James Stanford Poore v State Of Oklahoma

F-2016-375

Filed: Apr. 25, 2019

Not for publication

Prevailing Party: State Of Oklahoma

Summary

James Stanford Poore appealed his conviction for four counts of Murder in the First Degree and two counts of Robbery with a Firearm. The court upheld his conviction and sentenced him to life imprisonment without the possibility of parole for the murders, and life imprisonment for the robberies. Judge Kuehn dissented. In this case, Poore was found guilty of murdering four people during a robbery in Tulsa, Oklahoma. The evidence against him included his own admissions that he participated in the shooting, along with forensic evidence linking him to the crime through shell casings and a cigarette butt found at the scene. During the trial, Poore's defense raised several arguments, including complaints about the admission of expert testimony and the exclusion of evidence related to another suspect. However, the court found that the trial judge did not make any mistakes that would warrant a reversal of the conviction, and it ruled that the jury's decision was supported by the evidence presented. Ultimately, the court affirmed the judgment, meaning Poore's conviction and life sentences remained in place.

Decision

The Judgment and Sentence of the District Court is AFFIRMED.

Issues

• Was there sufficient evidence to support the convictions for the murders and robberies?
• Did the trial court err in admitting expert testimony regarding the firearm evidence?
• Did the trial court abuse its discretion by limiting third-party perpetrator evidence?
• Was the search of the defendant's mother's home conducted lawfully, and were the resulting evidence and statements admissible?
• Was trial counsel ineffective for failing to renew objections to the admission of certain evidence?

Findings

• the trial court did not abuse its discretion in admitting expert testimony regarding firearms and tool mark identification evidence
• the trial court did not err in excluding evidence of third-party perpetrators as there was insufficient evidence connecting them to the crimes
• the trial court did not abuse its discretion in admitting evidence of other crimes, as it was necessary to establish identity and the probative value outweighed any prejudicial effect
• the trial court did not err in denying the motion to suppress evidence seized from the search of Appellant's mother's home
• trial counsel was not ineffective for failing to renew objections related to the search of Appellant's mother's home, as those objections were meritless

F-2016-375

Apr. 25, 2019

James Stanford Poore

Appellant

v

State Of Oklahoma

Appellee

OPINION

HUDSON, JUDGE: Appellant, James Stanford Poore, was tried by a jury and convicted in Tulsa County District Court, Case No. CF-2013-865, of four counts of Murder in the First Degree (Counts 1-4), After Former Conviction of Two or More Prior Felonies, in violation of 21 O.S.2011, § 701.7(A); and two counts of Robbery with a Firearm, After Former Conviction of Two or More Prior Felonies, in violation of 21 O.S.2011, § 801 (Counts 5-6).¹ The jury recommended sentences of life imprisonment without the possibility of parole on each of Counts 1-4; and life imprisonment on both Counts 5 and 6. At formal sentencing, the State elected the malice aforethought theory of conviction on each of these counts. The Honorable Kurt G. Glassco, District Judge, presided at trial, and sentenced Poore in accordance with the jury’s verdicts. Judge Glassco also imposed a $10,000.00 fine on both Counts 5 and 6. The court further imposed various costs and fees. Poore now appeals.

FACTS

Shortly after twelve noon on January 7, 2013, Appellant along with his brother Cedric Poore shot and killed Rebeika Powell, her twin sister Kayetie Powell, Misty Nunley and Julie Jackson during a robbery. The robbery/murders took place in Rebeika Powell’s Tulsa apartment. Shortly after the murders occurred, the victims were discovered by a neighbor. Each of the victims was found bound with their hands tied behind their backs. All four had suffered gunshot wounds to the head. The victims’ pockets were turned inside out and it appeared items had been dumped from a purse onto the floor. The evidence of Appellant’s guilt included his admissions to multiple people, including his girlfriend Jamila Jones, his niece Quashaun Poore, his sister-in-law Casey Ann Poore, and Logan Ahmed, a guest in Jones’ apartment, that he shot or participated in the shooting of the four victims. In addition, Rebeika Powell’s jewelry and food stamp card were among items Appellant and Cedric brought back to Jones’ apartment immediately after the murders. A cigarette butt with Appellant’s DNA was also found at the murder scene. Firearms and tool mark evidence connected Appellant to the murders as well.

