Oklahoma Court of Criminal Appeals | 2023
Decisions
WASHINGTON v. STATE
2023 OK CR 22
Case Number: F-2021-692
Decided: 12/21/2023
¶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.
KELLY III v. STATE
2023 OK CR 21
Case Number: F-2021-1390
Decided: 12/21/2023
¶1 Appellant Alonzo John Kelly III, appeals his Judgment and Sentence from the District Court of Tulsa County, Case No. CF-2016-1521, for First Degree Murder, in violation of 21 O.S.Supp.2012, § 701.7(A). The Honorable Sharon K. Holmes, District Judge, presided over Kelly’s jury trial and sentenced him, in accordance with the jury’s verdict, to life imprisonment.1 Kelly appeals raising the following issues:
(1) Whether the trial court committed reversible error in refusing to allow him to exercise his constitutional right to represent himself at trial;
(2) whether he was denied his constitutional and statutory right to a speedy trial;
(3) whether the ‘earwitness’ identification violated his right to due process;
(4) whether the flight instruction was given in error; and
(5) whether he received the effective assistance of trial counsel.
¶2 Because this case requires relief, we address only the first two propositions which request, respectively, that the case be reversed and remanded for a new trial and that the case be reversed with instructions to dismiss.
DEO v. PARISH
2023 OK CR 20
Case Number: MA-2022-937
Decided: 12/14/2023
¶1 Petitioner, through counsel Curt Allen, petitions this Court for an extraordinary writ compelling the dismissal of Okfuskee County District Court Case Nos. CF-2018-56 and CF-2018-104 based on a lack of jurisdiction pursuant to McGirt v. Oklahoma, 591 U.S. __, 140 S.Ct. 2452 (2020). For the reasons discussed below, the writ is DENIED.
PROCEDURAL HISTORY
¶2 On August 15, 2018, Petitioner entered a guilty plea to Second Degree Burglary in Case No. CF-2018-56 and the trial court entered an order deferring his sentencing for seven years. On December 17, 2018, Petitioner was charged with Grand Larceny and Knowingly Concealing Stolen Property in Case No. CF-2018-104. On December 19, 2018, the State filed an application to accelerate Petitioner’s deferred sentencing in Case No. CF-2018-56. Pursuant to a drug court plea agreement, Petitioner entered a plea of guilty in Case No. CF-2018-104, stipulated to the application to accelerate in Case No. CF-2018-56, and was admitted to drug court in January of 2019. The trial court delayed sentencing in both cases pending the outcome of Petitioner’s participation in drug court.
¶3 On February 27, 2019, the State filed an application to terminate Petitioner’s participation in drug court that has not been ruled upon. On August 31, 2022, Petitioner, through counsel Curt Allen, filed a motion to dismiss for lack of subject matter jurisdiction in the trial court.1 After a hearing on the matter, Judge Parish denied Petitioner’s motion to dismiss in an order filed in the trial court September 26, 2022. It is from that order that Petitioner seeks extraordinary relief.
ANALYSIS
¶4 To receive extraordinary relief via a writ of mandamus, Petitioner must establish that “(1) he has a clear legal right to the relief sought; (2) the respondent’s refusal to perform a plain legal duty not involving the exercise of discretion; and (3) the adequacy of mandamus and the inadequacy of other relief.” Rule 10.6(B), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2023). Two shortcomings present themselves in Petitioner’s attempt to meet his burden of proof on the first and second element. First, in showing that he has a clear legal right. Specifically, has Petitioner either waived or forfeited this right, or that the right goes to the subject matter jurisdiction of the trial court and can be raised at any time. Second, in demonstrating that his clear legal right actually applies to his case, meaning it works to preempt the trial court’s jurisdiction and triggers a plain legal duty in the trial judge to dismiss Petitioner’s case. Ultimately, the petition for a writ of mandamus fails on both.
