Thomas Terrill v The State Of Oklahoma

F-2005-527

Filed: Nov. 9, 2006

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Thomas Terrill appealed his conviction for First Degree Manslaughter. Conviction and sentence of life imprisonment. A. Johnson dissented. In his case, Thomas was originally charged with First Degree Murder but the jury found him guilty of the lesser charge of First Degree Manslaughter. After his conviction, he raised several issues on appeal, including that the evidence wasn’t enough for the manslaughter charge, that the prosecutor acted unfairly during the trial, and that his sentence was too harsh because the jury might have thought about parole when deciding his punishment. The court agreed that the evidence was enough to support the manslaughter conviction, but they found problems with how the prosecutor spoke to the jury and said that the jury should have been informed about parole rules. Because these issues were serious, the court decided that Thomas should get a new sentencing hearing. So, they kept the conviction but canceled the original sentence and sent the case back for resentencing.

Decision

The Judgment of the district court is AFFIRMED, but the sentence is VACATED and the case is REMANDED FOR RESENTENCING. 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 the evidence sufficient to sustain a conviction for First Degree Manslaughter?
• Did prosecutorial misconduct deny Appellant a fair trial?
• Was the sentence imposed excessive, and did the jury consider the parole process in determining the sentence?

Findings

• The evidence was sufficient to sustain a conviction for First Degree Manslaughter.
• The prosecutor's misconduct denied Appellant a fair trial.
• The sentence imposed was excessive, and the jury improperly considered the parole process in determining the sentence.

F-2005-527

Nov. 9, 2006

Thomas Terrill

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

C. JOHNSON, JUDGE:

Appellant, Thomas Terrill, was charged by Information in Pushmataha County District Court, Case No. CF-2004-71, with First Degree Murder (21 O.S.2001, § 701.7). A jury found him guilty of the lesser related offense of First Degree Manslaughter (21 O.S.2001, § 711), and recommended a sentence of life imprisonment. The Honorable Willard Driesel, District Judge, sentenced Appellant in accordance with the jury’s recommendation on April 7, 2005. Appellant timely lodged this appeal.

Appellant raises the following propositions of error:
1. The evidence was insufficient to sustain a conviction for First Degree Manslaughter.
2. Prosecutor misconduct denied Appellant a fair trial.
3. The sentence imposed is excessive, and the jury considered the parole process in determining sentence.

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 conviction, but remand for resentencing. As to Proposition 1, we find the evidence was sufficient for a rational trier of fact to reject Appellant’s claim of self-defense, and to conclude, beyond a reasonable doubt, that Appellant killed the decedent in a heat of passion. [CITE] Proposition 1 is denied.

However, we find that Propositions 2 and 3 warrant relief. As to Proposition 2, by evoking sympathy for the victim and his family in his closing argument, and claiming that If you take a life, you give a life, the prosecutor asked the jury to base its sentence recommendation on improper factors. Appellant timely but unsuccessfully objected to these comments, and asked that the jury be admonished to disregard them. Such comments are improper. Wilson v. State, 1998 OK CR 73, I 102, 983 P.2d 448, 470-71; Gibson v. State, 1972 OK CR 249, I 43, 501 P.2d 891, 900-01.

As to Proposition 3, the jury sent a note during deliberations asking the trial court about parole eligibility. Consistent with the law on the subject at that time, the trial court declined to offer any further guidance and referred the jury to its previous instructions. However, in Anderson v. State, 2006 OK CR 6, 130 P.3d 273, this Court held that juries should be instructed, where applicable, on statutory restrictions to parole eligibility found in 21 O.S. § 13.1. Because Appellant’s case was pending on direct appeal when Anderson was decided, and because he raised this issue in his opening brief, which was filed before Anderson was decided, we find that Appellant is entitled to the same consideration granted in Anderson. See Griffith v. Kentucky, 479 U.S.314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987); Guy v. State, 1989 OK CR 35, I 21, 778 P.2d 470, 475.

Together, the issues raised in Propositions 2 and 3 convince us that a new sentencing proceeding is in the best interests of justice. Appellant’s motion for leave to file a supplemental brief, addressing Anderson’s effect on Proposition 3, is GRANTED. See Rule 3.4(F), Rules of the Oklahoma Court of Criminal Appeals, Title 22 O.S., Ch. 18, App. (2006) (A supplemental brief, if necessary to present new authority on issues previously raised, may be filed if granted leave of Court).

DECISION

The Judgment of the district court is AFFIRMED, but the sentence is VACATED and the case is REMANDED FOR RESENTENCING. 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.

AN APPEAL FROM THE DISTRICT COURT OF PUSHMATAHA COUNTY
THE HONORABLE WILLARD DRIESEL, DISTRICT JUDGE

APPEARANCES AT TRIAL
HACK WELCH
ALAN PERRY
HANKINS LAW OFFICE
ATTORNEYS AT LAW
119 N. ROBINSON, SUITE 320
OKLAHOMA CITY, OK 73102
ATTORNEY FOR APPELLANT

APPEARANCES ON APPEAL
JAMES L. HANKINS
307 E. DUKE
HUGO, OK 74743
ATTORNEYS FOR DEFENDANT

W.A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA
200 S.E. 2nd ST.
ANTLERS, OK 74523
ATTORNEY FOR THE STATE

STEPHANIE D. JACKSON
ASSISTANT ATTORNEY GENERAL
112 STATE CAPITOL
OKLAHOMA CITY, OK 73105
ATTORNEYS FOR THE STATE

OPINION BY C. JOHNSON, J.
CHAPEL, P.J.: CONCURS
LUMPKIN, V.P.J.: CONCURS IN RESULTS
A. JOHNSON, J.: CONCURS
LEWIS, J.: CONCURS IN RESULTS

RB 3

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Footnotes:

1. 21 O.S.2001, § 701.7
2. 21 O.S.2001, § 711
3. Wilson v. State, 1998 OK CR 73, I 102, 983 P.2d 448, 470-71
4. Gibson v. State, 1972 OK CR 249, I 43, 501 P.2d 891, 900-01
5. Anderson v. State, 2006 OK CR 6, 130 P.3d 273
6. 21 O.S. § 13.1
7. Griffith v. Kentucky, 479 U.S.314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987)
8. Guy v. State, 1989 OK CR 35, I 21, 778 P.2d 470, 475
9. Rule 3.4(F), Rules of the Oklahoma Court of Criminal Appeals, Title 22 O.S., Ch. 18, App. (2006)
10. Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2005)

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.7 (2001) - First Degree Murder
• Okla. Stat. tit. 21 § 711 (2001) - First Degree Manslaughter
• Okla. Stat. tit. 21 § 13.1 - Statutory Restrictions to Parole Eligibility
• Okla. Stat. tit. 22 § 3.4(F) - Supplemental Briefs
• Okla. Stat. tit. 22 § 3.15 - Mandate Issuance

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:

• Wilson v. State, 1998 OK CR 73, I 102, 983 P.2d 448, 470-71
• Gibson v. State, 1972 OK CR 249, I 43, 501 P.2d 891, 900-01
• Anderson v. State, 2006 OK CR 6, 130 P.3d 273
• Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649
• Guy v. State, 1989 OK CR 35, I 21, 778 P.2d 470, 475