Roy Lee Hall v The State Of Oklahoma

F-2009-563

Filed: Sep. 21, 2010

Not for Publication

Prevailing Party: The State Of Oklahoma

Summary

Roy Lee Hall appealed his conviction for Trafficking in Illegal Drugs. His conviction and sentence were affirmed to thirty (30) years imprisonment and a fine of $25,000.00, but the court modified his fine to $10,000. Judge A. Johnson dissented.

Decision

The Judgment of the District Court is AFFIRMED. The Sentence of thirty (30) years imprisonment is AFFIRMED. The Fine imposed by the District Court is MODIFIED to $10,000. 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 error in the trial court's attempt to define the concept of reasonable doubt for the jury panel?
• did the trial court correctly instruct the jury on the range of punishment and the appropriate fine?
• did the failure to instruct the jury on the lesser-included offense of possession of CDS deprive Hall of a fair trial?

Findings

• the court erred in attempting to define reasonable doubt for the jury panel
• the court correctly instructed the jury on the range of punishment but the fine was improperly instructed
• the court modified Hall's fine to $10,000
• the court did not err in failing to instruct the jury on the lesser-included offense of possession of CDS

F-2009-563

Sep. 21, 2010

Roy Lee Hall

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

MICHAEL S. RICHIE SMITH, JUDGE:

Roy Lee Hall was tried by jury and convicted of Count I, Trafficking in Illegal Drugs in violation of 63 O.S.Supp.2004, § 2-415, after former conviction of two or more felonies, in the District Court of Oklahoma County, Case No. CF-2008-564. In accordance with the jury’s recommendation the Honorable Virgil Black sentenced Hall to thirty (30) years imprisonment and a $25,000.00 fine. Hall appeals from this conviction and sentence. Hall raises three propositions of error in support of his appeal:

I. The trial court erred when it attempted to define the concept of reasonable doubt for the jury panel;

II. Because the jury was not correctly instructed on the range of punishment, this Court must modify Hall’s sentence and fine or remand the matter to the District Court for resentencing; and

III. The failure to instruct the jury on the lesser-included offense of possession of CDS deprived Hall 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 Hall’s conviction and sentence should be affirmed, but the amount of his fine must be modified.

We find in Proposition I that there was no plain error in the introductory instruction, and the trial court did not improperly attempt to define the beyond a reasonable doubt burden of proof. Wright U. State, 2001 OK CR 19, § 16, 30 P.3d 1148, 1151; Hammon U. State, 1995 OK CR 33, § 83, 898 P.2d 1287, 1305; Al-Mosawi U. State, 1996 OK CR 59, § 27, 929 P.2d 270, 279. We note that no explicit objection was raised, thus review was for plain error. While we understand the trial court’s impulse to help jurors, even sincere attempts to dispel common misconceptions about the meaning of beyond a reasonable doubt may inadvertently rise to the level of improper definition, and we urge trial courts to refrain from this type of explanation.

We find in Proposition II that the trial court correctly instructed the jury on the range of punishment. At the time Hall committed the offense, trafficking was punishable by a minimum sentence of five years for a first offense. 63 O.S.Supp.2004, § 2-401(B)(1); 63 O.S.Supp.2004, § 2-415(D)(1). We further find that Hall’s jury was erroneously instructed as to the appropriate fine. Section 2-401, on which the punishment provision of the trafficking statute is based, provides for a fine of $25,000 to $100,000 for a first offense. The sentence enhancement statute used here, 21 O.S.Supp.2002, § 51.1, makes no independent provision for a fine. In Coates U. State, 2006 OK CR 24, § 6, 137 P.3d 682, 684, we held that a sentence enhanced under § 51.1 cannot include additional imposition of any fine imposed in the underlying substantive drug statute. As Hall’s sentence was enhanced under § 51.1, the trial court should not have instructed jurors on the fines provided in § 2-401. This plain error requires relief; the error took from Hall a substantial statutory right, as jurors were improperly instructed on a fine and imposed a fine based on that improper instruction. 20 O.S.2001, § 3001.1.

As a remedy for this improper instruction, Hall asks that his fine be vacated. As the State and Hall both note, a jury would have had the option of imposing a fine up to $10,000 for this felony offense. 21 O.S.2001, § 64(B). In Fite U. State, 1993 OK CR 58, § 8, 873 P.2d 293, 295, this Court modified a fine improperly imposed under the drug enhancement statutes by giving effect to the trial court’s power to impose a fine under § 64. Since Fite, § 64 has been amended to allow both judges and juries to impose a fine of up to $10,000 in felony cases. As a properly instructed jury could have imposed a fine of up to $10,000, we modify Hall’s fine to $10,000.

We find in Proposition III that there was no plain error in the trial court’s failure to sua sponte instruct jurors on the lesser included offense of possession of a controlled dangerous substance, as evidence did not support such an instruction. McHam U. State, 2005 OK CR 28, § 13, 126 P.3d 662, 668. The evidence showed Hall intended to buy $300 worth of crack cocaine, equivalent to approximately 12 grams, and subsequent to the observed drug transaction possessed 12.7 grams of crack cocaine. Leech U. State, 2003 OK CR 4, § 4, 66 P.3d 987, 989.

Decision

The Judgment of the District Court is AFFIRMED. The Sentence of thirty (30) years imprisonment is AFFIRMED. The Fine imposed by the District Court is MODIFIED to $10,000.

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.2004, § 2-415
2. 63 O.S.Supp.2004, § 2-401(B)(1)
3. 63 O.S.Supp.2004, § 2-415(D)(1)
4. 21 O.S.Supp.2002, § 51.1
5. 20 O.S.2001, § 3001.1
6. 21 O.S.2001, § 64(B)
7. McHam U. State, 2005 OK CR 28, I 13, 126 P.3d 662, 668
8. Leech U. State, 2003 OK CR 4, 7 4, 66 P.3d 987, 989
9. Fite U. State, 1993 OK CR 58, I 8, 873 P.2d 293, 295

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-415 (Supp. 2004) - Trafficking in Illegal Drugs
• Okla. Stat. tit. 63 § 2-401 (Supp. 2004) - Punishment for Trafficking
• Okla. Stat. tit. 21 § 51.1 (Supp. 2002) - Sentence Enhancement
• Okla. Stat. tit. 20 § 3001.1 (2001) - Improper Instruction and Relief
• Okla. Stat. tit. 21 § 64 (2001) - Fines for Felony Offenses

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:

• Wright v. State, 2001 OK CR 19, 1 16, 30 P.3d 1148, 1151
• Hammon v. State, 1995 OK CR 33, 1 83, 898 P.2d 1287, 1305
• Al-Mosawi v. State, 1996 OK CR 59, 1 27, 929 P.2d 270, 279
• Coates v. State, 2006 OK CR 24, 1 6, 137 P.3d 682, 684
• Fite v. State, 1993 OK CR 58, 1 8, 873 P.2d 293, 295
• McHam v. State, 2005 OK CR 28, 1 13, 126 P.3d 662, 668
• Leech v. State, 2003 OK CR 4, 7 4, 66 P.3d 987, 989