Washington v. State

• Docket Number: F-2021-692
• Decision Date: 21 December 2023
• Citation: 2023 OK CR 22
• Parties: DOMINIC WASHINGTON, Appellant v. THE STATE OF OKLAHOMA, Appellee
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

2023 OK CR 22

DOMINIC WASHINGTON, Appellant
v.
THE STATE OF OKLAHOMA, Appellee

No. F-2021-692

Court of Criminal Appeals of Oklahoma

December 21, 2023

AN APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, THE HONORABLE AMY PALUMBO, DISTRICT JUDGE

MICHAEL JOHNSON 1103 NORTHWEST 87TH OKLAHOMA CITY, OK 73114 COUNSEL FOR DEFENDANT

RICKY LUTZ ADAM PANTER ASSISTANT DISTRICT ATTORNEYS 320 ROBERT S. KERR, SUITE 505 OKLAHOMA CITY, OK 73102 COUNSEL FOR STATE

WYNDI THOMAS HOBBS DEPUTY DIVISION CHIEF CAPITAL POST CONVICTION DIVISION P.O. BOX 926 NORMAN, OK 73070 COUNSEL FOR APPELLANT

JOHN M. O'CONNOR ATTORNEY GENERAL OF OKLAHOMA RANDALL YOUNG ASSISTANT ATTORNEY GENERAL 313 N.E. 21ST STREET OKLAHOMA CITY, OK 73105 COUNSEL FOR APPELLEE

SUMMARY OPINION

MUSSEMAN, JUDGE

¶1 Appellant, Dominic Washington, appeals his Judgment and Sentence from the District Court of Oklahoma County, Case No. CF-2019-4504, for Count 1, Murder in the First Degree in violation of 21 O.S.Supp.2012, § 701.7; and Count 3, Shooting with Intent to Kill in violation of 21 O.S.2011, § 652 (A). ^[1]

¶2 The Honorable Amy Palumbo, District Judge, presided over Washington's jury trial and sentenced him, in accordance with the jury's verdict, to life as to Count 1 and fifteen years as to Count 3. ^[2] The Judge ordered the sentences to run consecutively. Washington appeals his judgment and sentence and raises the following issues:

I. whether the State's evidence was insufficient to support Appellant's convictions

II. whether Appellant's due process rights were violated by the admission of inflammatory, irrelevant, and cumulative evidence under the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution and Article II §§ 7 and 9 of the Oklahoma Constitution

III. whether Appellant was denied his Sixth and Fourteenth Amendment right to confront witnesses against him when the trial court admitted the documents attached to the report of the Medical Examiner;

IV. whether evidentiary harpoons violated Appellant's right to a fair trial under the Fifth and Fourteenth Amendments to the United States Constitution, and Article II, § 20 of the Oklahoma Constitution;

V. whether the pre-trial identification procedures employed in this case were so unnecessarily suggestive and conducive to irreparable mistaken identification that Appellant's due process rights were violated;

VI. whether Appellant received ineffective assistance of trial counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article II, §§ 7 and 20 of the Oklahoma Constitution; and

VII. whether the accumulation of errors deprived Appellant of a fair trial.

¶3 We affirm the Judgment and Sentence of the district court.

I.

¶4 In his first proposition, Appellant claims there was insufficient evidence presented at trial to identify him as the shooter. The ultimate question of sufficiency of the evidence should be resolved with deference to the fact finder and in a light most favorable to the State. Dodd v. State, 2004 OK CR 31, ¶ 80, 100 P.3d 1017, 1041; see also Spuehler v. State, 1985 OK CR 132, ¶ 7, 709 P.2d 202, 203-04. "[T]his Court does not reweigh conflicting evidence or second-guess the decision of the fact-finder; we accept all reasonable inferences and credibility choices that tend to support the verdict." Wall v. State, 2020 OK CR 9, ¶ 20, 465 P.3d 227, 234; see also Coddington v. State, 2006 OK CR 34, ¶ 70, 142 P.3d 437, 456. We further recognize that "the law makes no distinction between direct and circumstantial evidence and either, or any combination of the two, may be sufficient to support a conviction." Mason v. State, 2018 OK CR 37, ¶ 13, 433 P.3d 1264, 1269 (quoting Mitchell v. State, 2018 OK CR 24, ¶ 11, 424 P.3d 677, 682). We consider all the evidence admitted at trial in reviewing a challenge to the sufficiency of the evidence regardless of whether the evidence was properly admitted. McDaniel v. Brown, 558 U.S. 120, 130-31 (2010). We examine pieces of evidence together in context rather than in isolation, and we will affirm a conviction so long as, from the inferences reasonably drawn from the record as a whole, the jury might fairly have concluded the defendant was guilty beyond a reasonable doubt. Mason, 2018 OK CR 37, ¶ 13, 433 P.3d at 1269.