HAMMON v. STATE
2023 OK CR 19
Case Number: PC-2023-176
Decided: 11/28/2023
¶1 Petitioner, pro se, appeals the order of the District Court of Oklahoma County dismissing his application for post-conviction relief in Case No. CF-2000-6659. In December 2001, a jury convicted Petitioner of drug and firearms offenses. He was sentenced to terms of imprisonment totaling seventy years. The convictions and sentences were affirmed on direct appeal in an opinion handed down on April 1, 2003. See Hammon v. State, Case No. F-2001-1496 (Okl.Cr. April 1, 2003) (not for publication).
¶2 At the time Petitioner’s judgment and sentence was affirmed, there was no limitations period governing the filing of a post-conviction application pursuant to the Post-Conviction Procedure Act. See 22 O.S.2001, § 1080, et seq.1 This remained the case until November 1, 2022, when Section 1080.1 of Title 22 of the Oklahoma Statutes became effective. This Section instituted a limitations period for filing post-conviction applications which provides in pertinent part:
A one-year period of limitation shall apply to the filing of any application for post-conviction relief, whether an original application or a subsequent application. The limitation period shall run from the latest of:
1. The date on which judgment of conviction or revocation of suspended sentence became final by the conclusion of direct review by the Oklahoma Court of Criminal Appeals or the expiration of the time for seeking such review by the Oklahoma Court of Criminal Appeals[.]
22 O.S.Supp.2022, § 1080.1 (A)(1).2 The statute permits several narrow exceptions to this one-year period, none of which apply here.
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¶12 We conclude that a one-year grace period is appropriate. This affords the affected petitioners as much time as their counterparts whose convictions became final after Section 1080.1 became effective and avoids potential unfairness. Accordingly, petitioners whose convictions became final on or before November 1, 2022, had until November 1, 2023, to file their application for post-conviction relief. Petitioner’s application was therefore not untimely.
¶13 The order of the District Court dismissing Petitioner’s application for post-conviction relief is REVERSED. Petitioner’s motion to file a reply brief out of time is DENIED. This matter is remanded to the District Court for proceedings not inconsistent with this order. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2023), the MANDATE is ORDERED issued upon the delivery and filing of this decision.
¶14 IT IS SO ORDERED.
¶15 WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 28th day of November, 2023.
STATE v. CROSSON
2023 OK CR 18
Case Number: MA-2023-623
Decided: 11/16/2023
¶1 On July 27, 2023, the State filed a petition for writ of mandamus seeking to compel Respondent, the Honorable Terrell Crosson, Special Judge, to issue an arrest warrant in the District Court of Rogers County Case No. CF-2023-226. For the reasons discussed below, the writ is GRANTED.
PROCEDURAL HISTORY
¶2 The State charged the defendant with manufacturing, possessing, and distributing child pornography. On June 29, 2023, Judge Crosson declined to sign a warrant for the arrest of the defendant. Specifically, Judge Crosson found that there was probable cause the defendant committed the crimes of Manufacturing Child Pornography in violation of 21 O.S. § 1021.2; Distribution of Child Pornography in violation of 21 O.S. § 1021; and Possession of Child Pornography in violation of 21 O.S. § 1024.2; and that defendant committed these crimes within Rogers County, Oklahoma. However, Judge Crosson also found that the offense occurred within the historical bounds of the Cherokee Nation; that the Cherokee Nation’s reservation had not been disestablished; and that the defendant is an enrolled member of the Navajo Nation, a federally recognized tribe, with a Certificate of Degree of Indian Blood.
¶3 In light of the foregoing, Judge Crosson declined to issue the arrest warrant, finding that the State lacked jurisdiction to prosecute the defendant and that the court lacked jurisdiction to issue the arrest warrant. Moreover, the court found jurisdiction lay with the Federal Government and the Cherokee Nation since the crimes alleged did not fall under the federal Major Crimes Act, 18 U.S.C. § 1153.
