Marvin Royston White v State Of Oklahoma

F-2005-110

Filed: May 11, 2007

Not for publication

Prevailing Party: Marvin Royston White

Summary

Marvin Royston White appealed his conviction for three counts of first-degree manslaughter due to a DUI crash that killed three people. His conviction resulted in a sentence of sixty years in prison (20 years for each count). Two judges dissented in the decision. The case involved White driving after consuming some cough syrup that unknowingly contained alcohol, leading to a blood alcohol level that indicated he was driving under the influence. White argued that his attorney did not properly defend him, especially by failing to request a jury instruction on the defense of involuntary intoxication, meaning he did not knowingly consume alcohol. The court decided that he deserved a new trial because the jury was not given the chance to consider his claims, which could have changed the outcome.

Decision

White's conviction is REVERSED and the case REMANDED for new trial. White's application for evidentiary hearing is DENIED as moot. Under Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18 App. (2005), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Issues

• Was there ineffective assistance of counsel for failing to request a jury instruction on the defense of involuntary intoxication?
• Did the trial court fail to instruct the jury sua sponte on the defense of involuntary intoxication?
• Was the result of the blood alcohol test blood draw subject to suppression?
• Did the trial court err by denying a jury instruction on lack of seatbelt use by victims?
• Did the trial court err by failing to instruct the jury that the evidence had to exclude every reasonable hypothesis except that of guilt?
• Did the trial court err by allowing the introduction of gruesome and cumulative photographs of victims?
• Were three consecutive twenty-year sentences excessive?
• Did cumulative error deprive the appellant of a fair trial?

Findings

• the court erred in failing to instruct the jury on the defense of involuntary intoxication
• the remaining claims of trial and sentencing error are moot and will not be addressed
• the ineffective assistance of trial counsel claims are rendered moot by the decision
• the application for an evidentiary hearing is denied as moot
• the conviction is reversed and the case is remanded for a new trial

F-2005-110

May 11, 2007

Marvin Royston White

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

A. JOHNSON, JUDGE: Marvin Royston White was tried by jury and found guilty on three counts of first degree manslaughter (misdemeanor DUI) in violation of 21 O.S.2001 § 711, in Case No. CF-2003-433, in the District Court of Grady County. The jury set punishment at twenty years on each count (O.R. 229-230). Associate District Judge John E. Herndon sentenced White in accordance with the jury’s verdict and ordered each sentence to run consecutively for a total term of imprisonment of sixty years. White appeals this judgment and sentence raising fourteen propositions of error. These fourteen propositions include seven claims of ineffective assistance of trial counsel, five claims of trial error, one claim of sentencing error, and one claim of cumulative error. White’s specific claims consist of the following.

Ineffective Assistance of Counsel

1. Trial counsel was ineffective for failing to request a jury instruction on the defense of involuntary intoxication.
2. Trial counsel was ineffective because his strategy was nothing more than concession of guilt.
3. Trial counsel was ineffective for failing to conduct a meaningful cross-examination of expert witnesses.
4. Trial counsel was ineffective for violating attorney-client privilege by disclosing blood alcohol test results obtained through independent testing conducted by defense retained expert and by failing to conduct meaningful cross-examination of its own expert when that expert was called as witness by State.
5. Trial counsel was ineffective for failing to argue that suppression of blood alcohol test result was warranted because it was drawn more than two hours after fatal crash.
6. Trial counsel was ineffective for failing to object to irrelevant and prejudicial other crimes evidence while simultaneously failing to present good character evidence.
7. Trial counsel was ineffective for failing to poll the jury or move for mistrial after in-court outbursts by victims’ family or after banner incident outside courthouse.

Trial Error

8. The trial court failed to instruct the jury sua sponte on defense of involuntary intoxication.
9. The result of the blood alcohol test blood draw should have been suppressed.
10. The trial court erred by denying a jury instruction on lack of seatbelt use by victims.
11. The trial court erred by failing to instruct the jury that the evidence had to exclude every reasonable hypothesis except that of guilt.
12. The trial court erred by allowing introduction of gruesome and cumulative photographs of victims.

