Court of Criminal Appeals Cases 2018-2019

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St. v. Strawn, 2018 OK CR 2

OKCCA reversed suppression of evidence, finding initial stop for speeding was probable cause for stop, and encounter became consensual after trooper returned documents and told driver that he could legally drive away, before asking if there was anything illegal in the vehicle. A reasonable person would have felt free to leave at the point when driver admitted marijuana was in the vehicle.

Brown v. St., 2018 OK CR 3

OKCCA reversed death sentences and remanded for re-sentencing, finding trial court’s incomplete advice about the waiver of capital sentencing trial, and confusing statements about the role of standby counsel, precluded pro se defendant’s knowing and voluntary waiver of right to sentencing stage counsel.

Smith v. St., 2018 OK CR 4

OKCCA held appellant had not shown warrant affiant’s statements were knowingly false or in reckless disregard of truth, though officer may have failed to verify some allegations. Magistrate had a substantial basis for issuing warrant, even excluding challenged statements.

Thompson v. St., 2018 OK CR 5

OKCCA affirms misdemeanor manslaughter conviction based on predicate crime of failure to stop at stop sign, finding no reversible error in State’s separate filing of second page information before preliminary, or prosecutor’s discretionary call to file manslaughter rather than negligent homicide. State concedes that conviction of the predicate traffic crime violates 21 O.S.2011, § 11.

Taylor v. St., 2018 OK CR 6

OKCCA affirmed conviction for drug possession with intent to distribute, finding no violation of 5th/6th Amendment right to counsel, where deputy approached defendant after right to counsel had attached, informed defendant of his right to have counsel present before custodial questioning, and defendant answered questions after reviewing and waiving his Miranda rights.

Davis v. St., 2018 OK CR 7

OKCCA overruled a long line of cases holding that third party testimony concerning an extrajudicial identification is inadmissible. Extrajudicial identifications are competent evidence when the identifying witness testifies at trial subject to cross-examination concerning the identification. 12 O.S.2011, § § 2801 and 2802 supersede case law restricting out-of-court statements of identification.

Lamar v. St, 2018 OK CR 8

OKCCA affirmed robbery and other convictions, finding no denial of self-representation where defendant became uncooperative and non-responsive to inquiry whether he would represent himself at trial without benefit of a continuance or proceed to trial with appointed counsel, and court terminated his pro se status and ordered him to trial with appointed counsel. Defendant was more interested in delaying trial and preserving claims for appeal than actually representing himself.

Kirkwood v. St., 2018 OK CR 9

OKCCA affirmed child abuse conviction, finding evidence of defendant’s physical attack on child victim’s mother 8 months earlier was properly admitted to show absence of mistake or accident in subsequent abuse of the child. Court’s and prosecutor’s f ailure to specify the exception under 2404(B) for which evidence was admissible was not plain error, as defendant had adequate notice of purpose for the evidence.

Nicholson v. St., 2018 OK CR 10

OKCCA overruled prior cases holding a violation of 22 O.S.2011, § 894, by giving written instructions to the jury during deliberations rather than in open court, was presumptively prejudicial. Presumption of prejudice is unjustified when the court communicates with jury in writing after giving counsel notice and a hearing. Section 894 error was not prejudicial because court’s instructions were legally accurate, and no relief was required.

Stevens v. St., 2018 OK CR 11

OKCCA granted second application for post-conviction relief, holding petitioner’s 1997 life without parole sentence, upon his guilty plea to a murder committed while a juvenile, violated new substantive constitutional rule announced in Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and required remand for re-sentencing or State’s agreement on remand to impose life sentence.

J.T.A. v. St., 2018 OK CR 12

OKCCA reversed order to impose adult sentence on youthful offender in several robberies, finding unsworn statements of OJA caseworker concerning amenability to treatment, which conflicted with psychological evaluation and youthful offender study, and scant findings set forth by trial court, showed no clear and convincing evidence that the defendant would not reasonably complete rehabilitation plan, or that the public would not be protected if the youth were sentenced as youthful offender.

Anderson v. St., 2018 OK CR 13

OKCCA granted the writ of certiorari in part and remanded for the mandatory evidentiary hearing on motion to withdraw the guilty plea. Evidentiary hearing is mandatory under Rule 4.2(A) for cert appeals, and is essentially to review of trial court’s discretionary decision to deny a motion to withdraw. Waiver of the hearing by counsel is ipso facto ineffective assistance, and requires remand.

