Delbert Earl McNeil, Jr. v The State Of Oklahoma
F-2004-197
Filed: Jun. 8, 2005
Not for publication
Prevailing Party: Delbert Earl McNeil, Jr.
Summary
Delbert Earl McNeil, Jr. appealed his conviction for possession of a controlled dangerous substance, resisting an officer, and speeding. The conviction and sentence were reversed, and a new trial was ordered. Judge Lumpkin dissented.
Decision
The Judgments and Sentences of the District Court on Counts I and III are REVERSED and REMANDED for a new trial. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. 2005, the MANDATE is ORDERED issued upon the delivery and filing of this decision.
Issues
- Was there improper admission of evidence of other crimes or bad acts unrelated to the charges on trial?
- Did the evidentiary harpoons injected by Trooper Anderson deny McNeil a fair trial?
- Was there prosecutorial impropriety in defining "reasonable doubt" during voir dire, and did the trial court fail to properly admonish the jury regarding defense objections?
- Did McNeil's sentence on Count V for speeding exceed the maximum allowed by statute?
Findings
- the court erred in admitting evidence of other crimes or bad acts unrelated to the charges on trial
- the court erred due to the evidentiary harpoons injected by Trooper Anderson during trial
- the court erred regarding the prosecutor's definition of "reasonable doubt" during voir dire
- the sentencing on Count V - speeding, exceeded the maximum allowed by statute
F-2004-197
Jun. 8, 2005
Delbert Earl McNeil, Jr.
Appellantv
The State Of Oklahoma
Appellee
v
The State Of Oklahoma
Appellee
SUMMARY OPINION
CHAPEL, PRESIDING JUDGE: Delbert Earl McNeil, Jr., was tried by jury and convicted of Count I, Possession of a Controlled Dangerous Substance in violation of 63 O.S.2001, § 2-402; Count III, Resisting an Officer (Misdemeanor) in violation of 21 O.S.2001, § 268; and Count V, Speeding in violation of 47 O.S.Supp.2003, § 11-801, in the District Court of McClain County, Case No. CF-2003-180. In accordance with the jury’s recommendation the Honorable Candace L. Blalock sentenced McNeil to two (2) years imprisonment (Count I); a $500 fine (Count III); and ten (10) days incarceration in the county jail and a $50.00 fine (Count V). McNeil received credit for time served on the ten days in county jail, and all fines were suspended. McNeil appeals these convictions and sentences.
McNeil raises four propositions of error on appeal:
I. McNeil was denied a fair trial by improper admission of evidence of other crimes or bad acts unrelated to the charges on trial;
II. McNeil was denied a fair trial by the evidentiary harpoons Trooper Anderson injected in his trial testimony;
III. McNeil was denied a fair trial by the prosecutor’s impropriety in defining reasonable doubt during voir dire, and by the trial court’s failure to advise the jury that the defense objection had been sustained and refusal to admonish the jury, as requested by the defense; and
IV. McNeil’s sentence on Count V – speeding, exceeds the maximum allowed by statute.
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 reversal. We find in Proposition II that the evidentiary harpoons and grossly improper testimony given by the officer were not cured by the trial court. Anderson’s testimony was rife with harpoons designed to prejudice Anderson. Normally, we would hold that the trial court’s admonition to the jury cured error in two of the statements. However, the cumulative effect of Anderson’s testimony was to suggest that McNeil, to his knowledge, was a much worse person, and much more dangerous criminal, than the evidence before this jury suggested. The evidence for the felony of possession of methamphetamine was circumstantial and not overwhelming. Anderson’s repeated references to other crimes, McNeil’s supposed dangerousness, and (particularly) methamphetamine manufacture, could only have improperly influenced the jury’s conclusion that, if methamphetamine was present at the scene, it must have been McNeil’s. McNeil deserved a trial before a jury free from this kind of improper inference. A trial court’s admonitions will not cure error where, after considering the evidence, the error appears to have determined the verdict. This proposition is granted, and the case is reversed and remanded for a new trial. As the case must be reversed, we do not consider McNeil’s remaining propositions of error.
Decision
The Judgments and Sentences of the District Court on Counts I and III are REVERSED and REMANDED for a new trial. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. 2005, the MANDATE is ORDERED issued upon the delivery and filing of this decision.
