Bobie Troy Frye v The State of Oklahoma

F-2009-998

Filed: May 5, 2011

Not for publication

Prevailing Party: Bobie Troy Frye

Summary

Bobie Troy Frye appealed his conviction for Sexual Abuse of a Child, Procurement of Child for Pornography, and Possession of Child Pornography. His conviction and sentence involve life imprisonment and several additional years for different counts, all running consecutively. Judge Twyla Mason Gray also imposed a $1,000 fine, which the court later found was not allowed by law. Frye raised several arguments, including improper limits on how jurors could be questioned about their ability to consider the full punishment range for his crimes. The court found that while the trial court improperly limited the questioning, the impact was not harmful enough to affect the fairness of the trial. Therefore, Frye's convictions and sentences were affirmed, but the $1,000 fine was removed. Judge Lumpkin dissented, believing the trial court acted within its rights regarding jury questioning.

Decision

Frye's convictions and sentences of imprisonment on Counts I, II, III, V, VI, VII, VIII, XI, and XIV are all AFFIRMED. The case is REMANDED, however, in order for the district court to vacate the $1,000 fine imposed by the court and revise the Judgment and Sentence accordingly. 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 the delivery and filing of this decision.

Issues

• Was there an error in precluding defense counsel from questioning prospective jurors regarding their ability to follow the law regarding the appropriate range of punishment?
• Did the trial court err in failing to give the "no-adverse-inference" instruction requested by the defense?
• Was the imposition of a monetary fine by the trial court inconsistent with the jury's verdicts and unauthorized by law?

Findings

• the trial court erred by precluding defense counsel from questioning prospective jurors about their ability to consider the entire sentencing range, but the error was harmless beyond a reasonable doubt
• the trial court abused its discretion by failing to give the "no-adverse-inference" instruction, but the failure was harmless beyond a reasonable doubt
• the trial court's imposition of a monetary fine was unauthorized by law and must be vacated

F-2009-998

May 5, 2011

Bobie Troy Frye

Appellant

v

The State of Oklahoma

Appellee

SUMMARY OPINION

MIGHAEL S. RICHIE SMITH, JUDGE:

Bobie Troy Frye, Appellant, was tried by jury and convicted of Sexual Abuse of a Child, under 10 O.S.Supp.2002, § 7115(E) (Counts I, II, III, V, & XIV), Procurement of Child for Pornography, under 21 O.S.2001, § 1021.2 (Counts VI & VII), and Possession of Child Pornography, under 21 O.S.2001, § 1024.2 (Counts VIII and XI), in the District Court of Oklahoma County, Case No. CF-2008-5527. In accord with the jury verdict, the Honorable Twyla Mason Gray, District Judge, sentenced Frye to imprisonment for Life on Counts I and II, to imprisonment for 30 years plus 1 day on Counts III and V, to imprisonment for 20 years on Counts VI, VII, and XIV, and to imprisonment for 5 years on Counts VIII and XI, all run consecutively. Frye was also ordered to pay a fine of $1000. Frye is before this Court on direct appeal. Frye raises the following propositions of error:

I. THE TRIAL COURT ERRED IN PRECLUDING DEFENSE COUNSEL FROM QUESTIONING PROSPECTIVE JURORS CONCERNING THEIR ABILITY TO FOLLOW THE LAW REGARDING THE APPROPRIATE RANGE OF PUNISHMENT.

The remaining counts charged against Frye were dismissed prior to trial. This Court notes that Counts I, II, III, V, VI, VII, and XIV are subject to the 85% Rule for the serving of Frye’s sentence, under 21 O.S. Supp.2002, § 13.1. The $1000 fine, which was not imposed by the jury, is challenged in Proposition III. Frye was also ordered to pay costs, fees, and a Victim’s Compensation Assessment of $405.

II. THE TRIAL COURT ERRED IN FAILING TO GIVE THE NO-ADVERSE-INFERENCE INSTRUCTION WHICH WAS REQUESTED BY THE DEFENSE.

III. THE TRIAL COURT’S IMPOSITION OF A MONETARY FINE WAS INCONSISTENT WITH THE JURY’S VERDICTS AND IS NOT AUTHORIZED BY LAW.

In Proposition I, Frye challenges both the 30-minute time limit that the trial court established for each party’s individual voir dire and the court’s refusal to let defense counsel question potential jurors about their ability to consider the entire sentencing range at issue for the crimes charged in the case. Frye properly preserved these claims at trial. Hence this Court will review the trial court’s limitations on both the extent of voir dire and the topics that could be addressed for an abuse of discretion.

In Parker v. State, 2009 OK CR 23, 216 P.3d 841, this Court noted that the purpose of voir dire is two-fold: to enable the seating of an impartial jury, by revealing bias and grounds to challenge particular prospective jurors for cause, and to afford the parties with adequate information to permit the intelligent exercise of peremptory challenges. We also recognized that imposing specific time limits, and in particular, short time limits, on voir dire questioning in a criminal trial raises the very real possibility of prejudicing a defendant’s right to a fair jury selection process, a fair trial, and a fair sentencing. How much time is enough for an adequate voir dire will vary from case to case and is affected by both the nature of the crime(s) charged in the case and what actually occurs during voir dire, which cannot be known before trial.