Lee v. St., 2018 OK CR 14

OKCCA vacated sentences of life and 100 years in robbery and shooting convictions, finding plain error that affected the fairness of the sentences in trial court’s failure to instruct on the 85% rule in some counts, but not others, and prosecutor’s request for jury to impose 1,000 year sentences in some of the counts.

Williamson v. St., 2018 OK CR 15

OKCCA affirmed murder conviction, finding no error in flight instruction where appellant pled self-defense during trial, placing himself at the scene of the crime and making his departure from the scene potential evidence of consciousness of guilt. Mitchell v. St., 1993 OK CR 56, is overruled to the extent that requires some attempt by the defendant to explain his departure before permitting the uniform instructions on flight.

St. v. Stark, 2018 OK CR 16

OKCCA reversed suppression of evidence, where recent female occupant of premises called police, identified herself, and requested assistance, telling them that armed men inside the residence had drugs, and would not let her retrieve her property. Police responded, entered without a warrant and conducted a protective sweep, and secured firearms in plain view. They smelled marijuana, and obtained a search warrant. The Court found that even if the initial entry was unreasonable, the warrant was supported by facts independent of knowledge gained during the prior entry (i.e., the female’s credible first person report), and did not require suppression.

St. v. B.C.E.T., 2018 OK CR 17

OKCCA affirmed certification of child charged with murder and other crimes as a youthful offender, and denying certification as a juvenile, finding no abuse of discretion where 3 psychologists found child amenable to treatment, and had good prospects for rehabilitation. Though experts reached their conclusions without considering the alleged acts of murder, the court weighed those behaviors and the expert opinions in its decision; and the State presented no experts challenging the testimony.

McNeely v. St., 2018 OK CR 18

OKCCA found no right to appeal or extraordinary writ challenging trial court’s denial of “Stand Your Ground” immunity under 21 O.S.2011, § 1289.25. The Court recognized direct appeal is not a meaningful substitute, but finds SYG is “conditional immunity” entirely “dependent on the specific and unique facts.” Trial courts should continue to hear Stand Your Ground motions, “ though there are no available appellate challenges” to the denial of a request for immunity.

Bramlett v. St., 2018 OK CR 19

OKCCA affirmed murder conviction but vacated LWOP sentence and remanded for resentencing, finding prosecutor committed reversible error by telling jurors that if they gave appellant life, he “will only serve 85 percent of the crime. He will only serve those 38 years.” Defense counsel’s objection to this comment was overruled, and her attempt to correct the record with an accurate legal argument was undermined by court’s denial of her objection to the initial misstatement, and a second misstatement of the law in the State’s final closing.

Tryon v. St., 2018 OK CR 20

OKCCA affirmed murder conviction and death sentence, rejecting large number of claims, including argument that admission of victim’s text message to appellant the night before the murder (“It's okay bc im [sic] going to tell the truth tomorrow. I'm tired of holding lies for yhu [sic]. Isaiah Tryon is the guy who choked nd [sic] nearly killed me Saturday”) was not testimonial hearsay under the primary purpose test of Davis v. Washington, 547 U.S. 813 (2006). Statement was not made in police interview or in response to police questioning; was an informal statement to another person, whose primary purpose was to communicate with appellant rather than create an out-of-court substitute for trial testimony. Ohio v. Clark, 135 S. Ct. 2173 (2015).

Irwin v. St., 2018 OK CR 21

OKCCA affirmed felony stalking conviction and reversed 4 counts of violating a protective order, finding 21 O.S.2011, § 11 prohibited the latter convictions "arise from the same criminal acts" of stalking the victim in violation of a protective order of which the defendant had actual notice, which makes the stalking crime a felony.

Terrell v. St., 2018 OK CR 22

OKCCA rejects claim that prosecutor improperly exposed jury to evidence and argument telling that Appellant had previously received suspended sentences. The Court rejected previous holding in Hunter v. State, 2009 OK CR 17, 208 P.3d 931, that prohibited both sentencing stage evidence of a suspended sentence and explicit reference to probation in argument. Prosecutors do not have free rein to comment on prior suspension of a sentence, make blatant appeals to sympathy, or invoke societal alarm, but the prosecutor's "chance after chance" argument here was proper.

Mitchell v. St., 2018 OK CR 24

OKCCA overruled Pink v. State, 2004 OK CR 37, ¶¶ 32-33, which held that a co-conspirator's testimony is not subject to independent corroboration rule of accomplice testimony under 22 O.S.2011, § 742. Pink confused a co-conspirator's in court testimony with the admissibility of non-hearsay statements in furtherance of the conspiracy under 12 O.S.2011, § 2801(B)(2)(e). A co-conspirator who otherwise meets the definition of an accomplice must be independently corroborated under section 742.

