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F-2011-509

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Mark Anthony Clayborne v The State Of Oklahoma

F-2011-509

Filed: Sep. 10, 2013

Not for publication

Prevailing Party: Mark Anthony Clayborne

Summary

Mark Anthony Clayborne appealed his convictions for Perjury by Subornation and Allowing the Production of a False Exhibit. His conviction and sentence were for four years in prison for the first count and two years for the second, to be served one after the other. Judge Lumpkin dissented regarding the reversal of the latter conviction. In this case, Clayborne was a lawyer who helped a client, Jose Cruz Herrera, argue that he was not guilty of selling drugs by presenting an alibi. He called a witness who claimed to have video evidence that supported this alibi. However, prosecutors later proved that the date on the video was fake. Clayborne was then charged for his role in this situation. During his trial, he raised several arguments to appeal the conviction. He claimed the judge made mistakes in responding to jury questions, that the evidence against him was not strong enough, and that he was not allowed to present evidence that could clear him. However, the court decided that Clayborne's conviction for subornation of perjury should stand, while the charge about the false exhibit required a reversal due to issues with the jury instructions and prosecutor misconduct during the trial. In conclusion, the court upheld Clayborne's conviction for subornation of perjury but reversed the conviction for producing a false exhibit. Judge Lumpkin disagreed, stating that he didn't believe any errors occurred in this case.

Decision

The Judgment and Sentence of the district court is AFFIRMED as to Count 1 (Perjury by Subornation). The Judgment and Sentence of the district court is REVERSED as to Count 3 (Allowing the Production of a False Exhibit). 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 reversible error in the trial court's response to the jury's question about rebuttal evidence?
  • did the prosecutor's discovery and ethical violations in the Herrera trial estop the prosecution of Clayborne?
  • must Clayborne's conviction for preparing a false exhibit be vacated due to a defective charging information, insufficient evidence, and a defective jury instruction?
  • does lack of corroboration of accomplice witness testimony on the subornation of perjury charge require vacating that conviction?
  • was Clayborne denied the right to present evidence in his defense by being denied access to audiotapes of the Herrera trial?
  • do Clayborne's convictions for both subornation of perjury and preparing a false exhibit constitute impermissible multiple punishment for the same act?
  • did prosecutorial misconduct in closing arguments deprive Clayborne of a fair trial?
  • does the accumulation of error require vacation of convictions or modification of sentence?

Findings

  • the court erred but the error was harmless regarding the jury's question about rebuttal evidence
  • the court did not find that the prosecution's alleged misconduct in the Herrera trial estopped it from prosecuting Clayborne
  • the court found the charging information was not fatally defective and that it was sufficient to support the conviction
  • the evidence was sufficient to support the conviction for preparing a false exhibit
  • the court found that the jury instruction regarding knowledge was flawed, but the error was harmless
  • the accomplice testimony was sufficiently corroborated to support the conviction for subornation of perjury
  • the trial court did not err in denying access to the audiotapes of the Herrera trial
  • there was no violation of the statutory prohibition against multiple punishments
  • prosecutorial misconduct during closing arguments affected Clayborne's substantial rights, requiring reversal of the conviction for preparing a false exhibit
  • the claim regarding cumulative error was moot as it only pertained to the reversed conviction

F-2011-509

Sep. 10, 2013

Mark Anthony Clayborne

Appellant

v

The State Of Oklahoma

Appellee

OPINION

MICHAEL S. RICHIE A. JOHNSON, JUDGE:

Appellant Mark Anthony Clayborne was tried by jury in the District Court of Oklahoma County, Case No. CF-2009-1007, and convicted of Perjury by Subornation (Count 1), in violation of 21 O.S.2001, § 504, and Allowing the Production of a False Exhibit (Count 3), in violation of 21 O.S.2001, § 453. The jury fixed punishment at four years imprisonment on Count 1 and two years imprisonment on Count 3. The Honorable Richard G. Van Dyck, who presided at trial, sentenced Clayborne according to the jury’s verdict and ordered the sentences to be served consecutively. From this Judgment and Sentence Clayborne appeals, raising the following issues: (1) whether the trial court committed reversible error both procedurally and substantively in answering the jury’s question about rebuttal evidence; (2) whether the prosecutor’s discovery and ethical violations in the Herrera trial estopped it from prosecuting Mr. Clayborne; (3) whether Clayborne’s conviction for preparing a false exhibit must be vacated as being based on a defective charging information, insufficient evidence, and a defective jury instruction, and because of this, the subornation of perjury conviction should also be set aside; (4) whether lack of corroboration of accomplice witness testimony on the subornation of perjury charge requires that the conviction for that offense be vacated; (5) whether Clayborne’s convictions should be reversed because he was denied the right to present evidence in his defense by being denied access to audiotapes of the Herrera trial; (6) whether Clayborne’s convictions for both subornation of perjury and preparing a false exhibit constitute impermissible multiple punishment for the same act in violation of 21 O.S. § 11; (7) whether prosecutorial misconduct in closing arguments deprived him of a fair trial; and (8) whether the accumulation of error requires vacation of convictions or other sentence modification.

