Joseph Randal Arndt v The State Of Oklahoma

F-2011-473

Filed: Jun. 25, 2013

For publication

Prevailing Party: Joseph Randal Arndt

Summary

Joseph Randal Arndt appealed his conviction for Robbery with a Firearm. He was sentenced to twelve years in prison. The court found that he was denied his right to cross-examine his co-defendant, Jeremy Johnson, during the trial. As a result, the decision was reversed and a new trial was ordered. Judge Smith dissented, stating there was no clear evidence that Arndt's right to cross-examination was actually denied.

Decision

The Judgment and Sentence of the district court is REVERSED and REMANDED for a new trial consistent with this opinion. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2013), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Issues

• Was there a denial of Arndt's right to cross-examine co-defendant Johnson in violation of the Confrontation Clause?
• Did the trial court err by not allowing Arndt to cross-examine Johnson after he made incriminating statements?
• Was the trial court's instruction to the jury to disregard Johnson's incriminating statements against Arndt an effective cure for the alleged error?
• Was there reversible error in Arndt's trial due to the denial of cross-examination rights leading to a prejudicial impact on the jury's perception?
• Did Arndt's failure to seek severance from his co-defendant affect the appellate review of his Confrontation Clause claim?

Findings

• the court erred in denying Arndt the right to cross-examine co-defendant Johnson
• the judgment and sentence of the district court is reversed and remanded for a new trial

F-2011-473

Jun. 25, 2013

Joseph Randal Arndt

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

A. JOHNSON, JUDGE:

Appellant Joseph Randal Arndt was tried by jury in the District Court of Tulsa County, Case No. CF-2008-5422, and was convicted of Robbery with a Firearm, in violation of 21 O.S.2001, § 801. The jury fixed punishment at twelve years imprisonment. The Honorable Bill Musseman, who presided at trial, sentenced Arndt according to the jury’s verdict. From this Judgment and Sentence Arndt appeals. Arndt’s claim in his second proposition—that he was denied his right to cross-examine co-defendant Johnson—requires discussion and relief. Because we find reversal is required on that claim, we do not address his other claim.

Arndt was tried together with his co-defendant, Jeremy Lee Johnson, who appeals separately in Case No. F-2011-466. Under 21 O.S.Supp.2011, § 13.1, Arndt must serve 85% of the sentence imposed before he is eligible for parole. Arndt has requested oral argument in this matter. We find oral argument unnecessary and his request is denied.

BACKGROUND

Arndt, his co-defendant Jeremy Johnson and Michael Buckner arranged to meet Mahdi Ouni in the parking lot of a Tulsa apartment complex on October 26, 2008. Their purpose was to buy marijuana from him. The three arrived together in Buckner’s Suburban. When Ouni arrived he got in the backseat of that vehicle with Arndt and handed Johnson, in the driver’s seat, the marijuana. Johnson handed the marijuana to Buckner seated next to him. Buckner weighed the marijuana, found the amount less than agreed, and reacted by pulling out a gun and shooting Ouni twice in the face. Arndt pushed Ouni out of the Suburban and Johnson drove off. Johnson had set up the drug deal with Ouni earlier that day. Buckner, who believed he had been cheated by Ouni in the past, had said in Arndt’s presence that he would take the marijuana without paying if the amount was short, that is, less than represented. According to the testimony of Taylor Bradbury, Arndt had participated in the conversation with Johnson and Buckner about taking the drugs and voiced no objection to that plan. Arndt knew Buckner always carried a gun, and voluntarily accompanied him to the meeting place knowing the plan was to take the drugs without payment if the quantity was short. The marijuana was divided up after the robbery and shared with Arndt.

Johnson and Arndt were arrested without incident, but Buckner was shot and killed by police when they tried to apprehend him. Ouni survived and testified against Johnson and Arndt at their joint trial.

