Jesse Stanard v State Of Oklahoma

F-1999-1084

Filed: Apr. 12, 2001

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Jesse Stanard appealed his conviction for Assault and Battery with a Deadly Weapon with Intent to Kill. Conviction and sentence included 15 years for Count I and 10 years each for Counts IV and V, served one after the other. Judge Chapel dissented on the decision to uphold Counts IV and V.

Decision

The Judgment and Sentence of the trial court on Counts IV and V is AFFIRMED. The Judgment and Sentence of the trial court on Count I is REVERSED AND REMANDED for a new trial.

Issues

• Was there a violation of the appellant's due process rights due to forced participation in a joint trial?
• Did the trial court commit prejudicial error by allowing the jury to mingle with the public after deliberations had begun?
• Did the trial court err by failing to provide a cautionary eyewitness instruction when evidence supported it?
• Did the trial court err in permitting the prosecution to introduce a weapon into evidence without proper connection to the crime?
• Did the trial court abuse its discretion by refusing to run the sentences concurrently instead of consecutively?

Findings

• the trial court erred in failing to sever the trials on Count I
• the trial court did not commit prejudicial error by separating the jury
• the claim regarding the cautionary eyewitness instruction is moot
• the trial court did not err in admitting the aluminum baseball bat for demonstrative purposes
• the trial court did not abuse its discretion in running the sentences consecutively

F-1999-1084

Apr. 12, 2001

Jesse Stanard

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

STRUBHAR, J: Jesse Stanard, Appellant, was convicted of one count of Assault and Battery with a Deadly Weapon with Intent to Kill, After Former Conviction of a Felony (21 O.S.Supp.1992, $652) (Count I) and two counts of Assault and Battery with a Dangerous Weapon, After Former Conviction of a Felony (21 O.S.1991, § 645) (Counts IV & V), following a jury trial in the District Court of Oklahoma County, Case No. CF-98-3758, the Honorable Susan W. Bragg, District Judge, presiding. The jury recommended fifteen (15) years imprisonment on Count I and ten (10) years imprisonment on Counts IV and V. The trial court sentenced Appellant accordingly and ordered the terms to be served consecutively. From this Judgment and Sentence, he appeals.

The following propositions of error were considered:

I. Appellant’s forced participation in a joint trial denied him a fair trial in violation of his due process rights under the Fifth and Fourteenth Amendments of the United States Constitution and Article II, Section 7 of the Oklahoma Constitution;
II. The trial court committed prejudicial error when she released the jury to mingle with the public after deliberations had begun;
III. The trial court committed reversible error by failing to give a cautionary eyewitness instruction when the evidence clearly supported such instruction, and a request for the instruction was made;
IV. The trial court committed reversible error in permitting the prosecution to introduce a weapon into evidence which was not connected to the crime and to allow him to use the evidence for demonstrative purposes thereby prejudicing the appellant and preventing him from receiving a fair trial; and
V. The trial court abused its discretion in refusing to run the sentences recommended by the jury concurrently, rather than consecutively.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, and briefs of the parties, we affirm in part and reverse in part. As to Proposition I, we find Appellant and co-defendant Catton’s defenses to Count I were mutually antagonistic under this Court’s case law and that the trial court erred in failing to sever their trials on Count I. Neill v. State, 827 P.2d 884, 887-88 (Okl.Cr.1992), cert. denied, 516 U.S. 1080, 116 S.Ct. 791, 133 L.Ed.2d 740 (1996). Accordingly, Count I must be reversed and remanded for new trial. See Lafevers v. State, 819 P.2d 1362, 1365-68 (Okl.Cr.1991), cert. denied, 516 U.S. 1095, 116 S.Ct. 820, 133 L.Ed.2d 763 (1996).

