Keith Lorenzo Sumpter v State Of Oklahoma

F-2018-738

Filed: Dec. 19, 2019

Not for publication

Prevailing Party: Keith Lorenzo Sumpter

Summary

Keith Lorenzo Sumpter appealed his conviction for committing lewd acts with a child under sixteen years old. His conviction and sentence were for thirty-five years in prison. Judge Hudson dissented.

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 error in excluding a hearsay statement against the penal interest of the declarant due to lack of corroborating trustworthiness?
• Did the admission of Preliminary Hearing testimony violate Appellant's right to confrontation due to inability to effectively cross-examine the witness?
• Was the Preliminary Hearing testimony inherently unreliable, thus violating Appellant's right to due process?
• Did federal due process require the admission of an exculpatory affidavit even if it did not comply with Oklahoma Rules of Evidence?
• Did prosecutorial misconduct occur that denied Appellant a fair trial?
• Did the accumulation of errors throughout the trial deprive Appellant of a fair trial?

Findings

• the trial court did not err in excluding Frederick's affidavit as it did not meet the requirements for admission under the hearsay exception.
• the admission of Frederick's Preliminary Hearing testimony was not error, plain or otherwise.
• there was no error in the admissibility of Frederick's Preliminary Hearing testimony as it bore sufficient indicia of reliability.
• the exclusion of Frederick's affidavit did not violate Appellant's right to present a defense.
• the prosecutor's conduct did not rise to the level of plain error that infected the trial and rendered it fundamentally unfair.
• there were no cumulative errors that require reversal or modification of the sentence.

F-2018-738

Dec. 19, 2019

Keith Lorenzo Sumpter

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, JUDGE: Appellant Keith Lorenzo Sumpter was tried by jury and found guilty of Indecent or Lewd Acts with a Child Under Sixteen (16) Years (21 O.S.Supp.2015, § 1123), in the District Court of Oklahoma County, Case No. CF-2016-4057. The jury recommended as punishment imprisonment for thirty-five (35) years and the trial court sentenced accordingly. It is from this judgment and sentence that Appellant appeals.

Appellant raises the following propositions of error in support of his appeal:

I. A hearsay statement that is against the penal interest of the declarant is admissible if there are corroborating circumstances that indicate trustworthiness. Frederick’s affidavit was against her penal interest and was corroborated; therefore, it was error to refuse to admit the exculpatory affidavit.

II. The Preliminary Hearing testimony of LaLethia Frederick should not have been admitted because Appellant was not able to effectively cross-examine Frederick on her subsequent repudiation of her testimony. Therefore, the introduction of this testimony violated Appellant’s right to confrontation.

III. The Preliminary Hearing testimony of LaLethia Frederick should not have been admitted because it was rendered inherently unreliable by her subsequent repudiation. Therefore, the introduction of this testimony did not fall under a hearsay exception and violated Appellant’s right to due process.

IV. Oklahoma Rules of Evidence must comport with federal constitutional due process. Even if this Court finds that the exculpatory affidavit was not admissible under a hearsay exception, then federal due process still requires that it be admitted.

V. The prosecutor committed misconduct in this case by improperly giving his own opinion of the defendant, bolstering the evidence, and by invoking sympathy for the alleged victim in this case.

VI. The accumulation of error in this case deprived Appellant of due process of law in violation of the Fifth and Fourteenth Amendments to the United States Constitution and Article II, § 7 of the Oklahoma Constitution.

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 I, Appellant argues the trial court erred in granting the State’s motion in limine to exclude a sworn affidavit made by Frederick (the victim’s mother) after Preliminary Hearing allegedly recanting her Preliminary Hearing testimony. The record reflects that approximately five months after her Preliminary Hearing testimony, Frederick went to defense counsel’s office and executed a sworn affidavit allegedly recanting her Preliminary Hearing testimony. Subsequently, and prior to trial, it came to the State’s attention that Frederick intended to invoke her Fifth Amendment privilege at Appellant’s trial and not testify. Approximately five days before the start of trial, the State moved to declare Frederick unavailable as a witness and use her Preliminary Hearing transcript at trial. The State informed the court that Frederick was potentially facing criminal charges of child neglect or enabling child abuse and that the Public Defender, who had been appointed to represent Frederick, had informed prosecutors that Frederick intended to invoke her Fifth Amendment rights at Appellant’s jury trial. After a hearing on the motion, the court ruled that Frederick was unavailable under 12 O.S.Supp.2014, § 2804(A)(1) and granted the State’s request to read her Preliminary Hearing testimony at trial.

