Traevon Dontyce Harbert v The State Of Oklahoma

F-2018-586

Filed: Sep. 12, 2019

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Traevon Dontyce Harbert appealed his conviction for First Degree Murder, Felon in Possession of a Firearm, and Conspiracy to Commit Murder. His conviction and sentence included life in prison for the murder, two years for firearm possession, and four years for conspiracy, all served one after the other. Judge Rowland dissented. In the court's opinion, they reviewed the evidence and determined it was strong enough to support the jury's decision that Harbert was guilty. They mentioned things like video footage and phone records that placed him at the crime scene and linked him to the murder weapon. Additionally, they considered his actions and statements leading up to the murder as proof that he was involved in planning it. Harbert argued that he should have been allowed to present evidence to support his defense, but the court decided that the trial judge made the right call in excluding that evidence. They concluded that Harbert's rights were not violated and that he had a fair trial. In the end, the court affirmed the judgment and sentence, meaning they agreed with the lower court's decision to convict him.

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 sufficient evidence to support Mr. Harbert's convictions in Counts 1 and 3?
• did the trial court commit reversible error by excluding evidence related to the issuance of an arrest warrant for another murder suspect?

Findings

• the evidence was sufficient to support the convictions for Counts 1 and 3
• the trial court did not abuse its discretion in excluding the evidence related to the arrest warrant affidavit

F-2018-586

Sep. 12, 2019

Traevon Dontyce Harbert

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, JUDGE: Appellant, Traevon Dontyce Harbert, was tried by jury and convicted of Count 1, First Degree Murder, in violation of 21 O.S.Supp.2012, § 701.7, Count 2, Felon in Possession of a Firearm, in violation of 21 O.S.Supp.2014, § 1283, and Count 3, Conspiracy to Commit Murder, after former conviction of two or more felonies, in violation of 21 O.S.2011, § 421, in the District Court of Oklahoma County Case Number CF-2016-2482. The jury recommended punishment as follows: Count 1, imprisonment for life; Count 2, two years imprisonment; and Count 3, four years imprisonment. The trial court sentenced Appellant accordingly and ran the sentences consecutively. It is from this judgment and sentence that Appellant appeals.

Appellant raises the following propositions of error in this appeal:

I. Because the evidence was insufficient to support Mr. Harbert’s convictions in Counts 1 and 3, due process requires his case to be reversed and remanded with instructions to dismiss both counts.

II. The trial court committed reversible error by excluding evidence that Detective Henry stated in a sworn arrest warrant affidavit that security video showed two other named individuals commit the charged crimes as this evidence went to Appellant’s defense and its exclusion violated his Constitutional rights.

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 no relief is warranted.

In Proposition One, Appellant argues the State failed to prove beyond a reasonable doubt his identity as the killer of Demario Davis and that he killed Davis with malice aforethought. This Court follows the standard for the determination of the sufficiency of the evidence which the United States Supreme Court set forth in *Jackson v. Virginia*, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); *Easlick v. State*, 2004 OK CR 21, 90 P.3d 556; *Spuehler v. State*, 1985 OK CR 132. Under this test, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Circumstantial evidence can provide proof of an element of a crime, including malice aforethought. *Phillips v. State*, 1999 OK CR 38. Moreover, the manner of killing and the pattern of wounds may support a finding of intent to kill.

The State had to prove beyond a reasonable doubt that Appellant caused the unlawful death of Davis with malice aforethought and that he knowingly agreed with at least one other person to commit murder and one of the parties to the agreement committed an overt act towards that murder. Appellant contends the State did not sufficiently prove his identity as Davis’s killer or that he caused Davis’s death with malice aforethought. He further contends the State failed to sufficiently prove that he was a party to any agreement to commit murder.

We disagree and find there was sufficient evidence presented from which the jury could find Appellant guilty of Counts 1 and 3 beyond a reasonable doubt. The evidence established that Appellant’s face bears a Hoover gang symbol indicating his high rank. Items bearing his gang moniker of Get One, including a birthday card to him from his Lil Bro, Kentrell Buxton, were found in his apartment. Buxton was killed a few days before Davis’s murder. On a jail recording made a day and a half prior to Davis’s murder, Appellant stated he was searching for the shooter in the Altima to retaliate for the lick that had gone bad.

Surveillance video from the crime scene showed a car, identified as belonging to Appellant’s gang associate Goins’ sister, entering the apartment complex on the night Davis was murdered as he sat in his Nissan Altima. Appellant was looking for a Nissan Altima in his quest to avenge Buxton’s killing. The video showed two men of similar height and slim build exit the Goins car, parked several spaces down from Davis’s vehicle, and walk toward it. The men walked toward Davis’s car and the Goins car drove slowly behind them before stopping in the entrance to the complex. The men stopped behind Davis’s car and the shooter shot Davis with a 9mm caliber handgun through the back driver’s side window and door.

