Joseph Lander Smith v The State Of Oklahoma

F-2009-535

Filed: Jul. 2, 2010

Not for Publication

Prevailing Party: The State Of Oklahoma

Summary

Joseph Lander Smith appealed his conviction for Distribution of a Controlled Dangerous Substance (cocaine base). His conviction and sentence were modified from 25 years to 17 years in prison. Judge C. Johnson dissented in the decision.

Decision

The Judgment of the District Court is AFFIRMED. The Sentence of the District Court is MODIFIED to seventeen (17) 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 Mr. Smith denied due process due to the prosecutor's failure to disclose exculpatory impeachment evidence for the State's key identification witness and failure to correct the witness' false testimony?
• Did the evidence and argument presented to the jury asking for sentencing based upon a prior suspended sentence deprive Mr. Smith of a fair sentencing determination?
• Should any failure to investigate and preserve issues for review, cited as ineffective assistance of counsel, not be held against Mr. Smith?
• Did the cumulative effect of all the errors deprive Mr. Smith of a fair trial?

Findings

• the court erred in denying due process due to the failure to disclose exculpatory evidence
• the court found the sentencing determination was prejudiced due to improper references to a prior suspended sentence
• the ineffective assistance of counsel claim was deemed moot
• the cumulative effect of errors necessitated a modification of the sentence

F-2009-535

Jul. 2, 2010

Joseph Lander Smith

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

PER CURIAM:

Joseph Lander Smith was tried by jury and convicted of Distribution of a Controlled Dangerous Substance (cocaine base), After Former Conviction of a Felony, in violation of 63 O.S.Supp.2005, § 2-401, in the District Court of Garfield County, Case No. CF-2008-429. In accordance with the jury’s recommendation, the Honorable Tom L. Newby sentenced Smith to twenty-five years imprisonment to run consecutively to his sentence in Case No. CF-1999-266. Smith appeals from this conviction and sentence and raises four propositions in support of his appeal.

I. Mr. Smith was denied due process and a fundamentally fair trial by the prosecutor’s failure to disclose exculpatory impeachment evidence for the State’s key identification witness and failure to correct the witness’ false testimony. Smith submits a MOTION FOR NEW TRIAL, OR, IN THE ALTERNATIVE, MOTION TO SUPPLEMENT APPEAL RECORD AND REQUEST FOR CONSIDERATION OR EVIDENTIARY HEARING ON CLAIM OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL pursuant to Rule 3.11(B)(3), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (Supp. 2003). The MOTION FOR NEW TRIAL is DENIED. The MOTION TO SUPPLEMENT APPEAL RECORD and the REQUEST FOR CONSIDERATION OF CLAIM OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL is GRANTED. The REQUEST FOR HEARING ON CLAIM OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL is DENIED.

II. Evidence and argument asking the jury to sentence Mr. Smith based upon a prior suspended sentence deprived him of a fair sentencing determination.

III. Alternatively, any failure to investigate and preserve issues for review was the result of the ineffective assistance of counsel and should not be held against Mr. Smith.

IV. The cumulative effect of all the errors addressed above deprived appellant of a fair trial.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, exhibits and briefs, we find that the sentence should be modified. No other relief is required.

In Proposition One Smith argues that he was denied due process by the State’s failure to disclose that its witness, an informant who participated in a controlled buy leading to Smith’s conviction, herself had impeachable convictions, including one felony and five misdemeanor convictions for bad checks. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963). In addition, the State failed to correct its witness’ false testimony concerning her prior record. Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959). It is Smith’s burden to show that the State suppressed information that is both exculpatory and material. Where evidence is cumulative of evidence of bias or partially already presented ‘and thus would have provided only marginal additional support for [the] defense, the evidence is not material. Douglas v. Workman, 560 F.3d 1156, 1174 (10th Cir. 2009). The question is not whether the verdict more likely than not would have been different, but whether in its absence [the defendant] received a fair trial, understood as a trial resulting in a verdict worthy of confidence. Jones v. State, 2006 OK CR 5, ¶ 51, 128 P.3d 521, 541. Here, the witness admitted to being a convicted felon who traded her services as an informant for leniency from the prosecutor’s office in the form of a felony charge dismissed without costs. This point was emphasized by both the State and the defense. Though the additional felony and misdemeanor charges relating to honesty were certainly relevant and should have been turned over to the defense, the fact that the jury did not have this information does not impact the confidence this Court has in this verdict. This is so especially here, where in addition to the fact that the jury possessed knowledge of the informant’s motive to fabricate, the transaction in this matter was closely supervised and monitored by the State, providing independent corroboration of the drug transaction. Prior to the controlled buy, the informant was strip searched, and her car was searched. She was followed to Smith’s apartment by a team of trained narcotics officers. Furthermore, the informant wore a wire and a camera, each of which captured and corroborated elements of the transaction. Considering the record as a whole, the withheld impeachment testimony is not material to the guilt phase of this trial, and therefore, this Proposition is denied. The Court will consider the impact of this error in the context of the cumulative error challenge and the sentencing.

