Dusty Ray McGee v The State Of Oklahoma

F-2008-434

Filed: Nov. 4, 2010

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Dusty Ray McGee appealed his conviction for First Degree Murder. The conviction and sentence were reversed and sent back for a new trial. Judge Lumpkin dissented. In this case, Dusty McGee was found guilty of murdering a homeless man named John Seeley after a violent attack. McGee and others attacked Seeley while stealing metal from an abandoned building. Seeley was beaten and left unconscious, later dying from his injuries. During the trial, McGee’s lawyers raised several issues about how the trial was conducted. They argued that the judge did not follow proper procedures when answering questions from the jury and that this affected McGee’s right to a fair trial. The court found that the judge’s failure to properly respond to the jury’s questions caused confusion. As a result, McGee’s conviction was overturned, and the case will be retried.

Decision

The Judgment and Sentence of the District Court is REVERSED and the case REMANDED for a new trial. 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 the wrong standard utilized by the district court when addressing a Batson challenge raised by defense counsel, violating the appellant's rights under the Fourteenth Amendment?
• Did the district court give an inadequate response to a jury question about what to do if they all felt the appellant was guilty of either first or second degree murder?
• Did the district court continue to follow improper procedure when the jury submitted notes during deliberation, prejudicing the appellant?
• Was it reversible error to permit the jury unlimited viewing of the appellant's taped statement over defense counsel's objection?
• Should the appellant's conviction be modified to second degree murder under the facts of the case?
• Did the combined errors during the appellant's trial deny him the right to a fair trial guaranteed by the Fourteenth Amendment?

Findings

• the court erred
• the court erred
• the court erred
• the court erred
• the evidence was sufficient for a conviction of second degree murder
• the combined errors denied the appellant a fair trial

F-2008-434

Nov. 4, 2010

Dusty Ray McGee

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

CHAPEL, JUDGE: Dusty Ray McGee was tried by jury and convicted, in Tulsa County District Court Case No. CF-2007-3014, for the crime of First Degree Murder in violation of 21 O.S. Supp. 2006, § 701.7. First Degree Murder is subject to the 85% Rule pursuant to 21 O.S.2001, § 13.1. In accordance with the jury’s recommendation, the Honorable Thomas C. Gillert, District Judge, sentenced McGee to life imprisonment with the possibility of parole. McGee appeals from this conviction and sentence, raising six propositions for review.

I. THE DISTRICT COURT UTILIZED THE WRONG STANDARD WHEN ADDRESSING A BATSON CHALLENGE RAISED BY DEFENSE COUNSEL. THE PROCEDURE VIOLATED APPELLANT’S RIGHTS UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

II. THE DISTRICT COURT GAVE AN INADEQUATE RESPONSE TO A QUESTION FROM THE JURY ABOUT WHAT TO DO WHEN THEY ALL FELT APPELLANT TO BE GUILTY OF EITHER FIRST OR SECOND DEGREE MURDER. HAD A PROPER RESPONSE TO THE QUESTION BEEN GIVEN, APPELLANT WOULD HAVE BEEN ACQUITTED OF FIRST DEGREE MURDER AND CONVICTED OF SECOND DEGREE MURDER.

III. THE DISTRICT COURT CONTINUED TO FOLLOW IMPROPER PROCEDURE WHEN THE JURY SUBMITTED NOTES DURING DELIBERATION. APPELLANT WAS PREJUDICED BY THE COURT’S ANSWERS TO THE JURORS’ QUESTIONS. HAD APPROPRIATE ANSWERS BEEN GIVEN, APPELLANT WOULD HAVE BEEN ACQUITTED OF FIRST DEGREE MURDER AND CONVICTED OF SECOND DEGREE MURDER.¹

IV. IT WAS REVERSIBLE ERROR TO PERMIT THE JURY UNLIMITED VIEWING OF APPELLANT’S TAPED STATEMENT OVER DEFENSE COUNSEL’S OBJECTION.

V. UNDER THE FACTS OF APPELLANT’S CASE, HIS CONVICTION SHOULD BE MODIFIED TO SECOND DEGREE MURDER.

VI. THE COMBINED ERROR DURING APPELLANT’S TRIAL SERVED TO DENY HIM THE RIGHT TO A FAIR TRIAL GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, exhibits and briefs, we find that relief is required in response to Proposition Three. McGee’s conviction will be reversed and this matter remanded for proceedings consistent with the decision herein.

