Allen Eugene Bratcher v The State of Oklahoma

F-2009-794

Filed: Apr. 22, 2011

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Allen Eugene Bratcher appealed his conviction for Lewd Molestation. His original conviction resulted in a sentence of seventy years imprisonment. The court modified his sentence to thirty years. Judge Lumpkin dissented, agreeing with the conviction but believed the sentence should remain unchanged. Judge Smith agreed with the conviction but suggested a different modification to a forty-five-year sentence.

Decision

The conviction is AFFIRMED. The sentence is MODIFIED to a term of imprisonment of thirty years. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2011), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Issues

• was his sentence excessive
• did prosecutorial misconduct deprive him of a fair trial and result in an excessive sentence
• did failure to instruct the jury sua sponte to determine whether his statement was voluntary prior to considering it during deliberation result in fundamental error
• did he receive effective assistance of counsel
• did cumulative error deprive him of a fair trial

Findings

• the court modified the sentence from seventy years to thirty years imprisonment
• the court found no prosecutorial misconduct that deprived Bratcher of a fair trial
• the court rejected the claim of fundamental error regarding the jury instructions on the voluntariness of Bratcher's statement
• the court found trial counsel's strategy acceptable and did not demonstrate ineffective assistance of counsel
• the court found no cumulative error that warranted further relief

F-2009-794

Apr. 22, 2011

Allen Eugene Bratcher

Appellant

v

The State of Oklahoma

Appellee

SUMMARY OPINION

A. JOHNSON, PRESIDING JUDGE: Appellant Allen Eugene Bratcher was tried by jury and convicted in the District Court of Garfield County, Case No. CF-2007-786, of Lewd Molestation, in violation of 21 O.S.Supp.2007, § 1123. The jury set punishment at seventy years imprisonment. The Honorable Ronald G. Franklin, who presided at trial, sentenced Bratcher accordingly. From this Judgment and Sentence Bratcher appeals, raising the following issues:

1. whether his sentence is excessive;
2. whether prosecutorial misconduct deprived him of a fair trial and resulted in an excessive sentence;
3. whether failure to instruct the jury sua sponte to determine whether his statement was voluntary prior to considering it during deliberation resulted in fundamental error;
4. whether he received effective assistance of counsel; and
5. whether cumulative error deprived him of a fair trial.

Bratcher asks that we reverse his conviction based on these alleged errors or, alternatively, modify his sentence. We find reversal is not required, but modify his sentence to a term of imprisonment of thirty years.

1. In light of the facts and circumstances of this case, most notably the prosecutor’s appeal to the jury to sympathize with the victim and that this is the only occurrence of molestation of which Bratcher has been accused, Bratcher’s sentence of seventy years shocks our conscience and must be modified. Gomez v. State, 2007 OK CR 33, 9 18, 168 P.3d 1139, 1146; Rea v. State, 2001 OK CR 28, I 5, n.3, 34 P.3d 148, 149 n.3.

2. The prosecutor’s comments during voir dire and his opening statement were not improper and Bratcher fails to show how they deprived him of either a fair trial or sentencing. The prosecutor’s statements during his second closing were, however, improper appeals for sympathy for the victim. We have repeatedly condemned the attempts of prosecutors to inflame the jury’s passions by asking the jury to sympathize with the victim. See e.g. Bell v. State, 2007 OK CR 43, I 7, 172 P.3d 622, 624 (the guilt stage of trial is no place for even subtle appeals for sympathy); Cruse U. State, 2003 OK CR 8, I 1

In Bratcher’s claim that his sentence is excessive he challenges the trial court’s failure to act on the testimony of the mitigating witnesses he presented at trial. While our decision to modify Bratcher’s sentence renders this claim moot, we note that the trial court erred by permitting Bratcher to present mitigating witnesses at the sentencing hearing because Bratcher allowed the jury to decide his sentence. 22 O.S.2001, § 973; see Malone v. State, 2002 OK CR 34, 1 7, 58 P.3d 208, 209-210 (opinion on rehearing) (holding that § 973 only permits the post-trial/pre-sentencing presentation of aggravating and mitigating evidence not presented at trial when a judge rather than a jury is responsible for determining the defendant’s sentence).

3. The voluntariness of Bratcher’s statement was determined by the trial court at a Jackson v. Denno hearing. After the trial court’s decision, Bratcher’s attorney adopted a strategy which embraced the tape and argued that it showed Bratcher’s belief that what occurred was an accident. Bratcher fails to demonstrate how the trial court’s failure to give Instruction No. 9-12 OUJI-CR(2d) sua sponte resulted in fundamental miscarriage of justice or deprived him of a statutory or constitutional right. 20 O.S.2001, § 3001.1 This claim is accordingly rejected.

4. Trial counsel’s decision on how aggressively to question a witness is a matter of trial strategy which we will not second guess. See Grant U. State, 2009 OK CR 11, I 53, 205 P.3d 1, 22 (recognizing that there are many ways to handle any given case, and that counsel must make many strategic decisions along the way). Bratcher also fails to show how he was prejudiced by the waiver of his preliminary hearing. While he alleges counsel was ineffective for waiving the hearing, he signed the waiver. The State, in consideration of Bratcher’s waiver, amended the Information and dropped the sentencing enhancement. In light of our disposition of Bratcher’s prosecutorial misconduct claim, his claim that trial counsel was ineffective for failing to object is moot.

5. We find that Bratcher’s cumulative error claim warrants no further relief.

DECISION
The conviction is AFFIRMED. The sentence is MODIFIED to a term of imprisonment of thirty years. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2011), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Footnotes:

1. 21 O.S.Supp.2007, § 1123.
2. Gomez v. State, 2007 OK CR 33, 9 18, 168 P.3d 1139, 1146; Rea v. State, 2001 OK CR 28, I 5, n.3, 34 P.3d 148, 149 n.3.
3. 22 O.S.2001, § 973; see Malone v. State, 2002 OK CR 34, 1 7, 58 P.3d 208, 209-210.
4. 20 O.S.2001, § 3001.1.
5. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).
6. Instruction No. 9-12 requires the jury to find that a defendant's statement was voluntarily given before considering it as evidence.
7. Simpson v. State, 876 P.2d 690 (Okl.Cr.1994).
8. Bartell v. State, 881 P.2d 92 (Okl.Cr.1994).

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1123 (2007) - Lewd Molestation
• Okla. Stat. tit. 22 § 973 (2001) - Sentencing Hearing
• Okla. Stat. tit. 20 § 3001.1 (2001) - Voluntariness of Statements

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:

• Gomez v. State, 2007 OK CR 33, I 18, 168 P.3d 1139, 1146
• Rea v. State, 2001 OK CR 28, I 5, n.3, 34 P.3d 148, 149 n.3
• Bell v. State, 2007 OK CR 43, I 7, 172 P.3d 622, 624
• Cruse v. State, 2003 OK CR 8, I 10, 67 P.3d 920, 923
• Malone v. State, 2002 OK CR 34, I 7, 58 P.3d 208, 209-210
• Grant v. State, 2009 OK CR 11, I 53, 205 P.3d 1, 22
• Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908
• Simpson v. State, 876 P.2d 690 (Okl.Cr.1994)
• Bartell v. State, 881 P.2d 92 (Okl.Cr.1994)