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F-2017-68

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Jonathan D. McKee v State Of Oklahoma

F-2017-68

Filed: May 30, 2019

Not for publication

Prevailing Party: State of Oklahoma

Summary

Jonathan D. McKee appealed his conviction for Child Abuse. Conviction and sentence: 15 years imprisonment. Judge Kuehn dissented. In this case, McKee was found guilty of harming a child and got a sentence of 15 years. He argued that the evidence against him wasn't strong enough, that he had an unfair trial, and that other mistakes happened in court. However, the court reviewed everything carefully and decided that his trial was fair and that there was enough evidence to support his conviction. They affirmed the decision to keep his conviction and sentence.

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.

Issues

  • Was there insufficient evidence presented to convict the appellant of child abuse?
  • Did multiple erroneous evidentiary rulings prejudice the accused, resulting in a fundamentally unfair trial?
  • Was the appellant deprived of his right to a fair trial judge in violation of due process?
  • Did the accumulation of errors at trial result in a fundamentally unfair adjudicatory proceeding in violation of the appellant's rights under the Fourteenth Amendment to the United States Constitution and Article II, Section 7 of the Oklahoma Constitution?

Findings

  • the court did not err; sufficient evidence was presented to convict
  • the trial court did not commit prejudicial error with evidentiary rulings
  • the trial court did not abuse its discretion regarding the denial of a new trial
  • the cumulative error argument has no merit

F-2017-68

May 30, 2019

Jonathan D. McKee

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

Appellant, Jonathan D. McKee, was tried and convicted at a jury trial in Oklahoma County District Court, Case No. CF-2015-6417, of Child Abuse, in violation of 21 O.S.Supp.2014, § 843.5. The jury recommended a sentence of fifteen (15) years imprisonment. 1 The Honorable Michele D. McElwee, District Judge, presided at trial and sentenced Appellant in accordance with the jury’s verdict. McKee now appeals, raising four (4) propositions of error before this Court:

I. THE STATE PRESENTED INSUFFICIENT EVIDENCE TO CONVICT; 1 McKee is required to serve not less than eighty-five percent (85%) of this sentence before becoming eligible for consideration of parole. 21 O.S.Supp.2015, § 13.1(14).

II. MULTIPLE ERRONEOUS EVIDENTIARY RULINGS PREJUDICED THE ACCUSED RESULTING IN A FUNDAMENTALLY UNFAIR TRIAL;

III. APPELLANT WAS DEPRIVED OF HIS RIGHT TO A FAIR TRIAL JUDGE IN VIOLATION OF DUE PROCESS; and

IV. THE ACCUMULATION OF ERRORS AT TRIAL RESULTED IN A FUNDAMENTALLY UNFAIR ADJUDICIATORY PROCEEDING IN VIOLATION OF THE RIGHTS OF APPELLANT UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE II, SECTION 7 OF THE OKLAHOMA CONSTITUTION.

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. Taken in the light most favorable to the State, sufficient evidence was presented at trial to allow any rational trier of fact to conclude that Appellant inflicted the injuries to C.M. observed by the doctors at Children’s Medical Center on August 1, 2015. The prosecution’s medical experts countered the testimony of the defense experts and provided a plausible evidentiary basis for the jury to find that the victim suffered non-accidental abuse at the hands of Appellant. This testimony, along with the non-medical evidence presented, allowed the jury to reject the defense experts’ 2 alternative theories and convict Appellant of Child Abuse as charged by the State. There was nothing irrational about the jury’s verdict in this case. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Davis v. State, 2011 OK CR 29, I 74, 268 P.3d 86, 111; Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-04. Proposition I is denied.

