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F 2005-522

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Eric Matthew Nimmo v The State of Oklahoma

F 2005-522

Filed: Aug. 1, 2006

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Eric Matthew Nimmo appealed his conviction for robbery by force. The conviction and sentence were initially for thirty-five years in prison and a ten thousand dollar fine. The Court of Criminal Appeals decided that while Nimmo's conviction should stand, his sentence was reduced to twenty years. Judge Thomas C. Gillert, who oversaw the trial, was mentioned during the appeal. Nimmo's appeal raised several issues, including claims that there wasn't enough evidence for his conviction, that he didn't receive a fair trial due to misconduct by the prosecutor, and that his lawyer didn't do a good job defending him. The court examined all these issues and found that the trial had its problems, but overall, the conviction was still valid. The judges agreed that some of the lawyer's mistakes affected the fairness of the trial, leading to the decision to lessen the sentence. In the end, the appeal affirmed the conviction but changed the sentence to twenty years. No dissenting opinion was mentioned.

Decision

The Judgment of the trial court in Tulsa County District Court, Case No. CF 2004-2030, is hereby AFFIRMED but the sentence is hereby MODIFIED from thirty-five (35) years 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 at trial insufficient to support Appellant's conviction?
  • Did various instances of prosecutorial misconduct deny Appellant his right to a fair trial?
  • Did the trial court's comments suggest bias and violate Appellant's right to a fair trial?
  • Was the admission of transactional felonies in the second stage of trial improper and did it constitute ineffective assistance of counsel?
  • Did defense counsel's failure to call witnesses to establish that the robbery was committed by another constitute ineffective assistance of counsel?
  • Did Appellant receive ineffective assistance of counsel in the second stage when his attorney admitted to prior felony convictions?
  • Did the jury instructions regarding reasonable doubt and circumstantial evidence deprive Appellant of his right to due process?
  • Did the accumulation of errors in this case deprive Appellant of due process of law?

Findings

  • the court erred regarding the sufficiency of evidence supporting the conviction
  • the court did not find sufficient evidence of prosecutorial misconduct to deny a fair trial
  • the trial judge's comments were improper but did not prejudice the trial outcome
  • the admission of transactional felonies was improper and constituted ineffective assistance of counsel
  • the claim of ineffective assistance of counsel for not calling witnesses was denied
  • the comment about prior felony convictions was sound trial strategy, thus no relief granted
  • the jury instructions were proper regarding reasonable doubt and circumstantial evidence
  • the accumulation of errors did not warrant additional relief

F 2005-522

Aug. 1, 2006

Eric Matthew Nimmo

Appellant

v

The State of Oklahoma

Appellee

SUMMARY OPINION

C. JOHNSON, JUDGE: Appellant, Eric Matthew Nimmo, was convicted by a jury in Tulsa County District Court, Case No. CF 2004-2030 of Robbery by Force, in violation of 21 P.S.Supp.2002 § 791, after former conviction of two or more felonies. Jury trial was held on January 3rd-5th, 2005, before the Honorable Thomas C. Gillert, District Judge. The jury set punishment at thirty-five (35) years imprisonment and imposed a ten thousand dollar ($10,000.00) fine. Judge Gillert sentenced Mr. Nimmo on January 10, 2005, in accordance with the jury’s verdict. He was granted an appeal out of time by this Court on May 23, 2005. Thereafter, Mr. Nimmo filed this appeal.

Appellant raises eight (8) propositions of error:

1. The evidence at trial was insufficient to support Appellant’s conviction;
2. Various instances of prosecutorial misconduct, including disparaging remarks directed at Appellant’s witnesses and repeated references to the effect that the robbery had upon the victim and the victim’s daughter, served to deny Appellant his right to a fair trial pursuant to the Fifth, Sixth and Fourteenth Amendments to the United States Constitution;
3. The trial court made a statement when ruling on an objection which could reasonably have been interpreted by the jury as his opinion that one of Appellant’s witnesses was not telling the truth. This evidenced a lack of impartiality and served to deny Appellant the right to a fair trial in violation of the Sixth and Fourteenth Amendments to the United States Constitution;
4. The admission of a transactional felony in the second stage was error constituting ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution;
5. Defense counsel’s failure to call witnesses to establish that the robbery was committed by another constituted ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution;
6. Appellant received ineffective assistance of counsel in the second stage when his attorney admitted that he had three prior felony convictions;
7. The jury instructions relating to reasonable doubt and circumstantial evidence served to deprive Appellant’s right to due process in violation of the Fourteenth Amendment to the United States Constitution; and,
8. The accumulation of error in this case deprived Appellant of due process of law, necessitating reversal pursuant to the Sixth and Fourteenth Amendments to the United States Constitution as well as Article II, § 7 of the Oklahoma Constitution.

