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F-2017-769

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Tyrees Dotson v State Of Oklahoma

F-2017-769

Filed: Jun. 6, 2019

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Tyrees Dotson appealed his conviction for Murder in the Second Degree. His conviction and sentence were for thirty years in prison. Judge Henderson dissented.

Decision

The Judgment and Sentence of the District Court is AFFIRMED. This matter is REMANDED to the District Court with instructions to enter an order nunc pro tunc correcting the Judgment and Sentence document in conformity with this opinion. 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 improper ruling by the trial court regarding the unavailability of the State's primary eyewitness and the use of his preliminary hearing testimony?
  • Did the admission of prejudicial and cumulative evidence, as well as improper bolstering, deny Appellant a fundamentally fair trial?
  • Did the admission of multiple pre-mortem photographs of the victim violate Appellant's due process rights and compromise the fairness of the trial?
  • Did the State's use of peremptory challenges to remove minority jurors violate Appellant's rights under Batson v. Kentucky and the Equal Protection Clause?
  • Did Appellant's trial counsel provide ineffective assistance in violation of his constitutional rights?
  • Did the accumulation of errors deprive Appellant of a fair proceeding?

Findings

  • the court did not err in allowing the State to read the preliminary hearing testimony of the unavailable witness
  • the court did not err in permitting the live testimony of the witness after his preliminary testimony was read
  • the admission of pre-mortem photographs did not violate Appellant's due process rights
  • there was no violation of Appellant's rights under Batson v. Kentucky regarding the peremptory challenges used against minority jurors
  • Appellant's claim of ineffective assistance of counsel was denied due to failure to show deficient performance and prejudice
  • the cumulative error argument was denied, but a clerical error in the judgment was identified for correction

F-2017-769

Jun. 6, 2019

Tyrees Dotson

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

HUDSON, JUDGE: Appellant, Tyrees Dotson, was convicted at a jury trial in Oklahoma County District Court, Case No. CF-2015-3942, of Murder in the Second Degree, in violation of 21 O.S.2011, § 701.8.¹ The jury recommended punishment of thirty (30) years imprisonment. The Honorable Timothy R. Henderson, District Judge, presided at trial and sentenced Dotson in accordance with the jury’s verdict.² Judge Henderson ordered this sentence to run consecutively with Appellant’s sentence in Oklahoma County District Court Case No. CF-2009-5977. Judge Henderson also imposed various costs and fees and ordered credit for time served.

Dotson now appeals, raising six (6) propositions of error before this Court:

I. APPELLANT WAS UNFAIRLY PREJUDICED WHEN THE TRIAL COURT IMPROPERLY RULED THE STATE’S PRIMARY EYEWITNESS WAS UNAVAILABLE FOR TRIAL AND PERMITTED THE STATE TO READ HIS PRELIMINARY HEARING TESTIMONY TO THE JURY;

II. APPELLANT WAS DENIED A FUNDAMENTALLY FAIR TRIAL BY THE ADMISSION OF PREJUDICIAL AND CUMULATIVE EVIDENCE, AS WELL AS IMPROPER BOLSTERING;

III. THE ADMISSION OF MORE THAN ONE PRE-MORTEM PHOTOGRAPH OF THE VICTIM VIOLATED APPELLANT’S DUE PROCESS RIGHTS TO A FUNDAMENTALLY FAIR TRIAL AND INJECTED PASSION AND PREJUDICE, AND OTHER ARBITRARY FACTORS AND IRRELEVANT FACTORS INTO THIS TRIAL;

IV. THE STATE’S USE OF PEREMPTORY CHALLENGES TO REMOVE MINORITY JURORS VIOLATED APPELLANT’S RIGHTS UNDER BATSON V. KENTUCKY, ET. AL., AND UNDER THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT;

