Michael David Williams v The State Of Oklahoma

M-2006-1334

Filed: May 4, 2008

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

# Michael David Williams appealed his conviction for misdemeanor Domestic Abuse. Conviction and sentence affirmed for Case No. CM-2004-278, and reversed with instructions to dismiss for Case No. CM-2004-2765. A. Johnson dissented.

Decision

The Judgment and Sentence of the District Court of Cleveland County, in Case No. CM-2004-278 finding Appellant, Michael David Williams, guilty of Domestic Abuse (a misdemeanor) and sentencing him on November 22, 2006, to a fine of $1,000.00 and one (1) year confinement is AFFIRMED, but the Judgment and Sentence in CM-2004-2765 is REVERSED WITH INSTRUCTIONS TO DISMISS. Upon receiving the mandate, the District Court shall correct its Judgment and Sentence to reflect the vacating of Appellant's conviction in CF-2004-2765; however, in doing so it shall leave intact the $1,000.00 fine in CF-2004-278. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2008), MANDATE IS ORDERED ISSUED upon the filing of this decision.

Issues

• Was there an error in permitting out-of-court statements through the State's improper impeachment of its own witness?
• Did the evidence sufficiently support the convictions?
• Did the cumulative effect of prosecutorial misconduct deprive Mr. Williams of a fair trial for both charges?

Findings

• the court erred in allowing hearsay evidence from police officers about out-of-court statements made by the victim for impeachment purposes
• evidence was sufficient to support the conviction for the February 3rd incident, but insufficient for the December 15th incident
• the court found no prosecutorial misconduct during closing arguments that would have influenced the outcome of the trial
• judgment and sentence affirmed for the February 3rd incident, reversed with instructions to dismiss for the December 15th incident

M-2006-1334

May 4, 2008

Michael David Williams

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

C. JOHNSON, VICE PRESIDING JUDGE:

Appellant, Michael David Williams, was charged by Information in the District Court of Cleveland County with separate counts of misdemeanor Domestic Abuse in Case Nos. CM-2004-278 and CM-2004-2765. The two cases were consolidated for jury trial. The jury returned verdicts of guilty that fixed punishment at one (1) year confinement and a fine of $1,000.00 on each count. On November 22, 2006, the Honorable Jequita Napoli, Special Judge, sentenced Appellant in accordance with these verdicts, except the judge neglected to impose one of the $1,000.00 fines. Judge Napoli also ordered Appellant’s terms of confinement to be served concurrently. Williams appeals this Judgment and Sentence and raises the following propositions of error:

1. The trial court erred when it permitted out-of-court statements gained through the State’s improper impeachment of its own witness, and the trial court failed to give a limiting instruction.

2. The evidence was insufficient to support the convictions.

3. The cumulative effect of prosecutorial misconduct deprived Mr. Williams of a fair trial for both charges.

In CM-2004-278, conviction was under 21 O.S.2001, § 644(C). In CM-2004-2765, conviction was under 21 O.S.Supp.2004, § 644(C). In each of Appellant’s cases, his common-law wife, Tina Williams, was the alleged victim of the Domestic Abuse. In CM-2004-278, the abuse was alleged to have occurred on February 3, 2004, and in CM-2004-2765, another incident of abuse was alleged for December 15, 2004. Although on each occasion, Mrs. Williams had told responding police officers that Appellant assaulted her, at trial she testified that she got into a fight with her aunt on February 3rd and that on December 15th she had fallen over her children’s bicycles while going down some stairs into her garage.

In Proposition I, Appellant cites error in the trial court permitting the State, over Appellant’s hearsay objections, to offer police officer testimony about statements that Mrs. Williams had made to the officers during their investigations. Claiming this evidence constituted prior inconsistent statements, the State elicited the evidence to impeach Mrs. Williams’ trial testimony that Appellant had not caused her injuries. Because Mrs. Williams’ trial testimony was that she was intoxicated when she spoke to police and did not recall making the statements but did not deny making them, Appellant concludes the prior statements are not inconsistent with her testimony as required for the impeachment by prior inconsistent statements. There is authority for concluding that a witness who testifies that they cannot remember making a prior statement can be impeached by proof of their prior statements. That being so, Appellant has not made a clear showing of any abuse of discretion by the trial court; hence, he has not shown merit in this portion of his Proposition I.