We find reversal is not required on Count 1, the subornation of perjury count, and affirm that judgment and sentence. We find reversal is required, however, on Count 3, the false exhibit count, and therefore reverse that judgment and sentence.

FACTS

Clayborne was a lawyer who had represented a defendant, Jose Cruz Herrera, charged with selling drugs in Oklahoma City to a police officer on February 12, 2007. When that case went to trial in Oklahoma County in February, 2008, Clayborne presented an alibi defense for his client. He called Herrera’s cousin, Claudia Aguilar, to testify that at the time the drugs were allegedly sold in Oklahoma City, Herrera was with her in Mexico. Furthermore, she testified she had made a video of their time in Mexico. Clayborne introduced the video as a trial exhibit. It was particularly powerful evidence because the video tape included a clearly visible date stamp that, if reliable, confirmed Herrera’s alibi. In rebuttal, prosecutors called OSBI Agent Alan Salmon, a forensic video analyst, who testified the date stamp had been altered. The jury found Herrera guilty. Following the Herrera trial, the State charged attorney Clayborne with subornation of perjury and allowing the production of a false exhibit, witness Claudia Aguilar with perjury, and Clayborne’s legal assistant, Cecilia Anna Talavera-DeMadrid with subornation of perjury. At Clayborne’s trial, his accomplices Aguilar and Talavera-DeMadrid testified for the prosecution. Agent Salmon repeated his expert opinion that the video’s date was a fake. And Cindy Truong, a prosecutor in the Herrera case, testified that the prosecution had known the video date was falsified but did not inform Clayborne of Agent Salmon’s expert opinion because the prosecution had no duty to disclose rebuttal testimony to the defense. During their deliberations, jurors sent a note to the judge that said: ADA Truong said in her testimony that it was not necessary to inform defense counsel [at the Herrera trial] of Mr. Salmon’s findings since he was a rebuttal witness. Is this legally correct? After consulting with defense counsel and the prosecutor, and over defense counsel’s objection, the trial judge answered the jurors’ question by return note, which stated: Parties in criminal cases are not required to give advance notice or discovery on rebuttal witnesses. The jury found Clayborne guilty on both counts.

DISCUSSION

1. Jury Question

Clayborne claims that the trial court judge erred by answering the jurors’ question by written note rather than summoning them into open court and answering their question there as required by 22 O.S.2001, § 894. Section 894 clearly and unambiguously requires that if jurors seek clarification on a point of law, they must be brought into the courtroom and their question answered in the presence of the parties. The language of the statute is clear. The trial judge erred by answering the question by note. But Clayborne makes no showing of prejudice resulting from this error, and none is apparent on the face of the record. The error was, therefore, harmless. See Givens v. State, 1985 OK CR 104, 19, 705 P.2d 1139, 1142 (holding that [w]hen a communication between a judge and jury occurs, after the jury has retired for deliberation, a presumption of prejudice arises, and holding further that the presumption may be overcome if, on appeal, this Court is convinced that, on the face of the record, no prejudice to the defendant occurred.); see also Smith v. State, 2007 OK CR 16, 52, 157 P.3d 1155, 1172 (finding that trial judge erred by answering jury question with note, but finding no prejudice on face of record, holding that reversal was not warranted). Clayborne did object, however, to the substance of the note and argued in the trial court, as he does here, that the note misstated the law. Consequently, the real issue before us is Clayborne’s claim of jury instruction error. Ordinarily, this Court reviews such a claim for an abuse of discretion, and does so by reviewing the challenged instruction to determine whether it correctly stated the applicable law. See Dill v. State, 2005 OK CR 20, 11, 122 P.3d 866, 869 (Jury instructions are a matter committed to the sound discretion of the trial court whose judgment will not be disturbed as long as the instructions, taken as a whole, fairly and accurately state the applicable law.).

