Brown v. State, 021518 OKCRI, D-2014-705
| Opinion Judge | LEWIS, VICE PRESIDING JUDGE. |
| Party Name | FABION DEMARGIO BROWN, Appellant, v. THE STATE OF OKLAHOMA, Appellee. |
| Attorney | FABION DEMARGIO BROWN PRO SE JAMES ROWAN (STANDBY COUNSEL) CATHERINE HAMMARSTEN (STANDBY COUNSEL) ASSISTANT PUBLIC DEFENDERS SCOTT ROWLAND DANIEL GRIDLEY ASSISTANT DISTRICT ATTORNEYS OKLAHOMA COUNTY BOBBY LEWIS JAMIE D. PYBAS INDIGENT DEFENSE SYSTEM ATTORNEYS FOR APPELLANT E. SCOTT PRUITT ATTORNE... |
| Judge Panel | LUMPKIN P.J., HUDSON, J., WINCHESTER, J., WALKLEY, J. Specially Concurs LUMPKIN, PRESIDING JUDGE: SPECIALLY CONCURRING. HUDSON, J., SPECIALLY CONCURS WALKLEY, JUDGE (By Special Appointment to the Court): SPECIALLY CONCURRING |
| Case Date | February 15, 2018 |
| Court | Court of Criminal Appeals of Oklahoma, Court of Criminal Appeals of Oklahoma |
AN APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY THE HONORABLE RAY C. ELLIOTT, DISTRICT JUDGE
FABION DEMARGIO BROWN PRO SE JAMES ROWAN (STANDBY COUNSEL) CATHERINE HAMMARSTEN (STANDBY COUNSEL) ASSISTANT PUBLIC DEFENDERS
SCOTT ROWLAND DANIEL GRIDLEY ASSISTANT DISTRICT ATTORNEYS OKLAHOMA COUNTY
BOBBY LEWIS JAMIE D. PYBAS INDIGENT DEFENSE SYSTEM ATTORNEYS FOR APPELLANT
E. SCOTT PRUITT ATTORNEY GENERAL CAROLINE E. J. HUNT ASSISTANT ATTORNEY GENERAL ATTORNEYS FOR APPELLEE
OPINION
LEWIS, VICE PRESIDING JUDGE.
¶1 Appellant, Fabion Demargio Brown 1, was charged conjointly with Brodric Lontae Glover and Emily Ann Matheson with two counts of first degree murder in violation of 21 O.S.2011, § 701.7, and one count of conspiracy to commit murder in violation of 21 O.S.2011, § 421, in the District Court of Oklahoma County, Case No. CF-2012-938. [2] The State filed a Bill of Particulars alleging two aggravating circumstances: (1) the defendant knowingly created a great risk of death to more than one person; and (2) the defendant committed the murder for remuneration or the promise of remuneration or employed another to commit the murder for remuneration or the promise of remuneration. 21 O.S.2011, § 701.12 (2) and (3).
¶2 Fabion's case was severed from his codefendants, and his trial commenced on June 16, 2014, before the Honorable Ray C. Elliott, District Judge. The jury found Fabion guilty on all counts and assessed punishment at death on the two first degree murder convictions, after finding the existence of both of the aggravating circumstances. The jury assessed ten (10) years imprisonment and a $5, 000 fine on the conspiracy count. Judge Elliott formally sentenced Fabion in accordance with the jury verdict on August 11, 2014. Thereafter, Fabion perfected his appeal to this Court. 3
I. FACTS
¶3 Fabion was the estranged husband of the victim, Jessica Brown. They were in the process of divorcing, and Fabion owed child support for their two children. The Browns' marital problems began sometime in 2009, and Jessica Brown told family and friends that she was afraid of her husband. Ms. Brown filed for divorce in April 2011, and she received temporary custody of the children. Fabion's child visitation was limited by court order but he wanted custody of their two children or, at least, expanded visitation.
¶4 During the summer of 2011, Ms. Brown became pregnant with a third child. She expressed plans to move back, with her children, to her home State of Washington to be near her family. Fabion told friends and acquaintances that he did not want Jessica to take the children away to Washington. Emily Matheson testified that Fabion discussed his options, including the killing of his wife, to get her out of the picture.
¶5 On the morning of January 11, 2012, officers of the Midwest City Police Department responded to a call reporting that two children, ages six and three, were in the street in front of Jessica Brown's home. Officers arrived and noticed that the front door of the home was open. Upon checking the home, officers found Jessica Brown lying lifeless at the foot of her bed. She had been shot in the head.
¶6 On that same day, Fabion appeared at the Oklahoma County courthouse for a hearing on his child support. He had told Matheson that he thought he would go to jail for not paying support. While he was at the courthouse, he was told that Jessica was found dead at her house.
¶7 Matheson testified against Fabion. She met Fabion in October 2011. They moved into an apartment together shortly thereafter. After they moved in together, Fabion began discussing the prospect of murdering Jessica. Fabion was employed at Club ATL as a disc jockey. Matheson spent quite a bit of time at the club. They met Brodric Glover at the club. Glover was employed to clean the club after it closed. Glover was included in the discussions about killing Jessica.
