St. v. Strawn, 2018 OK CR 2
Reversed suppression of evidence. Driver’s speeding was probable cause for initial stop. Encounter became consensual after trooper returned documents and told driver that he could leave, before asking if there was anything illegal in the vehicle. A reasonable person would have felt free to leave at the point when the driver admitted marijuana was in the vehicle.
Brown v. St., 2018 OK CR 3
Reversed death sentences and remanded for re-sentencing, finding trial court’s incomplete advice about the waiver of 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
Appellant had not shown affiant’s statements were knowingly false or in reckless disregard of truth, though officer may have failed to verify some allegations in seeking search warrant. Magistrate had a substantial basis for issuing warrant, even excluding challenged statements.
Thompson v. St., 2018 OK CR 5
Affirmed 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.2021, § 11.
Taylor v. St., 2018 OK CR 6
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
Overruled a long line of cases holding that third party testimony concerning an extrajudicial identification is inadmissible. Extrajudicial identifications are admissible when the identifying witness testifies at trial subject to cross-examination. 12 O.S.2021, §§ 2801 and 2802 supersede old case law restricting out-of-court statements of identification.
Lamar v. St, 2018 OK CR 8
Affirmed robbery and other convictions, finding no denial of self-representation. Defendant was non-responsive to inquiry whether he would represent himself without a continuance or go to trial with appointed counsel. Court terminated self-representation 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
Affirmed child abuse conviction, finding evidence of defendant’s attack on child victim’s mother 8 months earlier was properly admitted to show absence of mistake or accident in later abuse of the child. Court’s and prosecutor’s failure 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
Overruled prior cases stating that technical violations of 22 O.S.2021, § 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. Error here was not prejudicial because court’s instructions were accurate.
Stevens v. St., 2018 OK CR 11
Granted second application for post-conviction relief, holding petitioner’s 1997 life without parole sentence, upon 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 agreement to straight life sentence.
J.T.A. v. St., 2018 OK CR 12
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
Granted the writ of certiorari and remanded for evidentiary hearing on motion to withdraw guilty plea. Evidentiary hearing is mandatory under Rule 4.2(A) for cert appeals, and is essential to review of trial court’s decision to deny a motion to withdraw. Waiver of the hearing by counsel is ineffective assistance.
Lee v. St., 2018 OK CR 14
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
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
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 get 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
Affirmed certification of child charged with murder and other crimes as a youthful offender, and denied certification as a juvenile, finding no abuse of discretion where 3 psychologists found child was amenable to treatment with good prospects for rehabilitation. Though experts reached their conclusions without considering the alleged acts of murder, trial 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
No right to pre-trial appeal from denial of “Stand Your Ground” immunity under 21 O.S.2021, § 1289.25. Though direct appeal is not a meaningful substitute for pre-trial review, SYG is “conditional immunity” entirely “dependent on the specific and unique facts.” Trial courts should continue to hear SYG motions to dismiss, “though there are no available appellate challenges” to pre-trial denial of immunity.
Bramlett v. St., 2018 OK CR 19
Affirmed murder conviction but vacated LWOP sentence and remanded for re-sentencing, 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 objection to comment was overruled, and counsel’s attempt to correct the record with an accurate argument was undermined by trial court’s denial of her initial objection, and a second misstatement in the State’s final closing.
Tryon v. St., 2018 OK CR 20
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 response to police questioning and was made informally to another person, its primary purpose being to communicate with defendant rather than create an out-of-court substitute for testimony.
Irwin v. St., 2018 OK CR 21
Affirmed felony stalking conviction and reversed 4 counts of violating a protective order, finding 21 O.S.2021, § 11 prohibited convictions that “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
Prosecutor’s argument to jury that appellant had previously received suspended sentences was not error. The Court rejected Hunter v. St., 2009 OK CR 17, which prohibited both jury sentencing evidence of a suspended sentence and explicit reference to probation in argument. Prosecutors do not have free rein to 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
Overruled Pink v. St., 2004 OK CR 37, which held that a co-conspirator’s testimony is not subject to corroboration rule of accomplice testimony under 22 O.S.2021, § 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.2021, § 2801(B)(2)(e). A co-conspirator who otherwise meets the definition of an accomplice must be corroborated under § 742.
Spruill v. St., 2018 OK CR 25
Evidence sufficient to support manslaughter conviction where appellant forced his way inside the victim’s apartment while armed with weapon, and appellant’s own words showed he instigated the confrontation. The victim had right to defend himself, and his family, using deadly force inside his home. under the Stand Your Ground law, 21 O.S.2021, § 1289.25. Evidence supported the jury’s finding of the lesser-included crime of first degree manslaughter.
