Tafolla v. State

• Decision Date: 18 July 2019
• Docket Number: Case No. F-2017-802
• Citation: 446 P.3d 1248
• Parties: Jestin TAFOLLA, Appellant v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

446 P.3d 1248

Jestin TAFOLLA, Appellant

v.The STATE of Oklahoma, Appellee.

Case No. F-2017-802

Court of Criminal Appeals of Oklahoma.

FILED JULY 18, 2019

TONI A. BEACH, ATTORNEY AT LAW, P.O. BOX 52755, TULSA, OK 74152, COUNSEL FOR DEFENDANT

ISAAC SHIELDS, KATE HUNTER, ASST. DISTRICT ATTORNEYS, 500 S. DENVER, SUITE 900, TULSA, OK 74103, COUNSEL FOR STATE

IAN M. SHAHAN, ATTORNEY AT LAW, 1705 S. BALTIMORE AVE., TULSA, OK 74119, COUNSEL FOR APPELLANT

MIKE HUNTER, ATTORNEY GENERAL OF OKLAHOMA, JENNIFER B. WELCH, ASSISTANT ATTORNEY GENERAL, 313 N.E. 21ST STREET, OKLAHOMA CITY, OK 73105, COUNSEL FOR APPELLEE

OPINION

ROWLAND, JUDGE:

¶1 Appellant Jestin Tafolla appeals his Judgment and Sentence from the District Court of Tulsa County, Case No. CF-2016-2204, for Assault and Battery with a Dangerous Weapon, After Former Conviction of Two or More Felonies (Count 1), in violation of 21 O.S.2011, § 645, and Carrying a Weapon Unlawfully, a misdemeanor (Count 2), in violation of 21 O.S.Supp.2015, § 1272. The Honorable William D. LaFortune, District Judge, presided over Tafolla's jury trial and sentenced him, in accordance with the jury's verdict, to life imprisonment on Count 1 and thirty days in the county jail on Count 2. The sentences were ordered to be served concurrently. Tafolla appeals raising the following issues:

(1) whether the admission of evidence of his gang affiliation violated his due process right to a fair trial;

(2) whether evidence of his gang affiliation was "aggravating" evidence not permissible under Oklahoma law;

(3) whether the trial court erred in allowing evidence of his gang affiliation in violation of the First Amendment Freedom of Association;

(4) whether the admission of his statement that he was a member of the Aryan Brotherhood was improper and denied him his due process right to a fair trial;

(5) whether admission of the victim's out of court statements violated his constitutional right to confrontation;

(6) whether the admission of evidence of underlying facts and probationary sentences imposed in his prior felony convictions deprived him of his due process right to a fair trial;

(7) whether prosecutorial misconduct deprived him of his due process right to a fair trial;

(8) whether instructional error requires relief;

(9) whether his convictions for both assault and battery with a dangerous weapon and carrying a weapon unlawfully violated the constitutional prohibition against double jeopardy and the state prohibition against double punishment;

(10) whether error occurred when the State charged him with the general crime instead of a more specific "hate" crime;

(11) whether he was denied effective assistance of counsel; and,

(12) whether an accumulation of error deprived him of a fair trial.

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

FACTS

¶3 On the afternoon of April 5, 2016, Tulsa Police Detectives James Dawson and Korey Scott, both with the Organized Gang Unit, were driving in an unmarked car back to the police station at the end of their patrol shift. Around 11th Street and Highway 169 they saw a white male, Jestin Tafolla, straddling a black male who was on his back on the sidewalk. Tafolla was hitting the victim repeatedly in the face and the detectives could see the victim's head bouncing off the sidewalk with each blow. The detectives activated the lights on their car and drove up to the two men. When Tafolla saw the detectives approach, he stood up, pulled brass knuckles off of his hand, and threw them into the grass ten to fifteen feet away. The officers separated and handcuffed both men as they tried to figure out what had happened.

¶4 The victim told the detectives that he had been driving on the highway and had been cut off. This upset him and he followed the car that cut him off. When the car driven by Tafolla pulled over, both men got out of their vehicles and the two engaged in a heated argument. After they exchanged words they walked back to their cars. As the victim walked toward his car, the occupant of Tafolla's car, Lara Maloy, yelled at him and called him a "n----r."¹ The victim lost his cool; he grabbed a QuikTrip cup half filled with soda from his vehicle and threw the soda toward Tafolla's vehicle at Maloy. As the victim was verbally confronting Maloy, Tafolla sucker punched him in the back of the head. The victim did not remember much after the initial blow. His head was bleeding profusely; he had lacerations in both the front and back of his head. When he spoke with the detectives he was disoriented, dazed, upset, and confused.

