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F-2017-952

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Jerry Don Battenfield v The State Of Oklahoma

F-2017-952

Filed: Apr. 4, 2019

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Jerry Don Battenfield appealed his conviction for two counts of sexual abuse of a child under twelve years old. The conviction and sentence were thirty years in prison for each count, to be served one after the other, plus a $5,000 fine for each count. Judge H. M. Wyatt, III, made the ruling. Judge Hudson disagreed with the decision.

Decision

The judgment and sentence is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.1 18, App. (2019), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

  • Was there a knowing and intelligent waiver of jury trial, or was it compelled by a false belief regarding the possibility of receiving the death penalty?
  • Did the trial court rely on non-admitted extra-judicial evidence to justify its findings of guilt?
  • Was the admission of unreliable hearsay in violation of the right to confrontation?
  • Did the admission of testimonial hearsay violate the right to confrontation?
  • Was the failure to preserve issues for review a result of ineffective assistance of counsel?
  • Did cumulative errors deprive the appellant of a fair trial and reliable verdict and sentence?

Findings

  • the court erred
  • the court did not err
  • the court did not err
  • the court did not err
  • the court did not err
  • the court did not err
  • the judgment and sentence is AFFIRMED

F-2017-952

Apr. 4, 2019

Jerry Don Battenfield

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

JOHN D. HADDEN CLERK

LEWIS, PRESIDING JUDGE: Jerry Don Battenfield, Appellant, was tried without a jury and found guilty of Counts 1 and 2, sexual abuse of a child under age twelve (12), in violation of 21 O.S.Supp.2014, § 843.5(F), in the District Court of Craig County, Case No. CF-2016-147. The Honorable H. M. Wyatt, III, Associate District Judge, sentenced him to thirty (30) years imprisonment and a $5,000.00 fine on each count, and ordered the sentences to be served consecutively.

Mr. Battenfield appeals in the following propositions of error:

1. Mr. Battenfield’s convictions must be reversed because, rather than knowing and intelligent, the waiver of jury trial in the instant case was compelled by a false belief that the waiver took the unconstitutional punishment by death off the table;
2. Reversal is mandatory due to the Court’s confessed reliance on non-admitted extra-judicial evidence to justify the findings of guilt;
3. Unreliable hearsay admitted in violation of 12 O.S.Supp.2013, § 2803.1 violated Mr. Battenfield’s right to confrontation;
4. Admission of testimonial hearsay violated Mr. Battenfield’s right to confrontation;
5. Alternatively, any failure to preserve issues for review was the result of the ineffective assistance of counsel;
6. Cumulative errors deprived Appellant of a fair trial and reliable verdict and sentence.

In Proposition One, Appellant argues that his waiver of jury trial was not knowing and voluntary due to the misapprehension that he was subject to the death penalty for recidivist child sexual abuse under 21 O.S.Supp.2014, § 843.5(K). A record showing an intelligent, competent, and knowing waiver of a fundamental right is mandatory. Hinsley U. State, 2012 OK CR 11, I 5, 280 P. 3d 354, 355. The record refutes Appellant’s claim that he was somehow led to believe by either the court or counsel that he faced a potentially capital punishment for this crime. Proposition One is therefore denied.

Appellant claims in Proposition Two that the trial court confessed that its findings of guilt rested in part on materials that were never properly admitted at trial. The portion of the record cited to support this claim is a single comment in which the trial court mentioned seeing certain statements of the co-defendant during pre-trial motion hearings. Appellant mischaracterizes this comment and constructs a fallacious legal argument around it. The trial court is presumed to consider only competent and admissible evidence in its decisions. Long U. State, 2003 OK CR 14, I 4, 74 P.3d 105, 107. Appellant’s argument fails to impeach the trial court’s findings here. Proposition Two is without merit.