In Proposition Two Smith claims that jurors were improperly informed about his prior suspended sentence, and that the prosecutor’s references to the same in the second stage argument were prejudicial and improper, depriving Smith of a fair sentencing determination. Specifically, a Judgment and Sentence introduced during the second stage indicated that Smith received a fifteen year term of imprisonment with all except the first seven years suspended. The document also referenced attached rules and conditions of probation, though the rules and conditions were not attached. The State specifically referenced that suspended sentence in argument, and asked the jury to impose a greater sentence than previously imposed to ensure Smith learns his lesson. Because Smith failed to request redaction of the suspended sentence from the Judgment and Sentence and because Smith did not object to the argument of the State, this Court will review for plain error. Hogan v. State, 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923. The submission to the jury of the Judgment and Sentence referencing the suspended sentence and probation is actual, obvious error. Hunter v. State, 2009 OK CR 17, ¶ 8-9, 208 P.3d 931, 933. Furthermore, it was improper for the prosecution to reference that suspended sentence in his second stage argument. Evidence that the error affected the outcome of the proceeding may be gleaned from the questions submitted by the jury during second stage deliberations: Will Mr. Smith be required to finish his previous sentence in addition to any sentencing we imply? Was he on probation when the drug offense occurred? The court’s reply, you have been given all of the instructions necessary to make your decision, fails to instruct the jury that considerations about Smith’s prior sentence and probation and parole should not bear on the sentence they impose. Camp v. State, 1983 OK CR 74, 664 P.2d 1052, is distinguishable. There, the trial court responded to jury questions about parole, after the jury was exposed to the fact that Camp had prior suspended sentences, as follows: I cannot answer any of these questions. I would say, however, that you are not to consider pardon and parole for any purpose in arriving at your verdict. Relying upon this response, we found no error. In contrast, in the present case, as in Hunter, the error occurred, was highlighted by the prosecution, and was not corrected by the court. Considering that the sentence imposed, 25 years, is well within the guidelines, and recognizing that the evidence supporting this conviction is strong, this Court will not find plain error. Hogan, 2006 OK CR 19, ¶ 38, 139 P.3d at 923.

While neither Proposition One nor Proposition Two, standing alone, demand relief, this Court does find that the cumulative effect of the two errors demands remedy in the form of a modification of Smith’s sentence from 25 to 17 years. Given our findings above, we conclude that Smith’s Proposition Three, alleging ineffective assistance of counsel based upon counsel’s failure to investigate and preserve issues for review, is moot.

DECISION

The Judgment of the District Court is AFFIRMED. The Sentence of the District Court is MODIFIED to seventeen (17) 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. 63 O.S.Supp.2005, § 2-401
2. Rule 3.11(B)(3), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (Supp. 2003)
3. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963)
4. Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959)
5. Douglas v. Workman, 560 F.3d 1156, 1174 (10th Cir. 2009)
6. Jones v. State, 2006 OK CR 5, I 51, 128 P.3d 521, 541
7. Camp v. State, 1983 OK CR 74, 664 P.2d 1052
8. Hunter v. State, 2009 OK CR 17, I 8-9, 208 P.3d 931, 933
9. Long v. State, 2003 OK CR 14, I 6, 74 P.3d 105, 107
10. Rea v. State, 2001 OK CR 28 I 5, 34 P.3d 148, 149
11. Hogan v. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923
12. Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2010)

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-401 (2005) - Distribution of a Controlled Dangerous Substance
• Okla. Stat. tit. 22 § 3.11 (Supp. 2003) - Rules of the Oklahoma Court of Criminal Appeals
• Okla. Stat. tit. 21 § 701.8 (2011) - Sentencing
• Okla. Stat. tit. 22 § 3.15 (2010) - Rules of the Oklahoma Court of Criminal Appeals
• Okla. Stat. tit. 22 § 18 (Supp. 2003) - General Offenses
• Okla. Stat. tit. 21 § 1191 (2011) - Sentencing after conviction
• Okla. Stat. tit. 21 § 703.3 (2011) - Imposition of sentence
• Okla. Stat. tit. 22 § 1052 (Supp. 2003) - Cumulative Effects

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.