Dominick Javon Smith v The State Of Oklahoma

F-2018-1186

Filed: Jan. 30, 2020

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Dominick Javon Smith appealed his conviction for Child Neglect. Conviction and sentence were 40 years in prison and a $5,000 fine. Johnny Earl Jones also faced charges in the same case. The court decided that Smith's trial was fair and her claims about the trial court's actions and her lawyer's help were not strong enough to change the outcome. Smith's arguments were denied, and the court affirmed her sentence.

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. (2020), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there an error in allowing the State to cross-examine Dominick Smith in the punishment stage of trial on matters not relevant to her alleged prior felony conviction?
• Did prosecutorial misconduct deprive the Appellant of a fair trial?
• Was the Appellant deprived of effective assistance of counsel?

Findings

• the court did not err in permitting the State to cross-examine Appellant on matters related to her credibility
• the prosecutor's closing argument did not constitute misconduct
• Appellant was not deprived of effective assistance of counsel
• the judgment and sentence is affirmed

F-2018-1186

Jan. 30, 2020

Dominick Javon Smith

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, JUDGE: Appellant, Dominick Javon Smith, was tried by jury and convicted of Child Neglect, After Former Conviction of a Felony, in violation of 21 O.S.Supp.2014, § 843.5(C), in the District Court of Tulsa County Case Number CF-2017-1887. The jury recommended punishment of forty years imprisonment and payment of a $5,000.00 fine. The trial court sentenced Appellant accordingly. From this judgment and sentence, Appellant appeals.

Appellant raises the following propositions of error in this appeal:

I. The trial court erred when it permitted the State to cross-examine Dominick Smith in the punishment stage of jury trial on matters not relevant to her alleged prior felony conviction.

II. Prosecutorial misconduct deprived Appellant of a fair trial.

III. The Appellant was deprived of effective assistance of counsel.

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.

In her first proposition, Appellant argues the trial court improperly allowed the prosecutor to question her during the punishment phase of trial about matters not relevant to her prior felony conviction. Although defense counsel objected several times during cross-examination, only two of these objections were based upon relevance. Thus, review of the claims other than those objected to on the basis of relevance is for plain error only as set forth in Simpson v. State, 1994 OK CR 40, 876 P.2d 690. See Harmon v. State, 2011 OK CR 6, 36, 248 P.3d 918, 934 (Harmon’s failure to argue below that the statement was inadmissible other crimes evidence waives the issue on appeal and review is for plain error only.). 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. We generally view a trial judge’s limitations on the extent of cross-examination for an abuse of discretion. Levering v. State, 2013 OK CR 19, 20, 315 P.3d 392, 397. An abuse of discretion is a clearly erroneous conclusion and judgment, one that is clearly against the logic and effect of the facts presented or, stated otherwise, any unreasonable or arbitrary action taken without proper consideration of the facts and law pertaining to the matter at issue. Neloms v. State, 2012 OK CR 7, 35, 274 P.3d 161, 170 (internal citation and quotation marks omitted). A trial court may, in its discretion, limit cross-examination, or extend it beyond the subject matter of direct examination to impeach a witness on matters of witness accuracy, memory, veracity, or credibility. Lacy v. State, 2007 OK CR 20, 5 n.3, 171 P.3d 911, 914 n.3 (quoting Hooks v. State, 2005 OK CR 23, 13, 126 P.3d 636, 642).

During the punishment phase of trial, Appellant testified on direct examination that she had a prior felony conviction for child abuse in Mississippi. She explained the circumstances of the crime and her actions. On cross-examination, the prosecutor questioned Appellant about the conflicting statements she made to police during her numerous interviews and the inconsistencies between her statements and what others observed of her actions. Having been acquitted of child abuse murder, Appellant offered a detailed explanation of her prior child abuse conviction when she testified during the punishment phase of trial. Once she gave this testimony, she was subject to cross-examination regarding her credibility the same as any other witness. The prosecutor questioned Appellant about her conflicting statements to police, her inconsistent testimony between direct and cross-examination and the inconsistency between her description of how she disciplined her son and Rebekah Snyder’s testimony about her observations of that discipline, all to show Appellant’s testimony was not credible. There was no error or abuse of discretion in this line of questioning. Proposition I is denied.

To the extent Appellant complains about the prosecutor’s closing argument, that she ridiculed the jury and defense by her reference to Santa Claus, her complaint is not properly before this Court. Under Rule 3.5(A)(5), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2017), each proposition of error shall be set out separately. The failure to follow this rule waives consideration of the issue on appeal. Appellant’s failure to raise the claim regarding the closing argument as a separate proposition has waived it from appellate review in this proposition.

