Mitchell v. State

• Decision Date: 13 October 2011
• Docket Number: No. D–2008–582.,D–2008–582.
• Citation: 270 P.3d 160,2011 OK CR 26
• Parties: James Lawrence MITCHELL, III, Appellant v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

2011 OK CR 26

270 P.3d 160

James Lawrence MITCHELL, III, Appellant

v.STATE of Oklahoma, Appellee.

No. D–2008–582.

Court of Criminal Appeals of Oklahoma.

Oct. 13, 2011.

An Appeal from the District Court of Oklahoma County; the Honorable Virgil C. Black, District Judge.Jason Spanich, Heidi Baier, Assistant Public Defenders, Oklahoma City, Oklahoma, counsel for appellant at trial.

David Prater, District Attorney, Suanne Carlson, Gayland Gieger, Assistant District Attorneys, Oklahoma City, Oklahoma, counsel for the State at trial.

James H. Lockard, Deputy Division Chief, Traci J. Quick, Capital Direct Appeals Division, Oklahoma Indigent Defense System, Norman, Oklahoma, counsel for appellant on appeal.W.A. Drew Edmondson, Attorney General of Oklahoma, Robert Whittaker, Assistant Attorney General, Oklahoma City, Oklahoma, counsel for the State on appeal.

OPINION

LUMPKIN, Judge.

¶ 1 James Lawrence Mitchell, III, Appellant, was tried by a jury and convicted of Murder in the First Degree, Child Abuse, (21 O.S.Supp.1998, § 701.7(C) and Child Abuse, After Former Conviction of Two Felonies (10 O.S.Supp.2000, § 7115) in the District Court of Oklahoma County, Case No. CF–2000–4712. In the sentencing stage, the jury found the existence of two (2) aggravating circumstances: (1) the defendant was previously convicted of a felony involving the use or threat of violence to the person; and 2) the murder was especially heinous, atrocious or cruel, and recommended the sentence of death. The jury recommended a sentence of life in prison for the conviction of Child Abuse. The trial judge sentenced Appellant in accordance with the jury's determination, ordering the sentences to be served consecutively. ¹ Appellant now appeals his convictions and sentences.²

¶ 2 Shawanda Rogers and Michael Frerene moved to Oklahoma City from Louisiana in December 1998. They brought with them their 20 month old daughter Charita (also referred to as the decedent) and Rogers' 4 year old son, Kyree. In the spring of 2000, Frerene returned to Louisiana for a couple of months. During that time, Rogers worked at a McDonald's restaurant where she met Appellant, a fellow co-worker.

¶ 3 In July 2000, Rogers, Charita and Kyree moved in with Appellant. By that time, Rogers worked at the Fifth Seasons Hotel. While she worked Appellant stayed home with the children. Around 8:00 a.m. on July 23, 2000, Appellant drove Rogers to work. As early as 8:15 a.m., Appellant made the first of many phone calls to the hotel. Initially, he spoke to one of Rogers' co-workers and told her it was important for Rogers to call home. In the third or fourth call, Appellant told the same co-worker that Rogers' baby was sick and she needed to call home. The fifth or sixth time Appellant called, somewhere between 10:30 and 11:00 a.m., he said Rogers needed to come home because her baby was having a seizure. The hotel employee told Appellant to take the baby to the hospital. Appellant, however, continued to call the hotel for Rogers. Even though Rogers' co-workers repeatedly told her she needed to go home and check on her baby, she did not leave until she had completed her shift. Appellant picked her up from work between 2:30 and 3:30 p.m.

¶ 4 After Rogers and Appellant returned home, Rogers called her aunt Gwen and told her Charita was having seizures. Rogers asked for a ride to the hospital despite the fact Appellant had an available car, having just picked Rogers up from work; they lived only blocks from the hospital; and Aunt Gwen lived on the other side of town. Rogers was told to call an ambulance, but insisted on being driven to the hospital. At her aunt's direction, Rogers' Uncle Kevin, accompanied by Michael Frerene, who knew where Appellant lived, drove over and picked up Rogers and both children and took them to the hospital.

¶ 5 When they arrived at the emergency room at 4:20 p.m., Charita was essentially comatose. Medical personnel found she was in respiratory failure and was having seizures. She had widespread bruising from head to toe with areas of denuded skin on her buttocks, hands and fingers. Some of the bruised areas and marks on her body were in the form of a loop. She also had two areas resembling bite marks and retinal hemorrhages.

