Expert Witness

F-2018-805

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**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **JOHNNY EARL JONES,** **Appellant,** **v.** **THE STATE OF OKLAHOMA,** **Appellee.** **Case No. F-2018-805** **FILED** **IN COURT OF CRIMINAL APPEALS** **STATE OF OKLAHOMA** **JAN - 9 2020** **JOHN D. HADDEN, CLERK** **SUMMARY OPINION** **LUMPKIN, JUDGE:** Appellant, Johnny Earl Jones, was convicted by jury 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 a sentence of forty years imprisonment and a $5,000 fine, which the trial court imposed. Jones appealed from this judgment and sentence. 1. **Trial by Ambush:** Appellant contends that he was subjected to trial by ambush when the State called Corporal Eric Leverington as a witness without prior endorsement. However, the defense did not seek a continuance despite this late endorsement, and defense counsel had access to relevant materials, including Leverington's cell phone extraction report. Thus, the trial court’s decision to allow Leverington to testify was not an abuse of discretion, and appellant was not prejudiced. 2. **Ineffective Assistance of Counsel:** Appellant claims counsel was ineffective for opening the door to the cell phone evidence. The record indicates that defense counsel reviewed the report and made a strategic decision to call Leverington as a witness, which provided support for part of Appellant's narrative. The evidence against Appellant was substantial, and thus he could not demonstrate that but for counsel’s actions, the outcome would have been different. 3. **Admissibility of In-Life Photograph:** Appellant argues that a photograph of K.O. while alive was admitted in error. He did not object at trial, leading to a plain error review. The photograph was relevant to the defense that Appellant did not recognize the need for medical attention, and its probative value was not substantially outweighed by prejudicial effect. 4. **Prosecutorial Misconduct:** Appellant claims instances of prosecutorial misconduct, including misstatements regarding Appellant seeing Smith beat K.O. and regarding K.O.'s suffering. The evidence supports that Appellant knew of the abuse; thus, these claims did not deprive him of a fair trial. 5. **Admission of Pen Pack:** Lastly, Appellant characterizes prejudicial details in his previous offenses as grounds for error. However, under established law, pen packs are generally admissible to prove prior convictions, making their inclusion appropriate. **DECISION:** The judgment and sentence are AFFIRMED. **OPINION BY:** **LUMPKIN, J.** **LEWIS, P.J.:** Concur in Results **KUEHN, V.P.J.:** Concur in Results **HUDSON, J.:** Concur **ROWLAND, J.:** Concur in Results **KUEHN, V.P.J., CONCURRING IN RESULT:** While I agree with the affirmation of Appellant's conviction and sentence, I express concern regarding the prosecutor’s late endorsement of a witness which, while not resulting in prejudice, strays close to trial by ambush. I caution against such practices that may circumvent fair trial standards. [**Click Here To Download PDF**](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-805_1735213973.pdf)

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F-2018-401

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In OCCA case No. F-2018-401, Collins appealed his conviction for Felon in Possession of a Firearm. In an unpublished decision, the court decided to affirm his conviction. One judge dissented. Martino L. Collins was found guilty of having a gun even though he had previous felony convictions. He was sentenced to fourteen years in prison. Collins claimed that the trial was unfair because there was too much evidence about a shooting that he was not charged with, that certain expert testimony was wrong, and that he deserved credit for time spent in jail before the trial. The court looked at the evidence and decided that the shooting information was important for understanding why Collins was found with a gun. The jurors needed all the facts to make a fair decision. They found that there wasn't a mistake made by the trial court and that no one was unfairly harmed by this information. Collins also argued against certain things that witnesses said in court, but he didn't object to most of it during the trial, which meant he couldn’t complain about it later. Even when the court looked into the testimony by a ballistic expert, they found that it was okay for the expert to talk about his own findings. Lastly, the court said the law didn’t allow him credit for time he spent in jail before the trial began. Overall, after looking closely at everything, the court found no issues that would change Collins's conviction or sentence, so they kept the original decision.