Runnels v. St., 2018 OK CR 27
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 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
Reversed suppression of evidence, finding lower courts failed to analyze the effect of good faith exception to the exclusionary rule adopted in St. 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
Reversed delinquency adjudication where trial court released jurors for the evening over defense counsel’s objection. This was error under 22 O.S.2021, § 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 absence of harm. State made no attempt to rebut presumption here.
Mack v. St., 2018 OK CR 30
Imperfect self-defense is not a legal defense to murder. Prior cases have used the concept to describe manslaughter, but did not recognize a separate defense. The trial court could not have instructed on it, and no error occurred.
Bench v. St., 2018 OK CR 31
Affirmed murder conviction and death penalty over multiple claims of error. The defendant’s unwarned statements to a deputy sheriff following his arrest were not obtained in violation of Miranda. Deputy was collecting only routine booking information and making small talk about military matters when the defendant said he had done something “bad” and may have killed somebody. Questions which elicit only routine booking information are not interrogation that requires a Miranda warning.
Thompson v. St., 2018 OK CR 32
Modified conviction for assault and battery with a deadly weapon to assault with a dangerous weapon/shooting with intent to injure. Conviction under 21 O.S.2021, § 652© requires not only proof of an assault, but also a battery, and 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 life sentence.
Bivens v. St., 2018 OK CR 33
Overruled Coates v. St., 2006 OK CR 24, which held that a sentence enhanced under § 51.1 may not include the fine in the substantive drug statute. Imprisonment imposed for Trafficking shall be “in addition to any fines” specified by subsection 2-415(D). Combining two statutes to determine fine with an enhanced sentence of imprisonment is proper. When different statutes regulate the same subject, both provisions are given effect, unless this would defeat the intent of the Legislature.
St. v. Bradley, 2018 OK CR 34
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.2021, § 453, and directed magistrate to bind defendants over for trial on conspiracy to commit perjury by subornation, and false preparation of exhibits. Charges of witness intimidation were properly dismissed where neither defendant prevented or attempted to prevent witness 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 a conspiracy to commit perjury by subornation, where defendants’ making or causing witness 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 witness later disowns the statement.
Dunn v. St., 2018 OK CR 35
Reversed and remanded for evidentiary hearing on motion to withdraw guilty plea, finding petitioner was denied due process right to be present. 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 some counts. Counsel’s feelings were insufficient to waive rights and denied due process.
G.W. v. St., 2018 OK CR 36
Statutory right to jury trial in delinquency must be affirmatively demanded by juvenile and may be waived by lack of timely demand before trial, overruling D.M.H. v. St., 2006 OK CR 22, ¶ 3, which held “the lack of an affirmative waiver” was reversible error. Juvenile must be advised of right to jury trial, but waiver need not be affirmative or on the record. Because there was no advice to the juvenile of the right to jury trial here, reversal was required.
Mason v. St., 2018 OK CR 37
Questioning of suspect while in prison detention center on unrelated conviction was not custodial and required no Miranda warning. Officers had warrant and planned to arrest the suspect after interview, but never communicated this during questioning. Suspect was in a conference room, and reasonable person would have believed he was free to end interview. Bifurcated sentencing in murder case allowing prior convictions under 21 O.S.2021, § 701.10-1(A), passed after crime was committed, was not ex post facto. New procedure did not criminalize act done before its passage, make the crime greater or inflict greater penalty, or receive less, or different, proof of guilt than required when crime was committed.
Winbush v. St., 2018 OK CR 38
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 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 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
Title 21, O.S.2021 § 701.10-1 is constitutional in murder trial, though it permits State to present prior convictions but does not authorize defense mitigation. Individualized sentencing is required only in capital cases (or life without parole for juveniles). Felony convictions are relevant to non-capital murder sentence. Due process is satisfied by the opportunity to challenge the existence or validity of the prior conviction. The trial court may consider mitigating information at formal sentencing. The State provided proper notice of the priors and court afforded the opportunity to challenge the evidence during the sentencing stage.
St. v. Cooper, 2018 OK CR 40
Reversed magistrate’s dismissal on grounds that charge of larceny of domestic animal, 21 O.S.2021, § 1716 (B) unconstitutionally duplicated general larceny statute, 21 O.S.2021, §§ 1717-18, and could not “co-exist without causing confusion” concerning the proper crime to charge on the facts. Larceny of domestic animals is 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 statute gives fair notice of what conduct is prohibited, and is not unconstitutionally vague. The State has discretion regarding filing of charges. When act violates more than one statute, the State may prosecute under either, even when the decision is influenced by the higher penalties, if not discriminatory.