Travis Lee Danley v The State Of Oklahoma

F-2010-203

Filed: Feb. 9, 2012

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Travis Lee Danley appealed his conviction for First Degree Murder, Second Degree Arson, Larceny from a House, and Larceny of an Automobile. His conviction and sentence included Life Imprisonment Without the Possibility of Parole for the murders and various sentences for the other charges, totaling years of imprisonment and fines. The court modified his Larceny from a House conviction to Petit Larceny due to insufficient evidence regarding the value of the property taken. Judge Lumpkin dissented on the modification of the larceny conviction.

Decision

The Judgment and Sentence of the District Court on Counts I, II, III and V is AFFIRMED. Danley's conviction for Larceny from a House in Count IV is MODIFIED to Petit Larceny and his sentence of eight years imprisonment and $1,000.00 fine is MODIFIED to six months in the county jail. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2012), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• was there error for the district court to deny his motion for mistrial after the jury heard testimony that he was on probation and prohibited from traveling to Oklahoma?
• was the evidence sufficient to establish the offense of larceny from a house in Count IV?
• did prosecutorial misconduct deny him due process and the right to a fair trial?
• was he denied effective assistance of counsel?
• did cumulative error deny him his rights to due process and a fair trial?

Findings

• the court did not err in denying the motion for mistrial
• the evidence was not sufficient to establish the offense of larceny from a house
• prosecutorial misconduct did not deny him due process and the right to a fair trial
• he was not denied effective assistance of counsel
• cumulative error did not deny him his rights to due process and a fair trial

F-2010-203

Feb. 9, 2012

Travis Lee Danley

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

A. JOHNSON, PRESIDING JUDGE:

Appellant Travis Lee Danley was tried by jury in the District Court of Tulsa County, Case No. CF-2008-4515, and found guilty of First Degree Murder (Counts I and II), in violation of 21 O.S.Supp.2006, § 701.7, Second Degree Arson (Count III), in violation of 21 O.S.2001, § 1402, Larceny from a House (Count IV), in violation of 21 O.S.2001, § 1723, and Larceny of an Automobile (Count V) in violation of 21 O.S.Supp.2002, § 1720. The jury set punishment at Life Imprisonment Without the Possibility of Parole and a $10,000.00 fine on Counts I and II, twenty-five years imprisonment and a $20,000.00 fine on Count III, eight years imprisonment and a $1,000.00 fine on Count IV, and twenty years imprisonment on Count V. The Honorable Clancy Smith, who presided at trial, sentenced Danley accordingly and ordered his sentences to run consecutively.

Danley appeals, raising the following issues: (1) whether it was error for the district court to deny his motion for mistrial after the jury heard testimony that he was on probation and prohibited from traveling to Oklahoma; (2) whether the evidence was sufficient to establish the offense of larceny from a house in Count IV; (3) whether prosecutorial misconduct denied him due process and the right to a fair trial; (4) whether he was denied effective assistance of counsel; and (5) whether cumulative error denied him his rights to due process and a fair trial.

FACTUAL BACKGROUND

On August 31, 2008, Danley fatally shot Michael Reeder and David Lujan at Reeder’s home in Sperry, Oklahoma. Lujan and Danley had been friends for some time and Reeder was a family friend of Danley’s family. The three spent the weekend drinking and socializing together. The motive for the shooting was explained by Jay Chew, Danley’s uncle. Chew testified that Danley telephoned him around 11:00 p.m. on August 30, 2008, and said, If Mike calls me a little bitch again, there’s going to be problems, and a neighbor of Reeder’s testified there had been a disagreement earlier that day about Danley’s use of Reeder’s four wheeler. After the shooting, Danley attempted to conceal his crime by pouring gasoline on and around the bodies of his victims setting them ablaze. Danley then took some of Reeder’s clothes, several of his guns, and Reeder’s Chevrolet Z-71 pickup truck and drove to the home of his uncle, Rueford Kennedy, and his wife, Summer, in Joplin, Missouri. Summer Kennedy testified that Danley had come in the house and said, I’m f****d. Everyone is going to know that I was there, everybody is going to know I did this. Danley told the Kennedys he had fought with the victims and Reeder had called him names. Danley admitted killing Reeder, describing how he put a shotgun under Reeder’s chin and pulled the trigger as Reeder slept. Danley also told them he had shot David Lujan, mentioning he used gold brand shotgun shells in both killings. A gold brand shotgun shell was recovered at the crime scene. Danley also told the Kennedys he had set the house on fire and taken Reeder’s guns and pickup truck. According to Summer, Danley was upset and crying. She believed he was drunk because of his slurred speech and the odor of alcohol about him. Danley left the Kennedys after telling them he was going to kill himself.

