Sean Michael Johnson v The State Of Oklahoma

F-1999-1465

Filed: Feb. 8, 2001

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Sean Michael Johnson appealed his conviction for First Degree Rape, Forcible Oral Sodomy, and Lewd Acts with a Child Under Sixteen. The court upheld his convictions and original sentences for the last two counts, but modified his conviction for First Degree Rape to Second Degree Rape, reducing his sentence for that charge to five years. Judge Chapel dissented, arguing that Johnson should have been given the chance to be treated as a juvenile under the law due to the circumstances of the case.

Decision

Appellant's conviction under Count I is hereby MODIFIED to second degree rape and his sentence under Count I is MODIFIED to five (5) years imprisonment. The judgments and sentences on Counts II and III are hereby AFFIRMED. All sentences shall be served consecutively. This matter is remanded to the district court for further proceedings consistent with this opinion.

Issues

• Was there a failure to instruct the jury on the election of offenses or the unanimity requirement regarding a particular act of rape, constituting fundamental reversible error?
• Did the State fail to follow certification procedures and withhold evidence affecting punishment and credibility, violating Oklahoma substantive law and due process?
• Was the admission of the videotape interrogation of Appellant plain error in violation of state and federal constitutional rights?
• Did the playing of Appellant's videotaped arrest while shackled violate the presumption of innocence and due process of law?
• Did the State fail to prove the material elements of the rape counts and disprove Appellant's exculpatory statement, violating the sufficiency of the evidence standard?
• Were there fundamental reversible errors committed by the prosecutor that denied Appellant a fair trial?
• Did the accumulation of irregularities and errors deny Appellant a fair trial and due process?
• Was Appellant denied effective assistance of counsel at trial?

Findings

• the court erred in allowing contradictory jury instructions that constituted plain error regarding Count I
• the State's failure to follow juvenile certification procedures was not applicable due to Appellant's age at the time of the charges
• the admission of the videotape interrogation of Appellant was not considered error as it did not violate statutory or constitutional provisions
• the playing of Appellant's videotaped arrest did not constitute a due process violation
• the sufficiency of the evidence related to Count I was affected by the instructional error, leading to modification to second degree rape
• the prosecutorial misconduct did not accumulate to deprive Appellant of a fair trial
• the cumulative irregularities and errors did not deny Appellant a fair trial or due process
• Appellant was not denied effective assistance of counsel except for one instance that did not result in prejudice
• Appellant's conviction under Count I is hereby MODIFIED to second degree rape and his sentence under Count I is MODIFIED to five (5) years imprisonment
• the judgments and sentences on Counts II and III are hereby AFFIRMED

F-1999-1465

Feb. 8, 2001

Sean Michael Johnson

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, PRESIDING JUDGE:

Appellant, Sean Michael Johnson, was tried by jury in the District Court of Oklahoma County, Case No. CF-98-4321, and convicted of: First Degree Rape (Count I), in violation of 21 O.S.1991, §§ 1111, 1114, and 21 O.S.Supp.1993, § 1111; Forcible Oral Sodomy (Count II), in violation of 21 O.S.1991, §§ 886, 888 and 21 O.S.Supp.1992, §§ 886, 888; and Lewd Acts with a Child Under Sixteen (Count 3), in violation of 21 O.S.1991, § 1123 and 21 O.S.Supp. 1992, § 1123. The jury recommended sentences of fifteen (15) years imprisonment on Count I, five (5) years imprisonment on Count II, and five (5) years imprisonment on Count III. The trial judge sentenced Appellant accordingly and ordered the sentences to be served consecutively. Appellant now appeals his convictions and sentences.

