Petition for Writ of Certiorari — Jesse Dean Redfearn, Petitioner v. Oklahoma

ORIGINAL!

*1 049354490*

IN THE COURT OP CRIMINAL APPEALS OF

THE STATE OF OKLAHOMA

JESSE DEAN REDFEARN,

Appellant,

NOT FOR PUBLICATION

v.

Case No. F-2019-821

THE STATE OF OKLAHOMA,

filed

Appellee.

APR 2 2 2021

SUMMARY OPINION

ROWLAND, VICE PRESIDING JUDGE:

JOHN D. HADDEN

CLERK

Appellant Jesse Dean Redfearn appeals his Judgment and

Sentence from the District Court of Tulsa County, Case No. CF-20184337, for First Degree Rape (Count

1) in violation of 21

O.S.Supp.2017, § 1114 and Kidnapping (Count 2), in violation of 21

O.S.Supp.2012, § 741, each After Former Conviction of Two or More

Felonies. The Honorable Tracy Priddy, District Judge, presided over

Redfearn’s jury trial and sentenced him, in accordance with the jury's

verdict, to life imprisonment on each count.1 Judge Priddy granted

1 Under 21 O.S.Supp.2014, § 13.1, Redfearn must serve 85% of his sentence of

imprisonment on Count 1 before he is eligible for parole consideration.

credit for time served and ordered the sentences to be served

consecutively. Redfearn appeals raising the following issues:

(1)

whether he was denied his constitutional right to

confrontation when the trial court declared the victim

witness unavailable;

(2)

whether he was denied his constitutional right to

confrontation when the trial court admitted the victim

witness’s preliminary hearing testimony because he did

not have sufficient opportunity for cross-examination at

preliminary hearing;

(3)

whether the trial court erred in its jury instructions on the

range of punishment;

(4)

whether the district judge erred in not recusing because

she was not impartial;

(5)

whether prosecutorial misconduct denied him a fair trial;

(6)

whether there was insufficient evidence to prove the crime

of first degree rape beyond a reasonable doubt;

(7)

whether he received the effective assistance of trial

counsel; and

(8)

whether an accumulation of error deprived him of a fair

trial.

We find relief is not required and affirm the Judgment and

Sentence of the district court.

2

1.

Although the victim testified at preliminary hearing, she did not

appear at trial. Redfearn complains on appeal that his right to

confrontation was violated when the trial court ruled that the victim

was unavailable and allowed her preliminary hearing testimony to be

read at trial. Redfearn objected to the trial court’s ruling preserving

the issue for appeal. We review the trial court’s ruling for an abuse of

discretion. See Revilla v. State, 2019 OK CR 30, If 8, 456 P.3d 609,

613 (“A trial court's determination of whether a witness is unavailable

as contemplated by § 2804 is reviewed for an abuse of discretion.”).

An abuse of discretion is a conclusion or judgment that is clearly

against the logic and effect of the facts presented. Pullen v. State,

2016 OK CR 18, If 4, 387 P.3d 922, 925.

The Sixth Amendment’s Confrontation Clause provides that

“[i]n all criminal prosecutions, the accused shall enjoy the right ... to

be confronted with the witnesses against him.” The Supreme Court

has held that the Confrontation Clause prohibits the admission of

testimonial hearsay unless the witness is unavailable and the

defendant had a prior opportunity to cross-examine the witness.

3

Crawford v. Washington, 541 U.S. 36, 68 (2004). Preliminary hearing

testimony is testimonial hearsay subject to Crawford’s mandate.

Willis v. State, 2017 OK CR 23, 1 14, 406 P.3d 30, 34; Thompson v.

State, 2007 OK CR 38, f 20, 169 P.3d 1198, 1205.