V. APPELLANT’S TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS; and

VI. THE ACCUMULATION OF ERRORS DEPRIVED APPELLANT OF A FAIR PROCEEDING.

² 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. Because Appellant raised a timely objection to the use of Frantz Johnson’s preliminary hearing testimony at trial, our review of this issue is for abuse of discretion. Willis v. State, 2017 OK CR 23, ¶ 13, 406 P.3d 30, 34. An abuse of discretion is a conclusion or judgment that is clearly against the logic and effect of the facts presented. Id. A criminal defendant has a Sixth Amendment right to cross-examine trial witnesses. The use of preliminary hearing testimony in a criminal trial is considered testimonial hearsay subject to two fundamental Sixth Amendment requirements: 1) the witness must be unavailable; and 2) the defendant must have had a prior opportunity to cross-examine the witness. Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 1374, 158 L. Ed. 2d 177 (2004); Tryon v. State, 2018 OK CR 20, ¶ 39, 423 P.3d 617, 632; Willis, 2017 OK CR 23, ¶ 14, 406 P.3d at 34. Title 12 O.S.Supp.2014, § 2804 governs the use at trial of prior testimony of a witness and embodies these dual requirements.

³ Appellant challenges on appeal only the trial court’s determination that Johnson was an unavailable witness. Review of the record, however, shows no abuse of discretion. Section 2804(A)(5) states in relevant part that a witness is unavailable who [i]s absent from the hearing and the proponent of the declarant’s statement has been unable to procure the declarant’s attendance[.] Id. We have construed Section 2804 to require a showing that the State exercised due diligence and good faith in trying to secure the absent witness’s testimony. Connell v. State, 1988 OK CR 234, ¶ 7, 763 P.2d 383, 385. The record supports the trial court’s finding that the State made a proper showing of unavailability and due diligence in attempting to locate Johnson. The prosecutor’s efforts to locate Johnson spanned a nearly three-week period and involved several officers who searched for the witness using various methods right up until the time of trial. To be sure, a finding of due diligence in this context requires more than simply the issuance of a subpoena for the witness with the words not found listed on the return. Lavicky v. State, 1981 OK CR 87, ¶ 16, 632 P.2d 1234, 1238. However, the State’s failure to exhaust every possible avenue for locating Johnson does not foreclose a finding that the State’s attempts to secure the witness were diligent and conducted in good faith. Mollett v. State, 1997 OK CR 28, ¶ 32, 939 P.2d 1, 10. There was no abuse of discretion based on the record detailing the State’s efforts in this case. Proposition I is denied.

Proposition II. After the State read Johnson’s testimony to the jury, he unexpectedly showed up at the courthouse on the third day of trial. Defense counsel agreed to the presentation of Johnson’s live testimony so she could cross-examine Johnson in front of the jury. Appellant now complains that the trial court abused its discretion in allowing Johnson to testify as a live witness. By failing to object to this testimony, Appellant has waived review on appeal of this issue for all but plain error. See Tryon, 2018 OK CR 20, ¶ 38, 423 P.3d at 632. To show plain error, Appellant must show an actual error, 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 v. State, 2018 OK CR 8, ¶ 40, 419 P.3d 283, 294.

⁵ Appellant fails to show actual or obvious error because he cannot profit from what amounts to invited error. Bramlett v. State, 2018 OK CR 19, ¶ 34, 422 P.3d 788, 799. We have repeatedly held that a defendant may not complain of an error he has invited and that reversal cannot be predicated upon such an error. See, e.g., Cuesta-Rodriguez v. State, 2010 OK CR 23, ¶ 73, 241 P.3d 214, 237; Lott v. State, 2004 OK CR 27, ¶ 103, 98 P.3d 318, 345. There is no actual or obvious error here and, thus, no plain error. Proposition II is denied.

Proposition III. There is no plain or obvious error from the admission of State’s Exhibits 1 and 112. Vanderpool v. State, 2018 OK CR 39, ¶ 37, 434 P.3d 318, 326 (failure to object to photographic exhibits waives review for all but plain error). State’s Exhibit 1 was relevant to show the relationship between the victim, Appellant, and Quon Young prior to the murder. It is notable too that defense counsel utilized State’s Exhibit 1 on cross-examination of Young to challenge the State’s theory of motive and to suggest that Young stabbed the victim. State’s Exhibit 112 was properly admitted pursuant to the language of 12 O.S.2011, § 2403 allowing the admission of a photograph showing the general appearance and condition of a criminal homicide victim while alive. Bench v. State, 2018 OK CR 31, 152-53, 431 P.3d 929, 969. Appellant was not deprived of a fundamentally fair trial in violation of due process from either of these photographs under these circumstances. The probative value of both photographs was not outweighed by their prejudicial effect. Appellant fails to show actual or obvious error from the admission of these two photographs. Thus, there is no plain error. Proposition III is denied.