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F-2018-391

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In OCCA case No. F-2018-391, Zachary Troy King appealed his conviction for Child Abuse by Injury. In an unpublished decision, the court decided to affirm the conviction and sentence. One judge dissented. Zachary Troy King was found guilty by a jury in a case where he was accused of injuring a child. The jury decided that he had caused harm to the child, and he was sentenced to twenty years in prison, with the first fifteen years needing to be served. King argued four main points in his appeal. First, King said that the evidence presented in his trial was not strong enough to prove he committed child abuse. He claimed that the injuries to the child were not clearly caused by him, and he thought the jury should not have convicted him. However, the court believed that there was enough evidence for any reasonable person to conclude that King did injure the child. Second, King claimed that the judge made a mistake by not allowing a mistrial after the prosecution introduced certain evidence. He argued that this evidence was not important or added to the case in a meaningful way. Yet, the court felt that the testimony included by the prosecution was relevant to proving injuries were intentionally inflicted rather than accidental. Third, King accused the prosecutor of acting unfairly during the trial, which made it hard for him to get a fair trial. The court reviewed the prosecutors' actions and felt there were no significant errors that would have impacted the trial's fairness. Lastly, King argued that the collection of mistakes in his trial added up to take away his right to a fair hearing. But, since the court did not find any errors that would require a reversal of the conviction, the claim was also denied. In conclusion, the court upheld the jury's decision and the trial judge's actions, stating that King received a fair trial and that there was enough evidence to support the conviction. The judgment from the trial court was confirmed, and King will continue to serve his sentence.

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F-2017-1140

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In OCCA case No. F-2017-1140, Michael Harold Denham appealed his conviction for Domestic Assault and Battery by Strangulation. In an unpublished decision, the court decided to affirm his conviction and sentence. One judge dissented. Michael Harold Denham was found guilty of a crime related to domestic abuse. The jury, which is a group of people that decides if someone is guilty or not, recommended that he be sentenced to three years in prison. The judge who oversaw the trial followed this recommendation and also ordered that Denham pay some fees and receive credit for the time he had already spent in jail before the trial. Denham's appeal claimed that several mistakes had occurred during his trial. He listed five main points where he believed the trial had not been fair: 1. The trial court allowed the state to have an expert witness testify about domestic abuse. Denham argued that this was a mistake. 2. He said that one of the witnesses who testified about domestic violence was not properly qualified to do so. 3. Denham claimed that some evidence was admitted that should not have been according to the rules of evidence. 4. He argued that the court did not let his defense team ask questions about one juror, which meant they could not see if the juror was biased. 5. Finally, he said that all these mistakes happened together and made the whole trial unfair. The court looked closely at Denham's claims and the evidence from the trial. They decided that the court did not make errors that were significant enough to change the outcome of the trial. For the first point about the expert witness, the court ruled that Denham did not show why his defense would have benefited from having his own expert witness. His claim of needing a continuance (more time) to prepare for the trial was not justified because he could not show how it would have helped his case. For the second point, the court decided that the qualifications of the expert witness were acceptable. The judge found that the officer had enough training and experience in domestic violence matters to testify. Regarding the third point, Denham did not follow the right procedure to complain about the late disclosure of the expert witness. As a result, the court found no major violations that would affect the trial's fairness. For the fourth point, the court reviewed how the trial judge handled questions for the jurors. They found that the process was fair because the juror had given no indication beforehand that she would be biased. Lastly, for the fifth point about the overall fairness of the trial, the court did not agree that the combined claims could show any level of unfairness. They found no cumulative error that would merit a different outcome. In conclusion, the court upheld Denham's conviction, deciding that he received a fair trial and that the claims of error did not have enough merit to change the verdict. The appeal was denied, and the conviction was confirmed, meaning Denham would serve his sentence as decided by the jury.

