Darrien Hasmii Clark v The State Of Oklahoma

F-2017-528

Filed: Nov. 14, 2019

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Darrien Hasmii Clark appealed his conviction for first-degree murder and other crimes. The conviction and sentence were life imprisonment without the possibility of parole. Judge Kuehn wrote the opinion, and Judge Rowland dissented. In this case, Darrien Clark was found guilty by a jury of murdering a convenience store clerk and a series of other violent crimes, including assault and battery. The crimes occurred in July and August 2013, when Clark shot the clerk multiple times during a robbery and later shot another man at his home. Clark’s trial involved multiple charges from different incidents that the court combined into one trial, which he argued was unfair. Clark also claimed that he should have been allowed to present evidence that another person was responsible for the murder. However, the court agreed that the evidence he wanted to use was not strong enough to prove someone else committed the crime. Clark’s defense that he acted in self-defense during the second shooting was also rejected because the jury found evidence suggesting he was the aggressor. Ultimately, the court affirmed the convictions, stating that no errors were found in the trial's process and that all the decisions made by the trial court were correct.

Decision

The Judgment and Sentence of the District Court of Oklahoma County 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.

Issues

• Was there an abuse of discretion in allowing the joinder of Appellant's separate cases for trial?
• Did the trial court err in excluding evidence that a third party committed the murder?
• Did the prosecutor improperly elicit victim impact evidence during the guilt/innocence stage of the trial?
• Was the State's evidence insufficient to disprove Appellant's claim of self-defense in the assault case?
• Did the accumulation of errors deny Appellant a fair trial?

Findings

• the trial court did not err in denying the motion to sever the cases for separate trials
• the trial court did not err in excluding evidence suggesting a third party committed the murder
• there was no plain error in the prosecutor's elicitation of victim impact evidence during the guilt phase
• the evidence was sufficient to sustain the conviction for assault and battery, and the State proved the absence of self-defense beyond a reasonable doubt
• there was no accumulation of error to deny Appellant a fair trial

F-2017-528

Nov. 14, 2019

Darrien Hasmii Clark

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

KUEHN, VICE PRESIDING JUDGE:

Darrien Hasmii Clark was tried by jury and convicted in the District Court of Oklahoma County, Case No. CF-2013-5582, of Murder in the First Degree.¹ In the same trial, in Case No. CF-2013-5809, Appellant was convicted of Count I, Assault and Battery with a Deadly Weapon; Count II, Concealing Stolen Property; Count III, Pointing a Firearm at Another, all after former conviction of a felony; and Count IV, Possession of a Firearm by a Convicted Felon. In the same trial, in Case No. CF-2013-5914, Appellant was convicted in Count I of Escape from Custody of a Peace Officer after former conviction of a felony, and Count II, Resisting Arrest (Misdemeanor). In accordance with the jury’s recommendation the Honorable Bill Graves sentenced Appellant in Case No. CF-2013-5582 to life imprisonment without the possibility of parole. In Case No. CF-2013-5809, Appellant was sentenced to life imprisonment on each of Counts I and III; ten (10) years imprisonment (Count II); and eight (8) years imprisonment (Count IV). In Case No. CF-2013-5914, Appellant was sentenced to ten (10) years imprisonment (Count I) and twelve (12) months imprisonment and a fine of $500.00 (Count II). All Appellant’s sentences run consecutively. Appellant appeals from these convictions and sentences and raises five propositions of error.

