Frederick v. State

• Citation: 400 P.3d 786
• Decision Date: 25 May 2017
• Docket Number: Case No. D-2015-15
• Parties: Darrell Wayne FREDERICK, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

400 P.3d 786

Darrell Wayne FREDERICK, Appellant,

v.The STATE of Oklahoma, Appellee.

Case No. D-2015-15

Court of Criminal Appeals of Oklahoma.

Decided: May 25, 2017

As Amended June 23, 2017

APPEARANCES AT TRIAL, JAMES T. ROWAN, TIM WILSON, ASSISTANT PUBLIC DEFENDERS, 320 ROBERT S. KERR, STE. 611, OKLAHOMA CITY, OK 73102, COUNSEL FOR APPELLANT

DAVID W. PRATER, DISTRICT ATTORNEY, SUZANNE LAVENUE, CLAYTON NIEMEYER, ASSISTANT DISTRICT ATTORNEYS, 320 ROBERT S. KERR, STE. 505, OKLAHOMA CITY, OK 73102, COUNSEL FOR THE STATE

APPEARANCES ON APPEAL, GINA K. WALKER, ASSISTANT PUBLIC DEFENDER,

320 ROBERT S. KERR, STE. 611, OKLAHOMA CITY, OK 73102, COUNSEL FOR APPELLANT

E. SCOTT PRUITT, ATTORNEY GENERAL OF OKLAHOMA, JOSHUA L. LOCKETT, ASSISTANT ATTORNEY GENERAL, 313 N.E. 21st ST., OKLAHOMA CITY, OK 73105, COUNSEL FOR THE STATE

OPINION

LUMPKIN, PRESIDING JUDGE:

¶ 1 Appellant Darrell Wayne Frederick was tried by jury and convicted of First Degree Malice Murder (Count I) ( 21 O.S.2001, § 701.7(A) ), Assault and Battery with A Dangerous Weapon, After Former Conviction of Two or more Felonies (Count II) ( 21 O.S.2001, § 645 ), and Domestic Abuse Assault and Battery (Count III) ( 21 O.S.2001, § 644 (C) ), Case No. CF20111946, in the District Court of Oklahoma County. In Count I, the jury found the presence of three aggravating circumstances: 1) the defendant was previously convicted of a felony involving the use or threat of violence to the person; 2) the murder was especially heinous, atrocious and cruel; and 3) the existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society, and set punishment at death. In Counts II and III, the jury recommended imprisonment for twenty-five (25) years and one year, respectively. The trial judge sentenced Appellant in accordance with the jury's determination and ordered all sentences to run consecutively. Appellant now appeals his convictions and sentences.¹

¶ 2 On March 26, 2011, between 5:30 and 6:30 p.m., Da'Jon Diggs arrived at the home of her grandmother, Connie Frederick (hereinafter referred to as the deceased). The deceased was 85 years old and had been deaf and mute her entire life. She lived in the same house in northeast Oklahoma City in which she had raised six children. Ms. Diggs attended college in another city but frequently stopped by to check on the deceased. Ms. Diggs, like much of her family, communicated with the deceased through sign language. Also living at the deceased's home at the time was Appellant, her fifty-five (55) year old son. He had been living with the deceased since his release from prison in 2009.

¶ 3 Ms. Diggs entered the home to find Appellant and the deceased "fussing" in the kitchen. Ms. Diggs later explained that despite being mute for speech purposes, the deceased could still make some sounds and was "yelling" at Appellant through guttural noises and sign language involving exaggerated movements with her hands. Ms. Diggs saw Appellant aggressively grab food out of the deceased's hands. Appellant called the deceased a "bitch" and told her to get out of the kitchen. He then shoved her against the kitchen counter. Ms. Diggs intervened and took the deceased to her bedroom, where she was able to calm her.

¶ 4 Meanwhile, Appellant had retreated to his own bedroom. When Ms. Diggs returned to the kitchen to get the deceased a drink of water, Appellant appeared and told her not to take anything to the deceased. Ms. Diggs ignored this warning and took something to eat and drink to the deceased. The deceased wanted juice instead of water and tried to go to the kitchen. However, Appellant prevented her from entering the kitchen. Ms. Diggs then volunteered to go to the store for some juice.

¶ 5 While out of the house, Ms. Diggs phoned both her mother, who lived out of state, and her uncle, Tobias Frederick, to discuss her frustrations with Appellant. Both were the deceased's children and Tobias Frederick was an Oklahoma City Police Officer. Ms. Diggs told both her mother and her uncle that she was afraid Appellant would seriously hurt her or the deceased. When Ms. Diggs returned to the house, she heard Appellant answer the phone. Ms. Diggs was able to determine that it was her uncle Tobias that had called. He told Appellant that he had to leave the deceased's home and find another place to live. Appellant replied angrily, "man, I ain't got time for this" and hung up the phone. Ms. Diggs could hear Appellant yelling into the phone. Ms. Diggs headed for the deceased's bedroom and told her to stay in the bedroom no matter what happened. Ms. Diggs then shut the bedroom door.

