Donte Lemar Payton v State Of Oklahoma

F-2016-194

Filed: Nov. 8, 2018

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Donte Lemar Payton appealed his conviction for Manslaughter in the First Degree. Conviction and sentence was life imprisonment. Judge Lewis dissented.

Decision

**DECISION** The Judgment and Sentence of the District Court is AFFIRMED. Appellant's Application for Evidentiary Hearing on Sixth Amendment Claims is DENIED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2018), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there an error in the trial court's compliance with the law governing contact with jurors during deliberations?
• Did the court's improper communication with the jury invite jurors to avoid their duty to assess punishment, depriving the appellant of the right to be sentenced by the jury?
• Was the appellant deprived of effective assistance of counsel?
• Was the imposition of a life sentence excessive under the unique circumstances of this case?
• Were the appellant's rights to present a defense and to have a jury determine his guilt or innocence violated by the trial court's refusal to instruct the jury on self-defense?
• Did the accumulation of errors in this case deprive the appellant of due process of law?

Findings

• the court erred in failing to comply with the law governing contact with jurors
• the court's improper communication with the jury invited jurors to avoid their duty to assess punishment
• evidence was not sufficient to establish ineffective assistance of counsel
• the life sentence imposed was not excessive
• the trial court did not err in refusing to instruct the jury on self-defense
• the accumulation of error did not deprive Appellant of due process of law

F-2016-194

Nov. 8, 2018

Donte Lemar Payton

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

HUDSON, JUDGE:

Appellant, Donte Lemar Payton, was tried and convicted at a jury trial in Oklahoma County District Court, Case No. CF-2014-7586, of Manslaughter in the First Degree, in violation of 21 O.S.2011, § 711(3). The jury deadlocked on punishment. The Honorable Donald L. Deason, District Judge, sentenced Appellant to life imprisonment. Payton now appeals, raising six propositions of error before this Court:

I. THE TRIAL COURT ERRED IN FAILING TO COMPLY WITH THE LAW GOVERNING CONTACT WITH JURORS DURING DELIBERATIONS, IN VIOLATION OF OKLA. STAT. TIT. 22, § 894, AND APPELLANT’S RIGHTS UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE II, §§ 7, 19, AND 20, OF THE OKLAHOMA CONSTITUTION;

II. THE COURT’S IMPROPER COMMUNICATION WITH THE JURY INVITED JURORS TO AVOID THEIR DUTY TO ASSESS PUNISHMENT, AND THE JURORS ACCEPTED THE INVITATION, DEPRIVING APPELLANT OF THE RIGHT TO BE SENTENCED BY THE JURY;

III. APPELLANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE II, §§ 7 AND 20 OF THE OKLAHOMA CONSTITUTION;

IV. UNDER THE UNIQUE CIRCUMSTANCES OF THIS CASE, IMPOSITION OF A LIFE SENTENCE IS EXCESSIVE AND SHOULD BE MODIFIED;

V. APPELLANT’S RIGHTS TO PRESENT A DEFENSE AND TO HAVE A JURY DETERMINE HIS GUILT OR INNOCENCE WERE VIOLATED BY THE TRIAL COURT’S ERRONEOUS REFUSAL TO INSTRUCT THE JURY ON SELF-DEFENSE AS APPELLANT’S THEORY OF DEFENSE IN VIOLATION OF THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AS WELL AS ARTICLE 2, SECTIONS 7, 19 AND 20 OF THE OKLAHOMA CONSTITUTION; and

VI. THE ACCUMULATION OF ERROR IN THIS CASE DEPRIVED APPELLANT OF DUE PROCESS OF LAW IN VIOLATION OF THE FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUITON AND ARTICLE II, § 7 OF THE OKLAHOMA CONSTITUTION.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, exhibits, the parties’ briefs and Appellant’s Rule 3.11 application, we find that no relief is required under the law and evidence. Appellant’s judgment and sentence is AFFIRMED.

Propositions I and II: A presumption of prejudice arises when a communication between a judge and jury occurs after the jury has retired for deliberations. This presumption may only be overcome on appeal if the Court is convinced on the face of the record that no prejudice to the accused occurred. We remanded Appellant’s case to district court for an evidentiary hearing on this claim. The record shows the jury was told by the bailiff during deliberations that the trial judge would impose sentence if the jury was unable to agree on punishment. This communication occurred after the jury found Appellant guilty of the lesser-included offense of first degree manslaughter. At the time, the jury was unable to agree on punishment despite several hours of deliberations. The jury’s deadlock on sentencing was evident from the last two jury questions sent to the trial judge during deliberations. The jury foreman then confirmed for the trial judge on the record that further deliberations would not assist the jury in reaching a unanimous decision as to punishment. The trial court utilized 22 O.S.2011, § 927.1 to take from the jury the sentencing verdict in light of their finding of guilty and their inability to agree on punishment. This is a discretionary act of the trial court which we review for abuse of discretion. We note from the outset that Appellant did not object to the trial court’s responses to the jury’s written questions or to dismissal of the jury in light of their apparent deadlock. Appellant did not ask to poll the jurors. Nor did Appellant file a pretrial request for the jury to fix punishment.

