Jan V. Stout v The State Of Oklahoma

F-2001-319

Filed: Nov. 29, 2001

Not for publication

Prevailing Party: Jan V. Stout

Summary

Jan V. Stout appealed her conviction for Grand Larceny. The jury found her guilty and recommended a sentence of 3 years in prison and a $10,000 fine. However, the judge placed her on probation for five years instead, requiring her to pay $8,500 in restitution and serve 90 days in jail. Stout raised several issues in her appeal. She argued that the evidence against her wasn't strong enough and claimed that the witness who testified against her, Jacqueline Thompson, couldn't be trusted because of inconsistencies in her story. Stout also said that the prosecution misled the jury about the plea deal given to Thompson, which could have affected their judgment. The appeals court found that there were issues with how the prosecution handled the case, particularly regarding the misrepresentation of Thompson's plea deal. The court decided that Stout's jury might not have been able to make a fair decision based on the incorrect information they received about the witness's credibility. As a result, Stout's conviction and sentence for Grand Larceny were reversed and sent back for a new trial. Judge Strubhar dissented, meaning he disagreed with the majority opinion.

Decision

Stout's Conviction and Sentence for Grand Larceny is REVERSED AND REMANDED.

Issues

• Was there legally sufficient corroborating evidence for the accomplice testimony?
• Did the testimony of the accomplice warrant dismissal due to being inherently unworthy of belief?
• Was the Appellant denied due process due to the State's misrepresentation of the plea agreement offered to the accomplice?

Findings

• the evidence was sufficient to corroborate the accomplice testimony
• the testimony of the accomplice was not inherently unworthy of belief
• the prosecution's misrepresentation of the plea agreement denied the appellant due process, requiring reversal and remand

F-2001-319

Nov. 29, 2001

Jan V. Stout

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

CHAPEL, JUDGE: Jan V. Stout was charged and tried by jury in Pawnee County, Case No. CF-97-53, with Grand Larceny, in violation of 21 O.S.1991, § 1701. The jury convicted her and recommended a sentence of 3 years imprisonment and a $10,000 fine. The trial court, the Honorable Thomas P. Thornbrugh, entered an Order of Probation and Deferment of Judgment and Sentence. In this order the court, without entering a judgment of guilty, ordered that Stout be placed on probation for five years, that she pay restitution in the amount of $8500, along with court costs and fees, and that she serve 90 days in the Pawnee County Jail. Stout raises the following propositions of error:

I. The evidence corroborating the accomplice testimony is legally insufficient as there is no evidence which corroborates the participation of the defendant in the crime charged.

II. This Court should determine the testimony of the accomplice in this case to be inherently unworthy of belief and dismiss this case on that basis.

III. The Appellant was denied due process by the State’s willful misrepresentation throughout the trial of the terms and existence of the plea agreement offered and taken by the accomplice.

Regarding Proposition I, the discovery of the stolen vests in Stout’s office adequately corroborated the accomplice testimony of Jacqueline Thompson. Stout is correct that her grand larceny charge required proof that she participated in the plan to steal the trailer, but this proof was provided through Thompson’s testimony, which in turn was adequately corroborated by the discovery of the stolen vests in Stout’s office.

Regarding Proposition II, Thompson’s testimony was not so inherently unworthy of belief as to require dismissal of Stout’s case. Thompson’s testimony was not internally inconsistent, though it was inconsistent with the victim’s testimony regarding the times when the trailer was parked in Oklahoma. Although Stout has not established that the evidence presented against her was insufficient, the credibility issues she raises regarding Thompson’s testimony do impact this Court’s evaluation of her claim under Proposition III.

Regarding Proposition III, the State concedes that the prosecutor wrongly informed Stout’s jury that the one-year sentence that Thompson received (for pleading guilty and testifying against Stout) was consecutive, rather than concurrent. In fact, the prosecutor repeatedly denied that Thompson received a concurrent sentence, even though he was present for her sentencing and the relevant court records clearly designate the sentence as concurrent. In addition, the trial transcript reveals strenuous efforts on the part of the prosecutor to mislead the jury regarding whether Thompson was offered a deal and the terms of the deal.