¶4 The State filed a petition for a writ of mandamus from this Court on July 27, 2023, seeking to require Respondent to issue the arrest warrant. On August 1, 2023, we directed a response from Judge Crosson, or his designated representative. On August 31, 2023, Judge Crosson’s designated representative, Chad Johnson, filed a response in this Court.
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¶9 Petitioner’s application for extraordinary writ is GRANTED. The matter is REMANDED to the Rogers County District Court for proceedings not inconsistent with this order. The motion of the Cherokee Nation for leave to file an amicus curiae brief in support of Respondent is DENIED.
IN RE REVISION OF PORTION OF THE RULES OF THE COURT OF CRIMINAL APPEALS
2023 OK CR 17
Case Number: CCAD-2023-2
Decided: 11/08/2023
ORDER ADOPTING NEW FORMS
¶1 Pursuant to revisions made to Section 983 of Title 22 of the Oklahoma Statutes, we find that new forms should be adopted. Revision of the Rules of the Oklahoma Court of Criminal Appeals by the creation of new Forms 13.17a, 13.17b, 13.17c, 13.17d, 13.17e, 13.17f, and 13.17g is necessary. Therefore, pursuant to the provisions of Section 1051(B) of Title 22 of the Oklahoma Statutes, we promulgate the following new Forms as portions of the Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2023) …
IN RE REVISION OF PORTION OF THE RULES OF THE COURT OF CRIMINAL APPEALS
2023 OK CR 16
Case Number: CCAD-2023-1
Decided: 11/07/2023
ORDER ADOPTING NEW PROCEDURAL RULES AND
REVISING AND REPUBLISHING PORTIONS OF THE RULES
OF THE COURT OF CRIMINAL APPEALS
We find that new Rules should be adopted and certain existing Rules and Forms revised to provide the procedure for appeals taken pursuant to Sections 1051(D) and 1053(7) of Title 22 of the Oklahoma Statutes. We find that revision of the Rules for the Oklahoma Court of Criminal Appeals by amending Rules 1.2, 1.4, 2.1, 3.1, 6.1, 7.2, 7.3, 7.4, and 7.5; amending Form 13.4; and the creation of new Rules 16.1, 16.2, 16.3, and 16.4 is necessary. Pursuant to the provisions of Section 1051(b) of Title 22 of the Oklahoma Statutes, we hereby revise, adopt, promulgate, and republish portions of the Rules of the Oklahoma Court of Criminal Appeals, 22 O.S., Ch.18, App. (2023) …
SHEPARD v. STATE
2023 OK CR 15
Case Number: D-2020-8
Decided: 09/21/2023
¶1 Appellant, Byron James Shepard, was tried by jury in the District Court of Pottawatomie County, Case No. CF-2017-176, and convicted of Count 1: Murder in the First Degree, in violation of 21 O.S.Supp.2012, § 701.7(A); Count 2: Knowingly Concealing Stolen Property, in violation of 21 O.S.Supp.2016, § 1713; and Count 3: Possession of Controlled Dangerous Substance (Methamphetamine), in violation of 63 O.S.Supp.2016, § 2-402.
¶2 In a separate sentencing phase, the jury found the existence of four statutory aggravating circumstances. The jury found: 1) the defendant, prior to the murder, was convicted of a felony involving the use or threat of violence to the person; 2) the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution; 3) the victim of the murder was a peace officer or guard of an institution under the control of the Department of Corrections, and such person was killed in performance of official duty; and 4) at the present time there exists a probability that the defendant will commit criminal acts of violence that would constitute a continuing threat to society.1
¶3 Based on these aggravators, the jury sentenced Appellant to death on Count 1. On Count 2, the jury sentenced Appellant to five years imprisonment plus a $500.00 fine. On Count 3, the jury imposed a sentence of ten years imprisonment plus a $5,000.00 fine.
¶4 The Honorable John G. Canavan, Jr., District Judge, presided at trial and pronounced judgment and sentence in accordance with the jury’s verdicts. Judge Canavan ordered the sentences for Counts 2 and 3 to run consecutively each to the other but concurrently with Count 1. Shepard now appeals.
