Mitchell v. State

Decision Date14 September 2005
Docket NumberNo. D2003-248.,D2003-248.
PartiesJames Lawrence MITCHELL, III, Appellant v. STATE of Oklahoma, Appellee.
CourtOklahoma Supreme Court

Connie Pope, James Siderias, Asst. District Attorneys, Oklahoma City, OK, Attorneys for the State at trial.

John B. Albert, Oklahoma City, OK, Attorney for the Defendant at trial.

James H. Lockard, Deputy Division Chief, Michael Morehead, Appellate Defense Counsel, Norman, OK, Attorney for Appellant on appeal.

W.A. Drew Edmondson, Attorney General of Oklahoma, Robert Whitaker, Assistant Attorney General, Oklahoma City, OK, Attorneys for State on appeal.


C. JOHNSON, Judge:

¶ 1 Appellant, James Lawrence Mitchell, III., was convicted by a jury in Oklahoma County District Court, Case No. CF 2000-4712, of First Degree Murder (Child Abuse), in violation of 21 O.S.Supp.2000, § 701.7(C) (Count 1), Child Abuse, in violation of 10 O.S.Supp.1999, § 7115 (Count 3), and Child Sexual Abuse, in violation of 10 O.S.Supp.1999, § 7115 (Count 4), after former conviction of two felonies.1 Jury trial was held on January 27, 2003, through February 7, 2003, before the Honorable Virgil Black, District Judge. On Count 1, the jury found the existence of three aggravating circumstances: (1) the defendant was previously convicted of a felony involving the use or threat of violence;2 (2) the murder was especially heinous, atrocious, or cruel;3 and, (3) the defendant poses a continuing threat to society.4 The jury set punishment at death on Count 1, and at one thousand (1,000) years each on Counts 3 and 4. Mitchell was sentenced in accordance with the jury's verdicts on March 4, 2003.5 He then filed this appeal.

¶ 2 Shawanda Rogers, Charita and Kyree's mother, moved to Oklahoma City with Michael Frerene in the latter part of 1998. In the spring of 2000, Frerene returned to Louisiana for a couple of months. During that time, Rogers worked at McDonalds where she met AppellantJames Mitchell. In July 2000, Rogers, Charita and Kyree moved in with Mitchell.

¶ 3 Around 8:00 a.m. on July 23, 2000, Mitchell drove Rogers to work at the Fifth Seasons Hotel. Charita and Kyree stayed at home with Mitchell while Rogers was at work. As early as 8:15 a.m., Mitchell began calling the hotel. Initially, he told a co-worker it was important for Rogers to call home. In the third or fourth call, Mitchell said Rogers' baby was sick and she needed to call home. The fifth or sixth time Mitchell called, he said Rogers needed to come home because her baby was having a seizure. A co-worker told Mitchell to take the baby to the hospital. Mitchell continued to make phone calls to Rogers' place of employment and with each call he sounded more excited. 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. Mitchell picked her up from work between 2:30 and 3:30 p.m.

¶ 4 After Rogers and Mitchell returned home, Rogers called her aunt Gwen Alexander and asked for a ride to the hospital. Her uncle Kevin Hopson and Michael Frerene then drove to Mitchell's house, picked up Rogers, Charita and Kyree, and took them to Children's Hospital.

¶ 5 When they arrived at the Children's Hospital Emergency Room at 4:20 p.m., "she [Charita] was obtunded and essentially comatose." Charita was in respiratory failure and was having seizures. Her Glascow Score was four, but she was still breathing on her own. Charita had widespread bruising from head to toe. She had 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; it showed blood tracking in the area separating the upper part of the brain from the area that controls balance. There was blood along the falx — the fibrous portion between the right and left part of the brain. 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 suggested that Charita had suffered "more than one strike injury to her head." The injuries suggested Charita was shaken and struck; 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 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. Gessouroun, the PICU physician who examined Charita on July 24th, testified her internal injuries and lung injuries were caused by external trauma. He said the injuries to her lungs, pancreas and liver would have required blunt force trauma to her chest and abdomen. 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, Dr. Gessouroun testified it was very unusual to have bleeding in the brain's fourth ventricle in the absence of very extreme force. He said she had such massive trauma to her head that he would not have expected her to have a lucent period of 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. He said she was likely unconscious immediately or almost immediately and 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 A sexual abuse examination was performed on Charita. A physician's assistant reported Charita had bruising on the bilateral labia majora and a loss of hymenal tissue between the 5:30 and 7 o'clock position. She testified the thinness of the hymenal tissue suggested multiple incidents of penetrating trauma, with one incident possibly occurring within the last one to three days.

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

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

¶ 12 Mitchell told Detective Edwards 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. Mitchell also told Detective Edwards that Charita had been "messed with." Detective Edwards testified that Mitchell would not have known the results of the sexual assault examination when he said that.

¶ 13 Other relevant facts will be discussed as necessary under the various propositions of error.

¶ 14 In Proposition One, Mitchell claims his trial was infected with inadmissible hearsay, depriving him of his right to confrontation and cross-examination, in violation of the Sixth Amendment to the United States Constitution and Article 2, § 20 of the Oklahoma Constitution. Mitchell complains that (1) Detective Edwards was allowed to testify that Kyree Rogers told him Appellant picked Charita up by the ankles and slammed her head into the ground numerous times; (2) Sharronda Rogers was allowed to testify Shawanda Rogers said Appellant had beaten Charita; and (3) Michael Frerene was allowed to testify that Shawanda said Appellant said he did not want to take Charita to the hospital when she started having seizures.

¶ 15 In both state and federal criminal prosecutions, an accused has a right "to be confronted with the witnesses against him." See U.S. Const. amends. VI and XIV; Okla. Const. art. 2, § 20; Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). The Confrontation Clause ensures "the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact." Maryland v. Craig, 497 U.S. 836, 845, 110 S.Ct. 3157, 3163, 111 L.Ed.2d 666 (1990). The clause "bars admission of some evidence which would otherwise be admissible under an exception to the hearsay rule." Idaho v. Wright, 497 U.S. 805, 814, 110 S.Ct. 3139, 3146, 111 L.Ed.2d 638 (1990) (citations omitted).

¶ 16 The confrontation clause requires...

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