Simpson v. State Of Okla.

• Decision Date: 05 March 2010
• Docket Number: No. D-2007-1055.,D-2007-1055.
• Citation: 230 P.3d 888,2010 OK CR 6
• Parties: Kendrick Antonio SIMPSON, Appellantv.STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

230 P.3d 888

2010 OK CR 6

Kendrick Antonio SIMPSON, Appellantv.STATE of Oklahoma, Appellee.

No. D-2007-1055.

Court of Criminal Appeals of Oklahoma.

March 5, 2010.

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An Appeal from the District Court of Oklahoma County; The Honorable Twyla Mason Gray, District Judge.

Stephen Deutsch, Jennifer Chance, Assistant District Attorneys, Oklahoma City, OK, attorneys for the State at trial.

William Campbell, Larry Tedder, Oklahoma City, OK, attorneys for the defendant at trial.

William H. Luker, Kathleen M. Smith, Oklahoma Indigent Defense System, Norman, OK, attorneys for appellant on appeal.

W.A. Drew Edmondson, Attorney General of Oklahoma, Jennifer J. Dickson, Assistant Attorney General, Oklahoma City, OK, attorneys for State on appeal.

OPINION

C. JOHNSON, Presiding Judge.

¶ 1 Appellant, Kendrick Antonio Simpson, was tried by a jury and convicted of First Degree Murder with Malice Aforethought (Counts I and II), Discharging a Firearm with Intent to Kill (Count III) and Possession of a Firearm After Former Conviction of a Felony (Count IV) in the District Court of Oklahoma County, Case No. CF 2006-496. The State filed a Bill of Particulars alleging four aggravating circumstances: (1) the defendant was previously convicted of a felony involving the use or threat of violence; (2) the defendant knowingly created a great risk of death to more than one person; (3) the murder was especially heinous, atrocious, or cruel; and (4) the existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.¹ The jury found Appellant guilty on each count charged and found the existence of all alleged aggravating circumstances as to each of Counts I and II. It assessed punishment at death on Counts I and II, life imprisonment on Count III and ten years imprisonment on Count IV. The trial court sentenced Appellant accordingly. From this Judgment and Sentence Appellant has appealed.²

I. FACTS

¶ 2 On the evening of January 15, 2006, Jonathan Dalton, Latango Robertson and Appellant decided to go to Fritzi's hip hop club in Oklahoma City. Prior to going to the club, the three drove in Dalton's white Monte Carlo to Appellant's house so that Appellant could change clothes. While at his house, Appellant got an assault rifle which he brought with him.³ Before going to Fritzi's, the men first went to a house party where they consumed alcohol and marijuana. When they left the party, Appellant put the assault rifle into the trunk of the Monte Carlo, which could be accessed through the back seat.

¶ 3 The three arrived at Fritzi's between midnight and 1:00 a.m. on January 16. Once inside, they went to the bar to get a drink. Appellant and Dalton also took a drug called “Ecstasy.” After getting their drinks, Dalton and Robertson sat down at a table while Appellant walked around. When Appellant walked by London Johnson, Anthony Jones and Glen Palmer, one of the three apparently said something to him about the Chicago Cubs baseball cap that he was wearing. Appellant went back to the table and told Dalton and Robertson that some guy had given him a hard time about his cap. At some point, Appellant approached Johnson, Jones and Palmer again. During this encounter, Appellant told them that he was going to “chop” them up.⁴ After making this threat, Appellant walked away. He returned a short time later and walked up to Palmer. Appellant extended his hand and said, “We cool.” Palmer hit Appellant in the mouth knocking him to the floor. Appellant told Dalton and Robertson that he wanted to leave and the three of them left the club.

¶ 4 Out in the parking lot, Appellant, Dalton and Robertson went to Dalton's Monte Carlo. Before leaving, they talked with some girls who had come out of the club and were parked next to them. The girls told the men to follow them to a 7-11 located at NW 23rd Street and Portland. When they arrived at the store, Appellant, Dalton and Robertson backed into a parking space toward the back door and the girls pulled in next to the pumps. While the men were sitting in the Monte Carlo, they saw Johnson, Jones and Palmer drive into the parking lot in Palmer's Chevy Caprice. They recognized Palmer as the person who had hit Appellant at Fritzi's. Dalton told Appellant to “chill out” but Appellant was mad and wanted to retaliate against Palmer. When Palmer drove out of the parking lot onto 23rd Street and merged onto I-44, Appellant told Dalton to follow them.