2. Discovery

Clayborne claims the prosecution’s alleged discovery violations and associated misconduct at the Herrera trial estopped the State from prosecuting him for suborning perjury and producing a false exhibit. He provides no authority and little argument for this novel claim, one based on an unexplained estoppel theory that he should be immune from prosecution for his criminal acts as a lawyer at the Herrera trial because the State allegedly failed in its discovery obligations to defendant Herrera at that trial. This claim is waived because it is unsupported by authority or argument.

3. Charging Information, Sufficiency of Evidence, Jury Instruction

a. Information

Clayborne claims that the charging information was fatally defective because 21 O.S.2001, § 453 proscribes preparation of a false exhibit, but the Information nowhere alleged that he actually or constructively prepared a false exhibit. Clayborne did not challenge the sufficiency of the Information before he entered his plea. This claim is waived.

b. Sufficiency of the Evidence

Clayborne claims next that the evidence was insufficient to support a conviction for preparing a false exhibit. This Court reviews a challenge to the sufficiency of the evidence in the light most favorable to the State, and will not disturb the verdict if any rational trier of fact could find the essential elements of the crime charged beyond a reasonable doubt.

c. Jury Instruction

Clayborne claims that the jury instruction on the charge of preparing a false exhibit was defective for not including a knowledge element. There is no Oklahoma Uniform Jury Instruction for this offense, and this Court has never addressed this crime in any published case. The trial court judge crafted a jury instruction with the assistance of Clayborne and the State.

4. Accomplice Testimony

Clayborne claims that the evidence was insufficient to prove the elements of subornation of perjury because the testimony of accomplices Claudia Aguilar and Cecilia Talavera-DeMadrid was not corroborated.

5. Audiotapes of Herrera Trial

Clayborne claims the trial court judge violated his right to present a defense by denying him access to the court reporter’s audio tapes of Claudia Aguilar’s testimony from the Herrera trial.

6. Multiple Punishment

Clayborne claims that his convictions for both subornation of perjury and preparing a false exhibit violate the statutory prohibition against multiple punishments for the same act found at 21 O.S.2011, § 11.

7. Prosecutorial Misconduct

Clayborne raises numerous claims of prosecutorial misconduct occurring during the prosecutor’s closing argument.

8. Accumulation of Error

Clayborne claims that the accumulation of errors in his case requires reversal of his convictions on both counts, or at least a modification of his sentences to run them concurrently.

DECISION

The Judgment and Sentence of the district court is AFFIRMED as to Count 1 (Perjury by Subornation). The Judgment and Sentence of the district court is REVERSED as to Count 3 (Allowing the Production of a False Exhibit). 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. Count 1 also charged Clayborne's co-defendant Cecilia Anna Talavera-DeMadrid with subornation of perjury, a count to which she later pled no contest.
  2. Count 2 charged Clayborne's co-defendant Claudia Aguilar with perjury. That charge was later amended to suppression of evidence, a misdemeanor, a charge to which she pled guilty.
  3. Count 4 charged Talavera-DeMadrid with possession of a controlled substance (i.e., hydrocodone), a charge that was later dismissed.
  4. Jurors sent a note to the judge that said: ADA Truong said in her testimony that it was not necessary to inform defense counsel [at the Herrera trial] of Mr. Salmon's findings since he was a rebuttal witness. Is this legally correct?
  5. Clayborne claims that the trial court judge erred by answering the jurors' question by written note rather than summoning them into open court and answering their question there as required by 22 O.S.2001, § 894.
  6. The error was, therefore, harmless. See Givens v. State, 1985 OK CR 104, I 19, 705 P.2d 1139, 1142.
  7. See also Smith v. State, 2007 OK CR 16, I 52, 157 P.3d 1155, 1172.
  8. Section 894 clearly and unambiguously requires that if jurors seek clarification on a point of law, they must be brought into the courtroom and their question answered in the presence of the parties.
  9. 22 O.S.2011, § 742, provides that "[a] conviction cannot be had upon the testimony of an accomplice unless [she] be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely show the commission of the offense or the circumstances thereof."
  10. The charging statute, 21 O.S.2011, § 453 provides: Any person guilty of falsely preparing any book, paper, record, instrument in writing, or other matter or thing, with intent to produce it, or allow it to be produced as genuine upon any trial, proceeding or inquiry whatever, authorized by law, shall be guilty of a felony.
  11. Williams v. State, 1977 OK CR 119, 1 11, 565 P.2d 46, 49, overruled on other grounds, Lenion U. State, 1988 OK CR 230, 763 P.2d 381.
  12. Davis v. State, 1982 OK CR 95, I 7, 647 P.2d 450, 452.
  13. Atkins v. State, 1977 OK CR 150, T 18, 562 P.2d 947, 949.
  14. Dear v. State, 1989 OK CR 18, T 6, 773 P.2d 760, 761.
  15. Guy U. State, 1989 OK CR 35, q16, 778 P.2d 470, 474.
  16. The trial court erred by relying on Rule 2.2(D) to deny Clayborne's request to use the audiotapes as evidence at his trial in lieu of the transcripts.
  17. Rule 2.2(D) is a procedural rule of this Court governing the form and content of the record on appeal.
  18. The test of relevancy is whether the evidence has any tendency to make more or less probable a material fact in issue, 12 O.S.2011, § 2401.
  19. For instance, if neither the substance nor tone of Aguilar's testimony gave any hint that Clayborne did not know the date stamp had been altered, it simply had no relevance to Clayborne's lack of knowledge defense.
  20. Allegations of prosecutorial misconduct will not cause a reversal of judgment or modification of sentence unless their cumulative effect is such as to deprive the defendant of a fair trial and fair sentencing proceeding.
  21. This Court looks at the entire record to determine whether the cumulative effect of improper conduct by the prosecutor prejudiced an appellant causing plain error.

