Desiray Jaibai Allen v The State Of Oklahoma

F-2005-471

Filed: Dec. 14, 2006

Not for publication

Prevailing Party: Desiray Jaibai Allen

Summary

Desiray Jaibai Allen appealed his conviction for Distribution of Controlled Substance. The conviction and sentence were modified to fifteen years on each of the two counts. Judge Lumpkin dissented.

Decision

The Judgments of the District Court are AFFIRMED. The Sentences on Counts I and III are MODIFIED to fifteen (15) years on each count. 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 irrelevant, improper and misleading evidence during the penalty phase that resulted in an inflated and excessive sentence?
• Did prosecutorial misconduct throughout the trial violate Allen's rights to due process and a fair trial?
• Was irrelevant and inflammatory evidence erroneously admitted, resulting in an unfair trial and denial of due process?
• Did the erroneous admission of hearsay evidence deprive Allen of his Sixth Amendment right to confrontation?
• Was Allen deprived of effective assistance of counsel?
• Did the cumulative effect of all errors deprive Allen of a fair trial?

Findings

• the court erred in admitting irrelevant and improper evidence during the penalty phase, requiring modification of the sentence
• the prosecutorial misconduct claims did not rise to the level of plain error or affect the modified sentences
• some irrelevant evidence was not prejudicial and did not impact the trial outcome
• errors concerning hearsay evidence did not rise to plain error as key witnesses identified the defendant
• counsel was not ineffective for failing to object to evidence and arguments during the trial
• cumulative errors did not warrant relief beyond the modification of the sentences

F-2005-471

Dec. 14, 2006

Desiray Jaibai Allen

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

CHAPEL, PRESIDING JUDGE: Desiray Jaibai Allen was tried by jury and convicted of Counts I, and III Distribution of Controlled Substance in violation of 63 O.S.Supp.2003, § 2-401, after former conviction of a felony, in the District Court of Custer County, Case No. CF-04-118.¹ In accordance with the jury’s recommendation, the Honorable Jacqueline P. Duncan sentenced Allen to two terms of twenty (20) years imprisonment, one on each count. Allen appeals from this conviction and sentence. Allen raises six propositions of error in support of his appeal:

I. Irrelevant, Improper and misleading evidence during the penalty phase resulted in an inflated and excessive sentence;

II. Prosecutorial misconduct throughout the trial so infected the proceedings with unfairness that Allen’s rights to due process and a fair trial were violated;

III. Irrelevant and inflammatory evidence was erroneously admitted, resulting in an unfair trial and denial of due process;

IV. The erroneous admission of hearsay evidence in Allen’s case deprived him of his Sixth Amendment right to confrontation;

V. Allen was deprived of effective assistance of counsel; and

VI. The cumulative effect of all errors was to deprive Allen of a fair trial.

¹ Allen was acquitted of Count II, Distribution of Controlled Substance Within 2000 Feet of a Public Park.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, exhibits, and briefs, we find that reversal is not required by the law and evidence. However, error in Proposition I requires that Allen’s sentence be modified. We find in Proposition I that, while the Judgment and Sentence for Allen’s previous conviction was admissible to prove his alleged prior offense,² it was plain error to admit the other documents included in that exhibit. These included (a) Form 13.8(A), the trial court’s additional findings at the time of sentencing, which clearly states on its face that it is not to be admitted into evidence in any future prosecution; (b) Allen’s driver’s license master record and traffic record, showing thirty offenses and six Department of Motor Vehicles actions, plus fees and documents received and reinstatements; and (c) Allen’s OSBI record, showing seventeen offenses (not including the charged offenses) which include two charges of stalking, assault on an officer, and escape. None of these documents were appropriate for the jury’s consideration of either guilt or an appropriate sentence.³ In combination with irrelevant evidence and argument, these documents may have contributed to the jury’s determination of sentence. Accordingly, we modify Allen’s sentences to fifteen (15) years on each count.

