Johnny Sanders O'Neal, IV v The State Of Oklahoma

F-2012-226

Filed: Oct. 15, 2013

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Johnny Sanders O'Neal, IV appealed his conviction for Second Degree Burglary, Endangering Others While Attempting to Elude Police, Driving Under the Influence of Drugs, and Driving While License Under Suspension. His conviction and sentence included twenty years for burglary, twenty-five years for endangering others, and one year for each of the driving offenses, all to be served at the same time. Justice C. Johnson dissented.

Decision

The Judgment of the district court is AFFIRMED. O'Neal's sentence in Count 1 is MODIFIED to 15 years imprisonment and his sentence in Count 2 is MODIFIED to 20 years imprisonment, to be served concurrently. The Judgment and Sentence in Counts 3 and 4 is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2013), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Issues

• whether the trial court erred in denying the demurrer to dismiss Count 2 for lack of venue
• whether the trial judge erred by submitting an instruction on venue
• whether the trial court erred by allowing the testimony of a witness after the rule of sequestration was violated
• whether the improper admission of other crime evidence deprived him of a fair trial
• whether a jury instruction by the trial judge was coercive and reflected the trial judge's own opinion depriving O'Neal of a fair trial and due process of law
• whether information about suspended sentences, accelerated sentences, and pardon and parole deprived him of a fair sentence and must result in modification
• whether ineffective assistance of counsel deprived him of a fair trial
• whether his sentences are excessive
• whether cumulative error deprived him of a fair trial

Findings

• the trial court did not err in denying O'Neal's demurrer to Count 2 for lack of venue
• it was error for the trial court to submit a jury instruction on venue, but relief is not required
• the trial court did not abuse its discretion in denying O'Neal's motion to exclude Officer Lemmings' testimony
• the district court did not err in rejecting O'Neal's motion for mistrial
• no relief is required for the claim of a coercive instruction
• relief is required due to the admission of information regarding prior sentences and parole, resulting in a sentence modification
• O'Neal's claim of ineffective assistance of counsel fails
• no relief is required for the claims of excessive sentence or cumulative error

F-2012-226

Oct. 15, 2013

Johnny Sanders O'Neal, IV

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

A. JOHNSON, JUDGE:

Appellant Johnny Sanders O’Neal, IV was tried by jury in the District Court of Canadian County, Case No. CF-2011-124, and convicted of Second Degree Burglary, After Former Conviction of Two or More Felonies (Count 1), in violation of 21 O.S.2011, § 1435, Endangering Others While Attempting to Elude a Police Officer, After Former Conviction of Two or More Felonies (Count 2), in violation of 21 O.S.2011, § 540A (B), Driving a Motor Vehicle While Under the Influence of Drugs (Count 3), in violation of 47 O.S.2011, § 11-902(A), and Driving While License Under Suspension (Count 4), in violation of 47 O.S.2011, § 6-303(B). The jury fixed punishment at twenty years imprisonment on Count 1, twenty-five years imprisonment on Count 2, and one year imprisonment on each of Counts 3 and 4. The Honorable Gary D. McCurdy, Special Judge, who presided at trial, sentenced O’Neal according to the jury’s verdict and ordered the sentences on all counts to run concurrently. From this Judgment and Sentence O’Neal appeals, raising the following issues: (1) whether the trial court erred in denying the demurrer to dismiss Count 2 for lack of venue; (2) whether the trial judge erred by submitting an instruction on venue; (3) whether the trial court erred by allowing the testimony of a witness after the rule of sequestration was violated; (4) whether the improper admission of other crime evidence deprived him of a fair trial; (5) whether a jury instruction by the trial judge was coercive and reflected the trial judge’s own opinion depriving O’Neal of a fair trial and due process of law; (6) whether information about suspended sentences, accelerated sentences, and pardon and parole deprived him of a fair sentence and must result in modification; (7) whether ineffective assistance of counsel deprived him of a fair trial; (8) whether his sentences are excessive; and (9) whether cumulative error deprived him of a fair trial. We find reversal is not required and affirm the Judgment of the District Court. We are required to modify O’Neal’s sentence, however, for the reasons discussed below.

1. Venue was proper in Canadian County and the trial court did not err in denying O’Neal’s demurrer to Count 2 for lack of venue. See Omalza v. State, 1995 OK CR 80, ¶ 11, 911 P.2d 286, 295; Rawlings v. State, 1987 OK CR 135, ¶ 38, 740 P.2d 153, 159; 22 O.S.2011, § 124.

2. It was error for the trial court to submit a jury instruction on venue because venue is a matter of law to be decided by the trial court. See Omalza, 1995 OK CR 80, ¶ 11, 911 P.2d at 295. Relief, however, is not required because the instruction error did not result in a miscarriage of justice or amount to a substantial violation of a constitutional or statutory right. 20 O.S.2011, § 3001.1.

3. The trial court did not abuse its discretion in denying O’Neal’s motion to exclude Officer Lemmings’ testimony based on a violation of the Rule of Sequestration because there was no prejudice to O’Neal. See Villanueva v. State, 1985 OK CR 8, ¶¶ 2-5, 695 P.2d 858, 860.