Oklahoma Statutes citations:

  • Okla. Stat. tit. 21 § 504 (2001) - Perjury by Subornation
  • Okla. Stat. tit. 21 § 453 (2001) - Allowing the Production of a False Exhibit
  • Okla. Stat. tit. 22 § 894 (2001) - Procedure for Jury Questions
  • Okla. Stat. tit. 20 § 3001.1 (2001) - Harmless Error
  • Okla. Stat. tit. 22 § 742 (2011) - Testimony of Accomplice
  • Okla. Stat. tit. 12 § 2401 (2011) - Relevance of Evidence
  • Okla. Stat. tit. 21 § 11 (2011) - Multiple Punishments for Same Act

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

  • 17 U.S.C. § 107 (2012) - Limitations on exclusive rights: Fair use

Other citations:

No other rule citations found.

Case citations:

  • Bramlett v. State, 2018 OK CR 19, I 36, 422 P.3d 788, 799-800
  • Givens v. State, 1985 OK CR 104, I 19, 705 P.2d 1139, 1142
  • Smith v. State, 2007 OK CR 16, I 52, 157 P.3d 1155, 1172
  • Dill v. State, 2005 OK CR 20, 11, 122 P.3d 866, 869
  • Slaughter v. State, 1997 OK CR 78, "I 53, 950 P.2d 839, 854
  • Layman v. State, 1988 OK CR 260, I 7, 764 P.2d 1358, 1360
  • Guy U. State, 1989 OK CR 35, q16, 778 P.2d 470, 474
  • Davis v. State, 1982 OK CR 95, I 7, 647 P.2d 450, 452
  • Atkins v. State, 1977 OK CR 150, T 18, 562 P.2d 947, 949
  • Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-204
  • Dear v. State, 1989 OK CR 18, T 6, 773 P.2d 760, 761
  • Williams v. State, 1977 OK CR 119, 1 11, 565 P.2d 46, 49
  • Pierce v. State, 1982 OK CR 149, I 6, 651 P.2d 707, 709
  • Behrens U. State, 1985 OK CR 44, I 14, 699 P.2d 156, 158
  • Hogan U. State, 2006 OK CR 19, I 39, 139 P.3d 907, 923
  • Jones v. State, 2006 OK CR 5, I 76, 128 P.3d 521, 545
  • Malone U. State, 2013 OK CR 1, "I 43, 293 P.3d 198, 212
  • Simpson U. State, 1994 OK CR 40, I 23, 876 P.2d 690, 698
  • Quynh Truong v. Allstate Ins. Co., 227 P.3d 73, 84 (N.M. 2010)
  • Commonwealth v. Heilman, 867 A.2d 542, 547 (Pa.Super.Ct. 2005)

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