ANALYSIS

Proposition I. Cedric Poore was seen in possession of a .40 caliber pistol immediately prior to the murders. Officers recovered eight shell casings from a .40 caliber semi-automatic weapon at the scene of the murders. Moreover, during the investigation, officers learned that Appellant and his brother Cedric had been seen shooting a .40 caliber pistol in the backyard of their mother’s house on New Year’s Eve night. Nine .40 caliber shell casings were recovered from Appellant’s mother’s backyard when officers executed a search warrant at her Tulsa residence. Another .40 caliber shell casing was recovered from the scene of a robbery/shooting committed by Appellant two days prior to the murders in this case. Thus, in total 18 shell casings with connections to Appellant were recovered-eight from the murder scene, nine from Appellant’s mother’s backyard and one from the shooting of Master.

Jeffrey Jerez Brown, a firearms examiner for the Tulsa Police Department, testified as an expert for the State at Appellant’s trial. Brown conducted a microscopic comparison of shell casings recovered from the murder scene, Appellant’s mother’s backyard, and the scene of the robbery/shooting of Master. From this comparison, Brown testified that in his expert opinion, all 18 of the .40 caliber shell casings were fired from the same pistol. On appeal, Appellant challenges the admission of Brown’s expert opinion testimony. Appellant argues Brown’s testimony was erroneously admitted because: (1) tool mark evidence does not meet the reliability test of Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993); (2) no firearm was ever found for comparison purposes; and (3) Brown’s opinion exceeded the limits of the science. This Court reviews a trial court’s decision to admit expert testimony for an abuse of discretion.

Appellant acknowledges that most courts, including this Court, have accepted firearms and tool mark identification evidence for many decades. However, Appellant asks this Court to take a “new look at this issue and reexamine this technique in light of the evidence showing the methods employed are not reliable as was the case for [Appellant].” We decline Appellant’s invitation to do so here. Despite the fact that firearms and tool mark identification evidence is not novel, the trial court nonetheless conducted a Daubert hearing to consider the admissibility of Brown’s testimony. During the course of the hearing, Brown testified as to his knowledge, skill, experience and training.

The trial court additionally heard testimony from Appellant’s expert William Tobin, a forensic metallurgist, which challenged the basis of Brown’s testimony. After hearing the evidence, the court found Brown’s proffered testimony was “scientifically reliable, not novel, and will be presented to the jury.” While Appellant’s expert disagreed with the reliability of the methods employed by Brown, nothing in the record before us on appeal supports a finding that the established methodology employed by Brown is no longer reliable.

The most the record shows is a classic battle between the experts. Thus, there was no abuse of discretion in the trial court’s handling of this issue.

Lack of Firearm: Upon review we find the admissibility of the challenged evidence was not contingent on recovery of the firearm. Even though Brown could not compare the shell casing to the suspected murder weapon, he was able to compare the shell casings found at the murder scene to the shell casings recovered from Appellant’s mother’s backyard and the scene of the shooting and robbery of Ms. Master.

Appellant’s expert, Tobin, challenged Brown’s opinion by attacking the scientific soundness behind Brown’s methods and opinion. While this testimony placed Brown’s methodology at issue, Tobin’s testimony did not render Brown’s opinion testimony inadmissible. Because Brown was qualified to testify as a firearms expert, any challenge to his methodology and opinion goes to his credibility-an issue for the jury.

Degree of Certainty: Appellant argues here that the trial court abused its discretion when it allowed Brown to testify with “absolute certainty” to his opinion that the cartridge casings were fired from the same weapon. Appellant contends that the type of absolute identification provided by Brown is misleading and unsound, and gave a false impression to the jury.

