Appellant: MAURICE KEN-DELL TUBBS
Appellee: State of Oklahoma
( Smith )
SUMMARY OPINION
Maurice Ken-Dell Tubbs, Appellant, was tried by jury and convicted of First-Degree Felony Murder by Feloniously Discharging a Firearm into a Dwelling, under 21 O.S. 701.7(B) & 21 O.S. 1289.17A (2001), in the District Court of Comanche County, Case No. CF-2009-180. In accord with the jury verdict, the Honorable Mark R. Smith, District Judge, sentenced Tubbs to imprisonment for Life.' Tubbs is before this Court on direct appeal.
Tubbs raises the following propositions of error:
I. THE EVIDENCE PRODUCED AT TRIAL WAS INSUFFICIENT TO PROVE BEYOND A REASONABLE DOUBT THAT APPELLANT COMMITTED MURDER IN THE FIRST DEGREE BECAUSE THE STATE'S EVIDENCE FAILED TO CORROBORATE THE TESTIMONY OF ACCOMPLICE JEREMY MCKINDRA.
II. APPELLANT'S RIGHTS PROTECTED BY THE FOURTEENTH AMENDMENT AND THE OKLAHOMA EVIDENCE CODE WERE VIOLATED WHEN THE STATE INTRODUCED DOCUMENTARY EVIDENCE AGAINST HIM WITHOUT PROPER AUTHENTICATION.
III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY INSTRUCTING THE JURY THAT IT COULD CONSIDER JEREMY MCKINDRA'S STATEMENTS TO DETECTIVE MCGEE AS SUBSTANTIVE EVIDENCE OF GUILT.
IV. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ADMITTING STATE'S EXHIBIT 1, AN AUDIOTAPE RECORDING OF A 911 CALL. BECAUSE THE EVIDENCE WAS IRRELEVANT AND HIGHLY PREJUDICIAL, ITS ADMISSION VIOLATED APPELLANT'S RIGHTS TO A FAIR TRIAL.
V. THE PROSECUTOR'S USE OF ARGUMENT TO EVOKE SYMPATHY FOR THE VICTIMS DEPRIVED APPELLANT OF A FAIR TRIAL.
VI. APPELLANT WAS DENIED THE CONSTITUTIONALLY EFFECTIVE ASSISTANCE OF COUNSEL TO WHICH HE WAS ENTITLED.
VII. THE ACCUMULATION OF ERROR IN THIS CASE DEPRIVED APPELLANT OF DUE PROCESS OF LAW AND NECESSITATES REVERSAL PURSUANT TO THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE II , Section 7 OF THE OKLAHOMA CONSTITUTION.
In Proposition I, Tubbs asserts that the evidence presented at trial was insufficient to convict him of the first-degree felony murder of Hikeem Lambirth. This Court evaluates such sufficiency claims to determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original); see also Spuehler v. State, 1985 OK CR 132, 7, 709 P.2d 202, 203-04 (quoting Jackson). This Court does not hesitate to find that the evidence presented at Tubbs' 2011 trial was more than sufficient to convict him of first-degree felony murder under this standard. Tubbs further argues that because Jeremy McKindra was an accomplice to this murder, his conviction cannot be upheld unless it is adequately corroborated. There was no dispute at trial that McKindra, who was charged as a co-defendant with Tubbs, was an accomplice to the murder of Lambirth.2 The State and Tubbs agree that the testimony of an accomplice cannot support a conviction unless it is "corroborated" by other independent evidence that tends to connect the defendant with the commission of the offense. See 22 O.S. 742 (2001). This Court has recognized that such corroboration evidence must include at least one material fact of independent evidence that tends to connect the defendant with the commission of the crime. Pink v. State, 2004 OK CR 37, 16, 104 P.3d 584, 590; Cummings v. State, 1998 OK CR 45, 20, 968 P.2d 821, 830.
