Embry Jay Loftis v The State Of Oklahoma

F-2009-1067

Filed: Feb. 23, 2011

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Embry Jay Loftis appealed his conviction for Unlawful Possession of a Controlled Dangerous Substance. His conviction and sentence were for forty years in prison and a $10,000 fine. Judge Lewis dissented. In this case, Loftis argued that he was not allowed to present his witnesses, which hurt his chance to defend himself. He also complained that he represented himself without the court checking if he was capable of doing so, and that the court should not have considered his past crimes when deciding his punishment. He believed there were mistakes made during the trial, including issues with the jury instructions and the prosecutor's comments. After reviewing the case, the court agreed with Loftis on some points, especially about considering his past crimes, but ultimately decided to modify his sentence to thirty years instead of forty. The court affirmed the rest of the judgment, meaning they mostly agreed with the original decision.

Decision

The Judgment of the district court is AFFIRMED. Appellant's Sentence is MODIFIED to thirty years imprisonment. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2010), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• was there an unwarranted absolute exclusion of the defense witnesses that denied the opportunity to present a complete defense?
• did the trial court fail to determine if Mr. Loftis was competent or voluntarily chose to represent himself?
• did the trial court err by allowing the jury to enhance punishment with prior convictions that were part of the same transaction?
• was Mr. Loftis deprived of his right to fully appeal the second stage of his trial due to missing jury instructions?
• did prosecutorial misconduct during closing arguments deprive Appellant of a fair trial?
• was the evidence presented at trial insufficient to support the conviction for possession of cocaine?
• should Mr. Loftis be granted relief based on cumulative error?
• did the trial court err in ordering Mr. Loftis' convictions to run consecutively?

Findings

• Any error in the trial court's ruling regarding the exclusion of defense witnesses was harmless beyond a reasonable doubt.
• Appellant's decision to represent himself was made knowingly, intelligently, and voluntarily; he was competent to waive his right to counsel.
• The trial court abused its discretion by allowing the jury to consider both 1998 convictions for enhancement purposes.
• The absence of written second stage jury instructions from the record was rendered harmless beyond a reasonable doubt by the certified transcript.
• The prosecutor's closing arguments amounted to plain error affecting the jury's decision in sentencing.
• The evidence was sufficient to support Appellant's conviction for possession of a controlled dangerous substance beyond a reasonable doubt.
• Notwithstanding trial errors, the cumulative effect did not warrant reversal of the judgment; however, the sentence must be modified to thirty years imprisonment due to cumulative sentencing errors.
• The trial court did not abuse its discretion in ordering the sentence on the felony possession conviction to run concurrently with the sentences imposed for misdemeanor convictions.

F-2009-1067

Feb. 23, 2011

Embry Jay Loftis

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

Appellant, Embry Jay Loftis, was convicted after jury trial in Carter County District Court, Case No. CF-2009-112, of Unlawful Possession of a Controlled Dangerous Substance, After Former Conviction of Two or More Felonies. The jury assessed punishment at forty years imprisonment and a $10,000 fine. The trial court sentenced Appellant accordingly. It is from this Judgment and Sentence that Appellant appeals to this Court.

Appellant raises the following propositions of error:

1. Absolute exclusion of the defense witnesses was unwarranted and denied Mr. Loftis a meaningful opportunity to present a complete defense.
2. Mr. Loftis represented himself at trial without the trial court determining if he was competent to do so, or that his decision to represent himself was voluntary.
3. The trial court erred by permitting the jury to enhance punishment with the prior convictions which were part of the same transaction.
4. Because the written second stage jury instructions are missing from the district court file, and are not part of the record on appeal, Mr. Loftis has been deprived of his right to fully appeal the second stage of his trial, therefore his sentences must be modified.
5. Prosecutorial misconduct during closing arguments deprived Appellant of a fair trial.
6. The evidence presented at trial was insufficient to support the conviction for possession of cocaine, as there was insufficient proof of possession.
7. Mr. Loftis should be granted relief based upon cumulative error.
8. The trial court erred when it ordered Mr. Loftis’ convictions to be run consecutively.

After thorough consideration of the propositions, and the entire record before us on appeal, including the original record, transcripts, and briefs of the parties, we affirm Mr. Loftis’s Judgment and modify his Sentence.

As to Proposition I, we find that any error in the trial court’s ruling denying Appellant the right to present witnesses on his behalf can be found in this case to have been harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967); Jones v. State, 2009 OK CR 1, ¶¶ 46-48, 201 P.3d 869, 883; White v. State, 1998 OK CR 69, ¶ 12, 973 P.2d 306, 311.

With regard to Proposition II, we find that Appellant was not forced to represent himself but rather chose to do so and this choice was made knowingly, intelligently and voluntarily. Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975). Further, Appellant was competent to waive his right to counsel. Godinez v. Moran, 509 U.S. 389, 396, 113 S.Ct. 2680, 2685, 125 L.Ed.2d 321 (1993).

