Mason v. State

• Decision Date: 29 November 2018
• Docket Number: Case No. F-2017-650
• Citation: 433 P.3d 1264
• Parties: Howard Shelton MASON, Jr., Appellant v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

433 P.3d 1264

Howard Shelton MASON, Jr., Appellant

v.STATE of Oklahoma, Appellee.

Case No. F-2017-650

Court of Criminal Appeals of Oklahoma.

FILED November 29, 2018

APPEARANCES AT TRIAL, KEVIN FINLAY, ATTORNEY AT LAW, JOSHUA HARRISON, LICENSED LEGAL INTERN, 303 S. PETERS, NORMAN, OK 73069, COUNSEL FOR DEFENDANT

SUSAN CASWELL, BRIAN HALL, ASSISTANT DISTRICT ATTORNEYS, 121 2^ND AVENUE, PURCELL, OK 73080, COUNSEL FOR STATE

APPEARANCES ON APPEAL, JAMIE D. PYBAS, OKLAHOMA INDIGENT DEFENSE SYSTEM, P.O. BOX 926, NORMAN, OK 73070, COUNSEL FOR APPELLANT

MIKE HUNTER, OKLAHOMA ATTORNEY GENERAL, MATTHEW D. HAIRE, ASSISTANT ATTORNEY GENERAL, 313 N.E. 21^ST STREET, OKLAHOMA CITY, OK 73105, COUNSEL FOR APPELLEE

OPINION

ROWLAND, JUDGE:

¶1 Appellant Howard Shelton Mason, Jr., appeals his Judgment and Sentence from the District Court of McClain County, Case No. CF-2015-180, for Murder in the First Degree, in violation of 21 O.S.Supp.2011, § 701.7(A). The Honorable Thad Balkman, District Judge, presided over Mason's jury trial and sentenced Mason, in accordance with the jury's verdict, to life imprisonment without the possibility of parole. Mason appeals raising the following issues:

(1) whether the evidence presented at trial was insufficient to sustain his conviction for First Degree Malice Aforethought Murder;

(2) whether the trial court erred in failing to suppress his statement;

(3) whether the trial court erred in allowing the State to bolster a witness's extrajudicial identification with third-party testimony;

(4) whether the trial court erred by failing to give a cautionary jury instruction on eyewitness identification;

(5) whether his trial was rendered fundamentally unfair by the admission of improper opinion testimony;

(6) whether an enhancement statute resulted in a violation of the ex post facto clauses; and

(7) whether ineffective assistance of counsel deprived him of a fair trial.

¶2 We find relief is not required and affirm the Judgment and Sentence of the district court.

Background

¶3 On October 15, 2006, Lowry Ewing, went to see his friend, Burney Ray Bounds, at Bounds' house located south of Dibble off of Highway 76 in McClain County. When he arrived, Ewing noticed that Bounds' car, a blue Subaru wagon, was gone and the front door of the house was ajar. He was alarmed because this was out of the ordinary; Bounds never left his house unlocked. Ewing entered the house and noticed that the front room was torn up; furniture was turned upside down and papers were strewn about the floor. Ewing knew Bounds to keep a tidy house so he assumed that Bounds' home had been broken in to and burgled. Ewing walked toward the telephone in the bedroom to call Bounds and tell him about the condition in which he discovered his house. When he approached the bedroom door Ewing saw Bounds face down on the floor with his hands and feet tied behind him. Ewing knew that Bounds was dead. He backed up and went to the kitchen where he located Bounds' cell phone and called 911. Ewing waited outside for the police to arrive. When the authorities arrived it was confirmed that Bounds was dead. It was subsequently determined that the manner of death was homicide and that Bounds had died from traumatic asphyxia

.

¶4 During the subsequent investigation it was discovered that in the late afternoon the day before Bounds' body was discovered, Bounds stopped at DJ's convenience store to fill up with gas and purchase gum as was his custom about once or twice a week. When Bounds went inside the store he spoke with his friend, Clara Rogers. Bounds told Rogers that he had picked someone up at the casino. When Rogers looked toward Bounds' car she noticed a man with long, black, curly hair and a bandana around his head. He was standing by Bounds' car waiting for him to exit the store. Rogers could not stop looking at the man because he was standing with his arms crossed glaring at her.

¶5 On the night of October 14, 2006, at around 10:00 to 11:00 p.m., Amanda Mayhew was driving with her mother on Highway 76 when they saw a skinny man, about fifty-eight or fifty-nine years old, beside a small blue station wagon that was up on jacks with a flat tire. A few days later when Mayhew drove past the area again, she noted that the blue station wagon was gone but a tire and jack had been left behind. By then she had heard about the homicide and that the police were looking for a blue station wagon so she notified the authorities.

