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F-2018-401

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Martino L. Collins v State Of Oklahoma

F-2018-401

Filed: Sep. 19, 2019

Not for publication

Prevailing Party: Martino L. Collins

Summary

Martino L. Collins appealed his conviction for Felon in Possession of a Firearm. The conviction and sentence were for fourteen years in prison. Judge Kuehn dissented.

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. (2019), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Issues

  • Was there extensive evidence of an uncharged shooting that rendered Appellant's trial for felon in possession of a firearm unfair?
  • Did irrelevant and prejudicial details of the shooting incident cause the jury to assess a harsher sentence?
  • Did substitute ballistic expert testimony deny Appellant his right to confront witnesses?
  • Did the trial court lack authority to deny Appellant credit for time served in county jail prior to trial?

Findings

  • the court erred, evidence was properly admitted as res gestae
  • the court did not err, the testimony was relevant and not unfairly prejudicial
  • the court did not err, the admissibility of expert testimony was upheld
  • the court did not err, credit for time served was not warranted

F-2018-401

Sep. 19, 2019

Martino L. Collins

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

JOHN D. HADDEN
CLERK

HUDSON, JUDGE:

Appellant, Martino L. Collins, was tried and convicted by jury in Oklahoma County District Court, Case No. CF-2016-6478, of Felon in Possession of a Firearm, After Former Conviction of Two or More Felonies, in violation of 21 O.S.Supp.2014, § 1283. The jury recommended a sentence of fourteen years imprisonment. The Honorable Timothy R. Henderson, District Judge, presided at trial and sentenced Collins in accordance with the jury’s verdict. Judge Henderson also ordered credit for eighteen days county jail time served and imposed various costs and fees. Collins now appeals, alleging the following propositions of error on appeal:

I. EXTENSIVE EVIDENCE OF AN UNCHARGED SHOOTING RENDERED APPELLANT’S TRIAL FOR FELON IN POSSESSION OF A FIREARM UNFAIR;

II. SHOULD THIS COURT FIND THAT THE SHOOTING INCIDENT WAS GENERALLY ADMISSIBLE, IRRELEVANT AND PREJUDICIAL DETAILS THEREOF CAUSED THE JURY TO ASSESS A HARSHER SENTENCE;

III. SUBSTITUTE BALLISTIC EXPERT TESTIMONY DENIED APPELLANT HIS RIGHT TO CONFRONT WITNESSES; and

IV. THE TRIAL COURT LACKED AUTHORITY TO DENY APPELLANT CREDIT FOR TIME SERVED IN COUNTY JAIL PRIOR TO TRIAL.

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.

Although Appellant objected to the admission of the July 24th shooting evidence during a pretrial hearing, he failed to renew his objections at trial. Appellant has thus waived review on appeal for all but plain error. Bramlett v. State, 2018 OK CR 19, I 30, 422 P.3d 788, 798. To be entitled to relief for plain error, 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 v. State, 2006 OK CR 19, 38, 139 P.3d 907, 923. 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. Baird v. State, 2017 OK CR 16, I 25, 400 P.3d 875, 883; Tollett v. State, 2016 OK CR 15, I 4, 387 P.3d 915, 916; Hogan, 2006 OK CR 19, I 38, 139 P.3d at 923. Appellant fails to show actual or obvious error as the July 24th shooting evidence was properly admitted res gestae evidence. In Eizember v. State, 2007 OK CR 29, I 77, 164 P.3d 208, 230, this Court explained that evidence is considered res gestae, when: a) it is SO closely connected to the charged offense as to form part of the entire transaction; b) it is necessary to give the jury a complete understanding of the crime; or c) when it is central to the chain of events. Id. (quoting Warner v. State, 2006 OK CR 40, I 68, 144 P.3d 838, 868 overruled on other grounds by Taylor v. State, 2018 OK CR 6, 419 P.3d 265). Res gestae are those things, events, and circumstances incidental to and surrounding a larger event that help explain it. McElmurry v. State, 2002 OK CR 40, I 63, 60 P.3d 4, 22. Accord Vanderpool v. State, 2018 OK CR 39, I 24, 434 P.3d 318, 324.