Proposition II. Appellant alleges the trial court committed error in admitting evidence that Appellant and his family refused to speak with authorities and medical staff at the hospital without first consulting with counsel; evidence of drug paraphernalia in the victim’s home; and so-called evidentiary harpoons made by prosecution witness London Wooldridge. We review Appellant’s first sub-claim for plain error because Appellant either failed to register contemporaneous objections to the challenged testimony or made a different objection below. Mitchell U. State, 2016 OK CR 21, I 29, 387 P.3d 934, 945; Pullen v. State, 2016 OK CR 18, I 4, 387 P.3d 922, 925. To be entitled to relief under the plain error doctrine, Appellant must show the existence of an actual error (i.e., deviation from a legal rule), that is plain or obvious, and that affects his substantial rights, meaning the error affected the 3 outcome of the proceeding. Musonda v. State, 2019 OK CR 1, I 6, P.3d_. . If these elements are met, this Court will correct plain error only if the error seriously affects the fairness, integrity or public reputation of the judicial proceedings or otherwise represents a miscarriage of justice. Id.; 20 O.S.2011, § 3001.1.

The Fifth Amendment provides, in relevant part, that no person shall be compelled in any criminal case to be a witness against himself. U.S. Const. amend. V (emphasis added). The privilege against self-incrimination protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature[.] Schmerber U. California, 384 U.S. 757, 761, 86 S. Ct. 1826, 1830, 16 L. Ed. 2d 908 (1966) (emphasis added). This prohibition applies not only to a defendant in a criminal trial but also privileges [one] not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings. Minnesota U. Murphy, 465 U.S. 420, 426, 104 S. Ct. 1136, 1141, 79 L. Ed. 2d 409 (1984) (quoting Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S. Ct. 316, 322, 38 L. Ed. 2d 274 (1973)). The Fifth Amendment privilege against compulsory self- 4 incrimination has been applied against the States by virtue of the Fourteenth Amendment. Michigan U. Tucker, 417 U.S. 433, 440, 94 S. Ct. 2357, 2362, 41 L. Ed. 2d 182 (1974).

In the present case, Appellant unquestionably invoked his Fifth Amendment privilege against self-incrimination by refusing to speak with authorities outside the presence of his attorney. Salinas v. Texas, 570 U.S. 178, 184, 133 S. Ct. 2174, 2179, 186 L. Ed. 2d 376 (2013); Quinn U. United States, 349 U.S. 155, 164, 75 S. Ct. 668, 674, 99 L. Ed. 2d 964 (1955). There is also no question that the State used Appellant’s refusal to speak with authorities at the hospital as substantive evidence tending to show consciousness of guilt. However, this was part of a broad array of post-offense conduct by Appellant and his family presented by the State to circumstantially establish his guilt. This particular evidence was offered to show Appellant’s and his family’s disregard for the plight of the victim, their hostility to the medical staff and their overall lack of helpfulness after the true nature of the victim’s injuries was revealed. This evidence was relevant to the State’s case and was not unfairly prejudicial. 12 O.S.2011, §§ 2401-2403.

The Supreme Court has recognized that evidence of the assertion of a constitutional right does not constitute a penalty in all instances. Prosecutorial comments which do not treat the defendant’s assertion of the privilege against self-incrimination as substantive evidence of guilt but, instead, are used to respond to a defendant’s argument at trial or for other purposes, are permissible. See United States U. Robinson, 485 U.S. 25, 33-34, 108 S. Ct. 864, 869-70, 99 L. Ed. 2d 23 (1988). Appellant’s case is distinguishable from Griffin U. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965), which held that a prosecutor may not tender[ ] to the jury for its consideration the failure of the accused to testify as substantive evidence of guilt. Id., 380 U.S. at 613, 85 S. Ct. at 1232. [T]he Fifth Amendment forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt. Id., 380 U.S. at 615, 85 S. Ct. at 1233. In Appellant’s case, the prosecutor did not reference in his closing arguments Appellant’s failure to testify-the focus of Griffin. See Robinson, 485 U.S. at 32, 108 S. Ct. at 868-69 (Griffin addressed prosecutorial comment which baldly stated to the jury that the defendant must have known what the disputed facts were, but that he had refused to take the stand to deny or explain them.).