Between 10:00 and 11:00 p.m. on July 23, 2013, Appellant robbed the Four Seasons Convenience Store, fatally shooting the clerk, Habib Hajimirzaei. Appellant shot the victim ten times with a .40 semi-automatic Taurus pistol. A few hours later, Appellant posted a picture to Facebook of himself holding a fan of cash. In August, detectives released surveillance video from the scene. A woman called police to say she thought she knew the person in the video and directed detectives to Appellant’s Facebook page. During this time, Appellant² repeatedly searched the Internet for information regarding the investigation. Sometime before 5:00 a.m. on August 15, 2013, Appellant visited Garland Lenoir. Lenoir regularly bought Xanax from Appellant on behalf of a third person. A couple of weeks before the shooting, Appellant heard that Lenoir told other people Appellant committed a burglary at a recording studio of mutual friends. Lenoir denied it. Appellant said they were through and Lenoir said he’d get his Xanax somewhere else. Appellant called Lenoir at least twice near 5:00 a.m. on August 15. Between 4:15 and 4:45 a.m., Norquis Dawson saw Appellant parked in a fitness center parking lot across from Lenoir’s house. Dawson told Appellant the center didn’t open until 5:00 a.m. Appellant said, Okay, drove to the parking lot next door and parked facing Lenoir’s front door. At about 5:00 a.m., Appellant banged on Lenoir’s front door. Lenoir didn’t know who it was. He grabbed his gun, told his girlfriend, Danesha Horton, to call 911, and went to the door. Appellant said It’s me. Lenoir recognized his voice and told him to go to the garage door. Lenoir opened the garage door; the next thing he knew he was in the hospital. Lenoir eventually remembered that when he³ opened the door, he saw Appellant, with a shirt wrapped around his face and a gun in his hand. Appellant shot at Lenoir several times, hitting him twice. Lenoir may have returned fire; one casing fired from Lenoir’s .357 Glock handgun was found at the scene. Horton, talking to 911, came into the garage and saw Appellant standing over Lenoir, who lay in a pool of blood. Appellant turned to Horton and pointed the gun at her. She fled into the house and described Appellant and his Mercedes to the 911 dispatcher. Shortly after 5:00 a.m., Bethany Police Officer Meek heard a radio alert for the disturbance at Lenoir’s house. He saw Appellant’s car, asked dispatch for backup, stopped the car, and demanded Appellant show his hands. Appellant showed his hands and pulled them back into the car twice. When police backup arrived, Appellant drove away. There was a brief chase, ending when Appellant hit a light pole. Appellant was forcibly removed from his car, tasered and handcuffed. He was taken to the hospital before booking. Immediately after the arrest, the Oklahoma City police got a warrant and searched Appellant’s car. They found the .40 Taurus, Lenoir’s .357 semi-automatic handgun, two cellphones, and Lenoir’s Glock .357 handgun. Appellant was initially released from the hospital and was taken to the police station. That afternoon officers realized Appellant had been shot in the calf. He was taken back to the hospital, treated, and returned to the station. When they returned to the station, the homicide detectives investigating Hajimirzaei’s murder, Hurst and Whitebird, saw Appellant being brought in. They and Detective Homan (investigating the incident with Lenoir) persuaded ballistics to analyze the evidence immediately. Before Appellant’s interview began at 5:30 p.m., all the detectives knew the Taurus had been used to shoot both Hajimirzaei and Lenoir. Over the course of an interview with the three detectives, Appellant admitted shooting Lenoir, but claimed it was self-defense after Lenoir shot first. He consistently denied involvement in the murder. However, during those denials he referred both to the date and location of the convenience store robbery/murder, even though detectives had not mentioned either fact.

In Proposition I Appellant argues that his separate cases of murder and assault and battery with a deadly weapon (and other charges) should not have been combined in a single trial.⁴ Appellant² does not contest the joinder of the case charging escape and resisting arrest. We review the trial court’s decision for abuse of discretion. 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. In the context of joinder, an appellant must factually demonstrate that the denial of severance deprived him of a fair trial, not merely that a separate trial might have offered him a better chance of acquittal. We consider the evidence as it was available to the trial court at the time of the ruling, and as it was developed at trial. When a defendant commits multiple, similar crimes, they may be joined and charged in one Information. 22 O.S.2011, § 436; Collins v. State, 2009 OK CR 32, I 14, 223 P.3d 1014, 1017; Glass, 1985 OK CR 65, I 9, 701 P.2d at 768. The transactions must refer to similar offenses, occurring over a relatively short period of time in approximately the same place, with overlapping proof showing a common scheme or plan. Transaction is a word of flexible meaning. It may comprehend a series of many occurrences, depending not so much upon the immediateness of their connection as upon their logical relationship. The transactions must overlap because joinder is essentially designed to promote judicial economy by trying similar crimes together, conserving judicial resources. Turning to the four factors, we first consider the similarities between the offenses charged. Appellant argues this factor is not satisfied because the only common factor was the use of a firearm. Were that the case we might agree. However, it is not. First and most important, Appellant used the same gun to shoot two separate victims in the head, one fatally. In both crimes, he used his clothing to mask his face. Both crimes were committed at night. These crimes were similar enough to support joinder of the offenses. Appellant claims the temporal and geographic separation of the two crimes fail the requirements of proximity. We have held that a relatively short period of time includes crimes committed within four to eight months of one another. The offenses need not be part of a continuous transaction or crime spree. The twenty-three days separating these two similar crimes was well within the limits of temporal proximity. As Appellant admits, proximity in location may include crimes committed as much as five miles apart, or within the same county. These crimes were each committed close to N.W. 63rd Street, within eight miles of one another in Oklahoma City, a city whose limits span 620 square miles. This geographical proximity is sufficient.

