Harris v. State

• Decision Date: 23 October 2000
• Docket Number: No. F 1999-625.,F 1999-625.
• Citation: 2000 OK CR 20,13 P.3d 489
• Parties: Benjamin Charles HARRIS, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

13 P.3d 489

2000 OK CR 20

Benjamin Charles HARRIS, Appellant, v. STATE of Oklahoma, Appellee.

No. F 1999-625.

Court of Criminal Appeals of Oklahoma.

October 23, 2000.

Rehearing Denied November 29, 2000.

John Thomas Hall, Jerry Weiss, Indigent Defense System, Clinton, OK, Attorneys for Defendant at trial.

Dan Deaver, Assistant District Attorney, Jackson County Courthouse, Altus, OK, Christopher Kelly, Assistant District Attorney, Washita County Courthouse, Cordell, OK, Attorneys for the State at trial.

Thomas Purcell, Appellate Defense Counsel, Indigent Defense System, Norman, OK, Attorney for Appellant on appeal.

W.A. Drew Edmondson, Oklahoma Attorney General, James F. Kelly, Assistant Attorney General, Oklahoma City, OK, Attorneys for Appellee on appeal.

OPINION

LILE, Judge:

¶ 1 Appellant Benjamin Charles Harris was convicted of First Degree Murder, 21 O.S.1991, § 701.7, after a jury trial in the District Court of Jackson County, Case Number CF-99-68, before the Honorable Richard Darby, District Judge.¹ In accordance with the jury verdict, Judge Darby sentenced Harris to life without the possibility of parole. From this judgment and sentence Harris has perfected his appeal. After thorough consideration of the propositions on appeal and the entire record before us, including the original record, transcripts, and briefs, we have determined that the judgment and sentence shall be affirmed.

¶ 2 Harris and A.J. Pearce were close friends, or so everyone believed. On April 21, 1995, the two met in Cordell, Oklahoma and decided to drive around the area. Both were drinking and they were looking for parties to attend.

¶ 3 Harris was driving his uncle's Ford Bronco II which had a .38 caliber revolver under the drivers seat and a sheath knife in the rear area. According to Harris, he took out the knife to show Pearce, and Pearce placed it between the seats after looking at it. Harris drove to Clinton to get gas and cigarettes and finally arrived at Highway 183 and Crider road, north of Cordell. According to Harris, even though he thought Pearce was asleep, he mentioned that he didn't think it was a good idea for Pearce to date his uncle's ex-wife. After Harris said this, he felt something hit his thigh and saw the flash of a knife. Harris testified that he couldn't remember what happened next until he was calling 911 to tell them that he had just shot Pearce. At trial, during cross-examination, Harris conceded that he shot Pearce intentionally.

¶ 4 Pearce was shot three times in the side of the head and once in the side of the abdomen with the .38 caliber revolver. He died as a result of the gunshots to the head.

¶ 5 The State's evidence indicated that Harris cut his own jeans and refuted the fact that a cut to the jeans could have been made by Pearce trying to stab Harris. The State's expert, Tom Bevel, refuted the fact that the shots could have been fired while Harris was sitting in the driver's seat and supported a conclusion that Pearce was asleep and reclined in the passenger seat when he was shot.

¶ 6 In his first proposition, Harris complains about the introduction of two video reenactments. The first video reenactment shows two live actors recreating the expert witness' theory of the shooting based upon bullet trajectories through the body of the victim and into the seat and the side of the Ford Bronco II. The second video reenactment is a computer animation based upon the trajectory of the bullet passing through the victim's abdomen and into the vehicle seat.

¶ 7 These video reenactments were used by the State's expert witness Tom Bevel² during his testimony to illustrate the State's theory and Bevel's conclusion that the victim was asleep and reclining while he was shot. The video was also used to disprove a theory that Harris was being attacked or that he was driving while he fired the gun.

¶ 8 Expert testimony is admitted at trial pursuant to the Oklahoma Rules of Evidence, 12 O.S.1991, §§ 2702-2703. In Taylor v. State, 1995 OK CR 10, ¶ 15, 889 P.2d 319, 328-29, we adopted the United States Supreme Court's analysis in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), for the introduction of expert testimony as it relates to novel scientific evidence. ¶ 9 Recently, in Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150-51, 119 S.Ct. 1167, 1175, 143 L.Ed.2d 238 (1999), the United States Supreme Court explained that the Daubert analysis is not limited to "scientific evidence" but shall also be applied to all novel expert testimony introduced pursuant to Rules 702 and 703 of the Federal Rules of Evidence. The Kumho analysis is compelling and is a logical and proper extension of the Daubert decision. However, in this case, the "scientific, technical or other specialized knowledge" involved was not novel and has long been recognized as the proper subject of expert testimony.³

