Tamara Marine Davis v The State Of Oklahoma

F-2005-1193

Filed: Mar. 27, 2007

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Tamara Marine Davis appealed her conviction for Accessory to Felony Murder in the First Degree. Her conviction and sentence were originally set at forty (40) years imprisonment. However, after reviewing the case, the court modified her sentence to twenty-five (25) years. Judge Lumpkin disagreed with changing the sentence and thought it should stay as decided by the jury.

Decision

The Judgment of the District Court is AFFIRMED. The Sentence of the District Court is MODIFIED to twenty-five (25) years imprisonment. The Motion for Evidentiary Hearing is DENIED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2007), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there sufficient evidence to prove accessory after the fact to felony murder?
• Did the admission of information about probation and parole improperly inflame the jury?
• Did prosecutorial misconduct deprive Davis of a fair trial?
• Was Davis deprived of effective assistance of counsel?
• Did the trial court commit reversible and prejudicial error by allowing irrelevant and prejudicial evidence to be introduced?
• Was the sentence imposed on Davis excessive?
• Did cumulative error deprive Davis of a fair trial?

Findings

• the evidence was sufficient to support the conviction for Accessory to Felony Murder
• the admission of information about probation and parole was not reversible error
• there was no prosecutorial misconduct that deprived Davis of a fair trial
• trial counsel was not ineffective
• the introduction of irrelevant evidence was not plain error
• the sentence was excessive and modified to twenty-five (25) years imprisonment
• there was no cumulative error

F-2005-1193

Mar. 27, 2007

Tamara Marine Davis

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

CHAPEL, JUDGE: Tamara Marine Davis was tried by jury and convicted of Accessory to Felony Murder in the First Degree in violation of 21 O.S.2001, § 173, in the District Court of Logan County, Case No. CF-2002-167. In accordance with the jury’s recommendation, the Honorable Donald L. Worthington sentenced Davis to forty (40) years imprisonment. Davis appeals from this conviction and sentence. Davis raises seven propositions of error in support of her appeal:

I. THE EVIDENCE WAS INSUFFICIENT TO PROVE ACCESSORY AFTER THE FACT TO FELONY MURDER
II. THE ADMISSION OF INFORMATION ABOUT PROBATION AND PAROLE WAS IMPROPER AND CAUSED THE JURY TO BE INFLAMED
III. PROSECUTORIAL MISCONDUCT DEPRIVED DAVIS OF A FAIR TRIAL
IV. DAVIS WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL
V. THE TRIAL COURT COMMITTED REVERSIBLE AND PREJUDICIAL ERROR BY ALLOWING THE STATE TO INTRODUCE IRRELEVANT AND PREJUDICIAL EVIDENCE WHICH HAD NOTHING TO DO WITH THE OFFENSE IN QUESTION, IN VIOLATION OF DAVIS’S CONSTITUTIONAL RIGHTS
VI. THE SENTENCE WAS EXCESSIVE
VII. CUMULATIVE ERROR DEPRIVED DAVIS OF A FAIR TRIAL

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, exhibits and briefs, we find that the law and evidence require modification of Davis’s sentence.

We find in Proposition I that any rational trier of fact could find beyond a reasonable doubt that Davis knew the victim was dead when she helped her husband dispose of the victim’s car and belongings, lied about his movements to law enforcement officers, and helped him flee the state.

We find in Proposition II that although jurors should not hear information about pardon and parole, Davis elicited that testimony in order to show the witness’s bias, and we will not reverse the case on appeal as a result of Davis’s decision.

We find in Proposition III that there was no plain error in the prosecutor’s questioning regarding Davis’s pre-arrest decision to hire an attorney, made in response to extensive testimony by a defense witness about that decision; the prosecutor’s questioning regarding the paternity of Davis’s son was irrelevant but not prejudicial, and does not require relief; the prosecutor did not err in accurately stating that the evidence showed Davis failed to present counseling records to the jury; there was no plain error in the prosecutor’s request that jurors refrain from having sympathy for either the defendant or the victim’s family; the prosecutor’s isolated misstatement of evidence in closing argument was cured by the trial court’s admonitions to the jury.

We find in Proposition IV that trial counsel was not ineffective; Davis cannot show she was prejudiced by counsel’s failure to present particular evidence, as none of the evidence would have supported her defense of duress. Davis’s Motion for Evidentiary Hearing on this issue is denied.

We find in Proposition V that, as Davis was not prejudiced by the testimony, there was no plain error in the introduction of irrelevant evidence of the paternity of her daughter. Given the evidence against her, the revelation that she may have had a child with someone other than her incarcerated husband was unlikely to sway the jury.

We find in Proposition VI that Davis’s sentence is excessive.

We find in Proposition VII that there is no cumulative error.