Finally, Appellant claims the proof of each transaction did not overlap to show a common scheme or plan. Appellant claimed below that he shot Lenoir in self-defense, and he told police that he did not acquire the murder weapon until after the convenience store robbery and murder. Based on this, he argues, there were no connections between the crimes; because one was based on weaker evidence than the other, he says, joinder increased the likelihood that he would be convicted of both. The record does not support a finding of great disparity in the evidence underlying the joined crimes. For purposes of joinder, this factor requires a connection between the crimes, so that proof of one is relevant to prove the other. Overall, the transactions here had a logical relationship. Given the overlapping evidence, judicial economy favored joinder. All four Glass factors here support the trial court’s decision. Evidence of the shooting would have been admissible as other crimes evidence, to show identity, in a separate trial for the murder charge. We note that beyond claiming that joinder allowed a weak case to be supported by a stronger case, Appellant fails to show prejudice. Appellant also recasts this as a due process claim, using the same general arguments, with the same result. Appellant’s due process rights were not violated by joinder of the cases. The trial court did not abuse its discretion in allowing the State to join the cases for prosecution. This proposition is denied.

In Proposition II Appellant claims the trial court erred in excluding evidence that a third party committed the murder alleged in CF-2013-5582. A defendant must have a meaningful opportunity to present a complete defense. This includes presenting evidence tending to connect a third party perpetrator with the crime charged. Evidence that merely casts a bare suspicion on a third party is inadmissible. There must be some quantum of evidence, which is more than mere suspicion and innuendo, that connects the third party to the commission of the crime. Moreover, that evidence must be admissible under evidentiary and procedural rules. We review this decision for an abuse of discretion. Appellant argues that another man, Michael Devereaux, was originally arrested for Hajimirzaei’s murder, and he should have been able to present evidence that he actually committed the crime. Appellant argues that Devereaux resembled the shooter on the surveillance video, had allegedly said he was worried he would be arrested for a homicide, was initially arrested for this homicide, and his alibi was never confirmed. Appellant argues this is sufficient to support the quantum of evidence described in Summers. The record does not support this claim. In Summers, the appellant wanted to present direct testimony from a third party who claimed he committed the crime, and that another party told him details of that party’s involvement which showed the appellant’s innocence. This Court found that, given the circumstantial nature of the evidence, and despite the third party’s unreliability, Summers should have been allowed to present the testimony. There is no comparable testimony here. First, not all the evidence Appellant sought to admit was admissible. Defense counsel made an offer of proof that he intended to call Detective Hurst to testify that a woman, Mundy, told him that her sister was afraid because the sister’s boyfriend (Devereaux) had told the sister he was afraid he would be arrested because he killed a convenience store clerk (the record shows that, when contacted by police, the girlfriend denied this). Hearsay is any statement, other than one made by the declarant while testifying, offered to prove the truth of the matter asserted. Here, Appellant’s proposed witness would be testifying to second or third-hand hearsay, in order to prove its truth. Hearsay within hearsay may be admissible, if each part of the statement is covered by an exception to the hearsay rule. However, Appellant makes no effort to show any of the statements came within a hearsay exception. This evidence would clearly not be admissible. Appellant argues that the Summers quantum of evidence standard was met by evidence that Devereaux resembled the shooter on the surveillance video, and that he had initially been arrested for the crime. The record shows that, although hearsay evidence suggested Devereaux resembled the shooter in the video, when detectives themselves compared him with the picture they determined that he was several inches shorter than the shooter, and that, while Devereaux had a tattooed hand, the shooter did not have tattooed hands visible in the video. That is, the actual evidence did not show that Devereaux resembled the shooter on the surveillance video. Appellant argues that Devereaux’s alibi was never fully confirmed, because police never looked at surveillance video from the movie theater. However, police confirmed the time and name of the movie Devereaux said he attended. By that time, police had already seen the video and eliminated Devereaux as a primary suspect, and there was no reason to further confirm his alibi. This leaves the fact of Devereaux’s arrest for the crime. We decline Appellant’s invitation to rule that every arrest and detention for a crime meets the Summers quantum of evidence standard. The record shows Devereaux was arrested primarily on information provided by persons unconnected with this crime, who may or may not have had their own reasons for contacting police. Further investigation dispelled suspicion that Devereaux killed Hajimirzaei. Under these circumstances, the mere fact that Devereaux had initially been arrested for the crime does not constitute a quantum of evidence tending to connect him to the crime. This proposition is denied.

