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F-2012-1029

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Dustin Kyle Martin v The State Of Oklahoma

F-2012-1029

Filed: Jul. 31, 2014

Not for publication

Prevailing Party: Dustin Kyle Martin

Summary

Dustin Kyle Martin appealed his conviction for Second Degree Felony Murder and Accessory to Second Degree Murder. His conviction and sentence were life imprisonment for both counts, which the trial court ordered to be served one after the other. Judge Smith dissented. In the Court's opinion, they agreed with Martin that he should not have been convicted as both a principal and an accessory for the same crime. They reversed his conviction for Accessory to Second Degree Murder and instructed to dismiss it. The court affirmed his conviction for Second Degree Felony Murder, stating that the evidence was good enough to support it. The judges also noted that most of his other claims on appeal were not needed to be addressed because they had already decided on the accessory conviction. Overall, the decision led to maintaining the murder conviction but not the accessory charge.

Decision

The Judgment and Sentence of the district court is AFFIRMED as to Count I, Second Degree Felony Murder. The Judgment and Sentence on Count II, Accessory to Second Degree Murder, is REVERSED with instructions to DISMISS.

Issues

  • Was there a conflict in convictions as both a principal and an accessory for the same crime?
  • Did the evidence support the conviction for Accessory to Second Degree Murder?
  • Were the jury instructions regarding Accessory to Second Degree Murder erroneous?
  • Did the introduction of irrelevant and highly prejudicial photographic evidence deprive Mr. Martin of a fair trial?
  • Was the evidence sufficient to support a conviction for Second Degree Felony Murder based on Second Degree Burglary?
  • Did the trial court err in denying requested jury instructions on Heat of Passion Manslaughter?
  • Did the admission of hearsay testimony violate Mr. Martin's confrontation rights and rights to a fair trial?
  • Did the prosecutor's closing argument unfairly influence the consideration of sentences?
  • Was improper victim impact testimony prejudicial to the sentencing decision?
  • Were consecutive life sentences excessive under the circumstances of the case?
  • Did the accumulation of errors result in a denial of due process and an unreliable trial?

Findings

  • the court reversed Count II with instructions to dismiss due to the improper conviction as both principal and accessory for the same crime
  • the evidence was sufficient to support the conviction for Second Degree Felony Murder
  • the trial court did not abuse its discretion in admitting photographic evidence, except for one photo which was deemed harmless error
  • the trial court did not err in refusing to give a jury instruction on Heat of Passion Manslaughter as the evidence did not warrant it
  • the testimony of the forensic interviewer was not hearsay and did not violate the Confrontation Clause, and no relief was warranted
  • the prosecutor's comments regarding sentencing did not require modification of the sentences because the conviction for Accessory was reversed
  • the imposition of consecutive life sentences was not excessive under the facts of the case
  • the accumulation of errors did not deprive Martin of a fair trial or reliable sentencing

F-2012-1029

Jul. 31, 2014

Dustin Kyle Martin

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

C. JOHNSON, JUDGE:

Appellant, Dustin Kyle Martin, was convicted after jury trial in Okmulgee County District Court, Case No. CF-2011-412, of Second Degree Felony Murder (Count I) and Accessory to Second Degree Murder (Count II), each After Former Conviction of Two or More Felonies. The jury assessed punishment at life imprisonment on each count. The trial court sentenced Martin accordingly, ordering the sentences be served consecutively. It is from this Judgment and Sentence that Martin appeals to this Court.

Martin raises the following propositions of error:
1. Martin’s conviction for Accessory to Second Degree Murder must be reversed because he was also convicted as a principal to that murder, and a person cannot be both principal and accessory to the same crime.
2. The evidence is insufficient to support Mr. Martin’s conviction for Accessory to Second Degree Felony Murder.
3. The instructions concerning Accessory to Second Degree Murder were erroneous and tainted the resulting conviction.
4. The introduction of irrelevant and highly prejudicial photographic evidence deprived Mr. Martin of a fair trial.
5. The evidence is insufficient to support a conviction for Second Degree Felony Murder based on Second Degree Burglary.
6. Because the evidence was consistent with the offense of Heat of Passion Manslaughter, the trial court’s refusal to give Martin’s requested instructions on this offense denied Mr. Martin’s right to due process, under the Fourteenth Amendment to the United States Constitution and Article II, § 7 of the Oklahoma Constitution, and constituted reversible error.
7. The introduction of hearsay testimony deprived Mr. Martin of his right to confront witnesses, his right to a fair trial, and his right to a fair and impartial sentencing in violation of the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Article II, §§ 7, 9, and 20 of the Oklahoma Constitution.
8. The prosecutor’s sentencing stage closing argument improperly injected consideration of how sentences should be served. Such comments were so unfair as to deprive Mr. Martin of his due process rights guaranteed by the Fourteenth Amendment and Oklahoma Constitution, Article II, Section 7.
9. Improper victim impact testimony tainted the judge’s decision regarding how the sentences were to be served.
10. Consecutive life sentences are excessive under the facts and circumstances and should therefore be modified.
11. The accumulation of error in this case deprived Mr. Martin of due process of law and of a reliable trial in violation of the Eighth and Fourteenth Amendments to the United States Constitution and Article 2, §§ 7 and 9 of the Oklahoma Constitution.