We find in Proposition II that, reviewing Allen’s claims of prosecutorial misconduct, any errors either do not rise to the level of plain error, or are resolved by our modification of Allen’s sentences.⁴ We find in Proposition III that some irrelevant evidence was not prejudicial,⁶ and any effect other irrelevant evidence may have had on Allen’s sentence is resolved by our modification of his sentences.⁷ We find in Proposition IV that any error in hearsay evidence of identification does not rise to the level of plain error, as both the informant and a defense witness identified him during their testimony. We find in Proposition V that counsel was not ineffective for failing to object to evidence and argument.⁸ We find in Proposition VI that the errors in accumulation do not warrant relief beyond modification of Allen’s sentence.⁹

Decision

The Judgments of the District Court are AFFIRMED. The Sentences on Counts I and III are MODIFIED to fifteen (15) years on each count. 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. ¹ Allen was acquitted of Count II, Distribution of Controlled Substance Within 2000 Feet of a Public Park.
2. ² Camp v. State, 1983 OK CR 74, 664 P.2d 1052, 1053; Lawson v. State, 1971 OK CR 242, 486 P.2d 759, 762.
3. ³ Tucker v. State, 1972 OK CR 170, 499 P.2d 458, 461; Cook v. State, 1972 OK CR 169, 499 P.2d 456, 457; Lawson, 486 P.2d at 762; Bean v. State, 1964 OK CR 59, 392 P.2d 753, 755.
4. 4 20 O.S.2001, § 3001.1.
5. 5 Hanson v. State, 2003 OK CR 12, 72 P.3d 40, 50 n. 28; Nickell v. State, 1994 OK CR 63, 885 P.2d 670, 673.
6. 6 Rogers v. State, 1995 OK CR 8, 890 P.2d 959, 971; Lalli v. State, 1994 OK CR 15, 870 P.2d 175, 177.
7. 7 This includes evidence that the informant agreed to help police because he was tired of seeing the drug activity in the Weatherford area.
8. 8 Hooks v. State, 2001 OK CR 1, 19 P.3d 294, 317; Williams v. Taylor, 529 U.S. 362, 393, 120 S.Ct. 1495, 1513, 146 L.Ed.2d 389 (2000); Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 2535, 156 L.Ed.2d 471 (2003); Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 693 (1984).
9. 9 Fitzgerald v. State, 1998 OK CR 68, 972 P.2d 1157, 1175; Peninger v. State, 1991 OK CR 60, 811 P.2d 609, 613.

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-401 (2003) - Distribution of Controlled Substance
• Okla. Stat. tit. 20 § 3001.1 (2001) - Evidence
• Okla. Stat. tit. 12 § 2401 (2001) - Relevant Evidence
• 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:

• Camp v. State, 1983 OK CR 74, 664 P.2d 1052, 1053
• Lawson v. State, 1971 OK CR 242, 486 P.2d 759, 762
• Tucker v. State, 1972 OK CR 170, 499 P.2d 458, 461
• Cook v. State, 1972 OK CR 169, 499 P.2d 456, 457
• Bean v. State, 1964 OK CR 59, 392 P.2d 753, 755
• Malicoat v. State, 2000 OK CR 1, 992 P.2d 383, 394-95
• Hammon v. State, 1995 OK CR 33, 898 P.2d 1287, 1306
• Burks v. State, 1979 OK CR 10, 594 P.2d 771
• Jones v. State, 1989 OK CR 7, 772 P.2d 922
• Hanson v. State, 2003 OK CR 12, 72 P.3d 40, 50 n. 28
• Nickell v. State, 1994 OK CR 63, 885 P.2d 670, 673
• Hager v. State, 1980 OK CR 51, 612 P.2d 1369, 1373-74
• Wing v. State, 1978 OK CR 53, 579 P.2d 196, 200
• Brewer v. State, 1982 OK CR 128, 650 P.2d 54, 58
• White v. State, 1954 OK CR 30, 268 P.2d 310, 315
• Morehead v. State, 12 Okl.Cr. 62, 151 P. 1183, 1190
• Hamilton v. State, 38 Okl. 62, 259 P. 168, 172
• Golden v. State, 23 Okl. Cr. 243, 214 P. 946, 947-48
• Ryder v. State, 2004 OK CR 2, 83 P.3d 856, 875
• Rogers v. State, 1995 OK CR 8, 890 P.2d 959, 971
• Lalli v. State, 1994 OK CR 15, 870 P.2d 175, 177
• Hooks v. State, 2001 OK CR 1, 19 P.3d 294, 317
• Williams v. Taylor, 529 U.S. 362, 393, 120 S.Ct. 1495, 1513, 146 L.Ed.2d 389 (2000)
• Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 2535, 156 L.Ed.2d 471 (2003)
• Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 693 (1984)
• Fitzgerald v. State, 1998 OK CR 68, 972 P.2d 1157, 1175
• Peninger v. State, 1991 OK CR 60, 811 P.2d 609, 613