Danley’s stepfather, Frank Chew, searched for Danley after Oklahoma authorities notified him that they were looking for Danley in connection with the murders of Reeder and Lujan. Chew also learned (presumably from the Kennedys) that Danley had threatened to kill himself. He found Danley in a van next to Reeder’s pickup truck in the alley behind Danley’s grandmother’s house. Chew said that Danley appeared lost and was initially unresponsive when told about the telephone call from the Oklahoma authorities. When Chew pressed him about the situation, Danley said, Let’s get this taken care of and asked Chew to drive him to Miami, Oklahoma. Chew testified that, on the way to Miami, he heard Danley say that he had shot Lujan, but said it seemed more like a question than an admission. Chew heard Danley say later that it was like watching something happening on a video game. Chew admitted that he wrote in his statement to police that Danley said he had snapped after arguing with the victims and shot them. Patricia Crouch testified that Danley’s biological father, George Richard Danley, had come to her home in late August of 2008 and asked to store some items in her shed. A few days later, police officers found Reeder’s guns in that shed and some of his clothes in a spare room inside Crouch’s home.

Danley’s defense at trial was voluntary intoxication. He testified about the alcohol and drugs he consumed throughout the day and evening before the murders. He recalled many events from that day, but said he had no recollection of the shootings because he blacked out that night from intoxication. He recalled nothing about shooting the victims, setting fire to the house or taking Reeder’s guns. His first memory after his blackout was waking up in Joplin when his stepdad roused him. Although not convinced that he had shot the victims during the gap in his memory, he was prepared to accept that the evidence tended to prove that he was responsible.

DISCUSSION

1. Motion for Mistrial

Danley complains that the district court erred in denying his motion for mistrial. He argues that Jay Chew’s testimony about the advice he gave Danley over the phone – namely that he should not respond to Reeder’s name calling with actions that would get him into trouble because he was on probation – constituted an evidentiary harpoon and impermissible other crimes evidence. Danley objected to the testimony and requested a mistrial. The district court denied Danley’s request for mistrial and admonished the jury to disregard Chew’s testimony. Danley contends that because the district court’s admonition was insufficient to cure the prejudice he suffered from the admission of this testimony, his motion for mistrial should have been granted. We review the district court’s ruling on a motion for mistrial for an abuse of discretion.

A mistrial is an appropriate remedy when an event at trial results in a miscarriage of justice or constitutes an irreparable and substantial violation of an accused’s constitutional or statutory right. This Court need not labor over the various elements of what constitutes a true evidentiary harpoon in the context of this case or whether the admission of this testimony violated applicable law. Danley cannot show that the district court’s decision denying his motion for mistrial was clearly outside the law or facts in this case and resulted in prejudice. Chew’s single remark was the only reference to probation in the record. The prosecutor told the court during the bench conference concerning Chew’s testimony that the remark caught him by total surprise, and that he had examined Danley’s record and found no evidence that he was on probation. The court admonished Danley’s jury as follows: Ladies and gentlemen, the State of Oklahoma is not aware of any probation that the defendant was on. There’s no allegation that he has any prior charges or any prior convictions of any kind. The defendant doesn’t know of any probation or what the witness is talking about; if there was some traffic ticket or something that may have caused him to say that. I’ll ask you to disregard it. It has no bearing on what we’re doing here today.

Danley claims that the admonition was insufficient to purge the taint of such prejudicial evidence. We disagree. We have found in most cases that an admonishment cures error resulting from the admission of improper testimony at trial. Specifically, this Court has repeatedly held that an admonishment cures the error from improper testimony or an improper comment at trial, unless the improper testimony or comment was such that it appears to have ‘determined’ the result of the defendant’s trial. We do not hesitate to conclude that the district court’s admonishment cured any error from the admission of Chew’s testimony in this case. Danley’s jury convicted him based on strong evidence that he intentionally shot the two victims rather than the solitary and isolated reference to probation that it was specifically told to disregard because the parties believed the testimony was untrue. We find on this record that the district court did not abuse its discretion in denying Danley’s motion for mistrial. This claim is rejected.

