Mahdavi v. State

• Decision Date: 12 November 2020
• Docket Number: Case No. F-2018-298
• Citation: 478 P.3d 449
• Parties: James MAHDAVI, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

478 P.3d 449

James MAHDAVI, Appellant,

v.STATE of Oklahoma, Appellee.

Case No. F-2018-298

Court of Criminal Appeals of Oklahoma.

FILED NOVEMBER 12, 2020

OPINION

HUDSON, JUDGE:

¶1 James Mahdavi, hereinafter "Appellant", was tried and convicted at a jury trial in Tulsa County District Court, Case No. CF-2016-6320, of two counts of Murder in the First Degree, in violation of 21 O.S.Supp.2012, § 701.7(A). The jury recommended sentences of life imprisonment without the possibility of parole for both counts. The Honorable William J. Musseman, Jr., District Judge, presided at trial and sentenced Appellant in accordance with the jury's verdicts. Judge Musseman ordered the sentences to run consecutively. Appellant now appeals.

¶2 The State's evidence in this case showed that sometime around 9:30 p.m. on November 18, 2016, Appellant shot two men at the Holiday Express Motel located at 3220 West Charles Page Boulevard in Tulsa. Surveillance video shows Appellant walked up to the first victim, Rodney McGee, in the motel parking lot and shot him in the head. The video shows Appellant fired off a single gunshot, killing McGee. The video next shows that Appellant walked around the corner of the motel building and shot through the window of Room 102.

¶3 With this gunshot, Appellant killed Leroy Coleman, the motel's maintenance man. Leroy lived in Room 102 with his wife, Chanel. The couple heard the first gunshot. According to Chanel, her husband was sitting on the edge of the bed inside Room 102, in front of the window, when he pulled back the curtains to look outside and investigate. It was at that moment Leroy was shot in the neck. Leroy initially survived the shooting but died two days later.

¶4 The evidence showed Appellant got into an argument with McGee and Garland Funkhouser, Appellant's uncle, in Room 103 earlier that evening at the motel. This argument occurred while a group of people sat around Room 103 drinking and using drugs. Appellant was asked to leave by Rodney Brummett, the man who lived in the motel room, because of the argument. Appellant complied. Later, Levi Dunkin opened the front door to Room 103 and witnessed Appellant shooting into Room 102 when he killed Coleman. Dunkin testified at trial that Appellant looked at him when he opened the door; that he was able to see Appellant face-to-face and that he was approximately two or three feet away when he saw Appellant open fire on Room 102. Dunkin further testified Appellant used a .22 pistol to shoot into Room 102. The surveillance video corroborates Dunkin's account. So too did Funkhouser who was inside Room 103 and heard a "pop" outside. Funkhouser described for the jury how Dunkin looked outside the front door of Room 103 and shouted immediately after the shooting that "Jay did it." The record shows "Jay" is the nickname used by Appellant.

¶5 Additional facts will be presented below as necessary.

ANALYSIS

¶6 Propositions I and II. Appellant challenges the identification testimony at trial of Levi Dunkin, Rodney Brummett and Garland Funkhouser. Appellant claims their respective identifications of Appellant at trial were unreliable because the pretrial identification procedures used by police were unnecessarily suggestive and violated his right to due process. Appellant applies the constitutional test for reliability for eyewitness identifications to all three witnesses' testimony in support of his claim.¹

¶7 Appellant made no contemporaneous objection on this ground to any of the challenged testimony. Our review is thus limited to plain error. Hammick v. State , 2019 OK CR 21, ¶ 8, 449 P.3d 1272, 1275 ; Postelle v. State , 2011 OK CR 30, ¶ 26, 267 P.3d 114, 130. To show plain error, Appellant must show an actual error, which is plain or obvious, affected his substantial rights. This Court will only correct plain error if the error seriously affected the fairness, integrity or public reputation of the judicial proceedings or otherwise represents a miscarriage of justice. Lamar v. State , 2018 OK CR 8, ¶ 40, 419 P.3d 283, 294 ; 20 O.S.2011, § 3001.1.