After thorough consideration of the entire record before us on appeal, including the Original Record, the transcripts, exhibits, and briefs of the parties, we find Mr. Nimmo’s conviction should be and hereby is affirmed, but his sentence modified to twenty (20) years for the reasons set forth below.

Viewing the evidence in the light most favorable to the State, we find a rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt. The evidence presented was sufficient to sustain Mr. Nimmo’s conviction for robbery by force and Proposition One is denied. Allegations of prosecutorial misconduct do not warrant reversal of a conviction unless the cumulative effect was such to deprive the defendant of a fair trial. The prosecutor’s argument suggesting Nimmo would not have been prosecuted if his witnesses had come forward was improper, but standing alone, was not so egregious as to have affected the outcome of the trial. While trial counsel could have objected to the comments complained of, the asserted errors were not so prejudicial as to have affected the outcome of the case.

In Proposition Three, we find the trial court’s response to a defense objection during the testimony of Jennifer Lucas was improper. The trial judge should refrain from comments which indicate his views on the credibility of witnesses or the merits of the case. Juries are easily influenced by remarks of the trial judge, and the greatest care should be observed that nothing is said that can by any possibility be construed as an expression of the trial judge’s views respecting the merits of a criminal case. The trial judge should not express its opinion, either expressly or impliedly, intentionally or otherwise, as to the credibility of any witness, or as to the truth of any matter at issue. The trial judge’s response to the defense objection suggested the conclusion the jury should reach on a question upon which the jury could pass. Whether the remarks made by the trial judge are prejudicial must be determined by examining the entire record. Having examined the entire record, we believe the trial court’s remark was not so prejudicial as to have affected the outcome of the trial and no relief is required.

In Proposition Four, Appellant complains the admission of transactional felonies during the second stage of trial was improper and trial counsel’s failure to object to their admission constituted ineffective assistance of counsel. We remanded for an evidentiary hearing on this issue and the trial court concluded the admission of transactional felonies was improper, trial counsel did not object to them, and there was a presumption of an adverse effect on the jury. We agree. When proving a defendant has two or more felony convictions for the purpose of enhancing punishment, the felony offenses relied upon by the State shall not have arisen out of the same transaction or occurrence or series of events closely related in time and location. The burden is on the defendant to establish that the convictions arose out of the same transaction or occurrence or series of events closely related in time and location. Had defense counsel imposed a proper objection to the transactional felonies, the prosecutor could not have so strenuously argued a three-time convicted felon deserved such a lengthy sentence. The trial court acknowledged the adverse effect on the jury and we therefore find modification of Nimmo’s sentence is warranted. Accordingly, we hereby modify Appellant’s sentence to twenty (20) years imprisonment.

In Proposition Five, Appellant claims his counsel was ineffective for failing to call witnesses to establish the robbery was committed by another person. We remanded for an evidentiary hearing on the issue and consider the trial court’s findings and the transcript of that hearing in reaching our determination on this issue. Analysis of this claim begins with the deferential presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance. To prevail on the claim that counsel was ineffective, Nimmo must show his counsel’s performance was deficient and that he was prejudiced by that performance. Failure to prove either of these requirements is fatal to Nimmo’s claim. The trial court concluded, after hearing witnesses at the evidentiary hearing, including the testimony of trial counsel, that trial counsel’s decision not to pursue Honeycutt and Vann was based on sound trial strategy. In this case, we agree with the trial court’s conclusion that trial counsel’s decisions could be sound trial strategy and no relief is required on this claim.