¶ 6 A CT scan of her head showed bleeding in her brain and blood tracking in the area separating the upper part of the brain from the area that controls balance. Massive swelling of the left side of her brain was pushing her brain over the falx and causing herniation of the brain stem. These multiple significant brain hemorrhages indicated that Charita had suffered more than one strike injury to her head. The injuries suggested Charita was shaken and struck and that her head was hit against something or something was used to strike her head. The CT scan of Charita's abdomen showed swelling around her liver, possible injury to her spleen and pancreas, and bleeding in her left kidney.

¶ 7 Charita's bruises continued to evolve while she was in the Emergency Room which indicated to medical personnel that her injuries were relatively acute and probably occurred within one (1) to six (6) hours of presentation to the hospital. After the abdominal CT scan, Charita stopped breathing on her own and was taken to the Pediatric Intensive Care Unit (PICU). By the time she arrived in the PICU, she had no evidence of brain or brain stem function. She was pronounced dead the following day, July 24, 2000, about 3:30 p.m.

¶ 8 Dr. Haynes, who saw Charita in the Emergency Room, and Dr. Gessouroun, the PICU physician who examined Charita on July 24th, both testified her internal injuries and lung injuries were caused by external trauma. The doctors agreed that the injuries to her lungs, pancreas and liver would have required blunt force trauma to her chest and abdomen and were inconsistent with a fall or an accident. In the absence of a high speed car accident, her injuries would have required several different impacts. Noting the patterned bruises and the multiple areas of bleeding in her brain, the doctors testified it was very unusual to have such bleeding in the brain in the absence of very extreme force. They said Charita had such massive trauma to her head that she would not have had a lucid period or normal or near normal level of functioning between the time of the lethal injury and the time she would have developed symptoms of brain injury. After receiving the fatal blow, she would not have been able to talk, eat, or play. Dr. Gessouroun testified he believed her injuries were inflicted the morning of July 23rd, at a time consistent with 11:00 a.m., when she was first reported to have started having seizures. Dr. Gessouroun believed she died from child abuse.

¶ 9 Because of Charita's severe injuries, her brother Kyree was also examined. He told Dr. Casax that he was not hurt or in pain, but Dr. Casax saw looped or horseshoe like bruises on his right arm, thigh, buttocks and upper back. She suspected the bruises were consistent with child abuse. Dr. Casax admitted the bruises could be within one day to one month old and stated the injuries were not life-threatening.

¶ 10 Appellant voluntarily spoke with Oklahoma City Detective Willie Edwards on July 25, 2000. Detective Edwards testified Appellant initially did not admit he was responsible for any injuries to Charita or Kyree. He blamed Rogers for the abuse. He said Rogers hit Charita on the head with a telephone on July 22nd and said Kyree stuck Charita's fingers in the fan. Detective Edwards said Appellant's story changed during the interview. Appellant said he heard Charita fall off the bed after he returned from taking Rogers to work. Then he said he spanked Charita with a belt because she and Kyree were fighting. Finally, Appellant said he lost control and blacked out.

¶ 11 Appellant also told Detective Edwards that on July 23, Charita started having seizures around 10:00 to 10:30 a.m. He said Charita was playing with Kyree before that time. Detective Edwards testified he knew that Charita's severe brain injuries would have rendered her unable to play, so he believed 10:00 to 10:30 a.m. was probably when the fatal injuries occurred. Other relevant facts will be discussed as necessary.

¶ 12 Appellant raises nineteen (19) propositions of error in his appeal. These propositions will be addressed in the order in which they arose at trial.

PRE–TRIAL ISSUES

¶ 13 In his fourth proposition of error, Appellant contends that his Fifth Amendment right to counsel was violated by the trial court's overruling of his motion to suppress his in-custody statements. Appellant argues that after invoking his right to counsel, he did not voluntarily reinitiate questioning and any statements made after his invocation of counsel were inadmissible. We review a trial court's ruling on a motion to suppress for an abuse of discretion. Gomez v. State, 2007 OK CR 33, ¶ 5, 168 P.3d 1139, 1141.

¶ 14 “The United States Supreme Court, in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), discussed the Fifth Amendment protection against compelled self-incrimination which provides the accused with the right to have counsel present at custodial interrogations.” Walker v. State, 1990 OK CR 44, ¶ 9, 795 P.2d 1064, 1066. Once the Fifth Amendment right to counsel is invoked, the defendant is not subject to further questioning unless the defendant has counsel or reinitiates interrogation with law enforcement personnel. Sattayarak v. State, 1994 OK CR 64, ¶ 5, 887 P.2d 1326, 1329, citing Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). “Once counsel has been requested, questioning must cease and officers may not initiate contact without counsel present whether or not a defendant has consulted with counsel.” Id., citing Minnick v. Mississippi, 498 U.S. 146, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990). Interrogation is reinitiated when a defendant represents a desire to open up a...