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F-2017-1191

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Leroy Edward Gilbert, Jr. v The State of Oklahoma

F-2017-1191

Filed: Apr. 25, 2019

Not for publication

Prevailing Party: Leroy Edward Gilbert, Jr.

Summary

# Leroy Edward Gilbert, Jr. appealed his conviction for First Degree Murder. Conviction and sentence of life without the possibility of parole. Judge Kuehn dissented.

Decision

The Judgment and Sentence of the District Court is hereby 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.

Issues

  • Was there an error in the trial court's jury instruction concerning the 85% Rule?
  • Did the prosecutorial misconduct deprive the appellant of a fair trial?
  • Was the appellant deprived of the effective assistance of counsel?

Findings

  • the court erred
  • the prosecutorial comments did not affect substantial rights
  • no ineffective assistance of counsel was shown
  • the judgment and sentence is affirmed

F-2017-1191

Apr. 25, 2019

Leroy Edward Gilbert, Jr.

Appellant

v

The State of Oklahoma

Appellee

OPINION

JOHN D. HADDEN, JUDGE: Appellant, Leroy Edward Gilbert, Jr., was tried by jury and convicted of First Degree Murder (Count 1) (21 O.S.1991, § 701.7) in District Court of Tulsa County Case Number CF-2015-2579. The jury recommended as punishment imprisonment for life without the possibility of parole. The trial court sentenced accordingly. It is from this judgment and sentence that Appellant appeals.

FACTS

Appellant murdered Erma Jean Goodou in Tulsa, Oklahoma in 1994. He eluded identification as the perpetrator for close to twenty years. Erma Jean Goodou lived at 820 East 51st Place North in Tulsa, Oklahoma with her two daughters. She never went by the name Jean but only Erma or Erma Jean. As a single parent, Goodou was particularly close with her teenage daughter, Tosha Goodou. Ms. Goodou was very open with the teenager and kept her fully apprised as to Goodou’s romantic interests and dates. Goodou never made any mention of Appellant. Tosha Goodou had the only other key to the home they shared.

On July 29, 1994, Goodou sent Tosha and her sister to stay the night with Goodou’s sister. Goodou spoke with her aunt, Warnice Conley on the phone between 8:30 and 9:00 that evening. During that conversation, Goodou asked Conley to drive her to the grocery store the next day. Sometime between 8:30 and 9:00 the next morning, Conley visited Goodou’s home as planned. Conley knocked on the door but Goodou did not answer. Concerned by this fact, Conley went to the home of Goodou’s sister to retrieve Tosha Goodou’s key to the home. Tosha Goodou demanded that she be permitted to go with Conley. She unlocked the front door to the home only to discover that the door was chained from the inside. A neighbor helped remove this device with a screwdriver. When Conley and Tosha Goodou made entry into the home, they discovered Goodou’s lifeless body lying in a pool of blood on the kitchen floor. Although she customarily slept in pajamas, Goodou was naked except for a red t-shirt.

The Tulsa Police Department investigated Goodou’s death. The investigating detectives determined that an individual had made entry into the home through a window, attacked Goodou in the master bedroom, and fled out the backdoor. Detective Roy Heim discovered that one of the screens had been removed from the home’s aluminum storm windows. The screen lay bent in the backyard of the home. The corresponding window was partially open. Detective Tim Bracken found a smudged shoe print on the wall below the open window where someone pulled themselves up into the window. Detective Gary Meek found that the backdoor was ajar. The detectives discovered that the master bedroom was in great disarray. The telephone lay disconnected on the floor. The receiver had been removed from the phone. There was a large butcher knife and lots of blood on the pillow, mattress, and bedding. The other bedrooms were neat and orderly. There were blood stains, smears, and transfers on both sides of the hallway leading to the living room and kitchen. The phone in the living room had been disconnected. Heim noted that Goodou’s body was in the kitchen lying face up. There was a large amount of blood around her. A tray and dishes had been knocked to the floor. Goodou had blood on the bottom of one of her feet. There were two bloody footprints leading from the kitchen to the dining room and one bloody footprint leading back into the kitchen from the dining room. Goodou had defensive injuries on her hands and arms.