No relief is required on Proposition Six. The comment complained of could be considered sound trial strategy which this Court will not second guess. Jury instructions are a matter committed to the sound discretion of the trial court whose judgment will not be disturbed as long as the instructions, taken as a whole, fairly and accurately state the law. In Proposition Seven, we find the instructions given to the jury relating to reasonable doubt and circumstantial evidence were proper and decline to reconsider our holding in a previous case.

Lastly, Appellant’s accumulation of error claim does not warrant further relief.

DECISION

The Judgment of the trial court in Tulsa County District Court, Case No. CF 2004-2030, is hereby AFFIRMED but the sentence is hereby MODIFIED from thirty-five (35) years 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. We granted Appellant's Motion for Supplementation of Record and Request to Remand for Evidentiary Hearing on March 23, 2006. An evidentiary hearing was held on April 21, 2006, and the parties filed supplemental briefs on June 12th and 16th, 2006.
  2. See Nimmo v. State, PCD 2005-465 (Okl.Cr. May 23, 2005) (not for publication).
  3. Mitchell U. State, 2005 OK CR 15, I 51, 120 P.3d 1196, 1209; Spuehler v. State, 1985 OK CR 32, I 7, 709 P.2d 202, 203-204.
  4. Taylor v. State, 2002 OK CR 13, 9 4, 45 P.3d 103, 104.
  5. Bland v. State, 2000 OK CR 11, I 100, 4 P.3d 702, 728.
  6. Diaz v. State, 1986 OK CR 167, 9 22, 728 P.2d 503, 512.
  7. Dean U. State, 54 Okla.Crim. 384, 22 P.2d 621.
  8. McMahan v. State, 96 Okl.Cr. 176, 251 P.2d 204, 205.
  9. Bickerstaff U. State, 1983 OK CR 116, I 10, 669 P.2d 778, 4 780.
  10. See Miller v. State, 1984 OK CR 33, I 10, 675 P.2d 453, 455.
  11. Strickland V. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984); Patterson v. State, 2002 OK CR 18, I 17, 45 P.3d 925, 929.
  12. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Matthews v. State, 2002 OK CR 16, I 28, 45 P.3d 907, 918.
  13. Wood v. State, 1998 OK CR 19, I 60, 959 P.2d 1, 16.
  14. Dill v. State, 2005 OK CR 20, I 11, 122 P.3d 866, 869.
  15. Easlick U. State, 2004 OK CR 21, I 15, 90 P.3d 556.
  16. Lockett v. State, 2002 OK CR 30, I 43, 53 P.3d 418, 431.
  17. 21 O.S.Supp.2002, § 51.1(B).

Oklahoma Statutes citations:

  • Okla. Stat. tit. 21 § 791 (2011) - Robbery by Force
  • Okla. Stat. tit. 21 § 51.1(B) (2011) - Enhancement of Punishment
  • Okla. Stat. tit. 22 § 3.11(B)(3)(b)(iv) (2006) - Rules of the Oklahoma Court of Criminal Appeals

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:

  • Mitchell v. State, 2005 OK CR 15, I 51, 120 P.3d 1196, 1209
  • Spuehler v. State, 1985 OK CR 32, I 7, 709 P.2d 202, 203-204
  • Taylor v. State, 2002 OK CR 13, I 4, 45 P.3d 103, 104
  • Bland v. State, 2000 OK CR 11, I 100, 4 P.3d 702, 728
  • Diaz v. State, 1986 OK CR 167, I 22, 728 P.2d 503, 512
  • Dean v. State, 54 Okla.Crim. 384, 22 P.2d 621
  • McMahan v. State, 96 Okl.Cr. 176, 251 P.2d 204, 205
  • Bickerstaff v. State, 1983 OK CR 116, I 10, 669 P.2d 778, 780
  • Miller v. State, 1984 OK CR 33, I 10, 675 P.2d 453, 455
  • Patterson v. State, 2002 OK CR 18, I 17, 45 P.3d 925, 929
  • Matthews v. State, 2002 OK CR 16, I 28, 45 P.3d 907, 918
  • Wood v. State, 1998 OK CR 19, I 60, 959 P.2d 1, 16
  • Dill v. State, 2005 OK CR 20, I 11, 122 P.3d 866, 869
  • Easlick v. State, 2004 OK CR 21, I 15, 90 P.3d 556
  • Lockett v. State, 2002 OK CR 30, I 43, 53 P.3d 418, 431

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