Christopher Ray Murphy v The State Of Oklahoma

F 2003-1163

Filed: Dec. 28, 2004

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Christopher Ray Murphy appealed his conviction for four counts of Indecent or Lewd Acts with a Child under Sixteen. His conviction and sentence were for 25 years in prison for Counts one, two, and three, and 60 years for Count four, with the sentences running consecutively. Judge Lile and other judges affirmed the conviction but ordered the sentences to run concurrently. Judge Johnson, Judge Lumpkin, and Judge Chapel agreed with the results.

Decision

The Judgment and Sentence of the trial court is MODIFIED to reflect that the sentences shall be served concurrently.

Issues

• whether the trial court abused its discretion by excluding the testimony and evidence of Appellant's psychology expert
• whether Appellant's motion to suppress evidence from the videotaped interview should have been sustained due to a Fifth Amendment violation
• whether Appellant's counsel was precluded from questioning key witnesses on issues regarding bias and untruthfulness
• whether the trial judge's admonishment of Appellant's counsel in front of the jury was improper and prejudicial
• whether the testimony of detective Larson regarding Appellant's silence in the videotaped interview violated his Fifth Amendment rights
• whether prosecutorial misconduct contaminated the result of the trial
• whether the sentences imposed by the trial judge were excessive and unwarranted
• whether the cumulative effect of the errors deprived Appellant of a fair trial

Findings

• the court did not err in excluding expert testimony regarding Appellant's propensity to commit the charged crimes
• the motion to suppress evidence from the videotaped interview was properly denied
• any error in excluding evidence regarding witness bias was waived due to insufficient offer of proof
• the trial judge's admonishment of trial counsel did not prejudice the jury against Appellant
• testimony regarding Appellant's lack of denials in the interview did not violate his Fifth Amendment rights
• any prosecutorial misconduct was cured by the trial court's actions
• the consecutive nature of the sentences was excessive; sentences modified to run concurrently
• the cumulative effect of errors was remedied by the concurrent running of sentences

F 2003-1163

Dec. 28, 2004

Christopher Ray Murphy

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LILE, VICE PRESIDING JUDGE: Appellant, Christopher Ray Murphy, was convicted of four counts of Indecent or Lewd Acts with a Child under Sixteen in violation of 21 O.S.Supp. 1999, § 1123 and 21 O.S.Supp. 2000, § 1123, all after former conviction of one felony, in the District Court of Oklahoma County, Case No. CF-2001-717, before the Honorable Susan Caswell, District Judge. Judge Caswell sentenced Appellant to twenty-five (25) years imprisonment on Counts one, two, and three, and sixty (60) years imprisonment on Count four, in accordance with the jury verdict. The sentences were ordered to run consecutively. Appellant has perfected his appeal to this Court.

Appellant raises the following propositions on appeal:

1. The trial court abused its discretion by excluding the testimony and evidence of Mr. Murphy’s psychology expert that Mr. Murphy had no profile of propensity to commit the crimes with which the state charged him.
2. Appellant’s motion to suppress evidence from the videotaped interview of Mr. Murphy by officer Larson should have been sustained due to the clear Fifth Amendment violation under federal and Oklahoma bright-line precedents.
3. Appellant’s counsel was erroneously precluded from questioning key witnesses on issues regarding two separate events that would show bias and untruthfulness in implicating Appellant as having perpetrated child sexual abuse.
4. The trial judge summoned counsel for Appellant to the bench and admonished him severely in the presence and within the hearing of the jury for inquiring about A.M.’s boy friend, so that it was clear that counsel was being reprimanded; this was improper and so prejudicial to Appellant that his trial was unfair.
5. The testimony of detective Larson as to the lack of denials by Mr. Murphy in his videotaped interview was an impermissible violation of Appellant’s Fifth Amendment right to remain silent, imputing guilt to that silence, resulting in clear and preserved error.
6. A pattern of prosecutorial misconduct contaminated the result of the trial, warranting reversal for a fair trial.
7. The three sentences of 25 years and the sentence of 60 years were excessive, and rendered extreme and unwarranted by the trial judge’s decision to run the sentences consecutively.
8. The cumulative effect of all the errors addressed above deprived Mr. Murphy of a fair trial.

After thorough consideration of the entire record before us on appeal including the original record, transcripts, briefs, and exhibits of the parties, we have determined that Appellant’s convictions should be AFFIRMED; however, the sentences shall be MODIFIED to run concurrently.