Upon review, we find the trial court did not abuse its discretion in permitting this testimony. The jury heard the testimony of both experts, including extensive cross-examination, regarding their conflicting theories. It was for the jury to determine the credibility of the respective experts. Moreover, Brown’s opinion testimony was not improper opinion testimony on an ultimate issue. Brown did not testify that Appellant shot the four victims. Brown merely gave his opinion that-based on the evidence he reviewed-all the shell casings were shot from the same gun.

Proposition I is denied.

Proposition II. Appellant complains the trial court unfairly abridged his right to present a complete defense by limiting third-party perpetrator evidence. He specifically argues the court erroneously denied his requests to elicit evidence (1) relating to forensic testing done on a .40 caliber Glock handgun taken from Giovanni Davis a few weeks after the homicides, and (2) regarding an alternative theory that Vincente Salazar, nicknamed “Suavae,” was the actual killer.

We review the trial court’s decision to exclude evidence concerning possible third-party perpetrators for an abuse of discretion. Without question “the Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.” This right is “particularly important in cases where a defendant desires to present evidence that someone else, other than the defendant, committed the crime(s) at issue, i.e., third-party perpetrator evidence.”

Even so, such evidence may be excluded pursuant to well-established rules of evidence if the “probative value [of the proffered evidence] is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury.”

In the present case, the trial court correctly found there was an insufficient quantum of evidence connecting Davis or Salazar to the murders. Appellant did not offer any viable evidence connecting either of these two men to the crimes.

The trial court did not abuse its discretion in refusing to allow evidence concerning possible third-party perpetrators. Appellant was not denied the right to put on a complete defense. Proposition II is denied.

Proposition III. The trial court admitted evidence showing that Appellant shot and robbed Sejal Master in the parking lot of her Tulsa apartment complex on January 5, 2013-two days prior to the murders in this case. The DNA from the stocking cap that was linked to Cedric showed the brothers acted in concert to rob Master just as they acted in concert two days later to rob and murder the victims in this case.

On appeal, Appellant argues the trial court abused its discretion by admitting this evidence. Appellant asserts the robbery incident had nothing to do with the crimes at issue, subsumed a large part of the State’s case and closing argument, and distracted the jury’s attention from relevant issues at trial.

We review a trial court’s decision to allow introduction of evidence of other crimes for an abuse of discretion. Evidence of other crimes may be admissible to establish specific things, including identity-the purpose for which the evidence was admitted in this case.

The trial court found the underlying facts and circumstances set forth in the affidavit provided the magistrate with a substantial basis for concluding that probable cause existed to issue the search warrant. The affidavit contained a wealth of information about the murders and Appellant’s involvement based on the statements of named witnesses.

Appellant has failed to demonstrate the trial court abused its discretion, i.e., took “any unreasonable or arbitrary action without proper consideration of the facts and law pertaining to the matter at issue.”

Proposition III is denied.

Proposition IV. Appellant complains that the search of his mother’s home was unlawful, and thus the evidence seized pursuant to that warrant should have been suppressed. We review the trial court’s ruling for an abuse of discretion. Appellant has thus waived all but plain error review of this claim.

Appellant fails to show actual or obvious error.

The trial court found the execution of the search warrant on his mother Erma Poore’s residence complied with statutory and constitutional law. Appellant therefore fails to demonstrate that error, let alone plain error, occurred.

Proposition IV is denied.

Proposition V. Appellant complains that trial counsel was ineffective for failing to renew Appellant’s objection to the admission of the cartridge casings collected during the search of his mother’s house.

We addressed and rejected Appellant’s multiple challenges relating to the search of his mother’s home in Proposition IV. Trial counsel thus was not ineffective for failing to make these meritless objections at trial.

Proposition V is denied.

DECISION

The Judgment and Sentence of the District Court is AFFIRMED.