On or about May 30, 2007, Dusty Ray McGee along with one or both of Patrick Pflueger and Leslie McGee were scrapping, i.e., stealing metal from an abandoned apartment complex at 2423 East 7th Street, in Tulsa, when John Seeley, a homeless man who was squatting in the apartments, confronted the men and threatened to call the police. The scrappers left, temporarily. Sometime around midnight on May 30, Pflueger and the McGee brothers, along with Pflueger’s former girlfriend Candy Lewis, walked over to the apartments where Seeley was squatting, and initiated a brutal and ultimately deadly attack on Seeley. Wearing his steel toed work boots Dusty McGee was first to start kicking Seeley in the head. Pflueger joined in shortly. Both Dusty McGee and Pflueger urinated on or near Seeley and assaulted him with a stick and a cabinet door. Much of the assault occurred while Seeley was down, or unconscious. Leslie McGee took a few kicks at Seeley during this initial attack, and possibly hit² Seeley with the cabinet, but Leslie McGee was less involved than Dusty McGee and Pflueger. At some point Seeley was dragged to another apartment where both Dusty McGee and Pflueger continued the assault, using a large television set as a weapon. After the physical assault, prior to leaving the apartment, someone took pictures of the victim with Lewis’ cell phone. At this time, the victim was still alive, making gurgling sounds. After the assault Lewis ran from the apartment. Pflueger followed her and tried to calm her down. Pflueger warned Lewis not to tell anyone of their involvement, threatening her life if she snitched. Rather, Pflueger instructed Lewis to blame it on the Crips. Pflueger is a Blood. Lewis testified that Dusty McGee made the same general threats to her, demanding she not reveal their involvement. Unlike Pflueger, McGee did not attempt to supply Lewis with an alternative version of events. Upon returning home, Lewis informed her sister of the events she witnessed. After the two spoke, either she or her sister called 911. Law enforcement found Seeley, but not in time to save his life. The 911 operator traced the call, and Lewis was instructed to contact police. She did, and gave a very detailed description of four black perpetrators who she claimed committed the offense. She even picked out the men from a photo array. After investigating this story, the assigned Detectives confronted Lewis with their suspicion that she was lying. She quickly recanted and told the police about the involvement of Pflueger and the McGee brothers. Dusty McGee was³ arrested on June 1, 2007, upon returning from work. Leslie McGee was arrested the same day. Pflueger fled the State, and was arrested weeks later. Dusty McGee gave a statement upon arrest wherein he admitted much of the facts set forth above. He claimed that his intent was to beat Seeley up, not kill him. Recognizing Seeley was still alive after the brutal attack, Dusty McGee claimed he wanted to call an ambulance but did not because Pflueger threatened him.

During deliberations the jury submitted four notes to the court, seeking guidance relating to the distinction between first and second degree murder. In violation of 22 O.S. 2001, § 894¹, the trial judge failed to call the parties and the jury back into open court to deal with the questions. A violation of 22 O.S.2001, § 894 creates a presumption of prejudice. This presumption may be overcome if the State can demonstrate that no prejudice occurred. Where the responses of the trial court are correct, limited in scope, and essentially the same as would have been given had the statute been strictly followed, the presumption is overcome. Most troubling is the jury question relating to the 85% Rule.² Though first and second degree murder are both 85% crimes,³ the jury was only instructed as to the range of sentence of first degree murder. During deliberations, the jury asked: Judge, In second degree murder, after the sentence is set, does he still have to serve 85% of sentence with no chance of early time for good behavior? The response of the court was: As indicated in the instructions you will receive further guidance and instructions regarding punishment for second degree murder should that be the result. This question demonstrates that the jury was struggling with the very problem this Court sought to avoid by its holding in Anderson v. State.⁴ The inclusion of information pertinent to sentencing for first degree murder, and the failure to instruct on second degree murder could reasonably be interpreted by the jury to mean that first degree murder had the 85% requirement and second degree did not. Clearly the jury was trying to determine whether or not this was so. A jury should not be required to perform [its] critical and difficult responsibility without the benefit of all significant and appropriate information that would avoid the necessity that it speculate or act upon misconceptions concerning the effect of its decisions. Surely a properly informed jury ensures a fair trial both to the defendant and the Commonwealth.⁵ All of the jury’s questions, as a group, indicate that the jury was struggling with the distinction between first and second degree murder.⁶

