Tony Carnell Brown v The State of Oklahoma

F-2007-987

Filed: Oct. 10, 2008

Not for publication

Prevailing Party: The State of Oklahoma

Summary

Tony Brown appealed his conviction for Second Degree Burglary and Attempted Larceny of a Motor Vehicle. Conviction and sentence were reversed and remanded for a new trial. Judge Lumpkin dissented in part.

Decision

The Judgments and Sentences are REVERSED and REMANDED for a new trial. 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.

Issues

• Was it reversible error not to instruct the jury on the offense of unlawful entry as a lesser-included offense of Second Degree Burglary?
• Did the preliminary hearing magistrate lack the authority to bind Appellant over on the charge of Attempted Larceny of a Motor Vehicle?
• Was the evidence sufficient to support a conviction for attempted larceny of an automobile?
• Should the State have been permitted to present Detective James McClaughry as a rebuttal witness?
• Did Appellant receive ineffective assistance of counsel in violation of the Sixth Amendment to the United States Constitution?
• Did prosecutor misconduct undermine Appellant's right to a fair trial?

Findings

• the court erred by not instructing the jury on the lesser-included offense of unlawful entry for Second Degree Burglary
• the magistrate lacked the authority to bind Appellant over on the charge of Attempted Larceny of an Automobile
• the evidence was sufficient to support the conviction for attempted larceny of an automobile, but the jury should have been instructed on the lesser offense of tampering with a motor vehicle
• a new trial is required due to the prejudicial testimony of a State's witness
• Propositions II, V, and VI are not addressed due to the recommended relief in Proposition IV

F-2007-987

Oct. 10, 2008

Tony Carnell Brown

Appellant

v

The State of Oklahoma

Appellee

SUMMARY OPINION

Tony Brown was tried by jury and convicted, in Tulsa County District Court Case No. CF-2007-1420, of Second Degree Burglary in violation of 21 O.S.2001, § 1435 and Attempted Larceny of a Motor Vehicle in violation of 21 O.S.Supp.2002, § 1720. Both convictions were After Former Conviction of Two or More Felonies. In accordance with the jury’s recommendation, the Honorable Rebecca Nightingale sentenced Brown to ten (10) and seven (7) years’ imprisonment to be served consecutively. Brown was also ordered to pay a $1,000.00 fine. Brown appeals these convictions and sentences.

Brown raises the following propositions of error:

I. It was reversible error not to instruct the jury on the offense of unlawful entry as a lesser-included offense of Second Degree Burglary in Count I.

II. The preliminary hearing magistrate lacked the authority to bind Appellant over on the charge of Attempted larceny of an automobile.

III. The evidence was insufficient to support a conviction for attempted larceny of an automobile. In the alternative to outright reversal, Appellant’s conviction in Count III must be reversed for a new trial so that a jury can be properly instructed on the lesser offense of tampering with a motor vehicle.

IV. The State should not have been permitted to present Detective James McClaughry as a rebuttal witness. As a result of his testimony, the jury was presented with erroneously admitted evidence which prejudiced the Appellant.

V. Appellant received ineffective assistance of counsel in violation of the Sixth Amendment to the United States Constitution.

VI. Prosecutor misconduct undermined Appellant’s right to a fair trial.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, briefs, and exhibits of the parties, we find that Brown’s convictions must be reversed based upon the law and the evidence. We find in Propositions I and III that the evidence required that the jury be instructed on the lesser-included offense of Unlawful Entry for the Second Degree Burglary charge and Tampering with a Motor Vehicle for the Attempted Larceny of Motor Vehicle charge. We find in Proposition IV that a new trial is required by a State’s witness’s testimony that based on his neurolinguistic training, Brown lied to him in his statement regarding the crime (and by extension, was lying at trial).

Decision

The Judgments and Sentences are REVERSED and REMANDED for a new trial. 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.

ATTORNEYS AT TRIAL
ALLEN MALONE
ASSISTANT PUBLIC DEFENDER
TULSA COUNTY PUBLIC DEFENDER
PYTHIAN BUILDING
423 S. BOULDER AVE, SUITE 300
TULSA, OKLAHOMA 74103
ATTORNEY FOR APPELLANT

ATTORNEYS ON APPEAL
STUART W. SOUTHERLAND
ASSISTANT PUBLIC DEFENDER
TULSA COUNTY PUBLIC DEFENDER
423 S. BOULDER AVE, SUITE 300
TULSA, OKLAHOMA 74103

W.A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA
JENNIFER L. STRICKLAND
ASSISTANT ATTORNEY GENERAL
500 S. DENVER, SUITE 900
TULSA, OKLAHOMA 74103
ATTORNEY FOR STATE

OPINION BY: CHAPEL, J.
LUMPKIN, P.J.: CONCUR IN PART/DISSENT IN PART
C. JOHNSON, V.P.J.: CONCUR
A. JOHNSON, J.: CONCUR
LEWIS, J.: CONCUR

Brown’s Motion for Supplementation of the record and Application for Evidentiary Hearing is MOOT due to the relief recommended in Proposition IV. Additionally, Brown’s Application for Oral Argument is DENIED.

While I concur in the results reached by this opinion, I must dissent to the discussion regarding the requirement to instruct on lesser included offenses. I still adhere to our case law that holds when a defendant’s defense is that he is innocent, then he is not eligible for lesser included offense instructions. The Court in McHam v. State did not change that rule of law. In addition, when instructed on a lesser included offense a jury is told they must first find the defendant not-guilty of the primary charge before considering the secondary offense. Guilt was established and found as to the primary charge in this case, therefore, the jury would not have been able to proceed to any secondary offenses, even if the instruction had been given. Regardless, I do find that other errors require a remand for a new trial.

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Footnotes:

1. Childress v. State, 1 P.3d 1006 (Okl.Cr.2006)
2. McHam v. State, 126 P.3d 662 (Okl.Cr.2005)
3. Spuehler v. State, 709 P.2d 202, 203-04 (Okl.Cr.1985)
4. 22 O.S.Supp.2003, § 258
5. Davenport v. State, 806 P.2d 655, 659 (Okl.Cr.1991)
6. Gilson v. State, 2000 OK CR 14, IT 119, 8 P.3d 883, 918
7. Mitchell v. State, 1994 OK CR 70, IT 36, 884 P.2d 1186, 1200-1201

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1435 - Second Degree Burglary
• Okla. Stat. tit. 21 § 1720 - Attempted Larceny of a Motor Vehicle
• Okla. Stat. tit. 22 § 258 - Preliminary Hearing Prohibited for Misdemeanor

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:

No case citations found.