Vernon Leroy James v The State Of Oklahoma

F-2008-1095

Filed: Oct. 20, 2009

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Vernon Leroy James appealed his conviction for First Degree Rape. Conviction and sentence modified to forty-five years imprisonment. Judge Lumpkin dissented on the sentence modification.

Decision

The Judgment of the District Court is AFFIRMED. The Sentence is MODIFIED to forty-five (45) years imprisonment. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2009), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there prosecutorial misconduct that deprived James of a fair trial?
• Did the trial court err by instructing the jury on the issue of flight?

Findings

• Prosecutorial misconduct warranted modification of James's sentence.
• The trial court erred in allowing improper arguments by the prosecutor.
• Admission of all eighteen photographs was excessive and prejudicial.
• The trial court did not err in giving a flight instruction.
• The Judgment of the District Court is AFFIRMED.
• The Sentence is MODIFIED to forty-five (45) years imprisonment.

F-2008-1095

Oct. 20, 2009

Vernon Leroy James

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

CHAPEL, JUDGE: MICHAEL S. RICHIE CLERK

Vernon Leroy James was tried by jury and convicted of First Degree Rape in violation of 21 O.S.2001, § 1114, in the District Court of Muskogee County, Case No. CF-2007-1063. In accordance with the jury’s recommendation, the Honorable Jeff Payton sentenced James to life imprisonment. James must serve 85 percent of his sentence before being eligible for parole consideration. James appeals from this conviction and sentence.

James raises two propositions of error in support of his appeal:
I. Prosecutorial misconduct deprived James of a fair trial; and
II. The trial court erred by instructing the jury on the issue of flight.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, exhibits, and briefs, we find prosecutorial misconduct in argument and admission of evidence requires that James’s sentence be modified.

We find in Proposition I that the prosecutor improperly and prejudicially engaged in argument during opening statement, and that James’s objection to this improper argument should have been sustained. We further find that the prosecutor improperly appealed to the jury’s sympathy for the victim during closing argument. We finally find in Proposition I that the trial court erred in admitting all eighteen photographs of the rape. Admission of evidence, including photographs, is within the trial court’s discretion. The photographs were relevant. However, there comes a point at which relevant photographs become cumulative and prejudicial. Several of these photos were almost identical, and repetition of these images could not have been necessary for jurors to either decide James’s guilt or arrive at an appropriate punishment. The prejudicial effect of admission of all eighteen photographs, combined with the errors in opening and closing argument, warrant sentence modification.

We find in Proposition II that the trial court did not err in giving a flight instruction over James’s objection. The flight instruction should only be given where the evidence is controverted by the defendant – that is, where the defendant offers an explanation for his flight. However, James admitted to the crime and placed himself at the scene. We have held that these circumstances remove the improper assumption, inherent in the flight instruction, that the defendant committed the crime.

Decision:
The Judgment of the District Court is AFFIRMED.
The Sentence is MODIFIED to forty-five (45) years imprisonment.

Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2009), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

ATTORNEYS AT TRIAL
ROGER HILFIGER
COOK & HILFIGER
620 WEST BROADWAY
MUSKOGEE, OKLAHOMA 74401

ATTORNEYS ON APPEAL
MARK P. HOOVER
APPELLATE DEFENSE COUNSEL
P.O. BOX 926
NORMAN, OKLAHOMA 73070

ATTORNEY FOR DEFENDANT
NIKKI BAKER
ASSISTANT DISTRICT ATTORNEY
220 STATE STREET
MUSKOGEE, OKLAHOMA 74401

W.A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA
JARED ADEN LOOPER
ASSISTANT ATTORNEY GENERAL
313 N.E. 21ST STREET
OKLAHOMA CITY, OKLAHOMA 73105

ATTORNEYS FOR RESPONDENT

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

The problem is that at some point, even with relevant and otherwise admissible photographs, enough becomes too much.

James argues that any error in instruction might have influenced the jury’s sentencing recommendation. The issue of flight goes to guilt rather than sentencing.

LUMPKIN, JUDGE: CONCUR IN PART/DISSENT IN PART

I concur in the Court’s decision to affirm the verdict of guilty in this case; however, I must dissent to the modification of the sentence. The evidence was overwhelming in this case due to the chutzpah of the Appellant. On November 10, 2007, Appellant took advantage of D. H.’s mother being away at work, had D. H. disrobe, and proceeded to anally rape this seven-year-old girl. Whether for the purpose of preserving the act for future review and gratification or merely to exhibit his hubris for committing the repeated act, Appellant took a series of photos on a digital camera which detailed his sequential acts of abuse.

