Bert Glen Franklin v The State Of Oklahoma

F-2018-1103

Filed: Jan. 16, 2020

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Bert Glen Franklin appealed his conviction for First Degree Murder (Child Abuse) and Solicitation of First Degree Murder. Conviction and sentence were life imprisonment without parole for the murder and life imprisonment for solicitation, served consecutively. Judge Lewis dissented.

Decision

The JUDGMENT and SENTENCE 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 plain, fundamental error in allowing the prosecution of both the child abuse murder case and the solicitation to commit murder case in one trial?
• Did the joinder of the offenses result in prejudice to the Appellant?
• Was Appellant deprived of reasonably effective assistance of counsel due to his attorney's failure to object to the joinder or request a severance?

Findings

• There was no error in the joinder of offenses for trial.
• Appellant did not suffer prejudice from the joinder of offenses.
• Appellant's claim of ineffective assistance of counsel was denied due to the absence of error regarding joinder.

F-2018-1103

Jan. 16, 2020

Bert Glen Franklin

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, JUDGE: Appellant, Bert Glen Franklin, was tried by jury and convicted in a consolidated trial of Count 1, First Degree Murder (Child Abuse), in violation of 21 O.S.Supp.2012, § 701.7, in the District Court of Oklahoma County Case Number CF-2016-6318 and of Count 2, Solicitation of First Degree Murder, in violation of 21 O.S.2011, § 701.16, in the District Court of Oklahoma County Case Number CF-2017-7216. The jury recommended punishment of life imprisonment without parole on Count 1 and life imprisonment on Count 2. The trial court sentenced Appellant accordingly, running the sentences consecutively to one another. From this judgment and sentence, Appellant appeals.

Appellant raises the following propositions of error in this appeal:

I. Plain, fundamental error occurred when the State of Oklahoma was allowed to prosecute both the child abuse murder case and the solicitation to commit first degree murder case in one trial. Such improper joinder resulted in prejudice to Dr. Franklin, necessitating this Court to remand both cases for new, separate trials.

II. Appellant was deprived of the reasonably effective assistance of counsel, guaranteed him by the Sixth Amendment to the United States Constitution because his trial attorney failed to object to joinder or request a severance.

After thorough consideration of these propositions and the entire record before us on appeal including the original record, transcripts, and briefs of the parties, we have determined that under the law and the evidence, Appellant is not entitled to relief.

This appeal concerns the murder of eighteen-month-old L.L., Roxanne Randall’s son, at the hands of Appellant, her boyfriend. It also concerns Appellant’s subsequent attempt to solicit Randall’s murder as he awaited trial on the murder charge. Randall made an appointment with Appellant, a dentist, for Botox injections, in August, 2015. Her best friend recommended him for these injections, so despite the fact that Ms. Randall resided in Norman at the time, she made an appointment with Appellant who practiced in Tulsa. At her second appointment with Appellant, the two engaged in sexual intercourse. The relationship escalated quickly into a full-on romance, with the two texting and phoning each other every hour of every day and frequently engaging in intercourse in Appellant’s office. In fact, Appellant booked a trip to Disney World for Randall, her children and a nanny on or about September 13, 2015. Appellant was married with four children. Their ages ranged from two years old up to twelve or thirteen. Appellant indicated to Randall that he and his wife were doing their own thing, although they were not legally separated. Randall had three children, a daughter aged nine, a son aged four and L.L., aged seven months, all with different fathers. L.L.’s father was Millard Henry, III, a doctor.

On July 16, 2016, Randall believed she was in love with Appellant. He told Randall he wanted to marry her and she believed him. He gave her a promise ring because he was technically married and still lived in the house with his wife, four kids and his parents. Appellant sent Randall thousands of text messages and Face-timed her from his Tulsa home as he lay in bed, sometimes with his youngest daughter present. Randall had a home security system installed at her home in Northwest Oklahoma City. Appellant could access the cameras from an app on his phone. He watched Randall and commented upon her activities, and Randall, realizing he was spying on her, revoked his access to the system. Thereafter, Appellant cloned Randall’s phone by giving her extra sleeping medication and using her fingerprint to open her phone. Thus, Appellant saw everything which was on Randall’s phone. Appellant provided the funds for Randall to hire a nanny, Victoria Richard, who lived in with Ms. Randall and her children during the week and assisted with L.L.’s care. L.L.’s birth was premature and he had some developmental delays and health problems as a result. Appellant also bought Randall a Volvo car, paid for her plastic surgery and gave her the down payment for her house.

Randall maintained a friends with benefits type of relationship with Henry, L.L.’s father, and on one occasion in June 2016, Appellant caught them together using his access to the security system cameras. Appellant was on a trip with his wife and family at this time, and Randall felt lonely. Appellant sent Henry numerous threatening texts regarding his liaison with Randall. The jealousy issues between Appellant and Randall led her to issue an ultimatum to Appellant to either be with her or not.