The prosecution bears the burden of demonstrating that a

witness is unavailable. Crawford, 541 U.S. at 57. A witness is not

‘unavailable’ for purposes of confrontation “unless the prosecutorial

authorities have made a good-faith effort to obtain his presence at

trial.” Barber v. Page, 390 U.S. 719, 724-25 (1968). “The lengths to

which the prosecution must go to produce a witness ... is a question

of reasonableness.” Ohio v. Roberts, 448 U.S. 56, 74 (1980) (quoting

California v. Green, 399 U.S. 149, 189, n. 22 (1970) (Justice Harlan,

concurring)). The Supreme Court has noted, however, that, “when a

witness disappears before trial, it is always possible to think of

additional steps that the prosecution might have taken to secure the

witness’ presence ...but the Sixth Amendment does not require the

prosecution to exhaust every avenue of inquiry, no matter how

unpromising.” Hardy v. Cross, 565 U.S. 65, 71-72 (2011) (internal

citations omitted).

4

Title 12 O.S.Supp.2014, § 2804 addresses the circumstances

under which a declarant is determined to be unavailable as a witness.

Section 2804(A)(2) speaks to situations in which a declarant

“[p]ersists in refusing to testify concerning the subject matter of the

declarant’s statement despite an order of the court to do so.”2 Section

2804(A)(5) is more relevant to the facts of this case. This section

requires the State to show that it has been unable to procure the

witness by process or other reasonable means.3 This Court has

construed Section 2804 to require a showing that the State exercised

due diligence and good faith in trying to secure the absent witness’s

testimony. See Connell v. State, 1988 OK CR 234, | 7, 763 P.2d 383,

385. A finding of due diligence in this context requires more than

simply the issuance of a subpoena for the witness but does not

2 Section 2804(A)(2) was mentioned below but the district court ruled

appropriately that it was not implicated in this case as there was no court order

requiring the victim’s testimony.

3 Section 2804(A)(5) provides that unavailability as a witness includes a situation

in which the declarant:

Is absent from the hearing and the proponent of the declarant’s

statement has been unable to procure the declarant's attendance or,

in the case of a hearsay exception under paragraphs 2, 3 or 4 of

subsection B of this section, the declarant’s attendance or

testimony, by process or other reasonable means.

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require that every possible avenue for locating the missing witness

be exhausted. See Lavicky v. State, 1981 OK CR 87, ^ 16, 632 P.2d

1234, 1238; Monett v. State, 1997 OK CR 28, f 32, 939 P.2d 1, 10.

We look to all relevant facts to see whether the State has established

good faith diligence. Bemary v. State, 1999 OK CR 37, f 15, 989 P.2d

998, 1006.

The detailed evidence presented by the State regarding its

attempts to locate the victim prior to and during trial was more than

adequate to support the trial court’s findings regarding the victim’s

unavailability and the State’s due diligence. The ruling that the victim

was unavailable was not an abuse of discretion and did not violate

Redfeam’s constitutional right to confrontation. Relief is not

required.

2.

Redfearn also challenges the admission at trial of the victim’s

preliminary hearing testimony complaining that counsel did not have

sufficient opportunity to cross-examine the victim at preliminary

hearing. Again, because Redfearn raised this objection below, our

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review is for an abuse of discretion. Willis, 2017 OK CR 23, f 13, 406

P.3d at 34.

As noted above, it is well established that the accused in a

criminal prosecution has a constitutional right to cross-examine the

witnesses against him. U.S. Const, amend. VI; Okla. Const, art. 2, §

20. “[W]hen a defendant is provided an opportunity to cross-examine

the witness and avails himself of that opportunity at a prior hearing,

the confrontation clause is satisfied and a transcript of the prior

hearing is admissible.” Willis, 2017 OK CR 23, 1 18, 406 P.3d at 34,

(quoting Stouffer v. State, 2006 OK CR 46, % 85, 147 P.3d 245, 266).

See also Crawford, 541 U.S. at 68. This Court has held that

preliminary hearing testimony “need not be equivalent to trial

testimony in every respect before it can be used as an adequate

substitute for live testimony at trial.” Knapper v. State, 2020 OK CR

16, <U 34, 473 P.3d 1053, 1068. Rather, “the Confrontation Clause

guarantees an opportunity for effective cross-examination, not crossexamination that is effective in whatever way, and to whatever extent,

the defense might wish.” Id. (quoting Delaware v. Fensterer, 474 U.S.

