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IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA MICHAEL HAROLD DENHAM, ) ) NOT FOR PUBLICATION Appellant, ) ) Case No. F-2017-1140 V. ) ) FILED STATE OF OKLAHOMA, ) IN COURT OF CPIMINAL APPEALS ) STATE OF OKLAHOMA Appellee. ) APR 25 2019 SUMMARY OPINION JOHN D. HADDEN CLERK HUDSON, JUDGE: Appellant, Michael Harold Denham, was tried and convicted at a jury trial in Custer County District Court, Case No. CF-2017-126, of Domestic Assault and Battery by Strangulation, in violation of 21 O.S.Supp.2014, § 644(J). The jury recommended a sentence of three (3) years imprisonment. The Honorable Doug Haught, District Judge, presided at trial and sentenced Appellant in accordance with the jury’s verdict. Judge Haught also imposed various costs and fees and ordered credit for time served. Denham now appeals, raising five (5) propositions of error before this Court: I. THE TRIAL COURT ERRED WHEN IT ALLOWED THE STATE TO PRESENT EXPERT WITNESS TESTIMONY CONCERNING DOMESTIC ABUSE; II. THE TRIAL COURT ERRED WHEN IT ALLOWED THE STATE TO INTRODUCE EVIDENCE OF A DOMESTIC VIOLENCE WITNESS WHO WAS NOT QUALIFIED TO BE AN EXPERT; III. THE TRIAL COURT ERRED IN ADMITTING EVIDENCE AFTER THE STATE FAILED TO COMPLY WITH THE OKLAHOMA EVIDENCE CODE; IV. THE TRIAL COURT ERRED BY FAILING TO ALLOW THE DEFENSE TO VOIR DIRE A PARTICULAR JUROR; and V. THE CUMULATIVE EFFECT OF ALL THESE ERRORS DEPRIVED APPELLANT OF A FAIR AND IMPARTIAL PROCEEDING. After thorough consideration of the entire record before us on appeal, including the original record, transcripts, exhibits and the parties’ briefs, we find that no relief is required under the law and evidence. Appellant’s judgment and sentence is AFFIRMED. Proposition I: The trial court did not abuse its discretion in denying Appellant’s motion for continuance and his request for appointment of an expert witness to counter the testimony of Detective Johnson, the State’s domestic violence expert. Lamar v. State, 2018 OK CR 8, I 34, 419 P.3d 283, 293 (denial of motion for continuance reviewed for abuse of discretion); Plantz v. State, 1994 2 OK CR 33, I 10, 876 P.2d 268, 274 (the trial court’s denial of appointment of defense expert at state expense reviewed for abuse of discretion). Appellant failed to show the materiality of the evidence expected to be obtained from the proposed defense expert and he failed to show that due diligence had been used to obtain the evidence as required for a continuance. Indeed, Appellant made no offer of proof at the pretrial hearing. Appellant also made no predictions concerning the amount of time required to obtain the desired expert testimony, let alone the feasibility of obtaining the proposed testimony. 12 O.S.2011, § 668; 22 O.S.2011 § 584. Appellant’s reliance upon Ake V. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985) to support his request for continuance and for the appointment of an expert is dubious. 1 Ake held “that when a defendant has made a preliminary showing that his sanity at the time of the offense is likely to be a significant factor 1 Defense counsel wrote in his motion for continuance and appointment of expert that he was unsuccessful in his efforts to obtain funding for a defense expert from his employer, the Oklahoma Indigent Defense System. See 22 O.S.Supp.2017, § 1355.4(D) (providing that OIDS attorneys may request expert services from the list of experts maintained by the OIDS Executive Director and said Executive Director or his designee has sole discretion for approval of such requests); Toles v. State, 1997 OK CR 45, II 29, 947 P.2d 180, 187 (observing that the Executive Director “has the final say” concerning requests for funding under the OIDS statute by System attorneys). 3 at trial, the Constitution requires that a State provide access to a psychiatrist’s assistance on this issue if the defendant cannot otherwise afford one.” Ake, 470 U.S. at 74, 105 S. Ct. at 1091-92. The expert testimony at issue in the present case, however, does not involve expert psychological evidence of any kind. Indeed, defense counsel elicited that Det. Johnson had no training whatsoever in psychology or medicine. Ake thus is distinguishable on its facts from the present case. We nonetheless have extended the holding of Ake to include any expert which is necessary for an adequate defense. Fitzgerald U. State, 1998 OK CR 68, I 16, 972 P.2d 1157, 1165; Rogers v. State, 1995 OK CR 8, I 3, 890 P.2d 959, 966; Plantz, 1994 OK CR 33, I 10, 876 P.2d at 274. Appellant’s defense at trial was self-defense. Appellant fails to show how the absence of a defense domestic violence expert in any way thwarted his proposed defense. Id. (“when the defendant does not demonstrate any need to the trial court for the experts or any substantial prejudice from the lack of the expert, then there has been no abuse of discretion by the trial court in denying a defendant an expert at state expense.”). That is especially SO considering that Det. Johnson’s testimony did not address the 4 particulars of Appellant’s relationship with the victim but was limited to describing the common patterns and cycles of behavior he had seen in abusive domestic relationships. Proposition I is denied. Proposition II: A witness may be “qualified as an expert by knowledge, skill, experience, training or education[.]” 