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¶146 The Judgment and Sentence of the District Court on Count 1 is AFFIRMED. The Judgment and Sentence of the District Court on Count 2 only is REVERSED AND REMANDED WITH INSTRUCTIONS TO DISMISS. The Judgment and Sentence of the District Court on Count 3 is AFFIRMED except the sentence is MODIFIED to five years imprisonment and a $5,000.00 fine. Appellant’s application for evidentiary hearing on Sixth Amendment claim is DENIED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2023), the MANDATE is ORDERED issued upon delivery and filing of this decision.
KURTANIC v. STATE
2023 OK CR 13
Case Number: F-22021-431
Decided: 07/27/2023
¶1 Appellant, Michael Phillip Kurtanic, appeals his Judgment and Sentence from the District Court of Payne County, Case No. CF-2019-424, Count 1 – Child Sexual Abuse in violation of 21 O.S.Supp.2014, § 843.5(E) & (F); Count 2 – Child Sexual Abuse in violation of 21 O.S. Supp.2014, § 843.5(E) & (F); Count 3 — Child Sexual Abuse in violation of 21 O.S. Supp.2014, § 843.5(E) & (F); and Count 4, Child Abuse in violation of 21 O.S. Supp.2014, § 843.5(A).1
¶2 The Honorable Stephen Kistler, Associate District Judge, presided over Appellant’s jury trial. The jury found Appellant guilty of Counts 1, 2, 3 and 4 and assessed punishment of life imprisonment and a $5,000.00 fine as to Counts 1, 2 and 3, and five years and a $1,000.00 fine as to Count 4. Judge Kistler ordered that all the sentences would run concurrently and Appellant would receive credit for time served. Appellant appeals his judgment and sentence and raises the following issues:
I. whether the jury verdict is unconstitutionally unreliable and uncertain because the jury instructions allowed a jury to convict appellant of child sexual abuse without a unanimous finding of each element of each of the alleged underlying offenses, as alleged in the Information;
II. whether, in the alternative, the court misinstructed Appellant’s jury by imbedding multiple substantive offenses into a single “element” rather than tailoring the elements of child sexual abuse to the particulars of each count;
III. whether plain error occurred when the trial court did not properly instruct the jury on the elements of child sexual abuse charge involving K.S., who was alleged in the Information to be “eleven (11) through twelve (12) years of age” when the alleged acts occurred;
IV. whether the trial court abused its discretion when it allowed hearsay evidence repeating C.J.S.’s unreliable and shifting extrajudicial statements;
V. whether the deliberate destruction of the “best evidence” of the incriminating statements made by C.J.S. to the nurse practitioner requires reversal of Count 3; and
VI. whether the accumulation of error in this case deprived Appellant of the due process of law in violation of the Fifth and Fourteenth Amendments to the United States Constitution and Article II, § 7 of the Oklahoma Constitution.
¶3 We affirm the Judgment and Sentence of the district court.
CORNELIUS II v. STATE
2023 OK CR 14
Case Number: F-2021-1157
Decided: 07/27/2023
¶1 Appellant, Walter Harold Cornelius II, appeals his Judgment and Sentence from the District Court of Wagoner County, Case No. CF-2020-89, for Possession of a Firearm after Prior Felony Conviction in violation of 21 O.S.Supp.2019, § 1283.
¶2 The Honorable Douglas Kirkley, District Judge, presided over Appellant’s jury trial. The jury found Appellant guilty and assessed punishment of five years imprisonment and the trial court imposed the same. Cornelius appeals his judgment and sentence and raises the following issues:
I. whether the trial court violated Appellant’s constitutional right to a speedy trial by failing to review his case for undue delay as required by Oklahoma law; and
II. whether the jury’s finding that Appellant knowingly possessed firearms was clearly erroneous because the State did not show beyond a reasonable doubt that Appellant knowingly had any firearm capable of discharging a projectile at his residence.
¶3 We affirm the Judgment and Sentence of the district court.