We observe too the total absence of government compelled self- incrimination in this case. The touchstone of the Fifth Amendment is compulsion. Lefkowitz v. Cunningham, 431 U.S. 801, 806, 97 S. Ct. 2132, 2136, 53 L. Ed. 2d 1 (1977). The Supreme Court has reaffirmed the need for showing overbearing compulsion as a prerequisite to a Fifth Amendment violation. United States v. Washington, 431 U.S. 181, 190, 97 S. Ct. 1814, 1820, 52 L. Ed. 2d 238 (1977). Non-custodial prearrest questioning by law enforcement agents as part of a criminal investigation which generate incriminating responses, standing alone, is insufficient to demonstrate the type of compelled self-crimination implicating the Fifth Amendment privilege. See Washington, 431 U.S. at 190, 97 S. Ct. at 1820; Beckwith U. United States, 425 U.S. 341, 347-48, 96 S. Ct. 1612, 1617, 48 L. Ed. 2d 1 (1976). Prior to custody or arrest here, the State made no effort to compel Appellant to speak; he was free to act as he pleased. There was no coercion of any kind. Thus, there was no Fifth Amendment violation through the introduction of his statements to 7 the police and DHS investigator. Beckwith, 425 U.S. at 348, 98 S. Ct. at 1617.

To the extent Appellant challenges the testimony of Dr. Brown and nurse Legrand, there is no constitutional violation. They were private actors and not agents of the State. They were not bound by the Appellant’s privilege against self-incrimination to the extent their testimony related to Appellant’s statements. They also do not threaten the type of government compelled self-incrimination addressed by the Fifth Amendment. There is no actual or obvious error and, thus, there is no plain error.

The remaining two sub-claims in this proposition of error were preserved below for our review. The evidence relating to drug paraphernalia found in the home Appellant shared with his wife and the victim was relevant to show the environment in which the victim lived and became symptomatic, in the early morning hours of August 1st. The drug paraphernalia evidence helped illustrate the total family dynamic surrounding C.M.’s 28-day life up to that point. This evidence also helped corroborate London Wooldridge’s testimony and allowed the jury to more fully assess the credibility of Appellant’s memory of events the next day. This evidence was relevant and its probative value did not outweigh the danger of unfair prejudice. The 8 trial court did not abuse its discretion in admitting the testimony. Pullen, 2016 OK CR 18, I 4, 387 P.3d at 925 (reviewing evidentiary rulings for abuse of discretion).

Finally, the record does not show that Wooldridge did anything other than directly answer the questions put to him by the prosecutor. Because Wooldridge’s answers were in direct response to the questions posed by the prosecutor, there was no evidentiary harpoon. Womble U. State, 1983 OK CR 64, I 6, 663 P.2d 747, 749. Proposition II is denied.

Proposition III. The trial court did not abuse its discretion in denying Appellant’s motion for new trial alleging judicial bias which was filed roughly six (6) weeks after formal sentencing. The evidence now relied upon by Appellant was in the public domain well before trial. This is wholly insufficient to establish due diligence on Appellant’s part with respect to this motion. Appellant failed to meet his burden of showing that the newly discovered evidence here could not have been procured before trial by the exercise of due diligence of counsel. 22 O.S.2011, §§ 952-953; Underwood v. State, 2011 OK CR 12, I 97, 252 P.3d 221, 256; Spence U. State, 2008 OK CR 4, 9 8, 9 177 P.3d 582, 584; Ellis v. State, 1992 OK CR 45, I 50, 867 P.2d 1289, 1303; Yell v. State, 1985 OK CR 3, I 7, 694 P.2d 946, 948.