Decision

The Judgment of the District Court is AFFIRMED. The Sentence of the District Court is MODIFIED to twenty-five (25) years imprisonment. The Motion for Evidentiary Hearing is DENIED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2007), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

ATTORNEYS AT TRIAL
FRANK COURBOIS
120 N. ROBINSON
29TH FLOOR
OKLAHOMA CITY, OKLAHOMA 73102
ATTORNEY FOR DEFENDANT

LORI HINES
W.A. DREW EDMONDSON
ASSISTANT DISTRICT ATTORNEY
LOGAN COUNTY COURTHOUSE
GUTHRIE, OKLAHOMA 73044
ATTORNEY FOR STATE

OPINION BY: CHAPEL, J.

LUMPKIN, P.J.: CONCUR IN PART/DISSENT IN PART
C. JOHNSON, V.P.J.: CONCUR
A. JOHNSON, J.: CONCUR IN RESULTS
LEWIS, J.: CONCUR

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Footnotes:

1. 21 O.S.2001, § 173
2. Mayes v. State, 1994 OK CR 44, 887 P.2d 1288, 1316
3. Livingston v. State, 1995 OK CR 68, 907 P.2d 1088, 1093
4. Lynch v. State, 1995 OK CR 65, 909 P.2d 800, 802
5. Doyle v. Ohio, 426 U.S. 610, 617, 96 S.Ct. 2240, 2244, 49 L.Ed.2d 91 (1976)
6. Jenkins v. Anderson, 447 U.S. 231, 238, 100 S.Ct. 2124, 2134, 65 L.Ed.2d 86 (1980)
7. Farley v. State, 1986 OK CR 42, 717 P.2d 111, 112-113
8. 12 O.S.2001, § 2401
9. 20 O.S.2001, § 3001.1
10. Williams v. Taylor, 529 U.S. 362, 393, 120 S.Ct. 1495, 1513, 146 L.Ed.2d 389 (2000)
11. Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984)
12. Hooks v. State, 2001 OK CR 1, 19 P.3d 294, 317
13. 21 O.S.2001, § 156
14. Hawkins v. State, 2002 OK CR 12, 46 P.3d 139, 145-46
15. Shelton v. State, 1990 OK CR 34, 793 P.2d 866, 877
16. Tully v. State, 1986 OK CR 185, 730 P.2d 1206, 1209
17. Rea v. State, 2001 OK CR 28, 34 P.3d 148, 149
18. Alverson v. State, 1999 OK CR 21, 983 P.2d 498, 520

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 173 (2001) - Accessory to Felony Murder
• Okla. Stat. tit. 12 § 2401 (2001) - General Admissibility of Relevant Evidence
• Okla. Stat. tit. 20 § 3001.1 (2001) - Evidence of Paternity
• Okla. Stat. tit. 21 § 156 (2001) - Duress

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

• 426 U.S. § 610 - Doyle v. Ohio
• 447 U.S. § 231 - Jenkins v. Anderson
• 529 U.S. § 362 - Williams v. Taylor
• 466 U.S. § 668 - Strickland v. Washington

Other citations:

No other rule citations found.

Case citations:

• Dodd v. State, 2004 OK CR 31, 100 P.3d 1017, 1041-42
• Wilson v. State, 1976 OK CR 167, 552 P.2d 1404, 1406
• Mayes v. State, 1994 OK CR 44, 887 P.2d 1288, 1316
• Livingston v. State, 1995 OK CR 68, 907 P.2d 1088, 1093
• Lynch v. State, 1995 OK CR 65, 909 P.2d 800, 802
• Doyle v. Ohio, 426 U.S. 610, 617, 96 S.Ct. 2240, 2244, 49 L.Ed.2d 91 (1976)
• Jenkins v. Anderson, 447 U.S. 231, 238, 100 S.Ct. 2124, 2134, 65 L.Ed.2d 86 (1980)
• Farley v. State, 1986 OK CR 42, 717 P.2d 111, 112-113
• Browning v. State, 2006 OK CR 8, 134 P.3d 816, 839
• Williams v. Taylor, 529 U.S. 362, 393, 120 S.Ct. 1495, 1513, 146 L.Ed.2d 389 (2000)
• Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984)
• Hooks v. State, 2001 OK CR 1, 19 P.3d 294, 317
• Hawkins v. State, 2002 OK CR 12, 46 P.3d 139, 145-46
• Shelton v. State, 1990 OK CR 34, 793 P.2d 866, 877
• Tully v. State, 1986 OK CR 185, 730 P.2d 1206, 1209
• Rea v. State, 2001 OK CR 28, 34 P.3d 148, 149
• Alverson v. State, 1999 OK CR 21, 983 P.2d 498, 520