Blog

IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA ALFONZO LAMONSE VINEYARD, ) ) Appellant, NOT FOR PUBLICATION V. Case No. F-2018-1188 THE STATE OF OKLAHOMA, ) FILED IN COURT OF CRIMINAL APPEALS Appellee. ) STATE OF OKLAHOMA SUMMARY OPINION JAN – 9 2020 JOHN D. HADDEN ROWLAND, JUDGE: CLERK Appellant Alfonzo Lamonse Vineyard was charged in the District Court of Tulsa County, Case No. CF-2017-6169, with Assault and Battery with a Deadly Weapon (Count 1) in violation of 21 O.S.2011, § 652(C), First Degree Burglary (Count 4) in violation of 21 O.S.2011, § 1431, Assault and Battery (Count 5) in violation of 21 O.S.Supp.2014, § 644(B), and Domestic Assault and Battery (Count 7) in violation of 21 O.S.Supp.2014, § 644(B), each After Former Conviction of Two or More Felonies. Vineyard was also charged with Possession of a Firearm AFCF (Count 2) in violation of 21 O.S.Supp.2014, § 1283, and Obstructing an Officer (Counts 3 and 6) in violation of 21 O.S.Supp.2015, § 540. The jury found Vineyard guilty on all charges except Count 5.1 It assessed punishment at life imprisonment and a $10,000.00 fine on each of Counts 1, 2, and 4, one year and a $500.00 fine on each of Counts 3 and 6, and life imprisonment and a $5,000.00 fine on Count 7. The Honorable James Caputo, District Judge, who presided over Vineyard’s trial, sentenced him in accordance with the jury’s verdict, ordering the sentences imposed on Counts 1, 2, and 3 be served concurrently with each other. He ordered that sentences imposed on Counts 4, 6, and 7 be served concurrently with each other and consecutive to sentences imposed in Counts 1, 2, and 3.2 Vineyard appeals raising the following issues: (1) whether his waiver of his right to counsel was voluntary, knowing, and intelligent; (2) whether he was denied his constitutional right to confrontation; (3) whether there was sufficient evidence to convict him beyond a reasonable doubt of Assault and Battery with a Deadly Weapon; (4) whether the trial court erred when it failed to instruct the jury on the lesser offense of Pointing a Firearm; and 1 The trial court dismissed Count 5 after the State rested in the first stage of trial because the prosecution’s witness failed to appear. 2 Under 21 O.S.Supp.2014 § 13.1, Vineyard must serve 85% of his sentence of imprisonment on Counts 1 and 4 before he is eligible for parole consideration. 2 (5) whether cumulative error deprived him of a fair trial. We find relief is not required and affirm the Judgment and Sentence of the district court. 1. While the Sixth Amendment to the United States Constitution guarantees the right to counsel, a defendant may waive this right upon a showing that such waiver has been made knowingly, intelligently, and voluntarily. Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975). Neither the United States Supreme Court nor this Court has adopted a precise warning that the trial court must give to a criminal defendant seeking to exercise his right to self-representation. Mitchell U. State, 2016 OK CR 21, I 11, 387 P.3d 934, 939. “A waiver of the right to counsel is voluntary, knowing and intelligent when a defendant is informed of the dangers, disadvantages, and pitfalls of self-representation.” Brown U. State, 2018 OK CR 3, I 15, 422 P.3d 155, 162; Faretta, 422 U.S. at 835, 95 S.Ct. at 2541. This Court determines the validity of the waiver of the right to counsel from the totality of the 3 circumstances of the case. Mathis U. State, 2012 OK CR 1, I 7, 271 P.3d 67, 72. The record established that Vineyard was adequately advised of both general and specific dangers, disadvantages, and pitfalls of self- representation. Vinyard’s waiver of his right to counsel was knowing, intelligent, and voluntary and the trial court’s ruling on Vineyard’s request to represent himself was not an abuse of discretion. Relief is not required. 2. Although the victim testified at preliminary hearing she did not appear at trial. Vineyard complains on appeal that his right to confrontation was violated when the trial court allowed the victim’s preliminary hearing testimony to be read at trial. The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him.” Crawford V. Washington, 541 U.S. 36, 42, 124 S.Ct. 1354, 1359, 158 L.Ed.2d 177 (2004). The Confrontation Clause is not violated when a testimonial, out-of-court statement, offered against an accused to establish the truth of the 4 matter asserted, is admitted when the declarant is unavailable and where the accused has had a prior opportunity to cross-examine the witness. Id. 541 U.S. at 68, 124 S.Ct. at 1374. If the witness is unavailable, the prosecution bears the burden of demonstrating that fact – even if there has been a prior opportunity for cross- examination. Id. 541 U.S. at 57, 124 S. Ct. at 1367-68. Vineyard challenges only