Randy Dewayne Barrett v The State Of Oklahoma

F-2002-1351

Filed: Apr. 29, 2004

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Randy Dewayne Barrett appealed his conviction for First Degree Murder. His conviction and sentence were for life imprisonment and a $10,000 fine. Judge Lile dissented in the opinion. Barrett argued several points during his appeal: 1. He said the trial court made a big mistake by not letting the jury know about less serious charges he could have faced, like second-degree murder or manslaughter. 2. He claimed that there wasn't enough evidence to support the serious charge of kidnapping tied to his murder conviction. 3. He felt that some pictures shown in trial were unfair and didn't help his case. 4. He argued that he should have been allowed to talk about earlier charges that could have shown different evidence in his favor. 5. He pointed out that the prosecutor said something in closing arguments that wasn't based on evidence. 6. He believed that too many mistakes made during the trial took away his rights. The court reviewed everything and found that Barrett's lawyer had given him wrong advice, making him think that if he asked for instructions about the lesser charges, he might get a longer sentence. Because of these errors, the court decided that Barrett should have a new trial.

Decision

The Judgment and Sentence is REVERSED and REMANDED for a new trial.

Issues

• Was there fundamental error by the trial court in failing to instruct the jury on lesser-included offenses?
• Did the evidence support Appellant's conviction for first degree felony murder by establishing the underlying felony of kidnapping?
• Was Appellant deprived of a fair trial due to the introduction of irrelevant but highly prejudicial photographs?
• Did the trial court commit reversible error by granting the State's motion in limine regarding the prosecution's charging decisions?
• Did the prosecutor commit reversible error in closing argument by attributing an inculpatory statement to Appellant that was not in evidence?
• Did the accumulation of errors in the case deprive Appellant of due process of law?
• Was trial counsel ineffective for improperly advising Appellant to waive lesser-included offense instructions?

Findings

• the trial court erred by failing to instruct the jury on lesser-included offenses
• the evidence was insufficient to support the conviction for first degree felony murder due to a lack of evidence for the underlying felony of kidnapping
• the introduction of irrelevant but highly prejudicial photographs deprived Appellant of a fair trial
• the trial court erred by granting the State's motion in limine regarding the prosecution's charging decisions, preventing the defense from presenting relevant evidence
• the prosecutor committed reversible error by making statements in closing argument that were not supported by evidence
• the accumulation of errors deprived Appellant of due process, necessitating reversal

F-2002-1351

Apr. 29, 2004

Randy Dewayne Barrett

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

CHAPEL, JUDGE: Randy Barrett was tried by jury and convicted of First Degree Murder in violation of 21 O.S.2001, § 701.7 in Tulsa County District Court Case No. CF-2002-810. In accordance with the jury’s recommendation, the Honorable Deirdre O. Dexter sentenced Barrett to life imprisonment and a fine of ten thousand ($10,000.00) dollars. Barrett appeals this judgment and sentence.

Barrett raises the following propositions of error:

I. The trial court committed fundamental error by failing to instruct the jury on the lesser-included offenses of second degree felony murder, second degree depraved mind murder, first degree manslaughter, and second degree manslaughter. The evidence supported instructions on those offenses, and Appellant’s purported waiver of the right to such instructions was neither knowing nor intelligent and was the product of bad advice from trial counsel.

II. Appellant’s conviction for first degree felony murder should be reversed because the evidence was insufficient to support the underlying felony of kidnapping. Accordingly, Appellant’s conviction has been imposed upon him in violation of the Fourteenth Amendment of the United States Constitution and Article II, § 7 of the Oklahoma Constitution.

III. The introduction of irrelevant but highly prejudicial photographs deprived Appellant of a fair trial in violation of the Fourteenth Amendment of the United States Constitution and Article II, § 7 of the Oklahoma Constitution.

IV. The trial court committed reversible error by granting the State’s motion in limine regarding the prosecution’s charging decisions and forbidding the defense from mentioning the original information filed in the case in which Appellant was not charged with any crime and the homicide of Bradley Dean was described and charged as first degree manslaughter. In the context of the facts of this case, such evidence was relevant and was admissible as a party admission. Precluding the defense from using this evidence violated Appellant’s rights under the sixth and fourteenth amendments of the United States Constitution and Article II, Sections 7 and 20 of the Oklahoma Constitution.

V. In his closing argument, the prosecutor committed reversible error by attributing an inculpatory statement to Appellant that was not in evidence and, accordingly, violated Appellant’s rights under the Fourteenth Amendment to the United States Constitution and Article II, § 7 of the Oklahoma Constitution.

VI. The accumulation of error in this case deprived Appellant of due process of law and necessitates reversal pursuant to the fourteenth amendment to the United States Constitution and Article II, § 7 of the Oklahoma Constitution.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, briefs, and exhibits of the parties, we conclude that reversal is required as a matter of law. Barrett claims that trial counsel was ineffective for improperly advising him to waive viable lesser-included offense instructions. Barrett was charged and convicted of First Degree Felony Murder. At trial, he elected to proceed all or nothing, even though the evidence suggested that one or more lesser-included instructions were appropriate. Barrett claims that his actions were driven by his counsel’s advice that pursuing a lesser-included offense instruction risked exposure to a sentence exceeding life imprisonment. Trial counsel believed that if the jury heard about Barrett’s prior manslaughter conviction (which it would were Barrett convicted of a lesser-included offense), it would sentence Barrett to hundreds of years’ imprisonment, amounting to life imprisonment without the possibility of parole. This is inaccurate. Barrett’s parole eligibility would have been the same for any sentence of forty-five years’ imprisonment or more.