In Proposition III Appellant claims the prosecutor improperly elicited victim impact evidence in the guilt/innocence stage of trial, affecting his conviction and sentence for assault and battery with a deadly weapon in Case No. CF-2013-5809. Without objection, the prosecutor asked victim Lenoir questions about the physical, mental and emotional impact of the shooting and about his medical prognosis; the prosecutor then used that evidence in closing argument to describe the effect on Lenoir in both the guilt/innocence stage and as a factor to consider in determining punishment in the third (noncapital) stage. Because Appellant did not object we review the claim for plain error. There is no plain error, because this was not victim impact evidence. Appellant cites the definition for victim impact evidence given in the Oklahoma Victim’s Rights Act. However, that Act clearly states that the definition applies to evidence offered from victims in formal sentencing proceedings, in presentence investigations, or during consideration for release on parole. The mere fact that evidence may be admissible under some circumstances as victim impact evidence does not mean it will never be admissible in a trial as relevant evidence for purposes other than sentencing considerations. Relevant evidence is that which tends to make more or less likely the existence of a fact of consequence to determination of the proceedings. Lenoir testified both as a victim and the only eyewitness to the crime. A prosecutor may explore a witness’s condition resulting from a crime where that condition has affected the witness’s ability to testify. Here, Lenoir suffered a traumatic brain injury as a result of the shot. He had a stroke and the left side of his body was paralyzed. His memory of the assault was affected, and returned over the course of several months. His mental condition caused him eventually to suspect Ms. Horton of involvement in the shooting, and to testify to that suspicion. Exploiting this testimony, defense counsel also questioned Lenoir about his memory loss, paranoia and delusions resulting from his injuries. The testimony was relevant to explain Lenoir’s behavior as a witness to jurors and to assist them in determining his credibility. Thus, Appellant is mistaken in arguing that the State merely circumvented the trial order set out in Perryman v. State, 1999 OK CR 39, I 14, 990 P.2d 900, 905. In fact, that order was followed in Appellant’s case. Jurors did not hear evidence supporting the capital punishment charge in the third stage. Regarding the use of this evidence in closing arguments, parties have wide latitude to argue the evidence and its inferences, and we will not grant relief unless improper argument affects the fairness of the trial. During the third stage, discussing punishment for the assault and battery against Lenoir, the prosecutor used the evidence of his condition at the time he testified, as well as evidence of the physical, mental, and financial effects the attack had on him, to argue for greater punishment. The argument regarding Lenoir’s physical and mental state was appropriate. Urging jurors to consider the financial effect of the crime on Lenoir may have gone beyond the scope of the evidence’s proper use. However, Appellant fails to show prejudice from this argument. This proposition is denied.