15, 20 (1985) (emphasis in original)). “Prior testimony is admissible

7

so long as the defendant was not ‘significantly limited’ in his crossexamination.” Id. This is so even though the preliminary hearing “is

ordinarily a less searching exploration into the merits of a case than

a trial[.]” Id. (quoting California v. Green, 399 U.S. 149, 165-66

(1970)).

In the present case, Redfeam argues generally that the right to

confrontation is violated when the scope of cross-examination at

preliminary hearing is limited to the issue of whether probable cause

existed to bind the accused over for trial. He complains specifically,

that defense counsel’s right to cross-examine the victim was

additionally impeded because the victim left the witness stand during

cross-examination at preliminary hearing and counsel was not given

the opportunity to complete the cross-examination. He asserts that

the combination of the limited scope of cross-examination at

preliminary hearing coupled with the abbreviated cross-examination

of the victim violated his right to confrontation. The record does not

support Redfeam’s argument.

The record reflects that defense counsel’s cross-examination of

the victim was thorough and not limited to the narrow purposes of

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preliminary hearing. While the cross-examination was halted, there

was nothing precluding the defense from recalling the victim to the

stand and continuing with cross-examination. Redfearn was afforded

a full and adequate opportunity to cross-examine the victim at the

preliminary hearing. He was not denied his constitutional right to

cross-examination.

3.

Redfearn claims the district court’s instructions on the range of

punishment were wrong. Because defense counsel did not object to

the alleged instructional error below, our review is for plain error. See

Newman v. State, 2020 OK CR 14,

13, 466 P.3d 574, 581. Such

error must be plain and obvious and must affect the defendant’s

substantial rights. Lee v. State, 2018 OK CR 14, % 4, 422 P.3d 782,

785. We reverse only where the error “seriously affects the fairness,

integrity or public reputation of the judicial proceedings.” Id.

Redfearn argues that under 21 O.S.Supp.2018, § 51.1(D) the

State was precluded from using his prior drug related convictions to

enhance his punishment. While the offenses in this case occurred in

June of 2018, he overlooks the fact that Section 51.1(D) did not go

9

into effect until November of 2018. Under Oklahoma law, the general

rule is that the appropriate criminal penalty is that in effect at the

time the crime was committed. See Bowman v. State, 1990 OK CR

19, If 3, 789 P.2d 631, 631. Furthermore, absent an express

indication that the legislature intended a statutory amendment to be

applied retroactively, it is presumed that the intervening changes in

the law should be applied prospectively from their effective date. State

v. Hurt, 2014 OK CR 17, % 8, 340 P.3d 7, 9.

Redfearn also complains that one of the three prior convictions

was improperly used to enhance his sentence. The use of the prior

conviction to enhance his sentence was not prohibited. See 21

O.S.2011, § 51.2.

The punishment and enhancement instructions given in the

present case were proper. There was no error, plain or otherwise, and

relief is not required.

4.

Redfearn claims the district trial judge erred in failing to recuse

sua sponte from the instant case because she was biased. Redfearn

concedes that at no time before this direct appeal did he object to the

10

District Judge presiding over the trial or move to disqualify her.

Redfearn’s failure to raise the issue below waives the claim unless he

can show plain error occurred. See Frederick v. State, 2001 OK CR

34, THf 186-87, 37 P.3d 908, 954. Redfearn cites nothing in the record

to support his claim. He has neither shown, nor alleged, plain error

occurred and this claim should be denied.

5.

Redfearn argues he was denied a fair trial because of

prosecutorial misconduct during closing argument. He claims the

prosecutor: (1) improperly referred to him as a ‘monster’; (2) argued

that the defense relied upon a ‘conspiracy theory’ against the State;

and (3) elicited sympathy for the victim. Redfearn objected to all but

one of the comments challenged on appeal. Comments not met with

a contemporaneous objection will be reviewed for plain error only.

Mitchell v. State, 2018 OK CR 24, U 30, 424 P.3d 677, 686.

