Fuston v. State

• Citation: 470 P.3d 306
• Decision Date: 05 March 2020
• Docket Number: Case No. D-2017-773
• Parties: Ronnie Eugene FUSTON, Appellant v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

470 P.3d 306

Ronnie Eugene FUSTON, Appellant

v.The STATE of Oklahoma, Appellee.

Case No. D-2017-773

Court of Criminal Appeals of Oklahoma.

FILED MARCH 5, 2020

OPINION

LUMPKIN, JUDGE:

¶1 Appellant Ronnie Eugene Fuston was tried by jury and convicted of First Degree Malice Murder (Count I) ( 21 O.S.Supp. 2012, § 701.7(A) ), and Possession of a Firearm After Former Juvenile Adjudication (Count II) ( 21 O.S.Supp.2012, § 1283(D) ), Case No. CF-2013-438, in the District Court of Oklahoma County. In Count I, the jury found the presence of two aggravating circumstances: 1) the defendant created a great risk of death to more than one person; and 2) 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 Count II, the jury recommended imprisonment for ten (10) years. The trial judge sentenced Appellant in accordance with the jury's determination and ordered all sentences to run concurrently. Appellant now appeals his convictions and sentences.¹

¶2 Appellant was convicted of shooting and killing Michael Rhodes (the decedent) on October 20, 2012, as the decedent and his three (3) year old daughter sat on the couch in their Oklahoma City home. The crime was the result of an ongoing dispute between the decedent's niece, Brittany Dillard, and a group of girls associated with the 107 Hoover Crips street gang.

¶3 Prior to the shooting, the decedent and his wife opened up their home to seven (7) of his great nephews and nieces, who had been in the custody of the Department of Human Services. One of those nieces, Ms. Dillard, had been asked to leave the Rhodes' home because of behavior problems, but shortly before October 20, she was allowed to return. At the time of the shooting, Dillard was in a relationship with Terrell Howard, a Crips member. On October 19, 2012, Dillard became involved in a verbal altercation over the telephone with several women who answered her call to Howard's cell phone. These women, members of a subset of the 107 Hoovers known as the "Dulxw Girls", included Atiana Jordan (whose gang name was "Lady Bucky") and Taneecia Pennon (whose gang name was "Lady Get One"). They escalated the altercation by repeatedly calling Dillard on her cell phone, threatening her and her baby, and offering to fight Dillard. The women drove by the Rhodes' home more than once. An anxious Dillard called Chris O'Neal, the father of her baby, and a member of the Bloods street gang. O'Neal drove to the Rhodes' home and fired gunshots at the Dulxw women. Jordan and Pennon called Dillard about the shooting and returned to the Rhodes' home, throwing rocks at the house and breaking two windows.

¶4 Returning home to find the broken windows, and concerned by what Dillard had told them, the Rhodes called the Department of Human Services and had the foster children picked up for their own safety. Dillard left the residence, to stay with O'Neal's mother, and Mrs. Rhodes and her daughter left the residence for the night.

¶5 Sometime late on the 19^th or early on 20^th of October, the tires on the Rhodes' car parked in their driveway were slashed. The police were called and investigated the situation. Mrs. Rhodes spoke with Dillard about the situation and learned that Dillard continued to get phone calls and Facebook messages from the Dulxw women. Mrs. Rhodes also received numerous phone calls on her home phone from the Dulxw women. She repeatedly told them that Dillard was not at their home and the women should not come back to the house.

¶6 The evening of October 20, Mrs. Rhodes went out to dinner with a friend while the decedent stayed home with their daughter and nineteen (19) year old son, Jalon. The decedent was on the couch with his sleeping daughter while his son was upstairs playing videogames. He was just about to fall asleep when the front door burst open and Appellant and his companions entered the house firing weapons.

¶7 A few hours earlier, Jordan and Pennon called Appellant, a close friend and fellow member of the Hoover Crips. Despite the fact Appellant lived in Enid, the Dulxw women asked him to come to Oklahoma City because of their conflict with Dillard. Appellant, accompanied by Brian Butler, drove to Pennon's Oklahoma City apartment. Appellant, Butler, Jordan, Pennon, Howard, and another "young guy" drove in two (2) cars to south Oklahoma City to "rob some Mexicans."