I.
¶4 Appellant argues that the trial court violated his constitutional right to a speedy trial. We disagree.1
¶5 In the present case, the trial court did not hold a hearing to review whether Appellant’s right to a speedy trial had been violated. Thus, this Court’s review of the claim is de novo. State v. Raby, 2022 OK CR 30, ¶ 6, 522 P.3d 822, 825. This issue is resolved by “applying the four Barker2 balancing factors: (1) length of the delay; (2) reason for the delay; (3) the defendant’s assertion of [his] right; and (4) prejudice to the defendant.” Id.; Okla. Const. art. II, § 20 (right to speedy trial). “These are not absolute factors, but are balanced with other relevant circumstances in making a determination.” Lott v. State, 2004 OK CR 27, ¶ 7, 98 P.3d 318, 327.
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DECISION
¶28 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. (2023), the MANDATE is ORDERED issued upon delivery and filing of this decision.
FOOTE v. STATE
2023 OK CR 12
Case Number: F-2022-2
Decided: 06/29/2023
¶1 Appellant,Charles Neil Foote, was tried by jury and convicted in the District Court of Lincoln County, Case No. CF-2019-8 of Lewd or Indecent Acts to a Child Under 16, in violation of 21 O.S.Supp.2013, § 1123(A)(2).1 The jury returned a guilty verdict with a sentence of forty-five years imprisonment. The trial court sentenced Appellant in accordance with the jury’s verdict.
¶2 From this judgment and sentence, Appellant appeals and raises the following propositions of error:
I. THE DISTRICT COURT VIOLATED FOOTE’S RIGHT TO CONFRONTATION WHEN IT ADMITTED TESTIMONIAL HEARSAY OF THE MINOR COMPLAINING WITNESS IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS.
II. THE DISTRICT COURT COMMITTED REVERSIBLE ERROR WHEN IT ALLOWED THE STATE TO IMPEACH FOOTE WITH HIS PRIOR CONVICTION.
III. FOOTE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS.
¶3 After thorough consideration of these propositions and the entire record before us on appeal including the original record, transcripts, and briefs of the parties, we have determined that under the law and the evidence, Appellant is not entitled to relief.
DAVISON v. STATE
2023 OK CR 11
Case Number: PCD-2022-1033
Decided: 06/01/2023
¶1 Dustin Melvin Davison, Petitioner, was tried by jury and found guilty of first-degree murder, in violation of 21 O.S.Supp.2012, § 701.7(C), in the District Court of Oklahoma County, Case No. CF-2015-3992. The jury assessed the penalty of death. This Court affirmed on direct appeal, Davison v. State, 2020 OK CR 22, 478 P.3d 462 (Davison I), cert. denied, Davison v. Oklahoma, 142 S.Ct. 206 (2021), and denied Petitioner’s initial application for post-conviction relief. Davison v. State, No. PCD-2018-1081 (Okl.Cr., March 25, 2021)(unpublished)(Davison II).
¶2 Petitioner now seeks capital post-conviction relief in a second application and related motions filed November 28, 2022. His second application presents a single, omnibus claim that “ineffective assistance of trial, appellate, and post-conviction counsel” violated his “Sixth, Eighth, and Fourteenth Amendment rights.” He also submits an appendix with twenty attachments and motions for discovery and evidentiary hearing.
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¶33 Petitioner’s second application for post-conviction relief and related motions for discovery and evidentiary hearing are DENIED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2023), the MANDATE is ORDERED issued upon the delivery and filing of this decision.
