Alfred Burke, Jr. v The State Of Oklahoma

F-2009-15

Filed: Nov. 20, 2009

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Alfred Burke, Jr. appealed his conviction for Kidnapping and Forcible Oral Sodomy. The original conviction and sentence were for 273 years imprisonment on each count, served one after the other. Judge Lumpkin dissented on the modification of the sentences. In this case, Alfred Burke was found guilty in Oklahoma County District Court of serious crimes involving kidnapping and sexual assault. The jury decided on a very long sentence of 273 years for each crime. Burke argued that parts of the law used against him were unfair, that some evidence shouldn’t have been allowed in court, and that his sentence was too harsh. The court reviewed Burke's claims carefully. They found that some evidence admitted during the trial was problematic and could have influenced the jury's decision. However, they ultimately decided not to overturn the conviction but changed the sentence to life imprisonment for each crime, to be served at the same time instead of one after the other. Judge Lumpkin, who disagreed with the decision to modify the sentences, believed that the evidence used against Burke was relevant to the case. He thought the evidence showing Burke's past bad behavior should have been allowed to help prove that Burke was guilty. In summary, the Court upheld Burke's conviction but changed his sentence to life in prison.

Decision

The Judgment of the district court is AFFIRMED and Sentence is MODIFIED to life imprisonment on each count with the sentences to run concurrently. We also find that Appellant's request for an oral argument shall be DENIED. 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 Title 12 O.S.Supp.2007, § 2413 unconstitutional pursuant to the Due Process Clauses of the Oklahoma and United States Constitutions?
• Did the trial court err by admitting propensity evidence that was more prejudicial than probative?
• Is Appellant's 273 year sentence excessive and disproportionate to the crime?
• Did the sentence rendered violate 22 O.S.2001, § 952, warranting a new trial?
• Did the trial court err by not granting a mistrial upon the introduction of evidence of other crimes?
• Do trial errors, when considered in a cumulative fashion, warrant a new trial or a modification of Appellant's sentence?

Findings

• the court erred
• the trial court abused its discretion in admitting propensity evidence
• the sentence was modified to life imprisonment on each count with the sentences to run concurrently
• the trial court did not abuse its discretion in denying a motion for a new trial
• the trial court did not abuse its discretion in denying a motion for a mistrial
• the cumulative effect of the trial errors did not warrant a new trial or sentence modification

F-2009-15

Nov. 20, 2009

Alfred Burke, Jr.

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

C. JOHNSON, PRESIDING JUDGE: Appellant, Alfred Burke, Jr., was convicted after jury trial in Oklahoma County District Court, Case No. CF-2008-1002, of Kidnapping and Forcible Oral Sodomy both After Former Conviction of Two or More Felonies. The jury assessed punishment at 273 years imprisonment on each count. The trial court sentenced Appellant accordingly, ordering the sentences be served consecutively. It is from this Judgment and Sentence that Appellant appeals to this Court.

Appellant raises the following propositions of error:
1. Title 12 O.S.Supp.2007, § 2413 is unconstitutional pursuant to the Due Process Clauses of the Oklahoma and United States Constitutions, as well as Art. II, §§ 17 and 20 of the Oklahoma Constitution.
2. The trial court erred by admitting propensity evidence that was more prejudicial than probative in contravention of Horn v. State.
3. Appellant’s 273 year sentence is excessive and disproportionate to the crime.
4. The sentence rendered in this case violated 22 O.S.2001, § 952 and therefore the court erred in not granting a new trial.
5. The trial court erred by not granting a mistrial upon the introduction of evidence of other crimes.
6. Trial errors, when considered in a cumulative fashion, warrant a new trial or a modification of Appellant’s sentence.

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. Burke’s judgment and modify his sentence.

As to Proposition I, we find that 12 O.S.Supp.2007, § 2413 does not violate the due process clauses of Oklahoma and United States Constitution. See Horn v. State, 2009 OK CR 7, 204 P.3d 777; United States v. Enjady, 134 F.3d 1427 (10th Cir. 1998). Nor do we find it to be violative of Okla. Const, art. II, §§ 17 and 20.

With regard to Proposition II, we agree with Appellant that 12 O.S.Supp.2007, § 2413 does not allow the carte blanche admission of other crimes evidence as this evidence is still required to be both relevant and, under 12 O.S.2001, § 2403, not unfairly prejudicial. In Horn v. State, 2009 OK CR 7, 204 P.3d 777, this Court acknowledged the same. See also United States v. Enjady, 134 F.3d 1427, 1433 (10th Cir. 1998); United States v. Guardia, 135 F.3d 1326, 1331 (10th Cir. 1998).