At this hearing, defense counsel informed the court that Frederick had come to his office after Preliminary Hearing and executed a sworn affidavit basically recanting her entire testimony at the preliminary hearing saying she never saw anything; and as a matter of fact, the alleged victim came to her and said the defendant did not do anything to her. She just said this because he wouldn’t play with her and take her to the park, and she wanted him out of the house.

On the second day of trial, the State filed a Motion in Limine to Prohibit Testimony Regarding an Affidavit [Frederick’s recantation] explaining that in light of the court’s ruling that Frederick was unavailable, it sought to exclude any mention of her affidavit recanting her Preliminary Hearing testimony. The State argued that under 12 O.S. § 2804(B)(3), the affidavit exposed Frederick to criminal charges of perjury and there were no corroborating circumstances to indicate the affidavit’s trustworthiness. The trial court said only that Frederick’s affidavit was self-serving hearsay and thus inadmissible. The State’s Motion in Limine was granted.

Now on appeal, Appellant asserts the trial court erred in its ruling and the affidavit was admissible as a statement against Frederick’s penal interest pursuant to 12 O.S.Supp.2014, § 2804(B)(3). Appellant argues the trial court’s exclusion of the affidavit prevented him from impeaching L.H., the victim, and Frederick, her mother, and denied him his fundamental right to present a defense. Appellant asserts the error warrants reversal for a new trial or at the least sentence modification.

This objection was not raised at trial, nor did Appellant make an offer of proof as to what Frederick’s affidavit would have shown. Therefore, our review on appeal is for plain error.

We do not address Frederick’s ability to exercise her Fifth Amendment right as that was not challenged at trial and has not been raised in this appeal.

Under the test set forth in Simpson v. State, 1994 OK CR 40, 876 P.2d 690, this Court determines whether the 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. The United States Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense. Simpson v. State, 2010 OK CR 6, quoting Crane v. Kentucky, 476 U.S. 683 (1986).

The right to offer the testimony of witnesses is in plain terms the right to present a defense. This right is a fundamental element of due process of law. However, a criminal defendant’s right to present a defense is not absolute. United States v. Valenzuela-Bernal, 458 U.S. 858 (1992).

The defense does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence. This Court has said that [i]n the exercise of this right [to present a defense], the accused, as is required of the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence. Whether Appellant was denied the right to present a defense ultimately turns on whether the evidence at issue was admissible.

Title 12 O.S.Supp.2014, § 2804(B)(3) provides an exception to the hearsay rule for statements of an unavailable witness tending to expose the declarant to criminal liability and offered to exculpate the accused. Such statements are not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

In this case, all parties at trial and on appeal refer to the affidavit as hearsay on the basis that it subjected Frederick to perjury charges for testifying differently than she did at Preliminary Hearing. However, the affidavit was never authenticated pursuant to 12 O.S.2011, § 2901, it was not offered into evidence, nor was a proffer of its contents made to the court. Therefore, the only information we have about the contents of the affidavit is defense counsel’s statement to the court.

Assuming arguendo, the affidavit says what defense counsel said it does, it is not a recanting of Frederick’s Preliminary Hearing testimony. In both her Preliminary Hearing testimony and the affidavit, she admits she did not actually see any inappropriate conduct between Appellant and her daughter.

Based upon counsel’s summary of the affidavit, the only record before us, the affidavit is not a recanting or retraction of the Preliminary Hearing testimony. At most, particular statements in the affidavit may have been inconsistent with the Preliminary Hearing testimony. However, the statements, as described by defense counsel, would not have subjected Frederick to perjury charges. Therefore, the affidavit does not satisfy the first requirement for admission under § 2804(B)(3) as a statement against Frederick’s penal interest and it was properly excluded.