Proposition IV. Appellant fails to show an equal protection violation under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986) from the prosecutor’s use of peremptory strikes against black jurors. See Day v. State, 2013 OK CR 8, ¶ 15, 303 P.3d 291, 299 (discussing three-step process for evaluating equal protection challenges based on alleged racial discrimination in the exercise of peremptory challenges). The prosecutor provided race-neutral reasons for all six of the peremptory strikes challenged by Appellant. See Frederick v. State, 2017 OK CR 12, ¶ 33, 400 P.3d 786, 804 (a prospective juror’s desire not to sit on a jury [is] a sufficient race-neutral rationale for excusal by peremptory challenge.); id., 2017 OK CR 12, ¶ 38, 400 P.3d at 805 (no discriminatory intent in the striking of a juror who expressed reservations about his or her ability to impose [sentence].); Day, 2013 OK CR 8, ¶ 16, 303 P.3d at 300 (Past criminal history, either of a panelist or of his relatives, is a race-neutral reason.); Brown v. State, 1998 OK CR 77, II 28-29, 989 P.2d 913, 923-24 (fact that a juror was sleeping during voir dire is a race-neutral reason). A neutral explanation in the context of this analysis means one based on something other than race of the juror. Smith v. State, 2007 OK CR 16, ¶ 12, 157 P.3d 1155, 1162. There is no discriminatory intent inherent in the various explanations given by the prosecutor. Thus, the reasons given are appropriately deemed race-neutral. Id. Judge Henderson’s finding that the prosecutor’s various explanations provided facially valid reasons not revealing an intent to discriminate on the basis of race is supported by the record. Because the State tendered race-neutral explanations for these six peremptory strikes, Appellant bears the burden of proving purposeful discrimination. Id., 2007 OK CR 16, ¶ 16, 157 P.3d at 1163. Appellant fails to meet this burden. The trial court chose to believe the prosecutor’s explanations and Appellant fails to cite any evidence in the record contradicting the court’s credibility determinations or otherwise establishing that the prosecutor had a history of purposeful discrimination against jurors on the basis of race. Indeed, Appellant fails to show that race was even an issue in the case. Id. All things considered, there was no abuse of discretion from the trial court’s rulings. Day, 2013 OK CR 8, ¶ 15, 303 P.3d at 299 (reviewing trial court’s ruling on Batson challenges for abuse of discretion). Proposition IV is denied.

Proposition V. To prevail on an ineffective assistance of counsel claim, Appellant must show both that counsel’s performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). See Harrington v. Richter, 562 U.S. 86, 104, 131 S. Ct. 770, 787-88, 178 L. Ed. 2d 624 (2011) (discussing Strickland, supra). Appellant fails to show deficient performance and prejudice with any of the three claims of ineffectiveness raised here. Proposition V is denied.

Proposition VI. We have found no error in the preceding propositions. This Court has held that a cumulative error argument has no merit when this Court fails to sustain any of the other errors raised by Appellant. Bivens v. State, 2018 OK CR 33, ¶ 35, 431 P.3d 985, 996. However, we find the existence of a scrivener’s error in the Judgment and Sentence document. Although the trial court ordered Appellant’s thirty-year sentence in this case to run consecutively with CF-2009-5977, the Judgment and Sentence reflects that Appellant’s thirty-year sentence is to run concurrently with CF-2009-5977. This obvious clerical error should be corrected by order nunc pro tunc. Neloms v. State, 2012 OK CR 7, ¶ 44, 274 P.3d 161, 172. Upon remand, the district court is directed to enter an order nunc pro tunc correcting the Judgment and Sentence document to accurately reflect that the thirty-year sentence imposed in this case runs consecutively with the sentence(s) imposed in CF-2009-5977. In all other respects, Proposition VI is denied.

