Gary Wesley Tucker v State Of Oklahoma

F-2001-210

Filed: Mar. 26, 2002

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Gary Wesley Tucker appealed his conviction for Driving Under the Influence (DUI) and Driving Under Revocation. Conviction and sentence were reversed for the DUI charge, but the conviction for Driving Under Revocation was affirmed. Judge Lumpkin dissented.

Decision

We find merit in Appellant's first proposition in which he complains that that because instruction OUJI-CR 10-27 was not given, the jury did not understand that they did not have to unanimously agree that the greater crime was not proven beyond a reasonable doubt before they could consider the lesser-included offense. This argument is supported by the record, which reflects, in a note submitted by the jury to the trial court, that they harbored this precise misunderstanding. The trial court erroneously responded to this note by advising the jury that they had before them, all of the law and evidence proper for their consideration. As a result, the jury was prohibited from considering the lesser-included offense - in a situation where such consideration was clearly warranted - by the trial court's initial failure to give OUJI-CR 10-27 and then by the court's failure to properly answer the jury's question. The trial court's failure to give OUJI-CR 10-27 constituted plain error which requires reversal of Count I, Driving Under the Influence. See Graham v. State, 2001 OK CR 18, 11 3-7, 27 P.3d 1026, 1027-28. We would direct the trial court, upon retrial, to instruct the jury using the modified version of OUJI-CR 10-27 as promulgated in Graham v. State, 2001 OK CR 18, at 7 n. 5. We have not addressed the issues raised in any of the remaining five propositions as they concern only Appellant's conviction on Count I which must be reversed and remanded for a new trial pursuant to error raised in Proposition I. Appellant's conviction on Count II has not been challenged and is affirmed. The Judgment and Sentence of the trial court on Count I is REVERSED and REMANDED for a NEW TRIAL and Count II is AFFIRMED.

Issues

• Was there plain reversible error when the trial court failed to give specific jury instructions regarding lesser-included offenses?
• Did the trial court incorrectly define the term "impaired" during the trial?
• Was Appellant denied his constitutional rights to a fair trial and against self-incrimination due to the admission of his incriminating statement?
• Was there insufficient evidence presented by the State to prove beyond a reasonable doubt that the Appellant was under the influence of alcohol?
• Did the trial court commit plain reversible error by not providing a single verdict form that included the lesser-included offense?
• Did cumulative trial errors deny Appellant Due Process and necessitate reversal or a sentence modification?

Findings

• The court erred in failing to provide the jury with proper instruction regarding the lesser-included offense, resulting in a reversal of Count I.
• The court did not address the remaining propositions as they were related to Count I, which was reversed.
• The conviction on Count II was affirmed as it was not challenged on appeal.

F-2001-210

Mar. 26, 2002

Gary Wesley Tucker

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

STRUBHAR, JUDGE: Appellant, Gary Wesley Tucker, was convicted of Driving Under the Influence (Count I) and Driving Under Revocation (Count II), in the District Court of Oklahoma County, Case No. CRF-98-7590. The case was tried to a jury before the Honorable Susan W. Bragg. The jury assessed punishment at ten years imprisonment and a $2,500.00 fine on Count I and one year imprisonment on Count II. The trial court sentenced Appellant accordingly, ordering the sentences be served consecutively.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, and briefs of the parties, we reverse in part and affirm in part. In reaching our decision, we considered the following propositions of error and determined this result to be required under the law and the evidence:

I. Plain reversible error occurred when the trial court failed to give OUJI-CR 2d 10-23 and OUJI-CR 2d 10-27 (1996), the prosecutor made an erroneous acquittal first argument, and the trial judge failed to correctly answer the jury’s question of whether they could consider Driving While Impaired if they could not get a unanimous vote on Driving Under the Influence.

II. Plain reversible error occurred when the trial court’s definition of the term impaired was incorrect.

III. Appellant was denied his constitutional rights on Count I to a fair and impartial jury trial and against self-incrimination under Article II §§ 7, 20, 21 and the Fifth, Sixth and Fourteenth Amendments when the trial court, over objection, improperly admitted his incriminating statement in response to custodial interrogation, that I’ve had four beers and I won’t pass [the breathalyzer test].

IV. The State presented insufficient evidence to prove beyond a reasonable doubt the Appellant was under the influence of alcohol.

V. Plain reversible error occurred when the trial court failed to follow OUJI-CR 2d 10-25 (1996) and provide the jury with a single verdict form that included the lesser-included offense of Driving While Impaired.

VI. Trial errors, cumulatively, denied Appellant Due Process and require reversal, or, in the alternative, a sentence modification.

DECISION

We find merit in Appellant’s first proposition in which he complains that because instruction OUJI-CR 10-27 was not given, the jury did not understand that they did not have to unanimously agree that the greater crime was not proven beyond a reasonable doubt before they could consider the lesser-included offense. This argument is supported by the record, which reflects, in a note submitted by the jury to the trial court, that they harbored this precise misunderstanding. The trial court erroneously responded to this note by advising the jury that they had before them all the law and evidence proper for their consideration. As a result, the jury was prohibited from considering the lesser-included offense—in a situation where such consideration was clearly warranted—by the trial court’s initial failure to give OUJI-CR 10-27 and then by the court’s failure to properly answer the jury’s question. The trial court’s failure to give OUJI-CR 10-27 constituted plain error which requires reversal of Count I, Driving Under the Influence. See Graham v. State, 2001 OK CR 18, 11 3-7, 27 P.3d 1026, 1027-28. We would direct the trial court, upon retrial, to instruct the jury using the modified version of OUJI-CR 10-27 as promulgated in Graham v. State, 2001 OK CR 18, at 7 n. 5.

We have not addressed the issues raised in any of the remaining five propositions as they concern only Appellant’s conviction on Count I, which must be reversed and remanded for a new trial pursuant to error raised in Proposition I. Appellant’s conviction on Count II has not been challenged and is affirmed. The Judgment and Sentence of the trial court on Count I is REVERSED and REMANDED for a NEW TRIAL and Count II is AFFIRMED.

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Footnotes:

1. OUJI-CR 2d 10-23
2. OUJI-CR 2d 10-27 (1996)
3. Article II §§ 7, 20, 21
4. Graham v. State, 2001 OK CR 18, 11 3-7, 27 P.3d 1026, 1027-28
5. Graham v. State, 2001 OK CR 18, at 7 n. 5
6. Graham v. State, 27 P.3d 1026 (Okl.Cr.2001)

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.8 (2011) - Sentencing for Crimes
• Okla. Stat. tit. 21 § 11-801(B)(1) (2011) - Driving Under the Influence
• Okla. Stat. tit. 21 § 51 (2011) - Definitions and Standards
• Okla. Stat. tit. 21 § 700.1 (2011) - Jury Instructions
• Okla. Stat. tit. 22 § 7001 (2011) - Rights of Defendants

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:

• Graham v. State, 2001 OK CR 18, 11 3-7, 27 P.3d 1026, 1027-28