STATE v. BRESTER
2023 OK CR 10
Case Number: S-2021-209
Decided: 05/11/2023
¶1 This is a consolidated appeal of orders issued by the District Court of Ottawa County, the Honorable Becky Baird, Special Judge, dismissing, for lack of jurisdiction, Brester’s final conviction in Ottawa County District Court Case No. CF-2018-298 as well as three pending prosecutions against him in Ottawa County District Court Case Nos. CF-2020-129, CF-2020-177, and CF-2020-178.1 The district court granted relief in Brester’s four underlying cases based upon a finding that Oklahoma lacked jurisdiction under federal law because Brester is an Indian and the charged offenses occurred in Indian country, namely either on the Ottawa or Peoria Reservation. See McGirt v. Oklahoma, 140 S.Ct. 2452, 2459 (2020) (noting State courts generally lack jurisdiction to prosecute Indians who commit certain crimes in Indian country). The State announced its intent to appeal the district court’s ruling in open court and perfected the instant appeal. We exercise jurisdiction under 22 O.S.2011, § 1053 and affirm the district court’s ruling in part and reverse it in part for reasons discussed below.2
Post-Conviction Case
¶2 Brester filed for post-conviction relief in November 2020 seeking dismissal of his conviction in Case No. CF-2018-298.3 He alleged a McGirt claim challenging the State’s jurisdiction because of his Indian status and the location of the crime. Brester pleaded guilty in the case in June of 2019 and received a suspended sentence. He did not move to withdraw his plea and that conviction became final on June 28, 2019.
¶3 The district court granted Brester post-conviction relief and dismissed his final conviction on the basis that the State lacked jurisdiction and that a court’s jurisdiction may be challenged at any time.4 Five months after the district court’s ruling, we decided State ex rel. Matloff v. Wallace, 2021 OK CR 21, 497 P.3d 686, cert. denied, 142 S.Ct. 757 (2022), and held the ruling in McGirt would not be applied retroactively to void convictions that were final when McGirt was decided. Id. 2021 OK CR 21, ¶ 15, 497 P.3d at 689. Our holding in Matloff controls and requires reversal of the district court’s ruling granting Brester post-conviction relief in CF-2018-298. Because Brester’s conviction was final in that case when McGirt was decided, his conviction stands, and the State may resume its efforts to revoke his suspended sentence.
ARCE v. STATE
2023 OK CR 9
Case Number: F-2021-1212
Decided: 05/11/2023
¶1 Appellant Jace Enrique Arce was tried by jury and convicted of First Degree Murder (21 O.S.2011, § 701.7(A)) (Count I); Feloniously Pointing a Firearm (21 O.S.Supp.2017, § 1289.16) (Count III); and Possession of a Firearm After Former Conviction of a Felony (21 O.S.Supp.2019, § 1283) (Count IV) in the District Court of Tulsa County, Case No. CF-2020-3876.1 The jury returned sentences of life imprisonment in Count I, five (5) years in prison for Count III, and two (2) years in prison for Count IV. The Honorable Michelle B. Keely, District Judge, sentenced accordingly and ordered the sentences in Counts III and IV to run concurrent with each other and consecutive to the sentence in Count I.2 Appellant appeals from these convictions and sentences and raises the following propositions of error:
I. The District Court committed plain error by failing to instruct the jurors clearly and accurately on the applicable law for aiding and abetting in violation of Appellant’s right to due process under Article II, § 20 of the Oklahoma Constitution and the Fourteenth Amendment to the United States Constitution.
II. The District Court committed plain error by failing to instruct the jury on Second Degree Felony Murder in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution and Articles §§ 7 & 20 of the Oklahoma Constitution.
III. The District Court committed plain error by failing to remove a juror who could not understand English as used in the court’s instructions resulting in an incompetent jury in violation of Appellant’s right to a fair trial under the Due Process Clauses of the Oklahoma and federal constitution.
IV. Appellant was deprived of a fair trial by prosecutorial misconduct in violation of his right to due process under the Fourteenth Amendment to the United States Constitution and Art. II, §§ 7, 20, & 21 of the Oklahoma Constitution.
V. Appellant was deprived of effective assistance of counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article II, §§ 7 & 20 of the Oklahoma Constitution.
VI. The cumulative effect of the errors which occurred during trial proceedings denied Appellant a fair trial in violation of the due process clauses of the Fourteenth Amendment of the United States Constitution and Article II, § 7 of the Oklahoma Constitution.