The record in this case clearly demonstrates that the State did make a deal with Thompson and that the deal included a concurrent sentence. Due process claims based upon this kind of prosecutorial misstatement and/or misrepresentation are evaluated under the following three-part test: (1) The status of a key party (witness or evidence) of the State’s case was presented at trial with an element affecting its credibility intentionally concealed. (2) The prosecutor knew or had reason to know of the concealment and failed to bring the concealment to the attention of the trial court. (3) The trier of fact was unable to properly evaluate the case against the defendant as a result of the concealment.

There is no question that Thompson was the key witness in Stout’s trial. In fact, her testimony was the only evidence that Stout played any role in the planning or carrying out of the theft of Pam Bellamy’s trailer. The discovery of the stolen vests in Stout’s office was important corroborative evidence, but it did not establish that Stout asked Thompson to steal the trailer or that Stout later accepted it and paid her for it. The fact that Thompson pled guilty and agreed to testify against Stout with the expectation of receiving a sentence that was concurrent with sentences that she was already serving, along with the fact that she did indeed receive a concurrent sentence, could definitely be seen to diminish her credibility. Furthermore, there is no question that the prosecutor should have known the terms of Thompson’s deal and sentence. The State argues that Stout’s jurors likely knew that the term was run concurrently with Thompson’s other sentences, despite the argument from the prosecutor, but the format of State’s Exhibit 2 could have been confusing to persons unfamiliar with such documents, particularly when the prosecutor repeatedly told Stout’s jury that this court document indicated that Thompson’s term was consecutive.

Unfortunately, nothing was done to correct the prosecutor’s misleading statements and argument or to clarify the meaning of the exhibits submitted to the jury. Under these circumstances Stout’s jury may well have accepted the prosecutor’s claim that Thompson’s one-year sentence for stealing Bellamy’s trailer was in addition to or on top of her Tulsa sentences. If the jury had properly understood that Thompson was given only a concurrent sentence, it would have given the jury even further reason to doubt or reject Thompson’s testimony.

Thus each prong of the Runnels test has been met, and Stout has established prejudice. After thoroughly considering the entire record before us on appeal, including the original record, transcripts, briefs, and exhibits of the parties, we find that Stout’s conviction for grand larceny should be reversed and remanded.

Decision
Stout’s Conviction and Sentence for Grand Larceny is REVERSED AND REMANDED.

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Footnotes:

1. Oklahoma law requires that an accomplice's testimony "be corroborated by such other evidence as tends to connect the defendant with the commission of the offense." 21 O.S. 1991 § 742.
2. Cacy v. State, 1972 OK CR 307, 502 P.2d 1295, 1297.
3. See Cullison v. State, 1988 OK CR 279, 765 P.2d 1229, 1231.
4. In evaluating claims like Stout's, this Court will accept "all reasonable inferences and credibility choices that tend to support the trier of fact's verdict." Probst v. State, 1991 OK CR 30, 807 P.2d 279, 283.
5. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
6. The State concedes that the prosecutor wrongly informed Stout's jury that the one-year sentence that Thompson received (for pleading guilty and testifying against Stout) was consecutive, rather than concurrent.
7. Runnels v. State, 1977 OK CR 146, 562 P.2d 932, 936.
8. The Runnels decision relied upon Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).
9. See Reed v. State, 1983 OK CR 12, 657 P.2d 662, 664.
10. The State also notes that Thompson admitted during trial that she had only eight more days to serve in prison.
11. See Binsz v. State, 1984 OK CR 28, 675 P.2d 448.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1701 (1991) - Grand Larceny
• Okla. Stat. tit. 21 § 742 (1991) - Corroboration of Accomplice Testimony

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:

• Cacy v. State, 1972 OK CR 307, 502 P.2d 1295, 1297
• Cullison v. State, 1988 OK CR 279, 765 P.2d 1229, 1231
• Howard v. State, 1977 OK CR 93, 561 P.2d 125, 132
• Probst v. State, 1991 OK CR 30, 807 P.2d 279, 283
• Carlisle v. State, 62 P.2d 617, 618 (Okl.Cr. 1936)
• Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)
• Spuehler v. State, 1985 OK CR 132, 709 P.2d 202, 203-04
• Runnels v. State, 1977 OK CR 146, 562 P.2d 932, 936
• Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972)
• Reed v. State, 1983 OK CR 12, 657 P.2d 662, 664
• Binsz v. State, 1984 OK CR 28, 675 P.2d 448