McKindra's trial testimony, however, was not typical "accomplice testimony," since at trial McKindra adamantly denied being with Tubbs at the time Lambirth was shot, claimed that Tubbs was in a different town at the time, and asserted that Tubbs "was set up." At trial McKindra strenuously denied that either he or Tubbs was involved in the shooting. Hence it is questionable whether McKindra's trial testimony is truly "accomplice testimony" as that term is typically used. Nevertheless, Tubbs' jury learned of numerous pre-trial statements from McKindra in which he admitted being present as the driver as Tubbs sought to find the house where "Sleepy" lived, found the house described by Shardae Brown (at 1808 S.W. McKinley), and then shot at the home and killed little Hikeem Lambirth, who was sleeping inside. Thus this Court will evaluate whether McKindra's pre-trial accomplice statements ("accomplice statements")which were admitted to impeach his trial testimony denials - were adequately corroborated at trial.
This Court finds that McKindra's accomplice statements were indeed adequately corroborated. McKindra's statements implicating Tubbs were corroborated by Brown, who gave detailed testimony about how Tubbs came to be at 1808 S.W. McKinley that morning, shortly after 6:00 a.m., and this testimony was likewise supported by Brown's cell phone records. McKindra's statements were further corroborated by the testimony of Corey Adams, about Tubbs referring to the fact that he was a suspect in the shooting of "the little boy" and then Tubbs giving Adams, McKindra, and Miguel Lee "the gun," in order to dispose of it for Tubbs. This same gun was later conclusively shown to be the murder weapon. Consequently, the State presented more than sufficient, independent evidence to corroborate the accomplice statements of McKindra that were admitted at Tubbs' trial.
Proposition I is rejected accordingly.
In Proposition II, Tubbs challenges the trial court's decision to admit two letters that the State contended were written by Tubbs to McKindra, which contain threats against the receiver and his family if he "flips" the writer "on that stand." Tubbs asserts that the two handwritten letters, which were admitted at trial as State's Exhibits 45 and 46, were not adequately authenticated. Defense counsel objected to the admission of the letters at trial. This Court reviews the trial court's decision to admit the letters for abuse of discretion. See Marshall v. State, 2010 OK CR 8, 24, 232 P.3d 467, 474.
Under Oklahoma law, the requirement of authentication "is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims it to be." 12 O.S. 2901(A) (2001); see New v. State, 1988 OK CR 165, 9, 760 P.2d 833, 835. Oklahoma law specifically provides that evidence can be adequately authenticated through "[a]ppearance, content, substance, internal patterns or other distinctive characteristics taken in conjunction with circumstances." 12 O.S. 2901(B)(4) (2001).
The handwritten letters are very similar, both in pencil and on yellow paper, and the handwriting appears to be the same. Both are addressed to "Jermey" - an obvious misspelling of the name "Jeremy" - though neither contains the actual signature of the author.3 State's Exhibit 45 contains threats that the author and his associates will run over the family and kids of the receiver if he "take[s] that stand." The letter also states: "they want to give you and the shooter the death penalty keep your mouth shut and we'll go home remember I was in Snyder and we weren't together . . . I didnt kill that little Boy Keep your mouth closed and we'll go home cuz." The letter ends: "I dont care if your scared this is my life. Just listen to what I say and youll be safe."
State's Exhibit 46 is similar and contains parallel threats. It also specifically instructs the receiver to write a letter "saying we werent together and you was on pills and drunk and you was high." The letter also states that the sender will tell the receiver what to write and do and that "if Corey flip me you say its his gun." The letter ends, "I dont care if you didnt know what was going to happen dont flip me or else."