Sentencing Error

13. Three consecutive twenty year sentences are excessive.

Other

14. Cumulative error deprived him of a fair trial.

In connection with his ineffective assistance of counsel claims, White seeks a remand for an evidentiary hearing under Rule 3.11, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2001). After considering the arguments of counsel and the record of the proceedings below on the issue of the involuntary intoxication defense, we find that White’s convictions must be reversed and the case remanded for a new trial. Because we reverse and remand for retrial on the involuntary intoxication claim, White’s remaining claims of trial and sentencing error are moot, and will not be addressed. White’s claims of ineffective assistance of trial counsel are also rendered moot by this decision. For that reason his Rule 3.11 application for an evidentiary hearing is denied.

FACTS

White was the driver of a vehicle involved in a collision that caused the deaths of three people near Tuttle, Oklahoma on Sunday November 23, 2003. At the time of the collision, White was driving home from a weekend hunting trip. The results of blood alcohol tests showed White’s blood alcohol level to be between 0.08% and 0.09%. At trial, there was conflicting witness testimony as to whether White smelled of alcohol after the crash. The State introduced evidence that in the two days prior to the fatal crash, White had consumed approximately six cans of 3.2% beer. White testified that while he had consumed three to four beers the afternoon of the day before the crash, and a dose of Equate Nite Time cold medicine that night, the only alcohol he ingested on the day of the crash consisted of cough syrup that he did not know at the time contained alcohol. White also introduced evidence that he suffered from a medical condition called sleep apnea that caused him difficulty in staying awake while driving. White denied driving under the influence of alcohol at the time of the crash and asserted instead that he must have fallen asleep at the wheel. White explained he had not slept much during the two day trip and explained further that sleep apnea had caused him to fall asleep while driving on other occasions. As part of his defense, White offered the testimony of Dr. Mark Gilchrist, the physician who treated him for sleep apnea. Dr. Gilchrist testified that White had suffered from severe sleep apnea since at least 1994 and during a sleep study in 2002, had complained of drowsiness while driving. Dr. Gilchrist explained that the sleep deprivation caused by sleep apnea and its resulting daytime drowsiness poses a hazard to driving. He also stated that he advises his sleep apnea patients not to drive or operate heavy machinery. Dr. Gilchrist explained further that alcohol, even in moderate levels, increases the severity of sleep apnea, and for that reason, persons with sleep apnea should not use alcohol.

DISCUSSION

A. Standard of Review

White contends that the trial court judge erred by not instructing the jury sua sponte on the defense of involuntary intoxication. This Court normally reviews a trial court’s choice of jury instructions for an abuse of discretion. In this instance, however, White neither requested the instruction nor objected to its absence. His claim, therefore, is reviewed only for plain error. To establish plain error, an appellant must show: (1) the existence of an actual error (i.e., injury to a substantial right resulting from deviation from a legal rule); and (2) harm or prejudice flowing from the error. Plain error does not rise to the level of reversible error, however, unless the appellant further demonstrates that the error had a substantial influence on the outcome of the proceeding.

B. Analysis

(1) Error

A defendant is entitled to an instruction on any theory of the defense supported by the evidence as long as that theory is tenable as a matter of law. A jury instruction on a defense should be given when sufficient prima facie evidence is presented to meet the legal criteria for the defense. Here, the State introduced evidence of intoxication (i.e., blood alcohol test results of .08% and .09%, as well as some testimony that White smelled of alcohol at the crash scene). There was no evidence, however, that on the day of the crash White had consumed any alcohol other than that in over-the-counter cough/cold medications. White’s defense was that he was susceptible to falling asleep while driving because he suffered from severe sleep apnea, a condition made worse by even moderate amounts of alcohol.

Given that the evidence presented is at least prima facie evidence supporting the involuntary intoxication defense, White was therefore entitled to an instruction on involuntary intoxication.

(2) Violation of a Substantial Right

An error is reversible as plain error if it goes to the foundation of the case or deprives a defendant of a right essential to his case. A trial court’s failure to instruct on the defendant’s theory of the case deprives him of a valuable right because it cannot be said that a fair and impartial trial has been had unless the jury is properly instructed as to the law of the case.

In this instance, White was charged with the offense of first degree misdemeanor manslaughter with the underlying misdemeanor being driving a motor vehicle under the influence of alcohol. The jury was instructed on the element of driving under the influence but was not given the option to find that White’s condition was excusable based on the evidence. Therefore, the trial court was duty-bound to instruct the jury on the defense of involuntary intoxication.

This is a violation of a substantial right and is therefore plain error.