Hence the trial court must ensure that any time limit placed on voir dire is reasonable at the outset, in terms of the nature and complexity of the case and the crimes and facts at issue. The key question is whether the total voir dire allowed, including the court’s own voir dire, is broad enough, both in length and content, to afford the defendant a jury that is free of outside influence, bias, and personal interest and to provide defense counsel a reasonable opportunity to determine that this is so.

In the current case, the trial court established both a time limit (30 minutes) and a content limit (no discussion of sentencing ranges). According to the trial judge’s remarks, defense counsel was allowed to go 10 minutes over the 30-minute time limit. Yet the court did not allow counsel to ask any further questions after 40 minutes or to ask any questions at all about the ability of prospective jurors to consider the entire sentencing ranges potentially applicable to Frye’s case.

This case involved nine separate counts, including five counts alleging different kinds of sexual abuse of the child victim, two counts of involving the child victim in the production of child pornography, and two counts of possession of other child pornography. In such a case, a 30-minute time limit for individual party voir dire is not reasonably calculated to allow the parties adequate examination of prospective jurors to reveal actual bias or enough information to allow counsel to intelligently exercise their peremptory challenges. Consequently, this Court finds that in the circumstances of this case, the 30-minute time limit established by the trial court constitutes an abuse of discretion.

Yet the Court cannot ignore the choices made by defense counsel in this case concerning the use of the time provided for voir dire. Rather than following up on possible areas of concern raised by the trial court, defense counsel essentially stuck with her script of broad, open-ended questions. Also, potential jurors struggled to understand and answer some of defense counsel’s questions. Hence, counsel’s failure to glean as much information as she might have from the panel was the result of her own choices regarding voir dire, not simply the court’s time restriction.

Frye also challenges the trial court’s refusal to allow prospective jurors to be informed of and questioned about the sentencing ranges at issue in the case. Even though defense counsel reminded the trial court of the relevant instructions, the trial court did not provide information about the sentence ranges for the crimes charged. This Court finds that in single-stage trials, non-capital defendants must be allowed during voir dire to investigate possible sentencing bias and unwillingness to follow the law among prospective jurors.

Consequently, this Court finds that the trial court abused its discretion by its prohibition of any questioning about the ability of potential jurors to consider the full sentencing ranges at issue in the case. Nevertheless, under the specific circumstances of this case, this Court finds that this limitation, like the time limitation, was harmless beyond a reasonable doubt.

In Proposition II, Frye challenges the trial court’s failure to give a no-adverse-inference instruction at his trial. The Supreme Court has held that a trial judge must give a ‘no-adverse-inference’ jury instruction when requested by a defendant. In this case, Frye’s counsel did not object to the absence of this instruction. As a result, we review this claim only for plain error. Under the circumstances, this Court finds that the failure to give the required instruction was harmless beyond a reasonable doubt.

In Proposition III, Frye challenges the trial court’s imposition of a $1,000 fine in his case. The jury declined to assess any fine on any count; therefore, the $1000 fine imposed by the trial court was illegal and must be vacated.

DECISION

Frye’s convictions and sentences of imprisonment on Counts I, II, III, V, VI, VII, VIII, XI, and XIV are all AFFIRMED. The case is REMANDED, however, in order for the District Court to vacate the $1,000 fine imposed by the court and revise the Judgment and Sentence accordingly.

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 the delivery and filing of this decision.

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Footnotes:

1. 2 This Court notes that Counts I, II, III, V, VI, VII, and XIV are subject to the "85% Rule" for the serving of Frye's sentence, under 21 O.S. Supp.2002, § 13.1.
2. 3 The $1000 fine, which was not imposed by the jury, is challenged in Proposition III.
3. 4 This Court notes that because Frye did not have any prior convictions, there was no separate "sentencing stage" in his trial.
4. 5 See, e.g., Littlejohn v. State, 2004 OK CR 6, 49, 85 P.3d 287, 301 ("We have consistently found that the manner and extent of voir dire rests within the discretion of the trial court.").
5. 6 Parker, 2009 OK CR 23, 1 18, 216 P.3d at 847 (citations omitted).
6. 7 Id. at 1 20, 216 P.3d at 847.
7. 8 See, e.g., Romano v. State, 1993 OK CR 8, 1 10, 847 P.2d 368, 375 ("The jury trial system is founded on the impartiality of a body of peers selected by counsel. Voir dire is the procedure designed to give a criminal defendant the opportunity to explore the opinions and personal knowledge of potential jurors who may ultimately decide his fate."); Warner v. State, 2006 OK CR 40, 16, 144 P.3d 838, 859 ("It is the duty of defense counsel to investigate on voir dire those matters [that] affect a venireman's qualifications to sit as a juror.").
8. 9 Patton v. State, 1998 OK CR 66, T 9, 973 P.2d 270, 280 ("There is no abuse of [] discretion so long as the voir dire questioning is broad enough to afford the Appellant a jury free of outside influence, bias or personal interest."); Warner, 2006 OK CR 40, IT 15, 144 P.3d at 859 ("Depriving defense counsel of information that could lead to the intelligent exercise of a peremptory challenge is a denial of an appellant's right to a fair and impartial jury.").
9. 12 Frye likewise does not list any other specific areas within his appeal that the time limitation prevented his counsel from addressing at trial.
10. 13 Oklahoma's OUJI-CR(2d) 1-5 lists 14 questions that the trial court is supposed to ask prospective jurors.
11. 14 See, e.g., Salazar v. State, 1996 OK CR 25, 11 20-29, 919 P.2d 1120, 1127-29 (prospective juror who will not consider option of life sentence with parole not eligible to serve on capital jury); Mitchell v. State, 2006 OK CR 20, I 39, 136 P.3d 671, 688-99 ("This Court has repeatedly recognized that the standard for capital juror acceptability in Oklahoma is whether, in a case where the law and facts make a defendant eligible for the death penalty, each juror will be willing to consider each of the three authorized punishments: the death penalty, life imprisonment without the possibility of parole, and life imprisonment (with the possibility of parole."); Sanchez v. State, 2009 OK CR 31, I 44, 223 P.3d 980, 997 ("Due process of law requires that a prospective juror be willing to consider all the penalties provided by law ").
12. 15 See, e.g., Sanchez, 2009 OK CR 31, 44, 223 P.3d at 997 ("The District Court may properly restrict questions that are repetitive, irrelevant or regard legal issues upon which the trial court will instruct the jury."); Patton v. State, 1998 OK CR 66, I 9, 973 P.2d 270, 280 (same).
13. 18 See OUJI-CR(2d)(Supp. 2000) 9-44 ("The defendant is not compelled to testify, and the [f]act that a defendant does not testify cannot be used as an inference of guilt and should not prejudice him/her in any way.").
14. 19 Carter, 450 U.S. at 300, 305, 101 S.Ct. at 1119, 1121-22.
15. 20 Phillips, 1999 OK CR 38, 989 P.2d at 1036 (citing Carter).
16. 21 Id. at II 67-69, 989 P.2d at 1036-37.
17. 22 In fact, when the trial court asked counsel, after noting counsel's two objections, "Have we covered everything that you have requested that has not been included?" counsel said, "Yes."
18. 24 On the other hand, this Court cannot ignore the fact that during voir dire questioning in this case, defense counsel informed prospective jurors that a defendant had a right not to testify and that "[u]nder the law no one can be forced to testify," and that jurors seemed very familiar and comfortable with this right and its significance, including the concept that they were not allowed to hold a defendant's failure to testify against him.
19. 26 See Howell v. State, 1981 OK CR 82, I 9, 632 P.2d 1223, 1225 ("[A] judge may not impose a sentence different from that set by the jury."); Luker v. State, 1976 OK CR 135, I 12, 552 P.2d 715, 719 ("[T]he trial court exceeded its authority in modifying the sentence assessed by the jury.").

Oklahoma Statutes citations:

• Okla. Stat. tit. 10 § 7115 (2002) - Sexual Abuse of a Child
• Okla. Stat. tit. 21 § 1021.2 (2001) - Procurement of Child for Pornography
• Okla. Stat. tit. 21 § 1024.2 (2001) - Possession of Child Pornography
• Okla. Stat. tit. 21 § 13.1 (2002) - Sentences Subject to the 85% Rule
• Okla. Stat. tit. 22 § 3.15 (2011) - Mandate Issuance
• Okla. Stat. tit. 22 § 741 (2011) - No-Adverse-Inference Instruction
• Okla. Stat. tit. 21 § 10 (2011) - Imposition of fine unauthorized by law

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:

• Parker v. State, 2009 OK CR 23, 216 P.3d 841
• Littlejohn v. State, 2004 OK CR 6, 49, 85 P.3d 287
• Romano v. State, 1993 OK CR 8, 847 P.2d 368
• Warner v. State, 2006 OK CR 40, 144 P.3d 838
• Patton v. State, 1998 OK CR 66, 973 P.2d 270
• Carter v. Kentucky, 450 U.S. 288, 101 S.Ct. 1112, 67 L.Ed.2d 241
• Phillips v. State, 1999 OK CR 38, 989 P.2d 1017
• Salazar v. State, 1996 OK CR 25, 919 P.2d 1120
• Mitchell v. State, 2006 OK CR 20, 136 P.3d 671
• Sanchez v. State, 2009 OK CR 31, 223 P.3d 980
• Howell v. State, 1981 OK CR 82, 632 P.2d 1223
• Luker v. State, 1976 OK CR 135, 552 P.2d 715
• Kephart v. State, 1951 OK CR 33, 93 Okl. Cr. 451, 229 P.2d 224
• Marshall v. State, 2010 OK CR 8, 232 P.3d 467