Gene Doyle Smothermon v State Of Oklahoma

F-2000-998

Filed: Dec. 21, 2001

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Gene Doyle Smothermon appealed his conviction for Possession of Methamphetamine With Intent To Distribute. His conviction and sentence were modified to 30 years imprisonment from the jury's recommended 75 years. Judge Lile dissented.

Decision

The Judgment of the trial court is AFFIRMED. The Sentence is MODIFIED to 30 years imprisonment. The case is hereby REMANDED to the trial court to correct the Judgment and Sentence to reflect that Appellant plead guilty to Counts II and IV.

Issues

• Was there an error in the trial court's admission of evidence that was prejudicial and had minimal probative value?
• Did the trial court violate Mr. Smothermon's constitutional right to present witnesses by barring the defense investigator from testifying?
• Was the trial evidence sufficient to support Mr. Smothermon's conviction?
• Did the prosecutor's argument to the jury prejudice Mr. Smothermon?
• Should Mr. Smothermon's sentence be modified?
• Should Mr. Smothermon's conviction be reversed or modified based on cumulative error?
• Should the Judgment and Sentence be corrected to reflect that Mr. Smothermon pled guilty to certain counts?

Findings

• The trial court did not err in admitting the evidence that was claimed to be unfairly prejudicial.
• The trial court did not err in barring the defense investigator from testifying.
• The evidence was sufficient to support Mr. Smothermon's conviction.
• The trial court was without authority to impose a lesser sentence than what the jury recommended, but modification of the sentence to 30 years was warranted.
• Any prejudicial error has been remedied by the modification of Appellant's sentence.
• The case is remanded to the trial court to correct the Judgment and Sentence to reflect that Appellant pled guilty to Counts II and IV.

F-2000-998

Dec. 21, 2001

Gene Doyle Smothermon

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

STRUBHAR, JUDGE: Gene Doyle Smothermon, Appellant, was convicted of Possession of Methamphetamine With Intent To Distribute, After Former Conviction of Two or More Felonies (63 O.S.Supp. 1994, § 2-401(A)(1)) (Count I), following a jury trial in the District Court of Noble County, Case No. CF-98-71, District Judge D. W. Boyd presiding. Though the jury recommended punishment of seventy-five years imprisonment, the trial court sentenced Appellant to thirty (30) years imprisonment. From this judgment and sentence, Appellant appeals. The following propositions of error were considered:

I. The trial court erred by admitting evidence that was unfairly prejudicial to Mr. Smothermon and had minimal probative value;
II. The trial court’s ruling barring the defense investigator from testifying violated Mr. Smothermon’s constitutional right to present witnesses in his defense and was too severe a sanction for a discovery violation;[^1]
III. The trial evidence was insufficient to support Mr. Smothermon’s conviction;
IV. Mr. Smothermon was prejudiced by the prosecutor’s improper argument to the jury;
V. Mr. Smothermon’s sentence should be modified;
VI. Mr. Smothermon’s conviction should be reversed or, in the alternative, the judgment and/or sentence modified based upon cumulative error; and
VII. The Judgment and Sentence should be corrected to show that Mr. Smothermon pled guilty to Counts II and IV.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, and briefs of the parties, we find modification of sentence is warranted. As to Proposition I, we find the trial court did not abuse its discretion in admitting the evidence of the drug dog alert or the waterproof matchbox found in Appellant’s car as they had some tendency to connect Appellant to the drugs found in Hatchett’s cruiser and their probative value was not substantially outweighed by the danger of unfair prejudice. Welch v. State, 2 P.3d 356, 370 (Okl.Cr.), cert. denied, U.S. , 121 S.Ct. 665, 148 L.Ed.2d 567 (2000); 12 O.S.1991, §§ 2401 & 2403.

As to Proposition II, we find the trial court did not abuse its discretion in excluding the defense investigator’s testimony based on the late disclosure as the trial court allowed Appellant to ask properly disclosed witnesses about the availability of the matchboxes and left the door open for defense counsel to develop the testimony and reurge its admission. See Powell v. State, 995 P.2d 510, 524-25 (Okl.Cr.), cert. denied, U.S. , 121 S.Ct. 321, 148 L.Ed.2d 258 (2000).