¶8 Appellant fails to show actual or obvious error. Dunkin was an eyewitness to the shooting. When questioned by detectives, Dunkin initially denied knowing who the shooter was because he didn't want to get involved in the police investigation and said the shooter was an Indian male. Dunkin eventually identified "Jay" as the shooter. Dunkin was shown a six-man photo lineup by investigators and selected Appellant's photo as the one depicting the shooter. At trial, Dunkin unequivocally identified Appellant as the man he observed at the motel shooting into the window of Room 102. Dunkin testified he was two or three feet away from Appellant when it happened, that he saw Appellant's face and instantly recognized him. Dunkin also identified for the jury both himself and Appellant on the motel surveillance video as the shootings unfolded during the playing of the video.

¶9 State and federal evidence rules and statutes typically govern the admissibility of evidence in criminal trials in the United States. Perry v. New Hampshire , 565 U.S. 228, 237, 132 S.Ct. 716, 181 L.Ed.2d 694 (2012). The trier of fact—in this case a jury—is responsible for determining the reliability of evidence presented at trial. Id. The Due Process Clause, however, provides an additional overlay of protection concerning eyewitness identification testimony. The basic due process standard of fundamental fairness embodied within the Fourteenth Amendment underlies this inquiry. E.g. , Perry , 565 U.S. at 245, 132 S.Ct. 716 ; Manson v. Brathwaite , 432 U.S. 98, 113, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).

¶10 Convictions based on " ‘eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.’ " Postelle , 2011 OK CR 30, ¶ 28, 267 P.3d at 130 (quoting Simmons v. United States , 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) ). If the procedure is found to be unnecessarily suggestive, we determine based on the totality of the circumstances whether the "improper police conduct created a ‘substantial likelihood of misidentification.’ " Perry , 565 U.S. at 239, 132 S.Ct. 716 (quoting Neil v. Biggers , 409 U.S. 188, 201, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) ). "[R]eliability is the linchpin in determining the admissibility of identification testimony[.]" Brathwaite , 432 U.S. at 114, 97 S.Ct. 2243. The factors we consider in evaluating the likelihood of misidentification include "the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation."

Brathwaite , 432 U.S. at 114, 97 S.Ct. 2243 ; Biggers , 409 U.S. at 199-200, 93 S.Ct. 375.

¶11 Appellant contends the six-man photo lineup presented to Dunkin was impermissibly suggestive. The record does not support his claim. The six-man photo lineup presented to Dunkin was introduced into evidence as State's Exhibit 34. This lineup included color photographs of Appellant and five other similar men. See Brathwaite , 432 U.S. at 117, 97 S.Ct. 2243 (discussing the model photographic array as containing "so far as practicable ... a reasonable number of persons similar to any person then suspected whose likeness is included in the array.") (internal quotation omitted). Dunkin testified that he selected and initialed the number three photograph in the lineup as the shooter. The number three photograph in the lineup contained Appellant's photo.

¶12 We have held that "although participants in pretrial photo displays should possess the same general physical characteristics as the accused, ... substantial compliance with physical similarity guidelines will suffice." Webb v. State , 1987 OK CR 253, ¶ 7, 746 P.2d 203, 205 (internal quotation omitted). We have reviewed State's Exhibit 34 and find the photographic lineup presented to Dunkin was not impermissibly suggestive. The participants were substantially similar in their physical characteristics. All six photographs were of white males featuring close-up shots of their head and shoulders against a blue or grey background. The general build, height and weight of these men were mostly indeterminable but their facial structure, hair and ages appear reasonably similar. All six men have similar hair styles with similar hair length and only slight variations in hair color. All six men too have visibly high foreheads. Only one of the men has facial hair which consisted of light facial stubble.

¶13 Two of the men in the lineup had some greying hair. "However, neither this circumstance nor any other circumstances surrounding the photographic display[ ] made the lineup[ ] so impermissibly suggestive as to give rise to a very substantial likelihood of misidentification." Webb , 1987 OK CR 253, ¶ 9, 746 P.2d at 206. We observe too there is no evidence in the record the detectives suggested which if any of the photographs were of the shooter. All things considered, Appellant's challenge to the purported suggestiveness of the pretrial identification procedures surrounding Dunkin's eyewitness identification testimony does not demonstrate actual or obvious error and, thus, there is no plain error. There was no due process violation arising from Dunkin's eyewitness identification testimony.

¶14 Appellant's challenge to Brummett's and Funkhouser's identification testimony also lacks merit. Neither Brummett nor Funkhouser were eyewitnesses to the shootings. Brummett testified he left the motel grounds after asking Appellant to leave Room 103. He heard gunshots while walking to a nearby convenience store. When Brummett returned he found both victims laying...