The remaining portion of Appellant’s Proposition I asserts error in the District Court having failed to instruct the jurors that they could only consider the testimony about Mrs. Williams’ prior statements in determining her credibility and that they were prohibited from considering them as proof of innocence or guilt. Because Appellant did not request this instruction or object to the instructions given at trial, review is limited to plain error. To be entitled to relief under the plain error doctrine, [Appellant] must prove: 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. If these elements are met, this Court will correct plain error only if the error seriously affect[s] the fairness, integrity or public reputation of the judicial proceedings or otherwise represents a miscarriage of justice. Hogan v. State, 2006 OK CR 19, 38, 139 P.3d 907, 923 (citation omitted).

Applying these conditions to Appellant’s cases, we find they are met as concerns Appellant’s conviction for the December 15th offense alleged in CM-2004-2765, but that they are not met as concern his conviction in CM-2004-278 for the February 3rd offense. In Leeks V. State, 95 Okl.Cr. 326, 332, 245 P.2d 764, 770 (1952); the Court recognized that when a large part of the state’s evidence consisted of evidence offered for impeachment purposes of the state’s own witnesses, it becomes the positive duty of the court to limit the consideration of such evidence as going only to the credibility of the witnesses and not to be considered as substantive evidence by the jury. In Appellant’s matter, we have grave doubt whether the jury would have found the evidence sufficient to convict in CM-2004-2765 were it known by them that they could not consider the statements made by Mrs. Williams to the investigating officer on December 15th as proof of Appellant’s guilt. Those statements constituted the only evidence linking Appellant to Mrs. Williams’ December 15th injuries – injuries that the investigating officer acknowledged could be consistent with a fall such as that which Mrs. Williams had testified to at trial as the cause of her injuries.

Not so for the State’s evidence of Mrs. Williams’ February 3rd injuries in CM-2004-278. In that case, the evidence revealed that a 911 call resulted in the dispatch of Norman police to a home near Mrs. Williams’ residence. At this neighbor’s home, police observed Mrs. Williams wearing a bloody shirt with fresh bruises on her lips, arms, and forehead. She had patches of hair missing and a glob of [hair] hanging from the bottom of her hair. Police had arrived only minutes after the 7:58 A.M. dispatch to find Appellant alone in Mrs. Williams’ residence. There was no sign of the aunt that Mrs. Williams’ trial testimony accused of committing the assault. Admitted at trial as exhibits were over 40 photographs taken by police of the interior of the Williams home depicting what the officers observed that day.

The exhibits and police testimony revealed the following signs of a recent struggle within the home: blood smears and splatters on the floor and walls; clumps of pulled hair in the kitchen and bedroom matching the appearance of Mrs. Williams’ hair; a telephone cord pulled from the kitchen wall and a broken phone receiver; a chair, ashtray, and trashcan all overturned. Police found a jacket belonging to Appellant on the couple’s bed. The jacket had fresh bloodstains on its sleeve. As one of the responding officers escorted Mrs. Williams back to her residence, Mrs. Williams became scared, despite the fact that police had secured Appellant in the back of a patrol car. Officers testified that Mrs. Williams was fearful of making a complaint against Appellant.

Because the State presented extensive evidence about the February 3rd offense that was wholly independent of the evidence about Mrs. Williams’ prior statements, we have no reasonable doubt that the outcome of Appellant’s trial in CM-2004-278 would have been the same had the pretermitted impeachment instruction been given to Appellant’s jury. We therefore do not find Proposition I presents plain error as concerns Appellant’s conviction in CM-2004-278.

As concerns Appellant’s sufficiency of the evidence claim in Proposition II, the Court finds that this independent evidence of the February 3rd offense was sufficient for rational jurors to find beyond a reasonable doubt that Appellant committed each of the elements of an offense of Domestic Battery against Mrs. Williams. This is not so for the limited evidence of the December 15th episode that runs towards guilt. That evidence was insufficient for any rational juror to find guilt beyond a reasonable doubt. Accordingly, Appellant’s conviction in CM-2004-2765 must be reversed with instructions to dismiss.

Proposition III claims prosecutorial misconduct in three comments made during closing argument. Concerning the first two comments, we do not find they are reasonably construed as vouching for the credibility of the police witnesses or as giving the prosecutor’s personal opinion about the truthfulness of the complainant’s testimony. Appellant also complains that the prosecutor attempted to elicit sympathy for the victim. There was no objection to this particular statement, and we therefore review only for plain error. Reviewing the comments for plain error, we reverse only if the comments had ‘a substantial influence on the outcome, or leave the reviewing court ‘in grave doubt as to whether it had such an effect. Hancock v. State, 2007 OK CR 9, 101, 155 P.3d 796, 820, quoting Simpson v. State, 1994 OK CR 40, 36, 876 P.2d 690, 702. The prosecutor’s comment cited by Appellant as error does not rise to this level.