Confrontation Clause

Arndt contends the trial court denied him the right to cross-examine co-defendant Johnson in violation of the Confrontation Clause. He argues that he should have been allowed to cross-examine Johnson about his testimony that he saw Arndt in the back seat of the Suburban with a sawed-off shotgun and that Buckner told Arndt to push Ouni out of the truck and shoot him. Arndt’s contemporaneous objection to the testimony based on Bruton was overruled because the court found that the instruction to consider each defendant’s testimony only against him resolved the issue. Arndt maintains that Johnson’s testimony was prejudicial because it showed the jury that he anticipated violence and came prepared for the robbery. Neither Arndt nor Johnson filed a motion to sever. Both testified at trial on their own behalf, but did not cross-examine each other. Arndt acknowledges that there is no ruling by the district court judge on the record precluding the attorneys from cross-examining the other co-defendant. He maintains, however, that such a ruling must have been made.

As support for this position, he cites 1) defense counsel’s reference during the hearing on the motion in limine about Johnson’s interview that unless Johnson testified they would have no ability to cross-examine him; and 2) a reference by defense counsel during the jury instruction conference that Johnson’s testimony about the shotgun should not be used against Arndt particularly since we were not allowed to cross-examine Mr. Johnson. The State counters that because the record reflects no such decision by the district court, this claim has no merit. There was no objection to the alleged unrecorded ruling on the record and Arndt made no demand to cross-examine Johnson during his testimony. Our review is therefore for plain error only.

Whether a defendant’s right of cross-examination applies only to witnesses called by the State, or is equally applicable to witnesses called by a co-defendant, including the co-defendant himself, appears to be a question of first impression for this Court. Other courts that have considered the issue have held that a defendant may cross-examine any witness who offers testimony adverse to him.

The Nieves court found that cross-examination of a co-defendant should be barred if the co-defendant’s testimony is not adverse to the interests of the defendant. Similarly, the Fourth Circuit stated in United States v. Crockett that trial courts need not assess the adverse nature of testimony according to formalistic categories—by whether a co-conspirator was called by the government or is testifying on his own behalf or on behalf of a co-defendant. The critical matter is not the formal status of a witness but the actual content of his testimony. The court in Crockett found that a defendant is not entitled to cross-examine a co-defendant if the co-defendant’s testimony is not adverse.

This approach is consistent with recent rulings of the Supreme Court concerning the right of confrontation. In Crawford v. Washington, the Supreme Court held that under the Confrontation Clause, testimonial hearsay statements may be admitted against the accused in a criminal trial only when the declarant is unavailable to testify and the defendant has been provided confrontation. Whether a hearsay statement is testimony against the defendant, triggering the constitutional requirement of an opportunity for cross-examination depends on whether the statement is adverse and incriminating.

In Bruton v. United States, a seminal co-conspirator cross-examination case, the Supreme Court underscored the purpose of the Confrontation Clause. There, in a joint trial, the government introduced the earlier confession of one defendant as evidence against his co-defendant. Because the defendant whose confession had been admitted did not take the stand, Bruton had no opportunity to cross-examine him. The Court held that admission of the confession violated Bruton’s right to confrontation. Underlying the Court’s ruling was the view that Bruton had a right to test and impeach prejudicial evidence and to put the government to its proof.

These values, however, do not arise when a co-defendant’s testimony is not incriminating. We recognize that Bruton pertains to the statements of a non-testifying co-defendant. The fact that Johnson was a testifying co-defendant, however, does not render these principles inapplicable to the present case. In both situations, the accused has a Sixth Amendment right to confront a co-defendant in order to challenge an incriminatory statement. The trial court must, as a preliminary matter, determine whether such a right is present, and if it is whether the statement is in fact incriminatory.

The only difference between the two situations is the course that should be taken once a co-defendant’s statement is found to incriminate the accused. When a co-defendant testifies at trial, the trial court must allow cross-examination; where the co-defendant does not testify, the trial court should either exclude the statement or insist upon an appropriate redaction. It is clear, however, that the trigger for the right of confrontation is an incriminatory statement.