Appellant contends in Proposition II that the prosecutor committed misconduct during punishment stage closing argument when she made a suggestion that Santa Claus may have caused the victim’s, K.O.’s, injuries and when she mentioned how Appellant’s actions deprived K.O. of various life experiences. Review of these contentions is for plain error as set forth above in Proposition I since Appellant failed to object. This Court reviews claims of prosecutorial misconduct within the context of the entire trial, considering not only the propriety of the prosecutor’s actions, but also the strength of the evidence against the defendant and the corresponding arguments of defense counsel. We grant relief on prosecutorial misconduct claims only where a defendant is deprived of a fair trial and is prejudiced by improper argument. When the prosecutor made the complained of arguments, Appellant had been acquitted of child abuse murder. In the context of the entire trial, her argument told the jury it did not matter who caused K.O.’s injuries, what mattered was that the evidence showed Appellant failed to seek medical help for him when he was obviously in physical distress and that her actions were the worst type of child neglect. There was nothing improper about this argument. Appellant next maintains the prosecutor improperly sought sympathy for K.O. when she listed all the life experiences Appellant’s actions deprived him of. It is not improper for a prosecutor to make such an argument. That this argument may have evoked sympathy for K.O. does not render it improper. There was no error in the prosecutor’s argument. Proposition II is denied.

Appellant lastly claims her counsel was ineffective as follows: for failing to object to the prosecutor’s cross-examination of her during the punishment phase of trial as addressed in Proposition I; and for failing to object to the so-called prosecutorial misconduct addressed in Proposition II. This Court reviews ineffective assistance of counsel claims under the two-part test mandated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984). 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 of counsel 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. The likelihood of a different result must be substantial, not just conceivable. As shown in Proposition I, no error occurred in the prosecutor’s cross-examination of Appellant. Similarly, no prosecutorial misconduct occurred. As neither claim rose to the level of plain error, Appellant has not shown ineffective assistance of counsel. Proposition III 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. (2020), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

1. 1 Appellant will have to serve 85% of her sentence before becoming eligible for parole consideration. 21 O.S.Supp.2015, § 13.1.
2. 2 only two of these objections were based upon relevance. Thus, review of the claims other than those objected to on the basis of relevance is for plain error only as set forth in Simpson U. State, 1994 OK CR 40, 876 P.2d 690.
3. 3 citation and quotation marks omitted.
4. 4 prosecution properly cross-examined him regarding prior attacks on others in order to impeach his credibility.
5. 5 Under Rule 3.5(A)(5), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2017), each proposition of error shall be set out separately. The failure to follow this rule waives consideration of the issue on appeal.
6. 6 This Court reviews claims of prosecutorial misconduct "within the context of the entire trial, considering not only the propriety of the prosecutor's actions, but also the strength of the evidence against the defendant and the corresponding arguments of defense counsel." Mitchell U. State, 2010 OK CR 14, I 97, 235 P.3d 640, 661.
7. 7 they also evoke sympathy.
8. 8 When a claim of ineffectiveness of counsel can be disposed of on the ground of lack of prejudice, that course should be followed.
9. 9 Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2020), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 843.5(C) (2014) - Child Neglect
• Okla. Stat. tit. 21 § 13.1 (2015) - Parole Eligibility
• Okla. Stat. tit. 22 § 3.5 (2017) - Rules of the Oklahoma Court of Criminal Appeals
• Okla. Stat. tit. 22 § 3.15 (2020) - Mandate Issuance
• Okla. Stat. tit. 21 § 701.8 (2011) - Sentencing

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
• Harmon v. State, 2011 OK CR 6, 248 P.3d 918
• Levering v. State, 2013 OK CR 19, 315 P.3d 392
• Neloms v. State, 2012 OK CR 7, 274 P.3d 161
• Lacy v. State, 2007 OK CR 20, 171 P.3d 911
• Tafolla v. State, 2019 OK CR 15, 446 P.3d 1248
• Willis v. State, 2017 OK CR 23, 406 P.3d 30
• Mitchell v. State, 2010 OK CR 14, 235 P.3d 640
• Hanson v. State, 2003 OK CR 12, 72 P.3d 40
• Croan v. State, 1984 OK CR 69, 682 P.2d 236
• Cole v. State, 2007 OK CR 27, 164 P.3d 1089
• Malone v. State, 2013 OK CR 1, 293 P.3d 198
• Bland v. State, 2000 OK CR 11, 4 P.3d 702
• Harrington v. Richter, 562 U.S. 86
• Bench v. State, 2018 OK CR 31, 431 P.3d 929