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F-2010-466

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William Michael DeMoss v State Of Oklahoma

F-2010-466

Filed: Aug. 30, 2011

Not for publication

Prevailing Party: State Of Oklahoma

Summary

William Michael DeMoss appealed his conviction for three counts of shooting with intent to kill and one count of assault with a dangerous weapon. The conviction and sentence were 30 years in prison and a $1,000 fine for counts one and three, and 15 years in prison and a $1,000 fine for count two, with some sentences running together and others separately. Justice Lewis dissented.

Decision

The Judgments and Sentences are AFFIRMED, except that the FINES levied in each count are HEREBY VACATED. The Application for an Evidentiary Hearing on Sixth Amendment Grounds and the Motion for New Trial on Newly Discovered Evidence are DENIED. 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 sufficient evidence to convict Appellant of Count II, Assault with a Dangerous Weapon?
  • Was there sufficient evidence to convict Appellant of Counts I and III, Shooting with Intent to Kill?
  • Did instructional error leave Appellant's jury without proper guidance on lesser offenses, denying Appellant a fair trial?
  • Was Appellant denied effective assistance of trial counsel in violation of the Sixth Amendment and the Oklahoma Constitution?
  • Were Appellant's Fourteenth Amendment due process rights violated when the jury was erroneously instructed regarding the range of punishment for fines?
  • Did irrelevant, improper, and misleading evidence result in inflated and excessive sentences for Appellant?
  • Did prosecutorial misconduct deprive Appellant of a fair trial and lead to excessive sentences?
  • Were Appellant's sentences excessive?
  • Did the cumulative effect of all the errors deprive Appellant of a fair trial?

Findings

  • the evidence was sufficient to convict Appellant of Count II, Assault with a Dangerous Weapon.
  • the evidence was sufficient to convict Appellant of Counts I and III, Shooting with Intent to Kill.
  • the trial court did not abuse its discretion in refusing requested instructions on lesser included offenses.
  • Appellant was not denied effective assistance of trial counsel.
  • the fines in each count are vacated.
  • the evidence regarding Appellant's prior conviction was not prejudicial.
  • Appellant was not denied a fair trial by prosecutorial misconduct.
  • Appellant's sentences are not excessive.
  • Appellant was not denied a fair trial by the accumulation of error.

F-2010-466

Aug. 30, 2011

William Michael DeMoss

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, JUDGE:

Appellant William Michael DeMoss was tried by jury for three Counts of Shooting with Intent to Kill, After Former Conviction of a Felony (Counts I, II, and III) (21 O.S.Supp.2007, § 652(A)), in the District Court of Delaware County, Case No. CF-2009-02. Appellant was found guilty as charged in Counts I and III, and of the lesser included offense of Assault with a Dangerous Weapon by Use of a Firearm in Count II. The jury recommended as punishment imprisonment for thirty (30) years and a $1,000. fine in each of Counts I and III and fifteen (15) years imprisonment and a $1,000. fine in Count II. The trial court sentenced accordingly, ordering the sentences in Counts I and II to run concurrently to each other and consecutively to the sentence in Count III. It is from this judgment and sentence that Appellant appeals.

Appellant raises the following propositions of error in support of his appeal:

1. Shooting with Intent to Kill is an 85% crime pursuant to 21 O.S.Supp.2002, § 13.1.

I. The evidence was insufficient to convict Appellant of Count II, Assault with a Dangerous Weapon.

II. The evidence was insufficient to convict Appellant of Counts I and III, Shooting with Intent to Kill.

III. Instructional error left Appellant’s jury without proper guidance on lesser offenses which denied Appellant a fair trial.

IV. Appellant was denied effective assistance of trial counsel in violation of the Sixth Amendment to the United States Constitution and Article II, Sections 6, 7, and 20 of the Oklahoma Constitution.

V. Appellant’s Fourteenth Amendment due process rights pursuant to the United States Constitution were violated when the jury was erroneously instructed as to the range of punishment for fines in Counts I-III.

VI. Irrelevant, improper and misleading evidence resulted in inflated and excessive sentences.

VII. Prosecutorial misconduct deprived Appellant of a fair trial and caused the jury to render excessive sentences.

VIII. Appellant’s sentences are excessive.

IX. The cumulative effect of all the errors addressed above deprived Appellant of a fair trial.

After thorough consideration of these propositions and the entire record before us on appeal including the original record, transcripts, and briefs of the parties, we have determined that vacating the fines imposed in each count is the only relief warranted under the law and the evidence.

