Gregory Antwon O'Neal v The State of Oklahoma

F-2013-958

Filed: Apr. 5, 2016

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Gregory Antwon O'Neal appealed his conviction for First Degree Child-Abuse Murder. Conviction and sentence were upheld; however, he was remanded for resentencing. Judge Hudson dissented regarding the resentencing decision. In the case, Gregory was found guilty of causing the death of his two-month-old daughter, Tianna. Tianna was taken to the hospital with severe injuries, including a skull fracture that led to brain swelling. The evidence suggested that Gregory might have intentionally harmed her, as he changed his explanations about her injuries multiple times. Alongside Gregory, Tianna's mother was also involved but received a lesser sentence. The court found that the evidence supported a conclusion that Gregory's actions were responsible for the injuries leading to Tianna's death, warranting a guilty verdict. However, during the trial, issues arose regarding the prosecutor's use of dramatic demonstrations, which led to the decision for a new sentencing hearing, but the conviction itself was affirmed.

Decision

The Judgment of the District Court of Tulsa County is AFFIRMED, but the case is REMANDED for re-sentencing. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2016), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there sufficient evidence to support the conviction for First Degree Child-Abuse Murder?
• Did the trial court err in redacting portions of Appellant's video interview and phone conversations?
• Was the admission of evidence concerning "Shaken Baby Syndrome" relevant and did it deny Appellant a fair trial?
• Did the trial court abuse its discretion by instructing the jury to exercise caution when considering the testimony of the defense expert?
• Was the admission of Appellant's statements to Investigator Varcoe in violation of his Miranda rights?
• Did Appellant's trial counsel perform ineffective assistance of counsel?
• Did the prosecutor engage in misconduct during closing arguments that warranted a new trial?
• Did the accumulation of errors in the case justify a new trial?

Findings

• the court erred in denying the sufficiency of the evidence for conviction
• the court did not err in redacting portions of the video interview
• the court did not err in admitting evidence concerning "Shaken Baby Syndrome"
• the court did not err in instructing the jury to exercise caution with the defense expert's testimony
• the court did not err in admitting statements to the investigator without Miranda warnings
• the court did not err in denying claims of ineffective assistance of counsel
• the court erred in allowing the prosecutor's use of a doll in closing argument, affecting the sentencing outcome
• the cumulative errors did not warrant a new trial

F-2013-958

Apr. 5, 2016

Gregory Antwon O'Neal

Appellant

v

The State of Oklahoma

Appellee

OPINION

Appellant, Gregory Antwon O’Neal, was convicted by a jury of First Degree Child-Abuse Murder (21 O.S.2011, § 701.7(C)), in the District Court of Tulsa County, Case No. CF-2011-780. On September 23, 2013, the Honorable James M. Caputo, District Judge, sentenced him to life imprisonment without possibility of parole, in accordance with the jury’s recommendation.

FACTS

Appellant was charged alternatively with causing the death of his two-month-old daughter, Tianna Marie O’Neal, or permitting another person to do so. Appellant and the child’s mother, Tamara Matthews, lived together with their daughter in Tulsa. When Appellant and Matthews brought Tianna to a local hospital on the evening of May 17, 2007, the child was unresponsive. Appellant told a Tulsa police officer at the hospital that he and his wife spent the day helping their friend, Joel Broadway, clean a house in Broken Arrow that Broadway was moving out of, and had taken Tianna with them. In the afternoon, Appellant said, he took Tianna to one of the empty bedrooms so the two of them could take a short nap. Appellant said he awoke to a high-pitched cry from Tianna, but did not know what caused her distress. A short time later, he said, she went limp, and they brought her to the hospital.

