State Of Oklahoma v Deangelo Favors

S-2005-1067

Filed: Aug. 18, 2006

Not for publication

Prevailing Party: Deangelo Favors

Summary

Deangelo Favors appealed his conviction for Shooting with Intent to Kill and Kidnapping. Conviction and sentence were affirmed. John C. Johnson dissented.

Decision

Appellee's Motion to Dismiss State's Appeal and Combined Brief in Support Thereof is DENIED. The ruling of the trial court denying the State's motion to use Roberta Verner's preliminary hearing testimony at trial is AFFIRMED. The case is REMANDED to the District Court for further proceedings consistent with this opinion. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2005), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Issues

• Was there a violation of the defendant's right to confrontation due to the exclusion of lesha Huggins' testimony at the preliminary hearing?
• Did the trial court err in allowing the State to use Ms. Verner's preliminary hearing testimony despite the defendant's inability to cross-examine her adequately?
• Was the State's appeal regarding the use of Ms. Verner's testimony proper under Title 22 O.S. Supp. 2002, § 1053(5)?
• Did the trial court abuse its discretion in finding Ms. Verner unavailable to testify at trial?

Findings

• the trial court did not abuse its discretion in denying the State's use of Ms. Verner's preliminary hearing testimony at trial
• the State exercised due diligence in seeking Ms. Verner as a witness
• the magistrate erred in denying the presentation of testimony from Ms. Huggins
• Appellee's Motion to Dismiss State's Appeal is denied
• the ruling of the trial court denying the State's motion to use Roberta Verner's preliminary hearing testimony at trial is affirmed

S-2005-1067

Aug. 18, 2006

State Of Oklahoma

Appellant

v

Deangelo Favors

Appellee

SUMMARY OPINION

LUMPKIN, VICE-PRESIDING JUDGE:

Appellee Deangelo Favors and co-defendant Marco Maurice Heath were charged in the District Court of Tulsa County with Shooting with Intent to Kill (Count I) (21 O.S.2001, § 652) and Kidnapping (Count II) (21 O.S. 2001, § 741), Case No. CF-2044-3299. Appellee was additionally charged with Assault and Battery (Count III) (21 O.S. 2001, § 644).

On November 5, 2004, a Preliminary Hearing was held. One witness, alleged victim Roberta Verner, was sworn. After the State’s direct examination, counsel for Appellee and counsel for co-defendant Heath cross-examined her. At the close of the State’s case, counsel for co-defendant Heath announced lesha Huggins was present and the defense wanted to call her to the stand. The magistrate asked counsel for an offer of proof concerning the relevance of Huggins’ testimony. Counsel said that Huggins would essentially testify that Verner had lied and the alleged crimes never occurred. The State objected arguing that Huggins’ testimony was not relevant to the preliminary hearing. Citing 22 O.S. 2001, §§ 258 and 259, the magistrate ruled Huggins’ testimony was not relevant for preliminary hearing purposes and denied the defense request to present her as a witness.

At the close of the preliminary hearing, both defendants were bound over for trial which was subsequently set for October 10, 2005. On October 10, 2005, the State filed a Motion to Use Transcript of Previous Testimony of Roberta Verner. Also on October 10, 2005, the defense requested a material witness warrant for lesha Huggins. Co-defendant Heath failed to appear and the case was reset to October 12, 2005. On October 12, trial was passed until October 17, when the matter was again passed to October 18, 2005. On that date, Appellee appeared for jury trial before the Honorable P. Thomas Thornbrugh, District Judge. Co-defendant Heath did not appear.

At a pre-trial hearing on the State’s motion to use Ms. Verner’s testimony, Judge Thornburgh, in a very meticulous and well-reasoned analysis, ruled: 1) that Ms. Verner was unavailable to testify within the meaning of 12 O.S. 2001, § 2804(A)(5); and 2) because Ms. Huggins had not been allowed to testify at the preliminary hearing, and the defense could not secure her presence at trial, allowing the State to use Ms. Verner’s transcript testimony violated Appellee’s right to confrontation. The State gave oral notice of its intent to appeal the ruling pursuant to 22 O.S. Supp. 2002, § 1053(5). Title 22 O.S.Supp.2002, § 1053(5) allows the State to appeal [u]pon a pretrial order, decision, or judgment suppressing or excluding evidence where appellate review of the issue would be in the best interests of justice.

On May 18, 2006, Appellee filed with this Court a Motion to Dismiss State’s Appeal and Combined Brief in Support Thereof. This motion is denied as we find the State’s appeal is proper and review of this issue is in the best interests of justice.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, exhibits, and briefs, we have determined that the trial court’s decision denying the State’s use of Ms. Verner’s preliminary hearing testimony should be affirmed. In appeals prosecuted pursuant to Section 1053, this Court reviews the trial court’s decision for an abuse of discretion. State v. Love, 1998 OK CR 32, IT 2, 960 P.2d 368, 369. An abuse of discretion has been defined as a conclusion or judgment that is clearly against the logic and effect of the facts presented. Id. See also Battles V. State, 1987 OK CR 19, IT 9, 732 P.2d 480, 482 (our standard of review is that where there is evidence to support the findings of the trial court, this Court will not reverse).