As the trial court found, the admission of evidence regarding the shooting was central to the chain of events that led to the discovery of the firearm, which led to charging Appellant with the crime of Felon in Possession of a Firearm. Although Appellant argues this evidence was irrelevant and unfairly prejudicial, the evidence was highly probative of whether Appellant knowingly possessed a firearm as alleged by the State. Furthermore, evidence relating to the shooting helped complete a full picture of the transaction, and was properly introduced to present to the jury enough facts to understand the full sequence of events. Fontenot v. State, 1994 OK CR 42, I 47, 881 P.2d 69, 83 (internal quotation omitted). Thus, the evidence related to the shooting was properly admitted res gestae evidence and did not unfairly prejudice Appellant during either the guilt or sentencing phase of his trial. The trial court did not commit plain error by admitting this evidence, and thus Proposition I is denied.

Proposition II.

The record shows Appellant objected to only part of the testimony challenged in this proposition. Specifically, defense counsel objected at trial on relevancy grounds to the testimony about the age of Gregorio Hernandez’s daughters. Appellant has therefore preserved this aspect of his Proposition II claim for our review. Bramlett, 2018 OK CR 19, I 19, 422 P.3d at 795. We review the trial court’s admission of this testimony for an abuse of discretion. Folks v. State, 2008 OK CR 29, I 15, 207 P.3d 379, 383; Drake v. State, 1988 OK CR 180, I 15, 761 P.2d 879, 883. An abuse of discretion has been defined as a clearly erroneous conclusion and judgment, one that is clearly against the logic and effect of the facts presented[ ] or, stated another way, 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, I 35, 274 P.3d 161, 170 (internal quotation omitted). However, the balance of Hernandez’s testimony relating to details of the shooting, the presence of his children during same and his shock during this event drew no objection at trial. Our review of Appellant’s challenge to this particular testimony is thus limited to plain error. Williamson v. State, 2018 OK CR 15, I 12, 422 P.3d 752, 757. As discussed earlier in Proposition I, evidence of the shooting was admissible as part of the res gestae of the charged offense. Hernandez was an eyewitness to the shooting and his testimony helped provide the jury a full picture of what happened and the full sequence of events leading to Appellant’s arrest for the charged crime. Fontenot, 1994 OK CR 42, II 47, 881 P.2d 69 at 83. Notably, the State’s evidence showed that no one could identify Appellant as the shooter or even put the gun in his hands on July 24th. Under the total circumstances, this evidence was highly relevant and not unfairly prejudicial. There was thus no error, plain or otherwise, from the admission of the challenged testimony. Proposition II is denied.

Proposition III.

Appellant did not object to Ronald Jones’s testimony at trial. We therefore review this claim for plain error only. Bramlett, 2018 OK CR 19, I 30, 422 P.3d at 798. The Confrontation Clause guarantees the right of a defendant in a criminal trial to be confronted with witnesses against him. Crawford v. Washington, 541 U.S. 36, 42, 124 S. Ct. 1354, 1359, 158 L. Ed. 2d 177 (2004). Where testimonial evidence is at issue the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. Id., 541 U.S. at 68, 124 S. Ct. at 1374. Testimonial hearsay generally includes statements made during custodial interrogation, affidavits, prior testimony not subject to cross-examination by the defendant or statements that the declarant would reasonably expect to be used to prove some fact at a later trial. See Bullcoming v. New Mexico, 564 U.S. 647, 658 n.6, 131 S. Ct. 2705, 2713-14 n.6, 180 L. Ed. 2d. 610 (2011); Crawford, 541 U.S. at 68, 124 S. Ct. at 1374. This includes statements by technical investigators and analysts generated in forensic reports issued by police laboratories. Bullcoming, 564 U.S. at 660, 131 S. Ct. at 2714-15; Melendez-Diaz v. Massachusetts, 557 U.S. 305, 311, 129 S. Ct. 2527, 2532, 174 L. Ed. 2d 314 (2009). In the present case, Jones’s opinion testimony concerning the ballistics analysis was based upon his supervision of the ballistics analysis conducted by Patrick McLaughlin and his contemporaneous technical or peer review of the ballistics report prepared by McLaughlin. Testimony concerning McLaughlin’s results was inadmissible under the circumstances presented here and represented plain error but was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705 (1967). However, Jones’s opinion testimony that the test-fire round from the .40 caliber Hi-Point pistol matched the shell casings found on N.W. 99th Street, based upon his consideration of McLaughlin’s conclusions and upon his technical or peer review verifying McLaughlin’s conclusions, was proper opinion testimony. See 12 O.S.Supp.2011, § 2703. See also Marshall v. State, 2010 OK CR 8, IT 30, 232 P.3d 467, 475-76. Jones’s presentation of his own conclusion concerning the match between the .40 caliber Hi-Point and the three shell casings found in the street represented Jones’s independent analysis of the evidence. See Miller v. State, 2013 OK CR 11, I 113, 313 P.3d 934, 973-74; 12 O.S.Supp.2011, § 2703. Proposition III is denied.