In analyzing the impact of the propensity evidence admitted in this case, we find that given the victim’s unwavering testimony that Appellant had assaulted her and the corroborating DNA evidence, it was unlikely that the propensity evidence contributed to an improperly-based jury verdict. However, the admission of the marginally probative and very prejudicial evidence that Appellant committed an earlier sexual assault is likely to have been distracting to the jury and to have contributed to the sentencing decision.

While it is true that at the time of Appellant’s trial, the trial court did not have the benefit of guidance from this Court on how to determine the admissibility of propensity evidence under section 2413, the trial court’s admission of the propensity evidence in light of the factors to be weighed constituted an abuse of discretion in this case. Accordingly, we remedy this error by modifying Appellant’s sentence to life imprisonment on each count with the sentences to run concurrently.

In Appellant’s third proposition he claims that his sentences are excessive. Given that Appellant’s sentences warrant modification pursuant to error raised in Proposition II, above, this claim need not be addressed further.

With regard to error raised in Proposition IV, on the record before this Court, it cannot be found that the trial court abused its discretion in denying Appellant’s motion for a new trial based upon 22 O.S.2001, § 952. McKay v. Tulsa, 1988 OK CR 238, ¶ 12-14, 763 P.2d 703, 706; Pierce v. State, 1990 OK CR 7, ¶ 38-39, 786 P.2d 1255, 1266.

In Proposition V we find that the trial court did not abuse its discretion in denying Appellant’s motion for a mistrial based upon evidence which merely suggested that Appellant may have committed a crime in the past. Bernay v. State, 1999 OK CR 37, ¶ 25, 989 P.2d 998, 1008. Further, the other evidence complained of in this proposition was properly admitted as it was part of the res gestae of the criminal acts for which Appellant was being tried. Eizember v. State, 2007 OK CR 29, ¶ 77, 164 P.3d 208, 230.

In his final proposition of error Appellant claims that the trial errors, when considered cumulatively, warrant a new trial or sentence modification. This Court has recognized that when there are numerous irregularities during the course of [a] trial that tend to prejudice the rights of the defendant, reversal will be required if the cumulative effect of all the errors was to deny the defendant a fair trial. DeRosa v. State, 2004 OK CR 19, ¶ 100, 89 P.3d 1124, 1157, quoting Lewis v. State, 1998 OK CR 24, ¶ 63, 970 P.2d 1158, 1176. Upon review of Appellant’s claims for relief and the record in this case this Court concludes 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. His sentence, however, is modified pursuant to error raised in Proposition II.

DECISION

The Judgment of the district court is AFFIRMED and Sentence is MODIFIED to life imprisonment on each count with the sentences to run concurrently. We also find that Appellant’s request for an oral argument shall be DENIED. 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.

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Footnotes:

1. 12 O.S.Supp.2007, § 2413 is unconstitutional pursuant to the Due Process Clauses of the Oklahoma and United States Constitutions, as well as Art. II, §§ 17 and 20 of the Oklahoma Constitution.
2. Horn v. State.
3. 22 O.S.2001, § 952.
4. McKay v. Tulsa, 1988 OK CR 238, II 12-14, 763 P.2d 703, 706.
5. Pierce v. State, 1990 OK CR 7, TT 38-39, 786 P.2d 1255, 1266.
6. Bernay v. State, 1999 OK CR 37, I 25, 989 P.2d 998, 1008.
7. Eizember v. State, 2007 OK CR 29, If 77, 164 P.3d 208, 230.
8. DeRosa v. State, 2004 OK CR 19, I 100, 89 P.3d 1124, 1157.
9. Lewis v. State, 1998 OK CR 24, I 63, 970 P.2d 1158, 1176.

Oklahoma Statutes citations:

• Okla. Stat. tit. 12 § 2413 (2007) - Unconstitutionality and due process concerns
• Okla. Stat. tit. 22 § 952 (2001) - New trial grounds

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:

• Horn v. State, 2009 OK CR 7, 204 P.3d 777
• United States v. Enjady, 134 F.3d 1427 (10th Cir. 1998)
• United States v. Guardia, 135 F.3d 1326 (10th Cir. 1998)
• McKay v. Tulsa, 1988 OK CR 238, 763 P.2d 703
• Pierce v. State, 1990 OK CR 7, 786 P.2d 1255
• Bernay v. State, 1999 OK CR 37, 989 P.2d 998
• Eizember v. State, 2007 OK CR 29, 164 P.3d 208
• DeRosa v. State, 2004 OK CR 19, 89 P.3d 1124
• Lewis v. State, 1998 OK CR 24, 970 P.2d 1158