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F-2013-1129

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In OCCA case No. F-2013-1129, Aaron Mitchell Stigleman appealed his conviction for First Degree Murder. In an unpublished decision, the court decided to reverse and remand the case for a new trial. One judge dissented. The case involves Aaron Stigleman, who shot and killed his mother in Elk City, Oklahoma, on February 13, 2013. At the time of the incident, he lived with his girlfriend and mother, both of whom had a history of drug use, specifically methamphetamine. Aaron was believed to be suffering from paranoia and hallucinations due to his drug use leading up to the shooting. Witnesses, including his girlfriend, testified that he accused them of trying to kill him before he shot his mother in the head. During his trial, Stigleman's attorneys failed to secure an expert witness to help argue that he was under the influence of methamphetamine and not in control of his actions at the time of the crime. They tried to get funding for an expert, but their requests were either late or not sufficiently justified. As a result, they could not present an argument related to his mental state or introduce expert testimony that could aid in the defense of insanity or diminished capacity. The court noted that Stigleman's behavior before, during, and after the incident indicated the possibility of a serious mental health issue caused by drug use, which warranted an expert’s evaluation. The silence of an expert on the mental health issues surrounding his drug use could have made a significant difference in the outcome. The court ruled that Stigleman’s attorneys did not adequately represent him by failing to present a complete defense. The decision emphasized that the right to present a complete defense is constitutionally guaranteed. Based on these findings, the court deemed it necessary to grant Stigleman a new trial to allow for proper evaluation of his mental state. While one judge expressed disagreement, arguing that the defense had not shown that the lack of expert testimony prejudiced Stigleman's case, the majority concluded that the claims and evidence presented merited a reversal and a new opportunity for a fair trial.

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F-2010-555

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In OCCA case No. F-2010-555, Keighton Jon Budder appealed his conviction for First Degree Rape (Counts I and III), Assault and Battery with a Deadly Weapon (Count II), and Forcible Oral Sodomy (Count IV). In an unpublished decision, the court decided to modify his sentences for Counts I and III to life imprisonment with the possibility of parole. One judge dissented.

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C-2005-1

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In OCCA case No. C-2005-1, Victor Alfonso Duenas-Flores appealed his conviction for first-degree manslaughter. In a published decision, the court decided to grant his appeal, vacate the judgment and sentence, and allow him to withdraw his guilty plea. One judge dissented. Victor Duenas-Flores, who is from Mexico, was involved in a car accident on August 9, 2003, where he crossed the centerline of a highway and hit another car head-on, resulting in the death of the other driver. Duenas-Flores had a high blood alcohol content of 0.21 at the time of the accident. Due to this event, he was charged with first-degree manslaughter. On August 12, 2004, Duenas-Flores pleaded guilty to the charge in court and was sentenced to 45 years in prison. After some time, he wanted to change his plea but the court denied his request. He then took his case to a higher court, claiming that he was not informed about his rights under a treaty that allows foreign nationals to contact their consulate when they are in legal trouble. This lack of information made him feel pressured to plead guilty because he thought he would not have enough resources to defend himself without expert testimony, which he hoped to get help for from the Mexican consulate. The higher court found that the trial court had made an error. Even though it was confirmed that Duenas-Flores was not informed about his consulate rights as required, the trial court ruled that he could not prove that this violation affected his understanding of his guilty plea. The higher court disagreed and said that it was likely that Duenas-Flores would have chosen to go to trial instead of pleading guilty if he had known about his rights, and thus he should be allowed to withdraw his guilty plea. The ruling meant that Duenas-Flores had a chance to defend himself again, and the court did not assess whether his sentence was too long since they granted relief based on the violation of his rights.

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F-2003-1261

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In OCCA case No. F-2003-1261, Ronnie Odell Gargus appealed his conviction for Rape by Instrumentation, five counts of Sodomy, and Lewd Acts with a Child. In an unpublished decision, the court decided to affirm Gargus' convictions and sentences. One judge dissented. The case involved a jury trial where Gargus was found guilty of serious sexual offenses against a child. The jury decided on lengthy prison sentences for each count, totaling a significant amount of time in prison. Gargus raised two main points in his appeal. First, he argued that he should have been allowed to ask the State's expert witness about any bias in his testimony against Gargus. The court acknowledged that usually, a witness cannot be questioned about their past arrests if there was no conviction. However, the court agreed that there are times when it is important to explore a witness’s potential bias, especially if the witness has pending criminal issues. Despite this, the court found that excluding the questioning about the expert's bias did not change the outcome of the case since there was also strong evidence against Gargus, including the child’s own credible testimony. Second, Gargus claimed he was not properly informed before the court ordered him to pay restitution to the victim. The court noted that Gargus did not raise this issue during the trial. However, they agreed that the amount of restitution was not clearly supported by evidence, and that needed to be corrected. The court ordered a new hearing to determine the correct amount that Gargus should pay. Overall, the court upheld the convictions and long sentences but recognized that some legal issues concerning restitution needed further attention. They will have a new hearing to ensure the restitution amount is fair and based on proper evidence.

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