¶5 There was sufficient evidence presented at trial that a rational trier of fact could have found Appellant was the shooter beyond a reasonable doubt. Proposition I is denied.

II.

¶6 At trial, in addition to the testimony of the medical examiner, the State admitted into evidence the Report of Investigation by Medical Examiner with several attached documents. Appellant claims in Proposition II that this report was inadmissible hearsay, contained irrelevant details, and was cumulative to the testimony of the medical examiner. Additionally, Appellant specifically points to the Report of Laboratory Analysis (Toxicology Report) contained within the medical examiner's report prepared by a non-testifying witness. Appellant did not raise these objections at trial, waiving review for all but plain error. Williamson v. State, 2018 OK CR 15, ¶ 20, 422 P.3d 752, 758.

¶7 Plain error review requires the defendant to prove: (1) the existence of an actual error; (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. Even where this showing is made, this Court will correct plain error only where the error seriously affected the fairness, integrity, or public reputation of the judicial proceedings or represented a miscarriage of justice. Id.

¶8 To be clear, we have previously held that a medical examiner's report is hearsay and does not fall within the exceptions to the hearsay rule. Martinez v. State, 2016 OK CR 3, ¶ 54, 371 P.3d 1100, 1114; Cooks v. State, 1985 OK CR 48, ¶ 28, 699 P.2d 653, 659. Furthermore, much of the report, while probative, was cumulative to the medical examiner's testimony. The admission of the report into evidence was error. However, in light of the evidence properly admitted at trial, Appellant has failed to demonstrate that the error affected his substantial rights, meaning the error affected the outcome of the proceeding. Hogan, 2006 OK CR 19, ¶ 38, 139 P.3d at 923. As a result, Appellant has failed to demonstrate plain error and Proposition II is denied.

III.

¶9 In Proposition III, Appellant claims that the admission of a Report of Laboratory Analysis prepared by a non-testifying witness violated his Sixth Amendment right to confront witnesses against him. Appellant did not object at trial, waiving review for all but plain error as set out above in Proposition II. Mahdavi v. State, 2020 OK CR 12, ¶ 33, 478 P.3d 449, 457.

¶10 Dr. Marc Harrison, the medical examiner who performed the autopsy on the victim, testified at trial. During this testimony, the Report of Investigation by Medical Examiner was offered and admitted into evidence. However, while the majority of the report was prepared by Dr. Harrison, it included the Toxicology Report prepared by Dr. Jesse Kemp with results of several blood tests for drugs performed on the victim. Dr. Kemp did not testify at trial and there was no discussion regarding his availability.

¶11 The Confrontation Clause guarantees the right of a defendant in a criminal trial to be confronted with witnesses against him. Crawford v. Washington, 541 U.S. 36, 42 (2004). "Where testimonial evidence is at issue... the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination." Id. 541 U.S. at 68. To rank as "testimonial," a statement must have a "primary purpose" of "establish[ing] or prov[ing] past events potentially relevant to later criminal prosecution." Davis v. Washington, 547 U.S. 813, 822 (2006). Testimonial hearsay generally includes statements made during custodial interrogation, affidavits, prior testimony not subject to cross-examination by the defendant, or statements that the declarant would reasonably expect to be used to prove some fact at a later trial. Id. Statements by technical investigators and analysts generated in forensic reports fall within the category of testimonial evidence. See Bullcoming v. New Mexico, 564 U.S. 647, 661 (2011); Melendez-Diaz v. Massachusetts, 557 U.S. 305, 311 (2009) ("certificates of analysis" prepared by forensic analysts were testimonial statements, and the analysts were "witnesses" for purposes of the Sixth Amendment).

¶12 Dr. Kemp's Toxicology Report contains testimonial statements of a witness who did not appear at trial, who was not shown to be unavailable, and who Appellant had not had a prior opportunity to cross examine. As a result, they were admitted in violation of Appellant's Sixth Amendment right to confrontation. Moreover, the Supreme Court's decision in Melendez-Diaz is clearly on point and makes this error plain or obvious.

¶13 It is at this point in the plain error analysis that we consider whether "the error affected [Appellant's] substantial rights, meaning the error affected the outcome of the proceeding." Hogan, 2006 OK CR 19, ¶ 38, 139 P.3d at 923; see Simpson v. State, 1994 OK CR 40, ¶¶ 11, 23, 876 P.2d 690, 694-95, 698; 20 O.S.2021 § 3001.1. In determining the impact or prejudice of this constitutional violation, the State asks us to reconsider our precedent of applying Chapman ^[3] harmless error to unpreserved constitutional errors. We take this opportunity to do so and find that the implications of grafting the Chapman harmless error standard onto Oklahoma's plain error standard is unsupported by federal and Oklahoma jurisprudence.

¶14 The United States Supreme Court recognized in Chapman that not all trial errors which violate the United...