Mitchell v. State

• Decision Date: 28 June 2018
• Docket Number: Case Number: F-2017-50
• Citation: 424 P.3d 677
• Parties: Immanuel Gerald Dean MITCHELL, Appellant v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

424 P.3d 677

Immanuel Gerald Dean MITCHELL, Appellant

v.The STATE of Oklahoma, Appellee.

Case Number: F-2017-50

Court of Criminal Appeals of Oklahoma.

Decided: June 28, 2018

APPEARANCES AT TRIAL LARRY MONARD, ATTORNEY AT LAW, P.O. BOX 54403, OKLAHOMA CITY, OK 73154, COUNSEL FOR DEFENDANT

ADAM PANTER, ABBY NATHAN, ASSISTANT DISTRICT ATTORNEYS, 331 N. BROADWAY, SHAWNEE, OK 74801, COUNSEL FOR THE STATE

APPEARANCES ON APPEAL LISBETH L. MCCARTY, APPELLATE DEFENSE COUNSEL, P.O. BOX 926, NORMAN, OK 73070, COUNSEL FOR APPELLANT

MIKE HUNTER, OKLAHOMA ATTORNEY GENERAL, KEELEY L. MILLER, ASSISTANT ATTORNEY GENERAL, 313 N.E. 21ST ST., OKLAHOMA CITY, OK 73105, COUNSEL FOR THE STATE

OPINION

ROWLAND, JUDGE:

¶ 1 Appellant Immanuel Gerald Dean Mitchell appeals his Judgment and Sentence from the District Court of Pottawatomie County, Case No. CF-2015-435, for Murder in the First Degree—Felony Murder (Count 1) in violation of 21 O.S.Supp.2012, § 701.7(B) and Conspiracy to Commit Robbery with a Dangerous Weapon (Count 2) in violation of 21 O.S.2011, § 421.¹ The Honorable John Canavan, Jr. presided over Mitchell's jury trial and sentenced him in accordance with the jury's verdict to life imprisonment on Count 1 and eight years imprisonment on Count 2.² Judge Canavan ordered Mitchell's sentences to run consecutively. Mitchell raises the following issues:

I. whether the district court's failure to hold a hearing on the admissibility of the alleged co-conspirators' statements violated his rights to a fair trial and due process of law;

II. whether the State presented sufficient evidence to corroborate the testimony of his accomplices;

III. whether the evidence was sufficient to sustain his convictions;

IV. whether Instruction Number 1-8A, OUJI-CR(2d) improperly shifted the burden of proof;

V. whether the prosecutor's statement during jury selection concerning parole eligibility was error;

VI. whether the district court erred by not removing sua sponte two prospective jurors for cause;

VII. whether his jury panel was tainted;

VIII. whether prosecutorial misconduct deprived him of a fair trial;

IX. whether the district court erred in admitting text messages between the members of the conspiracy;

X. whether he was denied a fair trial because of ineffective assistance of counsel; and

XI. whether cumulative error deprived him of a fair trial.

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

Background

¶ 3 Early on the morning of May 4, 2015, officers with the Shawnee Police Department responded to a 911 call from a citizen stating that a red car had crashed through her fence and into a tree in her backyard. Inside this car, the officers found John Columbus unresponsive and slumped over in the driver's seat with a fatal bullet wound

to his back.

¶ 4 The evidence showed that Columbus had driven to that neighborhood to sell marijuana to Ramie Brown, who had arranged to meet him at Mitchell's house. Little did Columbus know that Brown and Austin Olinger had devised a scheme to rob him of his marijuana, or that they would soon involve Mitchell, Cody Taylor, and Kiwane Hobia in their criminal conspiracy. The plan was for Brown to get into the car with Columbus to make the purchase and, when Columbus produced the marijuana, to grab it and flee. Needing a ride to Mitchell's house, Olinger called Taylor who arrived in his white Chevrolet Trailblazer and he drove Brown and Olinger to Mitchell's, the designated meeting place.

¶ 5 When Columbus arrived at Mitchell's house, Brown got into Columbus' car as planned and the two drove away. When Brown asked where they were going, Columbus explained that he did not have the marijuana with him and that they were heading to his house to get it. Brown then informed Columbus that he did not have the purchase money with him and the two of them returned to Mitchell's house. Brown got out and told Olinger, Mitchell, and Hobia that Columbus wanted his money up front, prompting a change of plan. Brown rejoined Columbus and Olinger, Mitchell and Hobia also got into Columbus' car. Columbus followed Olinger's directions, believing he was going to where the money was. Columbus parked in a nearby parking lot as directed and guns were pointed at his and Brown's heads. Brown testified that Mitchell was the one pointing a gun at Columbus and that he instructed Columbus not to move. Brown exited the car and ran, but before he was out of the parking lot, he heard a gunshot. He turned in time to see Mitchell standing outside the car behind the driver's side door with a pistol in his hand. The conspirators all scattered on foot.

