Daniel Bryan Kelley v State Of Oklahoma

F-2015-963

Filed: Jul. 13, 2017

Not for publication

Prevailing Party: State of Oklahoma

Summary

Daniel Bryan Kelley appealed his conviction for Rape by Instrumentation and Assault and Battery. His conviction for Rape by Instrumentation was reversed and sent back for resentencing, but his sentence for Assault and Battery was upheld. Judge Johnson dissented.

Decision

The judgments of the district court are AFFIRMED. Appellant's Count 1 felony sentence is REVERSED AND REMANDED FOR RESENTENCING. Appellant's Count 3 sentence for misdemeanor Assault and Battery is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma court of Criminal Appeals, title 22, Ch. 18, App. (2017), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Issues

• Was there a violation of the Confrontation Clause and the right to a fair trial regarding the exclusion of the victim's prior statement to police about the crime location?
• Did the overwhelming amount of hearsay admitted violate the Oklahoma Evidence Code and the Confrontation Clause?
• Did Detective Leverington's testimony quoting absent witness Richard Putz constitute an evidentiary harpoon?
• Was it an error for the District Court to admit a judgment and sentence from Kansas in the second stage of the jury trial?
• Did instances of prosecutorial misconduct undermine the right to due process and a fair trial?
• Did the appellant receive ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments?
• Does the accumulation of error in this case require reversal of the appellant's conviction?

Findings

• the court did not err in excluding evidence of the victim's prior statement
• there was no error in the admission of hearsay evidence
• there was no evidentiary harpoon in Detective Leverington's testimony
• there was plain error in admitting the Kansas conviction for enhancement
• there was no prosecutorial misconduct that undermined the right to a fair trial
• the claim of ineffective assistance of counsel was denied due to a lack of merit in underlying issues
• the cumulative error claim was denied as the alleged errors did not affect the outcome of the trial

F-2015-963

Jul. 13, 2017

Daniel Bryan Kelley

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

Appellant Daniel Bryan Kelley was tried and convicted by a jury in the District Court of Tulsa County, Case No. CF-2015-694, for the crimes of Count 1: Rape by Instrumentation, After Former Conviction of Two Felonies, in violation of 21 O.S.2011, § 1114(A)(6); and Count 3: Assault and Battery, in violation of 21 O.S.2011, § 644. The Honorable William J. Musseman, District Judge, presided over the trial. The jury recommended Kelley be sentenced for Count 1 to twenty (20) years imprisonment and a $5,000.00 fine. Kelley waived his right to a presentence investigation, and Judge Musseman sentenced Appellant in accordance with the jury’s Count 1 recommendation and imposed a ninety (90) day sentence on the misdemeanor Count 3 to run concurrent with Count 1. Appellant must serve at least 85% of his Count 1 sentence before parole eligibility. 21 O.S.Supp.2014, § 13.1(10). post-imprisonment supervision and ordered Kelley to register as a sex offender. Kelley now appeals.

Appellant alleges seven propositions of error on appeal:

I. THE DISTRICT COURT RULING DENYING APPELLANT’S REQUEST TO PRESENT EVIDENCE OF THE VICTIM’S PRIOR STATEMENT TO POLICE THAT THE CRIME OCCURRED AT A DIFFERENT LOCATION VIOLATED THE CONFRONTATION CLAUSE AS WELL AS APPELLANT’S RIGHT TO A FAIR TRIAL UNDER THE FOURTEENTH AMENDMENT;

II. THE OVERWHELMING AMOUNT OF HEARSAY ADMITTED IN VIOLATION OF THE OKLAHOMA EVIDENCE CODE AND THE CONFRONTATION CLAUSE OF THE UNITED STATES CONSTITUTION REQUIRES THE REVERSAL OF APPELLANT’S CONVICTION;

III. DETECTIVE ERIC LEVERINGTON’S TESTIMONY QUOTING THE HEARSAY STATEMENTS OF ABSENT WITNESS RICHARD PUTZ CONSTITUTED AN EVIDENTIARY HARPOON OR THE FUNCTIONAL EQUIVALENT THEREOF;

IV. IT WAS ERROR FOR THE DISTRICT COURT TO ADMIT A JUDGMENT AND SENTENCE FROM KANSAS IN THE SECOND STAGE OF APPELLANT’S JURY TRIAL;

V. VARIOUS INSTANCES OF PROSECUTORIAL MISCONDUCT SERVED TO UNDERMINE APPELLANT’S RIGHT TO DUE PROCESS AND A FAIR TRIAL UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION;

VI. APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION; and

VII. THE ACCUMULATION OF ERROR IN THIS CASE REQUIRES REVERSAL OF APPELLANT’S CONVICTION.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, exhibits, the parties’ briefs and the application for evidentiary hearing and supporting exhibits, we find that no relief is required under the law and evidence as to Appellant’s convictions and his judgments are therefore AFFIRMED.

