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F-2017-1030

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Polo Carrillo v The State Of Oklahoma

F-2017-1030

Filed: Nov. 15, 2018

Not for publication

Prevailing Party: The State of Oklahoma

Summary

Polo Carrillo appealed his conviction for kidnapping, first-degree rape, and assault and battery with a dangerous weapon. His conviction and sentence were life imprisonment for kidnapping, rape, and assault, along with one year for domestic assault, to be served simultaneously with the life sentences for the first three counts. Judge Rowland wrote the opinion, and all other judges agreed, so there was no dissent.

Decision

The Judgment and Sentence of the district court is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2018), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Issues

  • was there error in allowing the State to introduce hearsay and cumulative testimony?
  • did the trial court err in denying the request for specific discovery?
  • was there error in admitting cumulative and prejudicial photographs into evidence?
  • did the trial court fail to give the proper post-imprisonment supervision instruction regarding kidnapping?
  • should the Judgment and Sentence be modified to reflect credit for time served?
  • did an accumulation of error deprive the appellant of a fair trial?

Findings

  • the court did not err in allowing the introduction of hearsay and cumulative testimony
  • the court did not err in withholding the victim's address from the defense
  • the court did not err in admitting cumulative and prejudicial photographs into evidence
  • the court did not err by failing to give the proper post-imprisonment supervision instruction regarding kidnapping
  • the request to modify the Judgment and Sentence to reflect credit for time served is moot due to correction of the error
  • the cumulative error claim is denied as there were no individual errors that deprived Carrillo of a fair trial

F-2017-1030

Nov. 15, 2018

Polo Carrillo

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

Appellant Polo Carrillo was charged in the District Court of Jackson County, Case No. CF-2016-96, with Kidnapping (Count 1) in violation of 21 O.S.Supp.2012, § 741, First Degree Rape (Count 2) in violation of 21 O.S.Supp.2015, § 1111, and Assault and Battery with a Dangerous Weapon (Count 4) in violation of 21 O.S.2011, § 645, each After Former Conviction of Two or More Felonies. He was also charged with Domestic Assault and Battery in Presence of a Minor (Count 3) in violation of 21 O.S.Supp.2014, § 644(G). The jury found Carrillo guilty on each count and assessed punishment at life imprisonment on each of Counts 1, 2, and 4, and one year on Count 3. The Honorable Clark E. Huey, Associate District Judge, who presided over Carrillo’s trial, sentenced him in accordance with the jury’s verdict, ordering the sentences imposed on Counts 1, 2, and 3, be served concurrently and the sentence imposed on Count 4 be served consecutively to sentences imposed on Counts 1, 2, and 3. Carrillo appeals his Judgment and Sentence, raising the following issues: (1) whether the trial court erred in allowing the State to introduce hearsay and cumulative testimony; (2) whether the trial court erred when it denied his request for specific discovery; (3) whether the trial court erred in admitting cumulative and prejudicial photographs into evidence; (4) whether the trial court erred by failing to give the proper post-imprisonment supervision instruction regarding kidnapping; (5) whether the Judgment and Sentence should be modified to reflect credit for time served; and (6) whether an accumulation of error deprived him of a fair trial. We find relief is not required and affirm the Judgment and Sentence of the district court.

1. Over defense objection the SANE nurse read out loud during trial the seven paragraph report she prepared based upon what the victim told her during the SANE exam. Carrillo complains on appeal that the trial court’s ruling was error as the report was both inadmissible hearsay and unfairly cumulative. We review the admission of the evidence under an abuse of discretion standard. Neloms v. State, 2012 OK CR 7, ¶ 25, 274 P.3d 161, 167. An abuse of discretion has been defined as a conclusion or judgment that is clearly against the logic and effect of the facts presented. State v. Maley, 2012 OK CR 3, ¶ 4, 269 P.3d 949, 950. Hearsay is not admissible except as provided by law. See 12 O.S.2011, § 2802. Hearsay is admissible if it contains statements made for the purposes of medical diagnosis or treatment describing medical history if reasonably pertinent to diagnosis and treatment. 12 O.S.2011, § 2803(4). Part of treatment and care may involve determining who caused the abuse or what caused the injuries. Kennedy v. State, 1992 OK CR 67, ¶ 12, 839 P.2d 667, 670. The hearsay was admissible under section 2803(4).

2. Carrillo also complains that the evidence should have been excluded as it was cumulative to other trial testimony. Title 12 O.S.2011, § 2403 provides that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, needless presentation of cumulative evidence, or unfair and harmful surprise. We have held that [w]hen measuring the relevancy of evidence against its prejudicial effect, the court should give the evidence its maximum reasonable probative force and its minimum reasonable prejudicial value. Harmon v. State, 2011 OK CR 6, ¶ 48, 248 P.3d 918, 937 (quoting Mitchell v. State, 2010 OK CR 14, ¶ 71, 235 P.3d 640, 657). The probative value of this evidence was not substantially outweighed by the danger of unfair prejudice or the needless presentation of cumulative evidence. The trial court did not abuse its discretion in allowing the introduction of this evidence. This claim is denied.