¶ 5 While they were following the Chevy, Appellant, who was sitting in the front passenger seat, told Robertson, who was sitting in the back seat, to give him the gun. He told Robertson that if he had to get the gun himself, there was going to be trouble. Robertson reached through the back seat into the trunk and retrieved the gun for Appellant. Dalton followed the Chevy as it exited the interstate onto Pennsylvania Avenue. He pulled the Monte Carlo into the left lane beside the Chevy as they drove on Pennsylvania Avenue and Appellant pointed the gun out his open window and started firing at the Chevy.

¶ 6 When the Chevy was hit with bullets, Palmer was driving, Jones was sitting in the front passenger seat and Johnson was in the back seat. Johnson heard about twenty rapid gun shots and got down on the floor of the car. He did not see the shooter but noticed a white vehicle drive up beside them. The Chevy jumped the curb and hit an electric pole and fence before coming to a stop. Palmer and Jones had been shot. Jones had been shot in the side of his head and torso and was unconscious. Palmer had been shot in the chest. He was initially conscious and able to talk but soon lost consciousness when he could no longer breathe. Johnson tried to give both Jones and Palmer CPR but was unsuccessful. He flagged down a car that was driving by and asked the driver to get help. Both Palmer and Jones died at the scene from their gunshot wounds.

¶ 7 After he fired at the Chevy, Appellant said, “I'm a monster. I just shot the car up.” He added, “They shouldn't play with me like that.” Dalton kept driving until they reached a residence in Midwest City where he was staying. They dropped the gun off and switched cars, and then Dalton, Robertson and Appellant went to meet some girls they had talked to at Fritzi's.

II. OPPORTUNITY TO PRESENT A COMPLETE DEFENSE

¶ 8 Prior to trial, the defense filed a notice of intent to offer evidence of mental and/or psychological defect, deficiency, diminishment, and/or other such and related condition of defendant. Dr. Phillip Massad, a clinical psychologist, conducted a psychological evaluation of Appellant and issued a report in which he found it more likely than not that Appellant suffered from Post Traumatic Stress Disorder (PTSD). The State filed a motion to preclude the defense from offering testimony about Appellant's PTSD in the first stage of trial. A hearing was held on this motion and the trial court granted the State's motion. Appellant complains in his first proposition that this ruling was in error and violated his constitutional right to present a complete defense.

¶ 9 It is true, as Appellant asserts, that the United States Constitution guarantees criminal defendants “a meaningful opportunity to present a complete defense.” Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 2146, 90 L.Ed.2d 636 (1986). A defendant's due process right under the Fifth Amendment and to compulsory process under the Sixth Amendment includes the right to present witnesses in his or her own defense. United States v. Dowlin, 408 F.3d 647, 659 (10th Cir.2005); see also Washington v. Texas, 388 U.S. 14, 18-19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967). “The right to offer the testimony of witnesses ... is in plain terms the right to present a defense.... This right is a fundamental element of due process of law.” Washington, 388 U.S. at 19, 87 S.Ct. at 1923. See also Coddington v. State, 2006 OK CR 34, ¶ 46, 142 P.3d 437, 450-51. It is also true, however, that “[i]n the exercise of this right, the accused, as is required of the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.” Gore v. State, 2005 OK CR 14, ¶ 21, 119 P.3d 1268, 1275, citing Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297 (1973). Further, the admissibility of evidence is within the discretion of the trial court, which will not be disturbed absent a clear showing of abuse, accompanied by prejudice to the accused. Jackson v. State, 2006 OK CR 45, ¶ 48, 146 P.3d 1149, 1165.

¶ 10 Whether Appellant was denied the right to present a defense ultimately turns on whether the evidence at issue was admissible. In order to be admissible, evidence must be relevant. 12 O.S.2001, § 2402. “ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” 12 O.S.2001, § 2401. Appellant argues that the evidence that he suffered from PTSD was relevant to the issue of his intent at the time of the offense. The transcript of the hearing on the State's motion to preclude defense testimony about PTSD in the first stage of trial reveals that after speaking with Dr. Massad and reviewing his report, the prosecutor believed that Dr. Massad would not be able to testify that Appellant's PTSD precluded Appellant from forming the intent to kill. Contrary to this, the defense counsel believed that Dr. Massad would testify that “it is possible that the PTSD affected him to the extent that he was not able to form the specific intent.” Although Dr. Massad did not testify at the motion hearing, he did testify during the second stage of Appellant's trial. At trial, Dr. Massad...