Johnny Earl Jones v The State Of Oklahoma

F-2018-805

Filed: Jan. 9, 2020

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

# Johnny Earl Jones appealed his conviction for Child Neglect. Conviction and sentence of forty years imprisonment and a $5,000 fine. Judge Kuehn dissented. In this case, Johnny Earl Jones was found guilty of Child Neglect and received a long prison sentence. He thought there were mistakes during his trial that made it unfair. He argued that he was surprised by some evidence, including information about cell phone records, and that his lawyer didn't do a good job defending him. The court looked at his complaints closely but decided that the mistakes he mentioned didn't actually hurt his case. For instance, even though the state called an important witness without letting his lawyer know first, the court believed that the witness's testimony didn't unfairly harm Jones's defense. Jones also mentioned that his lawyer let in some evidence that he thought was bad for him, but the court found that the evidence was actually helpful because it backed up some of his statements. In the end, the court confirmed that his trial was fair and rejected his appeals.

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. (2018), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was Appellant subjected to trial by ambush due to the late endorsement of a witness and admission of surprise evidence?
• Was Appellant denied effective assistance of counsel by opening the door to prejudicial evidence without prior examination?
• Was the admission of a photograph of the decedent while alive relevant and unduly prejudicial in a non-homicide prosecution?
• Did the prosecution's references to facts not in evidence and appeals to juror sentiment prevent a fair trial?
• Did prejudicial details of Appellant's previous offenses render the second stage of trial unfair?

Findings

• the court did not err in allowing the late endorsement of the witness
• the court did not err in finding that Appellant was not denied effective assistance of counsel
• the trial court did not err in admitting the photograph of the decedent
• the prosecutor's statements did not constitute plain error
• the admission of the Mississippi pen pack was not error

F-2018-805

Jan. 9, 2020

Johnny Earl Jones

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, JUDGE: Appellant, Johnny Earl Jones, was tried by jury and convicted of Child Neglect, After Former Conviction of Two or More Felonies, in violation of 21 O.S.Supp.2014, § 843.5(C), in the District Court of Tulsa County Case Number CF-2017-1887. The jury recommended punishment of forty years imprisonment and payment of a $5,000.00 fine. The trial court sentenced Appellant accordingly. From this judgment and sentence, Appellant appeals.

Appellant raises the following propositions of error in this appeal:

I. Appellant was subjected to trial by ambush, as the District Court allowed the State to endorse and elicit surprise evidence from an expert witness on the fifth day of trial as part of its case-in-chief.

II. Alternatively, Appellant was denied effective assistance of counsel by trial counsel’s unreasonable decision to open the door to highly prejudicial phone extraction evidence which she had not even examined.

III. State Exhibit 9, a photograph of the decedent while alive, was irrelevant and unduly prejudicial in this non-homicide prosecution.

IV. The prosecution’s references to facts not in evidence and appeals to juror sentiment prevented a fair trial.

V. Prejudicial details of Appellant’s previous offenses in the Mississippi pen pack rendered the second stage of trial unfair.

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, Appellant is not entitled to relief.

Appellant contends in his first proposition he was tried by ambush because the State called Corporal Eric Leverington as its witness although he was not an endorsed witness. Appellant indicated he would call the corporal in his case in chief. Thereafter, the State advised it would call Leverington as its witness and orally moved to endorse him. Appellant argues he was prejudiced because the State called Leverington. Also within this proposition, Appellant argues cell phone extraction evidence was admitted improperly. We find this claim is waived. Under Rule 3.5(A)(5), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2017), each proposition of error shall be set out separately. The failure to follow this rule waives consideration of the issue on appeal. Willis v. State, 2017 OK CR 23, I 23, 406 P.3d 30, 35. Appellant’s failure to raise the claim regarding the cell phone extraction evidence as a separate proposition has waived it from appellate review.

With regard to the late endorsement claim, the defense objected at trial to Leverington as a State’s witness in its case in chief based on the fact that the State did not endorse him, but did not request a continuance since Leverington was also a defense witness. When a defendant alleges the late endorsement of a witness, this Court will review the trial court’s decision to permit the witness to testify for an abuse of discretion. McCoy v. State, 1977 OK CR 260, I 2, 568 P.2d 1294, 1295. An abuse of discretion is a clearly erroneous conclusion and judgment, one that is clearly against the logic and effect of the facts presented or, stated otherwise, 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 citation and quotation marks omitted). In Perez v. State, 1980 OK CR 59, I 2, 614 P.2d 1112, 1113, this Court held (t)he late endorsement of witnesses will not be a ground for reversal unless it affirmatively appears that the defendant was prejudiced in the preparation and presentation of his defense.