3. The defense filed a motion for discovery requesting, among other things, that the State disclose the names and home addresses of witnesses it intended to call at trial. Prior to trial the State filed a motion for a protective order to protect the victim and her daughter from intimidation and harassment by Carrillo. The motion for protective order was granted, allowing that the victim’s address be withheld from the defense. On appeal Carrillo contends that the trial court erred in allowing the State to withhold the victim’s address. We review the court’s ruling for an abuse of discretion. See State v. LeFebure, 1994 OK CR 38, ¶ 9, 875 P.2d 431, 433. Title 22 O.S.2011, § 2002(A)(1)(a) requires the State to provide the defense, upon request, with names and address of witnesses the State intends to call at trial. However, the Oklahoma Victim’s Rights Act allows the court, upon the request of a victim, to withhold from disclosure the victim’s residential address if it is determined by the court to be necessary to protect the victim from harassment or physical harm and if the court determines that the information is immaterial to the defense. 21 O.S.2011, § 142A-9. Carrillo acknowledges this provision but complains the trial court made no finding that the victim’s address was immaterial to the defense.

While the trial court made no specific finding that the address was immaterial to the defense, the record shows that defense counsel told the judge at the motion hearing that counsel saw the victim at the restaurant where she worked, spoke with the victim, and communicated to the victim that she wished to speak with her. Given that defense counsel was able to communicate this request to the victim, it is clear that the victim’s home address was immaterial to the defense. The trial court’s ruling on the discovery request was not an abuse of discretion.

4. Carrillo complained at trial and again on appeal that photographs admitted at trial were cumulative and unnecessarily prejudicial. We review the trial court’s admission of photographic evidence for an abuse of discretion. Tyron v. State, 2018 OK CR 20, ¶ 56, 423 P.3d 617, 636. An abuse of discretion is any unreasonable or arbitrary action made without proper consideration of the relevant facts and law, also described as a clearly erroneous conclusion and judgment, clearly against the logic and effect of the facts. Mitchell v. State, 2016 OK CR 21, ¶ 13, 387 P.3d 934, 940.

The test for admissibility of photographs is whether their probative value is substantially outweighed by the danger of unfair prejudice. See Webster v. State, 2011 OK CR 14, ¶ 76, 252 P.3d 259, 280. Evidence is relevant if it has any tendency to make the existence of a material fact more or less probable than it would be without the evidence. 12 O.S.2011, § 2401. As the Court noted in Tryon, [T]he State was not required to downplay the violence involved or its repercussions. Tryon, 2018 OK CR 20, ¶ 63, 423 P.3d at 636 (quoting Jones v. State, 2009 OK CR 1, ¶ 57, 201 P.3d 869, 885). The photographs depicted the victim’s injuries and illustrated the testimony of the SANE nurse. The photographs were relevant and were not unfairly prejudicial considered both individually and collectively. The district court did not abuse its discretion in admitting these exhibits. This claim is denied.

5. Carrillo argues that the trial court erred when it failed to give the jury the correct instruction on the requirement of post-imprisonment supervision. He concedes that he waived appellate review of this claim for all but plain error when he failed to either request the proper instruction at trial or object to the given instructions. See Hogan v. State, 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923. Plain error is an actual error, that is plain or obvious, and that affects a defendant’s substantial rights, affecting the outcome of the trial. Tucker v. State, 2016 OK CR 29, ¶ 25, 395 P.3d 1, 8 (citing Barnard v. State, 2012 OK CR 15, ¶ 13, 290 P.3d 759, 764). The trial court gave the jury the general instruction regarding post-imprisonment supervision. This instruction provided:

You are advised that if you recommend a sentence of imprisonment for two years or more, Polo Carrillo [sic] shall be required to serve a term of post-imprisonment community supervision under conditions determined by the Department of Corrections, in addition to the actual imprisonment. Any term of post-imprisonment community supervision shall be for at least three years, and I will determine the actual term of post-imprisonment community supervision after your verdict. If the sentence is life or life without the possibility of parole, there will be no post-imprisonment community supervision. OUJI-CR(2d) 10-13C. Carrillo asserts, and the State concedes, that for the crime of kidnapping, when the offense involves sexual abuse, the language, if you recommend a sentence of imprisonment for two years or more, should be omitted from the instructions. Thus, under the correct instruction, Carrillo would be required to serve a term of post-imprisonment supervision even if the sentence imposed was less than two years imprisonment. However, as the State points out, the jury was not allowed to recommend a sentence of less than two years imprisonment for the kidnapping conviction; Carrillo had admitted three prior felony convictions and the punishment range for this crime was for a term of imprisonment from twenty years to life. Thus, the instruction on post-imprisonment supervision accurately stated the applicable law and was not error, plain or otherwise. Relief is not required.