¶6 On October 14, 2006, at around 10:00 to 10:30 p.m., Dibble Reserve Police Officer Ricky Lee Peterman was driving a marked patrol unit traveling north on Highway 76 when he saw a man on the side of the road changing a tire on a small car like a Subaru. Peterman noted that the man was about five foot nine or ten and weighed approximately 155 or 160 pounds. He looked a little scruffy with long hair and a beard. Peterman pulled in behind the disabled vehicle and asked the man if he needed help. The man declined and Peterman left. Peterman learned the following day that there had been a homicide a block south of where he saw the man changing the tire.

¶7 On the morning of October 15, 2006, Terry Joe McDonald and his wife were driving north near Southwest 3^rd and MacArthur in Oklahoma City when they noticed a light blue Subaru wagon in a vacant lot. They noticed the car because they drove a Subaru and at the time there were very few Subarus in the state. The car was parked about a hundred yards from the interstate. Although it was a misty, rainy day, its windows were rolled down and there was no one inside the vehicle. The following day, MacDonald saw on the news that police were looking for a Subaru that had been involved in a crime. The news story gave a description of the car and the tag number. MacDonald went back to where he had seen the abandoned Subaru which was still there and confirmed that it was the car the police were looking for. He called and reported the missing vehicle.

¶8 The OSBI was involved in the investigation of the crime and processed items found in Bounds' house and car. Duct tape had been used extensively to bind Bounds and was found on his hands, feet, neck, and mouth. It was also used to secure him to the bed. This duct tape was collected and examined as were several hairs found at the crime scene. OSBI Criminalist Chris Davis, certified as a latent fingerprint examiner, found usable latent prints not belonging to Bounds on pieces of duct tape stretching from Bounds' hands to the bed, on the partial roll of unused tape on the bed, and on a piece of tape attached to the headboard of the bed.

¶9 OSBI Criminalist Wendy Duke, who specialized in forensic biology, evaluated hairs found at the crime scene for the potential to conduct DNA analysis. Of twelve hairs deemed potentially capable of producing a DNA profile, one collected from a shirt found underneath Bounds' body produced enough DNA to develop a partial profile. This partial profile was submitted to the Combined DNA Index System (CODIS) which houses DNA profiles from other forensic cases as well as convicted offender samples.

¶10 Although the case went cold for a while, it was subsequently discovered that Howard Shelton Mason, Jr., was a possible match to the forensic evidence. A DNA profile was developed from a known buccal swab taken from Mason and this profile was compared to the partial DNA profile developed from the hair found at the scene of the homicide. OSBI Criminalist, Antji Stambaugh, with the forensic biology unit, determined that Mason could not be excluded as a donor for the DNA profile from the hair collected from the scene; the statistical probability of the same profile belonging to a random person in the population was 1 in 4.66 million. Mason's fingerprint cards were also compared to the latent prints taken from duct tape found at the crime scene. Four of the latent prints matched Mason's known prints.

¶11 After Mason was identified as a suspect in the case Clara Rogers was approached by the police and asked to view photographs to see if she could identify the person she saw outside the convenience store waiting for Bounds. Despite the fact that Rogers was asked to view the pictures in 2015, some eight years after Bounds had been killed, Rogers identified a photograph of Mason as the man who she saw with Bounds the day before he was found dead.

¶12 Mason was located and questioned by OSBI Agents David Gatlin and Josh Dean. During the audiotaped interview Mason admitted that he had been in Oklahoma hitchhiking along I-40 around the time Bounds was killed. Mason told the agents that an older fellow driving a station wagon picked him up. The man had work for him to do; he cleaned out the man's chicken coop and washed his dog. Mason said he stayed a couple of hours and the man took him back to the interstate. Mason said that he "didn't hurt nobody." He was subsequently arrested.

1.

¶13 Mason argues that the evidence presented at trial was insufficient to sustain his conviction for first degree malice murder. This Court reviews challenges to the sufficiency of the evidence in the light most favorable to the State and will not disturb the verdict if any rational trier of fact could have found the essential elements of the crime charged to exist beyond a reasonable doubt. Head v. State , 2006 OK CR 44, ¶ 6, 146 P.3d 1141, 1144. See also Spuehler v. State , 1985 OK CR 132, ¶ 7, 709 P.2d 202, 203-04. "The credibility of witnesses and the weight and consideration to be given to their testimony are within the exclusive province of the trier of facts." Rutan v. State , 2009 OK CR 3, ¶ 49, 202 P.3d 839, 849. We do not "second-guess the fact-finding decisions of the jury; we accept all reasonable inferences and credibility choices that tend to support the jury's verdict." Mitchell v. State , 2018 OK CR 24, ¶ 11, 424 P.3d 677, 682. "Pieces of evidence must be viewed not in isolation but in conjunction, and we must affirm the conviction so long as, from the inferences reasonably drawn...