That the trial court used the wrong reason for excluding the affidavit does not change our conclusion that the evidence was properly excluded. Further, even if the trial court erred in excluding the affidavit, any error did not affect Appellant’s substantial rights as it did not deprive him of the ability to present a defense.

Appellant testified at trial and denied any lewd conduct with L.H. He refuted Frederick’s Preliminary Hearing testimony by denying that he called Frederick to tell her that he should not have let L.H. touch him.

Regarding L.H., defense counsel elicited testimony regarding motives L.H. may have had for her accusations against Appellant. As the exclusion of Frederick’s affidavit did not affect Appellant’s substantial rights or result in a miscarriage of justice, we find no plain error. This proposition is denied.

In Proposition II, Appellant contends that Frederick’s Preliminary Hearing testimony should not have been admitted at trial because he did not have the opportunity to cross-examine her about her (future) alleged recanting of a portion of that testimony. Appellant asserts the court’s error violated his confrontation rights under the Sixth Amendment and warrants either dismissal of his case, remand for a new trial, or otherwise favorable modification.

While counsel obviously could not have cross-examined Frederick at Preliminary Hearing about her future statements, counsel thoroughly cross-examined Frederick about her recollection and impressions of the alleged lewd conduct between Appellant and her daughter.

Based upon the record in the present case, defense counsel had a sufficient opportunity to question Frederick at Preliminary Hearing, took full advantage of that opportunity, with a motive similar to that which would have been used at trial – to discredit Frederick and refute her claim that Appellant committed a lewd act with L.H.

Based upon the foregoing, admission of Frederick’s Preliminary Hearing testimony was not error, plain or otherwise. This proposition is denied.

In Proposition III, Appellant challenges the admissibility of Frederick’s Preliminary Hearing testimony because it was later recanted. Appellant concedes the testimony was that of an unavailable witness pursuant to 12 O.S.Supp.2014, § 2804(B)(1), but argues the testimony did not bear the required indicia of reliability.

The State has the burden of satisfying two threshold requirements before Preliminary Hearing testimony is admissible under § 2804(B)(1): (1) the actual unavailability of the witness despite good faith and due diligent efforts to secure the presence of the witness at trial; and (2) the transcript of the witness’ testimony bears sufficient indicia of reliability to afford the trier of fact a satisfactory basis for evaluating the truth of the prior testimony.

Based on this record, the trial court could reasonably find the Preliminary Hearing testimony bore sufficient indicia of reliability to afford the trier of fact a satisfactory basis for evaluating the truth of the testimony.

There was no error, and thus no plain error in the admission of Frederick’s Preliminary Hearing testimony. This proposition is denied.

In Proposition IV, Appellant argues that even if this Court finds Frederick’s affidavit inadmissible under state evidentiary rules, federal due process requires its admission.

Our review of Appellant’s claim is for plain error as he raised no objection to the granting of the State’s motion in limine excluding the affidavit.

The testimony rejected by the trial court here bore persuasive assurances of trustworthiness and thus was well within the basic rationale of the exception for declarations against interest.

Unlike Chambers, Frederick’s affidavit (as summarized by defense counsel) was properly excluded as it did not meet the requirements of a well-established exception to the hearsay rule.

Accordingly, we find no plain error. This proposition is denied.

In Proposition V, Appellant contends he was denied a fair trial by prosecutorial misconduct. Relief will be granted on claims of prosecutorial misconduct only where the prosecutor committed misconduct that so infected the defendant’s trial that it was rendered fundamentally unfair.

Appellant first argues that during closing argument, the prosecutor improperly gave his personal opinion of guilt. Generally, prosecutors are to refrain from giving their opinion as to guilt. However, when that opinion is reasonably based on the evidence, there is no error.

Appellant also claims the prosecutor improperly aligned himself with the victim by saying he had a duty to L.H. It is improper for the prosecutor to align himself with the victim.

