Deon Lamar Nelson v The State of Oklahoma

F-2004-1096

Filed: Sep. 6, 2006

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Deon Lamar Nelson appealed his conviction for two counts of Assault and Battery Upon An Officer of State Court. Conviction and sentence modified to three years imprisonment and a $1500 fine for Count I; sentence for Count II upheld. Judge Lumpkin dissented on the sentence modification for Count I.

Decision

The Judgments of the District Court are AFFIRMED. The Sentence in Count II is AFFIRMED. The Sentence in Count I is MODIFIED to three (3) years imprisonment and a $1500 fine. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2006), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there a consolidation of separate and nontransactional offenses for prosecution in a single trial that prejudiced Nelson and denied his right to due process?
• Did the State fail to establish that a defense attorney is an "officer of the court" protected by the provisions of the relevant statute?
• Was the admission of prejudicial victim impact evidence, including speculation regarding future treatment and economic loss, sufficient to require a new trial or modification of the resulting sentences?
• Did the prosecutor's improper remarks regarding an extraneous source of law during jury considerations result in an inflated sentence?
• Did the criminal prosecution of Nelson while his competency remained in question, and absent a fully informed jury, violate due process and constitute fundamental error?
• Did the cumulative effect of all the errors undermine Nelson's right to a fair trial?

Findings

• the court erred in admitting prejudicial victim impact evidence requiring a modification of the sentence for Count I
• the joinder of Counts I and II was appropriate
• a court-appointed defense attorney is considered an officer of the court under the statute
• evidence of the victim's injuries was irrelevant, which contributed to an improper sentencing
• there was no plain error regarding the prosecutor's closing remarks
• the trial court did not abuse its discretion regarding the competency of the defendant
• the cumulative effect of errors did not warrant a fair trial claim
• the sentence in Count I is modified to three (3) years imprisonment and a $1500 fine
• the conviction and sentence in Count II are affirmed

F-2004-1096

Sep. 6, 2006

Deon Lamar Nelson

Appellant

v

The State of Oklahoma

Appellee

SUMMARY OPINION

CHAPEL, PRESIDING JUDGE: Deon Lamar Nelson was tried by jury and convicted of two counts of Assault and Battery Upon An Officer of State Court in violation of 21 O.S.2001, § 650.6, in the District Court of Grady County, Case No. CF-2003-390. In accordance with the jury’s recommendation, the Honorable Richard Van Dyke sentenced Nelson to five (5) years imprisonment and a $1500 fine (Count I), and three (3) years imprisonment and a $1500 fine (Count II), to run consecutively. Nelson appeals from these convictions and sentences.

Nelson raises six propositions of error in his appeal:

I. Consolidation of separate and nontransactional offenses, over defense objection, for prosecution in a single information and jury trial prejudiced Nelson and denied his right to due process of law;

II. The State failed to establish that a defense attorney is an officer of the court protected by the provisions of 21 O.S.2001, § 650.6, and there was absolutely no evidence to establish Nelson knew either of his attorneys to be an officer of the court;

III. Admission of prejudicial victim impact evidence including subsequent medical care and treatment speculation regarding future treatment, lifestyle changes and economic loss requires a new trial or favorable modification of the resulting sentences;

IV. The prosecutor’s improper interjection of an extraneous source of law into the considerations before the jury resulted in an inflated sentence;

V. Criminal prosecution of Nelson while his competency remained in question and absent a fully informed jury violated due process and constituted fundamental error; and

VI. The cumulative effect of all the errors addressed above deprived Nelson 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 do not require reversal. Error in Proposition III requires that the sentence for Count I be modified. We find in Proposition I that joinder of Counts I and II, two separate instances of assault and battery on a court officer, was appropriate. We further find that the jury was not incorrectly instructed to treat both counts as one offense. We find in Proposition II that a court-appointed defense attorney, representing a defendant during court proceedings, is an officer of the court for purposes of the statute prohibiting assault and battery on a court officer.

We further find that jurors could reasonably infer from the evidence that Nelson knew anyone working in the courtroom in an official court capacity while court was in session would be viewed as an officer of the court. Any rational juror could find beyond a reasonable doubt that Nelson knew his victims were officers of the court.

We find in Proposition III that evidence presented to support Count I, consisting of the victim’s injuries and prognosis, medical treatment, emotional state, and financial loss was irrelevant. Relevant evidence is that which tends to make any fact of consequence to the action more or less certain probable. To prove the crime of assault and battery on an officer of the court, the State had to show Nelson hit his attorney, knowing he was acting in that capacity, without justifiable or excusable cause. An assault is any willful and unlawful attempt to offer with force or violence to do a corporal hurt to another. Battery is any willful and unlawful use of force or violence upon the person of another. The jury was instructed that any touching of a person regardless of how slight may be sufficient to constitute force. The offense does not have injury as an element. Although Nelson failed to object to this evidence, its admission in combination with the prosecutor’s closing argument deprived him of a right to a fair sentencing recommendation. In closing, the prosecutor emphasized Bingaman’s improper testimony and urged jurors to impose punishment based on his injuries and the attack’s effect on his life. Jurors imposed the maximum prison sentence for Bingaman, but only recommended a three-year sentence for Smith, who had no injuries. The record suggests the jury’s sentence determination was improperly affected by this irrelevant evidence. This Proposition is granted, and Nelson’s sentence on Count I is modified to three (3) years.