the trial court’s determination that Alexander was “unavailable” at trial. Vineyard objected to the trial court’s ruling preserving the issue for appeal. A witness is not ‘unavailable’ for purposes of confrontation “unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial.” Barber v. Page, 390 U.S. 719, 724-25, 88 S.Ct. 1318, 1322, 20 L.Ed.2d 255 (1968). “The lengths to which the prosecution must go to produce a witness is a question of reasonableness.” Ohio v. Roberts, 448 U.S. 56, 74, 100 S.Ct. 2531, 2543, 65 L.Ed.2d 597 (1980) (citing California v. Green, 399 U.S. 149, 189, n. 22, 90 S.Ct. 1930, 1951, n. 22, 26 L.Ed.2d 489 (1970) (Justice Harlan, concurring). The Supreme Court has noted, however, that, “when a witness disappears before trial, it is always 5 possible to think of additional steps that the prosecution might have taken to secure the witness’ presence but the Sixth Amendment does not require the prosecution to exhaust every avenue of inquiry, no matter how unpromising.” Hardy v. Cross, 565 U.S. 65, 70, 132 S.Ct. 490, 494, 181 L.Ed.2d 468 (2011) (internal citations omitted). Title 12 O.S.Supp.2014, § 2804(A)(5) governs the use of prior testimony of a witness and embodies the requirements set forth by the Supreme Court; it requires the State to show that it has been unable to procure the witness by process or other reasonable means. This Court has 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. See Connell v. State, 1988 OK CR 234, I 7, 763 P.2d 383, 385. A finding of due diligence in this context requires more than simply the issuance of a subpoena for the witness but does not require that every possible avenue for locating the missing witness be exhausted. See Lavicky v. State, 1981 OK CR 87, I 16, 632 P.2d 1234, 1238; Monett U. State, 1997 OK CR 28, I 32, 939 P.2d 1, 10. We look to all relevant facts to see whether the State 6 has established good faith diligence. Bernary U. State, 1999 OK CR 37, I 15, 989 P.2d 998, 1006. Prior to trial the State filed a motion to declare witness unavailable and use transcript at jury trial. A hearing was held on the State’s motion on the first day of trial. At this hearing several witnesses testified about attempts made to locate the victim to secure her testimony at trial. At the close of this hearing the trial court found that the State had presented sufficient evidence to support a finding, under Section 2804, that the victim was unavailable. Indeed, the detailed evidence presented by the State regarding its attempts to locate the victim prior to trial was more than adequate to support the trial court’s findings regarding the victim’s unavailability and the State’s due diligence. Vineyard suffered no violation of his Sixth Amendment right to confrontation by the admission of the victim’s preliminary hearing testimony; she was properly found to be unavailable at trial and she had been subject to cross-examination at preliminary hearing. Relief is not required. 7 3. Vineyard claims that the evidence presented at trial was insufficient to support his conviction for assault and battery with a deadly weapon because the State did not prove each element of the crime beyond a reasonable doubt. This Court reviews challenges to the sufficiency of the evidence in the light most favorable to the State and will not disturb the verdict if any rational trier of fact could have found the essential elements of the crime charged to exist beyond a reasonable doubt. See Logsdon U. State, 2010 OK CR 7, I 5, 231 P.3d 1156, 1161; Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-04. In evaluating the evidence presented at trial, we accept the fact-finder’s resolution of conflicting evidence as long as it is within the bounds of reason. See Day v. State, 2013 OK CR 8, T 13, 303 P.3d 291, 298. This Court also accepts all reasonable inferences and credibility choices that tend to support the verdict. See Coddington v. State, 2006 OK CR 34, I 70, 142 P.3d 437, 456. The State proved each element of the crime of assault and battery with a deadly weapon beyond a reasonable doubt. This proposition is without merit. 