On July 12, 2016, L.L. had a throat procedure to enable him to eat solid food. Two days later, L.L. sustained a cut near his eye when he fell at home while carrying a decorative item. Randall took L.L. to Children’s Hospital where his eye was glued and bandaged. While there, Randall texted Appellant and asked him when he would be heading Oklahoma City. Appellant was traveling to Oklahoma City for a dental continuing education course and arrived at Randall’s home later that evening. On Friday, July 15, 2016, Appellant attended a continuing dental education course in downtown Oklahoma City. Randall bought various materials for the construction of a cabinet for her home. While Randall worked on the cabinet, L.L. fell down a couple of stair steps onto the landing, but quickly got up and was fine. During the day, Appellant and Randall texted each other and at 4:34 p.m., Appellant asked if L.L. was still at home since he was to stay the night with his paternal great-aunt. Randall responded that the aunt and her boyfriend would pick L.L. up in a few minutes. When L.L. left with them, he was fine. Appellant and Randall went out for dinner and then went to Victoria’s Secret at the mall. The next day, they worked on the cabinet for Randall’s home. Around 5:30 p.m. on July 16, 2016, the great-aunt and boyfriend brought L.L. home. The security camera recorded their arrival. Although L.L. appeared tired and cranky, he was behaving normally and is seen toddling through the kitchen. At 5:53 p.m., the camera again showed L.L. still moving normally. At 6:00 p.m., Randall took a blanket from downstairs to take upstairs to put L.L. down for a nap. Appellant, in the interim, went to get food for Randall and himself. Upon his return, Appellant came up the stairs and L.L. woke up and was babbling. Appellant picked up L.L. and took him downstairs. Randall continued working on the cabinet with a power sander. She heard a loud thudding type of noise and shouted down to Appellant, asking him what the noise was. He did not answer, so she went to the top of the stairs and shouted again. This time, Appellant told Randall the dog made the noise. Randall went downstairs and saw Appellant watching TV with L.L. lying on the couch. She tried to give L.L. his pacifier, but Appellant told her not to because he was sleeping. Randall noticed L.L.’s eyes were open and told Appellant, but he told her L.L. was not asleep yet. Randall thought L.L. was going to sleep so she went back upstairs to continue with the cabinet. Appellant later came upstairs and told Randall he put L.L. in her bed.

Around midnight, Appellant and Randall went to bed, although Randall thought L.L. might want a bottle. However, he appeared to be sleeping heavily, so he did not wake up. Randall thought he was tired from his sleepover and maybe coming down with something. Randall took a Lunesta sleeping pill and went to sleep. About 2:00 a.m., July 17, 2016, Randall woke up, hearing what she first thought was L.L. coughing. Appellant was already awake. She went into the kitchen to get a bottle and some medicine, but realized L.L. was not coughing, but was making a sound she had never heard before. Appellant asked her if L.L. always slept with his eyes open. Thereafter, Randall understood that something was wrong with L.L. because his breathing was wrong and his body was limp. Randall yelled at Appellant to call 911, but he just stared at her. She grabbed the phone and called 911, but quickly decided it would be faster if they drove L.L. to Mercy Hospital about one mile away. When they arrived at Mercy, Randall jumped out of the car with L.L. and ran inside, yelling. Medical personnel immediately took L.L. into a room. Randall told them she thought L.L.’s airway was swollen or he was choking. Appellant came inside after parking the car. L.L. underwent a CT scan and Dr. Brent Wilson informed Randall that L.L. had a head injury and would be transported to another hospital which could properly care for him. The doctor told Randall and Appellant that L.L.’s prognosis was poor and that his injury was the result of an intentional act, absent history of an unrestrained head-on collision with ejection. He also told Randall L.L. would have been symptomatic within a few hours, if not immediately. Wilson testified at trial that L.L.’s skull was fractured and his brain was bleeding. He further testified he had never seen a skull fracture that severe.