In Proposition I, when viewed in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime of Assault with a Dangerous Weapon beyond a reasonable doubt. Rutan v. State, 2009 OK CR 3, ¶ 49, 202 P.3d 839, 849; Easlick v. State, 2004 OK CR 21, ¶ 15, 90 P.3d 556, 559. Contrary to Appellant’s argument, imminent fear is not an element of the crime. Here, the evidence was sufficient to prove Appellant committed a “willful and unlawful attempt or offer with force or violence to do a corporeal hurt” to M.C. See 21 O.S.2001, § 641.

In Proposition II, we find the evidence sufficient to support the convictions in Counts I and III for Shooting with Intent to Kill. See Rutan, 2009 OK CR 3, ¶ 49, 202 P.3d at 849. While there was conflict in the testimony, there was competent evidence to support the jury’s findings. Appellant’s detailed recall of his actions at the time of the shootings indicates he was not “so utterly intoxicated” that his mental powers were totally overcome, rendering it impossible for him to form the specific intent to kill. Frederick v. State, 2001 OK CR 34, ¶ 130-131, 37 P.3d 908, 942; Kreijanovsky v. State, 1985 OK CR 120, ¶ 10, 706 P.2d 541, 544. See also 21 O.S.2001, § 153. His detailed recall also belies his claims that he was hard of hearing and vision impaired. A previous diagnosis of mental illness is no defense as Appellant was found by a jury to be competent to stand trial. Further, all reasonable inferences from the shooting of Deputy Pike support the jury’s disregard of Appellant’s claim of accident. See Vassaur v. State, 1973 OK CR 400, ¶ 73, 514 P.2d 673, 685.

In Proposition III, we find the trial court did not abuse its discretion in refusing requested instructions in Counts I and II on the lesser included offense of Reckless Conduct with a Firearm. Eizember v. State, 2007 OK CR 29, ¶ 111, 164 P.3d 208, 236. To determine whether instructions on a lesser included offense should be given, we utilize a two step analysis. We must first determine whether the claimed lesser offense is a legally recognized lesser included offense of the charged offense. Shrum v. State, 1999 OK CR 41, ¶ 7, 991 P.2d 1032, 1035. This Court has traditionally looked to the statutory elements of the charged crime and any lesser degree of crime to determine the existence of any lesser included offenses. Id. This determination is not case-specific and can only be made by looking at the statutory elements. Id., 1999 OK CR 41, ¶ 5, 991 P.2d at 1035 (Lumpkin, V.P.J. concurring in results). A lesser offense is a part of the greater offense when the establishment of the essential elements of the greater offense necessarily establishes all the elements required to prove the lesser included offense. 22 O.S. 2001, § 916; State v. Uriarite, 1991 OK CR 80, ¶ 8, 815 P.2d 193, 195.

In the second step we determine the sufficiency of the evidence to support the necessarily included offense. Phillips v. State, 1999 OK CR 38, ¶ 58-61, 989 P.2d 1017, 1034-35. In order to warrant a jury instruction on a lesser included offense, prima facie evidence of the lesser included offense must be presented at trial. Bland v. State, 2000 OK CR 11, ¶ 56, 4 P.3d 702, 719-20. Prima facie evidence of a lesser included offense is that evidence which would allow a jury rationally to find the accused guilty of the lesser offense and acquit him of the greater. Eizember, 2007 OK CR 29, ¶ 111, 164 P.3d at 236 citing Hogan v. Gibson, 197 F.3d 1297, 1305 (10th Cir. 1999). Reckless Conduct with a Firearm is a legally recognized lesser included offense of Shooting with Intent to Kill. Bear v. State, 1988 OK CR 181, ¶ 26, 762 P.2d 950, 957. However, Appellant’s firing directly at the boys, despite their shouts to stop shooting, does not support giving the instruction in this case.

In Proposition IV, Appellant contends he was denied the effective assistance of counsel by counsel’s failure to: 1) present an independent psychological expert on Appellant’s behalf at the competency trial; 2) obtain an audiology expert at trial; and 3) file a Motion for New Trial. This claim of error is further developed in the contemporaneously filed Application for Evidentiary Hearing on Sixth Amendment Grounds and Motion for New Trial on Newly Discovered Evidence. An analysis of an ineffective assistance of counsel claim begins with the presumption that trial counsel was competent to provide the guiding hand that the accused needed, and therefore the burden is on the accused to demonstrate both a deficient performance and resulting prejudice. Eizember, 2007 OK CR 29, ¶ 151-152, 164 P.3d at 244, citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Strickland sets forth the two-part test which must be applied to determine whether a defendant has been denied effective assistance of counsel. Id. First, the defendant must show that counsel’s performance was deficient, and second, he must show the deficient performance prejudiced the defense. Id. Unless the defendant makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable. Id.