2. Sufficiency of the Evidence

Danley argues, and the State agrees, that his conviction for larceny from a house is not supported by sufficient evidence. The Information filed in this case alleged that Danley committed the crime of Larceny from a House by unlawfully, feloniously, and willfully entering into a certain house located at 2904 E. 106th St N in the City of Sperry, Tulsa County, Oklahoma, occupied by and in possession of Michael Shawn Reeder and did then and there take, steal and carry away multiple clothing items and guns with the unlawful, larcenous and felonious intent then and there on the part of said defendant to deprive the owner thereof permanently and to convert the same to his own use and benefit. Danley’s jury was instructed that in order to convict him of Larceny from a House, it had to find the following elements beyond a reasonable doubt: 1) unlawful; 2) entry; 3) taking; 4) carrying away; 5) personal property; 6) of another; 7) from a house; 8) by stealth; and 9) with the intent to deprive permanently.

The evidence at trial was uncontroverted that Danley was present at Reeder’s house as a guest. There was no evidence of unlawful entry. His conviction for Larceny from a House based on unlawful entry cannot stand. Danley admits the evidence proved he took items from Reeder’s home. He maintains, however, that his conviction may be modified only to a conviction for petit larceny because the State presented no evidence concerning the value of the property taken. The State argues that Danley’s conviction should be modified to a conviction for grand larceny in a dwelling house. The State maintains that the jury could infer the value of the guns taken was at least $500.00 based upon common sense and that a felony conviction is supported by the evidence. Without evidence of the value of the property taken, we agree with Danley that his conviction must be modified to a conviction for petit larceny and his sentence modified to six months in the county jail.

3. Prosecutorial Misconduct

Danley contends that prosecutorial misconduct denied him a fair trial. This Court will grant relief only where the prosecutor’s misconduct is so flagrant and so infected the defendant’s trial that it was rendered fundamentally unfair. Parties have great latitude to make arguments and inferences from the evidence.

First, Danley argues that it was improper and unprofessional for the prosecutor to ask him on cross-examination, [w]hat ought to happen to a guy who shoots two people in bed? Defense counsel objected and the district court judge answered back that the question invaded the province of the jury. The prosecutor moved on to another line of inquiry that was not met with objection. The judge, in effect, sustained Danley’s objection and her response informed the jury that the question was improper because it invaded the province of the jury. Sustaining defense counsel’s objection cured any error.

Danley’s second and third complaints allege that the prosecutor intentionally confused the jury about the defense of voluntary intoxication by equating it to an insanity defense and that the prosecutor made remarks that improperly shifted the burden of proof. Only one of these challenged remarks drew an objection which the district court overruled. Review of the unchallenged remarks is for plain error only. The record shows that the prosecutor did not mislead the jury about Danley’s intoxication defense or the State’s burden of proof. The prosecutor emphasized the evidence that supported the State’s theory of the case and questioned the strength and credibility of the evidence supporting Danley’s intoxication defense. Furthermore, the jury was properly instructed on both the defense of voluntary intoxication and the burden of proof and we presume the jury followed its instructions. On this record, Danley has not shown that the prosecutor’s tactics or argument were fundamentally unfair. This claim is denied.

4. Ineffective Assistance of Counsel

Danley argues that he was denied effective assistance of counsel. Specifically, he claims counsel was ineffective for failing to request an instruction informing the jury to give separate consideration to each offense and for failing to object to victim impact statements at formal sentencing. This Court reviews claims of ineffective assistance of counsel de novo, to see whether counsel’s constitutionally deficient performance, if any, prejudiced the defense so as to deprive the defendant of a fair trial with reliable results.

Under this test, Danley must not only overcome the presumption of competence but show that there is a reasonable probability that, but for counsel’s unprofessional error, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. We need not determine whether counsel’s performance was deficient if the claim can be disposed of on the ground of lack of prejudice. Danley’s complaint that trial counsel was ineffective for failing to request an instruction that his jury consider each charged crime separately is unpersuasive.

While the Uniform Jury Instructions-Criminal may now contain an instruction on this issue, no such instruction existed, nor was one required, at the time of Danley’s trial. Nothing in the record before us indicates that Danley’s jury was unable to compartmentalize the evidence with regard to each count in this case. The jury was repeatedly instructed that each element of each crime charged had to be proven beyond a reasonable doubt. On this record, we find Danley has failed to meet his burden to prove ineffective assistance of counsel.

Danley also argues that trial counsel was ineffective for failing to object to victim impact statements at formal sentencing. We disagree. The statements from the victims’ daughters presented at formal sentencing were properly admitted under applicable law. Counsel cannot be faulted for not objecting to admissible evidence. This claim is denied.

