Beverly Michelle Moore v The State Of Oklahoma

F-2006-63

Filed: Jun. 11, 2007

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Beverly Michelle Moore appealed her conviction for First Degree Murder. The conviction and sentence were affirmed as life imprisonment without the possibility of parole. Two judges, Lumpkin and Lewis, dissented regarding the modification of the sentence due to jury instruction errors about parole eligibility.

Decision

The Judgment of the district court is AFFIRMED. The case is REMANDED to the district court with instructions to MODIFY Moore's sentence to Life with the Possibility of Parole. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2007), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there an error in the trial court's omission of a jury instruction regarding the 85% Rule for parole eligibility?
• Did the failure to inform the jury of the 85% Rule affect Moore's substantial rights and the outcome of the sentencing?
• Was the jury's understanding of Moore's eligibility for parole during sentencing impacted by the lack of instruction on the 85% Rule?

Findings

• the court erred in failing to instruct the jury on the 85% Rule
• the error constituted plain error affecting substantial rights
• Moore's sentence is modified to life imprisonment with the possibility of parole

F-2006-63

Jun. 11, 2007

Beverly Michelle Moore

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

A. JOHNSON, J.: Appellant Beverly Michelle Moore was tried by jury and convicted of First Degree Murder1 in the District Court of Oklahoma County, Case No. CF-2004-351. The jury fixed punishment at life imprisonment without the possibility of parole and the Honorable Susan P. Caswell, who presided at trial, sentenced her accordingly. Moore does not challenge the validity of her first degree murder conviction on appeal and we affirm the judgment. Jury instruction error, however, requires modification of Moore’s sentence.

FACTS

On January 13, 2004, two-year-old Avery Snyder was rushed to the hospital suffering from severe closed head trauma. His condition was grave and he was put on life support. The next day life support was discontinued after he was declared brain dead and he died as a result of his injuries. There was no dispute that someone physically injured Avery and that his head and brain injuries were consistent with the violent shaking known within the medical community as shaken baby syndrome. The only issue at Moore’s trial was whether Todd Snyder, who was Avery’s father, or Moore, who was Snyder’s live-in girlfriend, caused Avery’s injuries. At trial, Moore recanted her confession to police and insisted that she did not shake Avery. She described Avery’s actions in the minutes before his collapse and maintained that Todd must have shaken him before he left to go to a nearby pawn shop. Her account included a description of Avery’s ability to walk for several minutes before his collapse. The possibility of the child walking after sustaining the injury to his brain was refuted by Dr. Griggs, Avery’s attending physician in the pediatric intensive care unit. The detailed account Moore had provided in her confession, however, was consistent with the medical testimony and physical evidence. While the evidence proved that Moore caused Avery’s injuries that day, there was no evidence that Moore had abused Avery or any other child in the past or had any sort of criminal record.

I. Omission of an Instruction Setting Forth the 85% Rule

Moore argues that the trial court erred in not instructing her jury that if sentenced to life with the possibility of parole, she would serve 85% of a life sentence or 38.3 years before becoming eligible for parole. 2 Moore’s attorneys failed to offer an instruction on the 85% Rule or to object to the lack of such instruction given to the jury. That failure forfeits any error unless Moore can show plain error. Hogan v. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923. To be entitled to relief under the plain error doctrine, Moore must prove: 1) the existence of an actual error (i.e., deviation from a legal rule); 2) that is plain or obvious; and 3) that affected her substantial rights, meaning the error affected the outcome of the proceeding. Id. Moore relies on Anderson v. State, in which this Court held that the 85% Rule is a specific and readily understood concept of which the jury should be informed when sentencing defendants for qualifying offenses. 2006 OK CR 6, I 25 130 P.3d 273, 283; see also Carter v. State, 2006 OK CR 42, I 3, 147 P.3d. 243, 244. Moore receives the benefit of that decision because her appeal is heard post- Anderson. Lacy v. State, 2007 OK CR 20, I 6, P.3d (May 23, 2007). This Court requires trial courts to give juries accurate information about punishment so the jury may carry out its sentencing function. See Littlejohn v. State, 2004 OK CR 6, I 10, 85 P.3d 287, 293. In Anderson, we held that it was error not to give the defendant’s requested instruction on the 85% Rule because the jury should be informed that the offender before them would be required by law to serve 85% of any sentence imposed before he is parole eligible. Anderson, 2006 OK CR 6, 1911-13, 130 P.3d at 278. We explained: Since jurors are likely to assume that defendants would become parole eligible at a much earlier point in time, explaining the 85% Rule will avoid unnecessary and unfair prejudice to the defendant due to juries rounding up their sentences, in an attempt to account for their uninformed guesses about the impact of parole. Thus, instructing upon the 85% Rule will actually discourage jury speculation while still respecting the separation between the judicial and executive branches. Id. at 23, 130 P.3d at 282. In Roy v. State, 2006 OK CR 47, I 26, 152 P.3d 217, 226, we found the trial court erred in failing to give an instruction on the 85% Rule, despite no request, and that the instruction error coupled with improper argument by the prosecutor necessitated relief. In Lacy v. State, 2007 OK CR 20, I 6, P.3d (May 23, 2007), we found the lack of instruction was plain error and modified the defendant’s sentence. Not only was Moore’s jury not informed of the 85% Rule in the court’s instructions, the court did not inform the jury of the rule when the jury sent out a note during deliberations specifically asking about any guidelines that determine the minimum time a prisoner will serve with [a] Life Sentence. (Court’s Exhibit 6) The jury’s question indicates that, had the jury been properly instructed, it may well have considered a life sentence with the possibility of parole appropriate in this case given Moore’s lack of criminal record and the evidence showing Moore’s conduct in hurting the child was an isolated event. The failure to instruct the jury regarding the 85% Rule, after the question from Moore’s jury, constitutes plain error in this case and leaves us in grave doubt that the lack of an instruction clarifying the meaning of life imprisonment and the effect of the 85% Rule prejudicially impacted the sentencing deliberations of Moore’s jury. Roy, 2006 OK CR 47, I 26, 152 P.3d at 226 quoting Carter, 2006 OK CR 42, I 7, 147 P.3d at 245. This record supports a finding that the lack of instruction resulted in the jury’s decision to impose the higher sentence and so affected the outcome of the proceeding. Under these circumstances, the appropriate remedy is to modify Moore’s sentence to life imprisonment with the possibility of parole.