¶ 6 Ms. Diggs headed into another room to retrieve her phone and call police when Appellant charged at her yelling, "oh, you have a problem with me too? I'll take you bitch." Appellant attacked Ms. Diggs, shoving her against the wall. The struggle moved from room to room with Diggs attempting to defend herself. Eventually, she was able to push Appellant off of her, causing him to stumble and she ran out of the house. Appellant chased after her.

¶ 7 Outside, neighborhood kids were playing. Seeing Appellant chase after Ms. Diggs, they shouted at her that Appellant had a brick or rock in his hand. Appellant chased Ms. Diggs around the yard, waving the brick or rock at her. Ms. Diggs ran to the neighbor's home and borrowed a phone to call the police. Appellant, who was dressed only in pajama pants, shouted at the neighborhood children and ran inside the house. He returned a few minutes later, fully dressed. By the time police arrived, Appellant had run around the back of the house. Bystanders heard the rattle of a chain link fence and Appellant was not seen or heard from the rest of the day.

¶ 8 Ms. Diggs followed police into the deceased's home. They found the deceased lying face down on the floor in her bedroom. The deceased had severe bruising and swelling on both sides of her head to the extent that one eye was nearly swollen shut. When asked who injured her, the deceased signed the letter "D" which she used to identify Appellant. The deceased was taken to the hospital. Once there, she was immediately operated on to reduce the pressure in her brain. She had developed a significant subdural hematoma

on the left side of her skull. The deceased survived the surgery but never regained consciousness. She passed away two to three weeks later. The cause of death was listed as blunt force trauma to the head.

¶ 9 Appellant was located a day after the deceased's beating. He was found walking along the street approximately three blocks from the deceased's home. When approached by police, he initially gave a false name but soon admitted his identity. His right hand was significantly swollen and his right finger was cut and bleeding. There was blood on his clothes. Bloodstains were also found in his bedroom at the decedent's home. Further facts will be set forth as necessary.

JURY SELECTION

¶ 10 In his first three propositions of error, Appellant asserts that he was denied a fair and impartial jury in several ways during jury selection. In Proposition One, Appellant asserts he was denied his state and federal constitutional rights to due process by the trial court's denial of his request to remove seven specific potential jurors for cause. Shortly before the exercise of the peremptory challenges, the defense moved to excuse for cause prospective jurors (hereinafter known by their initials) M.S., J.L.W., T.S., S.S., D.M., J.W., and J.S. The trial court denied the request as to each potential juror. Defense counsel later used peremptory challenges to remove all but one of these prospective jurors. The State used a peremptory challenge to remove potential juror J.S.

¶ 11 "In order to properly preserve for appellate review an objection to a denial of a challenge for cause, a defendant must demonstrate that he was forced over objection to keep an unacceptable juror." Eizember v. State, 2007 OK CR 29, ¶ 36, 164 P.3d 208, 220 (citing Browning v. State, 2006 OK CR 8, ¶ 8, 134 P.3d 816, 828.) "This requires a defendant to excuse the challenged juror with a peremptory challenge and make a record of which remaining jurors the defendant would have excused if he had not used that peremptory challenge to cure the trial court's alleged erroneous denial of the for cause challenge." Id.

¶ 12 Here, Appellant did not request additional peremptory challenges, nor did he identify which allegedly unfit jurors he would have excused had he been granted more challenges. As a result, Appellant has waived this claim for appellate review and we review only for plain error. Browning, 2006 OK CR 8, ¶ 9, 134 P.3d at 828. Under the test set forth in Simpson v. State , 1994 OK CR 40, ¶¶ 10, 26, 30, 876 P.2d 690, 694, 699, 701, 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. Id. Hogan v. State , 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923. See also Jackson v. State, 2016 OK CR 5, ¶ 4, 371 P.3d 1120, 1121 ; Levering v. State , 2013 OK CR 19, ¶ 6, 315 P.3d 392, 395.

¶ 13 In Wainwright v. Witt , 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841, 851–52 (1985), the United States Supreme Court held that the proper standard for determining when a prospective juror may be excluded for cause because of his or her views on capital punishment is "whether the juror's views would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ " See also Jones v. State , 2009 OK CR 1, ¶ 14, 201 P.3d 869, 877 ; Warner v. State , 2001 OK CR 11, ¶ 8, 29 P.3d 569, 573. The Court added that this standard does not require a juror's bias be proved with ...