Blog

FILED IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA JUL 14 2006 IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA MICHAEL S. RICHIE CLERK WILLIAM EARL DREW, ) ) NOT FOR PUBLICATION Appellant, ) V. ) Case No. F 2005-651 ) THE STATE OF OKLAHOMA, ) ) Appellee. ) SUMMARY OPINION C. JOHNSON, JUDGE: Appellant, William Earl Drew, was convicted by a jury of Shooting with Intent to Kill, in violation of 21 O.S., § 652, in Tulsa County District Court, Case No. CF 2004-4368. Jury trial was held before the Honorable Rebecca Nightingale, District Judge, on June 21st and 22nd, 2005. The jury found Mr. Drew guilty and set punishment at twelve (12) years imprisonment. Judge Nightingale sentenced Mr. Drew in accordance with the jury’s verdict on July 8, 2005. From the Judgment and Sentence imposed, Appellant filed this appeal. Mr. Drew raises three propositions of error: 1. The trial court erred by denying the requested sentencing instruction; 2. Admission of prejudicial other crimes evidence deprived Mr. Drew of the due process right to a fair trial; 3. The evidence establishes that Mr. Drew was denied effective assistance of counsel at trial and therefore this Court should grant him a new trial. 1 1 The third proposition of error is set forth in Mr. Drew’s Pro Se Supplemental Brief. After thorough consideration of the propositions raised, the transcripts, Original Record, briefs, citations and arguments of the parties, we find Mr. Drew’s conviction for Shooting with Intent to Kill should be affirmed, but the sentenced modified for the reasons set forth below. Mr. Drew’s counsel requested the jury be instructed on the eighty-five percent (85%) rule and the trial court refused to SO instruct. During deliberations, the jury sent out a note inquiring about what percentage of the sentence imposed Mr. Drew would be required to serve. Trial counsel again requested the jury be instructed on the eighty-five percent (85%) rule, and the request was denied. Recently, in Anderson v. State, 2006 OK CR 6, 9 25, 130 P.3d 273, we held “the 85% Rule is a specific and readily understood concept of which the jury should be informed, and which will not necessitate further explanation or justify further discussion of general parole issues and procedures.” Id. Accordingly, we find Proposition One has merit and requires modification of Mr. Drew’s sentence to ten (10) years imprisonment. In Proposition Two, we find the trial court properly admitted certain other crimes evidence to prove motive and the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice, confusion of the issues, and was not admitted to mislead the jury. 21 O.S.2001, § 2403. The trial court did not improperly admit other crimes evidence about which the State had not given sufficient notice. Many of the instances complained of do not even constitute other crimes evidence. The trial court did not abuse its discretion by allowing this evidence. Jones v. State, 2006 OK CR 5, I 48, 128 P.3d 521, 540; see also Guy U. State, 1989 OK CR 35, II 11-12, 778 P.2d 470, 474 (other crimes evidence which is apparent only to defense counsel does not fall within the prohibition against admission of other crimes evidence); Thompson v. State, 1985 OK CR 103, 705 P.2d 188, 191 (informant’s testimony that defendant was afraid someone was “narcing” on her was not evidence of other crimes but only possibly implication of another crime). In Proposition Three, we find Mr. Drew has failed to prove his counsel’s performance fell below the standard of reasonableness required by prevailing professional norms and that his challenged actions could not be considered sound trial strategy. Glossip U. State, 2001 OK CR 21, I 11, 29 P.3d 597, 600; Strickland U. Washington, 466 U.S. 668, 687-689, 104 S.Ct. 2052, 2064-2066, 80 L.Ed.2d 674 (1984). DECISION Appellant’s conviction for Shooting with Intent to Kill in Tulsa County District Court, Case No. 2004-4368, is hereby AFFIRMED and his sentence is MODIFIED from twelve (12) years to ten (10) 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. AN APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY THE HONORABLE REBECCA NIGHTINGALE, DISTRICT JUDGE APPEARANCES AT TRIAL APPEARANCES ON APPEAL MR. RICK COUCH PAULA ALFRED ASST. PUBLIC DEFENDER ASST. PUBLIC DEFENDER 423 SOUTH BOULDER, SUITE 300 423 SOUTH BOULDER, SUITE 300 TULSA, OK 74103 TULSA, OK 74103 ATTORNEY FOR DEFENDANT ATTORNEY FOR APPELLANT MR. JAMES DUNN W.A. DREW EDMONDSON ASST. DISTRICT ATTORNEY ATTORNEY GENERAL OF OKLAHOMA TULSA COUNTY COURTHOUSE JENNIFER STRICKLAND 500 SOUTH DENVER, SUITE 900 ASST. ATTORNEY GENERAL TULSA, OK 74103 112 STATE CAPITOL BUILDING ATTORNEY FOR THE STATE OKLAHOMA CITY, OK 73105 ATTORNEYS FOR STATE OPINION BY: C. JOHNSON, J. CHAPEL, P.J. : CONCURS LUMPKIN, V.P.J. : CONCURS IN RESULTS A. JOHNSON, J.: CONCURS LEWIS, J.: CONCURS rb

Click Here To Download PDF