In Proposition III, we find that 21 O.S.2001, § 51.1(B) prohibits the introduction of transactional priors for purpose of enhancement. It is true that a showing that the prior convictions had sequential case numbers and occurred on the same day is not sufficient to support an inference they are transactional. See Ott v. State, 1998 OK CR 51, ¶ 16, 967 P.2d 472, 478. In the present case, however, the fact that these convictions occurred on the same day and arose out of the same case number was not the only evidence supporting Appellant’s assertion that they were transactional. The testimony of the witness who sponsored the Judgments and Sentences indicated her belief that the 1998 convictions were transactional. Accordingly, we find that the trial court abused its discretion in allowing both 1998 convictions to be considered by the jury for purposes of enhancement. Cuesta-Rodriguez v. State, 2010 OK CR 23, ¶ 29, P.3d.

We find in Proposition IV that despite the failure to include written second stage jury instructions within the record, as is required by 22 O.S.2001, § 831(6), the certified transcript of the trial court’s reading of the same rendered this error harmless beyond a reasonable doubt as Appellant had an adequate record from which to base his appeal of the second stage of trial.

As to Proposition V, we find that the prosecutor’s closing argument improperly and unmistakably called to the jury’s attention that Appellant did not serve his full sentence on his prior conviction. Darks v. State, 1998 OK CR 15, ¶ 59, 954 P.2d 152, 167. Such a conclusion is supported by two notes sent out to the judge by the jury during second stage deliberations asking how much time Appellant served on his prior conviction for distribution and about the percentage of time he would serve on the present conviction. Under the circumstances of this case, we find the prosecutor’s comment was plain error which affected the jury’s decision in sentencing. Williams v. State, 2008 OK CR 19, ¶ 124, 188 P.3d 208, 230.

In Proposition VI, we find that the evidence was sufficient to support Appellant’s conviction for possession of a controlled dangerous substance beyond a reasonable doubt. Head v. State, 2006 OK CR 44, ¶ 6, 146 P.3d 1141, 1144. See also Spuehler v. State, 1985 OK CR 132, ¶ 7, 709 P.2d 202, 203-04.

In his seventh proposition, Appellant claims that the trial errors, when considered cumulatively, warrant a new trial or sentence modification. Upon review of Appellant’s claims for relief and the record in this case, we conclude that although his trial was not error free, any errors and irregularities, even when considered in the aggregate, do not require reversal of Appellant’s judgment. DeRosa v. State, 2004 OK CR 19, ¶ 100, 89 P.3d 1124, 1157. However, we find that the cumulative effect of the sentencing errors raised in Propositions III and V require that Appellant’s sentence be modified to thirty years imprisonment.

Finally, we find that the trial court did not abuse its discretion in ordering the sentence imposed on his felony possession conviction to run concurrently with the sentences imposed on his misdemeanor convictions. Coates v. State, 2006 OK CR 24, ¶ 8, 137 P.3d 682, 685.

DECISION

The Judgment of the district court is AFFIRMED. Appellant’s Sentence is MODIFIED to thirty years imprisonment. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2010), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

1. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967)
2. Jones v. State, 2009 OK CR 1, ¶¶ 46-48, 201 P.3d 869, 883
3. White v. State, 1998 OK CR 69, ¶ 12, 973 P.2d 306, 311
4. Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975)
5. Godinez v. Moran, 509 U.S. 389, 396, 113 S.Ct. 2680, 2685, 125 L.Ed.2d 321 (1993)
6. 21 O.S.2001, § 51.1(B)
7. Ott v. State, 1998 OK CR 51, ¶ 16, 967 P.2d 472, 478
8. Cuesta-Rodriguez v. State, 2010 OK CR 23, ¶ 29, P.3d
9. 22 O.S.2001, § 831(6)
10. Darks v. State, 1998 OK CR 15, ¶ 59, 954 P.2d 152, 167
11. Williams v. State, 2008 OK CR 19, ¶ 124, 188 P.3d 208, 230
12. Head v. State, 2006 OK CR 44, ¶ 6, 146 P.3d 1141, 1144
13. Spuehler v. State, 1985 OK CR 132, ¶ 7, 709 P.2d 202, 203-04
14. DeRosa v. State, 2004 OK CR 19, ¶ 100, 89 P.3d 1124, 1157
15. Coates v. State, 2006 OK CR 24, ¶ 8, 137 P.3d 682, 685

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 51.1(B) - Prohibition of Introduction of Transactional Priors for Enhancement
• Okla. Stat. tit. 22 § 831(6) - Requirement for Written Jury Instructions

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:

• Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967)
• Jones v. State, 2009 OK CR 1, ¶ 46-48, 201 P.3d 869, 883
• White v. State, 1998 OK CR 69, ¶ 12, 973 P.2d 306, 311
• Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975)
• Godinez v. Moran, 509 U.S. 389, 396, 113 S.Ct. 2680, 2685, 125 L.Ed.2d 321 (1993)
• Ott v. State, 1998 OK CR 51, ¶ 16, 967 P.2d 472, 478
• Cuesta-Rodriguez v. State, 2010 OK CR 23, ¶ 29, P.3d
• Darks v. State, 1998 OK CR 15, ¶ 59, 954 P.2d 152, 167
• Williams v. State, 2008 OK CR 19, ¶ 124, 188 P.3d 208, 230
• Head v. State, 2006 OK CR 44, ¶ 6, 146 P.3d 1141, 1144
• Spuehler v. State, 1985 OK CR 132, ¶ 7, 709 P.2d 202, 203-04
• DeRosa v. State, 2004 OK CR 19, ¶ 100, 89 P.3d 1124, 1157
• Coates v. State, 2006 OK CR 24, ¶ 8, 137 P.3d 682, 685