When a trial judge is faced with a jury that has retired to deliberate and reached a verdict of guilty, and despite “diligent and sincere efforts, they are unable to agree upon the punishment and SO report to the trial judge” then Section 927.1 becomes applicable. The court at that point “shall require the jury to deliberate further after giving the additional instruction that if they then fail to agree they may SO state in their verdict and leave punishment to be assessed by the court.” In the present case, the information conveyed to the jury by the bailiff was a correct statement of the law, was limited in scope “and essentially the same as would have been given had the statute been strictly followed.” Judge Deason’s response to the jury’s final written question told the jury to keep deliberating and to try to reach a consensus on punishment. The record shows plainly that the jury was hopelessly deadlocked on punishment at the time of the bailiff’s unauthorized communication. However, the jury had already unanimously found Appellant guilty of first degree manslaughter. On this record we find that the presumption of prejudice was overcome by the State. Appellant fails to show error, plain or otherwise, based upon his unpreserved claims that the trial court took the case from the jury too soon after answering the last written question and that the trial court should have instructed with the Allen charge. To be entitled to relief under the plain error doctrine, Appellant must show the existence of an actual error (i.e., deviation from a legal rule), that is plain or obvious, and that affects his substantial rights, meaning the error affected the outcome of the proceeding. If these elements are met, this Court will correct plain error only if the error seriously affects the fairness, integrity or public reputation of the judicial proceedings or otherwise represents a miscarriage of justice. The time provided for deliberations was not unreasonable and there was no abuse of discretion in this regard. Appellant fails to show that the jury was distracted in its sentencing deliberations either from the trial court’s failure to give an Allen charge or in the Court’s decision to take the case from the jury after confirming on the record that the jury was deadlocked as to punishment. Nor does Appellant show an abuse of discretion from the trial court’s decision under Section 927.1 to take the sentencing decision from the deadlocked jury and impose sentence based on the facts of this case. There was no actual error in this regard and, thus, no plain error. Propositions I and II are denied.

Proposition III: To prevail on an ineffective assistance of counsel claim, the appellant must show both that counsel’s performance was deficient and that the deficient performance prejudiced his defense. Appellant fails to show that trial counsel was ineffective for the claims of ineffectiveness that are based on the existing record on appeal. Further, Appellant fails to show by clear and convincing evidence a strong possibility that trial counsel was ineffective for failing to present statements at formal sentencing from Appellant’s mother, father, aunt, cousin and girlfriend. Appellant’s request for an evidentiary hearing, or to supplement the record, on this claim is thus denied. Proposition III is denied.

Proposition IV: We find that, under the total facts and circumstances of this case, Appellant’s sentence is not so excessive as to shock the conscience of the Court. Simply, this was a senseless and brutal killing. Proposition IV is denied.

Proposition V: We review the trial court’s ruling on requested defense instructions for abuse of discretion. We require prima facie evidence meeting the legal criteria for the defense presented before jury instructions on said defense are warranted. A defense instruction “is properly refused if there is insufficient evidence to support it.” “Self-defense is an affirmative defense which admits the elements of the charge, but offers a legal justification for conduct which would otherwise be criminal.” Under Oklahoma law, a person is justified in using deadly force if a reasonable person in the circumstances and from the defendant’s viewpoint would reasonably have believed that he was in imminent danger of death or great bodily injury. This is so even if the danger to life or personal security may not have been real. Appellant’s own testimony shows that he unreasonably shot the victim after taking the gun away. No reasonable person in the circumstances and from the defendant’s viewpoint would reasonably have believed that he or she was in imminent danger of death or great bodily injury from the unarmed victim. Appellant testified repeatedly that he opened fire on Canter because he was “scared” but that assertion, standing alone, is insufficient to warrant self-defense instructions. “The bare belief that one is about to suffer death or great personal injury will not, in itself, justify taking the life of [one’s] adversary. There must exist reasonable grounds for such belief at the time of the killing.” Instruction on self-defense thus was not supported by prima facie evidence because Appellant’s testimony uniformly showed no present imminent danger of being attacked or killed by Canter after he was disarmed. The trial court did not abuse its discretion in denying the defense instruction. Proposition V is denied.