The record shows that defense counsel received notice that additional discovery, including Leverington’s cell phone extraction report, was available within the discovery limitation period prior to trial. On the first day of trial, April 2, 2018, defense counsel filed a motion for continuance, arguing she needed an expert to explain GPS data revealed in the cell phone extraction report. The State objected and proposed that the defense call Leverington as a defense witness to testify regarding the GPS data. Defense counsel was reluctant to use Leverington, but after speaking with him, defense counsel advised the trial court she believed his testimony would be sufficient for the case to move forward.

On the fifth day of trial, the State orally moved to endorse Leverington as its witness. The trial court allowed the endorsement because the defense intended to call him as a witness and believed allowing the State to present him would aid in moving the trial along.

When the State sought to admit Leverington’s cell phone extraction report, defense counsel objected. The crux of defense counsel’s objection to the report’s admission was that she thought only testimony regarding the relevant portions would be admitted, not the report itself in its entirety. The trial court overruled the objection, finding the report admissible. Defense counsel acknowledged to the court that she reviewed Leverington’s cell phone extraction report. During the State’s questioning of Leverington, he testified his cell phone extraction data showed Appellant never received a phone call from Smith, Appellant’s girlfriend and the victim, K.O.’s, caretaker, at the time Appellant indicated to police that she called him.

The evidence against Appellant was great, including his own statements. Appellant saw K.O.’s leg was stiff, saw his body react every time Smith touched him, knew K.O. did not want to move and he knew K.O. received Nyquil. Appellant repeatedly accused Smith of doing something to K.O., knowing that she had a prior conviction for child abuse and blamed K.O. for their relationship problems, and he knew she previously beat K.O. with a back scratcher. Based upon the record, Appellant cannot show any prejudice from counsel’s alleged ineffective assistance as required by Strickland. Proposition Two is denied.

In Proposition Three, Appellant complains that the State admitted an in life photograph of K.O. He admits he did not lodge a contemporaneous objection to the photograph’s admission at trial. Consequently, review of this claim is for plain error as set forth in Simpson U. State, 1994 OK CR 40, 876 P.2d 690. Appellant’s defense was that he did not realize K.O. needed medical attention when he first saw the child at around 6:00 a.m. In light of this defense, K.O.’s in life photograph was highly relevant to the issue of whether someone who saw K.O. while healthy and then saw him after his injuries occurred would have known to seek medical attention for K.O. The probative value of this evidence was not substantially outweighed by danger of unfair prejudice. Thus, the trial court did not err in admitting K.O.’s in life photograph. Proposition Three is denied.

In Proposition Four, Appellant maintains the prosecutor committed numerous instances of prosecutorial misconduct. Specifically, he argues: the prosecutor falsely told the jury Appellant saw Smith beat K.O. until he bled; the prosecutor argued K.O. suffered for hours before his death; and the prosecutor improperly claimed K.O.’s life could have been saved if Appellant had acted. Because Appellant did not object to these instances at trial, our review is for plain error as set forth above in Simpson. We find none of the complained of instances deprived Appellant of a fair trial. Proposition Four is denied.

In his final proposition, Appellant argues his Mississippi pen pack, admitted during the second stage of trial to prove his prior convictions, contained indictment forms that showed some facts supporting his prior offenses. He claims this information was prejudicial to him and was inadmissible. The defense lodged no objection to this evidence so review is for plain error. Thus, admission of the pen pack including the prior indictments was not error. Proposition Five 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. (2018), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