In its appellate brief, the State asserts that the District Court’s ruling that the transcript of Ms. Verner’s preliminary hearing testimony was not admissible because Ms. Huggins had not been allowed to testify at preliminary hearing, and therefore the defendant’s right to confrontation was violated was error. The State does not contest the trial court’s finding that Ms. Verner was legally unavailable to testify, however, Appellee does and argues the State did not make a good faith effort to locate the witness. Having thoroughly reviewed the record, we find the trial court’s determination that the State exercised due diligence in seeking Ms. Verner was supported by the evidence. See Primeaux V. State, 2004 OK CR 16, II 58, 88 3 P.3d 893, 905; Manuel U. State, 1990 OK CR 80, IT 9, 803 P.2d 714, 716. Therefore, the trial court did not abuse its discretion in finding her an unavailable witness.

Despite finding Ms. Verner unavailable to testify, the trial court found that under 22 O.S. 2001, § 2804(B)(1) the defense did not have the opportunity for adequate cross-examination of Ms. Verner at preliminary hearing due to the magistrate’s exclusion of Ms. Huggins’ testimony. Admission of evidence is left to the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. Williams v. State, 2001 OK CR 9, II 94, 22 P.3d 702, 724.

The record reflects the trial court heard argument from defense counsel as well as the prosecutor. Both attorneys and judge reviewed relevant case law from this Court and the United States Supreme Court concerning the purpose of preliminary hearing, the scope of cross-examination at preliminary hearing and the defendant’s constitutional right of confrontation. The trial court’s finding, that the magistrate erred when he denied the presentation of testimony from Ms. Huggins, the only other person present at the crime scene who was available at preliminary hearing but not available at trial and that this unfairly limited the defendant’s full exercise of his right to cross-examine or impeach Ms. Verner, was fully supported by the record and was not clearly against the logic and effect of the facts and law presented. Accordingly, the trial court’s ruling denying the State’s use of Ms. Verner’s preliminary hearing testimony at trial is affirmed and this appeal is denied.

DECISION

Appellee’s Motion to Dismiss State’s Appeal and Combined Brief in Support Thereof is DENIED. The ruling of the trial court denying the State’s motion to use Roberta Verner’s preliminary hearing testimony at trial is AFFIRMED. The case is REMANDED to the District Court for further proceedings consistent with this opinion. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2005), the MANDATE is ORDERED issued upon delivery and filing of this decision.

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Footnotes:

1. 21 O.S. 2001, § 652
2. 21 O.S. 2001, § 741
3. 21 O.S. 2001, § 644
4. 22 O.S. 2001, §§ 258 and 259
5. 12 O.S. 2001, § 2804(A)(5)
6. 22 O.S. Supp. 2002, § 1053(5)
7. 22 O.S. 2001, § 2804(B)(1)
8. Williams v. State, 2001 OK CR 9, II 94, 22 P.3d 702, 724
9. State v. Love, 1998 OK CR 32, IT 2, 960 P.2d 368, 369
10. Primeaux v. State, 2004 OK CR 16, II 58, 88 3 P.3d 893, 905
11. Manuel v. State, 1990 OK CR 80, IT 9, 803 P.2d 714, 716
12. Battles v. State, 1987 OK CR 19, IT 9, 732 P.2d 480, 482

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 652 (2001) - Shooting with Intent to Kill
• Okla. Stat. tit. 21 § 741 (2001) - Kidnapping
• Okla. Stat. tit. 21 § 644 (2001) - Assault and Battery
• Okla. Stat. tit. 22 § 258 (2001) - Preliminary Hearing
• Okla. Stat. tit. 22 § 259 (2001) - Evidence at Preliminary Hearing
• Okla. Stat. tit. 12 § 2804(A)(5) (2001) - Exception to Hearsay Rule
• Okla. Stat. tit. 22 § 1053(5) (Supp. 2002) - State's Appeal
• Okla. Stat. tit. 22 § 2804(B)(1) (2001) - Hearsay

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:

• State v. Love, 1998 OK CR 32, I 2, 960 P.2d 368, 369
• Battles v. State, 1987 OK CR 19, I 9, 732 P.2d 480, 482
• Primeaux v. State, 2004 OK CR 16, II 58, 88 P.3d 893, 905
• Manuel v. State, 1990 OK CR 80, I 9, 803 P.2d 714, 716
• Williams v. State, 2001 OK CR 9, II 94, 22 P.3d 702, 724