Paul Delmer Morgan v The State Of Oklahoma

F-2003-717

Filed: Oct. 21, 2004

Not for publication

Prevailing Party: Paul Delmer Morgan

Summary

Paul Delmer Morgan appealed his conviction for Distribution of a Controlled Dangerous Substance (Cocaine). The conviction and sentence were modified to twenty (20) years imprisonment and a $10,000 fine. Judge Lumpkin dissented on the modification of the sentence.

Decision

The Judgment of the District Court is AFFIRMED. Morgan's Sentence is MODIFIED to twenty (20) years imprisonment and a $10,000 fine.

Issues

• Was Morgan prejudiced by the introduction of inadmissible other crimes evidence?
• Did the trial court's refusal to instruct the jury on the proper use of informant Payton's prior inconsistent statements leave the jury without proper guidance?
• Did the trial court err in failing to give a cautionary jury instruction on the reliability of informant testimony?
• Did the fine imposed against Morgan result from an improper jury instruction which combined the enhancement provisions of Title 21 and Title 63?
• Is Morgan's sentence excessive?
• Did the cumulative effect of the errors addressed deprive Morgan of a fair trial?

Findings

• the court did not err in admitting evidence of other crimes
• the trial court's error in failing to instruct the jury on a witness's inconsistent statements inured to Morgan's benefit
• the trial court's failure to give an instruction on informant testimony does not require relief
• the trial court improperly combined sentencing enhancement provisions and the fine provision, leading to an excessive fine
• Morgan's life sentence was modified to twenty (20) years imprisonment
• the cumulative effect of the errors did not deprive Morgan of a fair trial

F-2003-717

Oct. 21, 2004

Paul Delmer Morgan

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

CHAPEL, JUDGE: Paul Delmer Morgan was tried by jury and convicted of Distribution of a Controlled Dangerous Substance (Cocaine) in violation of 63 O.S.2001, § 2-401(A), in the District Court of Ottawa County, Case No. CF-2001-275B. In accordance with the jury’s verdict the Honorable Robert G. Haney sentenced Morgan to life imprisonment and a $100,000 fine. Morgan appeals from this conviction and sentence.

Morgan raises six propositions of error in support of his appeal:

I. Morgan was prejudiced by the introduction of inadmissible other crimes evidence;
II. The trial court’s refusal to instruct the jury on the proper use of informant Payton’s prior inconsistent statements left the jury without proper guidance to fully credit the defense theory of the case;
III. The trial court erred in failing to give a cautionary jury instruction on the reliability of informant testimony;
IV. The fine imposed against Morgan resulted from an improper jury instruction which combined the enhancement provisions of Title 21 and Title 63, to impose a fine in excess of the statutory maximum;
V. Morgan’s sentence is excessive; and
VI. The cumulative effect of all the errors addressed above deprived Morgan of a fair trial.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, exhibits and briefs, we find that the law and evidence require modification of Morgan’s sentence.

We find in Proposition I that evidence of a recent methamphetamine transaction was SO closely connected to the cocaine sale, and central to it, as to fit within the definition of res gestae evidence.1 We further find that Morgan waived any complaint regarding this evidence when he both failed to object and went over the evidence again on cross-examination of the same witness.2 We find in Proposition II that, while the trial court erred in failing to instruct the jury on a witness’s inconsistent statements, that error inured to Morgan’s benefit.³ We find in Proposition III that, as the informant’s testimony was corroborated by other evidence, the trial court’s failure to sua sponte give an instruction on informant testimony does not require relief.4

We find in Proposition IV that the trial court improperly combined the sentencing enhancement provisions of Title 21 with the fine provision of Title 1. Morgan’s sentence was enhanced under 21 O.S.2001, § 51.1. There is no specific provision for a fine in Section 51.1, but sentences enhanced under that section may include fines as per 21 O.S.2001, § 64(B). This general fine statute provides for a fine of up to $10,000 in felonies which have no fine otherwise imposed by statute.

We modify the amount of Morgan’s fine to reflect the maximum fine under the appropriate statute, $10,000.6 We find in Proposition V that, taking into account the entire record and Morgan’s circumstances, a life sentence for sale of $25 worth of cocaine, even with four prior offenses, shocks this Court’s conscience.7 We modify Morgan’s sentence to twenty (20) years imprisonment. As there are no other errors which individually or cumulatively require relief, Proposition VI is denied.8

Decision

The Judgment of the District Court is AFFIRMED. Morgan’s Sentence is MODIFIED to twenty (20) years imprisonment and a $10,000 fine.

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Footnotes:

1. Note 1: Evidence of a recent methamphetamine transaction was so closely connected to the cocaine sale, and central to it, as to fit within the definition of res gestae evidence.
2. Note 2: As the evidence was admissible, counsel was not ineffective for failing to object to it. Strickland U. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).
3. Note 3: A timely request for an unmodified uniform jury instruction will fulfill the "in writing" requirement for jury instructions. Nance v. State, 1992 OK CR 54, 838 P.2d 513, 515-16.
4. Note 4: Gilbert v. State, 1988 OK CR 289, 766 P.2d 361, 363.
5. Note 5: Novey v. State, 1985 OK CR 142, 709 P.2d 696, 699; Gaines v. State, 1977 OK CR 259, 568 P.2d 1290, 1294.
6. Note 6: Morgan's sentence was enhanced under 21 O.S.2001, § 51.1. There is no specific provision for a fine in Section 51.1, but sentences enhanced under that section may include fines as per 21 O.S.2001, § 64(B).
7. Note 7: Livingston v. State, 1990 OK CR 40, 795 P.2d 1055, 1057, 1059.
8. Note 8: Alverson v. State, 1999 OK CR 21, 983 P.2d 498, 520, cert. denied, 528 U.S. 1089, 120 S.Ct. 820, 145 L.Ed.2d 690 (2000).

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-401(A) (2001) - Distribution of a Controlled Dangerous Substance
• Okla. Stat. tit. 21 § 51.1 (2001) - Sentencing Enhancement
• Okla. Stat. tit. 21 § 64(B) (2001) - Fines for Felonies
• Okla. Stat. tit. 21 § 701.8 (2011) - Sentence Modification

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:

• Rogers v. State, 1995 OK CR 8, 890 P.2d 959, 971, cert. denied, 516 U.S. 919, 116 S.Ct. 312, 133 L.Ed.2d 215.
• Tate v. State, 1987 OK CR 21, 732 P.2d 902, 904.
• Nance v. State, 1992 OK CR 54, 838 P.2d 513, 515-16.
• Lewis v. State, 1998 OK CR 24, 970 P.2d 1158, 1169, cert. denied, 528 U.S. 892, 120 S.Ct. 218, 145 L.Ed.2d 183 (1999).
• Gilbert v. State, 1988 OK CR 289, 766 P.2d 361, 363.
• Novey v. State, 1985 OK CR 142, 709 P.2d 696, 699.
• Gaines v. State, 1977 OK CR 259, 568 P.2d 1290, 1294.
• Livingston v. State, 1990 OK CR 40, 795 P.2d 1055, 1057, 1059.
• Alverson v. State, 1999 OK CR 21, 983 P.2d 498, 520, cert. denied, 528 U.S. 1089, 120 S.Ct. 820, 145 L.Ed.2d 690 (2000).
• Rea v. State, 2001 OK CR 28, 34 P.3d 148.