Daniel Kelly Orcutt v The State Of Oklahoma

F-2001-1529

Filed: Jun. 19, 2003

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Daniel Kelly Orcutt appealed his conviction for Manslaughter in the First Degree. His conviction and sentence were 50 years in prison and a $10,000 fine. Judge Donald Thompson from Creek County oversaw the case. Orcutt argued that the trial was unfair because the jury was allowed to separate during their discussions, the prosecutor made improper comments about his choice not to testify, and there were problems with how evidence was shared. He claimed these issues together meant he should get a new trial. After looking closely at all the facts, the court decided that Orcutt's rights were violated, especially with the jury's separation, which usually means a new trial is needed. So, they overturned his conviction and sent the case back to court for a new trial. Judge Lile wrote the opinion, and all the judges agreed with it.

Decision

The Judgment and Sentence of the District Court is hereby VACATED and this case is REMANDED to the District Court for a new trial.

Issues

• Was there reversible error in the trial court's refusal to sequester the jury during deliberations?
• Did the prosecutor improperly comment on Mr. Orcutt's decision not to testify at his own trial?
• Did the State's failure to comply with discovery deprive Mr. Orcutt of the ability to adequately represent himself at trial?
• Did the trial court improperly restrict Mr. Orcutt's representation of himself at trial after allowing him to proceed as a pro se litigant?
• Did the cumulative effect of the errors at Mr. Orcutt's trial mandate a new trial?

Findings

• the trial court erred by allowing the jury to separate during deliberations, requiring a new trial
• the prosecutor's comments on the appellant's decision not to testify constituted error
• the state's failure to comply with discovery was not specifically addressed as it is subsumed in the necessity for a new trial
• the trial court improperly restricted the appellant's representation of himself, but this is also part of the need for a new trial
• the cumulative effect of the errors warrants a new trial

F-2001-1529

Jun. 19, 2003

Daniel Kelly Orcutt

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LILE, VICE PRESIDING JUDGE: Appellant, Daniel Kelly Orcutt, was convicted at jury trial of Manslaughter in the First Degree in violation of 21 O.S.1991, § 711, in the District Court of Creek County, Case No. CF-1998-206. The Honorable Donald Thompson, District Judge, sentenced Appellant to fifty (50) years imprisonment and a fine of $10,000, in accordance with the verdict of the jury. Appellant has perfected his appeal to this Court.

Appellant raises the following propositions of error in support of his appeal:

I. THE TRIAL COURT’S REFUSAL TO SEQUESTER THE JURY AFTER ENTERING DELIBERATIONS DEPRIVED MR. ORCUTT OF HIS CONSTITUTIONAL AND STATUTORY RIGHTS TO A FAIR TRIAL.

II. THE PROSECUTOR IMPROPERLY COMMENTED ON MR. ORCUTT’S DECISION NOT TO TESTIFY AT HIS OWN TRIAL.

III. THE STATE’S FAILURE TO COMPLY WITH DISCOVERY DEPRIVED MR. ORCUTT OF THE ABILITY TO ABLY REPRESENT HIMSELF AT TRIAL.[1]

IV. THE TRIAL COURT IMPROPERLY RESTRICTED MR. ORCUTT’S REPRESENTATION OF HIMSELF AT TRIAL AFTER ALLOWING HIM TO PROCEED AS A PRO SE LITIGANT.

V. EVEN IF NO SINGLE ERROR IN THIS CASE WARRANTS REVERSAL, THE CUMULATIVE EFFECT OF THE ERRORS AT MR. ORCUTT’S TRIAL MANDATE A NEW TRIAL.

After a thorough consideration of these propositions and the entire record before us, including the original record, transcripts and briefs of the parties, we find that this case must be reversed and remanded for a new trial as required under the facts and the law.

With regard to Proposition I, we find that the trial court committed reversible error in allowing the jury to separate during deliberations, over the objection of Appellant. Under the circumstances, prejudice is presumed. *Bayliss U. State*, 1990 OK CR 1251, 795 P.2d 1079. The State has the duty to rebut the presumption of prejudice. Id. Appellant, representing himself, objected to the separation of the jury during deliberations, and despite this objection the trial court allowed the jury to separate. The law presumes prejudice. The State was obligated to establish that there was no actual prejudice. This, the State did not even attempt. This error requires that Appellant receive a new trial.

In regard to Proposition II, the statements of the prosecutor were error. Because the case must be retried, we do not proceed to determine whether the error was harmless.[2]

DECISION

The Judgment and Sentence of the District Court is hereby VACATED and this case is REMANDED to the District Court for a new trial.

ATTORNEYS AT TRIAL

ATTORNEYS ON APPEAL

PRO SE

MARK P. HOOVER

STANDBY COUNSEL:

1623 CROSS CENTER DRIVE

JAMES DENNIS

NORMAN, OK 73019

1623 CROSS CENTER DRIVE

ATTORNEY FOR APPELLANT

NORMAN, OK 73019

ATTORNEY FOR DEFENDANT

DON I. NELSON

W. A. DREW EDMONDSON

ASSISTANT DISTRICT ATTORNEY

ATTORNEY GENERAL

CREEK COUNTY COURTHOUSE

DIANE L. SLAYTON

222 EAST DEWEY

ASSISTANT ATTORNEY GENERAL

SAPULPA, OK

112 STATE CAPITOL BUILDING

ATTORNEY FOR STATE

OKLAHOMA CITY, OK 73105

ATTORNEYS FOR APPELLEE

OPINION BY: LILE, V.P.J.

JOHNSON, P.J.: CONCURS

LUMPKIN, J.: CONCURS

CHAPEL, J.: CONCURS

STRUBHAR, J.: CONCURS

RC 3

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Footnotes:

1. Okla. Stat. tit. 21 § 711
2. Bayliss v. State, 1990 OK CR 125, 795 P.2d 1079.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 711 (1991) - Manslaughter in the First Degree

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:

• Bayliss v. State, 1990 OK CR 125, 795 P.2d 1079