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Footnotes:

1. In violation of 21 O.S.2011, § 701.7(A); and two counts of Robbery with a Firearm, After Former Conviction of Two or More Prior Felonies, in violation of 21 O.S.2011, § 801 (Counts 5-6).
2. Cedric Poore was tried separately and convicted of four (4) counts of first degree felony murder. His appeal is pending with this Court under Court of Criminal Appeal Case No. F-2017-67.
3. Jones lived in the same apartment complex as the victim Rebeika Powell.
4. The validity of this search and seizure is the subject of Appellant's fourth proposition of error.
5. The admissibility of this evidence is the subject of Appellant's third proposition of error.
6. Expert opinion is admissible when: 1. The testimony is based upon sufficient facts or data; 2. The testimony is the product of reliable principles and methods; and 3. The witness has applied the principles and methods reliably to the facts of the case. 12 O.S.Supp.2013, § 2702.
7. Day U. State, 2013 OK CR 8, I 4, 303 P.3d 291, 295.
8. Day U. State, 2013 OK CR 8, 11 6-7, 303 P.3d at 295-96 (a Daubert hearing is not necessary when the scientific, technical or specialized evidence is not novel).
9. Miller U. State, 2013 OK CR 11, II 111-15, 313 P.3d 934, 973-94 (forensic firearms identification testimony properly admitted); Williams v. State, 2008 OK CR 19, I 25, 188 P.3d 208, 216-17 (shell casings found at crime scene matched to .40 caliber pistol linked to defendant); Stouffer v. State, 2006 OK CR 46, I 87, 147 P.3d 245, 266 (firearms tool mark examiner's testimony properly admitted); see also Cripps v. State, 2016 OK CR 14, I 4 n.3, 387 P.3d 906, 908 n.3 (if the expert testimony is not novel, no need for a Daubert hearing); Day, 2013 OK CR 8, 919 5-6, 303 P.3d at 295-96 (Where the knowledge involved has 'long been recognized as the proper subject of expert testimony', the testimony is not novel and no Daubert hearing is necessary.) (quoting Harris v. State, 2000 OK CR 20, 9 9, 13 P.3d 489, 493).
10. The Daubert hearing was drawn-out over the months of October 2015 and February 2016-specifically, October 8 and 29, 2015 and February 1 and 29, 2016.
11. Day, 2013 OK CR 8, I 11, 303 P.3d at 297 (An expert opinion may embrace the ultimate issue, as long as it does not tell jurors what result to reach.).
12. Day, 2013 OK CR 8, I 8, 303 P.3d at 296 (Expert testimony is not rendered unreliable by criticism.).
13. Holmes v. South Carolina, 547 U.S. 319, 126 S. Ct. 1727, 164 L. Ed. 2d 503 10 (2006).
14. Pavatt U. State, 2007 OK CR 19, I 42, 159 P.3d 272, 286.
15. Appellant's appeal is pending with this Court under Court of Criminal Appeal Case No. F-2017-67.
16. Title 12 O.S.2011, § 2404(B) provides: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.
17. Lott v. State, 2004 OK CR 27, I 40, 98 P.3d 318, 334.
18. The trial court admitted evidence under Title 12 O.S.2011, § 2404(B)¹).
19. See United States v. Green, 405 F.Supp. 2d 104, 119-22 (D.Mass.2005); United States v. Glynn, 578 F.Supp.2d 567, 570-74 (S.D.N.Y.2008); United States U. Taylor, 663 F.Supp.2d 1170, 1180 (D.N.M.2009).
20. 12 O.S.2011, § 2404(B) I provides that evidence of other crimes is entitled to be received when pertinent to certain issues.
21. Johnson v. State, 2012 OK CR 5, I 11, 272 P.3d 720, 726.
22. Coffia v. State, 2008 OK CR 24, I 5, 191 P.3d 594, 596; Seabolt v. State, 2006 OK CR 50, I 5, 152 P.3d 235, 237.
23. Smith U. State, 2018 OK CR 4, I 3, 419 P.3d 257, 259.
24. Wackerly v. State, 2000 OK CR 15, I 13, 12 P.3d 1, I 9 (quoting Gregg v. State, 1992 OK CR 82, I 19, 844 P.2d 867, 875); Franks v. Delaware, 438 U.S. 154, 171, 98 S. Ct. 2674, 2684, 57 L. Ed. 2d 667 (1978).
25. Romano v. State, 1995 OK CR 74, I 33, 909 P.2d 92, 112.