¶ 6 Taylor, who had stayed behind at Mitchell's house, picked up a somewhat excited Olinger and Hobia, who were out of breath and barely talking. Olinger directed Taylor to the crime scene parking lot where he got out and grabbed a gun holster lying by the curb before the three returned to Mitchell's house. Mitchell was at his house and out of breath like he had been running. Mitchell asked Taylor to go for cigarettes. Olinger went with Taylor, but the two were pulled over by police on their way back from the store. The officers noted a strong odor of marijuana coming from inside Taylor's Trailblazer. A search of the Trailblazer uncovered the gun holster Olinger retrieved from the parking lot and two loaded handguns as well as a bag of marijuana in Olinger's pocket.

¶ 7 Brown was arrested the next day and Mitchell was apprehended a couple of weeks later. Both Brown and Taylor testified against Mitchell at trial. In addition to this accomplice testimony, the State presented evidence that connected Mitchell to the murder weapon as well as text messages that showed Mitchell was an active participant in the commission of the robbery that resulted in Columbus' death.

1. Harjo Hearing

¶ 8 Mitchell contends his convictions must be reversed because the district court failed to hold an in camera hearing, pursuant to Harjo v. State , 1990 OK CR 53, 797 P.2d 338, to determine the existence of a conspiracy before admitting his co-conspirator's statements. Review is for plain error only because Mitchell did not request a Harjo hearing below or challenge the admission of his co-conspirator's testimony on this basis at trial. This claim is without merit.

¶ 9 Under the plain error test, the burden is on Mitchell to show the existence of an actual, obvious error that affected his substantial rights. Hogan v. State, 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923. See also Simpson v. State , 1994 OK CR 40, ¶¶ 10 & 30, 876 P.2d 690, 694 & 700-01. This Court will correct plain error only if the error seriously affected the fairness, integrity or public reputation of the judicial proceedings or otherwise represented a miscarriage of justice. Hogan , 2006 OK CR 19, ¶ 38, 139 P.3d at 923.

¶ 10 Mitchell challenges the in-court direct testimony of his co-conspirator, Ramie Brown.³ Independent evidence establishing the existence of a conspiracy is not necessary where coconspirator statements are admitted through direct trial testimony subject to cross-examination, because the direct testimony of the co-conspirator is not hearsay. Hackney v. State , 1994 OK CR 29, ¶ 4, 874 P.2d 810, 813 ; Johns v. State , 1987 OK CR 178, ¶¶ 7-8, 742 P.2d 1142, 1146. Consequently, a co-conspirator may testify concerning his own participation and his observation of other co-conspirators' conduct. Hackney , 1994 OK CR 29, ¶ 4, 874 P.2d at 813. The rule in Harjo —requiring independent evidence of a conspiracy during an in camera hearing prior to the admission of a co-conspirator's statements—applies only to the admission of a co-conspirator's out-of-court statements and does not apply to the direct in-court testimony of a co-conspirator. Huckaby v. State , 1990 OK CR 84, ¶ 13, 804 P.2d 447, 451. Under our cases, no independent evidence of a conspiracy was required before Brown took the witness stand and testified against Mitchell. The district court properly admitted Brown's testimony without a Harjo hearing because one was not required. See Hackney , 1994 OK CR 29, ¶ 4, 874 P.2d at 813. For these reasons, we find that Mitchell has not shown that error, plain or otherwise, occurred. This claim is denied.

2. Sufficiency of the Evidence/Accomplice Corroboration

¶ 11 Mitchell contends his convictions must be reversed because of insufficient evidence. Evidence is sufficient to support a conviction if, viewing the evidence and all reasonable inferences from it in the light most favorable to the State, any rational trier of fact could find the defendant guilty beyond a reasonable doubt. Coddington v. State , 2006 OK CR 34, ¶ 66, 142 P.3d 437, 455 ; Spuehler v. State , 1985 OK CR 132, ¶ 7, 709 P.2d 202, 203-04. This Court does not reweigh conflicting evidence or second-guess the fact-finding decisions of the jury; we accept all reasonable inferences and credibility choices that tend to support the verdict. See Day v. State, 2013 OK CR 8, ¶ 13, 303 P.3d 291, 298 ; Coddington, 2006 OK CR 34, ¶ 70, 142 P.3d at 456. We further recognize that the law makes no distinction between direct and circumstantial evidence and either, or any combination of the two, may be sufficient to support a conviction. Miller v. State , 2013 OK CR 11, ¶ 84, 313 P.3d 934, 965.

¶ 12 Mitchell argues the evidence was insufficient in this case because the State failed to present evidence that corroborated the testimony of his accomplices, namely Ramie Brown and Cody Taylor. This case provides us with the opportunity to revisit the unwarranted disparate treatment of accomplice and co-conspirator testimony and the requirement of corroboration.

¶ 13 Title 22 O.S.2011, § 742 states:

A conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely show[s] the commission of the offense or the circumstances

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