Billy Mack Downey v The State Of Oklahoma

F-2001-106

Filed: Aug. 22, 2002

Not for publication

Prevailing Party: Billy Mack Downey

Summary

Billy Mack Downey appealed his conviction for Murder in the Second Degree. His conviction and sentence were for 40 years in prison. Judge Lile dissented. In this case, Downey was found guilty by a jury, but he raised many issues during his appeal, arguing that his trial was unfair because there were several errors. The court agreed that there were many mistakes made during the trial, especially in how evidence was presented and how witnesses were handled. They believed these errors combined made it impossible to ensure that Downey had a fair trial. As a result, the Court of Criminal Appeals decided to reverse Downey's conviction and ordered a new trial.

Decision

The Judgment and Sentence of the District Court is REVERSED and REMANDED for a new trial.

Issues

• Was there an error in declaring that the single stage trial constituted a sentencing phase for purposes of victim impact evidence and in admitting "live" photographs of the decedent?
• Did the State improperly bolster the credibility of its two primary witnesses?
• Did the trial court err in prohibiting Downey's father from testifying, and did the prosecutor mislead the jury in closing arguments?
• Did prosecutorial misconduct deprive Downey of a fair trial?
• Did the trial court err in denying the motion for a new trial?
• Did the trial court err in allowing the State to impeach a defense witness with a deferred judgment?
• Did the State improperly bolster Ward's testimony with prior consistent statements?
• Did the trial court err in expressing his opinion of Downey's guilt when the jury asked questions about plea bargains with key witnesses?
• Did the trial court err in failing to instruct that Tyrone Ward and Kim Richardson were accomplices as a matter of law?
• Did the trial court err in "correcting" defense counsel's explanation of corroboration necessary to convict based on the testimony of an accomplice?
• Did the trial court abuse its discretion in granting the State's challenge for cause of Juror Watson?
• Did trial errors cumulatively deprive Downey of a fair trial and reliable verdict?
• Did the trial court err in ordering $5,000 to be paid in restitution without evidence regarding economic loss?

Findings

• the court erred in declaring that the single stage trial constituted a sentencing phase for purposes of victim impact evidence and in admitting "live" photographs of the decedent
• the State improperly bolstered the credibility of its two primary witnesses
• the trial court erred in prohibiting Downey's father from testifying, and the prosecutor materially misled the jury in his closing argument
• prosecutorial misconduct deprived Downey of a fair trial
• the trial court erred in denying the motion for a new trial
• the trial court erred in allowing the State to impeach a defense witness with a deferred judgment
• the State improperly bolstered Ward's testimony with prior consistent statements
• the trial court erred in expressing his opinion of Downey's guilt when the jury asked questions about the terms of the plea bargains with the State's key witnesses
• the trial court erred in failing to instruct that Tyrone Ward and Kim Richardson were accomplices as a matter of law
• the trial court erred in "correcting" defense counsel's explanation of corroboration necessary to convict upon the testimony of an accomplice and materially misled the jury on this subject
• the trial court abused its discretion in granting the State's challenge for cause of Juror Watson
• the trial errors cumulatively deprived Downey of a fair trial and reliable verdict
• the trial court erred in ordering $5,000 to be paid in restitution without evidence regarding economic loss

F-2001-106

Aug. 22, 2002

Billy Mack Downey

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

Billy Mack Downey was tried by jury and convicted of Murder in the Second Degree, in violation of 21 O.S.1991, § 701.8, in the District Court of Carter County, Case No. CF-2000-224. In accordance with the jury’s recommendation, the Honorable John H. Scaggs sentenced Downey to forty (40) years imprisonment. Downey appeals from this conviction and sentence.

Downey raises thirteen propositions of error in support of his appeal:
I. The court erred in declaring that the single stage trial constituted a sentencing phase for purposes of victim impact evidence and in admitting live photographs of the decedent;
II. The State improperly bolstered the credibility of its two primary witnesses;
III. The trial court erred in prohibiting Downey’s father from testifying, and the prosecutor materially misled the jury in his closing argument;
IV. Prosecutorial misconduct deprived Downey of a fair trial;
V. The trial court erred in denying the motion for a new trial;
VI. The trial court erred in allowing the State to impeach a defense witness with a deferred judgment;
VII. The State improperly bolstered Ward’s testimony with prior consistent statements;
VIII. The trial court erred in expressing his opinion of Downey’s guilt when the jury asked questions about the terms of the plea bargains with the State’s key witnesses;
IX. The trial court erred in failing to instruct that Tyrone Ward and Kim Richardson were accomplices as a matter of law;
X. The trial court erred in correcting defense counsel’s explanation of corroboration necessary to convict upon the testimony of an accomplice and materially misled the jury on this subject;
XI. The trial court abused its discretion in granting the State’s challenge for cause of Juror Watson;
XII. The trial errors cumulatively deprived Downey of a fair trial and reliable verdict;
AND XIII. The trial court erred in ordering $5,000 to be paid in restitution without evidence regarding economic loss.