ATTORNEYS AT TRIAL
CHARLES E. DOUGLAS
102C EAST EUFALA
P.O. BOX 472
NORMAN, OKLAHOMA 73070
ATTORNEY FOR DEFENDANT
ATTORNEYS ON APPEAL
S. GAIL GUNNING
P.O. BOX 926
NORMAN, OKLAHOMA 73070
ATTORNEY FOR PETITIONER
W.A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA
KIMBERLY CONYERS
TRISHA MISAK
ASSISTANT DISTRICT ATTORNEYS
JULIAN S. SMITH
ASSISTANT ATTORNEY GENERAL
MCLAIN COUNTY DISTRICT ATTORNEY OFFICE
121 NORTH 2ND, SUITE 212
PURCELL, OKLAHOMA 73080
ATTORNEYS FOR STATE
OPINION BY: CHAPEL, P. J.
LUMPKIN, V.P.J.: DISSENT
C. JOHNSON, J.: CONCUR
A. JOHNSON, J.: CONCUR
DISSENT: LUMPKIN, VICE PRESIDING JUDGE
The opinion of the Court uses far too much energy looking at Trooper Anderson’s alleged bias against Appellant, and neglects to review the actual issues being declared evidentiary harpoons. A review of the claims reveals one that the trial judge allowed into evidence for questioning on cross-examination, one that did not even receive an objection from defense counsel, one that was invited by defense counsel, and two that were sustained, but do not even come close to the level that warrant their consideration as harpoons. A claim-by-claim review exposes the puffery being applied to these harpoons and a disregard of what were in actuality mere statements of fact, not a showing of any bias.
1. Trooper Anderson’s Dangerous Comment
During Trooper Anderson’s direct testimony of what occurred as he approached Appellant’s vehicle, he mentioned that based on his past experience with the Appellant, he was to be considered dangerous. Following an objection and bench conference, the trial judge admonished the jury to disregard the comment. This Court has consistently held that when inadmissible evidence or an improper comment is presented to a jury, an admonishment to the jury by the court that the evidence or comment is not to be considered will cure any error. Because the trial judge properly admonished the jury the error was cured.
2. Suspended Driver’s License
Appellant claims that a harpoon arose at trial when Trooper Anderson stated that he was pretty sure that [Appellant’s] driver’s license was still suspended. When defense counsel objected to the response, the trial judge overruled and suggested counsel make his point on cross examination. Determining whether an evidentiary harpoon has been thrown requires the six steps this Court applied in Ochoa V. State. The evidence does not support a finding of willful intent to jab or calculated prejudice against the Appellant.
3. Inventory search of the vehicle.
Trooper Anderson described the results of his search concluding that several items were used to manufacture methamphetamine. Defense counsel objected, and the trial judge sustained the objection. There is no indication in the line of questioning that this was willfully jabbed, or calculated to prejudice the defendant.
4. Testimony About the Gas Can
Trooper Anderson’s testimony on cross-examination regarding a gas can in the bed of Appellant’s truck indicates that the can had the appearance of one commonly used in methamphetamine manufacture. The response was invited, and no error occurred.
5. Meth Cook testimony
The only comment made at trial by Trooper Anderson that rises to the level of an evidentiary harpoon occurred at the goading of defense counsel. The trial judge noted that the comment was invited, leading to no error in the exchange.
Totality of the evidence
Each allegedly harpooned statement shows clear evidence that they were either invited, cured, or did not exist. Therefore, the judgment of guilt must be sustained, and the sentences should be affirmed except for the modified fine in Count V to $35.00.
Footnotes:
- Okla. Stat. tit. 63 § 2-402
- Okla. Stat. tit. 21 § 268
- Okla. Stat. tit. 47 § 11-801
- Okla. Crim. App. Rule 3.15
- Welch v. State, 2000 OK CR 8, 2 P.3d 356, 369-70
- Anderson v. State, 1999 OK CR 44, 992 P.2d 409, 421
- Al-Mosawi v. State, 1996 OK CR 59, 929 P.2d 270, 284
- Ochoa v. State, 1998 OK CR 41, 963 P.2d 583, 598
- Hooper v. State, 947 P.2d 1090, 1100
Oklahoma Statutes citations:
- Okla. Stat. tit. 63 § 2-402 - Possession of a Controlled Dangerous Substance
- Okla. Stat. tit. 21 § 268 - Resisting an Officer
- Okla. Stat. tit. 47 § 11-801 - Speeding
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:
- Welch v. State, 2000 OK CR 8, 2 P.3d 356, 369-70
- Anderson v. State, 1999 OK CR 44, 992 P.2d 409, 421
- Al-Mosawi v. State, 1996 OK CR 59, 929 P.2d 270, 284
- Ochoa v. State, 1998 OK CR 41, 963 P.2d 583, 598
- Hooper v. State, 947 P.2d 1090, 1100 (Okl.Cr.1997)