Byron Keft Gibbs v The State Of Oklahoma

F-2001-1061

Filed: Sep. 27, 2002

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Byron Keft Gibbs appealed his conviction for Driving Under the Influence of Intoxicating Liquor, Second or Subsequent Offense. The original conviction and sentence were for ten years in prison, along with a $500 fine and required counseling. The court found that the evidence was enough to support his conviction, and claimed that Gibbs did not prove he had ineffective help from his lawyer. However, the court noted that there were some mistakes made by the prosecutor during the trial. These mistakes were serious but didn’t change the outcome of whether Gibbs was guilty. Ultimately, the court decided to change his sentence from ten years to eight years.

Decision

The conviction is hereby AFFIRMED, but Appellant's sentence is MODIFIED to eight (8) years.

Issues

• Was the evidence insufficient to support the conviction?
• Did the Appellant receive ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution?
• Did prosecutorial misconduct require the reversal or modification of Appellant's conviction or sentence?

Findings

• The evidence was sufficient to support the conviction.
• The Appellant failed to show ineffective assistance of counsel.
• Plain error occurred due to prosecutorial misconduct, but it did not have a substantial influence on the issue of guilt.
• The Appellant's sentence was modified to eight (8) years.

F-2001-1061

Sep. 27, 2002

Byron Keft Gibbs

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, PRESIDING JUDGE: Appellant, Byron Keft Gibbs, was tried by jury in the District Court of Creek County, Case Number CF-2000-92, and convicted of Driving Under the Influence of Intoxicating Liquor, Second or Subsequent Offense, in violation of 47 O.S.1991, § 11-902. The jury set punishment at ten (10) years imprisonment, a $500.00 fine, and a recommendation that he receive alcohol and substance abuse counseling. The trial judge sentenced Appellant accordingly. Appellant now appeals his convictions and sentences.

Appellant raises the following propositions of error in this appeal:
I. The evidence was insufficient to support the conviction;
II. Appellant received ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution; and
III. Prosecutorial misconduct requires the reversal or modification of Appellant’s conviction or sentence.

After a thorough consideration of these propositions and the entire record before us, we find Appellant’s sentence must be modified.

1 With respect to proposition one, we find the evidence in the record is sufficient to support Appellant’s conviction for driving under the influence of intoxicating liquor. Spuehler U. State, 709 P.2d 202, 203-204 (Okl.Cr. 1995); Miller U. State, 977 P.2d 1099, 1107 (Okl.Cr.1998); Fontenot U. State, 881 P.2d 69, 78, n.11 (Okl.Cr.1994).

With respect to proposition two, Appellant has failed to show errors by counsel that were so serious as to deprive him of a fair trial, one with a reliable result. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); 12 O.S.2001, § 2803(1) & (2).

With respect to propositions three and four, the various instances of prosecutorial misconduct were not objected to, thus waiving all but plain error. Simpson v. State, 876 P.2d 690, 693, 701-02 (Okl.Cr.1994). We find plain error occurred. The prosecutor crossed the line of permissible advocacy at times when cross-examining Appellant regarding his veracity. The prosecutor also made improper comments concerning the right to remain silent and confusing misstatements regarding the burden of proof on Appellant’s defenses. The question of whether these errors were harmless is difficult. No objections were lodged, thereby preventing the errors from being cured. Many of the comments on veracity were proper, and Appellant waived his right to remain silent, to a degree, by speaking to police officers after being Mirandized and telling a different story on the stand at trial. Anderson U. Charles, 447 U.S. 404, 408-409, 100 S.Ct. 2180, 2182, 65 L.Ed.2d 222 (1980).

Furthermore, the prejudicial effect of these comments was somewhat lessened by proper jury instructions and counterarguments from defense counsel during closing. We do not condone the actions of the prosecutor here, for they were error. However, we cannot say they had a substantial influence on the issue of guilt, even when considered cumulatively. They may have affected sentencing, however, but only slightly, given Appellant’s prior drinking-related convictions.

DECISION

The conviction is hereby AFFIRMED, but Appellant’s sentence is MODIFIED to eight (8) years.

AN APPEAL FROM THE DISTRICT COURT OF CREEK COUNTY

THE HONORABLE DONALD D. THOMPSON

APPEARANCES AT TRIAL
FRED GREESON
210 EAST DEWEY
SAPULPA, OK 74066
COUNSEL FOR APPELLANT

APPEARANCES ON APPEAL
STUART W. SOUTHERLAND
P.O. BOX 4441
TULSA, OK 74159-0441
COUNSEL FOR APPELLANT

DON I. NELSON
1ST ASSISTANT DISTRICT ATTORNEY
CREEK COUNTY COURTHOUSE
222 EAST DEWEY
SAPULPA, OK 74066
COUNSEL FOR THE STATE

W.A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA
KIM L. UNDERWOOD
ASSISTANT ATTORNEY GENERAL
112 STATE CAPITOL BUILDING
OKLAHOMA CITY, OK 73105
COUNSEL FOR THE STATE

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

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Footnotes:

1. 47 O.S.1991, § 11-902
2. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); 12 O.S.2001, § 2803(1) & (2).
3. Simpson v. State, 876 P.2d 690, 693, 701-02 (Okl.Cr.1994).
4. Anderson v. Charles, 447 U.S. 404, 408-409, 100 S.Ct. 2180, 2182, 65 L.Ed.2d 222 (1980).

Oklahoma Statutes citations:

• Okla. Stat. tit. 47 § 11-902 - Driving Under the Influence of Intoxicating Liquor
• Okla. Stat. tit. 12 § 2803 - Hearsay Exceptions

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

• 6th Amendment - -
• 14th Amendment - -
• Strickland v. Washington - 466 U.S. 668 (1984)
• 12 O.S.2001, § 2803(1) & (2) - -
• Anderson v. Charles - 447 U.S. 404 (1980)

Other citations:

No other rule citations found.

Case citations:

• Spuehler v. State, 709 P.2d 202, 203-204 (Okl.Cr. 1995)
• Miller v. State, 977 P.2d 1099, 1107 (Okl.Cr.1998)
• Fontenot v. State, 881 P.2d 69, 78, n.11 (Okl.Cr.1994)
• Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)
• Simpson v. State, 876 P.2d 690, 693, 701-02 (Okl.Cr.1994)
• Anderson v. Charles, 447 U.S. 404, 408-409, 100 S.Ct. 2180, 2182, 65 L.Ed.2d 222 (1980)