In Proposition IV Appellant argues that the State failed to prove he did not act in self-defense when attacking Lenoir, again referring to his conviction for assault and battery with a deadly weapon in Case No. CF-2013-5809. To support a claim of self-defense, Appellant must show that he attacked the victim while attempting to prevent an offense against himself, and that the force he used was no more than that sufficient to prevent the offense. Once a defendant presents enough evidence to raise the claim of self-defense, the State must disprove it beyond a reasonable doubt. Appellant told police that Lenoir shot first, and he returned fire in self-defense. The jury was properly instructed on self-defense and the State’s burden. Taking the evidence in the light most favorable to the State, we consider whether any rational trier of fact could find beyond a reasonable doubt that Appellant did not act in self-defense. To take the evidence in the light most favorable to the State, we must presume that the trier of fact resolved any conflicts in the evidence in favor of the prosecution. As jurors here were properly instructed, aggressors in a situation may not invoke self-defense. A person who voluntarily enters a situation while armed with a deadly weapon is an aggressor, as is a person who, by his wrongful act, provokes a conflict. Evidence showed Appellant was angry at Lenoir, and was armed when he went to Lenoir’s house. Although Appellant told police Lenoir wanted to buy Xanax from him, there was no Xanax found either on Appellant, in his car, or at the crime scene. Before reaching the house Appellant called Lenoir, and texted asking if he was up, because Appellant wanted to talk to him. During the shooting Appellant wrapped his shirt around his face, obscuring it. Appellant took care not to park at Lenoir’s house. Jurors could have found from this evidence alone that Appellant was the aggressor, and thus not entitled to claim self-defense. The other evidence at trial was conflicting. Lenoir testified that he was armed because he didn’t know who was at the door so early in the morning. He recalled grabbing a gun but did not remember shooting it; when he was told Appellant had a gunshot wound he said he thought Appellant shot first. Lenoir also remembered laying on the garage floor and being shot at point-blank range in the head. Appellant was injured in the inside right calf, close to the front of his leg. The record does not support Appellant’s suggestion that the location of the wound showed he was running away when he was shot. The bullet fragment recovered from the wound could, as the State argued, have resulted from a ricochet. When interviewed by police, Appellant initially denied all knowledge of the crime and thought his leg injury occurred when he was pulled from his car at the conclusion of the chase. Then, he said that when he saw Lenoir was armed, he went around the corner, masked his face, returned to the garage, and shot at Lenoir. Later, Appellant said that he started to run, Lenoir shot him, and he returned fire. Afterwards, of course, rather than immediately flee or call police, Appellant threatened Horton with the gun. The jury heard this evidence, and this Court will not substitute its judgment for that of the jury’s. Taking the evidence in the light most favorable to the State, any rational trier of fact could find beyond a reasonable doubt that Appellant did not act in self-defense. This proposition is denied.

In Proposition V Appellant claims that the accumulation of error denied him a fair trial. We found no error in the preceding propositions. Where there is no error, there is no accumulated error. This proposition is denied.

DECISION
The Judgment and Sentence of the District Court of Oklahoma County 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.

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Footnotes:

1. 1 The State filed a Bill of Particulars as to this charge.
2. 2 Appellant does not contest the joinder of the case charging escape and resisting arrest.
3. 3 We reject the State's assertion that evidence of the assault and battery would have been admitted as part of the res gestae of the murder.
4. 4 In a sealed ex parte order, on February 23, 2017 the trial court granted Appellant's request for a subpoena for surveillance video from the movie theater at the relevant time. After this order was entered, defense counsel never presented evidence to the trial court suggesting that the alibi could not be confirmed, and has not attempted to do so on appeal.
5. 5 In stage two jurors determined guilt and punishment on the charge of possession of a firearm by a convicted felon. In the third stage of this trial, jurors determined punishment for the convictions of assault and battery with a deadly weapon, concealing stolen property, pointing a firearm, escape from custody, and resisting arrest, all after prior conviction of a felony. Stage four was the capital punishment phase on the first degree murder charge.
6. 6 Presumably because this case involves use of deadly force, the State suggests we review this claim using 21 O.S.2011, § 733. However, § 733 describes justifiable homicide. As there was no homicide committed, the appropriate statute is § 643.

Oklahoma Statutes citations:

• Okla. Stat. tit. 22 § 436 (2011) - Joinder of offenses
• Okla. Stat. tit. 12 § 2801(A)(3) (2011) - Definition of hearsay
• Okla. Stat. tit. 12 § 2401 (2011) - Relevant evidence
• Okla. Stat. tit. 21 § 643(3) (2011) - Justification for use of force
• Okla. Stat. tit. 21 § 733 (2011) - Justifiable homicide
• Okla. Stat. tit. 21 § 142A-8 (2011) - Definition of victim impact evidence
• Okla. Stat. tit. 21 § 142A-1(8) (Supp. 2014) - Victim's Rights Act

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:

No case citations found.