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ORIGINAL * 1043781446 IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA MARTIN OCHOA MEDINA, ) ) Appellant, ) NOT FOR PUBLICATION ) V. ) Case No. F-2018-793 ) FILED THE STATE OF OKLAHOMA, ) IN COURT OF CRIMINAL APPEALS ) STATE OF OKLAHOMA Appellee. AUG 29 2019 SUMMARY OPINION JOHN D. HADDEN CLERK ROWLAND, JUDGE: Appellant Martin Ochoa Medina appeals his Judgment and Sentence from the District Court of Beckham County, Case No. CF- 2017-275, for Assault and Battery with a Deadly Weapon, After Former Conviction of a Felony in violation of 21 O.S.2011, § 652. The Honorable Doug Haught, District Judge, presided over Medina’s jury trial and sentenced him, in accordance with the jury’s verdict, to life imprisonment. 1 Medina raises a single issue on appeal: (1) whether he was denied a fair sentencing proceeding because of prosecutorial misconduct throughout the second stage of his bifurcated trial. 1 Under 21 O.S.Supp.2015, § 13.1, Medina must serve 85% of his sentence of imprisonment before he is eligible for parole consideration. We find relief is not required and affirm the Judgment and Sentence of the district court. 1. Medina contends he was denied a fair sentencing proceeding because of prosecutorial misconduct during the second stage of his bifurcated trial. He argues the prosecutor erroneously introduced details of his prior conviction and emphasized those details during closing argument, appealed to sympathy for the victim, and improperly commented on the possibility that he would commit future crimes. Because Medina failed to object, he has waived review of this claim for all but plain error. See Bivens v. State, 2018 OK CR 33, I 20, 431 P.3d 985, 994. He must show the commission of a plain or obvious error affected the outcome of his trial. Nicholson U. State, 2018 OK CR 10, I 9, 421 P.3d 890, 895. If he does so, this Court will correct plain error only where it seriously affected the fairness, integrity or public reputation of the proceedings. Id. This Court evaluates claims of prosecutorial error “within the context of the entire trial, considering not only the propriety of the prosecutor’s actions, but also the strength of the evidence against the defendant and the corresponding arguments 2 of defense counsel.” Lee v. State, 2018 OK CR 14, I 6, 422 P.3d 782, 785. We have long recognized that both parties enjoy a “wide latitude in closing argument to argue the evidence and reasonable inferences from it.” Lamar v. State, 2018 OK CR 8, I 54, 419 P.3d 283, 297. It will be the rare instance when a prosecutor’s misconduct during closing argument requires relief. Bramlett U. State, 2018 OK CR 19, I 36, 422 P.3d 788, 800. Nevertheless, this Court does not permit evidence or argument of the underlying details of a defendant’s prior conviction(s) or argument on the possibility that a defendant may commit future crime(s). See Brewer v. State, 1982 OK CR 128, I 8, 650 P.2d 54, 58; Baker v. State, 1967 OK CR 178, I 9, 432 P.2d 935, 938. The crime of which Medina had been previously convicted, by its name, informed the jury that Medina assaulted a police officer with a deadly weapon. The fact that the weapon was identified and that the offense was originally charged as attempted capital murder and amended to aggravated assault on a police officer were included on the documentation concerning the offense and prejudice, if any, was mitigated by the four year sentence imposed. That sentence showed that the conduct and circumstances of the underlying offense were not 3 all that dire. This simply is not a case where the witnesses or documents erroneously provided specific details of the underlying felony offense and we find Medina has not established the commission of an error, plain or otherwise. Furthermore, the prosecutor’s remark about Medina’s prior conviction, read in context, falls within the wide latitude of acceptable argument on the evidence. Medina’s claim that the prosecutor improperly invoked victim sympathy is likewise without merit. The challenged remark was based on the trial evidence and there was no commission of any error. Medina’s claim that the prosecutor improperly commented on the possibility that he would commit future crimes requires brief discussion. The prosecutor argued, “He’s done that before with a meat cleaver. Look at that. Think about the next person, the next person. Think about our community and the safety of our community.” “It is error to comment on the possibility that a defendant may commit crimes in the future.” Brewer, 1982 OK CR 128, 9 8, 650 P.2d at 58. The prosecutor’s exhortation to think about the next person and the next in fixing punishment in this case makes reference to a probability that Medina would commit future crimes if not given the maximum 4 sentence. The point was further made as the prosecutor went on to ask for life imprisonment SO “he can’t hurt anyone else for a long time.” Generally, a jury is free to consider the relevant proof of a prior conviction and both parties are afforded wide latitude to discuss the evidence and make sentence recommendations in the second stage of trial since the point of sentence enhancement is to take into account the defendant’s recidivism. See Terrell v. State, 2018 OK CR 22, IT 7, 425 P.3d 399, 401. The prosecutor’s remark in this case, however, crossed that line. “No criminal trial is perfect.” Powell U. State, 2000 OK CR 5, I 152, 995 P.2d 510, 539. From time to time, counsel, in the heat of argument, make remarks not justified by the evidence and which are, or may be, prejudicial to the accused. Id. Nevertheless, “a criminal conviction is not to be lightly overturned on the basis of a prosecutor’s comments standing alone, for the statements or conduct must be viewed in context; only by SO doing can it be determined whether the prosecutor’s conduct affected the fairness of the trial.” United States v. Young, 470 U.S. 1, 11, 105 S.Ct. 1038, 1044, 84 L.Ed.2d 1 (1985). 