¶ 10 Experts regularly rely on illustrative aids so that the jury may better understand their testimony. This Court has been reluctant to admit crime scene reenactments where they are posed with persons and things in various assumed situations, intended only to illustrate hypothetical situations. Robison v. State, 1984 OK CR 21, ¶ 32, 677 P.2d 1080, 1087; Langley v. State, 90 Okl.Cr. 310, 213 P.2d 886, 892-93 (1950); Roberts v. State, 82 Okl.Cr. 75, 166 P.2d 111, 117-18 (1946). However, these cases do not deal with situations where relevant evidence supports a scientific or technical hypothesis which is illustrated by the posed reenactment. With advancements in the field of crime scene reconstruction, the widespread use of video, and advances in computer technology, video reenactments and computer aided crime scene reconstruction are making their way into the courtroom in the trial of criminal cases.⁴

¶ 11 The particular illustrative aids at issue here are similar in nature to posed photographs. In Roberts, the subject of posed photographs was considered. That opinion quoted extensively from Wharton's Criminal Evidence, Eleventh Edition to the effect that,

There is a decided conflict of authority as to whether or not photographs of an attempted reproduction of the scene of a crime showing posed persons, dummies, or other objects are admissible to illustrate the contention of the party offering them as to the relative positions of the movable objects so represented at the time and place of the crime involved in the prosecution under consideration. Some courts have looked with disfavor upon the admission of photographs of an attempted theory or contention of the party offering them, as recalled by his witnesses, of movable or moving objects. Thus, it was held error to introduce in evidence in a prosecution for murder photographic representations of tableaux vivants carefully arranged by the chief witness for the State, intended to exhibit the situations of the parties and the scene of the tragedy according to such witness's account of it. . . . In most jurisdictions where this question of admissibility has arisen, however, the courts have held such photographs admissible, when a proper foundation therefor has been laid by preliminary testimony showing that the objects and situations portrayed are faithfully represented as to position. The holding of these cases has been elucidated by one court, in a case in which it held admissible a photograph of the interior of a saloon in which a shooting occurred showing a group of prearranged figures to indicate the position of the principal parties at the time of the homicide as near as the witness could determine, as follows: `It has always been permissible to use diagrams in the trial of causes, both civil and criminal, and especially in the latter class to use diagrams, if shown to be correct, to illustrate the position of persons and places, and to better enable the witnesses to properly locate them. If, then, a diagram may be used for such a purpose, we can see no good reason why a photograph may not be. . . .

Roberts, 82 Okl.Cr. at 87, 166 P.2d at 117, quoting Wharton's Criminal Evidence (11th Ed.), § 773, p. 1317. Nevertheless, this Court, in Roberts, excluded such posed crime scene reenactments. We believe that, contrary to our holding in Roberts, the better rule to apply to such posed exhibits — when used during expert testimony to illustrate the witness' testimony — should be the same test used for photographic exhibits to determine their admissibility. The trial court should ensure that "they are correct representations of the object portrayed, are relevant, and not unfairly prejudicial." 2 Whinery, Oklahoma Evidence, § 22, p. 449 (1994); Edwards v. State, 1976 OK CR 199, ¶ 16, 554 P.2d 46, 49; Parkhill v. State, 1977 OK CR 128, ¶ 15, 561 P.2d 1386, 1390.

¶ 12 In Clark v. Cantrell, 339 S.C. 369, 529 S.E.2d 528 (2000) the South Carolina Supreme Court held that the trial court did not abuse its discretion when it refused to admit a computer-generated video animation.⁵ The court reasoned that the animation was inconsistent with the testimony of witnesses and it inaccurately reflected the evidence. The Court set forth guidelines for the admission of computer-generated video animation as demonstrative evidence, based on the South Carolina Rules of Evidence (SCRE):⁶

1. The proponent must show that the animation is authentic, Rule 901, SCRE;

2. next the animation must be relevant, Rule 401 and 402, SCRE, (the animation must be a fair and accurate representation of the evidence to which it relates) and;

3. its probative value must substantially outweigh the danger of unfair prejudice, confusing the issues, or misleading the jury under Rule 403 SCRE.

Clark, 529 S.E.2d at 536-38. The South Carolina court went further to say that trial courts "should consider whether the proponent disclosed the animation and underlying data within a reasonable period of time before trial." Clark, 529 S.E.2d at 536.

¶ 13 The court also encouraged the...