To the extent Appellant attempts to make out a judicial bias claim based solely upon the record of his trial, our review is limited to plain error because of his failure to raise this claim before or during trial. Alexander U. State, 2002 OK CR 23, I 18, 48 P.3d 110, 114. Nonetheless, [i]t is axiomatic that ‘[a] fair trial in a fair tribunal is a basic requirement of due process. Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 876, 129 S. Ct. 2252, 2259, 173 L. Ed. 2d 1208 (2009) (quoting In re Murchison, 349 U.S. 133, 136, 75 S. Ct. 623, 625, 99 L. Ed. 942 (1955)). Additionally, [t]he Oklahoma Constitution guarantees a defendant a right to a fair, impartial trial not tainted by the personal bias or prejudice of the trial court. Welch v. State, 2000 OK CR 8, I 37, 2 P.3d 356, 372 (quoting Fitzgerald v. State, 1998 OK CR 68, I 10, 972 P.2d 1157, 1163); Okla. Const. art. 2, § 6. Suffice it to say that a criminal defendant is always entitled to a trial that is, in fact, fairly conducted. Mitchell v. State, 2006 OK CR 20, I 87, 136 P.3d 671, 706. Indeed, the right to an impartial judge is so fundamental to due process that its denial is not subject to harmless error review. Arizona v. Fulminante, 499 10 U.S. 279, 309-10, 111 S. Ct. 1246, 1265, 113 L. Ed. 2d 302 (1991).

We recognize a general presumption of impartiality on the part of trial judges as to matters before them. Carter v. State, 1994 OK CR 49, IT 13, 879 P.2d 1234, 1242. In making a claim of bias, a defendant must demonstrate some prejudice which denied him due process or fundamental fairness. Id. Appellant fails to overcome the presumption of impartiality concerning the trial court’s actions here. To the extent that Appellant cites various evidentiary rulings by the Court in alleging bias, he fails to show prejudice. The Supreme Court has made clear that judicial rulings alone almost never constitute a valid basis for a bias or partiality motion. Liteky v. United States, 510 U.S. 540, 555, 114 S. Ct. 1147, 1157, 127 L. Ed. 2d 474 (1994). None of the grounds Appellant asserts overcome the general presumption of impartiality, let alone demonstrates judicial bias. This is not a case where the trial judge was previously involved in Appellant’s case. Indeed, the record refutes this assertion. The record does not reveal actual bias. Nor was there an appearance of impartiality based upon the trial court’s conduct of this trial. There is no actual or obvious error 11 apparent on this record and, thus, no plain error. Proposition III is denied.

Proposition IV. We have held that a cumulative error argument has no merit when the Court fails to sustain any of the other errors raised by Appellant. Bivens U. State, 2018 OK CR 33, I 35, 431 P.3d 985, 996. Such is the case here. Proposition IV 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.

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Footnotes:

  1. 21 O.S.Supp.2014, § 843.5
  2. 21 O.S.Supp.2015, § 13.1(14)
  3. 20 O.S.2011, § 3001.1
  4. 12 O.S.2011, §§ 2401-2403
  5. 22 O.S.2011, §§ 952-953
  6. Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868 (2009)
  7. Okla. Const. art. 2, § 6
  8. Jackson v. Virginia, 443 U.S. 307 (1979)
  9. Davis v. State, 2011 OK CR 29
  10. Spuehler v. State, 1985 OK CR 132
  11. Mitchell U. State, 2016 OK CR 21
  12. Pullen v. State, 2016 OK CR 18
  13. Musonda v. State, 2019 OK CR 1
  14. Schmerber U. California, 384 U.S. 757 (1966)
  15. Minnesota U. Murphy, 465 U.S. 420 (1984)
  16. Lefkowitz v. Turley, 414 U.S. 70 (1973)
  17. Michigan U. Tucker, 417 U.S. 433 (1974)
  18. Salinas v. Texas, 570 U.S. 178 (2013)
  19. Quinn U. United States, 349 U.S. 155 (1955)
  20. United States U. Robinson, 485 U.S. 25 (1988)
  21. Griffin U. California, 380 U.S. 609 (1965)
  22. Lefkowitz v. Cunningham, 431 U.S. 801 (1977)
  23. United States v. Washington, 431 U.S. 181 (1977)
  24. Beckwith U. United States, 425 U.S. 341 (1976)
  25. Womble U. State, 1983 OK CR 64
  26. A.R.S. § 2403
  27. Minnesota v. Murphy, 465 U.S. 420
  28. Miranda v. Arizona, 384 U.S. 436 (1966)
  29. Fletcher v. Weir, 455 U.S. 603 (1982)
  30. Jenkins v. Anderson, 447 U.S. 231 (1980)
  31. United States v. McCann, 366 F.3d 46 (1st Cir. 2004)
  32. United States U. Rivera, 944 F.2d 1563 (11th Cir. 1991)
  33. Bobby U. Dixon, 565 U.S. 23 (2011)
  34. Farley v. State, 1986 OK CR 42