Randall spoke with an Oklahoma City Police officer and told him about L.L.’s recent falls. Detectives arrived at Mercy and interviewed Randall and Appellant. Detective Andrea Motley questioned Randall, who remembered hearing the thudding noise and the pacifier incident. L.L. was medi-flighted to Tulsa’s St. Francis Hospital because Children’s in Oklahoma City had no available beds. As Randall and Appellant were gathering clothing to take to Tulsa, she asked him if he was sure nothing happened when he and L.L. were downstairs. Appellant told her the noise she heard was from him throwing a ball, but Randall had not asked him about a noise. At St. Francis, L.L. was placed in the pediatric intensive care unit. Doctors attempted to reduce the swelling in his brain, but the swelling continued, resulting in a mid-line shift of L.L.’s brain. L.L. died on July 18, 2016, and Dr. Michael Baxter opined his death was the result of abusive head trauma and child physical abuse. Dr. James Miller, the medical examiner, autopsied L.L.’s body and determined he suffered two skull fractures. One was very large and extended from the left base of L.L.’s skull up and around the right lateral side of his head. The other fracture was located on the right parietal bone below the larger fracture. These fractures were complex, meaning smaller, linear fractures radiated out from them. The complex fractures were caused by the use of great force. Each was the result of a separate impact. Miller found L.L. died as a result of blunt force trauma to the head and the manner of his death was homicide. Prior to L.L.’s death, while at St. Francis, Randall came to the realization that Appellant was responsible for L.L.’s injuries. She requested that Appellant not be allowed in the room with L.L. Appellant left the hospital. Randall remembered she could access the home security cameras inside her home on her phone. After looking at the video clips, she realized there were some missing. She spoke with detectives and told them this. Ultimately, law enforcement recovered the missing video. The video shows Appellant carrying a normal L.L. down the stairs, then eating pizza. A bit later the video shows Appellant making a violent kicking movement and a violent slamming movement. It also shows Appellant later holding a limp and apparently unconscious L.L. while grabbing another slice of pizza.

Appellant’s trial for L.L.’s murder was originally set to begin in December 2017. However, the trial was postponed after an investigation revealed Appellant’s jail-hatched plan to hire someone to kill Randall. Oklahoma County District Attorney’s Office Investigator Darren Gordon was working on an unrelated investigation in August 2017 which involved jail inmate Anthony Bruce. Bruce approached Gordon and told him Appellant wanted to have a female killed, one involved in Appellant’s murder case. After ascertaining that Bruce indeed had credible information regarding Appellant and his case, Gordon and other officers devised a plan which would enable Appellant to act on his desire to kill Randall while protecting her at the same time. Bruce received a cell phone from investigators which had software on it that enabled law enforcement to capture all activity on the phone and he became Appellant’s cell mate. Domingo Canizarez (Weso), a former cell mate of both Appellant and Bruce, was enlisted to participate in the plan. Canizarez and Appellant had already spoken about whether Canizarez would kill Randall. Bruce and Canizarez received strict instructions not to bring up the subject of solicitation, but to allow Appellant to start any conversation about it. They also were to back off if Appellant indicated he did not want to do anything. Ultimately, Appellant finalized the arrangements with Canizarez to kill Randall in December 2017. Thereafter, Gordon stopped the investigation and Appellant was charged accordingly.

In his first proposition, Appellant contends his cases should not have been joined in one trial. He acknowledges he lodged no objection to joinder at trial. Therefore, we review this claim for plain error as set forth in Simpson v. State, 1994 OK CR 40, 876 P.2d 690. Under the Simpson test, we determine whether Appellant has shown an actual error, which is plain or obvious, and which affects his or her 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.

The Oklahoma Statutes, 22 O.S.2011, § 438, provide for joinder of two Informations under certain conditions. Section 438 provides as follows:

The court may order two or more indictments or informations or both to be tried together if the offenses and the defendants, if there is more than one, could have been joined in a single indictment or information. The procedure shall be the same as if the prosecution was under such single indictment or information.

In Lott v. State, 2004 OK CR 27, I 34, this Court held that Section 438 allows the joinder of offenses pursuant to the following:

This Court has allowed joinder of separately punishable offenses allegedly committed by the accused if the separate offenses arise out of one criminal act or transaction, or are part of a series of criminal acts or transactions. Further, with respect to a series of criminal acts or transactions, joinder of offenses is proper where the counts so joined refer to the same type of offenses occurring over a relatively short period of time, in approximately the same location, and proof as to each transaction overlaps so as to evidence a common scheme or plan.

This Court made another pronouncement concerning the analysis of the propriety of joining two or more separate offenses for trial in Smith v. State, 2007 OK CR 16, I 29, as follows:

When deciding whether to join separately charged offenses together in a single trial, however, the dispositive question is not whether one offense constitutes relevant evidence probative of a disputed issue in the other offense, but instead, whether the separate offenses are sufficiently related as to be considered a part of a series of criminal acts or transactions such that they may logically be tried together without unfairly prejudicing the defendant.

We have refused to find prejudice from the joinder of offenses where evidence of either offense would have been admissible in a trial of the other.

Turning to the first Glass requirement, that the offenses were the same type, we find that they were. Although first degree murder requires the actual killing of a person and solicitation to commit first degree murder requires only asking another to commit first degree murder, homicide is the common denominator. Moreover, both offenses illustrate Appellant’s willingness to commit violence in order to achieve his goals. In the case of murdering L.L., he sought to eliminate the child in order to end the relationship between Randall and L.L.’s father who he viewed as his rival for Randall’s sexual favors. By murdering Randall, he sought to rid himself of the primary witness against him in the murder who betrayed him by assisting police in the investigation into L.L.’s murder.