In reaching our decision, we find, in proposition one that the trial court did not abuse its discretion when it prevented Appellant’s expert witness from testifying regarding his opinion of Appellant’s predilection toward pedophilia. This evidence was unnecessary for the jury to determine a fact in issue. See 12 O.S.2001, § 2702; Abshier v. State, 2001 OK CR 13, 119, 28 P.3d 579, 604. In proposition two, we find that Appellant’s request for counsel was ambiguous and equivocal; therefore, the officer was not required to cease questioning. Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 2355, 129 L.Ed.2d 362 (1994); Stemple v. State, 2000 OK CR 4, 36, 994 P.2d. 61, 69. In proposition three, we find that trial counsel failed to sufficiently provide an offer of proof at trial as to what the excluded evidence would have been; therefore, error was waived. 12 O.S. 1991 § 2104(A)(2); Vanscoy v. State, 1987 OK CR 50, 734 P.2d 825, 828; Lopez v. State, 1986 OK CR 63, 718 P.2d 369, 372. We find, in proposition four, that the trial record does not support the allegations that the jury was aware of or was prejudiced by trial counsel’s chastisement of Appellant’s trial attorney. In proposition five, we find that the questions and comments of the prosecutor were proper. Romano v. State, 1995 OK CR 74, 14, 909 P.2d 92, 108. We find, in proposition six, that any error in the questions by the prosecutor were cured by the trial court’s actions in sustaining objections and/or issuing admonishments. Welsh v. State, 2000 OK CR 8, 26, 2 P.3d 256, 369-70; Shepard v. State, 1988 OK CR 97, 7, 756 P.2d 597, 599-600. In proposition seven, we find that the sentences were within the range prescribed by the legislature; however, we find that the running of the sentences consecutively is excessive; therefore, the sentences shall be amended to run concurrently. See Rae v. State, 2001 OK CR 28, 5, 34 P.3d 148, 149. Finally, with regard to proposition eight, we find that running the sentences concurrently cures any cumulative error. Gilson v. State, 2002 OK CR 14, 177, 8 P.3d 883, 929.

DECISION

The Judgment and Sentence of the trial court is MODIFIED to reflect that the sentences shall be served concurrently.

APPEARANCES AT TRIAL
APPEARANCES ON APPEAL
ROBERT A. MANCHESTER, III
ROBERT A. MANCHESTER, III
1136 NORTH ROBINSON
1136 NORTH ROBINSON
OKLAHOMA CITY, OK 73103
OKLAHOMA CITY, OK 73103
ATTORNEY FOR DEFENDANT
ATTORNEY FOR APPELLANT
JAMES SIDERIAS
W. A. DREW EDMONDSON
PATTYE HIGH
OKLAHOMA
ATTORNEY GENERAL
ASSISTANT DISTRICT ATTORNEYS
JUDITH S. KING
OKLAHOMA COUNTY
ASSISTANT ATTORNEY GENERAL
320 ROBERT S. KERR, SUITE 505
112 STATE CAPITOL
OKLAHOMA CITY, OK 73102
2300 N. LINCOLN BLVD.
ATTORNEYS FOR THE STATE
OKLAHOMA CITY, OK 73104
ATTORNEYS FOR APPELLEE

OPINION BY: LILE, V.P.J.
JOHNSON, P.J.: CONCURS IN RESULTS
LUMPKIN, J.: CONCURS IN RESULTS
CHAPEL, J.: CONCURS

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Footnotes:

1. 21 O.S.Supp. 1999, § 1123
2. 21 O.S.Supp. 2000, § 1123
3. 12 O.S.2001, § 2702
4. Abshier v. State, 2001 OK CR 13, I 119, 28 P.3d 579, 604
5. Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 2355, 129 L.Ed.2d 362 (1994)
6. Stemple v. State, 2000 OK CR 4, 9 36, 994 P.2d. 61, 69
7. 12 O.S. 1991 § 2104(A)(2)
8. Vanscoy v. State, 1987 OK CR 50, 734 P.2d 825, 828
9. Lopez v. State, 1986 OK CR 63, 718 P.2d 369, 372
10. Romano v. State, 1995 OK CR 74, T 14, 909 P.2d 92, 108
11. Welsh v. State, 2000 OK CR 8, 1 26, 2 P.3d 256, 369-70
12. Shepard v. State, 1988 OK CR 97, 97 7, 756 P.2d 597, 599-600
13. Rae v. State, 2001 OK CR 28, T5, 34 P.3d 148, 149
14. Gilson v. State, 2002 OK CR 14, I 177, 8 P.3d 883, 929

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1123 (1999) - Indecent or Lewd Acts with a Child
• Okla. Stat. tit. 21 § 1123 (2000) - Indecent or Lewd Acts with a Child
• Okla. Stat. tit. 12 § 2702 (2001) - Opinion Testimony by Expert Witnesses
• Okla. Stat. tit. 12 § 2104(A)(2) (1991) - Offers of Proof
• Okla. Stat. tit. 21 § 701.8 (2011) - Sentencing for Certain Crimes
• Okla. Stat. tit. 21 § 701.1 (2001) - Definitions
• Okla. Stat. tit. 21 § 701.9 (2011) - Sentencing Procedure
• Okla. Stat. tit. 21 § 701.10 (2011) - Effect of Cumulative Error

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:

• Abshier v. State, 2001 OK CR 13, I 119, 28 P.3d 579, 604
• Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 2355, 129 L.Ed.2d 362 (1994)
• Stemple v. State, 2000 OK CR 4, 9 36, 994 P.2d. 61, 69
• Vanscoy v. State, 1987 OK CR 50, 734 P.2d 825, 828
• Lopez v. State, 1986 OK CR 63, 718 P.2d 369, 372
• Romano v. State, 1995 OK CR 74, T 14, 909 P.2d 92, 108
• Welsh v. State, 2000 OK CR 8, 1 26, 2 P.3d 256, 369-70
• Shepard v. State, 1988 OK CR 97, 97 7, 756 P.2d 597, 599-600
• Rae v. State, 2001 OK CR 28, T5, 34 P.3d 148, 149
• Gilson v. State, 2002 OK CR 14, I 177, 8 P.3d 883, 929