Tianna exhibited several external injuries which appeared suspicious, including a small bruise by her eye, bruising and abrasions to her shoulders, a bruise on her chest, and healing abrasions and peeling skin on her lower back and buttocks. She also exhibited injury to her upper arm that had the appearance of a bite mark, although the cause of that wound was never confirmed. Most importantly, a CT scan revealed that Tianna had sustained a skull fracture, which caused subdural bleeding and brain swelling. Dr. Passmore, a pediatrician specially trained in child-abuse injuries, also noted the possibility of retinal hemorrhaging, which can be caused by intense shaking of a child – one of a constellation of physical effects sometimes grouped together as Shaken Baby Syndrome. An X-ray suggested that Tianna might have had a fractured rib – not acute, but in the process of healing – and a dislocated shoulder. It was later determined that the rib was not fractured and the shoulder was not dislocated. Furthermore, the autopsy did not detect the retinal hemorrhages initially reported by the pediatrician. However, the direct cause of Tianna’s unresponsiveness on presentation, and the cause of her death the next day, was never disputed: brain swelling, caused by blunt force trauma which fractured the back of her skull.

Because the initial assessment of Tianna’s injuries (even before discovery of the skull fracture) gave rise to a suspicion of child abuse, Appellant was taken into custody on the evening he brought the child to the hospital. Over the next several days, Appellant spoke with a police detective and a social service investigator, and made several phone calls from the jail to friends and family. In those conversations, Appellant offered various explanations as to how Tianna might have been injured. Those explanations evolved as information about Tianna’s diagnosis was revised. In the early morning hours of May 18, as medical personnel tried to save Tianna’s life, Appellant was interviewed by Detective Jeremy Yerton. At that time, police knew that Tianna had bleeding on the brain, but not that she had a skull fracture. They also believed, erroneously, that Tianna had a dislocated shoulder and a broken rib. When confronted with this incomplete and partially inaccurate information, Appellant admitted gently shaking Tianna to try to rouse her just before she was taken to the hospital, but denied violently shaking the infant. Pressed for other possible explanations for the infant’s injuries, Appellant mentioned that earlier in the day, at Broadway’s home, Tianna had fallen from a folding chair onto the floor. He also mentioned incidents in the recent past where the infant had fallen from a couch and rolled off of a bed. Appellant also said he had accidentally dropped Tianna about a week before. Detective Yerton responded that all of those events would have been remote in time to have caused Tianna’s head trauma.

A few days after Tianna’s death, Appellant, still in custody, spoke with Angela Varcoe, an investigator with the Department of Human Services. His account to Varcoe of events preceding Tianna’s sudden distress on May 17 largely paralleled his account to Detective Yerton. Of particular interest was Appellant’s telephone conversation with Joel Broadway on May 18, which was recorded and played for the jury. While Tianna was still clinging to life, Appellant sounded more concerned with his own potential accountability and ability to get out of jail. He told Broadway that because Tianna was almost exclusively in his care on May 17, this all boils down to me. He expressed concern that if Tianna died, the charges would likely be upgraded to the big thing (presumably murder). In phone conversations with his family after Tianna’s death, Appellant offered other explanations for the infant’s injuries. As for the bruises, Appellant said that their pediatrician, Dr. Exon, had reassured him that Tianna simply bruised easily.

Called as a witness at trial, Dr. Exon testified that he examined Tianna in his office on May 13 and again on May 14. The parents complained that she had been running a fever and was not keeping food down. Exon testified that the child’s temperature was normal when he examined her, that bloodwork, X-rays, and other tests came back normal, and that according to his records, no bruises, rashes, or other external trauma were observed. Exon also denied ever telling Appellant that the child was susceptible to bruising.

On May 30, almost two weeks after Tianna’s death, Appellant spoke from jail by telephone with his mother. He suggested that someone had divulged information that could incriminate him and/or Matthews. He asked his mother to contact his attorney with new information – information he had not previously given because he wanted to save himself and Matthews. He recalled an incident where Matthews was changing Tianna’s diaper, and he heard a sound that may have been Matthews slamming the baby’s head against a granite counter-top; he then heard Tianna scream. Appellant expressed a willingness to testify about this event. As Appellant’s mother tried to calm and reassure him (and advised him to stop discussing the matter on the phone), Appellant said he wanted to go to court because Matthews was going to have to pay for that.