Glass’s second requirement is proximity in time. While the offenses were separated by approximately seventeen months, the separation is due to the fact that Appellant was incarcerated in the Oklahoma County Jail and it took him awhile to develop his plan with Bruce and Canizarez. Under the facts and circumstances of these cases, we find that the offenses occurred over a sufficiently short period of time so as to meet the second Glass factor.

The third Glass requirement is proximity in location. Both the offenses occurred in Oklahoma County, although one was in the north part of the county at Randall’s residence and the other was at the county jail. However, the evidence showed Appellant’s chosen hitman, Canizarez, was at the playground next to Randall’s house during the final phone call between Appellant and himself. Thus, we conclude that the third requirement of proximity in location was satisfied.

Glass finally requires overlapping proof. We find proof of the offenses sufficiently overlapped to allow for their joinder. Both the offenses stemmed from Appellant’s relationship with Randall. Had Appellant not killed L.L., there was no reason for him to want Randall dead. That Appellant sought to have Randall killed showed his consciousness of guilt in the killing of L.L. The two crimes are directly related to one another. Moreover, proof of both offenses was inextricably intertwined. Evidence of each crime would have been admissible at the trial of the other. Evidence of the solicitation charge would have been admissible at the murder trial to show Appellant’s consciousness of guilt and at a separate trial on the solicitation charge, evidence that Appellant was facing a murder charge when he tried to have Randall killed would have been admissible against him to show his motive.

We find the two offenses were properly joined and Appellant suffered no prejudice as contemplated by Lott. Thus, there was no error. Proposition I is denied.

In his final proposition, Appellant argues his counsel was ineffective for failing to object to the joinder of the offenses. We review ineffective assistance of counsel claims under the two-part test mandated by the United States Supreme Court in Strickland v. Washington.

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. The Court begins its analysis with the strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. Appellant must overcome this presumption and demonstrate that counsel’s representation was unreasonable under prevailing professional norms and that the challenged action could not be considered sound trial strategy. When a claim of ineffectiveness can be disposed of on the ground of lack of prejudice, that course should be followed. To demonstrate prejudice an appellant must show that there is a reasonable probability that the outcome of the trial would have been different but for counsel’s unprofessional errors.

As shown in Proposition I, joinder of Appellant’s two offenses was proper and no error occurred. As the claim did not constitute error, Appellant has not shown ineffective assistance of counsel. Proposition II is denied.

DECISION

The JUDGMENT and SENTENCE 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. Okla. Stat. tit. 21 § 701.7
2. Okla. Stat. tit. 21 § 701.16
3. Okla. Stat. tit. 22 § 438
4. Simpson v. State, 1994 OK CR 40, 876 P.2d 690
5. Collins v. State, 2009 OK CR 32, 223 P.3d 1014
6. Lott v. State, 2004 OK CR 27, 98 P.3d 318
7. Glass v. State, 1985 OK CR 65, 701 P.2d 765
8. Cummings v. State, 1998 OK CR 45, 968 P.2d 821
9. Smith v. State, 2007 OK CR 16, 157 P.3d 1155
10. Dodd v. State, 2004 OK CR 31, 100 P.3d 1017
11. 12 O.S.2011 § 2404(B)
12. McCoy v. State, 1975 OK CR 117, 536 P.2d 1309
13. Gilson v. State, 2000 OK CR 14, 8 P.3d 883
14. Plunkett v. State, 1986 OK CR 77, 719 P.2d 834

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.7 (2012) - First Degree Murder (Child Abuse)
• Okla. Stat. tit. 21 § 701.16 (2011) - Solicitation of First Degree Murder
• Okla. Stat. tit. 22 § 438 (2011) - Joinder of Informations
• Okla. Stat. tit. 12 § 2404(B) (2011) - Admissibility of Other Crimes, Wrongs or Acts

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:

• Simpson v. State, 1994 OK CR 40, 876 P.2d 690
• Collins v. State, 2009 OK CR 32, 223 P.3d 1014
• Lott v. State, 2004 OK CR 27, 98 P.3d 318
• Glass v. State, 1985 OK CR 65, 701 P.2d 765
• Cummings v. State, 1998 OK CR 45, 968 P.2d 821
• Smith v. State, 2007 OK CR 16, 157 P.3d 1155
• Malone v. State, 2013 OK CR 1, 293 P.3d 198
• Bench v. State, 2018 OK CR 31, 431 P.3d 929
• Dodd v. State, 2004 OK CR 31, 100 P.3d 1017
• Gilson v. State, 2000 OK CR 14, 8 P.3d 883
• Plunkett v. State, 1986 OK CR 77, 719 P.2d 834