4. The district court did not err in rejecting O’Neal’s motion for mistrial because the arresting officer’s testimony about his observations of O’Neal’s condition and about O’Neal’s statements concerning his consumption of alcohol at the time of his arrest did not amount to an evidentiary harpoon. See Bruner v. State, 1980 OK CR 52, ¶ 16, 612 P.2d 1375, 1378-79. The evidence was admissible because it was inextricably intertwined with the charged offense. See United States v. Irving, 665 F.3d 1184, 1212 (10th Cir.2011), cert. denied, U.S. 132 S.Ct. , 1873, 182 L.Ed.2d 656 (2012).

5. Reviewing for plain error only, we reject O’Neal’s claim that he was prejudiced by a coercive instruction reflecting the judge’s own opinion. See Hogan v. State, 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923. When the jury inquired what would happen if it could not agree on punishment, the judge simply reminded the jury it had received all the evidence necessary to reach a decision and urged the jury to follow the law and reach a sentencing decision based upon the evidence. No relief is required here.

6. We find relief is required in this case under the plain error doctrine because O’Neal was prejudiced by the admission of information regarding the suspension, revocation and acceleration of his prior sentences as well as pardon and parole. See Hunter v. State, 2009 OK CR 17, ¶¶ 8-10, 208 P.3d 931, 933-34. The prosecutor read the second page of the Information which included the fact that at least a portion of O’Neal’s sentence in several of his prior convictions had been suspended. This was error under Hunter. The prosecutor also engaged in argument that called attention to the fact O’Neal received suspended sentences and probation. The jury clearly considered probation and parole as evidenced by its questions during deliberations. This case is indistinguishable from Hunter. Because O’Neal’s jury sentenced him based on improper as well as legitimate concerns, we find O’Neal’s sentence must be modified to 15 years from 20 years on Count 1 and to 20 years from 25 years on Count 2, to be served concurrently. See 22 O.S.2011, § 1066.

7. O’Neal’s claim of ineffective assistance of counsel fails because he cannot show prejudice from defense counsel’s failure to object to the other crimes evidence or the alleged coercive instruction (Propositions IV & V, supra). See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Malone v. State, 2013 OK CR 1, ¶ 14, 293 P.3d 198, 206. Because his sentence must be modified for the plain error stemming from the jury’s consideration of information concerning pardon and parole, we find that no other relief is required on O’Neal’s claim that defense counsel was ineffective for failing to object to the information of pardon and parole. Nor is he entitled to any further relief based on a claim of excessive sentence or cumulative error.

DECISION

The Judgment of the district court is AFFIRMED. O’Neal’s sentence in Count 1 is MODIFIED to 15 years imprisonment and his sentence in Count 2 is MODIFIED to 20 years imprisonment, to be served concurrently. The Judgment and Sentence in Counts 3 and 4 is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2013), the MANDATE is ORDERED issued upon delivery and filing of this decision.

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Footnotes:

1. Omalza v. State, 1995 OK CR 80, ¶ 11, 911 P.2d 286, 295;
2. Rawlings v. State, 1987 OK CR 135, ¶ 38, 740 P.2d 153, 159;
3. 22 O.S.2011, § 124.
4. 20 O.S.2011, § 3001.1.
5. Villanueva v. State, 1985 OK CR 8, ¶¶ 2-5, 695 P.2d 858, 860.
6. Bruner v. State, 1980 OK CR 52, ¶ 16, 612 P.2d 1375, 1378-79.
7. United States v. Irving, 665 F.3d 1184, 1212 (10th Cir. 2011), cert. denied, U.S. 132 S.Ct. 1873, 182 L.Ed.2d 656 (2012).
8. Hogan v. State, 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923.
9. Hunter v. State, 2009 OK CR 17, ¶¶ 8-10, 208 P.3d 931, 933-34.
10. 22 O.S.2011, § 1066.
11. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Malone v. State, 2013 OK CR 1, ¶ 14, 293 P.3d 198, 206.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1435 (2011) - Second Degree Burglary
• Okla. Stat. tit. 21 § 540A (2011) - Endangering Others While Attempting to Elude a Police Officer
• Okla. Stat. tit. 47 § 11-902 (2011) - Driving a Motor Vehicle While Under the Influence of Drugs
• Okla. Stat. tit. 47 § 6-303 (2011) - Driving While License Under Suspension
• Okla. Stat. tit. 22 § 124 (2011) - Venue
• Okla. Stat. tit. 20 § 3001.1 (2011) - Jury Instruction
• Okla. Stat. tit. 22 § 1066 (2011) - Modification of Sentence

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:

• Omalza v. State, 1995 OK CR 80, I 11, 911 P.2d 286, 295
• Rawlings v. State, 1987 OK CR 135, 38, 740 P.2d 153, 159
• Villanueva v. State, 1985 OK CR 8, I 2-5, 695 P.2d 858, 860
• Bruner v. State, 1980 OK CR 52, I 16, 612 P.2d 1375, 1378-79
• Hogan v. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923
• Hunter v. State, 2009 OK CR 17, I 8-10, 208 P.3d 931, 933-34
• Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)
• Malone v. State, 2013 OK CR 1, 14, 293 P.3d 198, 206