¶5 When Detective Dawson approached Tafolla he noticed that Tafolla was heavily tattooed. Dawson thought that the tattoos might indicate a gang affiliation and because he noted a cloverleaf tattoo he asked Tafolla if he was a member of the Irish Mob. Taffolla was angered by the question and pointed out his swastika tattoo; he told Dawson that he was UAB (Universal Aryan Brotherhood). The brass knuckles retrieved from the grass had wolf heads across the knuckle with sharp pointed ears on the wolves. Dawson testified at trial that members of UAB refer to themselves as the "wolf pack." Dawson noted that in addition to significant lacerations on his face, the victim had a row of lacerations across the back of his head in the shape of a wolf's head; the head and sharp ears from the brass knuckles were cut into the back of his head.

¶6 When Tafolla and Maloy told the detectives what had happened, their accounts of how the altercation began were similar to the victim's but their stories of how it escalated at the end were different. Lara testified at trial that after her husband and the victim "had words" in the parking lot they shook hands and went back to their own cars. She testified that the victim backed his car up and started calling her names. She said that he stopped his car, grabbed something from the car and started walking toward her. At this point Tafolla intervened. The victim threw a cup at Tafolla's face and started hitting and punching him. She testified that Tafolla only hit the victim because he was attacked by the victim first. She denied calling the victim a racial epithet.

¶7 Tafolla testified at trial. He said that after he and the victim got within a few feet of each other the victim's demeanor changed; he became less aggressive possibly because he saw Tafolla's visible tattoos. The victim "went from very aggressive to second guessing his behavior." Tafolla said that after their heated exchange of words, he and the victim calmed down and shook hands. When he returned to his car, Lara was standing outside the vehicle. He told her to get back in the car and as he and Lara were bickering back and forth the victim drove by and said, "yeah, get your bitch cuz." Tafolla testified that Lara started yelling at the victim who stopped, got out of his car, reached back into his car and started grabbing for something. Tafolla grabbed his brass knuckles. The victim threw his drink on Tafolla and punched him in the mouth. The two began to fight and were engaged in mutual combat. He testified that they were on their feet "engaging in hand-to-hand combat." Tafolla denied ever hitting the victim from behind and he surmised that the injuries on the back of the victim's head occurred when the victim ducked his head during the fight. Tafolla testified that when the victim fell to the ground he got right back up again. Tafolla denied sitting on the victim and beating his face. He testified that the detectives' testimony to the contrary was wrong.

1.

¶8 Prior to trial the prosecution gave notice that it intended to introduce evidence of other crimes or bad acts at trial. This included evidence that Tafolla was a member of the Universal Aryan Brotherhood (UAB) — a white supremacist prison gang. Tafolla argues that the evidence of his gang affiliation was inadmissible.

¶9 The State asserted below that evidence of Tafolla's involvement in the UAB gang was admissible to show motive, common scheme, design, or purpose, identity, and bias. Despite the extensive pretrial discussion and argument, the gang related evidence about which Tafolla complains in this proposition was not met with objection when it was introduced at trial. Accordingly, we review the admission of this evidence for plain error only. See Lowery v. State , 2008 OK CR 26, ¶ 9, 192 P.3d 1264, 1268 (where defense counsel vigorously challenged other crimes evidence during the in-trial hearing but failed to object at the time the evidence was actually offered at trial review was for plain error). To be entitled to relief for plain error, an appellant must show: "(1) the existence of an actual error (i.e., deviation from a legal rule); (2) that the error is plain or obvious; and (3) that the error affected his substantial rights, meaning the error affected the outcome of the proceeding." Hogan v. State , 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923. "This Court will only correct plain error if the error seriously affects the fairness, integrity or public reputation of the judicial proceedings or otherwise represents a miscarriage of justice." Stewart v. State , 2016 OK CR 9, ¶ 25, 372 P.3d 508, 514.

¶10 In Dawson v. Delaware , 503 U.S. 159, 112 S.Ct. 1093, 117 L.Ed.2d 309 (1992), the Supreme Court held that evidence introduced in a capital sentencing proceeding that the defendant belonged to the Aryan Brotherhood was constitutional error where such evidence had "no relevance to the issues being decided in the proceeding." Id . 503 U.S. at 160, 112 S.Ct. at 1095. The Supreme Court found in Dawson that the evidence was not inadmissible per se , but rather was irrelevant because the victim and defendant were both white; there was no link between gang membership and the crime — the evidence proved nothing more than the defendant's "abstract beliefs." Id. 503 U.S. at 165-67, 112 S.Ct. at 1098. See also Martinez v. State , 2016 OK CR 3, ¶ 61, 371 P.3d 1100, 1115 ; Torres v....