12 O.S.2011, § 2702. “The decision as to the sufficiency of the qualifications of an expert witness is within the sound discretion of the trial court and will not be disturbed on appeal absent a clear abuse of discretion.” Diaz U. State, 1986 OK CR 167, I 29, 728 P.2d 503, 514. See also Slaughter v. State, 1997 OK CR 78, IT 19, 950 P.2d 839, 848. The trial court did not abuse its discretion in qualifying Det. Johnson as an expert in domestic violence. This Court has held that an expert witness is not required to hold a professional degree. Harris U. State, 2004 OK CR 1, I 37, 84 P.3d 731, 747 (“[a]ny combination of education, training, and experience may qualify a person as an ‘expert’ on a particular subject[.]”); Salazar U. State, 1996 OK CR 25, “I 32, 919 P.2d 1120, 1129 (“expert witnesses” are ordinarily persons who have experience and knowledge in regard to matters that are not generally known and a formal degree has never been nor is required to qualify a witness 5 as an expert). Det. Johnson’s training and experience was fully developed at trial and was sufficient to satisfy the requirements for qualification as an expert. See Harris, 2004 OK CR 1, I 37, 84 P.3d at 747. It is true that Det. Johnson’s training and experience was derived primarily through his career in law enforcement. This issue, however, does not relate to admissibility but instead was a matter for the jury to consider in determining the weight to be given to Det. Johnson’s testimony. Furthermore, Det. Johnson’s testimony was not based on novel scientific and technical methods subject to Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). See Harris, 2004 OK CR 1, IT 38, 84 P.3d at 747-48. Proposition II is denied. Proposition III: Appellant did not allege below a violation of the ten (10) day disclosure rule set forth in the Oklahoma Criminal Discovery Code as grounds for disallowing Det. Johnson’s testimony. See 22 O.S.2011, § 2002(A)(1)(a),(D). Appellant thus has waived review on appeal of all but plain error. Pullen v. State, 2016 OK CR 18, I 4, 387 P.3d 922, 925 (where a defendant makes a specific objection at trial, no different objections will be considered on appeal). To show plain error, Appellant must show an actual error, 6 which is plain or obvious and that affects his substantial rights. This Court will only correct plain error if the error seriously affects the fairness, integrity or public reputation of the judicial proceedings or otherwise represents a miscarriage of justice. Lamar, 2018 OK CR 8, I 40, 419 P.3d at 294. Appellant fails to show actual or obvious error affecting his substantial rights. Title 22 O.S.2011, § 2002(A)(1)(a) provides that, upon request of the defense, the State “shall be required to disclose . the names and addresses of witnesses which the state intends to call at trial, together with their relevant, written or recorded statement, if any, or if none, significant summaries of any oral statement[.]” Title 22 O.S.2011, § 2002(D) provides that “[a]]] issues relating to discovery will be completed at least (10) days prior to trial.” Here, the State disclosed in a timely manner-eleven (11) days before trial-the fact that it would call an unnamed expert witness on the topic of domestic violence although the expert’s name was provided only eight (8) days before trial. Appellant thus was on notice eleven days before trial of the possibility that a domestic violence expert would be called as a witness. Further, the Oklahoma Legislature has determined that the 7 testimony of a domestic violence expert at trial is of critical importance to the resolution of criminal cases involving domestic abuse. Under Oklahoma law, “if a party offers evidence of domestic abuse, testimony of an expert witness concerning the effects of such domestic abuse on the beliefs, behavior and perception of the person being abused shall be admissible as evidence.” 22 O.S.2011, § 40.7 (emphasis added). Section 40.7 represents a strong policy pronouncement by the Legislature favoring the admissibility of testimony from a domestic violence expert when relevant. There was no apparent prejudice from the late disclosure of the prosecution expert’s name. Nor does Appellant show that the late disclosure of Det. Johnson’s name to the defense was willful and motivated by a desire to obtain a tactical advantage. Andrew U. State, 2007 OK CR 23, T 85, 164 P.3d 176, 196, overruled on other grounds, Williamson v. State, 2018 OK CR 15, I 422 P.3d 752, 762 n. 1. Appellant fails to show plain error. Proposition III is denied. Proposition IV: We review a trial court’s conduct of voir dire for abuse of discretion. Tryon v. State, 2018 OK CR 20, I 13, 423 P.3d 617, 627. “There