When that effort did not prove fruitful, the group drove to the Rhodes' home looking for Dillard. As they drove, Appellant communicated with Pennon, who was in a different car. The two cars stopped at a church near the Rhodes' residence and all but Butler got out and talked. The group then got back in the two cars and drove near the Rhodes' residence, parking down the street near a stop sign. Appellant told the "youngster" to get in the driver's seat of his car while Butler waited in the passenger seat. Appellant, Pennon, Howard, and Jordan walked up to the residence. Gunshots rang out and Appellant and Jordan ran back to the car. Initially reluctant to get into the car, Jordan was pulled into the car by Appellant, telling him "they were supposed to kill everybody in the house."

¶8 Upon hearing the gunshots, Jalon ran downstairs to find the front door open, his sister crying, and his father falling off the couch. Jalon sat his father up and called 911. The decedent had been shot three (3) times. The fatal shot entered his left shoulder before striking his aorta and both lungs. His blood sprayed on his young daughter, but she had not been struck by the gunfire. She later told police that the "monsters hurt my daddy."

¶9 After leaving the Rhodes' home, Appellant and his companions dropped Jordan off at her home then went to the home of Butler's cousin. There, Appellant washed his hands in gasoline and told Butler that he fired four (4) shots, and that "the dude was getting up or reaching for something." Appellant routinely carried a .45 caliber Taurus handgun. He had this weapon with him after the murder at the home of Butler's cousin and when he returned to Enid.

¶10 Appellant and Butler drove back to Enid during the early morning hours of October 20. During that time, Appellant changed his cell phone number. When Butler told him the murder would come back to "haunt" him, Appellant became angry and said he was tired of people telling him what to do and how to live his life. In the days and weeks that followed the murder, Appellant told Butler that "the dude" had died but the "girl", presumably Dillard, would not testify because they were going to "handle it on the streets."

¶11 After his arrest, Appellant denied being near the Rhodes' home at the time of the murder but his cell phone records placed him in the area. Other evidence established his relationship with Jordan and Pennon. A phone call from Appellant while in jail to his cousin Treylon Haley led police to the murder weapon—a .45 caliber Taurus.

¶12 Based upon this evidence, the jury convicted Appellant of first degree malice murder. In the punishment phase of trial, the State sought the death penalty as punishment for the decedent's murder and presented evidence supporting two (2) aggravating circumstances: 1) the defendant created a great risk of death to more than one person; and 2) the existence of a probability that the defendant will commit criminal acts of violence that would constitute a continuing threat to society. See 21 O.S.2011, § 701.12(2) & (7).

¶13 In addition to incorporating all of the first stage evidence, the State presented evidence to support the alleged aggravating circumstances. The State's evidence showed that in 2009, Appellant assaulted a fellow student and stole a cell phone. In September 2012, approximately one month before the decedent's murder, Appellant fired his weapon in a drive-by shooting in Oklahoma City striking the victim in the back. In December 2012, shortly after the decedent's murder, Appellant shot and killed Heath Crites in Enid, Oklahoma. The State's evidence also showed multiple instances where Appellant attacked and assaulted other inmates while imprisoned.

¶14 In mitigation, the defense presented eight (8) witnesses. These included Appellant's mother, sister, and twin brother; his Juvenile Affairs probation officer; staff members from Varangon Academy, a juvenile treatment center; and psychologist Dr. Terese Hall. After hearing all of the evidence in aggravation and mitigation, the jury found the existence of two alleged aggravators and sentenced Appellant to death. The trial court sentenced accordingly. Appellant now raises fifteen (15) propositions of error in his appeal of his judgement and sentence.

FIRST STAGE ISSUES

¶15 In his first proposition of error, Appellant contends the trial court erred in denying his request for a hearing to determine whether his "intellectual disability" excludes him from the class of offenders eligible for the death penalty.² Our review is solely upon a question of law, therefore we review the trial court's interpretation of the law de novo . Murphy v. State , 2012 OK CR 8, ¶ 8, 281 P.3d 1283, 1287 ; Smith v. State, 2007 OK CR 16, ¶ 40, 157 P.3d 1155, 1169.

¶16 The United States Supreme Court has held that an individual who is mentally retarded may not be executed. Atkins v. Virginia , 536 U.S. 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). The Court recognized that an IQ score of 75 is "typically considered the cutoff IQ score for the intellectual function prong of the mental retardation definition." Id. at 309 n.5, 122 S.Ct. 2242. It was left to the individual states to develop procedures to identify mentally retarded defendants and exempt them from the death penalty. Id. at 317, 122 S.Ct. 2242.

¶17 In 2006, the Oklahoma Legislature adopted procedural and substantive criteria to implement Atkins . See 21 O.S.Supp.2006, § 701.10b. To meet the threshold requirement of Section 701.10b, the defendant must show an...