Appellant’s Count 3 sentence for misdemeanor Assault and Battery is AFFIRMED. However, as discussed below, Appellant’s sentence for Count 1 is REVERSED AND REMANDED FOR RESENTENCING.

1. Appellant raised below the issue of admitting the proffered extrinsic evidence under 12 O.S.2011, 2613(B) and consequentially his confrontation claim; thus, these issues are properly preserved for appellate review. However, Appellant never sought admission of the proffered extrinsic evidence pursuant to 12 O.S.2011, 2804.1—the residual exception to the hearsay rule—nor did he argue that exclusion of this evidence would impermissibly obstruct his right to present a defense. Thus, Appellant has waived review of these claims for all but plain error review. We find no error—plain or otherwise—resulted from the trial court’s exclusion of the proffered extrinsic evidence.

12 O.S.2011, § 2613(B) specifically provides [e]xtrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon. As defense counsel failed to question the victim at preliminary hearing regarding this evidence, Appellant’s proffered evidence was clearly not admissible pursuant to § 2613(B). Moreover, the trial court’s exclusion of the proffered extrinsic evidence pursuant to this rule did not violate Appellant’s right to confrontation. In reaching this determination, we find the following factors to be dispositive of Appellant’s confrontation claim: (1) Appellant had access to the allegedly inconsistent statement prior to preliminary hearing; (2) Appellant had ample opportunity to cross-examine the victim regarding this evidence at preliminary hearing; (3) the victim was unavailable to testify at Appellant’s trial because she had passed away; and (4) as conceded by Appellant, the victim’s preliminary hearing testimony was properly admitted at trial. Thus, no violation of Appellant’s right to confrontation occurred.

Additionally, as Appellant sought admission of the proffered evidence to impeach the deceased victim, not as proof of a fact of consequence, the proffered extrinsic evidence was not admissible under 12 O.S.2011, § 2804.1—the so-called residual or catch-all hearsay exception. Lastly, exclusion of the proffered evidence did not impinge on Appellant’s right to present a complete defense. Whether Appellant was denied the right to present a defense ultimately turns on whether the evidence at his disposal was admissible. As set forth above, the proffered extrinsic evidence was inadmissible and its exclusion did not violate Appellant’s right of confrontation. Moreover, the materiality of the evidence was not such that its exclusion affected the trial’s outcome. Thus, Appellant has failed to prove his right to present a defense was violated. Proposition I is denied.

2. [T]he admissibility of evidence is within the discretion of the trial court, which will not be disturbed absent a clear showing of abuse, accompanied by prejudice to the accused. Appellant failed to properly preserve for appellate review many of his challenges to evidence he contends were inadmissible hearsay. Thus, these unpreserved claims will be reviewed for plain error only. Upon review, we find no plain error. Detective Leverington’s testimony relating to Richard Putz’s identification of Appellant as the perpetrator was not hearsay as it was not offered for the truth of the matter asserted. J.W.’s statements to Detective Leverington identifying Appellant as her attacker in the photographic lineup, did not amount to plain error. J.W. knew Appellant by name and positively identified Appellant at the preliminary hearing. Thus, Appellant’s identity was not at issue at trial and any error in the admission of this evidence did not affect Appellant’s substantial rights, i.e., the outcome of the proceeding.

Furthermore, any potential error that may have resulted from Detective Leverington’s testimony describing J.W.’s account of the rape by instrumentation was cured by the trial court’s preemptive admonishment. Additionally, the paramedic’s challenged hearsay testimony was properly admitted for purposes of medical diagnosis or treatment pursuant to 12 O.S.2011, § 2803(4). Moreover, a portion of the SANE nurse’s testimony recounting J.W.’s account of Appellant inserting the beer bottle into her vagina was admissible too under § 2803(4). The remainder of the SANE nurse’s challenged testimony was not offered to prove the truth of the matter asserted. Hence, admission of all of this evidence was proper and did not violate Appellant’s right to confrontation. Proposition II is denied.