As to Proposition II, we find Appellant was not prejudiced by the separation of the jury because the trial court thoroughly admonished the jury and there is no indication that this admonishment was not followed. Day v. State, 784 P.2d 79, 84 (Okl.Cr.1989). As to Proposition III, we find the disposition of Proposition I renders this claim moot. As to Proposition IV, we find the trial court did not err in admitting State’s Exhibit 22, an aluminum baseball bat, for demonstrative purposes. Foster v. State, 714 P.2d 1031, 1035 (Okl.Cr.), cert. denied, 479 U.S. 873, 107 S.Ct. 249, 93 L.Ed.2d 173 (1986). See also Dyke v. State, 716 P.2d 693, 700 (Okl.Cr.1996). As to Proposition V, we find the trial court did not abuse its discretion in running Appellant’s sentences consecutively and that the sentences imposed are not so excessive based on this record as to shock the conscience of the Court. Harmon v. State, 748 P.2d 992, 996 (Okl.Cr.1988).

DECISION
The Judgment and Sentence of the trial court on Counts IV and V is AFFIRMED. The Judgment and Sentence of the trial court on Count I is REVERSED AND REMANDED for a new trial.

APPEARANCES AT TRIAL
JAMES W. BERRY
ATTORNEY AT LAW
100 N. BROADWAY, STE. 2850
OKLAHOMA CITY, OK 73102
ATTORNEY FOR APPELLANT

GEORGE BURNETT
ASSISTANT DISTRICT ATTORNEY
320 ROBERT S. KERR, STE. 505
OKLAHOMA CITY, OK 73102
ATTORNEY FOR THE STATE

APPEARANCES ON APPEAL
PATTI PALMER
PALMER & LAMIRAND
P.O. BOX 1022
PAWHUSKA, OK 74056
ATTORNEY FOR APPELLANT

W.A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA

STEVEN L. LOHR
ASSISTANT ATTORNEY GENERAL
2300 N.LINCOLN BLVD., SUITE 112
OKLAHOMA CITY, OK 73105
ATTORNEYS FOR APPELLEE

OPINION BY: STRUBHAR, J.
LUMPKIN, P.J: CONCUR
JOHNSON, V.P.J.: CONCUR
CHAPEL, J.: CONCUR IN PART/DISSENT IN PART
LILE, J.: CONCUR IN RESULT

RB CHAPEL, JUDGE, CONCURS IN PART/DISSENTS IN PART: I concur in reversing Count I. However, I dissent to affirming Counts IV and V as I find merit in Proposition II.

Click Here To Download PDF

Footnotes:

1. 21 O.S.Supp.1992, § 652
2. 21 O.S.1991, § 645
3. Neill v. State, 827 P.2d 884 (Okl.Cr.1992), cert. denied, 516 U.S. 1080 (1996).
4. Lafevers v. State, 819 P.2d 1362 (Okl.Cr.1991), cert. denied, 516 U.S. 1095 (1996).
5. Day v. State, 784 P.2d 79 (Okl.Cr.1989).
6. Foster v. State, 714 P.2d 1031 (Okl.Cr.), cert. denied, 479 U.S. 873 (1986).
7. Dyke v. State, 716 P.2d 693 (Okl.Cr.1996).
8. Harmon v. State, 748 P.2d 992 (Okl.Cr.1988).

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 652 (1992) - Assault and Battery with a Deadly Weapon with Intent to Kill
• Okla. Stat. tit. 21 § 645 (1991) - Assault and Battery with a Dangerous Weapon

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:

• Neill v. State, 827 P.2d 884, 887-88 (Okl.Cr.1992), cert. denied, 516 U.S. 1080, 116 S.Ct. 791, 133 L.Ed.2d 740 (1996)
• Lafevers v. State, 819 P.2d 1362, 1365-68 (Okl.Cr.1991), cert. denied, 516 U.S. 1095, 116 S.Ct. 820, 133 L.Ed.2d 763 (1996)
• Day v. State, 784 P.2d 79, 84 (Okl.Cr.1989)
• Foster v. State, 714 P.2d 1031, 1035 (Okl.Cr.), cert. denied, 479 U.S. 873, 107 S.Ct. 249, 93 L.Ed.2d 173 (1986)
• Dyke v. State, 716 P.2d 693, 700 (Okl.Cr.1996)
• Harmon v. State, 748 P.2d 992, 996 (Okl.Cr.1988)