Clarence Andre Gatewood v The State Of Oklahoma

F-2005-829

Filed: Nov. 17, 2006

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Clarence Andre Gatewood appealed his conviction for Second Degree Murder. His conviction and sentence was life imprisonment. Judge A. Johnson dissented.

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 there a failure to notify defense counsel of a jury note contrary to statutory mandate?
• did the trial court err by denying the requested sentencing instruction?
• should the 85% instruction requirement of Anderson v. State be applied to Appellant's case?
• was the admission of an involuntary confession error?
• is Appellant's sentence excessive?

Findings

• The trial court did not err in notifying defense counsel of the jury note.
• The trial court erred by denying the requested sentencing instruction.
• Appellant is entitled to the application of the 85% instruction requirement.
• The admission of Appellant's confession was not error.
• Proposition regarding excessive sentence is moot due to the decision on the sentencing instruction.

F-2005-829

Nov. 17, 2006

Clarence Andre Gatewood

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

C. JOHNSON, JUDGE: Appellant, Clarence Andre Gatewood, was tried by jury for the crime of First Degree Murder (21 O.S.2001, § 701.7) in the District Court of Tulsa County, Case No. CF-2004-3607. The jury found Appellant guilty of the lesser offense of Second Degree Murder (21 O.S.2001, § 701.8(1)) and recommended a sentence of life imprisonment. On August 23, 2005, the Honorable Rebecca Nightingale, District Judge, sentenced Appellant in accordance with the jury’s recommendation, and Appellant timely lodged this appeal.

Appellant raises the following propositions of error:

1. The trial court failed to notify defense counsel of a jury note, contrary to statutory mandate.
2. The trial court erred by denying the requested sentencing instruction.
3. The 85% instruction requirement of Anderson v. State, 2006 OK CR 6, should be applied to Appellant’s case.
4. Admission of an involuntary confession was error.
5. Appellant’s sentence is excessive.

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 Appellant’s conviction, but remand for resentencing.

In Proposition 4, Appellant claims his statement to police, implicating himself in the fatal assault on the victim, was involuntarily made, and that its admission into evidence denied him a fair trial. We disagree. The record shows that Appellant was advised of his rights before the interview, that he was sober and coherent, and that he spoke to police with full knowledge of the attendant consequences, free of any threat or promise. The trial court’s conclusion that Appellant’s statement was voluntarily made is soundly supported by the evidence. Davis v. State, 2004 OK CR 36, ¶ 37, 103 P.3d 70, 81. Proposition 4 is denied.

However, we find merit to Propositions 2 through 3. 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 (the 85% Rule). Appellant contends he is entitled to the same relief granted in Anderson, because (1) he timely raised the same issue below and on appeal, (2) during deliberations, the jury sent a note inquiring into the meaning of a life sentence with the possibility of parole, and (3) Appellant’s case was pending on direct review at the time Anderson was decided. We agree. See Anderson, 2006 OK CR 6 at ¶ 10, 130 P.3d at 277-78; Griffith v. Kentucky, 479 U.S.314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987); Guy v. State, 1989 OK CR 35, ¶ 21, 778 P.2d 470, 475. Accordingly, Appellant’s conviction for Second Degree Murder is AFFIRMED, but his sentence is VACATED and the case is REMANDED FOR RESENTENCING. Our resolution of Propositions 2 and 3 renders Proposition 5 moot.

In Proposition 1, Appellant claims the trial court failed to notify counsel about the jury’s note before responding to it. Our reading of the record suggests counsel was in fact timely notified, but that the court again declined defense counsel’s suggestion to instruct the jury on the 85% Rule. Proposition 1 is denied. Welch v. State, 1998 OK CR 54, ¶ 41, 968 P.2d 1231, 1245.

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.

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Footnotes:

1. 21 O.S.2001, § 701.7
2. 21 O.S.2001, § 701.8(1)
3. Anderson v. State, 2006 OK CR 6, 130 P.3d 273
4. 21 O.S. § 13.1
5. Davis v. State, 2004 OK CR 36, T 37, 103 P.3d 70
6. Griffith v. Kentucky, 479 U.S.314, 107 S.Ct. 708, 93 L.Ed.2d 649
7. Guy v. State, 1989 OK CR 35, I 21, 778 P.2d 470
8. Welch v. State, 1998 OK CR 54, T 41, 968 P.2d 1231
9. 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 - First Degree Murder
• Okla. Stat. tit. 21 § 701.8 - Second Degree Murder
• Okla. Stat. tit. 21 § 13.1 - Statutory restrictions to parole eligibility

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:

• Davis v. State, 2004 OK CR 36, I 37, 103 P.3d 70, 81
• 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
• Welch v. State, 1998 OK CR 54, I 41, 968 P.2d 1231, 1245