6. At formal sentencing the trial court sentenced Carrillo to terms of imprisonment on each count and gave him credit for time served. The Judgment and Sentence, however, did not reflect credit for time served and, in fact, stated specifically that Defendant SHALL NOT receive credit for time served. Carrillo asks that this Court modify the Judgment and Sentence to reflect the trial court’s oral pronouncement at sentencing. The State responds, agreeing that scrivener’s error in the Judgment and Sentence did not accurately reflect the sentence imposed at sentencing. The State advises that upon learning of this error, State’s appellate counsel communicated the error to the District Attorney who procured a Corrected Judgment and Sentence reflecting that Carrillo received credit for time served. This Corrected Judgment and Sentence was filed in the district court on June 25, 2018. The State requests that this Court take judicial notice of the Corrected Judgment and Sentence pursuant to 12 O.S.2011, § 2202. We do so and find that Carrillo’s request for relief on this issue is moot as the error has been corrected.

7. Carrillo claims that even if no individual error in his case merits reversal, the cumulative effect of the errors committed requires a new trial or sentence modification. The cumulative error doctrine applies when several errors occurred at the trial court level, but none alone warrants reversal. Although each error standing alone may be of insufficient gravity to warrant reversal, the combined effect of an accumulation of errors may require a new trial. Martinez v. State, 2016 OK CR 3, ¶ 85, 371 P.3d 1100, 1119. Cumulative error does not deprive the defendant of a fair trial when the errors considered together do not affect the outcome of the proceeding. Baird v. State, 2017 OK CR 16, ¶ 42, 400 P.3d 875, 886. And clearly, a cumulative error claim is baseless when this Court fails to sustain any of the alleged errors raised on appeal. Id. There were no errors, either individually or when considered together, that deprived Carrillo of a fair trial. This claim is denied.

DECISION

The Judgment and Sentence of the district court is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2018), the MANDATE is ORDERED issued upon delivery and filing of this decision.

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Footnotes:

  1. 21 O.S.Supp.2012, § 741
  2. 21 O.S.Supp.2015, § 1111
  3. 21 O.S.2011, § 645
  4. 21 O.S.Supp.2014, § 644(G)
  5. 12 O.S.2011, § 2802
  6. 12 O.S.2011, § 2803(4)
  7. 22 O.S.2011, § 2002(A)(1)(a)
  8. 21 O.S.2011, § 142A-9
  9. 12 O.S.2011, § 2401
  10. 12 O.S.2011, § 2202

Oklahoma Statutes citations:

  • Okla. Stat. tit. 21 § 741 - Kidnapping
  • Okla. Stat. tit. 21 § 1111 - Rape, First Degree
  • Okla. Stat. tit. 21 § 645 - Assault and Battery with a Dangerous Weapon
  • Okla. Stat. tit. 21 § 644(G) - Domestic Assault and Battery in Presence of a Minor
  • Okla. Stat. tit. 12 § 2802 - Hearsay Exceptions
  • Okla. Stat. tit. 12 § 2803(4) - Hearsay Exceptions for Medical Diagnosis or Treatment
  • Okla. Stat. tit. 12 § 2403 - Exclusion of Relevant Evidence
  • Okla. Stat. tit. 12 § 2401 - Definition of Relevant Evidence
  • Okla. Stat. tit. 22 § 2002(A)(1)(a) - Discovery by the Defense
  • Okla. Stat. tit. 21 § 142A-9 - Victim's Rights Act
  • Okla. Stat. tit. 12 § 2202 - Judicial Notice

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:

  • Neloms v. State, 2012 OK CR 7, I 25, 274 P.3d 161, 167
  • State v. Maley, 2012 OK CR 3, I 4, 269 P.3d 949, 950
  • Kennedy v. State, 1992 OK CR 67, I 12, 839 P.2d 667, 670
  • Harmon v. State, 2011 OK CR 6, I 48, 248 P.3d 918, 937
  • Mitchell v. State, 2016 OK CR 21, I 13, 387 P.3d 934, 940
  • Webster v. State, 2011 OK CR 14, I 76, 252 P.3d 259, 280
  • Tryon v. State, 2018 OK CR 20, I 63, 423 P.3d 617, 636
  • Jones v. State, 2009 OK CR 1, I 57, 201 P.3d 869, 885
  • Hogan v. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923
  • Tucker v. State, 2016 OK CR 29, I 25, 395 P.3d 1, 8
  • Barnard v. State, 2012 OK CR 15, I 13, 290 P.3d 759, 764
  • Martinez v. State, 2016 OK CR 3, I 85, 371 P.3d 1100, 1119
  • Baird v. State, 2017 OK CR 16, I 42, 400 P.3d 875, 886

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