(3) Prejudice or Harm

Despite finding plain error, this Court will reverse only if the error had a substantial influence on the outcome or leaves the Court in grave doubt as to whether the error had such effect. Given the conflicting testimony on the smell of alcohol and the evidence introduced, this case cannot be concluded as overwhelmingly guilty. Thus, if the jury had been instructed on White’s involuntary intoxication theory, it could have concluded that the conduct was excusable and thereby found him not guilty.

Because a properly instructed jury could have reached a verdict of acquittal regardless of the weight of the evidence of guilty conduct, the trial court’s failure to instruct the jury on the defense of involuntary intoxication was not harmless. This is reversible plain error.

DECISION

White’s conviction is REVERSED and the case REMANDED for new trial. White’s application for evidentiary hearing is DENIED as moot.

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Footnotes:

1. White suffered from a medical condition called sleep apnea¹ that caused him difficulty in staying awake while driving.
2. Sleep apnea is defined by one medical reference source as "brief periods of recurrent cessation of breathing during sleep that is caused by obstruction of the airway or a disturbance in the brain's respiratory center and is associated especially with excessive daytime sleepiness." Medline Plus Medical Dictionary,http://www.nlm.nih.gov/medlineplus/mplusdictionary.htn at ww2.merriam-webster.com/cgi-bin/mwmednlm?book=Medical&va=sleep%20apnea (last visited March 7, 2007).
3. See, Jackson v. State, 1998 OK CR 39, I 5 65, 964 P.2d 875, 892 (per curiam)("[w]hen sufficient prima facie evidence is presented which meets the legal criteria for the defense of voluntary intoxication, or any other defense, an instruction should be given.
4. Committee Comments, OUJI- CR 2nd (2006) 8-44 (citing Wooldridge v. State, 1990 OK CR 77, I 20, 801 P.2d 729, 734; Grayson v. State, 1984 OK CR 87, I 7, 687 P.2d 747, 749).
5. White's application for evidentiary hearing is DENIED as moot.
6. Jones v. State, 1982 OK CR 112, I 33, 648 P.2d 1251, 1258.
7. See also Patton v. State, 1998 OK CR 66, I 56, 973 P.2d 270, 290.
8. As the Committee comments to OUJI-CR(2d) 4-94 states, "the misdemeanor-manslaughter rule, like the felony-murder rule, requires no particular mental state on the part of the defendant except that which is required for conviction of the underlying misdemeanor".

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 711 - First Degree Manslaughter
• Okla. Stat. tit. 22 § 3.11 - Evidentiary Hearing
• Okla. Stat. tit. 21 § 701.8 - Involuntary Intoxication Defense
• Okla. Stat. tit. 22 § 3.15 - Mandate
• Okla. Stat. tit. 21 § 701.7 - Criminal Intent

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:

• Cipriano v. State, 2001 OK CR 25, 14, 32 P.3d 869, 873
• Hogan v. State, 2006 OK CR 19, 1 38, 139 P.3d 907, 923
• Simpson v. State, 1994 OK CR 40, 11 10, 17, 876 P.2d 690, 694, 697
• Jackson v. State, 1998 OK CR 39, I 5 65, 964 P.2d 875, 892
• Holt v. State, 1995 OK CR 2, I 12, 278 P.2d 855, 857
• Wooldridge v. State, 1990 OK CR 77, I 20, 801 P.2d 729, 734
• Grayson v. State, 1984 OK CR 87, I 7, 687 P.2d 747, 749
• Atterberry v. State, 1986 OK CR 186, I 8, 731 P.2d 420, 422
• Snyder v. State, 1987 OK CR 121, I 7, 738 P.2d 548, 550
• Williams v. State, 1976 OK CR 225, I 16, 554 P.2d 842, 847
• Crossett v. State, 252 P.2d 150, 164, 96 Okla. Crim.App. 209, 222 (1952)
• Cummings v. State, 1998 OK CR 45, I 24, 968 P.2d 821, 831
• Wade v. State, 1981 OK CR 14, I 12, 624 P.2d 86, 90
• Fowler v. State, 1989 OK CR 52, II 37, 779 P.2d 580, 587
• Jones v. State, 1982 OK CR 112, I 33, 648 P.2d 1251, 1258
• Patton v. State, 1998 OK CR 66, I 56, 973 P.2d 270, 290