Nicholson v. State

• Decision Date: 26 April 2018
• Docket Number: Case Number: F-2016-927
• Parties: Ike Frank NICHOLSON Jr., Appellant v. The STATE of Oklahoma, Appellee
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

421 P.3d 890

Ike Frank NICHOLSON Jr., Appellant

v.The STATE of Oklahoma, Appellee

Case Number: F-2016-927

Court of Criminal Appeals of Oklahoma.

Decided: April 26, 2018

APPEARANCES AT TRIAL, STUART ERICSON, 115 W. THIRD ST., STE. 417, TULSA, OK 74103, ATTORNEY FOR DEFENDANT, R. KYLE ALDERSON, ASSISTANT DISTRICT ATTORNEY, 628 1/2 KIHEKAH, THIRD FLOOR, PAWHUSKA, OK 74056, ATTORNEY FOR THE STATE

APPEARANCES ON APPEAL, VIRGINIA SANDERS, P.O. BOX 926, NORMAN, OK 73070, ATTORNEY FOR APPELLANT, MIKE HUNTER, ATTORNEY GENERAL, JENNIFER B. WELCH, ASSISTANT ATTORNEY GENERAL, 313 N.E. 21ST STREET, OKLAHOMA CITY, OK 73105, ATTORNEYS FOR APPELLEE

OPINION

LEWIS, VICE–PRESIDING JUDGE:

¶ 1 Ike Frank Nicholson, Jr., Appellant, was tried by jury and convicted of second degree murder, in violation of 21 O.S.2011, § 701.8(1), in the District Court of Osage County, Case No. CF-2015-340.¹ The jury sentenced Appellant to life imprisonment. The Honorable M. John Kane IV, District Judge, pronounced judgment and sentence accordingly.² Mr. Nicholson appeals.

FACTS

¶ 2 Appellant and his girlfriend, Carrie Lira, traveled from Bethany to Tulsa in late October, 2015, hoping to locate Carrie's missing sister, Kelli. They learned from Antwuan Adamson that Vallon Broadus might be holding Kelli against her will. On the evening of October 21, Appellant, Carrie Lira, and Antwuan Adamson met at Megan Burkett's residence in Tulsa, expecting that Vallon Broadus might be there with Kelli. Neither Broadus nor Kelli were there when they arrived. They parked their car around the corner, and sat waiting in Antwuan Adamson's car just down the street from the residence.

¶ 3 Within an hour or two, Vallon Broadus drove up to Burkett's house in a red car and parked in the driveway. Antwuan Adamson had gone inside the Burkett residence before Broadus arrived, and saw some of the incident that followed on a home video surveillance monitor.³ By Appellant's own account, he got out of a vehicle and quickly approached the car driven by Vallon Broadus, carrying a 12 gauge shotgun and yelling for Kelli to "get out of the car!"⁴ Carrie Lira began driving Adamson's car toward the driveway to block Broadus's exit.

¶ 4 According to Appellant, the red car suddenly lurched backward in his direction, spinning its tires in the gravel, requiring him to step to the left side to avoid being hit. Appellant later admitted to police that he pointed the shotgun's attached flashlight into the driver's eyes as the car went by. He also admitted that the shotgun discharged as he pointed it at the driver, sending several pellets through the driver's windshield, striking and killing Vallon Broadus. The car backed into a large post and stopped.

¶ 5 After seeing part of the incident on camera, Antwuan Adamson quickly walked outside the house. There he saw the Appellant lowering the barrel of the shotgun from a shooting position. Appellant was standing about ten feet to the front side of the red car. Adamson got into his car. Appellant, still carrying the shotgun, jumped in the back seat and told Adamson to drive him around the corner. He drove to a nearby apartment, where Appellant and Carrie Lira got out. Adamson said Appellant took the shotgun with him. Adamson drove away. The shotgun was never recovered. Appellant and Carrie Lira were later arrested in Oklahoma City.

¶ 6 In a subsequent recorded interview with investigators, which was played for the trial jury, Appellant stated as Broadus's car came toward him, "I think I shot him. I think I shot the windshield." He denied intending to kill Broadus, saying he wanted to intimidate him and make him cooperate in efforts to find Carrie's sister, Kelli. After the shooting, Appellant and Carrie got in Adamson's car, rode with Adamson around the corner to their own car, and escaped the scene. Appellant essentially claimed he committed an accidental shooting, and fled in a panic because of his past run-ins with the law. The recording also showed that Appellant declined the investigator's request that he provide a DNA sample for comparison. Further facts will be discussed as necessary to the resolution of the issues on appeal.