After thorough consideration of the entire record before us on appeal including the original record, transcripts, briefs and exhibits of the parties, we find reversal is required by the law and evidence. We find merit in Proposition XII, in which Downey claims accumulated error deprived him of a fair trial with a reliable result. Accumulation of error may warrant reversal, where numerous serious errors infect the trial process.

Accumulated error in Propositions I, III, V, VI, VIII, IX, and X require reversal in this case. The remaining propositions are moot.

In Proposition I, the State concedes that the trial court erred in allowing victim impact evidence to be presented in the guilt/innocence stage of a one-stage, non-capital felony trial. The testimony was prejudicial, and the record does not support the State’s claim that the improperly admitted evidence affected neither the jury’s verdict nor sentencing recommendation. We find merit to Downey’s claim in Proposition III that the trial court erred in refusing to allow Downey’s father to testify based on the Rule of Sequestration, in his case-in-chief, after Downey was unexpectedly impeached during cross-examination. We further find in Proposition III that the prosecutor improperly used this ruling when he argued that Downey could have called his father to testify about the matter, but did not because his father’s testimony would not have supported him.

We find in Proposition V that the newly discovered evidence, suggesting that Officer Sturges had seriously misstated the facts in his testimony rebutting Downey’s account of police interviews, was material, not cumulative, and creates a reasonable probability that, had the jury heard it, it would have changed the outcome. As the State admits, the newly discovered evidence had a direct bearing on the credibility of both Sturges and Downey. The record reflects the jury’s concern with witness credibility, and jurors were entitled to hear information that Downey’s testimony about police interviews was accurate.

We find in Proposition VI that the trial court erred in allowing the State to impeach a defense witness with a deferred judgment. We find merit in Proposition VIII, noting that the trial court’s supplemental instructions on the law of felony murder might have increased juror confusion because they did not answer the jury’s question, which went to witness credibility, and might have been interpreted as an expression of the court’s views on the merits of the case.

In Proposition IX, the jury should have been instructed that Downey’s co-defendants, who were charged with the same crime as he, were accomplices as a matter of law. In Proposition X we find the trial court erred in sua sponte giving an oral instruction during defense counsel’s closing argument which contradicted the written instructions, and may have confused or misled jurors as to the proper understanding of the law of corroboration.

Decision

The Judgment and Sentence of the District Court is REVERSED and REMANDED for a new trial.

APPEARANCES AT TRIAL
APPEARANCES ON APPEAL
JOSEPH O. MINTER
PETERS CHRISTI CHAPMAN
APPELLATE DEFENSE COUNSEL
P.O. BOX 370
1623 CROSS CENTER DRIVE
MADILL, OKLAHOMA 73446
NORMAN, OKLAHOMA 73019
ATTORNEYS FOR DEFENDANT
ATTORNEY FOR APPELLANT
MITCHELL D. SPERRY
W.A. DREW EDMONDSON
DISTRICT ATTORNEY
ATTORNEY GENERAL OF OKLAHOMA
CRAIG LADD
WILLIAM R. HOLMES
ASSISTANT DISTRICT ATTORNEY
ASSISTANT ATTORNEY GENERAL
CARTER COUNTY COURTHOUSE
112 STATE CAPITOL BUILDING
ARDMORE, OKLAHOMA 73401
OKLAHOMA CITY, OKLAHOMA
ATTORNEYS FOR THE STATE
ATTORNEYS FOR APPELLEES

OPINION BY: CHAPEL, J.

LUMPKIN, P.J.: CONCUR IN RESULTS
JOHNSON, V.P.J.: CONCUR
STRUBHAR, J.: CONCUR IN RESULTS
LILE, J.: DISSENT

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Footnotes:

1. Fitzgerald v. State, 1998 OK CR 68, 972 P.2d 1157, 1175.
2. 22 O.S.2001, § 991a(A)(1)(a); Taylor v. State, 2002 OK CR 13, IT 5, 45 P.3d 103.
3. 21 O.S.2001, § 984.1; Perryman v. State, 1999 OK CR 39, 990 P.2d 900, 905; Cooper v. State, 1995 OK CR 22, 894 P.2d 420, 421.
4. Edwards v. State, 1982 OK CR 204, 655 P.2d 1048, 1051-52; Thompson v. State, 1975 OK CR 204, 541 P.2d 1328, 1337; Wald v. State, 1973 OK CR 343, 513 P.2d 330, 333.
5. Paxton v. Ward, 199 F.3d 1197, 1216-18 (10th Cir. 1999); Hooks v. State, 2001 OK CR 1, 19 P.3d 294, 314, n. 51, cert. denied, U.S. 122 S.Ct. 371, 151 L.Ed.2d 282.
6. Ellis v. State, 1992 OK CR 45, 867 P.2d 1289, 1303, cert. denied, 513 U.S. 863, 115 S.Ct. 178, 130 L.Ed.2d 113; Reed v. State, 1983 OK CR 12, 657 P.2d 662, 664, cert denied, 464 U.S. 933, 104 S.Ct. 337, 78 L.Ed.2d 307.
7. 12 O.S.2001, § 2609; Cline v. State, 1989 OK CR 69, 782 P.2d 399, 401; White v. State, 1985 OK CR 84, 702 P.2d 1058, 1062; Belle v. State, 1973 OK CR 448, 516 P.2d 551, 552.
8. Caffey v. State, 1983 OK CR 39, 661 P.2d 897, 901; Scaggs v. State, 1966 OK CR 107, 417 P.2d 331, 336; French v. State, 1964 OK CR 125, 397 P.2d 909, 912; Jarman v. State, 57 Okl. Cr. 226, 47 P.2d 220, 222 (1935).
9. Wackerly v. State, 2000 OK CR 15, 12 P.3d 1, 10-11, cert. denied, 532 U.S. 1028, 121 S.Ct. 1976, 149 L.Ed.2d 768 (2001); Anderson v. State, 1999 OK CR 44, 992 P.2d 409, 418, cert. denied, 531 U.S. 850, 121 S.Ct. 124, 148 L.Ed.2d 79 (2000); Moss v. State, 1994 OK CR 80, 888 P.2d 509, 520.
10. 22 O.S.2001, § 952; Omalza v. State, 1995 OK CR 80, 911 P.2d 286, 303; Atterberry v. State, 1986 OK CR 186, 731 P.2d 420, 422; French, 307 P.2d at 912; Townley v. State, 1959 OK CR 100, 355 P.2d 420, 444.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.8 (2011) - Murder in the Second Degree
• Okla. Stat. tit. 22 § 991a(A)(1)(a) (2001) - Restitution
• Okla. Stat. tit. 21 § 984.1 (2001) - Victim Impact Evidence
• Okla. Stat. tit. 12 § 2609 (2001) - Impeachment by Deferred Judgment
• Okla. Stat. tit. 22 § 952 (2001) - Instructions to Jury

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:

• Fitzgerald v. State, 1998 OK CR 68, 972 P.2d 1157, 1175.
• Taylor v. State, 2002 OK CR 13, IT 5, 45 P.3d 103.
• Perryman v. State, 1999 OK CR 39, 990 P.2d 900, 905.
• Cooper v. State, 1995 OK CR 22, 894 P.2d 420, 421.
• Edwards v. State, 1982 OK CR 204, 655 P.2d 1048, 1051-52.
• Thompson v. State, 1975 OK CR 204, 541 P.2d 1328, 1337.
• Wald v. State, 1973 OK CR 343, 513 P.2d 330, 333.
• Paxton v. Ward, 199 F.3d 1197, 1216-18 (10th Cir. 1999).
• Hooks v. State, 2001 OK CR 1, 19 P.3d 294, 314, n. 51, cert. denied, U.S. 122 S.Ct. 371, 151 L.Ed.2d 282.
• Ellis v. State, 1992 OK CR 45, 867 P.2d 1289, 1303, cert. denied, 513 U.S. 863, 115 S.Ct. 178, 130 L.Ed.2d 113.
• Reed v. State, 1983 OK CR 12, 657 P.2d 662, 664, cert. denied, 464 U.S. 933, 104 S.Ct. 337, 78 L.Ed.2d 307.
• Cline v. State, 1989 OK CR 69, 782 P.2d 399, 401.
• White v. State, 1985 OK CR 84, 702 P.2d 1058, 1062.
• Belle v. State, 1973 OK CR 448, 516 P.2d 551, 552.
• Caffey v. State, 1983 OK CR 39, 661 P.2d 897, 901.
• Scaggs v. State, 1966 OK CR 107, 417 P.2d 331, 336.
• French v. State, 1964 OK CR 125, 397 P.2d 909, 912.
• Jarman v. State, 57 Okl. Cr. 226, 47 P.2d 220, 222 (1935).
• Wackerly v. State, 2000 OK CR 15, 12 P.3d 1, 10-11, cert. denied, 532 U.S. 1028, 121 S.Ct. 1976, 149 L.Ed.2d 768 (2001).
• Anderson v. State, 1999 OK CR 44, 992 P.2d 409, 418, cert. denied, 531 U.S. 850, 121 S.Ct. 124, 148 L.Ed.2d 79 (2000).
• Moss v. State, 1994 OK CR 80, 888 P.2d 509, 520.
• Omalza v. State, 1995 OK CR 80, 911 P.2d 286, 303.
• Atterberry v. State, 1986 OK CR 186, 731 P.2d 420, 422.
• Townley v. State, 1959 OK CR 100, 355 P.2d 420, 444.