The Court is concerned about the utilization of all 18 photos as evidence in this case. I can understand why the defense would be concerned because the photos reveal the savagery of the attack on this young girl; however, the Court should only be concerned with the relevancy and probative value of the evidence. The photos were definitely relevant and probative of the acts committed. These are photos of the crime and the victim at the time the crime was being committed, not after the fact photos such as an autopsy. Any repetition of the photos is due solely to the actions of the Appellant and the length of time he took to sexually assault this young girl. Not only are the photos relevant, they are imperative to the proof of how the crime was committed and emphasize the extended nature of the crime which goes both to determination of guilt and the appropriate sentence.

I also believe the Court makes something out of nothing in determining the use of a metaphor by the prosecuting attorney in closing argument was error. The jury, as all juries in Oklahoma, was advised that statements of counsel are not evidence. The use of the terms from a credit card commercial to render a verdict that would be priceless to the Appellant is nothing more than asking the jury to let the Appellant know his conduct was unacceptable. Regardless, the jury did not impose the maximum sentence of Life Without Parole in this case; thus, it is hard to show their verdict was anything more than a well-reasoned decision based on the evidence.

There is no basis of fact in this record that the argument of counsel had any impact on the verdict of guilt or punishment. Instead, it appears the Court is seeking to grant mercy to the Appellant. Over 250 years ago, Adam Smith, a leading expositor of economic thought, made the observation on justice that mercy to the guilty is cruelty to the innocent. While today that thought may seem rather draconian, it does contain a basic human truth.

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Footnotes:

1. Okla. Stat. tit. 21 § 1114.
2. Hammon v. State, 1995 OK CR 33, 898 P.2d 1287, 1306.
3. Bell v. State, 2007 OK CR 43, 172 P.3d 622, 624.
4. 20 O.S.2001, § 3001.1.
5. Fritz v. State, 1991 OK CR 62, 811 P.2d 1353, 1364.
6. Fritz, 811 P.2d at 1365; President U. State, 1979 OK CR 114, 602 P.2d 222, 226.
7. Mitchell U. State, 1993 OK CR 56, 876 P.2d 682, 685.
8. Mitchell, 876 P.2d at 684.
9. Powell v. State, 1995 OK CR 37, 906 P.2d 765, 778-79; Mitchell, 876 P.2d at 685.
10. Graham v. State, 2001 OK CR 18, 27 P.3d 1026, 1028.
11. Patton v. State, 1998 OK CR 66, I 60, 973 P.2d 270, 290.
12. McCormick v. State, 845 P.2d 896, 898 (Okl.Cr.1993).
13. Mayes v. State, 1994 OK CR 44, I 77, 887 P.2d 1288, 1310.
14. Adam Smith, "The Theory of the Moral Sentiments" (1759).

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1114 - First Degree Rape (2001)
• Okla. Stat. tit. 20 § 3001.1 - General provisions regarding evidence (2001)
• Okla. Stat. tit. 22 § 3.15 - Rules of the Oklahoma Court of Criminal Appeals (2009)
• Okla. Stat. tit. 21 § 701.8 - Sentencing (2011)
• Okla. Stat. tit. 21 § 701.8 - Sentencing (2011)
• Okla. Stat. tit. 21 § 701.8 - Sentencing (2011)
• Okla. Stat. tit. 21 § 701.8 - Sentencing (2011)

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

• 20 O.S.2001, § 3001.1 - Oklahoma Evidence

Other citations:

No other rule citations found.

Case citations:

• Hammon v. State, 1995 OK CR 33, 898 P.2d 1287, 1306.
• Bell v. State, 2007 OK CR 43, 172 P.3d 622, 624.
• Fritz v. State, 1991 OK CR 62, 811 P.2d 1353, 1364.
• President U. State, 1979 OK CR 114, 602 P.2d 222, 226.
• Mitchell U. State, 1993 OK CR 56, 876 P.2d 682, 685.
• Powell v. State, 1995 OK CR 37, 906 P.2d 765, 778-79.
• Graham v. State, 2001 OK CR 18, 27 P.3d 1026, 1028.
• Patton v. State, 1998 OK CR 66, I 60, 973 P.2d 270, 290.
• McCormick v. State, 845 P.2d 896, 898 (Okl.Cr.1993).
• Mayes v. State, 1994 OK CR 44, I 77, 887 P.2d 1288, 1310.