3. Appellant failed to object to the Detective Leverington’s challenged testimony thus waiving all but plain error review. No actual error, plain or otherwise, is found to have occurred here. Detective Leverington’s testimony, conveying Richard Putz’s comments identifying Appellant as the suspect, did not equate to an evidentiary harpoon. Detective Leverington’s testimony was responsive to the prosecutor’s question; his response was not willfully jabbed or calculated to prejudice the defendant; and, the challenged testimony did not interject any evidence of other crimes. Proposition III is denied.

4. To prove the existence of Appellant’s prior Kansas conviction for Aggravated Battery, the State introduced a journal entry of judgment from Kansas. Although Appellant raises this issue for the first time on appeal, we find plain error as this evidence alone was insufficient to prove Appellant’s Kansas conviction was a felony under Oklahoma law. A foreign conviction may be utilized to enhance punishment for a subsequent crime committed in Oklahoma if the prior foreign conviction—at the time it was committed—would have been a felony in this State punishable by imprisonment in the penitentiary. Thus, we are left with comparing K.S.A. 21-3414(a)(1)(C) with any applicable Oklahoma statutory provisions covering the same conduct. The relevant version of the applicable Kansas statute is K.S.A. 1993 Supp. 21-3414(a)(1)(C).

While comparable to Oklahoma’s 21 O.S.Supp.1999, § 645 (Assault, Battery, or Assault and Battery with Dangerous Weapon) and 21 O.S.Supp.2002, § 646 (Aggravated Assault and Battery Defined), the statutes are not remarkably similar enough for Appellant’s Kansas conviction to be used for enhancement purposes without proof of the specific conduct that led to Appellant’s conviction. Thus, we find plain error occurred when State’s Exhibit 25 was erroneously admitted into evidence and used to enhance Appellant’s punishment for his Count 1 conviction. While Appellant asks that we modify his sentence to ten (10) years, we find that under the circumstances presented here remand for resentencing is appropriate.

5. Appellant failed to timely object to the alleged instances of prosecutorial misconduct now cited on appeal. He has thus waived all but plain error review of this claim. Our initial inquiry is whether these challenged comments were a plain and obvious violation of the law. They were not. The prosecutor’s comments—taken in context along with defense counsel’s corresponding argument—did not minimize the State’s burden of proof or improperly shift the burden to Appellant. Appellant has shown no error, plain or otherwise, in the challenged comments. Proposition V is denied.

6. To prevail on an ineffective assistance of counsel claim, the defendant must show both that counsel’s performance was deficient and that the deficient performance prejudiced his defense. Given no prejudice was shown, trial counsel cannot be found to have been ineffective. In Proposition IV, we found plain error occurred when State’s Exhibit 25 was erroneously admitted into evidence and used to enhance Appellant’s punishment for his Rape by Instrumentation (Count 1) conviction. This Court’s finding of error dictates Appellant’s sentence be vacated and remanded for resentencing. Thus, Appellant’s ineffective assistance of counsel claim related to this error has been rendered moot.

7. Having found plain error requiring Appellant’s Count 1 sentence be vacated and the matter remanded for resentencing, we limit our review of Appellant’s cumulative error claim to the guilt stage of his trial. Upon review, we find relief is unwarranted as this is not a case where, considered together, the instances of error we have identified or assumed to exist affected the outcome of the proceedings and denied Appellant a fair trial. Proposition VII is denied.

DECISION

The judgments of the district court are AFFIRMED. Appellant’s Count 1 felony sentence is REVERSED AND REMANDED FOR RESENTENCING. Appellant’s Count 3 sentence for misdemeanor Assault and Battery is AFFIRMED.

Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, title 22, Ch. 18, App. (2017), the MANDATE is ORDERED issued upon delivery and filing of this decision.

