Kendall Dewayne Carr v The State Of Oklahoma

F-2005-1150

Filed: Oct. 30, 2006

Not for publication

Prevailing Party: Kendall Dewayne Carr

Summary

Kendall Dewayne Carr appealed his conviction for First Degree Robbery by Force and Fear and False Personation. Conviction and sentence were reversed for the robbery charge and affirmed for the false personation charge. Judge Lumpkin dissented on the robbery issue.

Decision

The Judgment and Sentence of the District Court on Count I is hereby REVERSED and REMANDED for a new trial. The Judgment and Sentence of the District Court on Count II is hereby AFFIRMED. 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 violation of the defendant's constitutional rights to a trial by jury due to the trial court's use of an unsanctioned "dynamite charge"?
• Did the trial court's instruction to the jury fail to adhere to the uniform jury instruction guidelines?
• Was the trial court's instruction coercive by not admonishing jurors to hold their honestly held beliefs?
• Should the appellate court review the trial court's instruction for plain error due to lack of objection from defense counsel?
• Was reversal of the conviction for First Degree Robbery warranted based on the coercive nature of the jury instruction?

Findings

• the court erred in providing a coercive Allen charge that failed to admonish jurors not to abandon their honestly held beliefs
• the conviction and sentence for Count I is reversed and remanded for a new trial
• the conviction and sentence for Count II is affirmed

F-2005-1150

Oct. 30, 2006

Kendall Dewayne Carr

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

CHAPEL, PRESIDING JUDGE:

Kendall Dewayne Carr was tried by jury and convicted of Count I: First Degree Robbery by Force and Fear, After Former Conviction of Two or More Felonies, in violation of 21 O.S.2001, § 797; and Count II: False Personation, After Former Conviction of Two or More Felonies, in violation of 21 O.S.2001, § 1531.4, in the District Court of Cleveland County, Case No. CF-04-499. In accordance with the jury’s recommendation, the Honorable Lori M. Walkley sentenced Carr to imprisonment for twenty (20) years and a $1000 fine (Count I) and imprisonment for four (4) years and a $1000 fine (Count II), to run concurrently. Carr appeals from his conviction and sentence for First Degree Robbery. Carr raises one proposition of error in support of his appeal:

I. The trial court’s use of an unsanctioned and overtly coercive dynamite charge deprived Mr. Carr of his constitutional rights to trial by jury and to a fundamentally fair trial.¹

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, exhibits and briefs, we find that reversal of Count I is required by the law and evidence. We find that the trial court’s Allen² charge was coercive because it failed to admonish jurors not to abandon their honestly held beliefs.³ Because defense counsel did not object to the instruction given by the court, we review for and find plain error.⁴ The trial judge’s instruction did not conform to the uniform jury instruction, OUJI-CR (2d) 10-11.⁵ It failed to admonish the jury not to surrender their honest convictions and not to find a fact or concur in a verdict, which in good conscience any of them did not support. Well-settled law indicates that this exhortation is necessary whenever a deadlocked jury is returned to deliberations. This Court recently found a similar omission to be reversible error.⁶ This incorrect instruction substantially violated Carr’s statutory right to have his jury instructed according to the law.⁷

Carr’s jury could not agree whether he was guilty of robbery. The trial court ordered jurors to continue deliberating, encouraged jurors in the minority to consider the majority position, and emphasized the importance of a unanimous decision. This Court cannot speculate on what might have happened had jurors also been told not to surrender their honest convictions or return a verdict they felt in good conscience to be untrue.

Decision

The Judgment and Sentence of the District Court on Count I is hereby REVERSED and REMANDED for a new trial. The Judgment and Sentence of the District Court on Count II is hereby AFFIRMED.

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
BILLY BOCK
MICHELLE GREEN
6402 N. SANTE FE AVE., SUITE A
OKLAHOMA CITY, OKLAHOMA 73116
ATTORNEY FOR DEFENDANT

ATTORNEYS ON APPEAL
ROBERT W. JACKSON
STEVEN M. PRESSON
JACKSON & PRESSON, P.C.
207 WEST MAIN STREET
P.O. BOX 5392
NORMAN, OK 73070
ATTORNEY FOR APPELLANT

MIKE MCDANEL
W.A. DREW EDMONDSON
JOHN HANCOCK
ATTORNEY GENERAL OF OKLAHOMA
VICTORIA GILLISPIE
CHRISTY A. BAKER
ASSISTANT DISTRICT ATTORNEY
ASSISTANT ATTORNEY GENERAL
DISTRICT ATTORNEY’S OFFICE
2300 N. LINCOLN BOULEVARD
116 S. PETERS
112 STATE CAPITOL BUILDING
OKLAHOMA CITY, OKLAHOMA 73105
ATTORNEYS FOR APPELLEE

OPINION BY: CHAPEL, P. J.

