James Nye v The State Of Oklahoma

F 2005-41

Filed: May 22, 2006

Not for publication

Prevailing Party: James Nye

Summary

James Nye appealed his conviction for Manufacture or Attempted Manufacture of a Controlled Dangerous Substance (Methamphetamine). The conviction and sentence were originally set at sixty (60) years imprisonment. However, the Court decided to modify his sentence to twenty (20) years instead. Judge Lumpkin dissented, suggesting the sentence should be modified to thirty-five (35) years.

Decision

Mr. Nye's conviction for Manufacture or Attempted Manufacture of a Controlled Dangerous Substance (Methamphetamine), in violation of 63 O.S.2001, § 2-401(G), after former conviction of two felonies, in Grady County District Court, Case No. CF 2004-167, is hereby AFFIRMED, but the sentence is MODIFIED to twenty (20) years imprisonment. 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 the evidence sufficient to corroborate the co-defendant's testimony at jury trial?
• Did the Court's error in allowing the State to present bolstering and cumulative evidence unfairly prejudice Mr. Nye?
• Did prosecutorial misconduct deprive Mr. Nye of a fair trial and contribute to an excessive sentence?
• Did irrelevant, improper, and misleading evidence result in an inflated and excessive sentence?
• Is Mr. Nye's sentence excessive?
• Did the cumulative effect of the errors addressed deprive Mr. Nye of a fair proceeding?

Findings

• the court erred in allowing the admission of State's Exhibit 11, but the error was harmless beyond a reasonable doubt
• the prosecutor's conduct constituted error but did not warrant reversal of the conviction
• the admission of irrelevant and prejudicial evidence regarding prior convictions constituted plain error
• the sentence imposed was excessive and was modified to twenty (20) years imprisonment
• the cumulative effect of the errors did not require further relief

F 2005-41

May 22, 2006

James Nye

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

C. JOHNSON, JUDGE: Appellant, James Nye, was convicted by a jury in Grady County District Court, Case No. CF 2004-167, of Manufacture or Attempted Manufacture of a Controlled Dangerous Substance (Methamphetamine), in violation of 63 O.S.2001, § 2-401(G), after former conviction of two felonies. Jury trial was held before the Honorable John E. Herndon, Associate District Judge. The jury set punishment at sixty (60) years imprisonment. Judgment and Sentence was imposed in accordance with the jury’s verdict. Appellant then filed this appeal.

Mr. Nye raises six (6) propositions of error:
1. The evidence was insufficient to corroborate the co-defendant’s testimony at jury trial;
2. Mr. Nye was unfairly prejudiced by the Court’s error in allowing the State to present bolstering and cumulative evidence;
3. Prosecutorial misconduct deprived Appellant of a fair trial and caused the jury to render an excessive sentence;
4. Irrelevant, improper, and misleading evidence resulted in an inflated and excessive sentence;
5. Mr. Nye’s sentence is excessive; and,
6. The cumulative effect of all the errors addressed above deprived Appellant of a fair proceeding.

After thorough consideration of the propositions raised, the Original Record, Transcripts, briefs and arguments of the parties, we find Mr. Nye’s conviction should be affirmed, but his sentence modified for the reasons set forth below.

The State presented sufficient evidence to sustain the conviction. Spuehler v. State, 1985 OK CR 132, ¶ 7, 709 P.2d 202, 203-204. The accomplice testimony was corroborated by other independent evidence which tended to connect Mr. Nye with the commission of the offense. 22 O.S.2001, § 742; Pink v. State, 2004 OK CR 37, ¶ 16, 104 P.3d 584, 590-591. The admission of State’s Exhibit 11 improperly bolstered the testimony of the accomplice and was cumulative. Its admission was error, but we find it was harmless beyond a reasonable doubt. Mitchell V. State, 1976 OK CR 92, ¶ 13, 549 P.2d 96, 99; see Noyes v. State, 1973 OK CR 446, ¶ 8, 516 P.2d 1368, 1370-1371 (improper to bolster testimony of complaining witness with prior testimony where her direct examination testimony had not been contradicted). No relief is required on Proposition Two.

A prosecutor should not argue as a basis for guilt the defendant’s purported association with known criminals. Murphy v. State, 1977 OK CR 200, ¶¶ 12-14, 565 P.2d 694, 697. The prosecutor improperly focused on the sentences Mr. Nye received for his prior convictions and emphasized his probated and deferred sentences. Dodd v. State, 2004 OK CR 31, ¶ 70, 100 P.3d 1017, 1039 (while a witness’s prior convictions for felony offenses or for any crime involving dishonesty are generally admissible to impeach the witness’s credibility, the nature and details of the offense may not be relevant and may be unduly prejudicial); Cox v. State, 1971 OK CR 486, 491 P.2d 357 (The jury should not be exposed to evidence relating to parole). The prosecutor argued Mr. Nye’s nickname was street slang for intimidating drug people where no evidence suggested that. That comment not only suggested facts not in evidence, but also smacked of name-calling. It is improper for a prosecutor to mislead the jury as to facts not in evidence. Bland v. State, 2000 OK CR 11, ¶ 101, 4 P.3d 702, 728. Allegations of prosecutorial misconduct do not warrant reversal of a conviction or modification of sentence unless their cumulative effect deprived the defendant of a fair trial. Jones v. State, 2006 OK CR 5, ¶ 76, P.3d —.