After shooting Davis, the men ran to the Goins car, jumped inside and the driver drove away from the apartments. Appellant’s phone records placed him near the crime scene mere minutes prior to Davis’s murder. The medical evidence showed Davis sustained three gunshot wounds, one in the left temple, one in the right upper back and one in the middle back. When police searched Appellant’s apartment on the day after the murder, they found a 9mm caliber Ruger handgun hidden in Appellant’s bedroom. Testing revealed that this was the gun used to kill Davis and that Appellant’s DNA was on the gun grip. Shortly after the search, Appellant made a phone call from jail and during the conversation, stated that police found the gun used to hit the dude.

Viewed in the light most favorable to the State, this evidence was clearly sufficient for the jury to find beyond a reasonable doubt that Appellant conspired to murder Davis and killed him with malice aforethought. Proposition One is denied.

In Proposition Two, Appellant claims he was denied the right to present a defense by the trial court’s exclusion of evidence related to the issuance of an arrest warrant for another murder suspect. We review this claim for an abuse of discretion. A defendant has the right to present a defense, but he must comply with rules of procedure and evidence which are designed to assure fairness and reliability in criminal proceedings. The question of whether a defendant was denied the right to present a defense turns upon whether the evidence the defendant sought to use in support of the defense was admissible.

Witnesses at the crime scene viewed the surveillance video prior to police and gave police names of three possible suspects. Detective Henry testified he and other officers interviewed the named individuals. When they compared these individuals’ physical appearances to those of the men shown on the video, the appearances were not a match. Thereafter, Detective Henry testified that additional information caused the focus of the investigation to shift away from those individuals to Appellant.

Prior to cross-examining Detective Henry, defense counsel sought to present testimony of the detective that he obtained an arrest warrant on the day of Davis’s murder for one of the men witnesses named as a possible suspect after the witness watched the surveillance video. Sustaining the State’s objection, the trial court found that the detective never stated in the affidavit that he viewed the video and further found that the suspect information originated from a witness.

The trial court did not abuse its discretion in ruling the evidence was inadmissible for impeachment purposes. Furthermore, the record shows that defense counsel questioned Detective Henry about his investigation into the three suspects named by the witnesses and about how his investigation led away from them and toward Appellant. During the presentation of his defense, two apartment complex witnesses testified that they believed other individuals were involved in the murder.

Consequently, there was no denial of Appellant’s right to present a defense nor of his confrontation right. Proposition Two 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. 1 Appellant must serve 85% of his sentence before becoming eligible for consideration for parole. 21 O.S.Supp.2015, § 13.1.
2. 2 Appellant misrepresents the record with the claim that his witnesses testified they recognized the men shown on the surveillance video. The record clearly shows that neither witness positively identified the men on the video.
3. 3 The warrant and affidavit are contained in the record as Court's Exhibit 1.
4. 4 See 12 O.S.2011, § 2613 (impeachment by prior inconsistent statement requires the existence of a prior inconsistent statement); Grayson v. State, 1987 OK CR 277, I 12, 747 P.2d 971, 974 (where witness's prior statement did not conflict with her trial testimony, the trial court did not abuse its discretion by disallowing impeachment with the prior statement).

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.7 (2012) - First Degree Murder
• Okla. Stat. tit. 21 § 1283 (2014) - Felon in Possession of a Firearm
• Okla. Stat. tit. 21 § 421 (2011) - Conspiracy to Commit Murder
• Okla. Stat. tit. 21 § 13.1 (2015) - Parole Eligibility
• Okla. Stat. tit. 12 § 2613 (2011) - Impeachment by Prior Inconsistent Statement

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:

• Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)
• Easlick v. State, 2004 OK CR 21, I 15, 90 P.3d 556, 559
• Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-204
• Phillips v. State, 1999 OK CR 38, I 27, 989 P.2d 1017, 1029
• Robinson v. State, 2011 OK CR 15, I 18, 255 P.3d 425, 432
• Simpson v. State, 2010 OK CR 6, I 9, 230 P.3d 888, 895
• State v. Farthing, 2014 OK CR 4, I 4, 328 P.3d 1208, 1209
• Crane v. Kentucky, 476 U.S. 683, 106 S. Ct. 2142, 90 L. Ed. 2d 636 (1986)
• Holmes v. South Carolina, 547 U.S. 319, 126 S. Ct. 1727, 164 L. Ed. 2d 503 (2006)
• Davis v. State, 2011 OK CR 29, I 156, 268 P.3d 86, 125
• Thrasher v. State, 2006 OK CR 15, I 7, 134 P.3d 846, 849
• Delaware v. Van Arsdall, 475 U.S. 673, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986)
• Grayson v. State, 1987 OK CR 277, I 12, 747 P.2d 971, 974