After thorough consideration of the propositions, and the entire record before us on appeal, including the original record, transcripts, and briefs of the parties, we affirm Mr. Martin’s Judgment and Sentence on Count I but reverse Count II with instructions to dismiss.

In Proposition I Martin argues that his conviction for Accessory to Murder in the Second Degree in Count II must be reversed because he was convicted as a principal to Second Degree Murder for the same homicide in Count I. Martin acknowledges that this issue was not raised below and accordingly, will be reviewed only for plain error. To be entitled to relief under the plain error doctrine, Martin must prove: (1) the existence of an actual error (i.e., deviation from a legal rule); (2) that the error is plain or obvious; and (3) that the error affected his substantial rights, meaning the error affected the outcome of the proceeding.

The State correctly, and commendably, concedes Martin’s claim. That a party to a crime is either a principal or an accessory after the fact is a conclusion dictated by both logic and settled, albeit sparse, case law.

The fact that Martin was tried and convicted of Second Degree Felony Murder for his involvement in the actual homicide precludes him from being convicted as an accessory based upon his subsequent acts. His conviction for both crimes was plain error and requires that his conviction for Accessory to Murder in the Second Degree be reversed with instructions to dismiss.

Martin’s arguments in Propositions II and III regard only errors alleged to have affected his conviction for Accessory to Murder in the Second Degree in Count II. As noted above, Martin’s conviction for Accessory to Murder in the Second Degree must be reversed with instructions to dismiss. This ruling renders Martin’s arguments in Propositions II and III moot.

In his fourth proposition Martin contends that the introduction of irrelevant and highly prejudicial photographic evidence deprived him of a fair trial. The admission of evidence lies within the sound discretion of the trial court and we will not disturb the trial court’s decision absent an abuse of discretion. This Court has held that: [T]he test for admissibility of photographs is not whether they are gruesome or inflammatory, but whether [their] probative value is substantially outweighed by the danger of unfair prejudice.

With the exception of State’s Exhibit 10, the trial court did not abuse its discretion in admitting the challenged photographs. Although disturbing, the majority of the photographs were relevant, and their probative value was not substantially outweighed by the risk of unfair prejudice. The quality of the photograph admitted as State’s Exhibit 10, on the other hand, was so poor as to have no probative value in establishing any fact at issue. Thus, the trial court abused its discretion in admitting it into evidence. As the evidence was overwhelming and the quality of the photograph so poor as to render it of little prejudicial effect, the error in the admission of this photograph was harmless.

Proposition IV requires no relief. In Proposition V Martin argues that the evidence presented at trial was insufficient to support his conviction for Second Degree Felony Murder with Second Degree Burglary being the underlying felony. Reviewing the evidence in a light most favorable to the State, we find that a rational trier of fact could have found each element of the crime charged to exist beyond a reasonable doubt.

Martin argues in his sixth proposition that the trial court erred in refusing his requested jury instruction on the crime of Heat of Passion Manslaughter in the First Degree as a lesser offense. We review a trial court’s decision on the submission of lesser offense instructions for an abuse of discretion. It is true that the trial court must instruct on any lesser offense warranted by the evidence. However, in the present case, an instruction on Heat of Passion Manslaughter in the First Degree was not warranted by the evidence and the trial court did not abuse its discretion in denying this instruction.

In his seventh proposition Martin argues that the expert testimony of the forensic interviewer was irrelevant and hearsay and its admission into evidence violated his rights under the Confrontation Clause. We find that the testimony at issue was neither hearsay nor violative of the Confrontation Clause. While the relevancy of the testimony at issue is questionable, upon consideration of the entire record, we find that the forensic interviewer’s testimony did not rise to the level of plain error as it did not affect the outcome of the proceeding. Relief is not required.

In Propositions VIII, IX, and X, Martin asserts, respectively, that error occurred when the prosecutor asked the jury to impose consecutive sentences, that improper victim impact testimony tainted the trial judge’s decision to order his two life sentences be served consecutively, and that the imposition of consecutive life sentences was excessive under the facts and circumstances of this case. He asks this court to remedy these errors by modifying his sentences to run concurrently.