This Court will not grant relief on a claim of prosecutorial

misconduct unless the misconduct effectively deprived the defendant

of a fair trial or a fair and reliable sentencing proceeding. Harmon v.

State, 2011 OK CR 6, H 80, 248 P.3d 918, 943. We evaluate claims of

11

prosecutorial error “within the context of the entire trial, considering

not only the propriety of the prosecutor’s actions, but also the

strength of the evidence against the defendant and the corresponding

arguments of defense counsel.” Lee, 2018 OK CR 14, f 6, 422 P.3d

at 785. We have long recognized that both parties enjoy a “wide

latitude in closing argument to argue the evidence and reasonable

inferences from it.” Lamar v. State, 2018 OK CR 8, f 54, 419 P.3d

283, 297. It will be the rare instance when a prosecutor’s misconduct

during closing argument will require relief. Bramlett v. State, 2018

OK CR 19, | 36, 422 P.3d 788, 800.

Redfearn first notes that during final closing argument the

prosecutor told the juiy, “Mr. Redfearn is a human being. This is a

serious matter. But it was his choice to become a monster.” While

Redfearn acknowledges that this comment was not met with

objection, he complains that it was, nonetheless, inappropriate. This

Court

has

admonished

generally

against

name-calling

and

specifically against “unprovoked” use of the word “monster.”

Browning v. State, 2006 OK CR 8, f 38, 134 P.3d 816, 839-40 {“We

have looked on name-calling with disfavor as an unwarranted

12

expression of personal opinion.”). However, in the present case, the

prosecutor was not engaging in unprovoked name-calling. The

prosecutor's use of the word ‘monster' in the State's final closing

argument was in direct response to defense counsel’s closing

argument. The single use of this word did not affect the verdict and,

under these circumstances, was certainly not plain error.

Next, Redfearn complains that the prosecutor belittled defense

counsel and his defense by claiming that the defense was a

conspiracy against the State. The prosecutor's argument did not

belittle defense counsel but rather challenged the defense argument

and asked the jury to use their common sense in considering the

evidence. This is not inappropriate. See Harris v. State, 2000 OK CR

20, f 37, 13 P.3d 489, 499 (“[WJhen the argument is merely an

attempt to urge the jury to use their common sense and not be

swayed by irrelevant or illogical evidence, the comments are proper.'').

The trial court did not abuse its discretion in overruling defense

counsel’s objection to the comments at issue.

Finally, Redfearn complains that the prosecutor elicited

sympathy for the victim. Redfearn correctly notes that this Court has

13

held “blatent appeals to sympathy, sentiment or prejudice are

improper.” Terrell v. State, 2018 OK CR 22, ^ 8, 425 P.3d 399, 401.

The argument at issue did not deprive the defendant of a fair trial or

a fair and reliable sentencing proceeding. Relief is not required.

6.

Redfearn claims that the evidence presented at trial was

insufficient to support his conviction for first degree rape. This Court

reviews challenges to the sufficiency of the evidence in the light most

favorable to the State and will not disturb the verdict if any rational

trier of fact could have found the essential elements of the crime

charged beyond a reasonable doubt. Logsdon v. State, 2010 OK CR

7, | 5, 231 P.3d 1156, 1161; Spuehler v. State, 1985 OK CR 132, If

7, 709 P.2d 202, 203-04. “Pieces of evidence must be viewed not in

isolation but in conjunction, and we must affirm the conviction so

long as, from the inferences reasonably drawn from the record as a

whole, the juiy might fairly have concluded the defendant was guilty

beyond a reasonable doubt.” Davis v. State, 2004 OK CR 36, J 22,

103 P.3d 70, 78 (quoting Matthews v. State, 2002 OK CR 16, | 35,

45 P.3d 907, 919-20). This Court also accepts all reasonable

14

inferences and credibility choices that tend to support the verdict.

Coddington v. State, 2006 OK CR 34, % 70, 142 P.3d 437, 456.