5. Cumulative Error

Danley claims that even if no individual error in his case merits reversal, the cumulative effect of the errors committed requires that his case be reversed and remanded for a new trial. The cumulative error doctrine applies when several errors occurred at the trial court level, but none alone warrants reversal. Danley’s conviction and sentence for Larceny from a House (Count IV) must be modified because of insufficient evidence. Other errors committed at trial, if any, even when considered together, did not deny Danley a fair trial. This claim is denied.

DECISION

The Judgment and Sentence of the District Court on Counts I, II, III and V is AFFIRMED. Danley’s conviction for Larceny from a House in Count IV is MODIFIED to Petit Larceny and his sentence of eight years imprisonment and $1,000.00 fine is MODIFIED to six months in the county jail. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2012), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

1. The Information and Judgment and Sentence mistakenly cite 21 O.S.2001, § 1707 as the statutory reference for Count IV-Larceny from a House, when Danley was, in fact, charged with and convicted of a violation of 21 O.S.2001, § 1723.
2. Danley's jury was instructed that in order to convict him of Larceny from a House, it had to find the following elements beyond a reasonable doubt: 1) unlawful; 2) entry; 3) taking; 4) carrying away; 5) personal property; 6) of another; 7) from a house; 8) by stealth; and 9) with the intent to deprive permanently.
3. The Information cited 21 O.S.2001, § 1707 which provides: When it appears upon a trial for grand larceny that the larceny alleged was committed in any dwelling house or vessel, the offender shall be guilty of a felony punishable by imprisonment in the State Penitentiary not exceeding eight (8) years.
4. The uniform instruction lists the elements of grand larceny in a dwelling house under § 1707 as: 1) taking; 2) carrying away; 3) personal property; 4) of another; 5) (valued at more than $50/500)/(from the person); 6) committed in a dwelling/vessel; 7) by fraud/stealth; and 8) with the intent to deprive permanently.
5. The uniform instruction lists the elements of a larceny committed under § 1723 as: 1) unlawful; 2) entry; 3) taking; 4) carrying away; 5) personal property; 6) of another; 7) from a house/(railroad car)/tent/booth/(temporary building); 8) by fraud/stealth; and 9) with the intent to deprive permanently.
6. The statements from the victims' daughters presented at formal sentencing were properly admitted under 22 O.S.Supp.2008, § 984.1 (now renumbered as 21 O.S.2011, § 142A-8).
7. After Danley's trial, the Oklahoma Uniform Jury Instruction Committee approved OUJI-CR(2d) 9-6A and noted that it should be given if two or more charges against the same defendant are tried together.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.7 (2006) - First Degree Murder
• Okla. Stat. tit. 21 § 1402 (2001) - Second Degree Arson
• Okla. Stat. tit. 21 § 1723 (2001) - Larceny from a House
• Okla. Stat. tit. 21 § 1720 (2002) - Larceny of an Automobile
• Okla. Stat. tit. 21 § 1707 (2001) - Grand Larceny in a Dwelling House
• Okla. Stat. tit. 22 § 984.1 (2008) - Victim Impact Statements
• Okla. Stat. tit. 21 § 142A-8 (2011) - Victim Impact Statements (renumbered)

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:

• Jackson v. State, 2006 OK CR 45, I 11, 146 P.3d 1149, 1156
• Knighton v. State, 1996 OK CR 2, I 65, 912 P.2d 878, 894
• Bruner v. State, 1980 OK CR 52, 16, 612 P.2d 1375, 1378-79
• Taylor v. State, 2011 OK CR 8, I 43, 248 P.3d 362, 376
• Grissom v. State, 2011 OK CR 3, II 25, 253 P.3d 969, 979
• Logsdon v. State, 2010 OK CR 7, I 5, 231 P.3d 1156, 1161
• Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-204
• Jones v. State, 2011 OK CR 13, IT 3, 253 P.3d 997, 998
• Mack v. State, 2008 OK CR 23, I 9, 188 P.3d 1284, 1289
• Harmon v. State, 2011 OK CR 6, I 70, 248 P.3d 918, 941
• Head v. State, 2006 OK CR 44, I 23, 146 P.3d 1141, 1148
• DeRosa v. State, 2004 OK CR 19, 9 100, 89 P.3d 1124, 1157
• Jones v. State, 2009 OK CR 1, I 104, 201 P.3d 869, 894
• Smith v. State, 2007 OK CR 16, I 38, 157 P.3d 1155, 1168-69