At trial, McKindra acknowledged that the two letters were written to him and contained "a whole bunch of threats" and that the second letter asked him to write a letter, but denied that the letters were from Tubbs, stating "Mo know how to spell my name and that's not his handwriting." McKindra initially acknowledged that he was the author of State's Exhibit 50, a letter to the district attorney, sent with a return address for "Jeremy McKindra," stating that "Maurice Tubbs Is not the shooter"; that he himself was smoking weed, drinking, and taking "Extacy" that night; that Tubbs went to Snyder after he left "the Nights of Columbia" and that they weren't together; and that he earlier falsely accused Tubbs because a group of men had threatened him and his family.4
Although McKindra continued to deny that the two letters to him were from Tubbs, he admitted that he had previously stated, under oath, that he received the letters from Tubbs during the time that they were "housed together in 241."5 McKindra then added that he was "lying' when he said that earlier. This Court does not hesitate to find that the content and context of State's Exhibits 45 and 46, as well as the surrounding circumstances regarding these letters, including the prior actions and statements of McKindra, adequately authenticated these documents at trial. The evidence surrounding these letters was more than adequate to support the State's contention that the letters were written by Tubbs to McKindra in order to deter McKindra from testifying against Tubbs. The letters were properly admitted at trial, and the trial court certainly did not abuse its discretion in this regard.
Proposition II is rejected accordingly.
In Proposition III, Tubbs argues that the trial court improperly instructed his jury that if it found that certain statements of Jeremy McKindra were made, it could consider these statements as substantive evidence of guilt against Tubbs. The prior statements of McKindra at issue were admitted at Tubbs' trial to impeach the trial testimony of McKindra, who was recanting his earlier admissions of involvement in the shooting and his earlier statements that Tubbs was the shooter.6 Tubbs concedes that his counsel did not object to this instruction at trial. Nevertheless, the State likewise concedes that the portion of Instruction No. 22 now challenged on appeal is erroneous and clearly so. See Omalza v. State, 1995 OK CR 80, 47-52, 911 P.2d 286, 302-03 (prior inconsistent statements made by witness to police or to district attorney, whether "sworn or unsworn," are admissible for impeachment of the witness, but are not admissible as substantive evidence of defendant's guilt). We also find, consistent with Omaiza, that the giving of Instruction No. 22, which was internally contradictory regarding how McKindra's prior inconsistent statements - to police and to the district attorney - could and could not be considered by the jury, constituted plain error. Id. at 52, 911 P.2d at 303. Nevertheless, this Court further finds that in the context of Tubbs' trial, this instructional error was harmless beyond a reasonable doubt. This Court notes that the trial court was particularly careful and diligent about protecting the rights of defendant Tubbs throughout his trial, from its instructions to the panel during voir dire, through all the evidence, and through the final verdict. The trial court's rulings regarding the admission of evidence, objections, etc., were consistently cautious and scrupulously fair to the defendant.7 Furthermore, the State made no mention of Instruction No. 22 in its closing arguments and never argued to the jury that it could or should consider McKindra's prior inconsistent statements as substantive evidence of Tubbs' guilt. Most importantly, the evidence presented against Maurice Tubbs at trial was overwhelming. Even without any testimony from McKindra or any reference to his prior statements implicating Tubbs, the testimony of Shardae Brown and Corey Adams (in particular, that Tubbs acknowledged to Adams that he was a suspect in the shooting of "the little boy" and then sought to have Adams, McKindra, and Miguel Lee dispose of "the gun," L ., the murder weapon), as well as all the other evidence presented by the State at trial, would have been sufficient to find Tubbs guilty of first-degree felony murder in the current case. This Court finds that the instructional error at issue was harmless in this case.
And Proposition III is rejected accordingly.
In Proposition IV, Tubbs challenges the trial court's admission at trial of State's Exhibit 1, an audio recording of Johnny Smith's 911 call on the morning of April 4, 2009. Tubbs concedes that his counsel did not object to this evidence at trial. Hence this Court will review the admission of this evidence only for plain error. See, e.g., Harmon v. State, 2011 OK CR 6, 48, 248 P.3d 918, 936, cert. denied, U.S. __, 132 S.Ct. 338, 181 L.Ed.2d 211 (2011). Tubbs argues that the recording of Smith reporting that Hikeem Lambirth had been shot in the chest was not probative on any material issue in the case and that the panicked screaming of Lorina Lambirth in the background made the evidence substantially more prejudicial than probative.
This Court finds that the 911 recording was properly admitted.