In this case before us, most of Johnson’s testimony, like Arndt’s, placed the blame on Buckner for the shooting. Both Johnson and Arndt professed ignorance of any plan to rob Ouni and both insisted that Ouni was paid for the drugs. Understanding this to be the state of the defense, the trial court was correct to find that Arndt had no right to cross-examine Johnson because his testimony was not incriminating. Once Johnson took the stand and made statements incriminating Arndt, however, the trial court should have given Arndt the opportunity to cross-examine him. Johnson’s testimony that Arndt had a sawed-off shotgun during the robbery was clearly incriminating, especially since Arndt defended the charge by claiming he knew nothing of any plan to rob Ouni. The prejudice from this testimony was exacerbated by the prosecutor’s use of Johnson’s testimony about the gun to bolster the case against Arndt in closing argument. The jury was left with the impression from Johnson’s testimony that Arndt would have shot Ouni had Johnson not sped away. We cannot find on this record that the court’s instruction to the jury to disregard Johnson’s incriminating statements against Arndt was an effective cure. We find that it was plain error for the trial court to deny Arndt the opportunity to cross-examine Johnson once Johnson made incriminating statements and Arndt objected to them.

Relief is required.

DECISION

The Judgment and Sentence of the district court is REVERSED and REMANDED for a new trial consistent with this opinion. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2013), the MANDATE is ORDERED issued upon delivery and filing of this decision.

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Footnotes:

1. Arndt was tried together with his co-defendant, Jeremy Lee Johnson, who appeals separately in Case No. F-2011-466.
2. Under 21 O.S.Supp.2011, § 13.1, Arndt must serve 85% of the sentence imposed before he is eligible for parole.
3. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).
4. Arndt's Brief at 17-18 n. 24.
5. See Mitchell v. State, 2011 OK CR 26, T 72, 270 P.3d 160, 179; 12 O.S.2011, § 2104; see also Simpson v. State, 1994 OK CR 40, 9 23, 876 P.2d 690, 698.
6. See Taylor U. State, 2011 OK CR 8, "I 33, 248 P.3d 362, 373.
7. Crawford U. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) and progeny.
8. Judgment and Sentence of the district court is REVERSED and REMANDED for a new trial consistent with this opinion.
9. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2013), the MANDATE is ORDERED issued upon delivery and filing of this decision.
10. Collins v. State, 2009 OK CR 32, "I 12, 223 P.3d 1014, 1017.
11. Hogan v. State, 2006 OK CR 19, 1 38, 139 P.3d 907, 923.
12. Dollar V. State, 1984 OK CR 1, I 7, 674 P.2d 48, 50.
13. See Pierce v. State, 1972 OK CR 82, I 6, 495 P.2d 407, 409.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 801 - Robbery with a Firearm (2001)
• Okla. Stat. tit. 21 § 13.1 - Parole Eligibility (Supp. 2011)
• Okla. Stat. tit. 12 § 2104 - Error in Trial (2011)
• Okla. Stat. tit. 22 Ch. 18 App. - Rules of the Oklahoma Court of Criminal Appeals (2013)
• Okla. Stat. tit. 20 § 3001.1 - Plain Error Review (2001)

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:

• Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968)
• Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed. 923 (1965)
• Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965)
• Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965)
• Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)
• Collins v. State, 2009 OK CR 32, 223 P.3d 1014
• Hammon v. State, 2000 OK CR 7, 999 P.2d 1082
• Mitchell v. State, 2011 OK CR 26, 270 P.3d 160
• Cuesta-Rodriguez v. State, 2010 OK CR 23, 241 P.3d 214
• Bowers v. State, 1975 OK CR 217, 542 P.2d 950
• Dorothy v. State, 1984 OK CR 1, 674 P.2d 48
• Pierce v. State, 1972 OK CR 82, 495 P.2d 407
• Welch v. State, 1998 OK CR 54, 968 P.2d 1231
• Malone v. State, 2013 OK CR 1, 293 P.3d 198
• Simpson v. State, 1994 OK CR 40, 876 P.2d 690