¶8 A plan was conceived whereby Glover would be paid $250 dollars for killing Jessica. Fabion wanted Glover to kill Jessica during the night while she was at home. Fabion told Glover how to get into the house and told him he could not use a.40 caliber weapon, as Fabion had once owned a.40 caliber weapon.
¶9 Matheson testified that the three of them drove by Jessica's house during the first week of January 2012. Fabion said that he wanted Jessica killed before his January 11 child support hearing.
¶10 On January 9, 2012, Fabion leased a Kia Soul, for one day, from a rental company located at the Sears store in Quail Springs Mall. Fabion took out a payday loan that day, met Glover, gave him $125, and gave him the Kia Soul. Fabion and Matheson went to a casino that night and rented a room. About midnight, Glover called and said the killing would not take place that night.
¶11 The next day, January 10, Fabion extended the lease of the Kia for an additional day. That evening, Fabion asked Jessica Eckiwaudah to spend the night and hang out. She agreed. Fabion, Matheson and Eckiwaudah played video games until about midnight. The three then turned in for the night. Eckiwaudah went to sleep on the couch.
¶12 At about 3:00 a.m. that night, Glover called Matheson and told her that the killing was done. She relayed the information to Fabion. Fabion gave her $125, and she drove Fabion's pickup to the Belle Isle Wal-Mart to meet Glover and pay him the $125. Eckiwaudah saw Matheson leave the apartment.
¶13 Glover was at the Wal-Mart in the Kia Soul with two other individuals. After meeting with Glover, Matheson returned to the apartment.
¶14 The investigation revealed that Jessica Brown died from two nine millimeter caliber gunshot wounds to the head. Jessica Brown's unborn child was viable at the time of her death, as her pregnancy was 24 weeks and two days along. The authorities utilized video surveillance tapes, wire-taps, cell phone usage data, and interviews before arresting Matheson, Fabion and Glover. Matheson was the first to be arrested. During her first contact with police, she denied any involvement, but later confessed to the murder plot. Glover did not testify.
II. ISSUES RELATED TO WAIVER OF COUNSEL AND PRO SE REPRESENTATION
¶15 In proposition one Fabion claims that the waiver of his right to counsel was not voluntary, knowing or intelligent. A defendant's right to waive representation by counsel and proceed pro se is found in the Sixth Amendment to the United States Constitution. 4 Faretta v. California, 422 U.S. 806, 818-21, 95 S.Ct. 2525, 2532-34, 45 L.Ed.2d 562 (1975). A waiver of the right to counsel is voluntary, knowing and intelligent when a defendant is informed of the dangers, disadvantages, and pitfalls of self-representation. Faretta, 422 U.S. at 835, 95 S.Ct. at 2541; Mathis v. State, 2012 OK CR 1, ¶ 7, 271 P.3d 67, 71-72. 5 These dangers "must be 'rigorous[ly]' conveyed." Iowa v. Tovar, 541 U.S. 77, 89, 124 S.Ct. 1379, 1388, 158 L.Ed.2d 209 (2004).
¶16 In determining whether a defendant has intelligently elected to proceed pro se, the question is not the wisdom of the decision or its effect upon the expeditious administration of justice. [A]n "intelligent" decision to waive counsel and proceed pro se is not the same as a "smart" or well-thought decision. The issue is whether the defendant was adequately informed and aware of the significance of what he was giving up, by waiving the right to be represented by counsel.
Mathis v. State, 2012 OK CR 1, ¶ 8, 271 P.3d 67, 72. Even when a defendant exhibits an unrealistic or foolish view of his case and possible defenses, he may still be granted the right to choose self-representation. Maynard v. Boone, 468 F.3d 665, 678 (10th Cir. 2006). It is only necessary that a defendant be made aware of the problems of self-representation so the record establishes that he understands that his actions in proceeding without counsel may be to his ultimate detriment. Id. at 678-79.
¶17 Fabion claims that he was forced to choose between either unprepared, ineffective counsel, or waive counsel and represent himself. Undoubtedly, a defendant who faces a choice between incompetent or unprepared counsel and appearing pro se faces a constitutional dilemma. United States v. Padilla, 819 F.2d 952, 955 (10th Cir.1987).
¶18 Fabion cites several instances where he complained about counsel before he decided to ask the trial court to allow him to represent himself. His complaints centered on a lack of communication and the inability to assert a speedy trial right. He voiced complaints about access to discovery materials, claimed counsel was misinforming him about significant legal issues, and improperly coercing him into taking a plea deal. Fabion continuously sent letters to the trial court complaining about his appointed counsel. Finally, in a letter dated March 10, 2014, Fabion requested that he be allowed to represent himself.
¶19 On March 13, 2014, the trial court conducted a hearing on Fabion's request pursuant to Faretta. As part of that hearing, the trial court specifically inquired whether or not Fabion was requesting to represent himself because counsel was constitutionally ineffective. A defendant's complaints about counsel must rise to the level of ineffectiveness that would allow a defendant to assert a right to new counsel. Padilla, 819 F.2d at 955.
¶20 This Court has recognized valid reasons for discharge of an appointed counsel and appointment of new counsel; they include demonstrable prejudice against the defendant, incompetence, and conflict of interest. Johnson v. State, 1976 OK CR 292, ¶ 33, 556 P.2d 1285, 1294. Neither a personality...
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