In Proposition Three, Appellant argues that the trial court’s failure to conduct a pre-trial reliability hearing on child hearsay required by 12 O.S.2011, § 2803.1 was reversible error. The State gave timely notice of its intent to offer child hearsay at trial, and defense counsel initially filed a motion in response to the notice. At the motions hearing, defense counsel specifically announced that he had no objection to evidence covered by the notice. Counsel failed to object to some of these statements and specifically announced that he had no objection to others when the State offered child hearsay evidence at trial. We therefore review for plain error only, as defined in many previous cases. Logsdon v. State, 2010 OK CR 7, I 15, 231 P.3d 1156, 1164 (holding that on plain error review, appellant must show a plain or obvious violation of law affected the outcome). The Court will only correct plain error if it seriously affects the fairness, integrity or public reputation of the judicial proceedings or otherwise represents a miscarriage of justice. Hogan U. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923. We have previously held that a trial court’s failure to conduct a pre-trial hearing, and make the required findings whether child hearsay is inherently trustworthy, is a plain or obvious violation of 12 O.S.2011, § 2803.1. Simpson U. State, 1994 OK CR 40, I 2, 876 P.2d 690, 693. However, in the context of a non-jury trial, and in light of counsel’s express waiver of any objection, we find no actual error occurred in the lack of a separate reliability hearing here. Moreover, from our own review of the record, we find that the child hearsay testimony was inherently trustworthy and would have been admitted even if a separate pre-trial hearing had been held. Folks v. State, 2008 OK CR 29, I 12, 207 P.3d 379, 382 (finding child’s hearsay statements about acts of abuse, in response to forensic interviewer’s non-leading questions, were spontaneous and inherently trustworthy). Appellant has not shown that any error seriously affected the fairness, integrity, or public reputation of the proceedings. J.J.J. U. State, 1989 OK CR 77, 782 P.2d 944, 945-946 (error in omitting required 2803.1 hearing was not reversible where facts indicated judge would have admitted the evidence if hearing had been held). Proposition Three is therefore denied.

In Proposition Four, Appellant argues that certain testimonial child hearsay statements were admitted in violation of his right to confrontation under the Sixth Amendment. Because trial counsel either failed to object to these statements, or invited the error when he specifically stated that he had no objection to them at trial, our review is limited to plain error, as defined above. A criminal defendant has a fundamental constitutional right to be confronted with the witnesses against him. Hanson U. State, 2009 OK CR 13, I 8, 206 P.3d 1020, 1025. Prior testimony from an unavailable witness is admissible in a criminal trial only when the defendant had a prior opportunity to cross-examine the witness concerning the statements. Crawford v. Washington, 541 U.S. 36, 61, 124 S.Ct. 1354, 1370, 158 L.Ed.2d 177 (2004). We conclude that the child declarant’s informal statements describing Appellant’s abuse to a counselor, and later, to a DHS investigator, were non-testimonial and thus not subject to confrontation when the statements were offered at trial. Ohio U. Clark, U.S. 135 S.Ct. 2173, 2181, 192 L.Ed.2d 306 (2015) (finding child’s hearsay statements to pre-school teachers were sought primarily for the purpose of assessing potential threat to child’s safety, and thus non-testimonial). The State concedes that the child’s subsequent recorded statements to a forensic interviewer (State’s Exhibit One at trial) were testimonial, and therefore subject to the requirements of unavailability and a prior opportunity for cross-examination. Mitchell v. State, 2005 OK CR 15, I 37, 120 P.3d 1196, 1207 (finding child’s responses to police questioning for purposes of producing evidence were testimonial). Because the declarant was apparently available to testify and Appellant had no prior opportunity to cross-examine him concerning these statements, admission of State’s Exhibit One was a plain or obvious error that violated Appellant’s right to confrontation. This Court will correct plain error only if it seriously affected the fairness, integrity, or public reputation of the judicial proceedings. Stewart U. State, 2016 OK CR 9, I 12, 372 P.3d 508, 511. Even a plain constitutional error can be harmless if the Court determines from the remaining evidence, and beyond a reasonable doubt, that the error did not contribute to the conviction or punishment. Marshall U. State, 2010 OK CR 8, I 31, 232 P.3d 467, 475-76; Chapman U. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Because the properly admitted evidence at trial included other incriminating statements by the child victim, corroborating eyewitness testimony, and propensity evidence of Appellant’s many prior acts of sexual abuse against others, any error in the Confrontation Clause violation was harmless beyond a reasonable doubt to the findings of guilt. We also conclude that this plain error was harmless beyond a reasonable doubt as to the sentences, which are clearly appropriate to these crimes and far less than the maximum of life imprisonment in each count. As the error did not seriously affect the fairness, integrity, or public reputation of the proceedings, Proposition Four requires no relief.