Oklahoma Statutes citations:

• 21 O.S. § 701.7(A) - Murder in the First Degree
• 21 O.S. § 801 - Robbery with a Firearm
• 12 O.S. § 2404(B) - Evidence of Other Crimes, Wrongs, or Acts
• 22 O.S. § 1228 - Knock-and-Announce Requirement
• 12 O.S. Supp. 2013 § 2701 - Expert Testimony
• 12 O.S. Supp. 2013 § 2702 - Expert Opinion

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
• Day v. State, 2013 OK CR 8, I 4, 303 P.3d 291, 295
• Neloms v. State, 2012 OK CR 7, I 35, 274 P.3d 161, 170
• Miller v. State, 2013 OK CR 11, II 111-15, 313 P.3d 934, 973-94
• Williams v. State, 2008 OK CR 19, I 25, 188 P.3d 208, 216-17
• Stouffer v. State, 2006 OK CR 46, I 87, 147 P.3d 245, 266
• Cripps v. State, 2016 OK CR 14, I 4 n.3, 387 P.3d 906, 908 n.3
• Harris v. State, 2000 OK CR 20, 9 9, 13 P.3d 489, 493
• Holmes v. South Carolina, 547 U.S. 319, 126 S. Ct. 1727, 164 L. Ed. 2d 503 (2006)
• Pavatt v. State, 2007 OK CR 19, I 42, 159 P.3d 272, 286
• Summers v. State, 2010 OK CR 5, I 62, 231 P.3d 125, 145
• Gore v. State, 2005 OK CR 14, I 24, 119 P.3d 1268, 1276
• Lott v. State, 2004 OK CR 27, I 40, 98 P.3d 318, 334
• Pullen v. State, 2016 OK CR 18, I 4, 387 P.3d 922, 925
• Warner v. State, 1977 OK CR 257, I 9, 568 P.2d 1284, 1286
• Kirkwood v. State, 2018 OK CR 9, I 5, 421 P.3d 314, 316
• Jackson v. State, 2016 OK CR 5, IT 13, 371 P.3d 1120, 1123
• Johnson v. State, 2012 OK CR 5, I 11, 272 P.3d 720, 726
• Martinez v. State, 2016 OK CR 3, I 39, 371 P.3d 1100, 1112
• Smith v. State, 2018 OK CR 4, I 3, 419 P.3d 257, 259
• Brumfield v. State, 2007 OK CR 10, I 16, 155 P.3d 826, 834
• Darity v. State, 2009 OK CR 27, T 18, 220 P.3d 731, 737
• Wackerly v. State, 2000 OK CR 15, I 13, 12 P.3d 1, I 9
• Gregg v. State, 1992 OK CR 82, I 19, 844 P.2d 867, 875
• Gates v. Illinois, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527 (1983)
• Franks v. Delaware, 438 U.S. 154, 171, 98 S. Ct. 2674, 2684, 57 L. Ed. 2d 667 (1978)
• Jones v. State, 2006 OK CR 5, I 27, 128 P.3d 521, 536
• Moore v. State, 1990 OK CR 5, I 33, 788 P.2d 387, 395-96
• Pennington v. State, 1956 OK CR 98, I 10, 302 P.2d 170, 173
• Miller v. State, 2013 OK CR 11, 89, 313 P.3d 934, 966