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IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA MARTINO L. COLLINS, ) ) Appellant, NOT FOR PUBLICATION ) V. ) No. F-2018-401 ) FILED STATE OF OKLAHOMA, ) IN COURT OF CRIMINAL APPEALS ) STATE OF OKLAHOMA Appellee. ) SEP 19 2019 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 2 affected the outcome of the proceeding.” Hogan U. 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 U. State, 2017 OK CR 16, I 25, 400 P.3d 875, 883; Tollett U. 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 U. 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 U. State, 2006 OK CR 40, “I 68, 144 P.3d 838, 868 overruled on other grounds by Taylor U. 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. 3 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 U. State, 1994 OK CR 42, 9 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. 1 1 Appellant also alleges in passing that “substantial other prejudicial information” related to the shooting was admitted, including testimony about the drugs found in his home and on his person on July 24th; that neighbors had moved away due to the incident; that Officer Ladd’s testimony suggested Appellant was affiliated with a gang; and Appellant’s refusal to cooperate with police in identifying the person who allegedly shot at him. While Appellant concludes this evidence was prejudicial, he provides no argument or authority to show that the admission of any of this specific evidence was plain error. Appellant’s challenges to this evidence are therefore waived from review. See Rule 4 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 U. State, 2008 OK CR 29, I 15, 207 P.3d 379, 383; Drake U. 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 U. 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 3.5(A)(5), Rules of Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019) (merely mentioning a possible issue in an argument or citation to authority does not constitute the raising of a proposition of error on appeal and constitutes a waiver of alleged error). 5 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 U. 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. 12 O.S.2011, §§ 2401-2403. 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 6 confronted with witnesses against him. Crawford U. 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 U. 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 7 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 U. 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 U. 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.” 8 Luna-Gonzalez v. State, 2019 OK CR 11, I 9, 442 P.3d 171, 174. 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. AN APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY THE HONORABLE TIMOTHY R. HENDERSON, DISTRICT JUDGE APPEARANCES AT TRIAL APPEARANCES ON APPEAL GARY CANTRELL CHAD JOHNSON ATTORNEY AT LAW OKLA. INDIGENT DEFENSE 1137 N. MERIDAN AVE. SYSTEM OKLAHOMA CITY, OK 73107 P.O. BOX 926 COUNSEL FOR DEFENDANT NORMAN, OK 73070 COUNSEL FOR APPELLANT STEPHANIE POWERS MIKE HUNTER KELLY COLLINS OKLA. ATTORNEY GENERAL ASST. DISTRICT ATTORNEYS KATHERINE R. MORELLI OKLAHOMA COUNTY ASST. ATTY. GENERAL 320 ROBERT S. KERR, SUITE 505 313 N.E. 21 ST STREET OKLAHOMA CITY, OK 73102 OKLAHOMA CITY, OK 73105 COUNSEL FOR THE STATE COUNSEL FOR APPELLEE OPINION BY: HUDSON, J. LEWIS, P.J.: CONCUR KUEHN, V.P.J.: CONCUR IN RESULTS LUMPKIN, J.: CONCUR IN RESULTS ROWLAND, J.: CONCUR 9 KUEHN, V.P.J., CONCURRING IN RESULTS: While I wholeheartedly agree the Majority reaches the correct result in this case, I take exception to the prosecutor’s tactics linking Appellant’s firearm-possession charge, for which he was tried and convicted, to a shooting-of-a-firearm crime, for which he was not charged, but seemingly tried. Police responded to reports of a gunfight outside Appellant’s home. Appellant was suspected of being one of the shooters; however, while drugs and ammunition were found in his home, guns weren’t. He was arrested on drug charges and, a day or two later, in a phone call from jail, he asked his girlfriend to retrieve some “game consoles” hidden outside his house. The girlfriend retrieved a heavy bag from behind Appellant’s house and took it to her mother’s house. Police seized the bag, which contained two firearms. Appellant, a multiple felon, was then charged with illegally possessing firearms. At trial, the State clearly sought to prove that he actually fired one as well, and endangered others in the process. 1 1 The prosecutor expressly relied on the inference that Appellant was involved in the gunfight to show that he was guilty of exercising dominion and control over firearms a few days later. Furthermore, in closing argument, the prosecutor told the jury: “Ladies and gentlemen, the evidence that you’ve heard has shown Presumably, the State didn’t charge Appellant with the shooting because the eyewitnesses could not (or were unwilling to) positively identify him as one of the shooters. Whatever the reason, I cannot agree that the State’s efforts to prove Appellant shot the firearm were entirely proper. Some of the evidence surrounding the initial shooting was clearly probative of the possession charge: how police came to find ammunition (and items of dominion and control) in Appellant’s home, and why they retrieved (apparently fresh) .40-caliber shell casings from the street. The bullets in the house supported a conclusion that Appellant had a gun in which to load them; the spent shell casings in the street were the same caliber as one of the guns seized two days later. But some of the State’s evidence was unwarranted. a man who is willing to [] shoot a firearm into a neighborhood where there’s children playing.” 2 The ballistics testimony is a prime example. The State was obviously trying to prove that Appellant shot the .40-caliber weapon on the night of the shooting. The jury already had evidence that the spent shell casings in the street were of the same caliber as one of the two firearms seized. But the State had to go the extra mile, calling ballistics expert to testify about what another ballistics expert concluded from test-firing one of the seized guns and comparing the markings on the spent casing to the casings found in the street. The entire argument surrounding the expert is unnecessary, as the State did not need to prove Appellant actually fired the weapon. 2 All of Appellant’s substantive claims address “other-crimes evidence” related to the shooting; he doesn’t challenge the sufficiency of the evidence used to support a conviction for firearm possession. Nor did he timely object below to most of the evidence he complains about now. With only one prior felony conviction, Appellant would have faced as much as ten years in prison for his crime. With just two prior felonies, he would have faced as much as life in prison. But Appellant had six felony convictions, including one for the same offense the jury convicted him of here. And despite the prosecutor’s request for a twenty-year sentence, the jury only recommended fourteen. I am confident the evidence Appellant complains about in Propositions I-III did not contribute to the verdict or the sentence. The insinuation that Appellant not only possessed a firearm but discharged one in a gunfight may have been inescapable in this fact pattern, but the State should tread carefully. I question the prosecutors’ tactics here. However, I would find any error harmless beyond a reasonable doubt. 3

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