Spruill v. St., 2018 OK CR 25

OKCCA found sufficient evidence to support manslaughter conviction where appellant forced his way inside the victim's apartment while armed with the murder weapon, and appellant's own words showed he instigated the entire deadly confrontation. The victim had an absolute right under these circumstances to defend himself, and his family, using deadly force inside his home. under the Stand Your Ground law, 21 O.S.2011, § 1289.25. Evidence supported the jury's finding of the lesser-included offense of first degree manslaughter.

Runnels v. St., 2018 OK CR 27

OKCCA held instruction telling jury that if it found "defendant intended to kill/injure/assault A, and by mistake or accident killed B," intent transferred to second victim was error, because it permitted murder conviction based on intent to "injure" rather than kill. Error was harmless because evidence established appellant's intent to kill driver of vehicle, despite mistake of fact concerning driver's identity. In another proposition, the Court modified instruction on 85% rule to clarify that person sentenced to life who is not paroled will remain in prison for their natural lifetime.

St. v. Halliburton, et al, 2018 OK CR 28

OKCCA reversed suppression of evidence, finding lower courts failed to analyze effect of good faith exception to the exclusionary rule adopted in State v. Sittingdown, 2010 OK CR 22, ¶ 17. Assuming the challenged search warrant affidavit lacked probable cause, suppression is proper remedy only where (1) issuing magistrate was misled by knowing or reckless falsehoods in affidavit; (2) the issuing magistrate wholly abandoned judicial role; or (3) the warrant is so facially deficient in failing to describe particular place to be searched or things to be seized that officers cannot reasonably presume it valid. Reversed and remanded to determine whether any of these factors warrant suppression of evidence seized under invalid search warrant.

J.M.F. v. St., 2018 OK CR 29

OKCCA reversed delinquency adjudication where trial court released jurors for the evening over defense counsel's objection. This was error under 22 O.S.2011, § 857, which directs that the jury be kept "together in some private and convenient place" until they have reached a verdict. When sequestration is broken over objection, prejudice is presumed and State must prove there was no harm done. State made no attempt to rebut presumption here, and reversal is required.

Mack v. St., 2018 OK CR 30

OKCCA rejected appellant's theory of imperfect self-defense as a defense to murder. Prior cases have used the concept to describe cases of manslaughter, but did not recognize a legal defense that was self-defense but for some technical lack of an element. Oklahoma does not recognize imperfect self-defense as a separate defense. The trial court could not have instructed on it, and no error occurred.

Bench v. St., 2018 OK CR 31

OKCCA affirmed capital murder conviction over multiple claims of error.

Thompson v. St., 2018 OK CR 32

OKCCA modified conviction for assault and battery with a deadly weapon to assault with a dangerous weapon/shooting with intent to injure, holding that appellant's conviction under 21 O.S.2011, § 652(C), which requires not only proof of an assault, but also an accompanying battery, was plainly erroneous. Because overwhelming evidence established guilt of assault with a dangerous weapon with intent to do bodily harm or shooting at another with intent to injure, a felony violation of section 645, the Court modifying conviction to assault with a dangerous weapon or shooting with intent to injure, after former conviction of two (2) or more felonies, and affirmed the sentence of life imprisonment.

Bivens v. St., 2018 OK CR 33

OKCCA overruled Coates v. State, 2006 OK CR 24, which held that a sentence enhanced under § 51.1 may not include the fine in the substantive drug statute. Title 63, § 2-415(D), provides that imprisonment imposed for Trafficking shall be "in addition to any fines" specified by subsection 2-415(D). Neither 21 O.S.2011, § 51.1, the constitution, or Oklahoma statutes forbid combining two penal statutes to determine the imposition of a fine in connection with an enhanced sentence of imprisonment.When two different statutes regulate the same subject matter, both provisions are to be given effect, as long as such effect would not defeat the intent of the Legislature.

St. v. Bradley, et al, 2018 OK CR 34

OKCCA reversed order denying request to amend charges of witness intimidation and conspiracy to commit a felony to add charge of false preparation of exhibits as evidence, in violation of 21 O.S.2011, § 453, and directed magistrate to bind defendants over for trial on conspiracy to commit perjury by subornation, and false preparation of exhibits as evidence. Charges of witness intimidation were properly dismissed where neither defendant prevented or attempted to prevent A from testifying, giving testimony, or appearing in court. Conspiracy to commit intimidation of a witness, was properly dismissed for similar reasons. Evidence was sufficient to show conspiracy to commit perjury by subornation, where defendants' making or causing A to write a contrary statement and provide it to police could be "any act with the specific intent to commit perjury by subornation but [which] fails to complete that offense" because A disowns the statement.