8 4. Vineyard argues that the trial court erred in failing to instruct the jury on the lesser offense of pointing a firearm. “It is settled law that trial courts have a duty to instruct the jury on the salient features of the law raised by the evidence with or without a request.” Hogan v. State, 2006 OK CR 19, I 39, 139 P.3d 907, 923 (citing Atterberry v. State, 1986 OK CR 186, I 8, 731 P.2d 420, 422). See also Soriano v. State, 2011 OK CR 9, I 36, 248 P.3d 381, 396. Because Vineyard neither requested these instructions nor objected to the trial court’s failure to give them, review is for plain error only. See Rutan v. State, 2009 OK CR 3, I 78, 202 P.3d 839, 855. To be entitled to relief for plain error, an appellant must show: “(1) the existence of an actual error (i.e., deviation from a legal rule); (2) that the error is plain or obvious; and (3) that the error affected his substantial rights, meaning the error affected the outcome of the proceeding.” Hogan, 2006 OK CR 19, I 38, 139 P.3d at 923. “This Court will only correct plain error if the error seriously affects the fairness, integrity or public reputation of the judicial proceedings or 9 otherwise represents a miscarriage of justice.” Stewart v. State, 2016 OK CR 9, I 25, 372 P.3d 508, 514. It is true that the trial court must instruct on any lesser included offense warranted by the evidence. Jones U. State, 2006 OK CR 17, I 6, 134 P.3d 150, 154 (citing Shrum U. State, 1999 OK CR 41, 99 10-12, 991 P.2d 1032, 1036-37) (lesser included instructions should be given if supported by the evidence). An underlying requirement of Shrum, however, is that a lesser offense instruction should not be given unless the evidence would support a conviction for the lesser offense. Id. A defendant is entitled to a lesser included offense instruction only when prima facie evidence of the lesser included offense has been presented at trial. See Ball v. State, 2007 OK CR 42, T32, 173 P.3d 81, 90 (citing Glossip v. State, 2001 OK CR 21, I 28, 29 P.3d 597, 603-04). “Prima facie evidence of a lesser included offense is that evidence which would allow a jury rationally to find the accused guilty of the lesser offense and acquit him of the greater.” Davis U. State, 2018 OK CR 7, IT 7, 419 P.3d 271, 277 (quoting Davis U. State, 2011 OK CR 29, I 101, 268 P.3d 86, 116). 10 The evidence presented at trial was subject to dual interpretations. While it was sufficient to support Vineyard’s conviction for assault and battery with a deadly weapon, the jury could also reasonably have found from the same evidence that Vineyard intended only to willfully point his gun at Alexander to threaten her. Thus, an instruction on the lesser offense of pointing a weapon was warranted by the evidence and the trial court’s failure to instruct on this lesser offense, even in the absence of a request, was actual error which was plain or obvious. However, we cannot find that this error affected the outcome of the proceeding as is required for a finding of plain error. Hogan, 2006 OK CR 19, I 38, 139 P.3d at 923. Furthermore, this Court will not reverse on instructional error unless the error “has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.” Spence v. State, 2008 OK CR 4, I 8, 177 P.3d 582, 582; 20 O.S.2011, § 3001.1 (“No judgment shall be set aside unless it is the opinion of the reviewing court that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory 11 right.”). The trial court’s failure to instruct the jury, sua sponte, on the lesser offense of pointing a firearm was not plain error and relief is not required. 5. Vineyard asserts that even if no individual error in his case merits reversal, the cumulative effect of the errors committed warrants a new trial or sentence modification. The cumulative error doctrine applies when several errors occurred at the trial court level, but none alone warrants reversal. Although each error standing alone may be of insufficient gravity to warrant reversal, the combined effect of an accumulation of errors may require a new trial. Martinez U. State, 2016 OK CR 3, I 85, 371 P.3d 1100, 1119. Cumulative error does not deprive the defendant of a fair trial when the errors considered together do not affect the outcome of the proceeding. Baird v. State, 2017 OK CR 16, I 42, 400 P.3d 875, 886. A cumulative error claim is baseless when this Court fails to sustain any of the alleged errors raised on appeal. Id. There were no errors which, considered either individually or cumulatively, can be found to have deprived Lewis of a fair trial. This claim is denied. 12 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. (2020), the MANDATE is ORDERED issued upon delivery and filing of this decision. AN APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY THE HONORABLE JAMES M. CAPUTO, DISTRICT JUDGE APPEARANCES AT TRIAL APPEARANCES ON APPEAL ALFONSO LAMONSE VINEYARD SARAH MACNIVEN PRO SE APPELLATE DEFENSE COUNSEL BRIAN RAYL P.O. BOX 926 ASSISTANT PUBLIC DEFENDER NORMAN, OK 73070 423 S. BOULDER AVE., COUNSEL FOR APPELLANT SUITE 300 TULSA, OK 74103 STAND-BY COUNSEL FOR DEFENDANT HEATHER ANDERSON MIKE HUNTER ASST. DISTRICT ATTORNEY ATTORNEY GENERAL 500 SOUTH DENVER, SUITE 900 OF OKLAHOMA TULSA, OK 74103 THEODORE M. PEEPER COUNSEL FOR STATE ASSISTANT ATTORNEY GENERAL 313 N.E. 21 ST STREET OKLAHOMA CITY, OK 73105 COUNSEL FOR APPELLEE 13 OPINION BY: ROWLAND, J. LEWIS, P.J.: Concur KUEHN, V.P.J.: Concur in Results LUMPKIN, J.: Concur in Results HUDSON, J.: Concur 14

Click Here To Download PDF