Deliberation, and apparently some confusion, centered on: 1) how to define intent; 2) whether McGee was guilty of first or second degree murder; and 3) the sentencing consequences of finding McGee guilty of either first or second degree murder. In fact, the jury informed the court, at one point, that it may be deadlocked over whether McGee was guilty of first or second degree murder.⁷ This Court also recognizes that there is a factual basis in the record to find second degree murder. In his confession, McGee admits to the beating of Seeley but claims that he never intended for Seeley to die. It is undisputed that McGee left Seeley in the apartment while Seeley was still alive. Because juries know about the parole system and will make determinations based upon the possibility of parole,⁸ and because this record demonstrates that the jury was struggling with the question of punishment, and specifically the question of the 85% Rule, we cannot say that the presumption of prejudice in failing to comply with 22 O.S.2001, § 894 is overcome in this instance.

Because we find reversible error in Proposition Three, the remaining Propositions are moot.⁹

DECISION

The Judgment and Sentence of the District Court is REVERSED and the case REMANDED for a new trial. 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.

APPEARANCES AT TRIAL

J. BRIAN RAYL
ASSISTANT PUBLIC DEFENDER
423 S. BOULDER, SUITE 300
TULSA, OKLAHOMA 74103
ATTORNEY FOR APPELLANT

WILLIAM J. MUSSEMAN
ASSISTANT DISTRICT ATTORNEY
500 SOUTH DENVER
TULSA, OKLAHOMA 74103
ATTORNEY FOR THE STATE

APPEARANCES ON APPEAL

STUART W. SOUTHERLAND
SHENA BURGESS
ASSISTANT PUBLIC DEFENDERS
423 S. BOULDER, SUITE 300
TULSA, OKLAHOMA 74103
ATTORNEYS FOR DEFENDANT

W.A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA
JENNIFER BLAKENEY WELCH
ASSISTANT ATTORNEY GENERAL
313 NE 21 ST STREET
OKLAHOMA CITY, OKLAHOMA 73105
ATTORNEYS FOR THE STATE

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

¹ In Proposition One, McGee raises a Batson challenge, Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), arguing that the trial judge erred when he stated there was no presumption of racial bias where defendant is Native American and the struck juror is African American. McGee correctly argues, and the State concedes, that a defendant may object to peremptory challenges based on race even where the defendant and the excluded juror are not of the same race. Powers v. Ohio, 499 U.S. 400, 406-416, 111 S. Ct. 1364, 1368-74, 113 L. Ed.2d 411 (1991). The trial court here erred when it held otherwise. Because we reverse on Proposition Three, we need not reach whether McGee established the third prong of Batson, requiring evidence of purposeful discrimination.

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Footnotes:

1. 21 O.S. Supp. 2006, § 701.7.
2. 21 O.S.2001, § 13.1.
3. 22 O.S. 2001, § 894.
4. 21 O.S. Supp. 2007, § 13.1.
5. Anderson v. State, 2006 OK CR 6, 121, 130 P.3d 273 (sentencing).
6. Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).
7. Powers v. Ohio, 499 U.S. 400, 406-416, 111 S. Ct. 1364, 1368-74, 113 L. Ed. 2d 411 (1991).

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.7 - First Degree Murder
• Okla. Stat. tit. 21 § 13.1 - 85% Rule
• Okla. Stat. tit. 22 § 894 - Jury Instructions and Procedures

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:

• Mosco v. State, 1975 OK CR 130, I 3, 538 P.2d 1132, 1133.
• Grayson v. State, 1984 OK CR 87, I 12, 687 P.2d 747, 749-50.
• Anderson v. State, 2006 OK CR 6, 121, 130 P.3d 273, 281.
• Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).
• Powers v. Ohio, 499 U.S. 400, 406-416, 111 S. Ct. 1364, 1368-74, 113 L. Ed. 2d 411 (1991).