DECISION

The Judgment of the district court is AFFIRMED. The case is REMANDED to the district court with instructions to MODIFY Moore’s sentence to Life with the Possibility of Parole. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2007), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

AN APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY THE HONORABLE SUSAN P. CASWELL, DISTRICT JUDGE

APPEARANCES AT TRIAL APPEARANCES AT APPEAL

DAVID R. SLANE STEVEN M. PRESSON
ISAAC S. FUNDERBURK ROBERT W. JACKSON
ERIC REYNOLDS P.O. BOX 5392
1327 LINWOOD BLVD. NORMAN, OK 73070-5392
OKLAHOMA CITY, OK 73106
ATTORNEYS FOR APPELLANT ATTORNEYS FOR DEFENDANT

SARAH McAMIS W.A. DREW EDMONDSON
GAYLAND GEIGER ATTORNEY GENERAL
ASST. DISTRICT ATTORNEYS OF OKLAHOMA
OKLA. COUNTY OFFICE BLDG.
CHRISTY A. BAKER
ASSISTANT ATTORNEY GENERAL
320 ROBERT S. KERR, STE 505
OKLAHOMA CITY, OK 73102
313 N.E. 21ST STREET
ATTORNEYS FOR STATE
OKLAHOMA CITY, OK 73105
ATTORNEYS FOR APPELLEE

3 The resolution of this issue renders Moore’s other claim moot and it will not be addressed.

OPINION BY: A. JOHNSON, J.

LUMPKIN, P.J.: Concur in Part, Dissent in Part

C. JOHNSON, V.P.J.: Concur

CHAPEL, J.: Concur

LEWIS, J.: Concur in Part, Dissent in Part

LUMPKIN, PRESIDING JUDGE: CONCUR IN PART/DISSENT IN PART

I concur in the Court’s decision to affirm the conviction in this case, however, I must dissent to the modification of the sentence. As the Court notes, this case was tried five months prior to our decision in Anderson v. State, 2006 OK CR 6, 130 P.3d 273, no objections were made to the instructions and no requested instructions regarding the 85% rule were presented to the trial court. In fact, the trial court correctly followed the law applicable at the time of trial in this case. Now, this Court seeks to find error and modify the sentence solely because the trial judge was not clairvoyant in seeing what future decisions this Court would reach. As I have stated before, this Court is failing to follow the decision in Anderson that the 85% requirement would not apply to cases tried before that decision. The trial court did not commit any error in this case based on the law at the time of trial and the decision of the jury should be affirmed.

LEWIS, JUDGE, CONCURS IN PART/DISSENTS IN PART: I agree to affirming the conviction, however I dissent to modifying the sentence to life with the possibility of parole. I would remand this matter for resentencing to address Anderson error.

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Footnotes:

1. 21 O.S.2001, § 701.7(C).
2. 21 O.S.Supp.2002, §§§ 12.1-13.1.
3. Hogan v. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923.
4. Anderson U. State, 2006 OK CR 6, I 25, 130 P.3d 273, 283.
5. Carter v. State, 2006 OK CR 42, I 3, 147 P.3d 243, 244.
6. Lacy U. State, 2007 OK CR 20, I 6, P.3d (May 23, 2007).
7. Littlejohn U. State, 2004 OK CR 6, I 10, 85 P.3d 287, 293.
8. Roy U. State, 2006 OK CR 47, I 26, 152 P.3d 217, 226.
9. Carter, 2006 OK CR 42, I 7, 147 P.3d at 245.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.7 (2001) - First Degree Murder Statute
• Okla. Stat. tit. 21 § 12.1 (2002) - Omitted as it is incomplete without further context
• Okla. Stat. tit. 21 § 13.1 (2002) - Omitted as it is incomplete without further context
• Okla. Stat. tit. 22 § 3.15 (2007) - 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:

• Hogan v. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923
• Anderson v. State, 2006 OK CR 6, I 25, 130 P.3d 273, 283
• Carter v. State, 2006 OK CR 42, I 3, 147 P.3d. 243, 244
• Lacy v. State, 2007 OK CR 20, I 6, P.3d (May 23, 2007)
• Littlejohn v. State, 2004 OK CR 6, I 10, 85 P.3d 287, 293
• Roy v. State, 2006 OK CR 47, I 26, 152 P.3d 217, 226