DECISION

The Judgment and Sentence of the District Court is AFFIRMED. This matter is REMANDED to the District Court with instructions to enter an order nunc pro tunc correcting the Judgment and Sentence document in conformity with this opinion. 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.2011, § 701.8.
  2. 21 O.S.Supp.2015, § 13.1(2).
  3. 12 O.S.Supp.2014, § 2804.
  4. Willis U. State, 2017 OK CR 23, I 13, 406 P.3d 30, 34.
  5. Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 1374, 158 L. Ed. 2d 177 (2004).
  6. Tryon v. State, 2018 OK CR 20, I 39, 423 P.3d 617, 632.
  7. Connell U. State, 1988 OK CR 234, I 7, 763 P.2d 383, 385.
  8. Lavicky U. State, 1981 OK CR 87, I 16, 632 P.2d 1234, 1238.
  9. Mollett U. State, 1997 OK CR 28, I 32, 939 P.2d 1, 10.
  10. Vanderpool v. State, 2018 OK CR 39, I 37, 434 P.3d 318, 326.
  11. 12 O.S.2011, § 2403.
  12. Bench V. State, 2018 OK CR 31, 152-53, 431 P.3d 929, 969.
  13. Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).
  14. Day v. State, 2013 OK CR 8, I 15, 303 P.3d 291, 299.
  15. Frederick V. State, 2017 OK CR 12, I 33, 400 P.3d 786, 804.
  16. Brown v. State, 1998 OK CR 77, II 28-29, 989 P.2d 913, 923-24.
  17. Smith U. State, 2007 OK CR 16, I 12, 157 P.3d 1155, 1162.
  18. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984).
  19. Harrington U. Richter, 562 U.S. 86, 104, 131 S. Ct. 770, 787-88, 178 L. Ed. 2d 624 (2011).
  20. Bivens V. State, 2018 OK CR 33, I 35, 431 P.3d 985, 996.
  21. Neloms v. State, 2012 OK CR 7, I 44, 274 P.3d 161, 172.

Oklahoma Statutes citations:

  • Okla. Stat. tit. 21 § 701.8 (2011) - Murder in the Second Degree
  • Okla. Stat. tit. 21 § 13.1 (Supp. 2015) - Parole eligibility
  • Okla. Stat. tit. 12 § 2804 (Supp. 2014) - Hearsay exceptions; unavailable witnesses
  • Okla. Stat. tit. 12 § 2403 (2011) - Relevant evidence; exclusion of relevant evidence on grounds of prejudice
  • Okla. Stat. tit. 22 § 1089 (2014) - WAIVER OF RIGHT TO ATTORNEY
  • Okla. Stat. tit. 21 § 701.8 (2011) - Murder in the Second Degree
  • Okla. Stat. tit. 12 § 2804 (Supp. 2014) - Hearsay exceptions; unavailable witnesses
  • Okla. Stat. tit. 12 § 2403 (2011) - Relevant evidence; exclusion of relevant evidence on grounds of prejudice

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:

  • Willis v. State, 2017 OK CR 23, I 13, 406 P.3d 30, 34
  • Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 1374, 158 L. Ed. 2d 177 (2004)
  • Tryon v. State, 2018 OK CR 20, I 39, 423 P.3d 617, 632
  • Connell v. State, 1988 OK CR 234, I 7, 763 P.2d 383, 385
  • Lavicky v. State, 1981 OK CR 87, I 16, 632 P.2d 1234, 1238
  • Mollett v. State, 1997 OK CR 28, I 32, 939 P.2d 1, 10
  • Bramlett v. State, 2018 OK CR 19, I 34, 422 P.3d 788, 799
  • Cuesta-Rodriguez v. State, 2010 OK CR 23, I 73, 241 P.3d 214, 237
  • Lott v. State, 2004 OK CR 27, I 103, 98 P.3d 318, 345
  • Vanderpool v. State, 2018 OK CR 39, I 37, 434 P.3d 318, 326
  • Bench v. State, 2018 OK CR 31, 152-53, 431 P.3d 929, 969
  • Day v. State, 2013 OK CR 8, I 15, 303 P.3d 291, 299
  • Frederick v. State, 2017 OK CR 12, I 33, 400 P.3d 786, 804
  • Brown v. State, 1998 OK CR 77, II 28-29, 989 P.2d 913, 923-24
  • Smith v. State, 2007 OK CR 16, I 12, 157 P.3d 1155, 1162
  • Harrington v. Richter, 562 U.S. 86, 104, 131 S. Ct. 770, 787-88, 178 L. Ed. 2d 624 (2011)
  • Bivens v. State, 2018 OK CR 33, I 35, 431 P.3d 985, 996
  • Neloms v. State, 2012 OK CR 7, I 44, 274 P.3d 161, 172

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