Because we ruled above that Martin’s conviction for Accessory to Second Degree Murder must be reversed with instructions to dismiss, modification by running the sentences concurrently is not required to remedy errors alleged in these propositions. Further, Martin’s life sentence on Count I is not excessive and need not be reduced to a lesser term of years. Finally, upon review of Martin’s claims for relief and the record in this case, we note again that some of the alleged errors in this case have been remedied by the reversal of Count II, Accessory to Second Degree Murder. Any remaining errors and irregularities, even when considered in the aggregate, do not require additional relief because they did not render his trial fundamentally unfair, taint the jury’s verdict, or render sentencing unreliable. Any errors not contributing to this Court’s decision to reverse Count II were harmless beyond a reasonable doubt, individually and cumulatively.

DECISION

The Judgment and Sentence of the district court is AFFIRMED as to Count I, Second Degree Felony Murder. The Judgment and Sentence on Count II, Accessory to Second Degree Murder, is REVERSED with instructions to DISMISS.

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Footnotes:

  1. Martin must serve 85% of his sentence on Count I before he may be eligible to be considered for parole under 21 O.S.2011, § 13.1.
  2. Head v. State, 2006 OK CR 44, I 9, 146 P.3d 1141, 1144.
  3. Burton must prove: (1) the existence of an actual error (i.e., deviation from a legal rule); (2) that the error is plain or obvious; and (3) that the error affected his substantial rights, meaning the error affected the outcome of the proceeding. See Hogan v. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923.
  4. Pavatt v. State, 2007 OK CR 19, I 42, 159 P.3d 272, 286.
  5. 12 O.S.2011, § 2403; DeLozier v. State, 1998 OK CR 76, TI 22-24, 991 P.2d 22, 28.
  6. See Mack v. State, 2008 OK CR 23, I 8, 188 P.3d 1284, 1288.
  7. Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-04.
  8. Jackson v. State, 2006 OK CR 45, "I 24, 146 P.3d 1149, 1159.
  9. Jones v. State, 2006 OK CR 17, IF 6, 134 P.3d 150, 154.
  10. Harris v. State, 2004 OK CR 1, 9 50, 84 P.3d 731, 750.
  11. Rea v. State, 2001 OK CR 28, "I 5 n. 3, 34 P.3d 148, 149 n. 3.
  12. DeRosa v. State, 2004 OK CR 19, I 100, 89 P.3d 1124, 1157.
  13. 21 O.S.2011, § 11.
  14. 21 O.S.2011, § 171.
  15. 21 O.S.2011, § 172.
  16. 21 O.S.2011, § 173.

Oklahoma Statutes citations:

  • 21 O.S. § 13.1 - Parole eligibility
  • 12 O.S. § 2403 - Admissibility of evidence
  • 12 O.S. § 2801(A)(3) - Hearsay exceptions
  • 21 O.S. § 171 - Classification of parties to crimes
  • 21 O.S. § 172 - Definition of principals
  • 21 O.S. § 173 - Definition of accessories after the fact
  • 21 O.S. § 11 - Multiple punishments for the same act

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:

  • Head v. State, 2006 OK CR 44, I 9, 146 P.3d 1141, 1144
  • Hogan v. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923
  • Vann v. State, 1922 OK CR 102, 21 Okl.Cr. 298, 304, 207 P. 102, 104
  • Wilson v. State, 1976 OK CR 167, I 14, 552 P.2d 1404, 1406
  • State v. Truesdale, 1980 OK CR 97, I 4, 620 P.2d 427, 428
  • Faulkner v. State, 1982 OK CR 84, I 17, 646 P.2d 1304, 1308
  • Pavatt v. State, 2007 OK CR 19, I 42, 159 P.3d 272, 286
  • Webster v. State, 2011 OK CR 14, I 76, 252 P.3d 259, 280
  • DeLozier v. State, 1998 OK CR 76, I 22-24, 991 P.2d 22, 28
  • Mack v. State, 2008 OK CR 23, I 8, 188 P.3d 1284, 1288
  • Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-04
  • Jackson v. State, 2006 OK CR 45, I 24, 146 P.3d 1149, 1159
  • Jones v. State, 2006 OK CR 17, I 6, 134 P.3d 150, 154
  • Shrum v. State, 1999 OK CR 41, 991 P.2d 1032
  • Harris v. State, 2004 OK CR 1, I 50, 84 P.3d 731, 750
  • Smith v. State, 2013 OK CR 14, I 44, 306 P.3d 557, 572
  • Rea v. State, 2001 OK CR 28, I 5 n. 3, 34 P.3d 148, 149 n. 3
  • DeRosa v. State, 2004 OK CR 19, I 100, 89 P.3d 1124, 1157
  • Easlick v. State, 2004 OK CR 21, I 15, 90 P.3d 556, 559
  • Conover v. State, 1997 OK CR 6, I 41-44, 933 P.2d 904, 914-15

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