ANALYSIS

¶ 7 In Proposition One, Appellant argues that the trial court erred in finding prosecution witness Antwuan Adamson unavailable to testify at trial and admitting the transcript of his preliminary examination testimony. He also argues the admission of the transcript violated his constitutional right to confrontation. This Court reviews the trial court's finding of a witness's unavailability for abuse of discretion. Mathis v. State , 2012 OK CR 1, ¶ 20, 271 P.3d 67, 75. An abuse of discretion is a clearly erroneous conclusion, contrary to the logic and effect of the facts presented. Pullen v. State , 2016 OK CR 18, ¶ 4, 387 P.3d 922.

¶ 8 We find that the trial court's finding that Adamson was unavailable was not clearly erroneous, and admission of the transcribed testimony was not an abuse of discretion. Because the witness was unavailable, and Appellant had a prior opportunity to cross-examine the witness at preliminary examination, admission of the transcript at trial did not violate Appellant's right to confrontation. Mathis , 2012 OK CR 1, ¶ 19, 271 P.3d at 75 ; Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 1374, 158 L.Ed.2d 177 (2004). Proposition One is denied.

¶ 9 In Proposition Two, Appellant argues that the flight instruction given by the trial court was reversible error. He waived review for all but plain error when he failed to object or request different instructions at trial. Simpson v. State , 1994 OK CR 40, ¶ 2, 876 P.2d 690, 693. Appellant must therefore show a plain or obvious error in this instruction affected the outcome of the trial. Hogan v. State , 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923. This Court will correct plain error only where it seriously affects the fairness, integrity or public reputation of the proceedings. Id . We find no plain or obvious error here. Mitchell v. State , 1993 OK CR 56, ¶ 8, 876 P.2d 682, 684 ; Ashton v. State , 2017 OK CR 15, ¶ 36, 400 P.3d 887, 897. Proposition Two is without merit.

¶ 10 Proposition Three argues that the trial court's violation of section 894 of Title 22 in two written communications to the jury was reversible error. These communications answered two simple questions by referring jurors back to their instructions. The communications met no objection at trial, waiving all but plain error, as defined above. Section 894 requires that when the jury desires further instruction after retiring to deliberate, the trial court should conduct the jury to the courtroom and instruct them in the presence of, or after notice to, the prosecutor and defense counsel. The written response procedure used here, though it happens in trial courts every day, and was agreed to by counsel after consultation, is a plain violation of the statute. Cipriano v. State , 2001 OK CR 25, ¶ 48, 32 P.3d 869, 879 (finding open court requirement of section 894 is mandatory).

¶ 11 This Court has more than once indicated that when a trial court's communications with the jury violate the dictates of section 894—even with the agreement or acquiescence of the parties—a "presumption of prejudice arises." Mitchell v. State , 2011 OK CR 26, ¶ 130, 270 P.3d 160, 188 (quoting Givens v. State , 1985 OK CR 104, ¶ 19, 705 P.2d 1139, 1142 ). This presumption of prejudice was said to be rebuttable, and could be "overcome if, on appeal, this Court is convinced that, on the face of the record, no prejudice to the defendant occurred." Id . In Mitchell , the Court found the presumption of prejudice rebutted where "the court's written response accomplished the same result as if the court had brought the jury into the courtroom and responded verbally." Id .

¶ 12 However, upon closer review of prior cases, we find this presumption of prejudice unjustified when the trial court communicates with the jury in writing after affording counsel notice and an opportunity to be heard. Smallwood v. State , 1995 OK CR 60, ¶¶ 80–82, 907 P.2d 217, 237–38 (citing Brown v. State , 1975 OK CR 13, ¶¶ 9–10, 530 P.2d 1056, 1058 ) (holding prejudice is not presumed from trial court's written communication with jury after consulting with counsel). Any suggestion to the contrary in Mitchell, Givens, or other published cases, is hereby overruled.⁵

¶ 13 Reversal of a judgment for a procedural error is prohibited unless the error "has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right." 20 O.S.2011, § 3001.1 (emphasis added). The correction of unpreserved error always remains a matter of discretion, rather than legal right, and is generally warranted only when the error "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings ...." Simpson , 1994 OK CR 40, ¶ 30, 876 P.2d at 700–01 (quoting United States v. Olano , 507 U.S. 725, 732, 113 S.Ct. 1770, 1776–77, 123 L.Ed.2d 508, 518 (1993) ).

¶ 14 The supplemental instructions here were given to the jury in writing after consultation with counsel. Neither party requested that the jury be returned to the courtroom for these instructions. Appellant has not shown that the instructions themselves were incorrect, or that other instructions should have been given. The trial court's technical violation of section 894 by failing to conduct the jury to the courtroom for these instructions did not seriously affect the fairness, integrity, or public reputation of the proceedings. Worchester v. State, 1975 OK CR 111, ¶ 20, 536 P.2d 995, 1001 (finding a "technical violation" of section 894 by written communication was harmless error). No relief is warranted. Proposition Three is denied.

¶ 15 In Proposition Four, Appellant complains that evidence of his prior convictions, and his refusal to give a requested sample of his DNA, should not have been admitted. He failed to object to the evidence...