Detective Bracken fingerprinted Goodou’s home. He processed the bent screen from the backyard and retrieved a beautiful set of prints. It was apparent that someone had very recently grabbed the screen and pried it off of the window. Bracken processed both telephones and retrieved a very nice print from the phone in the living room. Deputy Chief Medical Examiner, Robert Hemphill, M.D., performed an autopsy on Goodou. He observed that Goodou had numerous sharp force injuries. She had incised wounds on her hands which were consistent with defensive wounds, an incised wound on her left arm, and an evulsed wound to her left shoulder separating the top layer of skin. Hemphill noted that Goodou had injuries to her head consistent with the blunt force trauma of having her head hit on the counter or something flat. She had 6 lacerations above her forehead, a laceration on her nose, her frenulum was torn inside her mouth, and her scalp was split on the right side. Goodou had a fairly large area of fracturing of her skull resulting in intrusion of and tearing of the surface of her brain. Hemphill ultimately determined that Goodou had died from blunt force trauma to her head by a large diameter object. Hemphill turned over Goodou’s vaginal swabs to the Tulsa Police Department; however, they went untested for close to twenty years. The Tulsa Police Department compared the fingerprints recovered from the home with multiple individuals, but the officers were unable to solve Goodou’s murder.

In 2013, the Oklahoma State Bureau of Investigation (OSBI) submitted Goodou’s vaginal swabs for DNA testing pursuant to a grant that the agency had received for cold cases. Bode Laboratories tested the swabs and found a mixture of DNA profiles in the sperm fraction discovered on the swabs. One profile matched Goodou. The male contributor was unknown. Wendy Duke of the OSBI Specialized Forensic Biology Unit confirmed Bode Laboratories work. She submitted the unknown profile into the State’s DNA database and got a hit on Appellant’s DNA profile. Detective Eddie Majors contacted Appellant at his residence in Texas on September 30, 2014. Majors interviewed Appellant concerning Goodou’s death. Appellant disclosed that he had graduated from Tulsa McLain High School. He confirmed that he resided in Tulsa in 1994 but denied knowing Goodou. Appellant denied knowing anyone in the vicinity of Goodou’s home and refuted having ever been in the neighborhood. He did not have any explanation for why his DNA profile was found at the murder scene. Appellant denied having sexual relations with anyone other than the five women with whom he had significant relationships and listed the names of the women. This list excluded Goodou. With the assistance of Texas law enforcement officials, Majors executed a search warrant on Appellant and retrieved a known DNA sample from him. Majors submitted Appellant’s known DNA sample to the OSBI. Wendy Duke compared Appellant’s known DNA profile to the DNA profile of the male component from Goodou’s vaginal swabs. She determined that the DNA profiles matched. The probability of selecting an unrelated individual at random from the world’s population who could have contributed to this profile was a one in 71.8 sextillion chance. Jason Reeves of the Tulsa Police Department’s Forensic Laboratory compared Appellant’s fingerprints with the prints which Detective Bracken had recovered from Goodou’s home in 1994. Reeves found that 8 of the prints on the window screen matched Appellant’s prints. The prints matched Appellant’s middle finger, his right ring finger, his right palm, his little finger, two prints of his right index finger, and two prints of his left palm. Reeves also found that Appellant’s left thumbprint matched the print recovered from the living room phone.

Appellant testified in his own defense at trial. He claimed that he now realized that Detective Majors had been speaking about a girl he knew from high school as Jean. Appellant admitted that he had gone to high school with Goodou and was a grade level behind her. He claimed that they were close friends and engaged in casual sex during a secret relationship in the years after graduation. Appellant admitted that his prints were on the screens on Goodou’s windows but claimed to have gotten the screens for Goodou. He further admitted that his thumbprint was on Goodou’s living room phone but asserted that he had used Goodou’s phone during one of his visits. Despite the expert testimony that semen only survived for a couple of days inside the vagina, Appellant claimed the last time he had sex with Goodou was a couple of weeks before her death. He testified that he did not attack, rape, and kill Goodou but admitted that he was a three-time convicted felon. Appellant could not explain why he had told Detective Majors that he had only had sex with the list of five women that excluded Goodou. He also could not explain why he had told Detective Majors that he had never visited Goodou’s neighborhood.

