Gary Lynn Phillips v The State Of Oklahoma

F-2005-529

Filed: Dec. 18, 2006

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Gary Lynn Phillips appealed his conviction for First Degree Manslaughter and Leaving the Scene of a Fatality Accident. His conviction and sentence included 50 years for Manslaughter and 5 years for Leaving the Scene, which would be served one after the other. Judge Lumpkin dissented on some points. The Court reviewed various arguments from Phillips, but they found that the evidence was enough to support his conviction, and his lawyers did not make serious mistakes that would affect the trial's outcome. They also decided that the comments made during the trial did not unfairly influence the jury, although there were minor issues related to sympathy for the victim. In the end, the Court upheld the convictions but changed the sentence for Manslaughter to 30 years, allowing it to be served at the same time as the other sentence.

Decision

The convictions under Count I and II are hereby AFFIRMED, as is the sentence for Count II. The sentence for Count I, however, is hereby MODIFIED to thirty (30) years, to be served concurrently with the sentence on Count I. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2005), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was the evidence sufficient to support Appellant's conviction for Count I, thereby upholding the Due Process Clause of the federal and state constitutions?
• Did Appellant receive ineffective assistance of trial counsel?
• Did prosecutorial misconduct deny Appellant a fair trial in violation of the federal and state constitutions?
• Was Appellant's sentence excessive?
• Did cumulative errors deny Appellant a fair trial in violation of the federal and state constitutions?

Findings

• the evidence was sufficient to support Appellant's conviction for Count I
• Appellant received effective assistance of trial counsel
• the trial court did not abuse its discretion regarding the motion for mistrial
• the sentence for Count I was excessive and is modified to thirty (30) years
• Proposition five is rendered moot by the relief granted

F-2005-529

Dec. 18, 2006

Gary Lynn Phillips

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, VICE-PRESIDING JUDGE:

Appellant, Gary Lynn Phillips, was tried by jury in the District Court of Comanche County, Case Number F-2004-312, and convicted of First Degree Manslaughter (Count I), in violation of 21 O.S.2001, § 711, and Leaving the Scene of a Fatality Accident (Count II), in violation of 47 O.S.2001, § 10-102.1. The jury set punishment at fifty (50) years imprisonment on Count I and five (5) years imprisonment on Count II. The trial judge sentenced Appellant in accordance with the jury’s determination and ordered the sentences to run consecutively. Appellant now appeals these convictions and sentences.

Appellant raises the following propositions of error in this appeal:

I. The evidence was insufficient to support Appellant’s conviction for Count I and his conviction thus violates the Due Process Clause of the federal and state constitutions;

II. Appellant received ineffective assistance of trial counsel;

III. Prosecutorial misconduct denied Appellant a fair trial in violation of the federal and state constitutions;

IV. Appellant received an excessive sentence; and

V. Cumulative errors denied Appellant a fair trial in violation of the federal and state constitutions.

After thoroughly reviewing these propositions and the entire record before us, including the original record, transcripts, and briefs of the parties, we find reversal is not required, but modify the sentence.

With respect to proposition one, we find, after viewing the evidence in the light most favorable to the State and accepting all reasonable inferences and credibility choices that tend to support the jury’s verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-204.

With respect to proposition two, we find Appellant has failed to show errors by counsel that were so serious as to deprive him of a fair trial, one with a reliable result. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Lewis U. State, 1998 OK CR 24, I 19, 970 P.2d 1158, 1166; 12 O.S.Supp.2004, § 2803(4).

With respect to proposition three, we find the trial court did not abuse its discretion in overruling the motion for mistrial, as there was no clear violation of the right to remain silent. Short U. State, 1999 OK CR 15, I 78, 980 P.2d 1081, 1105. As to the sympathy-invoking comment, we find no plain error. Simpson V. State, 1994 OK CR 40, I 2, 876 P.2d 690, 693. Overall, however, the comments in this proposition had little or no relevance and may have impacted sentencing.

With respect to proposition four, we find, after considering the record as a whole—including the nature of the crime, Appellant’s health, the arguments about remorse, the victim sympathy comment, the applicability of the 85% rule, the teachings of Anderson v. State, 2006 OK CR 6, 130 P.3d 273, and the jury’s notes—that the sentence on Count I is excessive. We thus modify, as below. Proposition five is rendered moot by the relief granted herein.

DECISION

The convictions under Count I and II are hereby AFFIRMED, as is the sentence for Count II. The sentence for Count I, however, is hereby MODIFIED to thirty (30) years, to be served concurrently with the sentence on Count I. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2005), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

AN APPEAL FROM THE DISTRICT COURT OF COMANCHE COUNTY
THE HONORABLE KEITH B. AYCOCK, DISTRICT JUDGE

APPEARANCES AT TRIAL

JAMES W. BERRY & DON HERRING
P.O. BOX 21803
OKLAHOMA CITY, OK 73156
COUNSEL FOR APPELLANT

APPEARANCES ON APPEAL

BILL ZUHDI
P.O. BOX 1077
OKLAHOMA CITY, OK 73101
COUNSEL FOR APPELLANT

WILLIAM C. RILEY
ASSISTANT DISTRICT ATTORNEY
COMANCHE COUNTY COURTHOUSE
300 SOUTHWEST 5TH STREET
LAWTON, OK 73501
COUNSEL FOR THE STATE

W.A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA
KEELEY L. HARRIS
ASSISTANT ATTORNEY GENERAL
112 STATE CAPITOL BUILDING
OKLAHOMA CITY, OK 73105
COUNSEL FOR THE STATE

OPINION BY: LUMPKIN, V.P.J.

CHAPEL, P.J.: CONCUR

C. JOHNSON, J.: CONCUR

A. JOHNSON, J.: CONCUR

LEWIS, J.: CONCUR

RB 1 I continue to interpret the language of Anderson v. State as being prospective only. However, I accede to the actions by the Court pursuant to stare decisis.

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Footnotes:

1. 21 O.S.2001, § 711
2. 47 O.S.2001, § 10-102.1
3. 12 O.S.Supp.2004, § 2803(4)
4. Anderson v. State, 2006 OK CR 6, 130 P.3d 273
5. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)
6. Lewis v. State, 1998 OK CR 24, I 19, 970 P.2d 1158, 1166
7. Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-204
8. Short v. State, 1999 OK CR 15, I 78, 980 P.2d 1081, 1105
9. Simpson v. State, 1994 OK CR 40, I 2, 876 P.2d 690, 693

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 711 - First Degree Manslaughter
• Okla. Stat. tit. 47 § 10-102.1 - Leaving the Scene of a Fatality Accident
• Okla. Stat. tit. 12 § 2803(4) - Hearsay Exceptions
• Okla. Stat. tit. 21 § 701.8 - Sentencing for Manslaughter
• Okla. Stat. tit. 22 § 3.15 - Oklahoma Court of Criminal Appeals Rules

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:

• Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-204
• Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)
• Lewis v. State, 1998 OK CR 24, I 19, 970 P.2d 1158, 1166
• Short v. State, 1999 OK CR 15, I 78, 980 P.2d 1081, 1105
• Simpson v. State, 1994 OK CR 40, I 2, 876 P.2d 690, 693
• Anderson v. State, 2006 OK CR 6, 130 P.3d 273