The burden rests with Appellant to show that there is a reasonable probability that, but for any unprofessional errors by counsel, the result of the proceeding would have been different. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. A review of the record shows Appellant was evaluated by two psychologists and found competent to stand trial. Appellant has failed to show that but for counsel’s failure to obtain the services of a third psychologist, the jury would have found him not competent to stand trial. Therefore, Appellant has failed to show he was prejudiced by counsel’s conduct. An evidentiary hearing is not warranted on this issue as Appellant has failed to present anything other than argument in support of this claim of ineffectiveness.

Further, we find Appellant has failed to show by clear and convincing evidence there is a strong possibility trial counsel was ineffective for failing to obtain the services of an audiology expert at trial. His request for an evidentiary hearing on this issue is denied.

Finally, we find counsel was not ineffective for failing to file a Motion for New Trial on the basis of juror misconduct. Appellant’s argument concerns the Face Book communications by Juror K.B. Appellant acknowledges the 2010 supplements to the uniform jury instructions instructing jurors to avoid the Internet or any other tools of technology to communicate about a case. However, Appellant asserts the judge and defense counsel were clearly aware of the dangers of social media and Juror K.B.’s misconduct and should have taken the necessary steps to ensure Appellant had a new trial. A defendant may file a motion for new trial when new evidence is discovered, material to the defendant, and which he could not with reasonable diligence have discovered before the trial. 22 O.S.2001, § 952(7). Defense counsel’s mere speculation and surmise is insufficient upon which to cause reversal. Id. Appellant has not met that burden in this case.

As for the Application for Evidentiary Hearing, we find they do not contain clear and convincing evidence of counsel’s ineffectiveness so as to warrant an evidentiary hearing. Therefore, remand for an evidentiary hearing is not warranted.

In Proposition V, we find the jury was misinstructed that they were required to assess a fine in each count. Title 21 O.S.2001, § 64(B) makes the imposition of a fine optional by the jury. Both Appellant and the State request modification in the form of vacating the fines. We agree that is the appropriate remedy. Therefore, the fines in each count are vacated.

In Proposition VI, we find evidence offered in support of Appellant’s prior conviction was not so prejudicial as to lead the jury to recommend more severe sentences than they would have otherwise. The information was similar to that found in pen packs, previously held admissible by this Court. With one prior conviction, Appellant was subject to a minimum sentence of 10 years and a maximum sentence of life. He received 30 years for each conviction of Shooting with Intent to Kill and 15 years for the lesser offense of Assault with a Dangerous Weapon – Firearm. These certainly are not the severe sentences claimed by Appellant. In light of the strong evidence of guilt, and relatively light sentences, we find no modification is warranted.

In Proposition VII, we find Appellant was not denied a fair trial by prosecutorial misconduct. Relief will be granted on a prosecutorial misconduct claim only where the prosecutor committed misconduct that so infected the defendant’s trial that it was rendered fundamentally unfair, such that the jury’s verdicts should not be relied upon. Such claims are evaluated within the context of the entire trial. Having thoroughly reviewed each of Appellant’s allegations of prosecutorial misconduct, we find none of the comments deprived Appellant of a fair trial, or had any prejudicial impact on the judgment and sentence.

In Proposition VIII, we find Appellant’s sentences are not excessive. As addressed in Proposition VI, Appellant received two 30 year sentences and one 15 year sentence when he was facing life imprisonment in each count. The decision to run a defendant’s sentences concurrently or consecutively rests within the sound discretion of the trial court.

In Proposition IX, we find Appellant was not denied a fair trial by the accumulation of error. While we did find the jury was misinstructed as to the imposition of fines in each count, this error has been cured by the vacating of those fines. Finding no other errors warranting relief, this claim of cumulative error is denied.

Accordingly, this appeal is denied.

DECISION

The Judgments and Sentences are AFFIRMED, except that the FINES levied in each count are HEREBY VACATED. The Application for an Evidentiary Hearing on Sixth Amendment Grounds and the Motion for New Trial on Newly Discovered Evidence are DENIED.

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Footnotes:

  1. 1 Shooting with Intent to Kill is an 85% crime pursuant to 21 O.S.Supp.2002, § 13.1.
  2. See 21 O.S.2001, § 641.
  3. See 21 O.S.2001, § 153.
  4. 21 O.S. 2001, § 916; State v. Uriarite, 1991 OK CR 80, I 8, 815 P.2d 193, 195.
  5. 22 O.S.2001, § 952(7).
  6. Title 21 O.S.2001, § 64(B) makes the imposition of a fine optional by the jury.
  7. See Scott v. State, 1991 OK CR 31, III 12-14, 808 P.2d 73, 77.
  8. See Hill U. State, 1982 OK CR 114, 11 6-9, 648 P.2d 1268, 1269-1270.
  9. See Bean v. State, 1964 OK CR 59, II 7-8, 392 P.2d 753, 754-756.
  10. See Mike v. State, 1988 OK CR 205, II 9-11, 761 P.2d 911, 913-915.
  11. Kamees v. State, 1991 OK CR 91, I 21, 815 P.2d 1204, 1209.
  12. 21 O.S. 2001, § 61.1.
  13. Williams v. State, 2001 OK CR 9, " 127, 22 P.3d 702, 732.
  14. See Rutan U. State, 2009 OK CR 3, I 49, 202 P.3d 839, 849.
  15. See Easlick v. State, 2004 2 OK CR 21, 9 15, 90 P.3d 556, 559.
  16. Frederick v. State, 2001 OK CR 34, 1197 130-131, 37 P.3d 908, 942.
  17. Kreijanovsky v. State, 1985 OK CR 120 II 10, 706 P.2d 541, 544.
  18. Eizember v. State, 2007 OK CR 29, I 111, 164 P.3d 208, 236.
  19. Phillips v. State, 1999 OK CR 38, 91 58-61, 989 P.2d 1017, 1034-35.
  20. Bland v. State, 2000 OK CR 11, I 56, 4 P.3d 702, 719-20.
  21. Short U. State, 1999 OK CR 15, 1 93, 980 P.2d 1081, 1108-1109.
  22. Simpson U. State, 2010 OK CR 6, 230 P.3d 888.
  23. Warner U. State, 2006 OK CR 40, IT 18, 144 P.3d 9 838, 859.
  24. Underwood v. State, 2011 OK CR 12,9 93, 2011 WL 1129582, 25.

Oklahoma Statutes citations:

  • Okla. Stat. tit. 21 § 652.1 (2007) - Shooting with Intent to Kill
  • Okla. Stat. tit. 21 § 13.1 (2002) - 85% Crimes
  • Okla. Stat. tit. 21 § 641 (2001) - Assault with a Dangerous Weapon
  • Okla. Stat. tit. 22 § 916 (2001) - Lesser Included Offenses
  • Okla. Stat. tit. 22 § 952(7) (2001) - Motion for New Trial
  • Okla. Stat. tit. 21 § 64(B) (2001) - Imposition of Fines
  • Okla. Stat. tit. 21 § 61.1 (2001) - Sentencing Concurrently or Consecutively

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:

  • Rutan v. State, 2009 OK CR 3, ¶ 49, 202 P.3d 839, 849
  • Easlick v. State, 2004 OK CR 21, ¶ 15, 90 P.3d 556, 559
  • Frederick v. State, 2001 OK CR 34, ¶¶ 130-131, 37 P.3d 908, 942
  • Kreijanovsky v. State, 1985 OK CR 120, ¶ 10, 706 P.2d 541, 544
  • Vassaur v. State, 1973 OK CR 400, ¶ 73, 514 P.2d 673, 685
  • Eizember v. State, 2007 OK CR 29, ¶ 111, 164 P.3d 208, 236
  • Shrum v. State, 1999 OK CR 41, ¶ 7, 991 P.2d 1032, 1035
  • State v. Uriarite, 1991 OK CR 80, ¶ 8, 815 P.2d 193, 195
  • Schmuck v. United States, 489 U.S. 705, 716-717, 109 S.Ct. 1443, 1451, 103 L.Ed.2d 734 (1989)
  • Phillips v. State, 1999 OK CR 38, ¶¶ 58-61, 989 P.2d 1017, 1034-35
  • Bland v. State, 2000 OK CR 11, ¶ 56, 4 P.3d 702, 719-20
  • Ball v. State, 2007 OK CR 42, ¶ 32, 173 P.3d 81, 90
  • Bear v. State, 1988 OK CR 181, ¶ 26, 762 P.2d 950, 957
  • Short v. State, 1999 OK CR 15, ¶ 93, 980 P.2d 1081, 1108-1109
  • Simpson v. State, 2010 OK CR 6, 230 P.3d 888
  • Scott v. State, 1991 OK CR 31, ¶¶ 12-14, 808 P.2d 73, 77
  • Hill v. State, 1982 OK CR 114, ¶¶ 6-9, 648 P.2d 1268, 1269-1270
  • Bean v. State, 1964 OK CR 59, ¶¶ 7-8, 392 P.2d 753, 754-756
  • Mike v. State, 1988 OK CR 205, ¶¶ 9-11, 761 P.2d 911, 913-915
  • Roy v. State, 2006 OK CR 47, ¶ 29, 152 P.3d 217, 227
  • Warner v. State, 2006 OK CR 40, ¶ 197, 144 P.3d 838, 859
  • Kamees v. State, 1991 OK CR 91, ¶ 21, 815 P.2d 1204, 1209
  • Riley v. State, 1997 OK CR 51, ¶ 1, 947 P.2d 530, 535
  • Williams v. State, 2001 OK CR 9, ¶ 127, 22 P.3d 702, 732

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