DISCUSSION

In his first proposition of error, Appellant contends that the trial court erred when it instructed the jury concerning the 85% Rule. He concedes that he waived appellate review of this claim for all but plain error when he failed to object to the instruction at trial. Stewart v. State, 2016 OK CR 9, 25, 372 P.3d 508, 514. Therefore, we review Appellant’s claim pursuant to the test set forth in Simpson v. State, 1994 OK CR 40, 876 P.2d 690. Id. Under this test, an appellant must show an actual error, which is plain or obvious, and which affects his substantial rights. Id. Reviewing the record in the present case, we find that the trial court’s instruction upon the 85% Rule, as set out in 21 O.S.Supp.2015, § 13.1, was not warranted and constituted error. The State acknowledges that the 85% Rule did not apply to Appellant’s case. Appellant murdered Goodou in 1994. However, the 85% Rule did not go into effect until March 1, 2000. Anderson v. State, 2006 OK CR 6, 11, 130 P.3d 273, 278; 21 O.S.Supp.1999, § 12.1. In Harris v. State, 2007 OK CR 28, 23, 164 P.3d 1103, 1112-13, we determined that the 85% Rule did not apply to offenses committed before March 1, 2000. Therefore, we find that Appellant has shown the existence of an actual error that is plain or obvious. However, we find that Appellant has not shown that this error affected his substantial rights. This Court has consistently held that it is not error alone that reverses the lower court’s judgments, but error plus injury, and the burden is upon the appellant to establish the fact that he was prejudiced in his substantial rights by the commission of the alleged error. Smallwood v. State, 1995 OK CR 60, 907 P.2d 217, 227. A substantial right is a matter of substance as distinguished from a matter of mere form Simpson, 1994 OK CR 40, 10, 876 P.2d at 694. Errors that affect substantial rights are those which go to the foundation of the case, or which take from a defendant a right which was essential to his defense. Id., 1994 OK CR 40, 12, 876 P.2d at 695. Since Appellant has neither argued nor shown how the trial court’s error went to the foundation of the case or took from him a right which was essential to his defense, we conclude that the trial court’s error did not affect Appellant’s substantial rights. Therefore, plain error did not occur. Even if we were to find that the challenged instruction constituted plain error, we would find that this error was harmless. Plain error is subject to harmless error analysis. Stewart v. State, 2016 OK CR 9, 27, 372 P.3d 508, 514; Simpson, 1994 OK CR 40, 20, 34, 876 P.2d at 698, 701. If the error is a constitutional violation, we review to determine whether the error was harmless beyond a reasonable doubt. If the error is the result of the failure to adhere to state law, it is considered harmless unless the error had a substantial influence on the outcome of the case or leaves the Court in grave doubt as to whether it had such an effect. Id.; Simpson, 1994 OK CR 40, 34-35, 876 P.2d at 701-02. Appellant alleges that the instruction violated the Constitutional principles prohibiting ex post facto punishment. However, the 85% Rule does not violate Appellant’s rights under the ex post facto clause because the law does not apply to him and, thus, does not disadvantage him. See Gilson v. State, 2000 OK CR 14, 97, 8 P.3d 883, 914 (The prohibition against ex post facto law requires the finding of two elements: first, that the law was enacted subsequent to the conduct to which it was being applied; and second, that it must disadvantage the offender affected by it.). Therefore, the Federal Constitutional standard for harmless error review as set forth in Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967) is not applicable. Simpson, 1994 OK CR 40, 34-35, 876 P.2d at 701-02. Since the trial court’s error in this case involved an erroneous instruction based upon the misapplication of the statutory provision covering the 85% Rule, we review under the state standard for harmless analysis. Id. Both statutory and instructional error are failures to adhere to state law which are considered harmless unless the error had a substantial influence on the outcome of the case or leaves the Court in grave doubt as to whether it had such an effect. Id., 1994 OK CR 40, 35-36, 876 P.2d at 702 (failure to adhere to statute subject to grave doubts harmless error analysis); Hill v. State, 1995 OK CR 28, 898 P.2d 155, 163 (error constituting both statutory and instructional error subject to grave doubts harmless error standard). Applying this standard in the present case, we find that the error was harmless. Appellant has neither argued nor shown how he was prejudiced by the erroneous instruction. As the State suggests, the error actually inured to Appellant’s benefit. See McGregor v. State, 1994 OK CR 71, 23, 885 P.2d 1366, 1380 (refusing to grant relief where erroneous instruction may have inured to defendant’s benefit); Long v. State, 1982 OK CR 185, 21, 654 P.2d 647, 651 (finding instruction applying the wrong statute as to punishment did not require relief since it inured to defendant’s benefit). The jury was informed that Appellant would have to serve 85% of his sentence before he could be considered for parole when, in fact, he will be eligible for parole consideration much earlier. We have no grave doubts that any error in Instruction No. 1 had a substantial influence on the outcome of the trial. Proposition One is denied.