The State’s expert medical witnesses – Dr. Passmore, Dr. Block, and the Medical Examiner, Dr. Pfeifer – testified at length as to the nature of Tianna’s injuries and possible causes for them. Appellant presented his own expert, Dr. Plunkett, whose extensive testimony challenged much of the conventional wisdom about head trauma in infants. The State’s experts opined that the most likely cause of the skull fracture was intentional force, such as being slammed against a hard object, and that the force was most likely applied a short time before the baby arrived at the hospital. Tianna had been in Appellant’s care for some time when she became unresponsive, and no one noticed anything unusual about the infant before that.

The defense expert, Dr. Plunkett, disagreed with some of the State’s experts’ assumptions and conclusions. For example, it was Plunkett’s opinion that an infant could, in fact, sustain a skull fracture like Tianna’s, but not exhibit any obvious effects of such trauma for several days. This expanded time frame would make it more likely that someone else attending to Tianna may have caused the fatal injury. Plunkett also believed that skull fractures like Tianna’s may be caused by falls from modest heights, such as the height of a changing table. Other facts will be presented as relevant to the propositions of error.

DISCUSSION

In Proposition I, Appellant claims the evidence is insufficient to support his conviction for First Degree Child-Abuse Murder. Under Oklahoma law, First Degree Murder by Child Abuse does not require any specific intent to kill; save some theories not relevant here, it requires only that the accused willfully used unreasonable force on the child, which resulted in the child’s death. See 21 O.S.2011, § 701.7(C); OUJI-CR (2nd) No. 4-65A. On direct appeal, we consider all of the evidence in a light most favorable to the State to decide if a rational juror could have concluded, beyond a reasonable doubt, that Tianna’s fatal injury was the result of Appellant’s willful conduct. Whether or not Appellant was the only person who could have inflicted the fatal injury is not the decisive question. A conviction can be upheld where there are conflicts in the evidence or where different inferences might be drawn from it. Appellant never admitted any intentional physical act of the intensity necessary to cause Tianna’s fatal injury. The State’s case depended on inferences from the nature of the injury, the surrounding circumstances, and Appellant’s various statements on the subject.

The State’s experts found no evidence of trauma to the child’s neck or spinal cord, which would have been consistent with violent shaking. None of Tianna’s other injuries were indicative of violent shaking. Discussion of Shaken Baby Syndrome simply was not helpful in explaining any of Tianna’s injuries. The evidence supported a conclusion that Tianna’s injuries were recent and not accidental in origin, that her fatal head injury was probably of very recent origin, that Appellant had the greatest and last opportunity to inflict that injury, and that Appellant’s demeanor and inconsistent explanations for the injuries tended to show consciousness of guilt. Considering all of this evidence together, we believe a rational trier of fact could conclude, without any reasonable doubt, that Appellant intentionally used physical force which fractured Tianna’s skull, and which ultimately caused her death. Proposition I is denied.

In Proposition II, Appellant contends that the trial court erred in redacting portions of his video interview with Tulsa County Detective Jeremy Yerton, as well as portions of telephone conversations he had with family members while he was in the Tulsa County Jail. Appellant objected to these redactions at trial, preserving this claim for full appellate review. We review a trial court’s admission or exclusion of evidence for an abuse of discretion.

Appellant claims the results of polygraph tests are not admissible in court. Nevertheless, it is important that the jury hear of the defendant’s willingness to take a polygraph test. However, even after it was redacted, the video of Appellant’s interview with Detective Yerton still included numerous denials of guilt, some of them emotional. Removing references to God and polygraphs did not paint an unfair or incomplete picture of the conversation. The trial court did not abuse its discretion in redacting the video interview.

Proposition II is denied. In Proposition IV, Appellant claims that the admission of evidence concerning Shaken Baby Syndrome was irrelevant and denied him a fair trial. The State began the presentation of its case with an instructional video on Shaken Baby Syndrome. Defense counsel’s objection was overruled. The purpose of discussing Shaken Baby Syndrome was to suggest a mechanism of injury. However, we do not believe that discussion of the Syndrome had an unfairly prejudicial effect here. Proposition IV is denied.

In Proposition V, Appellant claims that the trial court abused its discretion by instructing the jury to exercise caution when considering the testimony of the defense expert, Dr. Plunkett. We found no plain error here. Proposition V is denied.

