Kendall Dewayne Carr v The State Of Oklahoma

F-2006-1208

Filed: Sep. 23, 2008

Not for publication

Prevailing Party: Kendall Dewayne Carr

Summary

Kendall Dewayne Carr appealed his conviction for Rape in the First Degree. His conviction and sentence was life imprisonment. Judge C. Johnson dissented.

Decision

The Judgment and Sentence of the District Court is REVERSED. The matter is REMANDED to the district court for a new trial.

Issues

• Was there a denial of due process when the court refused to remove a biased veniremember for cause during voir dire?
• Did the prosecutor commit a Batson violation by using peremptory challenges to remove two potential jurors?
• Were certain jurors prejudiced by encountering the victim crying and discussing that episode?
• Did the trial court err in disallowing evidence under the residual hearsay exception?
• Was the evidence sufficient to sustain the conviction?
• Did the reading of the deadlocked jury instruction and the long late-night deliberation coerce the jury into rendering an unreliable guilty verdict?
• Was the sentence excessive?
• Did cumulative error deprive him of a fair trial and reliable verdict?

Findings

• the court erred
• the court did not address the Batson violation
• the court did not address juror prejudice from encountering the victim
• the court did not address the hearsay exception issue
• the evidence was not sufficient
• the court did not address jury coercion issues
• the sentence is not excessive
• the court did not address cumulative error

F-2006-1208

Sep. 23, 2008

Kendall Dewayne Carr

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

Appellant Kendall Dewayne Carr was tried by jury and convicted in the District Court of Cleveland County, Case No. CF-2004-1622, of Rape in the First Degree, After Former Conviction of Two or More Felonies, in violation of 21 O.S.2001, § 1114(A)(3). The jury fixed punishment at life imprisonment. The Honorable Lori M. Walkley, who presided at trial, sentenced Carr accordingly and ordered the sentence served consecutively to the sentence imposed in Cleveland County Case No. CF-2004-499 (Count II).

On appeal Carr first claims he was denied due process when the Court denied his challenge for cause during voir dire forcing him to use one of his limited peremptory challenges to remove a biased veniremember and ultimately forcing him to keep an unsuitable juror. We agree and find this case must be reversed and remanded for a new trial. Our decision eliminates the need to address the other issues raised.

The remaining issues are: The veniremember in question was a police officer who, during voir dire, said he would give more credence to the testimony of a fellow officer than to the testimony of another witness. This frank admission should have raised some doubt about this police officer’s ability to fairly consider the testimony of all witnesses in this case. All doubts about juror impartiality must be resolved in favor of the accused. Warner v. State, 2001 OK CR 11, IT 6, 29 P.3d 569, 572. The record supports Carr’s claim that the prospective juror was biased in favor of witnesses who are police officers. We find the trial court abused its discretion in refusing defense counsel’s request to remove the prospective juror for cause.

DECISION

The Judgment and Sentence of the District Court is REVERSED. The matter is REMANDED to the district court for a new trial.

Under Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2008),

2. Whether there was a Batson violation when the prosecutor used peremptory challenges to remove two potential jurors.
3. Whether certain jurors were prejudiced by encountering the victim crying in the bathroom and then discussing that episode.
4. Whether the trial court erred in disallowing evidence under the residual hearsay exception.
5. Whether the evidence was sufficient to sustain the conviction.
6. Whether the reading of the deadlocked jury instruction and the long and late-night deliberation coerced the jury to render an unreliable guilty verdict.
7. Whether his sentence is excessive.
8. Whether cumulative error deprived him of a fair trial and reliable verdict.

the MANDATE is ORDERED issued upon the delivery and filing of this decision.

AN APPEAL FROM THE DISTRICT COURT OF CLEVELAND COUNTY

THE HONORABLE LORI M. WALKLEY, DISTRICT JUDGE

APPEARANCES AT TRIAL

TRACY SCHUMACHER
114 E. MAIN
P. O. BOX 926
NORMAN, OK 73069
ATTORNEY FOR DEFENDANT

APPEARANCES ON APPEAL

JUDITH L. JOHNSON
NORMAN, OK 73070
ATTORNEY FOR APPELLANT

DAVE BATTON
ASHLEY TATE
OKLAHOMA ATTORNEY GENERAL
ASSISTANT DISTRICT ATTORNEYS

W. A. DREW EDMONDSON
JENNIFER L. STRICKLAND
201 S. JONES
NORMAN, OK 73069
ASSISTANT ATTORNEY GENERAL
313 N.E. 21 ST STREET
OKLAHOMA CITY, OK 73105
ATTORNEYS FOR STATE

OPINION BY: A. JOHNSON, J.

LUMPKIN, P.J.: Concur in Results
C. JOHNSON, V.P.J.: Specially Concur
CHAPEL, J.: Concur
LEWIS, J.: Concur

C. JOHNSON, VICE PRESIDING JUDGE, SPECIALLY CONCURRING: I agree with the majority holding in this case that the trial court abused its discretion in denying Carr’s for cause challenge to the police officer venire member who expressed partiality toward the testimony of fellow police officers. The police officer’s admitted bias is neither surprising nor unforeseeable. The seating of all police officers on juries in criminal cases has not previously been statutorily prohibited as 38 O.S.Supp.2005, § 28(C)(4), currently disqualifies only those law enforcement officers having custody of prisoners. However, this past session the Legislature amended section 28 to provide that [j]ailers or law enforcement officers, state or federal, shall be eligible to serve on noncriminal actions only. See SB 74, 51 Leg., 2008 2d Reg. Sess. This amendment goes into effect November 1, 2008, and will eliminate future questions concerning like issues of juror bias.

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Footnotes:

1. Warner v. State, 2001 OK CR 11, IT 6, 29 P.3d 569, 572.
2. Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2008).
3. 38 O.S.Supp.2005, § 28(C)(4).
4. SB 74, 51 Leg., 2008 2d Reg. Sess.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1114(A)(3) - Rape in the First Degree
• Okla. Stat. tit. 38 § 28(C)(4) - Disqualification of Law Enforcement Officers for Jury Duty
• Okla. Stat. tit. 38 § 28 - Juror disqualification
• Okla. Stat. tit. 22 § 3.15 - 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:

• Warner v. State, 2001 OK CR 11, I 6, 29 P.3d 569, 572