In his second proposition of error, Appellant contends that prosecutorial misconduct deprived him of a fair trial. This Court’s review is well established. Prosecutorial comments, like jury instructions, are not reviewed in artificial isolation, but must be judged in the context of the entire record. Runnels v. State, 2018 OK CR 27, 25, 426 P.3d 614, 621. Allegations of prosecutorial misconduct do not warrant reversal of a conviction unless the cumulative effect was such [as] to deprive the defendant of a fair trial. Id. Appellant concedes that he failed to object to the prosecutor’s comments at trial. Therefore, we find that he has waived appellate review of his claims for all but plain error and review them pursuant to the test set forth in Simpson to determine whether Appellant has shown an actual error, which is plain or obvious, and which affects his substantial rights. Malone v. State, 2013 OK CR 1, 41, 293 P.3d 198, 211-212. 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. Id.

Appellant asserts that the prosecutor made a misstatement of the law concerning the 85% Rule during closing argument. This Court has clearly explained that prosecutors should not misstate the law during closing argument. Runnels, 2018 OK CR 27, 27, 426 P.3d at 621. Comments which mischaracterize the 85% Rule as some form of automatic release are improper. Bramlett v. State, 2018 OK CR 19, 40, 422 P.3d 788, 800. Telling the jury that a life sentence is forty-five (45) years in prison is a misstatement of the law. Lee v. State, 2018 OK CR 14, 10, 422 P.3d 782, 785. Similarly, a prosecutor’s assertion that a criminal defendant does not serve his entire sentence but would only serve 85% of any sentence imposed is contrary to the statutory reality. Taylor v. State, 2011 OK CR 8, 52, 248 P.3d 362, 378. Instead, the correct statement of the law is that the defendant would have to serve 85% of his sentence before becoming eligible for parole. Florez v. State, 2010 OK CR 21, 5-7, 239 P.3d 156, 158.

In Runnels, we found the prosecutor’s comments were borderline where the prosecutor inartfully described a life sentence as 45 years while explaining that Appellant would have to serve 85% of his sentence before becoming eligible for parole. Runnels, 2018 OK CR 27, 30, 426 P.3d at 622. Applying this analysis to the present case, we find that Appellant has shown the existence of an actual error. The record reveals that the prosecutor informed the jury that: [N]ow you have two options. Life or Life without the possibility of parole. And you have your instructions on what that means. Life is defined, ineligible for parole – I’m sorry, 45 years, parole with good time credit at 38 and some change. Life without parole means you die in prison. The prosecutor crossed the line of propriety when he both told the jury that a life sentence constituted 45 years in prison and suggested that the defendant would be paroled with good time credit at 38 years and some change. This constituted a flat misstatement of the law concerning the 85% Rule. However, we find that Appellant has not shown that the prosecutor’s comment affected his substantial rights. Malone, 2013 OK CR 1, 43, 293 P.3d at 212. As discussed in Proposition One, the 85% Rule did not apply to Appellant’s case. Appellant was not required to serve 85% of any sentence imposed. Instead, he could have been eligible for parole consideration on a life sentence much earlier than 38 and 1/3rd years. Given this fact and the jury’s decision to recommend a sentence of life without parole we find that Appellant was not prejudiced by the prosecutor’s comment. Florez, 2010 OK CR 21, 9, 239 P.3d at 159 (finding prosecutor’s misstatement of 85% Rule did not prejudice defendant in light of jury’s sentencing decision); Taylor, 2011 OK CR 8, 54, 248 P.3d at 379 (finding prosecutor’s comments did not prejudice defendant where they had no substantial influence on the outcome of trial). Reviewing the entire record in the present case, the cumulative effect of the prosecutor’s comments did not deprive Appellant of a fundamentally fair trial. Proposition Two is denied.