In several instances, the prosecutor exceeded the boundaries of proper conduct. In conjunction with the error identified in Proposition Four, we find modification is warranted. State’s Exhibits 9 and 10, offered and admitted to prove Mr. Nye’s prior felony convictions, contained irrelevant and prejudicial evidence relating to the dates he entered and left the county jail as well as information concerning suspended and revoked sentences. Admission of this irrelevant and prejudicial evidence constituted plain error. See Holmes v. State, 1983 OK CR 78, ¶ 5, 664 P.2d 1063, 1064 (admission of invalid Judgment and Sentence constituted plain error affecting defendant’s substantial rights and was not waived by failure to object to its admission). While evidence of prior convictions was overwhelming and Mr. Nye himself admitted them, admission of this evidence relating to the actual time he served for those convictions likely prejudiced the jury in its determination of sentence. This error, coupled with the prosecutor’s reference to his sentence probation and revocation and improper comments addressed in Proposition Four, warrant modification of the sentence imposed.

In Proposition Five, Mr. Nye claims the sentence imposed is excessive and we agree. While it is within the appropriate range of punishment, we cannot be sure the admission of prejudicial evidence and the improper conduct of the prosecutor did not contribute to the amount of time the jury imposed. This Court can modify a sentence when it shocks the conscience of the Court or where justice requires. Rea v. State, 2001 OK CR 28, ¶ 3, n. 11, 34 P.3d 148, 151, n. 11. In consideration of the errors identified and the facts of this case, we find the sentence imposed shocks the conscience of the Court and justice requires modification of the sentence to twenty (20) years imprisonment. Because we grant relief in the form of modification of sentence, based upon consideration of the errors previously identified, Appellant’s accumulation of error argument requires no further relief.

DECISION

Mr. Nye’s conviction for Manufacture or Attempted Manufacture of a Controlled Dangerous Substance (Methamphetamine), in violation of 63 O.S.2001, § 2-401(G), after former conviction of two felonies, in Grady County District Court, Case No. CF 2004-167, is hereby AFFIRMED, but the sentence is MODIFIED to twenty (20) years imprisonment. 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.

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Footnotes:

1. 63 O.S.2001, § 2-401(G)
2. 22 O.S.2001, § 742
3. Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-204.
4. Pink v. State, 2004 OK CR 37, I 16, 104 P.3d 584, 590-591.
5. Mitchell v. State, 1976 OK CR 92, I 13, 549 P.2d 96, 99;
6. Noyes v. State, 1973 OK CR 446, I 8, 516 P.2d 1368, 1370-1371.
7. Murphy v. State, 1977 OK CR 200, I 12-14, 565 P.2d 694, 697.
8. Dodd v. State, 2004 OK CR 31, I 70, 100 P.3d 1017, 1039.
9. Cox v. State, 1971 OK CR 486, 491 P.2d 357.
10. Bland v. State, 2000 OK CR 11, I 101, 4 P.3d 702, 728.
11. Jones v. State, 2006 OK CR 5, I 76, P. 3d ---.
12. Holmes v. State, 1983 OK CR 78, I 5, 664 P.2d 1063, 1064.
13. Rea v. State, 2001 OK CR 28, I 3, n. 11, 34 P.3d 148, 151, n. 11.
14. Simpson v. State, 1994 OK CR 40, I 2, 876 P.2d 690, 693.

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-401 (2001) - Manufacture or Attempted Manufacture of a Controlled Dangerous Substance
• Okla. Stat. tit. 22 § 742 (2001) - Accomplice Testimony
• Okla. Stat. tit. 22 § 3.15 (2006) - Mandate Issuance
• Okla. Stat. tit. 21 § 701.8 (2011) - Sentencing Factors
• Okla. Stat. tit. 21 § 701.1 (2011) - Definitions applicable to 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:

• Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-204.
• Pink v. State, 2004 OK CR 37, I 16, 104 P.3d 584, 590-591.
• Mitchell v. State, 1976 OK CR 92, I 13, 549 P.2d 96, 99.
• Noyes v. State, 1973 OK CR 446, I 8, 516 P.2d 1368, 1370-1371.
• Murphy v. State, 1977 OK CR 200, I 12-14, 565 P.2d 694, 697.
• Dodd v. State, 2004 OK CR 31, I 70, 100 P.3d 1017, 1039.
• Cox v. State, 1971 OK CR 486, 491 P.2d 357.
• Bland v. State, 2000 OK CR 11, I 101, 4 P.3d 702, 728.
• Jones v. State, 2006 OK CR 5, I 76, P. 3d ---.
• Holmes v. State, 1983 OK CR 78, I 5, 664 P.2d 1063, 1064.
• Rea v. State, 2001 OK CR 28, I 3, n. 11, 34 P.3d 148, 151, n. 11.
• Simpson v. State, 1994 OK CR 40, I 2, 876 P.2d 690, 693.