Proposition IV.

Title 57 O.S.Supp.2015, § 138(G) makes clear that a criminal defendant only receives automatic credit for jail terms which occur after imposition of a judgment and sentence. Proposition IV is denied.

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. (2019), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Footnotes:

  1. 21 O.S.Supp.2014, § 1283
  2. Bramlett v. State, 2018 OK CR 19, I 30, 422 P.3d 788, 798.
  3. Hogan U. State, 2006 OK CR 19, 38, 139 P.3d 907, 923.
  4. Baird U. State, 2017 OK CR 16, I 25, 400 P.3d 875, 883
  5. Tollett U. State, 2016 OK CR 15, I 4, 387 P.3d 915, 916
  6. Fontenot U. State, 1994 OK CR 42, 9 47, 881 P.2d 69, 83
  7. 12 O.S.2011, §§ 2401-2403
  8. Williamson U. State, 2018 OK CR 15, I 12, 422 P.3d 752, 757.
  9. Crawford U. Washington, 541 U.S. 36, 42, 124 S. Ct. 1354, 1359, 158 L. Ed. 2d 177 (2004).
  10. Bullcoming U. New Mexico, 564 U.S. 647, 658 n.6, 131 S. Ct. 2705, 2713-14 n.6, 180 L. Ed. 2d. 610 (2011).
  11. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 311, 129 S. Ct. 2527, 2532, 174 L. Ed. 2d 314 (2009).
  12. Chapman U. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705 (1967).
  13. 12 O.S.Supp.2011, § 2703.
  14. Marshall v. State, 2010 OK CR 8, IT 30, 232 P.3d 467, 475-76.
  15. Title 57 O.S.Supp.2015, § 138(G)
  16. Luna-Gonzalez v. State, 2019 OK CR 11, I 9, 442 P.3d 171, 174.

Oklahoma Statutes citations:

  • Okla. Stat. tit. 21 § 1283 (2014) - Felon in Possession of a Firearm
  • Okla. Stat. tit. 12 § 2401 (2011) - General Admissibility of Relevant Evidence
  • Okla. Stat. tit. 12 § 2402 (2011) - Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time
  • Okla. Stat. tit. 12 § 2403 (2011) - Hearsay Exceptions
  • Okla. Stat. tit. 12 § 2703 (2011) - Opinion Testimony by Lay Witnesses
  • Okla. Stat. tit. 57 § 138(G) (2015) - Credit for Jail Time Served

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:

  • Bramlett v. State, 2018 OK CR 19, I 36, 422 P.3d 788, 799-800
  • Hogan v. State, 2006 OK CR 19, 38, 139 P.3d 907, 923
  • Baird v. State, 2017 OK CR 16, I 25, 400 P.3d 875, 883
  • Tollett v. State, 2016 OK CR 15, I 4, 387 P.3d 915, 916
  • Eizember v. State, 2007 OK CR 29, I 77, 164 P.3d 208, 230
  • Warner v. State, 2006 OK CR 40, "I 68, 144 P.3d 838, 868
  • Taylor v. State, 2018 OK CR 6, 419 P.3d 265
  • McElmurry v. State, 2002 OK CR 40, I 63, 60 P.3d 4, 22
  • Vanderpool v. State, 2018 OK CR 39, I 24, 434 P.3d 318, 324
  • Fontenot v. State, 1994 OK CR 42, I 47, 881 P.2d 69, 83
  • Folks v. State, 2008 OK CR 29, I 15, 207 P.3d 379, 383
  • Drake v. State, 1988 OK CR 180, I 15, 761 P.2d 879, 883
  • Neloms v. State, 2012 OK CR 7, I 35, 274 P.3d 161, 170
  • Williamson v. State, 2018 OK CR 15, I 12, 422 P.3d 752, 757
  • Crawford v. Washington, 541 U.S. 36, 42, 124 S. Ct. 1354, 1359
  • Bullcoming v. New Mexico, 564 U.S. 647, 658 n.6, 131 S. Ct. 2705, 2713-14 n.6
  • Melendez-Diaz v. Massachusetts, 557 U.S. 305, 311, 129 S. Ct. 2527, 2532
  • Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828
  • Marshall v. State, 2010 OK CR 8, IT 30, 232 P.3d 467, 475-76
  • Miller v. State, 2013 OK CR 11, I 113, 313 P.3d 934, 973-74
  • Luna-Gonzalez v. State, 2019 OK CR 11, I 9, 442 P.3d 171, 174

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