In Proposition VI, Appellant claims the trial court erred in admitting his statements to Angela Varcoe, an investigator with the Oklahoma Department of Human Services. Appellant did not object to Varcoe’s testimony at the time it was offered, so we review this claim only for plain error. Assuming that Varcoe did not provide Miranda warnings, we nevertheless find no plain error. Appellant’s statements to Varcoe were fairly consistent with what he had told Detective Yerton a few days before. Proposition VI is denied.

In Proposition VII, Appellant claims his trial counsel performed so deficiently as to have effectively denied him his Sixth Amendment right to reasonably effective counsel. Appellant’s claims concerning the counsel’s performance were not supported by evidence that creates a reasonable probability of a different outcome. Thus, Proposition VII is denied.

In Proposition VIII, Appellant claims the accumulation of errors in this case warrants a new trial. Other than the prosecutor’s use of a demonstrative aid in closing argument, we have identified no errors which, even when considered in the aggregate, warrant relief. Proposition VIII is denied.

DECISION

The Judgment of the District Court of Tulsa County is AFFIRMED, but the case is REMANDED for re-sentencing. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2016), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

1. Appellant and the child's mother, Tamara Michelle Matthews, were jointly charged under alternative theories of committing, or permitting, Child-Abuse Murder (21 O.S.2011, § 701.7(C)).
2. Appellant does not challenge the voluntariness of his custodial statements to Yerton. The voluntariness of his statements to Varcoe is discussed in Proposition VI.
3. Appellant did not claim to have actually seen the act; he said the sound might have been Matthews hitting her own hand against the counter-top.
4. Dr. Passmore estimated that Tianna suffered the skull fracture some six to twelve hours before presentment at the hospital.
5. One of the State's experts, Dr. Block, concluded: "Based on the fact that the baby was essentially dead on arrival to the hospital, there is no chance that she would have in any way been lucid or normal for any time prior to that."
6. See e.g. Powell v. State, 2000 OK CR 5, I 66, 995 P.2d 510, 527 (intimidating witness to change testimony); Paxton v. State, 1993 OK CR 59, I 12, 867 P.2d 1309, 1317 (attempting to destroy evidence); Gideon v. State, 1986 OK CR 112, ' 10, 721 P.2d 1336, 1338 (threatening witness).
7. See also Dunkle v. State, 2006 OK CR 29, F 48, 139 P.3d 228, 245 (defendant's statement to new boyfriend, in phone call from jail, saying she would not do anything "stupid" again, was admissible on the issue of whether she killed her old boyfriend); Romano v. State, 1995 OK CR 74, 11 7-8, 909 P.2d 92, 107 (detective's observation of defendant's body language and facial expressions during conversation were relevant even if they were not strictly "adoptive admissions").
8. See 21 O.S.2011, § 701.7(C); OUJI-CR (2nd) No. 4-65A.
9. See Holmes v. South Carolina, 547 U.S. 319, 326-27, 126 S.Ct. 1727, 1732-33, 164 L.Ed.2d 503 (2006); Pavatt v. State, 2007 OK CR 19, 91 50-51, 159 P.3d 272, 288-89.
10. 10 O.S.2011, § 7106.
11. See Blanton v. State, 2007 OK CR 37, 11 6-16, 172 P.3d 207, 210-11 (defendant's custodial interview with DHS investigator, regarding child sexual abuse allegedly committed by him, should have been preceded by Miranda warnings).
12. 12 O.S.2011, § 2603.
13. 12 O.S.2011, § 2107.
14. 12 O.S.2011, § 2801(B)(1)(b) (a witness's prior unsworn statement is not inadmissible hearsay, if offered to rebut an express or implied charge of recent fabrication, improper influence, or improper motive); 12 O.S.2011, § 2613 and Lewis v. State, 1998 OK CR 24, 1 31, 970 P.2d 1158, 1169 (a witness's prior extrajudicial statement, inconsistent with his testimony, may be admissible, not for its own truth, but to cast doubt on the truth of his present testimony).
15. See Smith v. State, 1982 OK CR 143, 919 P.2d 904, 909 (finding, sua sponte, that trial counsel's error required relief).
16. 22 O.S.2011, § 1066.
17. 10/30/2015 Specific Findings of Fact at 7.
18. 10/30/2015 Specific Findings of Fact at 2 6-7.
19. Ellis v. State, 1982 OK CR 167, I 5, 652 P.2d 770, 771-72.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.7 (2011) - First Degree Murder by Child Abuse
• Okla. Stat. tit. 21 § 843.5 (2011) - Permitting Child Abuse
• Okla. Stat. tit. 12 § 2801 (2011) - Hearsay Exceptions
• Okla. Stat. tit. 12 § 2613 (2011) - Prior Inconsistent Statements
• Okla. Stat. tit. 10 § 7106 (2011) - Child Abuse Investigations
• Okla. Stat. tit. 22 § 1066 (2011) - Life Sentences
• Okla. Stat. tit. 12 § 2107 (2011) - Rule of Completeness
• Okla. Stat. tit. 12 § 2603 (2011) - Witness Oath or Affirmation