5 The record shows that Medina sealed his fate when he elected to testify in second stage, against the advice of counsel, and claim, after being found guilty, that he was not the perpetrator because he was in jail serving a sentence on another ticket. His disingenuous narrative showed he was a liar unwilling to take responsibility for his unprovoked criminal behavior against a defenseless teenager. Based on his conduct in this case and because he had perpetrated a potentially deadly assault in the past, the jury understandably found him dangerous, volatile, and deserving of the maximum punishment. Viewing the error in context, we cannot find on this record that the prosecutor’s isolated improper remark affected the overall fairness of Medina’s sentencing proceeding. Relief is not warranted and this claim is denied. DECISION The Judgment and Sentence of the district court is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019), the MANDATE is ORDERED issued upon delivery and filing of this decision. 6 AN APPEAL FROM THE DISTRICT COURT OF BECKHAM COUNTY THE HONORABLE DOUG HAUGHT, DISTRICT JUDGE APPEARANCES AT TRIAL APPEARANCES ON APPEAL RICHARD YOHN ROBERT W. JACKSON ATTORNEY AT LAW APPELLATE DEFENSE P.O. BOX 1494 COUNSEL CLINTON, OK 73601 P.O. BOX 926 COUNSEL FOR DEFENDANT NORMAN, OK 73070 COUNSEL FOR APPELLANT GINA WEBB MIKE HUNTER ASST. DISTRICT ATTORNEY ATTORNEY GENERAL BECKHAM COUNTY OF OKLAHOMA COURTHOUSE EMILY B. KOSMIDER SAYRE, OK 73662 ASST. ATTORNEY GENERAL COUNSEL FOR STATE 313 N.E. 21ST STREET OKLAHOMA CITY, OK 73105 COUNSEL FOR APPELLEE OPINION BY: ROWLAND, J. LEWIS, P.J.: Concur KUEHN, V.P.J.: Concur LUMPKIN, J.: Concur in Results HUDSON, J.: Concur in Part and Dissent in Part 7 HUDSON, J., CONCURRING IN PART/DISSENTING IN PART: I concur with the decision to deny relief and with much of the majority’s analysis of Appellant’s claims. I write separately, however, to dissent to the majority’s finding of plain error from the prosecutor’s sentencing phase comments concerning the possibility that Appellant would commit future crimes. The majority cites Brewer U. State, 1982 OK CR 128, 650 P.2d 54, for the proposition that “[i]t is error to comment on the possibility that a defendant may commit crimes in the future.” Id., 1982 OK CR 128, I 8, 650 P.2d at 58. Brewer, however, is inapposite. The prosecutor’s challenged argument in that case told the jury that, “if acquitted, the appellant would commit similar crimes in the future.” Id. No such error occurred in the present case. Indeed, the prosecutor’s comments here occurred during the sentencing phase of a bifurcated trial. The prosecutor in the challenged passage did nothing more than suggest, based upon the record evidence, that Appellant would commit more violent crimes if not sentenced to a substantial term of imprisonment. The prosecutor thus focused on Appellant’s body of work in urging the maximum punishment. The full context of the challenged remarks are as follows: Ladies and gentlemen, when you go back there and you assess and you decide between your – yourselves about what is the proper punishment for somebody that attacks [S.K.], a 14 year old, in our community, coming up for a high school reunion with his grandfather and was supposed to be a happy, fun time, and we have this person that attacks him and ruins that innocence. He’s done that before with a meat cleaver. Look at that. Think about the next person, the next person. Think about our community and the safety of our community. (Tr. 387) (emphasis added). We approved of this same type of argument in Fogle U. State, 1985 OK CR 50, 700 P.2d 208: During closing arguments in the second or punishment stage, the prosecutor twice referred to appellant as a “career criminal” and suggested that he would commit more crimes if not imprisoned. In Roberts U. State, 550 P.2d 971 (Okl.Cr.1976), we held that it was not error for the prosecution to label the defendant therein a “thief” during the second stage because the evidence warranted such a conclusion. While it is generally improper for the prosecution to argue former convictions in the first stage, Conway U. State, 581 P.2d 40 (Okl.Cr.1978), enhancement of punishment due to prior convictions is proper consideration in the second stage. The term “career criminal” was used by the prosecution in this case because appellant had prior convictions ranging back to 1972. This label and the suggestion that he may in the future commit 2 more crimes is not unfounded in the evidence. And appellant’s counsel failed to object to the remarks and waived error. Myers, supra. Id., 1985 OK CR 50, I 10, 700 P.2d at 211 (emphasis added). 