Oklahoma Statutes citations:

  • Okla. Stat. tit. 21 § 843.5 (2014) - Child Abuse
  • Okla. Stat. tit. 21 § 13.1 (2015) - Parole Eligibility
  • Okla. Stat. tit. 20 § 3001.1 (2011) - Plain Error Doctrine
  • Okla. Stat. tit. 12 § 2401-2403 (2011) - General Rules of Relevant Evidence
  • Okla. Stat. tit. 22 § 952-953 (2011) - New Trial Based on Newly Discovered Evidence
  • Okla. Stat. tit. 22 § 18 (2019) - Rule for Appeals

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

  • U.S. Const. amend. V - Fifth Amendment, Privilege Against Self-Incrimination
  • U.S. Const. amend. XIV - Fourteenth Amendment, Due Process

Other citations:

No other rule citations found.

Case citations:

  • Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979)
  • Davis v. State, 2011 OK CR 29, I 74, 268 P.3d 86, 111
  • Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-04
  • Mitchell U. State, 2016 OK CR 21, I 29, 387 P.3d 934, 945
  • Pullen v. State, 2016 OK CR 18, I 4, 387 P.3d 922, 925
  • Musonda v. State, 2019 OK CR 1, I 6, P.3d _
  • Womble U. State, 1983 OK CR 64, I 6, 663 P.2d 747, 749
  • Underwood v. State, 2011 OK CR 12, I 97, 252 P.3d 221, 256
  • Spence U. State, 2008 OK CR 4, 9 8, 9 177 P.3d 582, 584
  • Ellis v. State, 1992 OK CR 45, I 50, 867 P.2d 1289, 1303
  • Yell v. State, 1985 OK CR 3, I 7, 694 P.2d 946, 948
  • Alexander U. State, 2002 OK CR 23, I 18, 48 P.3d 110, 114
  • Bivens U. State, 2018 OK CR 33, I 35, 431 P.3d 985, 996
  • Salinas v. Texas, 570 U.S. 178, 184, 133 S. Ct. 2174, 2179, 186 L. Ed. 2d 376 (2013)
  • Quinn U. United States, 349 U.S. 155, 164, 75 S. Ct. 668, 674, 99 L. Ed. 2d 964 (1955)
  • Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S. Ct. 316, 322, 38 L. Ed. 2d 274 (1973)
  • Michigan U. Tucker, 417 U.S. 433, 440, 94 S. Ct. 2357, 2362, 41 L. Ed. 2d 182 (1974)
  • Beckwith U. United States, 425 U.S. 341, 347-48, 96 S. Ct. 1612, 1617, 48 L. Ed. 2d 1 (1976)
  • Carter v. State, 1994 OK CR 49, IT 13, 879 P.2d 1234, 1242
  • Liteky v. United States, 510 U.S. 540, 555, 114 S. Ct. 1147, 1157, 127 L. Ed. 2d 474 (1994)
  • Arizona v. Fulminante, 499 U.S. 279, 309-10, 111 S. Ct. 1246, 1265, 113 L. Ed. 2d 302 (1991)
  • Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 876, 129 S. Ct. 2252, 2259, 173 L. Ed. 2d 1208 (2009)
  • Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982)
  • Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980)
  • Farley v. State, 1986 OK CR 42, 717 P.2d 111

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