Given this record, this Court ordered the district court to hold an evidentiary hearing to determine: (1) whether trial counsel convinced Barrett to waive lesser-included offense instructions based upon an erroneous legal opinion; (2) whether Barrett waived lesser-included offense instructions based upon his reliance on trial counsel’s legally incorrect opinion; and (3) what, if any, lesser-included offense instructions Barrett could have received were he to have pursued them. The evidentiary hearing was held on October 31, 2003. The district court’s findings of fact and conclusions of law regarding the remanded issue were filed in this Court on December 15, 2003.

After the hearing, the district court found that Barrett’s waiver of lesser-included offense instructions was partly based on trial counsel’s erroneous legal opinion that Barrett would have to wait longer for parole consideration if he received a sentence exceeding forty-five (45) years for a lesser-included offense. Relying on the testimony of Terry Jenks, Executive Director of the Oklahoma Pardon and Parole Board, and on Board of Pardon and Paroles Policy No. 004, the court found that an inmate who receives a life sentence or a sentence in excess of forty-five (45) years need not wait any longer for parole consideration than an inmate sentenced to forty-five (45) years’ imprisonment. Finally, the trial court found that pursuant to Shrum v. State, 991 P.2d 1032, 1036 (Okl.Cr.1999), Barrett was entitled to lesser-included instructions on Second Degree Murder, First Degree Manslaughter, and Second Degree Manslaughter.

The question thus distills to whether trial counsel was ineffective for misadvising Barrett. Ineffective assistance claims require a showing of deficient attorney performance and prejudice to the defendant. Barrett establishes both. A recent and strikingly similar Seventh Circuit opinion illustrates: defendant appealed a conviction on grounds of ineffective assistance after trial counsel induced him to plead guilty based on erroneous information over the length of his potential sentence. The Seventh Circuit found deficient performance in trial counsel’s legally incorrect opinion, which could have been corrected had he analyzed the facts and the law.

The facts presented in this case are similar. Trial counsel clearly misinformed Barrett regarding parole eligibility. Moreover, the testimony indicated that the actual parole eligibility had been the established public and ascertainable policy of the Pardon and Parole Board for approximately thirty (30) years. Nothing suggests that trial counsel’s erroneous opinion was based upon any case, statute, or policy. Trial counsel gave Barrett an incorrect legal opinion that could have been corrected with a modicum of research. This is deficient performance. Was there prejudice? In other words, is there a reasonable probability that Barrett would not have waived lesser-included offense instructions had he not been misinformed? Yes. Pursuing a sentence on a lesser-included offense would have given Barrett nothing to lose and a potentially lighter sentence to gain. The instructions were Barrett’s for the asking.

Assuming that the jury had convicted him of a lesser-included offense after two or more felonies, Barrett’s minimum sentence would have been twenty (20) years’ imprisonment, making him eligible for parole approximately twenty-five (25) years earlier than the minimum sentence for First Degree Murder. Thus, Barrett’s misinformed waiver was prejudicial. It is reasonable and indeed probable that he would not have waived lesser-included offense instructions but for counsel’s error. Having established constitutionally inadequate performance and resulting prejudice, Barrett is entitled to a new trial.

Decision
The Judgment and Sentence is REVERSED and REMANDED for a new trial.

ATTORNEYS AT TRIAL

JOHN C. HARRIS, III
P.O. BOX 52206
TULSA, OKLAHOMA

ATTORNEYS ON APPEAL

WILLIAM H. LUKER
O.I.D.S APPELLATE DEFENSE COUNSEL
P.O. BOX 926
NORMAN, OKLAHOMA 73070
ATTORNEY FOR THE APPELLANT

STEVE KUNZWEILER
W.A. DREW EDMONDSON
ASSISTANT DISTRICT ATTORNEY
ATTORNEY GENERAL OF OKLAHOMA
500 SOUTH DENVER
TULSA, OKLAHOMA

WILLIAM R. HOLMES
ASSISTANT ATTORNEY GENERAL
ATTORNEY FOR THE STATE
112 STATE CAPITOL BUILDING
OKLAHOMA CITY, OKLAHOMA 73105

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Footnotes:

1. 21 O.S.2001, § 701.7
2. Article II, § 7 of the Oklahoma Constitution
3. Article II, § 20 of the Oklahoma Constitution
4. Article II, § 7 of the Oklahoma Constitution
5. 21 O.S. Supp.2002, § 13.1
6. 21 O.S. 2001, § 701.7
7. 21 O.S. Supp.2002, § 13.1
8. Shrum v. State, 991 P.2d 1032, 1036 (Okl.Cr.1999)
9. Williams v. Taylor, 529 U.S. 362, 390-91, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)
10. Strickland v. Washington, 466 U.S. 668, 686-87, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)
11. Moore v. Bryant, 348 F.3d 238 (7th Cir. 2003)

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.7 - First Degree Murder
• Okla. Stat. tit. 21 § 701.8 - Lesser Included Offenses
• Okla. Stat. tit. 21 § 13.1 - Parole Eligibility
• Okla. Stat. tit. 21 § 701.5 - Second Degree Murder
• Okla. Stat. tit. 21 § 711 - Manslaughter
• Okla. Stat. tit. 21 § 701.9 - Second Degree Manslaughter
• Okla. Stat. tit. 21 § 701.10 - Felony Murder
• Okla. Stat. tit. 21 § 701.11 - Depraved Mind Murder
• Okla. Stat. tit. 21 § 701.2 - Juror Instructions
• Okla. Stat. tit. 22 § 1053 - Ineffective Assistance of Counsel
• Okla. Stat. tit. 22 § 1087 - Appeal Procedure

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:

• Shrum v. State, 1999 OK CR 41, 991 P.2d 1032, 1036
• Welch v. State, 1998 OK CR 54, 968 P.2d 1231, 1252
• Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)
• Moore v. Bryant, 348 F.3d 238 (7th Cir. 2003)
• Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)