The fact that the 911 call from Smith was received at 6:08 a.m. was an important piece of evidence at trial for establishing the timing of the shooting - particularly in conjunction with the testimony of Shardae Brown regarding Tubbs' phone calls leading up to this time. Furthermore, Smith's description of Hikeem Lambirth's injury and condition immediately after the shooting, his statement that they were all sleeping at the time, and his statement that the boy was asleep on the couch when he was "shot through my damn house," in what appeared to be a "drive-by," were all relevant and potentially probative regarding the crime that had just occurred and the condition of the victim. Furthermore, this Court finds that the screaming of the child's mother in the background did not make this evidence unduly prejudicial. See id. at 48-49, 248 P.3d at 936-37 (finding 911 tape properly admitted to corroborate witness testimony about condition of victim and that victim's "audible moans" did not render the recording more prejudicial than probative). The trial court did not commit plain error in admitting the 911 recording.
Proposition IV is rejected accordingly.
In Proposition V, Tubbs argues that the prosecutor committed prosecutorial misconduct during his final closing argument at trial. Tubbs challenges two specific sections of the prosecutor's closing argument: (1) comments speculating about what the experience of being shot might have been like for the victim, and (2) a reference to the mother of the victim being "branded for the rest of her life" due to the loss of her son. We evaluate prosecutorial misconduct claims to determine whether the challenged actions so infected the defendant's trial that it was rendered fundamentally unfair, such that the jury's verdict cannot be relied upon. See Donnelly v. DeChristoforo, 416 U.S. 637, 645, 94 S.Ct. 1868, 1872, 40 L.Ed.2d 431 (1974); Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471, 91 L.Ed.2d 144 (1986). Tubbs concedes, however, that his counsel did not object to either of these prosecutorial arguments at trial.
Thus we review only for plain error.
Regarding the prosecutor's references to how the victim might have felt when he was shot, this Court finds that the challenged remarks were not unduly graphic, prolonged, or prejudicial. They did not constitute misconduct, nor did they render Tubbs' trial fundamentally unfair. Regarding the prosecutor's reference to Lorina Lambirth being "branded for the rest of her life" by the loss of her son, this Court finds that this argument was responsive to defense counsel's argument to the jury that it should not "brand" Tubbs "with the letter 'M' for murder" - in the way that cattle are branded - by convicting him of murder in the case at issue. In addition, this Court finds that the argument did not constitute misconduct, nor did it render Tubbs' trial fundamentally unfair. Tubbs has established neither plain error, nor prosecutorial misconduct.
And Proposition V is rejected accordingly.
In Proposition VI, Tubbs argues that his counsel was constitutionally ineffective for: (1) failing to object to Instruction No. 22; (2) failing to object to the admission of the 911 call from Johnny Smith; and (3) failing to object to the prejudicial and inflammatory remarks of the prosecutor during his final closing argument. In order to establish ineffective assistance, Tubbs must demonstrate that the performance of his counsel was deficient and unreasonable and that he was prejudiced thereby. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Williams v. Taylor, 529 U.S. 362, 39091, 120 S.Ct. 1495, 1511-12, 146 L.Ed.2d 389 (2000). And in order to establish prejudice, Tubbs must demonstrate that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.
Tubbs challenged Instruction No. 22 in Proposition HI herein; and the State has conceded that the instruction was erroneous. This Court found in Proposition III that the trial court committed plain error by including the final sentence of Instruction No. 22 in its instructions to the jury, but we also concluded that this error was harmless beyond a reasonable doubt. The State never referred to the improper language in the instruction and never argued that the jury could consider the impeachment evidence against McKindra as substantive evidence of Tubbs' guilt. Furthermore, the evidence presented by the State against Tubbs was overwhelming.
Consequently, this Court also finds that Tubbs was not prejudiced by the erroneous language in Instruction No. 22. Thus Tubbs cannot establish ineffective assistance regarding his counsel's failure to object to this instruction.