In Proposition Five, Appellant argues that trial counsel was ineffective for failing to litigate or preserve the issues raised on appeal. Reviewing this claim under the two-pronged analysis required by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), we conclude first that trial counsel’s representation was not unreasonably deficient; and second, that any deficient performance in preserving Appellant’s claims of error creates no reasonable probability of a different outcome at trial. Proposition Five is therefore denied.

In Proposition Six, Appellant claims the accumulation of prejudice from errors warrants relief. The confrontation error in the admission of child hearsay was harmless beyond a reasonable doubt, and thus had no serious effect on the fairness, integrity, or public reputation of the proceedings. We find no additional errors, and no accumulation of prejudicial effects. Proposition Six requires no relief.

DECISION

The judgment and sentence is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.1 18, App. (2019), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

  1. 22 O.S.2011, § 13.1(14).
  2. 21 O.S.Supp.2014, § 843.5(K).
  3. Hinsley U. State, 2012 OK CR 11, I 5, 280 P. 3d 354, 355.
  4. Long U. State, 2003 OK CR 14, I 4, 74 P.3d 105, 107.
  5. Logsdon v. State, 2010 OK CR 7, I 15, 231 P.3d 1156, 1164.
  6. Hogan U. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923.
  7. Simpson U. State, 1994 OK CR 40, I 2, 876 P.2d 690, 693.
  8. Folks v. State, 2008 OK CR 29, I 12, 207 P.3d 379, 382.
  9. J.J.J. U. State, 1989 OK CR 77, 782 P.2d 944, 945-946.
  10. Hanson U. State, 2009 OK CR 13, I 8, 206 P.3d 1020, 1025.
  11. Crawford v. Washington, 541 U.S. 36, 61, 124 S.Ct. 1354, 1370, 158 L.Ed.2d 177 (2004).
  12. Ohio U. Clark, U.S. 135 S.Ct. 2173, 2181, 192 L.Ed.2d 306 (2015).
  13. Mitchell v. State, 2005 OK CR 15, I 37, 120 P.3d 1196, 1207.
  14. Stewart U. State, 2016 OK CR 9, I 12, 372 P.3d 508, 511.
  15. Marshall U. State, 2010 OK CR 8, I 31, 232 P.3d 467, 475-76.
  16. Chapman U. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
  17. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Oklahoma Statutes citations:

  • Okla. Stat. tit. 21 § 843.5 (2014) - Sexual abuse of a child under age twelve
  • Okla. Stat. tit. 22 § 13.1 (2011) - Parole eligibility
  • Okla. Stat. tit. 12 § 2803.1 (2013) - Child hearsay

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

  • 17 U.S.C. § 107 - Limitations on exclusive rights: Fair use
  • 6 U.S.C. § 1112 - Circumstances relating to receipt of confidential information
  • 18 U.S.C. § 2251 - Sexual exploitation of children
  • 18 U.S.C. § 2441 - War crimes
  • 18 U.S.C. § 1951 - Interference with commerce by threats or violence

Other citations:

No other rule citations found.

Case citations:

  • Hinsley v. State, 2012 OK CR 11, I 5, 280 P.3d 354, 355
  • Long v. State, 2003 OK CR 14, I 4, 74 P.3d 105, 107
  • Logsdon v. State, 2010 OK CR 7, I 15, 231 P.3d 1156, 1164
  • Hogan v. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923
  • Simpson v. State, 1994 OK CR 40, I 2, 876 P.2d 690, 693
  • Folks v. State, 2008 OK CR 29, I 12, 207 P.3d 379, 382
  • J.J.J. v. State, 1989 OK CR 77, 782 P.2d 944, 945-946
  • Hanson v. State, 2009 OK CR 13, I 8, 206 P.3d 1020, 1025
  • Crawford v. Washington, 541 U.S. 36, 61, 124 S.Ct. 1354, 1370, 158 L.Ed.2d 177 (2004)
  • Ohio v. Clark, 135 S.Ct. 2173, 2181, 192 L.Ed.2d 306 (2015)
  • Mitchell v. State, 2005 OK CR 15, I 37, 120 P.3d 1196, 1207
  • Stewart v. State, 2016 OK CR 9, I 12, 372 P.3d 508, 511
  • Marshall v. State, 2010 OK CR 8, I 31, 232 P.3d 467, 475-76
  • Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)
  • Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)

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