¶2 After thorough consideration of these propositions and the entire record before us on appeal including the original record, transcripts, and briefs of the parties, we have determined that under the law and the evidence no relief is warranted.
ARCE v. STATE
2023 OK CR 8
Case Number: F-2021-1212
Decided: 05/11/2023
ORDER TO PUBLISH SUMMARY OPINION
¶1 On April 20, 2023, an opinion was handed down in the above-styled proceeding, Arce v. State, F-2021-1212 (April 20, 2023)(unpublished). The opinion addresses in part the law regarding jury instructions on lesser included offenses. After further consideration, we have determined the opinion should be published. The opinion to be published is attached to this order.
STATE v. BURTRUM
2023 OK CR 7
Case Number: S-2022-347
Decided: 05/11/2023
¶1 Appellee Kelly Burtrum was charged by Amended Information with First Degree Manslaughter, in violation of 21 O.S.2011, § 711(1), in the District Court of Garfield County, Case No. CF-2020-385. Burtrum was bound over at preliminary hearing held on September 17, 2021, before the Honorable Brian N. Lovell, Special Judge.
¶2 On January 18, 2022, Burtrum filed Defendant’s Brief in Support of Plea in Abatement, Motion to Quash, Motion to Set Aside the Information and Motion to Dismiss. At a motion hearing held on April 6, 2022, the Honorable Dennis Hladik, District Judge, with no objection from either party, treated the matter as a motion to suppress. The district judge sustained Burtrum’s motion. Appellant, the State of Oklahoma, appeals the district court’s order raising the following issues:
(1) whether the district court abused its discretion in finding Burtrum was under arrest when he submitted to the blood draw; and
(2) whether the district court abused its discretion by holding Burtrum did not consent to the blood draw.
¶3 We exercise jurisdiction pursuant to 22 O.S.2011, § 1053(5). Because the result of this case is required by the issue raised in Proposition 2, we need not address that raised in Proposition 1. For the reasons discussed below, we affirm the district court’s ruling.
BURNHAM v. STATE
2023 OK CR 6
Case Number: F-2021-899
Decided: 05/04/2023
¶1 Appellant, Michael K. Burnham, was tried by a jury and convicted of Lewd or Indecent Acts to a Child Under Sixteen, in violation of 21 O.S.Supp.2017, § 1123(A)(2), in the District Court of Garfield County, Case No. CF-2018-596. The jury sentenced Burnham to fifteen years imprisonment. The Honorable Paul K. Woodward, District Judge, presided at trial and pronounced judgment and sentence in accordance with the jury’s verdict. Burnham must serve 85% of his sentence before he is parole eligible. 21 O.S.Supp.2015, § 13.1. Judge Woodward also imposed various costs and fees.
¶2 Burnham now appeals and alleges a single proposition of error complaining that he was indigent and unable to hire an attorney and as such, the trial court forced him to proceed pro se at his trial in violation of his right to counsel. U.S. Const. Amend. VI; Okla. Const. Art. 2, § 20. Burnham’s claim raises an issue of whether a defendant’s physical ability to work, per se, can be dispositive of the issue of indigence. This case also raises important questions about the district court’s need to make a complete record when addressing a defendant’s indigent status in relation to the appointment of counsel. For reasons discussed below, we find Burnham’s claim has merit. Burnham’s judgment and sentence must therefore be reversed and remanded for new trial.
NORMAN v. STATE
2023 OK CR 4
Case Number: F-2022-247
Decided: 04/20/2923
¶1 Appellant Marcell Jeron Norman was tried by jury and convicted of Child Sexual Abuse with a Child Under Twelve Years (21 O.S.Supp.2014, § 843.5(F)) (Count I); and Child Sexual Abuse (21 O.S.Supp.2014, § 843.5(E)) (Counts II and III), After Former Conviction of Two Felonies, in the District Court of Tulsa County, Case No. CF-2019-5275. The jury returned sentences of thirty-five (35) years in prison and a $500.00 fine in each count. The trial court sentenced accordingly, ordering the sentences in Counts I and II to run consecutively and the sentence in Count III to run concurrently.1
¶2 Appellant appeals from these convictions and sentences and raises the following propositions of error:
I. After finding the State failed to prove Appellant was not in custody for purposes of Miranda, the court erred by nevertheless admitting the interrogation recording on the ground that Appellant’s unwarned statements did not rise to a “confession”.