This Court found, in Proposition IV, that the trial court properly admitted the recording of Smith's call to 911. Consequently, Tubbs cannot establish ineffective assistance regarding his counsel's failure to object to this evidence. Tubbs challenged the same two prosecutorial arguments in Proposition V (as prosecutorial misconduct) that he now raises as examples of ineffective assistance of counsel, since his counsel failed to object to these arguments. This Court found in Proposition V that neither of the arguments constituted prosecutorial misconduct, nor did they render Tubbs' trial fundamentally unfair. Consequently, Tubbs cannot establish ineffective assistance due to his counsel's failure to object to these arguments.
Proposition VI is rejected accordingly.
In Proposition VII, Tubbs raises a cumulative error claim. This Court has found error regarding only one of Tubbs' claims, i.e., his Proposition HI challenge to Instruction No. 22. Although this Court found plain error regarding this instruction, we also found that this error was harmless beyond a reasonable doubt. Because this Court has not found error regarding any of Tubbs' other claims, there can be no "cumulative effect" of multiple errors.
Proposition VII is rejected accordingly.
Decision
The Judgment and Sentence of the District Court convicting Tubbs of First-Degree Felony Murder and sentencing him to imprisonment for Life is hereby AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2013), the MANDATE is ORDERED issued upon the delivery and filing of this decision.
AN APPEAL FROM THE DISTRICT COURT OF COMANCHE COUNTY
THE HONORABLE MARK R. SMITH, DISTRICT JUDGE
OPINION BY: SMITH, V.P.J.
LEWIS, P.J.: CONCUR
LUMPKIN, J.: CONCUR IN RESULTS
C. JOHNSON, J.: CONCUR A. JOHNSON, J.: CONCUR
(FOOTNOTES):
1 This Court notes that this crime is subject to the "85% Rule," under 21 O.S. 13.1(1) (2008), and that the trial court ordered that Tubbs be given credit for time served. Tubbs' jury was correctly instructed that a person sentenced to imprisonment for "life" is not eligible for consideration for parole for 38 years and 3 months.
2 In fact, Tubbs' jury was instructed that "Jeremy McKindra, is what is termed in law as an accomplice to the crime of Murder in the First Degree. For that reason you cannot convict the defendant upon the testimony of Jeremy McKindra unless you find that his testimony is corroborated as required in these instructions." Instruction No. 29 (OUJI-CR 9-30). This Court notes that Tubbs' jury was correctly instructed according to all the Oklahoma uniform jury instructions dealing with accomplice testimony.
3 State's Exhibit 45 is signed, "Love you Rollin," a possible reference to the "Rolling 90's Crips," the gang in which Tubbs and McKindra were both members.
4 Later during his testimony, McKindra denied writing this same letter.
5 On the back of State's Exhibit 45, there is a handwritten note (in different handwriting) that states: "these are the two letters I received from tubbs when I was housed with him in 241."
6 The instruction at issue states as follows:
"Evidence has been presented that on some prior occasion Jeremy McKindra made a statement inconsistent with his testimony in this case. This evidence is called impeachment evidence and it is offered to show that the witness's testimony is not believable or truthful. If you find that a statement was made, you may consider this impeachment evidence in determining what weight and credit to give the testimony of that witness. You may not consider this impeachment evidence as proof of innocence or guilt. You may consider this impeachment evidence only to the extent that you determine it affects the believability of the witness, if at all.
"However, if you find the statements of Jeremy McKindra were made on April 4th, 20th and 22nd, 2009, at the Lawton Police Department to Detective Don McGee, and on April 22, 2010, the statements may also be considered as proof of innocence or guilt."
Instruction No. 22 (OUJI-CR 9-20). The final paragraph of this uniform instruction is bracketed in OUJI-CR 9-20, and the "Notes on Use" for this instruction specifically state that this paragraph should only be used if the prior inconsistent statements at issue can also be considered "for proof of innocence or guilt.' See OUJI-CR 9-20 (Notes on Use).
7 For example, the trial court ruled before trial that Lorina Lambirth was not allowed to testify that when her son Hikeem came into the bedroom after being shot, he said, "Mommy, it hurts."