1 The prosecutor’s comments in the present case do not amount to plain error under Fogle. The challenged comments here were similarly based on the record evidence and represented appropriate sentencing argument. The prosecutor made reasonable comments on the evidence and drew reasonable inferences therefrom in urging imposition of a life sentence. The prosecutor’s comments also do not violate the prohibition against so-called “societal alarm” arguments. The prosecutor did not “suggest[ ] that the jury should punish [Appellant] for larger societal problems or that the jury should ‘send a message’ to the broader public about the case.” Mathis V. State, 2012 OK CR 1, I 27, 271 1 Similarly, we denied relief for a prosecutor’s statement in sentencing stage closing argument that the defendant was “beyond the (pale), beyond the hope, beyond the reasonable expectations for any sort of reformation.” Richardson v. State, 1979 OK CR 100, I 19, 600 P.2d 361, 367. However, the appellant’s challenge to this comment was limited to arguing that the prosecutor’s statement constituted an impermissible reference to probation. We rejected that claim, finding that the prosecutor did not make such an unmistakable reference to the pardon and parole system as to warrant a finding of error. Id. 3 P.3d 67, 77. Instead, the prosecutor’s arguments “were based upon the specific facts before the jury regarding [Appellant.]” Id. The prosecutor’s sentencing argument appropriately focused on Appellant’s body of work, not unrelated themes based on deterrence, societal outrage to crime and the corresponding need to “send a message”. See Terrell U. State, 2018 OK CR 22, IT 4, 9, 425 P.3d 399, 400-01, 402 (prosecutor’s closing argument that defendant had been “given chance after chance after chance” in light of evidence showing multiple prior felony convictions and sentences, many of which involved suspended sentences and revocations, did not invoke societal alarm but was instead based on the record evidence); Mathis, 2012 OK CR 1, I 27, 271 P.3d at 77 (prosecutor’s argument that 39- year-old defendant was “a multiple time felon” for whom “this should be the last time that we see [him] in here” did not invoke societal alarm but instead was based on the specific facts before the jury regarding defendant). In my view, the majority is too quick to find error from evidence- based sentencing phase arguments relating to recidivism. “Statutes that punish recidivists more severely than first offenders have a long tradition in this country that dates back to colonial times.” Parke U. 4 Raley, 506 U.S. 20, 26, 113 S. Ct. 517, 521, 121 L. Ed. 2d 391 (1992). Recidivism “is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence.” Almendarez- Torres U. United States, 523 U.S. 224, 243, 118 S. Ct. 1219, 1230, 140 L. Ed. 2d 350 (1998). In Oklahoma, juries are authorized to recommend sentencing for noncapital crimes based upon the record evidence relating to the crime itself, any prior felony convictions offered by the State for enhancement purposes and the appropriate range of punishment. 21 O.S.Supp.2018, § 51.1; 22 O.S.2011, §§ 926.1, 928.1. See Nichols v. United States, 511 U.S. 738, 747-48, 114 S. Ct. 1921, 1928, 128 L. Ed. 2d 745 (1994). Fogle, a burglary case, authorized prosecutorial sentencing argument addressing a defendant’s potential for recidivism based upon evidence of his or her prior felony convictions and the underlying facts of the charged offense. I see no reason why this rule should not apply to violent noncapital offenses like the one charged in the present case. The State is “not required to downplay the violence involved or its repercussions” in the evidence it presents to a jury in proving a charged crime, Moore v. State, P.3d_, 2019 OK CR 12, I 28 (quoting Jones U. State, 2009 OK CR 1, I 57, 201 P.3d 5 869, 885), let alone the similarities if any between the present offense and a defendant’s prior convictions. See Terrell, 2018 OK CR 22, I 7, 425 P.3d at 401 (“Since the jury is free to consider the relevant proof of a prior conviction, both parties are afforded wide latitude to discuss this evidence and make recommendation as to punishment in the second stage of a trial.”). But that is precisely what today’s decision does. The record showed Appellant was previously convicted of a similarly violent offense-aggravated assault on a police officer-to the present crime. There can be no question that Appellant’s jury took note of this fact in its sentencing deliberations and that it would be unusual to silence a prosecutor’s sentencing argument on this obvious point. See id. The violent nature of Appellant’s prior felony conviction, combined with his unprovoked act of stabbing the 14-year-old victim in the present case, ensured that the jury would confront head-on the possibility of recidivism, and by necessity Appellant’s future dangerousness to the community, in recommending sentence. I see no reason whatsoever why the prosecutor should not have been allowed to comment on same in arguing for a life sentence. 6 The prosecutor here did not “cross a line” as the majority’s decision confidently proclaims. Rather, the majority has simply moved the line demarcating the bounds of proper argument to label as error previously permissible sentencing argument concerning recidivism. For these reasons, I concur in part and dissent in part to today’s decision. 7

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