As to Proposition III attacking the sufficiency of the evidence to sustain his conviction, we find a rational trier of fact could have found sufficient proof that the drugs found in Hatchett’s cruiser belonged to Appellant and that he intended to distribute them. Miller v. State, 977 P.2d 1099, 1107 (Okl.Cr.1998), cert. denied, 528 U.S. 897, 120 S.Ct. 228, 145 L.Ed.2d 192 (1999); Billey v. State, 800 P.2d 741, 743 (Okl.Cr.199).

As to Proposition IV, we find the prosecutor did not improperly comment on Appellant’s right not to testify. Gilbert v. State, 951 P.2d 98, 120 (Okl.Cr.1997), cert. denied, 525 U.S. 890, 119 S.Ct. 207, 142 L.Ed.2d 170 (1998). However, we do find the prosecutor erred when he ended his closing argument with may God go with you and by injecting his personal opinion of guilt and by arguing that the jury should send Appellant a message, referencing the probability of Appellant committing future crimes. See McWilliams v. State, 743 P.2d 666, 669 (Okl.Cr.1987). While we find some error, we cannot say these remarks deprived Appellant of a fair trial, but we do take this error into consideration in ruling on Appellant’s next claim.

As to Proposition V, we find the trial court was without authority to impose a lesser sentence than the 75 years recommended by the jury. 22 O.S.Supp.1999, § 926.1; Luker v. State, 552 P.2d 715, 719 (Okl.Cr.1976). However, we agree with the trial court that a 75 year sentence in this case does not bear a direct relationship to the offense committed and that such shocks our conscience. Therefore, we find modification to 30 years imprisonment is warranted. See Baker v. State, 966 P.2d 797, 798 (Okl.Cr.1998), cert. denied, 525 U.S. 1156, 119 S.Ct. 1062, 143 L.Ed.2d 66 (1999).

As to Proposition VI, we find any prejudicial error has been remedied by the modification of Appellant’s sentence. As to his final proposition, we find this case should be remanded to the trial court to correct the Judgment and Sentence to reflect that Appellant plead guilty to Counts II and IV.

DECISION

The Judgment of the trial court is AFFIRMED. The Sentence is MODIFIED to 30 years imprisonment. The case is hereby REMANDED to the trial court to correct the Judgment and Sentence to reflect that Appellant plead guilty to Counts II and IV.

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Footnotes:

1. 63 O.S.Supp. 1994, § 2-401(A)(1)
2. 12 O.S.1991, §§ 2401 & 2403
3. 995 P.2d 510, 524-25 (Okl.Cr.)
4. 977 P.2d 1099, 1107 (Okl.Cr.1998)
5. 800 P.2d 741, 743 (Okl.Cr.199)
6. 951 P.2d 98, 120 (Okl.Cr.1997)
7. 743 P.2d 666, 669 (Okl.Cr.1987)
8. 22 O.S.Supp.1999, § 926.1
9. 552 P.2d 715, 719 (Okl.Cr.1976)
10. 966 P.2d 797, 798 (Okl.Cr.1998)

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-401(A)(1) (1994) - Possession of Methamphetamine With Intent To Distribute
• Okla. Stat. tit. 12 § 2401 (1991) - General Principles of Relevant Evidence
• Okla. Stat. tit. 12 § 2403 (1991) - Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time
• Okla. Stat. tit. 22 § 926.1 (1999) - Authority of the Court to Impose 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:

• Welch v. State, 2 P.3d 356, 370 (Okl.Cr.), cert. denied, U.S. , 121 S.Ct. 665, 148 L.Ed.2d 567 (2000)
• Powell v. State, 995 P.2d 510, 524-25 (Okl.Cr.), cert. denied, U.S. , 121 S.Ct. 321, 148 L.Ed.2d 258 (2000)
• Miller v. State, 977 P.2d 1099, 1107 (Okl.Cr.1998), cert. denied, 528 U.S. 897, 120 S.Ct. 228, 145 L.Ed.2d 192 (1999)
• Billey v. State, 800 P.2d 741, 743 (Okl.Cr.199)
• Gilbert v. State, 951 P.2d 98, 120 (Okl.Cr.1997), cert. denied, 525 U.S. 890, 119 S.Ct. 207, 142 L.Ed.2d 170 (1998)
• McWilliams v. State, 743 P.2d 666, 669 (Okl.Cr.1987)
• Luker v. State, 552 P.2d 715, 719 (Okl.Cr.1976)
• Baker v. State, 966 P.2d 797, 798 (Okl.Cr.1998), cert. denied, 525 U.S. 1156, 119 S.Ct. 1062, 143 L.Ed.2d 66 (1999)