Finally, Appellant claims the prosecutor improperly sought sympathy for the victim in order not only to return a guilty verdict, but to ensure a long sentence. The prosecutor’s sentencing request was not error.

Having thoroughly reviewed Appellant’s challenges to the prosecutor’s conduct individually and cumulatively, we find the prosecutor’s conduct was not so improper or prejudicial so as to have infected the trial so that it was rendered fundamentally unfair.

Finally, in Proposition VI, Appellant argues the accumulation of errors denied him a fair trial. This Court has repeatedly held that a cumulative error argument has no merit when this Court fails to sustain any of the other errors raised by Appellant.

Accordingly, this appeal 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. 21 O.S.Supp.2015, § 1123
2. 12 O.S.Supp.2014, § 2804(A)(1)
3. 12 O.S. § 2804(B)(3)
4. 12 O.S.2011, § 2901
5. 20 O.S.2011, § 3001.1
6. 12 O.S.Supp.2014, § 2804(B)(1)
7. Davis U. State, 1988 OK CR 73, I 7, 753 P.2d 388, 391
8. Bernay U. State, 1999 OK CR 46, 989 P.2d 998
9. Chambers U. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973)
10. Lamar U. State, 2018 OK CR 8, I 49, 419 P.3d 283, 296
11. Ashton U. State, 2017 OK CR 15, II 18, 26-32, 400 P.3d 887, 893-97
12. Lee v. State, 2018 OK CR 14, I 20, 422 P.3d 782, 787

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1123 (2015) - Indecent or Lewd Acts with a Child Under Sixteen
• Okla. Stat. tit. 12 § 2804 (2014) - Hearsay Exceptions
• Okla. Stat. tit. 12 § 2901 (2011) - General Rule
• Okla. Stat. tit. 20 § 3001.1 (2011) - Plain Error Review

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

• 6 U.S.C. § 1001 - False statements or entries generally
• 18 U.S.C. § 1512 - Tampering with a witness, victim, or an informant
• 18 U.S.C. § 1602 - Definitions
• 18 U.S.C. § 2261 - Interstate domestic violence
• 18 U.S.C. § 2261A - Stalking
• 18 U.S.C. § 3501 - Admissibility of confessions
• 21 U.S.C. § 841 - Prohibited acts A

Other citations:

No other rule citations found

Case citations:

• Tryon v. State, 2018 OK CR 20, I 51, 423 P.3d 617, 635
• Simpson v. State, 2010 OK CR 6, I 9, 230 P.3d 888, 895
• Jackson v. State, 2016 OK CR 5, I 4, 371 P.3d 1120, 1121
• Levering v. State, 2013 OK CR 19, I 6, 315 P.3d 392, 395
• Davis v. State, 1988 OK CR 73, I 7, 753 P.2d 388, 391
• Bernay v. State, 1999 OK CR 46, 989 P.2d 998
• Mitchell v. State, 2016 OK CR 21, I 29, 387 P.3d 934, 945
• Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973)
• Lamar v. State, 2018 OK CR 8, I 49, 419 P.3d 283, 296
• Ashton v. State, 2017 OK CR 15, II 18, 26-32, 400 P.3d 887, 893-97
• Owens v. State, 2010 OK CR 1, I 17, 229 P.3d 1261, 1267-68
• Williams v. State, 2008 OK CR 19, I 107, 188 P.3d 208, 228
• Dodd v. State, 2004 OK CR 31, I 78, 100 P.3d 1017, 1041
• DeRosa v. State, 2004 OK CR 19, I 60, 89 P.3d 1124, 1146
• Warner v. State, 2006 OK CR 40, I 182, 144 P.3d 838, 889
• Malone v. State, 2013 OK CR 1, I 40, 293 P.3d 198, 211
• Croan v. State, 1984 OK CR 69, I 10, 682 P.2d 236, 238
• Lee v. State, 2018 OK CR 14, I 20, 422 P.3d 782, 787
• Stouffer v. State, 2006 OK CR 46, I 85, 147 P.3d 245, 266
• Hogan v. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923