Proposition VI: We deny Appellant’s request for relief based upon alleged cumulative error. Proposition VI is denied.

DECISION

The Judgment and Sentence of the District Court is AFFIRMED. Appellant’s Application for Evidentiary Hearing on Sixth Amendment Claims is DENIED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2018), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

1. 21 O.S.2011, § 711(3).
2. 21 O.S.Supp.2014, § 13.1.
3. OKLA. STAT. TIT. 22, § 894.
4. 22 O.S.2011, § 927.1.
5. See Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 2d 528 (1896); Thomas v. State, 1987 OK CR 113, 91 20-21, 741 P.2d 482, 488; Pickens U. State, 1979 OK CR 99, II 10-11, 600 P.2d 356, 358-59; OUJI-CR (2d) 10-11.
6. 21 O.S.Supp.2014, § 733.
7. Duclos U. State, 2017 OK CR 8, I 19, 400 P.3d 781, 786; Pullen v. State, 2016 OK CR 18, I 16, 387 P.3d 922, 928.
8. Davis v. State, 2011 OK CR 29, IT 94, 268 P.3d 86, 114.
9. Davis v. State, 2011 OK CR 29, I 95, 268 P.3d at 114.
10. Davis v. State, 2011 OK CR 29, IT 95, 268 P.3d at 114-15.
11. Neloms v. State, 2012 OK CR 7, I 40, 274 P.3d 161, 171.
12. 22 O.S.2011, §§ 857, 894.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 711 (2011) - Manslaughter in the First Degree
• Okla. Stat. tit. 21 § 13.1 (2014) - Parole Eligibility
• Okla. Stat. tit. 22 § 894 (2011) - Communication with Jurors
• Okla. Stat. tit. 22 § 927.1 (2011) - Deadlocked Jury
• Okla. Stat. tit. 20 § 3001.1 (2011) - Plain Error
• Okla. Stat. tit. 21 § 733 (2014) - Deadly Force Justification
• Okla. Stat. tit. 22 §§ 857, 894 (2011) - Communication with Jurors

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found

U.S. Code citations:

No US Code citations found.

Other citations:

No other rule citations found.

Case citations:

• Givens U. State, 1985 OK CR 104, 19, 705 P.2d 1139, 1142
• Nicholson v. State, 2018 OK CR 10, I 12, 421 P.3d 890, 895
• Dallas U. State, 1955 OK CR 93, I 20, 286 P.2d 282, 286
• Bayless U. State, 1913 OK CR 67, 9 Okl.Cr. 27, 32-33, 130 P. 520, 522
• Shanahan U. State, 1960 OK CR 59, IT 18, 354 P.2d 780, 786
• Dean v. State, 1989 OK CR 40, II 8-9, 778 P.2d 476, 478
• White U. State, 1978 OK CR 32, 11, 576 P.2d 315, 317
• Grayson U. State, 1984 OK CR 87, I 12, 687 P.2d 747, 750
• Bramlett v. State, 2018 OK CR 19, I 23, 422 P.3d 788, 796
• Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 2d 528 (1896)
• Thomas v. State, 1987 OK CR 113, 91 20-21, 741 P.2d 482, 488
• Pickens U. State, 1979 OK CR 99, II 10-11, 600 P.2d 356, 358-59
• Barnes U. State, 2017 OK CR 26, I 22, 408 P.3d 209, 217
• Johnson U. State, 2009 OK CR 26, II 4-5, 218 P.3d 520, 522-23
• Harris v. State, 2004 OK CR 1, I 72, 84 P.3d 731, 756
• Ellis U. State, 1990 OK CR 43, IT 8, 795 P.2d 107, 109
• Cole v. State, 1988 OK CR 288, 14, 766 P.2d 358, 361
• Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984)
• Harrington U. Richter, 562 U.S. 86, 104, 131 S. Ct. 770, 787-88, 178 L. Ed. 2d 624 (2011)
• Simpson v. State, 2010 OK CR 6, 53, 230 P.3d 888, 905-06
• Duclos U. State, 2017 OK CR 8, I 19, 400 P.3d 781, 786
• Pullen v. State, 2016 OK CR 18, I 16, 387 P.3d 922, 928
• Barnett v. State, 2011 OK CR 28, I 6, 263 P.3d 959, 962
• Davis v. State, 2011 OK CR 29, IT 94, 268 P.3d 86, 114
• Davis v. State, 2018 OK CR 7, I 32, 419 P.3d 271, 282
• Neloms v. State, 2012 OK CR 7, I 40, 274 P.3d 161, 171