In his third proposition of error, Appellant contends that he was deprived of the effective assistance of counsel. This Court reviews ineffective assistance of counsel claims under the two-part test mandated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Ashton v. State, 2017 OK CR 15, 55, 400 P.3d 887, 900. The Strickland test requires an appellant to show: (1) that counsel’s performance was constitutionally deficient; and (2) that counsel’s deficient performance prejudiced the defense. Id. Appellant argues that defense counsel was ineffective for failing to raise the challenges he now makes in Propositions One and Two. We determined in those propositions that Appellant had not shown that plain and reversible error had occurred. The complained errors did not affect the outcome of the case. As such, we find that Appellant has not shown a reasonable probability that the outcome of the trial would have been different but for counsel’s failure to object to the prosecutor’s comment and the erroneous instruction. Glossip v. State, 2007 OK CR 12, 110-12, 157 P.3d 143, 161. As Appellant has failed to establish ineffective assistance of counsel under Strickland, we find that no relief is required. Proposition Three is denied.

DECISION

The Judgment and Sentence of the District Court is hereby 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.

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Footnotes:

  1. Stewart U. State, 2016 OK CR 9, I 25, 372 P.3d 508, 514.
  2. Anderson v. State, 2006 OK CR 6, I 11, 130 P.3d 273, 278; 21 O.S.Supp.1999, § 12.1.
  3. Harris v. State, 2007 OK CR 28, T 23, 164 P.3d 1103, 1112-13.
  4. Smallwood U. State, 1995 OK CR 60, 907 P.2d 217, 227.
  5. Simpson v. State, 1994 OK CR 40, I 10, 876 P.2d at 694.
  6. Simpson, 1994 OK CR 40, 9 12, 876 P.2d at 695.
  7. Gilson v. State, 2000 OK CR 14, I 97, 8 P.3d 883, 914.
  8. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967).
  9. Florez U. State, 2010 OK CR 21, II 5-7, 239 P.3d 156, 158.
  10. McGregor U. State, 1994 OK CR 71, I 23, 885 P.2d 1366, 1380.
  11. Long v. State, 1982 OK CR 185, I 21, 654 P.2d 647, 651.
  12. Runnels v. State, 2018 OK CR 27, I 25, 426 P.3d 614, 621.
  13. Bramlett v. State, 2018 OK CR 19, I 40, 422 P.3d 788, 800.
  14. Lee v. State, 2018 OK CR 14, I 10, 422 P.3d 782, 785.
  15. Taylor v. State, 2011 OK CR 8, I 52, 248 P.3d 362, 378.
  16. Malone U. State, 2013 OK CR 1, I 41, 293 P.3d 198, 211-212.
  17. Glossip v. State, 2007 OK CR 12, 110-12, 157 P.3d 143, 161.
  18. Hogan U. State, 2006 OK CR 19, "I 38, 139 P.3d 907, 923.

Oklahoma Statutes citations:

  • Okla. Stat. tit. 21 § 701.7 (1991) - First Degree Murder
  • Okla. Stat. tit. 21 § 13.1 (Supp. 2015) - 85% Rule
  • Okla. Stat. tit. 21 § 12.1 (Supp. 1999) - 85% Rule Applicability
  • Okla. Stat. tit. 22 § 3.15 (2019) - Mandate Issuance

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
  • Stewart v. State, 2016 OK CR 9, I 25, 372 P.3d 508, 514
  • Simpson v. State, 1994 OK CR 40, 876 P.2d 690
  • Anderson v. State, 2006 OK CR 6, I 11, 130 P.3d 273, 278
  • Harris v. State, 2007 OK CR 28, T 23, 164 P.3d 1103, 1112-13
  • Smallwood v. State, 1995 OK CR 60, 907 P.2d 217, 227
  • Gilson v. State, 2000 OK CR 14, I 97, 8 P.3d 883, 914
  • Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967)
  • Runnels v. State, 2018 OK CR 27, I 25, 426 P.3d 614, 621
  • Malone v. State, 2013 OK CR 1, I 41, 293 P.3d 198, 211-212
  • Lee v. State, 2018 OK CR 14, I 10, 422 P.3d 782, 785
  • Taylor v. State, 2011 OK CR 8, I 52, 248 P.3d 362, 378
  • Florez v. State, 2010 OK CR 21, II 5-7, 239 P.3d 156, 158
  • Glossip v. State, 2007 OK CR 12, 110-12, 157 P.3d 143, 161
  • Hogan v. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923
  • Long v. State, 1982 OK CR 185, I 21, 654 P.2d 647, 651
  • McGregor v. State, 1994 OK CR 71, I 23, 885 P.2d 1366, 1380

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