is no abuse of discretion as long as the voir dire examination affords the defendant a jury free of outside 8 influence, bias or personal interest.” Id. (quoting Harmon U. State, 2011 OK CR 6, I 7, 248 P.3d 918, 927). The record shows that Juror T spontaneously disclosed that she knew the victim’s son, a prosecution witness, at the completion of opening statements. The trial court had the authority under 22 O.S.2011, § 653 to address this issue with Juror T. See Bass U. State, 1987 OK CR 29, I 5, 733 P.2d 1340, 1341-42; Juarez U. State, 1973 OK CR 179, II 2-4, 508 P.2d 1093, 1094-95. Instead of exercising this authority, the trial court refused additional questioning of Juror T by repeatedly stating that the time for voir dire was over. This is problematic because the trial court failed to ask at any time during voir dire whether the venire panel knew any of the witnesses whose names were read aloud by the prosecution and the defense. One of the witnesses the State indicated it would be calling was the victim’s son. Although the trial court asked during voir dire whether any of the prospective jurors knew the defendant or were related by blood or marriage to any of the witnesses whose names were read, the court did not ask the questions regarding familiarity of witnesses suggested in the OUJI instruction for introductory questions, i.e., “Do/Did any of you know [Name of Alleged Victim(s)], 9 or any member of his/her/their family?” and “Do you know any of the witnesses, or any member of their families?” OUJI-CR(2d) 1-5, Questions 5 & 6. Worse yet, neither the prosecutor nor defense counsel asked these questions during their respective examinations of the prospective jurors before passing the panel for cause. This fact is dispositive of the present issue. We have granted relief for this type of error where the defendant actually asked the juror during voir dire whether he knew any of the state’s witnesses; the juror at issue gave a negative response; and after being sworn to try the case the juror disclosed his acquaintance with one of the witnesses. We have held that the nonfeasance of such a juror “effectively denied [the defendant] full enjoyment of his right to conduct voir dire examination of the venireman as a possible basis for challenge for cause, and deprived of information upon which to intelligently exercise a peremptory challenge against him.” Bass, 1987 OK CR 29, I 5, 733 P.2d at 1342 (quoting Manuel v. State, 1975 OK CR 174, 9 8, 541 P.2d 233, 237). In the present case, Juror T was not asked during voir dire whether she knew any of the prosecution witnesses whose names 10 were read aloud by the State. Juror T’s statement after being sworn to try the case, but prior to the presentation of any evidence, that she realized she knew the victim’s son is insufficient standing alone to call into question her impartiality. “New information about a juror’s background or opinions can only be grounds for relief if it raises a doubt about the juror’s ability to be fair and impartial.” Underwood v. State, 2011 OK CR 12, ” 102, 252 P.3d 221, 258. The trial court correctly ruled that a juror’s mere acquaintance with a witness is insufficient to warrant removal of the juror for cause. See 38 O.S.Supp.2015, § 28; Reynolds U. State, 1978 OK CR 21, II 9-10, 575 P.2d 628, 632. A criminal defendant is not entitled to jurors who know nothing about his case. The constitutional guarantee of a fair and impartial trial does not exclude service by a juror with knowledge of facts and circumstances involving the case, but only those persons who use that knowledge to form opinions concerning the merits of the case, or who form a negative opinion of the defendant based on that knowledge. Woodruff V. State, 1993 OK CR 7, I 12, 846 P.2d 1124, 1132; Smithey v. State, 1963 OK CR 78, 11 19-20, 385 P.2d 920, 923-24. In the present case Juror T, along with the other prospective jurors, were asked a series of questions 11 during voir dire about their prior knowledge of the case and whether any such prior knowledge would affect their ability to be fair and impartial jurors. Juror T gave negative responses to this series of questions. The burden is upon the defendant to show he was prejudiced from a juror knowing the witness. Blozy v. State, 1976 OK CR 314, I 12, 557 P.2d 451, 454-55. Appellant fails to show prejudice based on the present record. The trial court’s failure to allow further questioning of Juror T concerning this issue was not an abuse of discretion in light of defense counsel’s previous failure to inquire whether the prospective jurors knew any of the State’s witnesses. We have held: [C]ounsel on voir dire examination should inquire into all matters within his knowledge which might affect the qualification of the jurors, and where this is not done, the trial court may in its discretion refuse to allow a challenge to an individual juror after the jury has been sworn to try the case. In such a situation the right to challenge a juror is considered to be waived. Greathouse