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

• 21 U.S.C. § 843.5(B) - Permitting Child Abuse
• 21 U.S.C. § 701.7(C) - First Degree Murder by Child Abuse
• 12 O.S. § 2613 - Prior inconsistent statements
• 12 O.S. § 2801 - Hearsay exceptions
• 10 O.S. § 7106 - Investigation of child abuse
• 22 O.S. § 1066 - Re-sentencing procedure
• 12 O.S. § 2603 - Declaration of witness duty

Other citations:

No other rule citations found.

Case citations:

• Bramlett v. State, 2018 OK CR 19, 1 36, 422 P.3d 788, 799-800
• Gilson v. State, 2000 OK CR 14, 1 77, 8 P.3d 883, 910
• Powell v. State, 2000 OK CR 5, 1 66, 995 P.2d 510, 527
• Paxton v. State, 1993 OK CR 59, 1 12, 867 P.2d 1309, 1317
• Gideon v. State, 1986 OK CR 112, 1 10, 721 P.2d 1336, 1338
• Webster v. State, 2011 OK CR 14, 1 63, 252 P.3d 259, 277
• Day v. State, 2013 OK CR 8, 1 13, 303 P.3d 291, 298
• Levering v. State, 2013 OK CR 19, 1 18, 315 P.3d 392, 397
• Dodd v. State, 2004 OK CR 31, 1 35-37, 100 P.3d 1017, 1031-32
• Honeycutt v. State, 1988 OK CR 76, 1 19, 754 P.2d 557, 561
• Almerigi v. State, 17 Okl.Cr. 458, 464, 188 P. 1094, 1096 (1920)
• Dunkle v. State, 2006 OK CR 29, 1 48, 139 P.3d 228, 245
• Romano v. State, 1995 OK CR 74, 11 7-8, 909 P.2d 92, 107
• Underwood v. State, 2011 OK CR 12, 1 45, 252 P.3d 221, 242
• Fulton v. State, 1975 OK CR 200, 1 4, 541 P.2d 871, 872
• Crane v. Kentucky, 476 U.S. 683, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986)
• Crawford v. State, 1992 OK CR 62, 840 P.2d 627
• Folks v. State, 2008 OK CR 29, 1 16, 207 P.3d 379, 383
• Barnard v. State, 2012 OK CR 15, 1 14, 290 P.3d 759, 764
• Smith v. State, 1982 OK CR 143, 919 P.2d 904, 908
• Stemple v. State, 2000 OK CR 4, 1 47, 994 P.2d 61, 71
• Pryor v. State, 2011 OK CR 18, 1 12, 254 P.3d 721, 726
• Alverson v. State, 1999 OK CR 21, 983 P.2d 498
• Ellis v. State, 1992 OK CR 45, 867 P.2d 1289
• Cheatham v. State, 1995 OK CR 32, 1 31, 900 P.2d 414, 424
• Bell v. State, 2007 OK CR 43, 13, 172 P.3d 622, 627
• Sanchez v. State, 2009 OK CR 31, 1 74, 223 P.3d 980, 1005
• Harris v. State, 2000 OK CR 20, 1 10, 13 P.3d 489, 493