1. 1 Appellant will have to serve 85% of his sentence before becoming eligible for parole consideration. 21 O.S. Supp.2015, § 13.1.
2. 2 "Objected" is a generous description of what actually occurred. Defense counsel "just wanted it noted for the record that Corporal Leverington was not an endorsed witness by the State. Obviously, I'm not asking for a continuance at this time, and I wanted to call Corporal Leverington also."
3. 3 this Court will review the trial court's decision to permit the witness to testify for an abuse of discretion. McCoy v. State, 1977 OK CR 260, I 2, 568 P.2d 1294, 1295.
4. 4 to testify regarding the GPS data.
5. 5 received a phone call from Smith, Appellant's girlfriend and the victim, K.O.'s, caretaker, at the time Appellant indicated to police that she called him.
6. 6 "(t)he late endorsement of witnesses will not be a ground for reversal unless it affirmatively appears that the defendant was prejudiced in the preparation and presentation of his defense." Perez v. State, 1980 OK CR 59, I 2, 614 P.2d 1112, 1113.
7. 7 Strickland U. Washington, 466 U.S. 668, 687 (1984). Malone U. State, 2013 OK CR 1, I 14, 293 P.3d 198, 206.
8. 8 Lee v. State, 2018 OK CR 14, I 14, 422 P.3d 782, 786 (where there is a reasonable basis for counsel's actions, trial strategy will not be second-guessed on appeal).
9. 9 Harrington v. Richter, 562 U.S. 86, 112 (2011).
10. 10 As the prosecutor's argument was reasonably based upon the evidence, we find that Appellant has not shown that error, plain or otherwise occurred. Ashton v. State, 2017 OK CR 15, I 49, 400 P.3d 887, 899 overruled by Williamson v State, 2018 OK CR 15, 422 P.3d 752.
11. 11 A review of the evidence shows that the statement was accurate. K.O.'s left and right ribs were fractured and there can be no question that broken ribs are extremely painful.
12. 12 K.O. did not arrive at Hillcrest Hospital unresponsive until 1:30 p.m.
13. 13 Bland v. State, 2000 OK CR 11, I 101, 4 P.3d 702, 728.
14. 14 Frazier v. State, 1994 OK CR 31, 11 12-13, 874 P.2d 1289, 1289.
15. 15 Dyke v. State, 1986 OK CR 44, I 25, 716 P.2d 693, 700 ("the Information may be introduced into evidence to support the State's allegation" that the appellant had a prior conviction); Tice U. State, 1955 OK CR 59, I 2, 283 P.2d 872, 874 ("[T]he best method of proving a prior conviction is made first by offering in evidence the indictment, or information, judgment, sentence, and commitment.").

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 843.5 - Child Neglect
• Okla. Stat. tit. 21 § 13.1 - Parole Eligibility
• Okla. Stat. tit. 22 § 2002 - Discovery
• Okla. Stat. tit. 22 § 303 - Witness Endorsement
• Okla. Stat. tit. 12 § 2401 - General relevance
• Okla. Stat. tit. 12 § 2402 - General admissibility of relevant evidence
• Okla. Stat. tit. 12 § 2403 - Exclusion of relevant evidence on grounds of prejudice

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

• 17 U.S.C. § 107 - Limitations on exclusive rights: Fair use
• 21 O.S. Supp.2015, § 13.1 - Eligibility for parole consideration

Other citations:

No other rule citations found.

Case citations:

• Bramlett v. State, 2018 OK CR 19, I 36, 422 P.3d 788, 799-800
• Willis v. State, 2017 OK CR 23, I 23, 406 P.3d 30, 35
• McCoy v. State, 1977 OK CR 260, I 2, 568 P.2d 1294, 1295
• Neloms v. State, 2012 OK CR 7, I 35, 274 P.3d 161, 170
• Perez v. State, 1980 OK CR 59, I 2, 614 P.2d 1112, 1113
• Malone v. State, 2013 OK CR 1, I 14, 293 P.3d 198, 206
• Bland v. State, 2000 OK CR 11, I 113, 4 P.3d 702, 731
• Harrington v. Richter, 562 U.S. 86, 112 (2011)
• Lee v. State, 2018 OK CR 14, I 14, 422 P.3d 782, 786
• Harmon v. State, 2011 OK CR 6, I 48, 248 P.3d 918, 937
• Simpson v. State, 1994 OK CR 40, 876 P.2d 690
• Rutan v. State, 2009 OK CR 3, I 78, 202 P.3d 839, 855
• Mitchell v. State, 2010 OK CR 14, I 97, 235 P.3d 640, 661
• Bland v. State, 2000 OK CR 11, I 101, 4 P.3d 702, 728
• Davis v. State, 2011 OK CR 29, I 78, 268 P.3d 86, 129
• Ashton v. State, 2017 OK CR 15, I 49, 400 P.3d 887, 899
• Williamson v. State, 2018 OK CR 15, 422 P.3d 752
• Goode v. State, 2010 OK CR 10, I 44, 236 P.3d 671, 680
• Frazier v. State, 1994 OK CR 31, I 12-13, 874 P.2d 1289, 1289
• Dyke v. State, 1986 OK CR 44, I 25, 716 P.2d 693, 700
• Tice v. State, 1955 OK CR 59, I 2, 283 P.2d 872, 874