We find in Proposition IV that, assuming without deciding that the prosecutor’s argument was improper, there is no plain error. Nelson fails to show he was prejudiced by the remarks. We find in Proposition V that the trial court did not abuse its discretion in refusing to allow one of Nelson’s witnesses at the competency trial. We further find that any rational trier of fact could have found beyond a reasonable doubt that Nelson was competent. We find that Nelson was not prejudiced by irrelevant language in jury instructions and the prosecutor did not err in questioning or closing argument. Nelson’s behavior during the pretrial proceedings and trial did not raise a threshold question regarding his competency, and the trial court did not neglect its ongoing duty to ensure Nelson was competent during his trial.

We find in Proposition VI that the error in admission of evidence raised in Proposition III requires sentence modification. We found no error in any of Nelson’s other propositions of error. Where there is no error, there can be no cumulative error.

Decision

The Judgments of the District Court are AFFIRMED. The Sentence in Count II is AFFIRMED. The Sentence in Count I is MODIFIED to three (3) years imprisonment and a $1500 fine. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2006), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

ATTORNEYS AT TRIAL

RONALD (SKIP) KELLY
200 NORTH HARVEY, STE. 810
OKLAHOMA CITY, OKLAHOMA 73105
ATTORNEY FOR DEFENDANT

KIMBERLY D. HEINZE
P.O. BOX 926
NORMAN, OKLAHOMA 73070
ATTORNEY FOR PETITIONER

LESLEY MARCH
W.A. DREW EDMONDSON
ASSISTANT DISTRICT ATTORNEYS
ATTORNEY GENERAL OF OKLAHOMA
217 NORTH THIRD STREET
CHICKASHA, OKLAHOMA 73018
ATTORNEY FOR STATE

THEODORE M. PEEPER
ASSISTANT ATTORNEY GENERAL
2300 N. LINCOLN BOULEVARD
STATE CAPITOL BUILDING
OKLAHOMA CITY, OKLAHOMA 73105
ATTORNEYS FOR RESPONDENT

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Footnotes:

1. 22 O.S.2001, §§ 436, 438, 439; Cummings v. State, 1998 OK CR 45, ¶ 15, 968 P.2d 821.
2. 21 O.S.2001, § 650.6(B).
3. 12 O.S.2001, § 2401.
4. 21 O.S.2001, § 641.
5. 21 O.S.2001, § 642.
6. 20 O.S.2001, § 3001.1.
7. Davis v. State, 2004 OK CR 36, 103 P.3d 70, 79.
8. 22 O.S.2001, § 1175.4.
9. Ryder v. State, 2004 OK CR 2, 83 P.3d 856, 869 cert. denied, 543 U.S. 886, 125 S.Ct. 215, 60 L.Ed.2d 146.
10. Lambert v. State, 1994 OK CR 79, 888 P.2d 494, 502; Campbell v. State, 1981 OK CR 136, 636 P.2d 352, 355.
11. Malicoat v. State, 2000 OK CR 1, 992 P.2d 383, 401.
12. Drope v. Missouri, 420 U.S. 162, 181, 95 S.Ct. 896, 908, 43 L.Ed.2d 103; Cargle v. State, 1995 OK CR 77, 909 P.2d 806, 815-16.
13. Alverson v. State, 1999 OK CR 21, 983 P.2d 498, 520.
14. Powell v. State, 1995 OK CR 37, ¶ 35, 906 P.2d 765, 775.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 650.6 - Assault and Battery Upon an Officer
• Okla. Stat. tit. 22 § 3001.1 - Evidence and Competency
• Okla. Stat. tit. 22 § 1175.4 - Admission of Evidence
• Okla. Stat. tit. 12 § 2401 - Relevant Evidence
• Okla. Stat. tit. 12 § 2402 - Exclusion of Relevant Evidence

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:

• Cummings v. State, 1998 OK CR 45, II 15, 968 P.2d 821
• Glass v. State, 1985 OK CR 65, 701 P.2d 765, 768
• Dodson v. State, 1977 OK CR 140, 562 P.2d 916, 925
• Whirlpool Corp. et al v. Henry, 2005 OK CR 7, 110 P.3d 83, 84
• Byrd v. Caswell, 2001 OK CR 29, 34 P.3d 647, 649
• Dodd v. State, 2004 OK CR 31, 100 P.3d 1017, 1041-42, cert. denied, U.S. 126 S.Ct. 62, 163 L.Ed.2d 89 (2005)
• Davis v. State, 2004 OK CR 36, 103 P.3d 70, 79
• Ryder v. State, 2004 OK CR 2, 83 P.3d 856, 869 cert. denied, 543 U.S. 886, 125 S.Ct. 215, 60 L.Ed.2d 146
• Malicoat v. State, 2000 OK CR 1, 992 P.2d 383, 401
• Lambert v. State, 1994 OK CR 79, 888 P.2d 494, 502
• Campbell v. State, 1981 OK CR 136, 636 P.2d 352, 355
• Drope v. Missouri, 420 U.S. 162, 181, 95 S.Ct. 896, 908, 43 L.Ed.2d 103
• Cargle v. State, 1995 OK CR 77, 909 P.2d 806, 815-16
• Alverson v. State, 1999 OK CR 21, 983 P.2d 498, 520
• Powell v. State, 1995 OK CR 37, IT 35, 906 P.2d 765, 775