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Footnotes:

1. 1 Count 2-Indecent Exposure-was dismissed at the State's request at the conclusion of Appellant's preliminary hearing.
2. 2 Appellant must serve at least 85% of his Count 1 sentence before parole eligibility. 21 O.S.Supp.2014, § 13.1(10).
3. 3 Title 12 O.S.2011, § 2613(B) specifically provides "[e]xtrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon."
4. 4 Section 645 provides: Every person who, with intent to do bodily harm and without justifiable or excusable cause, commits any assault, battery, or assault and battery upon the person of another with any sharp or dangerous weapon, or who, without such cause, shoots at another, with any kind of firearm or air gun or other means whatever, with intent to injure any person, although without the intent to kill such person or to commit any felony, upon conviction is guilty of a felony punishable by imprisonment in the State Penitentiary not exceeding ten (10) years, or by imprisonment in a county jail not exceeding one (1) year.
5. 5 Section 646 provides: A. An assault and battery becomes aggravated when committed under any of the following circumstances: 1. When great bodily injury is inflicted upon the person assaulted; or 2. When committed by a person of robust health or strength upon one who is aged, decrepit, or incapacitated, as defined in Section 641 of this title. B. For purposes of this section "great bodily injury" means bone fracture, protracted and obvious disfigurement, protracted loss or impairment of the function of a body part, organ or mental faculty, or substantial risk of death.
6. 6 K.S.A. 21-3414(a)(1)(C) was repealed on July 1, 2011 and re-codified under K.S.A. 21-5413 with an effective date of July 1, 2011.
7. 7 Notably, Appellant is not seeking modification or reversal of his Count 3 assault and battery misdemeanor conviction.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1114(A)(6) - Rape by Instrumentation
• Okla. Stat. tit. 21 § 644 - Assault and Battery
• Okla. Stat. tit. 21 § 13.1(10) - Post-Imprisonment Supervision
• Okla. Stat. tit. 12 § 2613(B) - Prior Inconsistent Statements
• Okla. Stat. tit. 12 § 2804.1 - Residual Exception to the Hearsay Rule
• Okla. Stat. tit. 12 § 2801(A)(3) - Definitions of Hearsay
• Okla. Stat. tit. 12 § 2803(4) - Hearsay Exceptions for Medical Diagnosis or Treatment
• Okla. Stat. tit. 21 § 645 - Assault, Battery, or Assault and Battery with Dangerous Weapon
• Okla. Stat. tit. 21 § 646 - Aggravated Assault and Battery Defined

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:

• Bramlett v. State, 2018 OK CR 19, I 36, 422 P.3d 788, 799-800
• Pickens v. State, 2001 OK CR 3, "I 31, 19 P.3d 866, 878
• Mitchell v. State, 2016 OK CR 21, "I 24, 387 P.3d 934, 943
• Jackson v. State, 2016 OK CR 5, I 4, 371 P.3d 1120, 1121
• Hanson v. State, 2009 OK CR 13, I'll 8-12, 206 P.3d 1020, 1025-27
• Thompson v. State, 2007 OK CR 38, 11 22-26, 169 P.3d 1198, 1206-07
• Mitchell v. State, 2005 OK CR 15, I 33, 120 P.3d 1196, 1206
• Pavatt v. State, 2007 OK CR 19, IT 45, 159 P.3d 272, 287
• Simpson v. State, 2010 OK CR 6, I 9, 230 P.3d 888, 895
• Coddington v. State, 2006 OK CR 34, I 47, 142 P.3d 437, 451
• Lahey v. State, 1987 OK CR 188, 9 26, 742 P.2d 581, 585
• Harris v. State, 2000 OK CR 20, I 39, 13 P.3d 489, 500
• Koehler v. State, 1986 OK CR 110, 721 P.2d 426, 427
• Primeaux v. State, 2004 OK CR 16, I 39, 88 P.3d 893, 902
• White v. Illinois, 502 U.S. 346, 356, 112 S. Ct. 736, 743, 116 L. Ed. 2d 848
• Fischer v. State, 1971 OK CR 120, I 7, 9, 483 P.2d 1165, 1168
• Millwood v. State, 1986 OK CR 106, "I 6, 721 P.2d 1322, 1324
• Ultreras, 296 Kan. 828, 849, 295 P.3d 1020, 1034
• Mathis v. State, 2012 OK CR 1, "I 28, 271 P.3d 67, 77
• Anderson v. State, 1999 OK CR 44, 36, 37, 992 P.2d 409, 421
• Pierce v. State, 1990 OK CR 7, I 14, 786 P.2d 1255, 1260
• Malone v. State, 2013 OK CR 1, "I 16, 293 P.3d 198, 207
• Logan v. State, 2013 OK CR 2, I 11, 293 P.3d 969, 975
• Lewallen v. State, 2016 OK CR 4, 12, 370 P.3d 828, 831
• Frederick v. State, 2001 OK CR 34, I 190, 37 P.3d 908, 955
• Postelle, 2011 OK CR 30, "I 94, 267 P.3d at 146