v. State, 1972 OK CR 313, I 6, 503 P.2d 239, 241. Accord Woodruff, 1993 OK CR 7, I 9, 846 P.2d at 1131. “This Court has often held that the burden is on the defendant to inquire into all matters which might affect the qualifications of the jurors, and if he 12 fails to question fully, he cannot later object to an impartial juror.” Shattuck U. State, 1977 OK CR 180, IT 6, 564 P.2d 643, 645. This is not a case where the nonfeasance of a juror deprived Appellant of information bearing on his right to intelligently exercise his peremptory challenges. Nor is this a case where the trial court somehow restricted defense counsel’s ability to question the prospective jurors. Rather, defense counsel simply did not inquire into this topic during voir dire. Appellant was afforded a full and fair voir dire process along with the full complement of peremptory challenges allowed under Oklahoma law. Under these circumstances, Appellant failed to show good cause requiring additional questioning under Section 653 after Juror T’s spontaneous disclosure based upon the record of voir dire. See Greathouse, 1972 OK CR 313, I 7, 503 2d at 241. Unquestionably, the better practice is for the trial court either to inquire or allow the parties to inquire of a juror who makes such a disclosure at any point during the trial. Furthermore, the trial court should have addressed the venire panel’s familiarity with prospective witnesses during voir dire using the OUJI questions. Under the governing law and facts, however, we cannot say that the 13 trial court was required to allow additional voir dire of Juror T. Proposition IV is denied. Proposition V: We find no merit to Appellant’s cumulative error claim. Mack v. State, 2018 OK CR 30, I 8, 428 P.3d 326, 329. Proposition V 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. (2019), the MANDATE is ORDERED issued upon the delivery and filing of this decision. AN APPEAL FROM THE DISTRICT COURT OF CUSTER COUNTY THE HONORABLE DOUG HAUGHT, DISTRICT JUDGE APPEARANCES AT TRIAL APPEARANCES ON APPEAL MICHAEL HENSON JEREMY STILLWELL OKLA. INDIGENT DEFENSE OKLA. INDIGENT DEFENSE SYSTEM SYSTEM P.O. BOX 1494 P.O. BOX 926 CLINTON, OK 73601 NORMAN, OK 73070 COUNSEL FOR DEFENDANT COUNSEL FOR APPELLANT DANA HADA MIKE HUNTER ASST. DISTRICT ATTORNEY ATTORNEY GENERAL CUSTER COUNTY THEODORE M. PEEPER P.O. BOX 36 ASST. ATTORNEY GENERAL ARAPAHO, OK 73620 313 N.E. 21 ST STREET COUNSEL FOR THE STATE OKLAHOMA CITY, OK 73105 COUNSEL FOR APPELLEE 14 OPINION BY: HUDSON, J. LEWIS, P.J.: CONCUR KUEHN, V.P.J.: CONCUR IN RESULT LUMPKIN, J.: CONCUR ROWLAND, J.: CONCUR 15 KUEHN, V.P.J., CONCURRING IN RESULT: I concur in result. Many of the questions on appeal turn on the State’s decision to endorse and call an expert witness to testify about domestic violence. On October 20, eleven days before trial, the State gave notice that it intended to call an unnamed domestic violence expert. On October 23 the State filed a notice naming the expert, Detective Johnson of the Cleveland County Sheriff’s Office. On October 27 Appellant asked the trial court for a continuance, both to prepare and to acquire his own domestic violence expert. That request was denied. The trial began on October 31st Johnson, who neither investigated this case nor interviewed Appellant, testified generally about patterns and cycles of behavior in abusive domestic relationships. I agree with the majority that the trial court did not abuse its discretion in denying a continuance. Appellant – who claimed self- defense – never explained how a domestic violence expert would aid his defense. I also agree that the trial court did not abuse its discretion in allowing Johnson to testify. However, I cannot agree with the Majority’s analysis of Proposition III. The State did not endorse Johnson until eight days before trial. This is clearly not within the ten days required by the Discovery Code. 22 O.S.2011, $2002(D). Appellant may have known that the State planned to call someone, but that does not change the fact that Appellant did not know who – and thus could neither interview the witness or otherwise prepare for his testimony – until the discovery deadline had passed. In fact, Appellant’s trial counsel was never able to interview Johnson before he testified. I would find this is a plain, obvious error. However, I cannot find that it affected Appellant’s substantial rights. This case came down to the conflicting testimony of the victim and Appellant. Johnson’s evidence may have helped jurors understand the victim’s continued relationship with Appellant, but the record does not support a conclusion that it determined the jury’s verdict. I also disagree with the Majority’s use of 22 O.S.2011, § 40.7. That provision merely states that relevant expert testimony on domestic violence is admissible. It does not imply, nor should it, that in every case involving domestic violence either the State or the defendant must – or even should – present such expert testimony. 2

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