Denise Sue Watie v The State Of Oklahoma

F-2005-129

Filed: Apr. 3, 2006

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Denise Sue Watie appealed her conviction for sexually abusing her son. Conviction and sentence were modified from eight years to six years of imprisonment. Judge Chapel dissented regarding the extent of the sentence modification.

Decision

The Judgment of the district court is AFFIRMED. The Sentence is MODIFIED to six years imprisonment. 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 unfair prejudice to the Appellant by the court's error in allowing the State to present bolstering and cumulative evidence?
• Did the court err in failing to suppress Appellant's involuntary confession, thereby denying her a fair trial?
• Should Appellant's statements to police have been suppressed because she was not advised of her Miranda rights prior to questioning?
• Was Appellant denied a fair trial by the court's refusal to instruct the jury that at least 85% of the sentence set by the jury would be served in prison?
• Is Appellant's sentence excessive and should it be modified?

Findings

• the court erred in allowing the State to present bolstering and cumulative evidence
• the court did not err in failing to suppress Appellant's involuntary confession
• Appellant's statements to police were not required to be suppressed as Miranda rights were not applicable
• the court erred in refusing to instruct the jury on the 85% rule for sentence serving
• Appellant's sentence was modified from eight years to six years imprisonment

F-2005-129

Apr. 3, 2006

Denise Sue Watie

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

MICHAEL S. RICHIE C. JOHNSON, JUDGE:

Appellant, Denise Sue Watie, was convicted by a jury in Tulsa County District Court, Case No. CF-2004-1533, of Sexually Abusing a Minor (10 O.S.Supp.2002, § 7115(E)). The jury recommended punishment of eight years imprisonment. On January 24, 2005, the Honorable Thomas C. Gillert, District Judge, sentenced Appellant in accordance with the jury’s recommendation, and Appellant timely filed this appeal.

1 Appellant raises the following propositions of error:
1. Appellant was unfairly prejudiced by the court’s error in allowing the State to present bolstering and cumulative evidence.
2. Appellant was denied a fair trial by the court’s error in failing to suppress Appellant’s involuntary confession.
3. Appellant’s statements to police should have been suppressed because she was not advised of her Miranda rights prior to questioning.
4. Appellant was denied a fair trial by the court’s refusal to instruct the jury that at least 85% of the sentence set by the jury would be served in prison.

1 Appellant was convicted of participating in the sexual abuse of her son. Appellant’s boyfriend and co-defendant, David Raborn, ultimately pled guilty and received a sentence of eight years imprisonment with four years suspended.
5. Appellant’s sentence is excessive and should be modified.

After thorough consideration of the propositions, and the entire record before us on appeal, including the original record, transcripts, and briefs of the parties, we affirm the judgment, but modify the sentence.

As to Proposition 1, the complainant’s videotaped interview with a forensic interviewer was admitted at trial consistent with 12 O.S.2001, § 2803.1 which, by its own terms, permits certain out-of-court statements that may very well be repetitive of certain portions of a testifying complainant’s testimony. The trial court followed the procedures outlined in the statute; admission of the tape was not an abuse of discretion. 12 O.S.2001, §§ 2403, 2803.1; Wauqua U. State, 1985 OK CR 6, 11, 694 P.2d 532, 535; Hayden v. State, 1986 OK CR 10, 11, 713 P.2d 595, 597. Proposition 1 is denied.

As to Propositions 2 and 3, authorities interviewed Appellant at her home, in the company of others, after Appellant’s son made allegations of sexual abuse and was taken into protective custody. She eventually made incriminating admissions during the interview. Appellant acknowledged, before the interview began, that she was free to terminate it at any time. Appellant was not under arrest, or restrained in any way, when the interview was conducted; when the authorities were eventually asked to leave, they did. Because the totality of circumstances do not support a finding that the interview amounted to a custodial interrogation, the officers were not required to warn Appellant of her rights pursuant to Miranda U. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). See California v. Beheler, 463 U.S. 1121, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983); Bryan v. State, 1997 OK CR 15, 935 P.2d 338, 351; Aylor U. State, 1987 OK CR 190, 10-14, 742 P.2d 591, 593-94 (interview with social worker was not a custodial setting that would require Miranda warnings). The interview with Appellant was frank and sometimes emotional. The authorities warned Appellant that her failure to either confirm or deny the accusations against her boyfriend would not be helpful in getting her children returned to her. At no time was Appellant threatened to admit any particular conduct. Considering the totality of circumstances, and having considered the audio recording of the interview, we cannot say that Appellant’s statements were involuntary. Van White U. State, 1999 OK CR 10, 45, 990 P.2d 253, 267. Propositions 2 and 3 are denied.

As to Proposition 4, we agree that on her specific and timely request, Appellant’s jury should have been informed that, by law, she must serve 85% of any sentence imposed. Anderson U. State, 2006 OK CR 6, 25, P.3d . Appellant contends that a sentence modification is an appropriate remedy, and under the circumstances, we agree. Appellant’s sentence is hereby MODIFIED from eight years imprisonment to six years imprisonment. Our disposition of Proposition 4 renders Proposition 5 moot.

DECISION

The Judgment of the district court is AFFIRMED

The Sentence is MODIFIED to six years imprisonment.

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.

Click Here To Download PDF

Footnotes:

1. 10 O.S.Supp.2002, § 7115(E)
2. 12 O.S.2001, § 2803.1
3. 12 O.S.2001, §§ 2403, 2803.1
4. Miranda U. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)
5. California v. Beheler, 463 U.S. 1121, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983)
6. Bryan v. State, 1997 OK CR 15, 935 P.2d 338, 351
7. Aylor U. State, 1987 OK CR 190, II 10-14, 742 P.2d 591, 593-94
8. Van White U. State, 1999 OK CR 10, I 45, 990 P.2d 253, 267
9. Anderson U. State, 2006 OK CR 6, I 25, P.3d

Oklahoma Statutes citations:

• Okla. Stat. tit. 10 § 7115 (2002) - Sexually Abusing a Minor
• Okla. Stat. tit. 12 § 2803.1 (2001) - Out-of-Court Statements
• Okla. Stat. tit. 12 § 2403 (2001) - Exclusionary Rule
• Okla. Stat. tit. 22 § 18, App. (2005) - Oklahoma Court of Criminal Appeals Rules
• Okla. Stat. tit. 21 § 701.8 (2011) - Sentencing

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:

• Bramlett v. State, 2018 OK CR 19, I 36, 422 P.3d 788, 799-800
• Wauqua v. State, 1985 OK CR 6, I 11, 694 P.2d 532, 535
• Hayden v. State, 1986 OK CR 10, I 11, 713 P.2d 595, 597
• Bryan v. State, 1997 OK CR 15, 935 P.2d 338, 351
• Aylor v. State, 1987 OK CR 190, II 10-14, 742 P.2d 591, 593-94
• Van White v. State, 1999 OK CR 10, I 45, 990 P.2d 253, 267
• Anderson v. State, 2006 OK CR 6, I 25, P.3d