LUMPKIN, V.P.J.: DISSENT

C. JOHNSON, J.: DISSENT

A. JOHNSON, J.: CONCUR

LEWIS, J.: CONCUR

² From Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896), this instruction encourages deadlocked juries to continue deliberations and reach a verdict.

³ Kamees v. State, 1991 OK CR 91, I 9, 815 P.2d 1204, 1207.

⁴ The trial court shall use the applicable uniform instruction, unless the court determines that the instruction does not accurately state the law. Flores v. State, 1995 OK CR 9, 896 P.2d 558, 560. OUJI-CR (2d) 10-11 is an accurate statement of the law.

⁵ Hooks v. State, 2001 OK CR 1, I 26, 19 P.3d 294, 310; Mooney v. State, 1999 OK CR 34, 66, 990 P.2d 875; Kamees v. State, 1991 OK CR 91, I 10, 815 P.2d 1204, 1207; Drew v. State, 1989 OK CR 1, I 19, 771 P.2d 224, 229; Thomas v. State, 1987 OK CR 113, I 21, 741 P.2d 482, 488; Brogie v. State, 1985 OK CR 2, I 30, 695 P.2d 538, 545.

⁶ Mooney, 1999 OK CR 34, I 67, 990 P.2d at 893 (where last Allen charge was two hours previous to instruction at issue, trial court erred in failing to admonish jury to hold to conscientiously held convictions).

⁷ 20 O.S.2001, § 3001.1; Norton v. State, 2002 OK CR 10, 43 P.3d 404, 409.

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Footnotes:

1. Okla. Stat. tit. 21 § 797
2. Okla. Stat. tit. 21 § 1531.4
3. Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896)
4. Drew v. State, 1989 OK CR 1, ¶ 19, 771 P.2d 224, 229
5. Kamees v. State, 1991 OK CR 91, ¶ 9, 815 P.2d 1204, 1207
6. Flores v. State, 1995 OK CR 9, 896 P.2d 558, 560
7. Hooks v. State, 2001 OK CR 1, ¶ 26, 19 P.3d 294, 310
8. Mooney v. State, 1999 OK CR 34, ¶ 66, 990 P.2d 875
9. Thomas v. State, 1987 OK CR 113, ¶ 21, 741 P.2d 482, 488
10. Brogie v. State, 1985 OK CR 2, ¶ 30, 695 P.2d 538, 545
11. Norton v. State, 2002 OK CR 10, 43 P.3d 404, 409
12. Lott v. State, 2004 OK CR 27, ¶ 56, 98 P.3d 318, 338
13. Ellis v. Ward, 2000 OK CR 18, ¶ 4, 13 P.3d 985, 986
14. Dill v. State, 2005 OK CR 20, ¶ 11, 122 P.3d 866, 869
15. Mollet v. State, 1997 OK CR 28, ¶ 48, 939 P.2d 1, 13

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 797 - First Degree Robbery
• Okla. Stat. tit. 21 § 1531.4 - False Personation
• Okla. Stat. tit. 20 § 3001.1 - Jury Instructions

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:

• Drew v. State, 1989 OK CR 1, I 19, 771 P.2d 224, 229.
• Kamees v. State, 1991 OK CR 91, I 9, 815 P.2d 1204, 1207.
• Flores v. State, 1995 OK CR 9, 896 P.2d 558, 560.
• Hooks v. State, 2001 OK CR 1, I 26, 19 P.3d 294, 310.
• Mooney v. State, 1999 OK CR 34, 66, 990 P.2d 875.
• Thomas v. State, 1987 OK CR 113, I 21, 741 P.2d 482, 488.
• Brogie v. State, 1985 OK CR 2, I 30, 695 P.2d 538, 545.
• Norton v. State, 2002 OK CR 10, 43 P.3d 404, 409.
• Lott v. State, 2004 OK CR 27, II 56, 98 P.3d 318, 338.
• Ellis v. Ward, 2000 OK CR 18, II 4, 13 P.3d 985, 986.
• Dill v. State, 2005 OK CR 20, II 11, 122 P.3d 866, 869.
• Mollet v. State, 1997 OK CR 28, 48, 939 P.2d 1, 13.