II. The State’s failure to preserve critical evidence violated due process and required dismissal.
III. The court erred by permitting the State’s child hearsay evidence; presenting D.B.’s account to the jury at least four extra times was cumulative and improperly bolstered her testimony.
IV. The State’s evidence was insufficient to establish guilt beyond a reasonable doubt.
¶3 After thorough consideration of these propositions and the entire record before us on appeal including the original record, transcripts, and briefs of the parties, we have determined that under the law and the evidence no relief is warranted.
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¶31 Accordingly, this appeal is denied.
DECISION
¶32 The JUDGMENT and SENTENCE is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2023), the MANDATE is ORDERED issued upon the delivery and filing of this decision.
RANGEL v. STATE
2023 OK CR 3
Case Number: F-2021-283
Decided: 03/09/2023
¶1 Appellant, Anthony Jess Coldiron Rangel, was tried and convicted by a jury in the District Court of Oklahoma County, Case No. CF-2018-1415, of First Degree Felony Murder, in violation of 21 O.S.Supp.2012, § 701.7(B). The jury sentenced Appellant to life imprisonment. The Honorable Natalie Mai, District Judge, pronounced judgment and sentence in accordance with the jury’s verdict. Appellant must serve 85% of his sentence before he is parole eligible. 21 O.S.Supp.2015, § 13.1(1).
¶2 Appellant now appeals and alleges the following proposition of error:
THE EVIDENCE WAS INSUFFICIENT TO SUPPORT [APPELLANT’S] CONVICTION OF FELONY MURDER DURING THE COMMISSION OF DISTRIBUTION OF A DANGEROUS SUBSTANCE BECAUSE [APPELLANT] WAS THE BUYER IN THE TRANSACTION, THUS THE STATE DID NOT MEET ITS BURDEN IN PROVING THE UNDERLYING FELONY.
¶3 After thorough consideration of the entire record before us on appeal, including the original record, transcripts, exhibits and the parties’ briefs, we find that Appellant’s judgment and sentence must be REVERSED AND REMANDED FOR NEW TRIAL.
BUCK v. STATE
2023 OK CR 2
Case Number: F-2021-453
Decided: 01/19/2023
¶1 Appellant Aaron Charles Buck was charged in the District Court of Pottawatomie County, Case No. CF-2019-299, with four counts of Lewd or Indecent Acts to a Child Under 16, in violation of 21 O.S.Supp.2010, § 1123(A)(2). The jury found Buck guilty on counts 1, 2, and 4, and assessed punishment at forty years imprisonment on Counts 1 and 2, and fifty years imprisonment on Count 4. The Honorable Tracy McDaniel, Associate District Judge, who presided over Buck’s jury trial, sentenced him accordingly, ordering Counts 2 and 4 to be served concurrently with each other and consecutive to Count 1.1 Buck appeals his Judgment and Sentence raising the following issues …
PEREZ v. STATE
2023 OK CR 1
Case Number: F-2021-1060
Decided: 01/19/2023
¶1 Appellant, Felipe Perez, Sr., was convicted by a jury in the District Court of Kiowa County, Case No. CF-2021-04, of Lewd or Indecent Acts to a Child Under Sixteen, in violation of 21 O.S.Supp.2018, § 1123. The jury sentenced Perez to twenty years imprisonment. The Honorable Clark E. Huey, Associate District Judge, presided at trial and pronounced judgment and sentence in accordance with the jury’s verdict. Perez now appeals and alleges the following propositions of error …