Appellant raises the following propositions of error in this appeal:

I. The trial court failed in its duty to instruct as to an election of offenses or the unanimity beyond a reasonable doubt requirement of a particular act of rape (lewd molestation), constituting fundamental reversible error under Oklahoma law and a due process violation of the 14th Amendment;

II. The State’s failure to follow certification procedures, follow or notice concerning reverse certification procedures and youthful offender act, in conjunction with withholding evidence affecting punishment and credibility, violates Oklahoma substantive law and procedure, as well as 14th Amendment due process, requiring reversal;

III. The admission of the videotape interrogation of Appellant was plain error in violation of 10 O.S. 1109, Article II, §§ 7, 9, and 21 of the Oklahoma Constitution and the 6th and 14th Amendments to the U.S. Constitution, requiring reversal;

IV. The playing of Appellant’s videotaped arrest, while he was shackled and handcuffed to the chair for thirty-seven minutes to the jury, was a violation of the 14th Amendment’s presumption of innocence and due process of law;

V. The State failed to prove the material elements of rape counts one and three as instructed upon by the court and failed to disprove Appellant’s exculpatory statement — with those convictions not meeting the 14th Amendment’s sufficiency of the evidence standard;

VI. Sundry and miscellaneous fundamental reversible errors committed by the prosecutor, including side-bar remarks and speaking objections before the jury, which individually and collectively denied Appellant a 14th Amendment fair trial and require a reversal or reduction of sentence;

VII. The accumulation of irregularities and errors denied Appellant a fair trial and due process in violation of his 5th, 6th, and 14th Amendment rights; and

VIII. Appellant was denied the effective assistance of counsel at trial in violation of his 6th and 14th Amendment rights.

After a thorough consideration of these propositions and the entire record before us, including the original record, transcripts, and briefs of the parties, we have determined neither reversal nor modification is required with respect to Appellant’s convictions and sentences under Counts II and III. However, Appellant’s conviction and sentence under Count I is hereby modified, as set forth below.

With respect to proposition one, we find Appellant’s election and unanimity arguments are without merit, insofar as they relate to Counts II and III, and, for the most part, as to Count I. However, Appellant also raises serious concerns about jury instruction twelve in this proposition, and those concerns must be considered in conjunction with arguments raised in proposition five (sufficiency of the evidence) and proposition eight (ineffective assistance of counsel). Accordingly, we find instruction twelve, which allowed the jury to consider a three and a half year time period — including two years when Appellant was under eighteen — as one continuous act, was contradictory to instructions six and eleven, which required Appellant to be over eighteen when the offenses were committed. These contradictory instructions amount to plain error. However, due to the unique circumstances of this case, including our consideration of the jury instructions in their entirety, the wording of the amended information, the testimony at trial, the applicable statutes, and the specific arguments raised on appeal, we find the error was harmless with respect to Counts II and III.

However, we find the instructional error, along with trial counsel’s failure to raise an objection thereto, might have had a substantial influence on the jury’s verdict with respect to Count I and cannot be considered harmless. Based upon our review of the entire record, we find the evidence and law warrants a modification of Appellant’s conviction on Count I to second degree rape, and Appellant’s sentence under Count I is hereby modified to five (5) years.

With respect to proposition two, we find under the Juvenile Code, Appellant would have been subject to the reverse certification laws from May 1, 1992 to October 31, 1995, because he was over sixteen and therefore considered an adult. While those laws provided for parental notification and the opportunity to request certification as a child, Appellant was twenty-two years old at the time he was arrested and charged. Parental notification was therefore not an issue. Furthermore, because of Appellant’s age, there were no options available to him in the juvenile system.

We find the Youthful Offender Act inapplicable as per 10 O.S.Supp. 1997 § 7306-2.2. The record does not support the remaining claims in this proposition.

With respect to propositions three and four, we find no due process violation or deprivation of the presumption of innocence related to the admission of evidence or the presentation of the Appellant in restraints.

With respect to proposition five, we find Appellant’s sufficiency arguments are without merit and moot due to the analysis, resolution, and relief granted with respect to proposition one. Furthermore, Appellant’s arguments concerning the State’s failure to disprove his exculpatory statements are without merit.