Dunn v. St., 2018 OK CR 35

OKCCA reversed and remanded for evidentiary hearing on motion to withdraw guilty plea, finding petitioner was denied due process right to be present at prior hearing. At prior hearing defense counsel said he had spoken with petitioner and "fe[lt] comfortable proceeding without him," withdrew the claim that the plea was involuntary, and argued for the merger of three of the counts. Defense counsel's feelings were insufficient to waive Petitioner's rights and denied due process.

G.W. v. St., 2018 OK CR 36

OKCCA held that statutory right to jury trial in delinquency must be affirmatively demanded by juvenile and may be waived by failure to timely assert the right before trial, overruling D.M.H. v. State, 2006 OK CR 22, ¶ 3, which held "the lack of an affirmative waiver of [juvenile's] right to a jury trial would constitute reversible error." The Court interpreted the statute to require that the juvenile be advised of right to demand a jury trial, but waiver need not be affirmative or on the record. Because there was no advice to the juvenile of the right to demand jury trial here, reversal was required.

Mason v. St., 2018 OK CR 37

OKCCA held that (1) questioning of suspect while in prison detention center on unrelated conviction was not custodial and required no Miranda warning. Officers already had arrest warrant and planned to arrest the suspect after interview, but never communicated this information during questioning. Suspect was in a conference room, and reasonable person would not have believed he was not free to end interview and leave the room; and (2) bifurcated sentencing in non-capital murder case, with evidence of prior convictions based on 21 O.S.Supp.2013, § 701.10-1(A), enacted after crime was committed, was not ex post facto, as it did not criminalize act done before its passage, make the crime greater or inflict greater penalty than when committed, or receive less, or different, testimony than required when crime was committed.

Winbush v. St., 2018 OK CR 38

OKCCA affirmed revocation of suspended sentence, holding that to prove a "failure to pay" violation on application to revoke suspended sentence, prosecution must first prove that the probationer has failed to make payments. The burden shifts to defendant to prove this failure was not willful or that he made sufficient bona fide effort to pay. If defendant presents evidence that non payment was not willful, the court must consider it and make a finding regarding ability to pay. Appellant presented no evidence at the revocation hearing, and thus made no showing that his failure was non-willful, even after court allowed installment plan.

Vanderpool v. St., 2018 OK CR 39

OKCCA held that 21 O.S.Supp.2013 § 701.10-1 is constitutional in murder trial, though it permits State to present prior convictions but does not authorized defendant to introduce mitigation. Individualized sentencing is required only in capital cases or cases involving life without parole for juveniles. The Legislature determined that felony convictions are relevant to non-capital murder sentence. Due process is satisfied by the opportunity to challenge the existence or validity of an alleged prior conviction. The trial court may consider mitigating information at formal sentencing. The State provided proper notice of the alleged priors and afforded the opportunity to challenge the evidence during the sentencing stage of the trial.

St. v. Cooper, 2018 OK CR 40

OKCCA reversed magistrate's dismissal and finding that charge of larceny of domestic animal, 21 O.S.Supp.2016, § 1716 (B) unconstitutionally duplicated general larceny statute, 21 O.S.2011, §§ 1717-18, and could not "co-exist without causing confusion" concerning the proper crime to charge on the facts. Larceny of domestic animals is separate and distinct from larceny in § 1701, et seq. A statute is not unconstitutionally vague if reasonable people would know their conduct is at risk. The larceny of domestic animal statue gives fair notice of what conduct is prohibited, and is not unconstitutionally vague. The State has discretion regarding which charge to file. When an act violates more than one statute, the Government may prosecute under either, even when the decision is influenced by the higher penalties, if not discriminatory.


Musonda v. St., 2019 OK CR 1

OKCCA held that trial court's denial of defense request to discovery any reports or statements of prosecution expert psychologist consulted by, but never called as a witness for, the prosecution. Reviewing only for plain error, review of this claim, the Oklahoma Discovery Code exempts legal work product from discovery. 22 O.S.2011, § 2002(E)(3). The exemption is not absolute, but prosecutor's conversations with consulting expert who was never retained, or endorsed as witness, who reviewed defense expert notes but never examined defendant, fell within the exception. The State acknowledged its duty to disclose exculpatory evidence, and stated that the consultation produced no exculpatory information. Trial court did not plainly err when it conducted no in camera review of the consulting expert's findings for anything exculpatory. No request for in camera review was made, and mere speculation on appeal is insufficient for relief.