In order to support a conviction for first degree rape, the State

was required to prove that Redfearn had sexual intercourse with the

victim, who was not his spouse, where force or violence was used or

threatened against the victim, and Redfearn had the apparent power

to carry out the threat of force or violence. 21 O.S.Supp.2017, § 1114;

OUJI-CR(2d) 4-120. The circumstantial evidence supporting the

charge of rape against Redfearn was extremely strong. The evidence

presented at trial was sufficient to prove each of these elements

beyond a reasonable doubt. This proposition is denied.

7.

Redfearn contends that he was denied constitutionally effective

assistance of counsel. This Court reviews claims of ineffective

assistance of counsel de novo, to determine whether counsel’s

constitutionally deficient performance, if any, prejudiced the defense

so as to deprive the defendant of a fair trial with reliable

results. Strickland v. Washington, 466 U.S. 668, 687 (1984); Malone

v. State, 2013 OK CR 1, Tf 14, 293 P.3d 198, 206. Under this test,

15

Redfeam must affirmatively prove prejudice resulting from his

attorney’s actions. Strickland, 466 U.S. at 693; Head u. State, 2006

OK CR 44, ^ 23, 146 P.3d 1141, 1148. “To accomplish this, it is not

enough to show the failure had some conceivable effect on the

outcome of the proceeding.” Id. Rather, Redfeam must show that

there

is

a

reasonable

probability

that,

but

for

counsel’s

unprofessional error, the result of the proceeding would have been

different. Id. “A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Id. This Court need not

determine whether counsel’s performance was deficient if the claim

can be disposed of on the ground of lack of prejudice. Malone, 2013

OK CR 1, If 16, 293 P.3d at 207.

Redfeam complains that trial counsel was ineffective for failing

to object to the prosecutor’s improper statements, and failing to

object to the admission of his prior felony convictions. The merits of

these claims were addressed and rejected above. Redfeam cannot

show on this record that, but for counsel’s actions, the result of his

trial would have been different. Because he has failed to establish

16

prejudice

from

his

attorney’s

actions,

Redfeam’s

ineffective

assistance of counsel claim must be denied.

8.

Redfeam claims that even if no individual error in his case

merits relief, the cumulative effect of the errors committed requires a

new trial or favorable sentence modification. “The cumulative error

doctrine applies when several errors occurred at the trial court level,

but none alone warrants reversal.” Tafolla v. State, 2019 OK CR 15,

45, 446 P.3d 1248, 1263. Although individual errors may be of

insufficient gravity to warrant reversal, the combined effect of an

accumulation of errors may require a new trial. Id. There are no

errors, considered individually or cumulatively, that merit additional

relief in this case. This claim is denied.

DECISION

The Judgment and Sentence of the district court is AFFIRMED.

Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal

Appeals, Title 22, Ch. 18, App. (2021), the MANDATE is ORDERED

issued upon delivery and filing of this decision.

17

AN APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY

THE HONORABLE TRACY PRIDDY, DISTRICT JUDGE

APPEARANCES AT TRIAL

APPEARANCES ON APPEAL

ZACH SMITH

KAYLA CANON

ASST. PUBLIC DEFENDERS

423 S. BOULDER AVE.,

SUITE 300

TULSA, OK 74103

COUNSEL FOR DEFENDANT

NICOLE DAWN HERRON

TULSA PUBLIC DEFENDER’S

OFFICE

423 S. BOULDER AVE.,

SUITE 300

TULSA, OK 74103

COUNSEL FOR APPELLANT

ASHLEY NIX

KATIE HAMSTRA

ASST. DISTRICT ATTORNEYS

500 S. DENVER, SUITE 900

TULSA, OK 74103

COUNSEL FOR STATE

MIKE HUNTER

ATTORNEY GENERAL

OF OKLAHOMA

WILLIAM R. HOLMES

THEODORE M. PEEPER

ASSISTANT ATTORNEYS

GENERAL

313 N.E. 21st STREET

OKLAHOMA CITY, OK 73105

COUNSEL FOR APPELLEE

OPINION BY: ROWLAND, V.P. J.

KUEHN, P.J.: Concur

LUMPKIN, J.: Concur

Concur

LEWIS, J.:

HUDSON, J.: Concur

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