With respect to proposition six, we find the record supports four objectionable actions by the prosecutor. However, prosecutorial misconduct will not cause a reversal of judgment or modification of sentence unless its cumulative effect is such as to deprive the defendant of a fair trial and fair sentencing proceeding. Here, the cumulative effect of these fairly minor incidents did not deprive Appellant of a fair trial or sentencing proceeding.

We find no relief is warranted with respect to proposition seven. With respect to proposition eight, we find one instance of deficient performance, relating to counsel’s handling of evidentiary issues, but a lack of prejudice.

DECISION

Appellant’s conviction under Count I is hereby MODIFIED to second degree rape and his sentence under Count I is MODIFIED to five (5) years imprisonment. The judgments and sentences on Counts II and III are hereby AFFIRMED. All sentences shall be served consecutively. This matter is remanded to the district court for further proceedings consistent with this opinion.

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Footnotes:

1. 1 The information alleged acts occurring over a period of time between May 1, 1992 and October 31, 1995. During this period of time, the applicable statutes were amended.
2. 2 Under Count III, Appellant was charged with First Degree Rape, by penetration of the anus. However, the jury convicted him of the lesser charge of Lewd Acts with a Child Under Sixteen.
3. 3 The trial court could have instructed the jury that first degree rape and forcible sodomy can be committed by a person under the age of eighteen, SO long as force, violence, or threats of force or violence accompanied by apparent power of execution was used. See 21 O.S.1991, § 1114 and 21 O.S.Supp. 1992, § 888.
4. 4 The instructional error had no impact on Appellant's conviction for lewd molestation, as this offense only requires a defendant to be three (3) years older than the victim, and the victim to be under sixteen.
5. 5 688, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984).
6. 6 W.D.C. v. State, 1990 OK CR 71, T 7, 799 P.2d 142, 144.
7. 7 Mehdipour v. State, 1998 OK CR 23, I 14, 956 P.2d 911, 917.
8. 8 Martinez, 1999 OK CR 33, I 48, 984 P.2d 813, 826.
9. 9 Strickland U. Washington, 466 U.S. 668.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1111 (1991) - First Degree Rape
• Okla. Stat. tit. 21 § 1114 (1991) - Force and Violence Required for Certain Offenses
• Okla. Stat. tit. 21 § 886 (1991) - Forcible Oral Sodomy
• Okla. Stat. tit. 21 § 888 (1991) - Punishment for Forcible Oral Sodomy
• Okla. Stat. tit. 21 § 1123 (1991) - Lewd Acts with a Child Under Sixteen
• Okla. Stat. tit. 10 § 1109 (1991) - Videotape Interrogation
• Okla. Stat. tit. 10 § 1139 (1991) - Parental Notification for Reverse Certification
• Okla. Stat. tit. 10 § 7306-2.2 (1997) - Youthful Offender Act Applicability
• Okla. Stat. tit. 22 § 1066 (1991) - Modification of Judgment and Sentence

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:

• Huddleston v. State, 1985 OK CR 12, 1 16, 695 P.2d 8, 10-11
• Reupert v. State, 1997 OK CR 65, T 12, n. 13, 947 P.2d 198, 202, n. 13
• Jones v. State, 1989 OK CR 66, I 17, 781 P.2d 326, 329-330
• Drake v. State, 1988 OK CR 180, "I 7, 761 P.2d 879, 881-82
• Williams v. State, 1986 OK CR 101, q11, 721 P.2d 1318, 1321
• Simpson v. State, 1994 OK CR 40, I 36, 876 P.2d 690, 702
• McArthur v. State, 1993 OK CR 48, 1 15 and I 2, 862 P.2d 482, 486
• W.D.C. v. State, 1990 OK CR 71, T 7, 799 P.2d 142, 144
• Mehdipour v. State, 1998 OK CR 23, I 14, 956 P.2d 911, 917
• Martinez, 1999 OK CR 33, I 48, 984 P.2d 813, 826
• Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984)