White v. St., 2019 OK CR 2

OKCCA held that warrantless swabbing of an arrestee's face and hands for possible gunshot residue was reasonable and proper search incident to arrest, by which lawfully arrested suspect and any area in his immediate control may be searched to prevent danger to the officers or others and prevent destruction of evidence; and trial court's restitution order of $4,966 to Crime Victims Compensation Fund gives no indication how this figure was calculated, and is vacated.

Thompson v. St., 2019 OK CR 3

OKCCA held sexual assault victim's out-of-court statements to SANE nurse, that defendant raped her, raped her by instrumentation, forcibly orally sodomized her, punched her face and chest, and strangled her, were made for the primary purpose of obtaining medical treatment and thus were non-testimonial statements under Crawford. SANE nurses perform both medical and legal functions, giving treatment and collecting evidence for possible prosecution. Here, the exam was performed in the emergency room, a portion of the exam was devoted to treating medical issues; law enforcement was not involved in the exam; the nurse was a medical professional for whom evidence collection was a secondary purpose. Despite investigative component of SANE exam, the statements made were-admissible under the medical-diagnosis hearsay exception, and were non-testimonial statements under the Confrontation Clause.

Truskolaski v. St., 2019 OK CR 4

OKCCA reversed denial of post-conviction relief, holding that petitioner's filing and litigation of federal habeas corpus after direct appeal, but before seeking state post conviction relief, had no bearing on whether his claims were cognizable. The only issues that can be raised in state post-conviction are those which (1) were not and could not have been raised on direct appeal; and (2) support a conclusion that the outcome of the trial would have been different but for the errors or that the defendant is factually innocent. Attempts to secure federal habeas corpus do not constitute a prior proceeding which raises the statutory procedural bar to post-conviction claims.

Conroy-Perez v. St., 2019 OK CR 5

OKCCA reversed and remanded revocation of suspended sentence, holding Appellant's evidence of his inability to pay probation fees to district attorney, because of personal injury, required further findings by the trial court, including a determination of whether Appellant carried his burden to show his admitted "failure to pay" violation was not willful, due to inability to pay despite good faith efforts to do so.

Stewart v. St., 2019 OK CR 6

OKCCA overruled Cripps v. St., 2016 OK CR 14, and held warrantless seizure of defendant's blood under 47 O.S.2011, § 10-104(B), which requires submission to testing as soon as practical of driver involved in accident who could be cited for traffic offense in an accident involving death or great bodily injury, violated the 4th Amendment as interpreted in Missouri v. McNeely, 569 U.S. 141, 145 (2013). The Court reasoned that a statutorily-created exigency and probable cause substitute was irreconcilable with McNeely's recognition that absent an exigency, a magistrate's determination of probable cause must precede a seizure of blood. However, seizure of the evidence by officers in objective, good faith reliance on this invalid statute would not be deterred by exclusion of the evidence, so reversal is not required.

Martinez v. St., 2019 OK 7

OKCCA denied post-conviction relief to juvenile sentenced to consecutive terms of life for murder and two fifteen year sentences for shooting with intent to kill. Petitioner's reliance on Miller v. Alabama, 567 U.S. 460, (2012), which forbids a sentencing scheme that mandates life in prison without the possibility of parole for juvenile homicide offenders, unless they are found permanently incorrigible or irreparably corrupt, does not require the Court to view consecutive sentences in the aggregate, as though they were one. Multiple sentences should be analyzed separately to determine whether they violate Miller's rule against sentences that deny a juvenile any reasonable chance for release on parole. Assuming Petitioner will not be eligible for release on parole until he is 79 years old, past his life expectancy, his sentences do not violate the Eighth Amendment.

Sears v. St., 2019 OK CR 8

OKCCA affirmed revocation of suspended sentence, finding appellant acquiesced in delay and could not complain that revocation hearing was held later than 20 days of her plea of not guilty as required by 22 O.S.Supp.2016, § 991b(A). Appellant was granted a continuance of the hearing and cannot later benefit from a delay beyond the 20-day rule. The Court overruled Grimes v. St., 2011 OK CR 16, and will no longer require a separate pleading in the trial court to clarify whether the court stated the wrong amount of time in granting credit for time served. The Court remanded to the trial court with instructions to address Appellant's request for issuance of an order nunc pro tunc to correct potential error.