and II that Mitchell was denied a fair trial by the admission of testimonial hearsay in violation of the Confrontation Clause and the trial court’s failure to make the required reliability findings on the admission of hearsay pursuant to 12 O.S.2001, § 2803.1. We do not address Propositions VI and VII due to the relief recommended in Propositions I and II.

Decision

The Judgment and Sentence of the District Court is 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.

The victim’s testimonial hearsay statements were improperly admitted through the testimony of the investigating police officers. The victim’s statements were never subject to cross-examination as she did not testify at or prior to trial and there was no evidence that she was unavailable to testify. Thus, her statements to the officers should not have been admitted at trial. This error requires reversal as the prosecution was based primarily on these statements and without the statements the verdict is questionable. Moreover, the trial court failed to make reliability findings required by § 2803.1 for the admission of the child victim’s statements to the officers prior to trial. F.D.W. v. State, 80 P.3d 503, 504 (Okl.Cr.2003)(mandates trial courts to make reliability findings on record).

ATTORNEYS AT TRIAL
JIM KEMP
830 NORTH BROADWAY
P.O. BOX 926
ADA, OKLAHOMA 74820

ATTORNEY FOR DEFENDANT

GREG JENKINS
ATOKA COUNTY COURTHOUSE
ATOKA, OKLAHOMA 74525

ATTORNEY FOR THE STATE

ATTORNEYS ON APPEAL
BOBBY G. LEWIS
P.O. BOX 926
NORMAN, OKLAHOMA 73070

ATTORNEY FOR APPELLANT

W.A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA
112 STATE CAPITOL
OKLAHOMA CITY, OKLAHOMA 73105

ASSISTANT ATTORNEY GENERAL
WILLIAM R. HOLMES

ATTORNEYS FOR APPELLEE

OPINION BY: CHAPEL, P. J.
LUMPKIN, V.P.J.: CONCUR
C. JOHNSON, J.: CONCUR
A. JOHNSON, J.: CONCUR
LEWIS, J.: SPECIALLY CONCUR

LEWIS, JUDGE, SPECIALLY CONCURS: I would reverse on Proposition II only. Admission of testimonial hearsay violated appellant’s right of confrontation.

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Footnotes:

1. Crawford v. Washington, 541 U.S. 36, 124 S.Ct.1354, 158 1.Ed.2d 177 (2004) (testimonial hearsay only admissible if it has been subject to cross-examination and witness unavailable);
2. Mitchell v. State, 120 P.3d 1196, 1207 (Okl.Cr.2005) citing People v. R.F., 825 N.E.2d 287 (III.App. 2005)(child's statements of sexual abuse to investigating officer testimonial);
3. Davis v. Washington, - U.S. , 126 S.Ct. 2266, 2273-74, - L.Ed.2d (2006) (finding statements in non-emergency situation made to police to prove events relevant to criminal prosecution testimonial);
4. Snowden U. State, 846 A.2d 36 Md.App.2004)(statement by child to child welfare worker pursuant to similar child sexual abuse hearsay statute testimonial).
5. F.D.W. v. State, 80 P.3d 503, 504 (Okl.Cr.2003)(mandates trial courts to make reliability findings on record).

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1114 (2001) - Rape in the First Degree
• Okla. Stat. tit. 12 § 2803.1 (Supp. 2004) - Hearsay Exception for Child Victims

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:

• Crawford v. Washington, 541 U.S. 36, 124 S.Ct.1354, 158 1.Ed.2d 177 (2004)
• Mitchell v. State, 120 P.3d 1196, 1207 (Okl.Cr.2005)
• Davis v. Washington, - U.S. , 126 S.Ct. 2266, 2273-74, - L.Ed.2d (2006)
• Snowden U. State, 846 A.2d 36 (Md.App.2004)
• F.D.W. v. State, 80 P.3d 503, 504 (Okl.Cr.2003)