DECISION

The Judgment and Sentence of the District Court of Cleveland County, in Case No. CM-2004-278 finding Appellant, Michael David Williams, guilty of Domestic Abuse (a misdemeanor) and sentencing him on November 22, 2006, to a fine of $1,000.00 and one (1) year confinement is AFFIRMED, but the Judgment and Sentence in CM-2004-2765 is REVERSED WITH INSTRUCTIONS TO DISMISS. Upon receiving the mandate, the District Court shall correct its Judgment and Sentence to reflect the vacating of Appellant’s conviction in CM-2004-2765; however, in doing so it shall leave intact the $1,000.00 fine in CM-2004-278. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2008), MANDATE IS ORDERED ISSUED upon the filing of this decision.

APPEARANCES AT TRIAL

HENRY HERBST ATTORNEY FOR DEFENDANT
115 SOUTH PETERS, SUITE 5
NORMAN, OKLAHOMA 73069

APPEARANCES ON APPEAL

JUDITH L. JOHNSON
OKLA. INDIGENT DEFENSE SYSTEM
P.O. BOX 926
NORMAN, OKLAHOMA 73070
ATTORNEY FOR APPELLANT

LYNELL BECK
W. A. DREW EDMONDSON, ASSISTANT DISTRICT ATTORNEY
ATTORNEY GENERAL OF OKLAHOMA
201 SOUTH JONES
NORMAN, OKLAHOMA 73069
ATTORNEY FOR STATE OF OKLAHOMA

DIANE L. SLAYTON
ASSISTANT ATTORNEY GENERAL
313 NORTHEAST 21ST STREET
OKLAHOMA CITY, OKLAHOMA 73105
ATTORNEYS FOR APPELLEE

OPINION BY: C. JOHNSON, V.P.J.
Lumpkin, P.J.: Concurs in Results
Chapel, J.: Concurs in Results
A. Johnson, J.: Concurs in Results
Lewis, J.: Concurs in Results

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Footnotes:

1. In CM-2004-278, conviction was under 21 O.S.2001, § 644(C).
2. In CM-2004-2765, conviction was under 21 O.S.Supp.2004, § 644(C).
3. Hogan v. State, 2006 OK CR 19, 9 38, 139 P.3d 907, 923.
4. Hill v. State, 1995 OK CR 28, T 26, 898 P.2d 155, 164.
5. Instruction No. 9-20, OUJI-CR (2d) (Supp. 2008).
6. Lay v. State, 2008 OK CR 7, 1 24, P.3d (Okl.Cr Feb. 12, 2008).
7. Norton v. State, 2002 OK CR 10, T 17, 43 P.3d 404, 409.
8. Carter U. State, 2006 OK CR 42, T 5, 147 P.3d 243, 244.
9. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed. 2d 560 (1979).
10. Smallwood v. State, 1995 OK CR 60, 1 37, 907 P.2d 217, 229.
11. Nickell v. State, 194 OK CR 73, T 7, 885 P.2d 670, 673.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 644(C) - Domestic Abuse
• Okla. Stat. tit. 21 § 644(C) - Domestic Abuse
• Okla. Stat. tit. 22 § 831(5) - Jury Instructions
• Okla. Stat. tit. 22 § 856 - Jury Instructions

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
• Douglas v. State, 1997 OK CR 79, 11 88-89, 951 P.2d 651, 676
• Hogan v. State, 2006 OK CR 19, 9 38, 139 P.3d 907, 923
• Hill v. State, 1995 OK CR 28, T 26, 898 P.2d 155, 164
• Lay v. State, 2008 OK CR 7, 1 24, P.3d (Okl.Cr Feb. 12, 2008)
• Norton v. State, 2002 OK CR 10, T 17, 43 P.3d 404, 409
• Carter v. State, 2006 OK CR 42, T 5, 147 P.3d 243, 244
• Leeks v. State, 95 Okl.Cr. 326, 332, 245 P.2d 764, 770
• Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed. 2d 560 (1979)
• Hancock v. State, 2007 OK CR 9, 1 101, 155 P.3d 796, 820
• Smallwood v. State, 1995 OK CR 60, 1 37, 907 P.2d 217, 229
• Nickell v. State, 194 OK CR 73, T 7, 885 P.2d 670, 673