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F-2012-703

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Heather Ann Jones v The State Of Oklahoma

F-2012-703

Filed: Jun. 12, 2014

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Heather Ann Jones appealed her conviction for Second Degree Murder, Robbery Committed by Two or More Persons, Conspiracy to Commit Robbery by Two or More Persons, and Child Neglect. The court affirmed all convictions except for the robbery charge, which was reversed and dismissed. Judge Lumpkin dissented on this point.

Decision

Jones' conviction and sentence for first degree (conjoint robbery) (Count 4) is REVERSED with instruction to the District Court to DISMISS. In all other respects, the Judgment and Sentence of the district court 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 evidence was sufficient to convict her of Second Degree Felony Murder, Robbery, and Conspiracy to Commit Robbery;
  • whether it was plain error for the trial court to allow the prosecutor to solicit testimony about statements Jones made during a television news interview;
  • whether the admission of written statements of witness Tyler Hughes to police was erroneous and deprived her of a fair trial and reliable sentencing;
  • whether it was plain error for the trial court to admit certain character evidence;
  • whether her convictions and sentences for both Robbery and Second Degree Felony Murder violated her right to be free from multiple punishments;
  • whether she was deprived of the effective assistance of counsel;
  • whether the cumulative effect of all errors deprived her of a fair trial.

Findings

  • evidence was sufficient to convict her of Second Degree Felony Murder, Robbery, and Conspiracy to Commit Robbery
  • the trial court did not commit reversible error in allowing testimony about Jones' demeanor during a television news interview
  • the admission of written statements of witness Tyler Hughes to police was erroneous but did not require reversal
  • the trial court did not err in admitting character evidence regarding Jones' demeanor
  • her convictions for both Robbery and Second Degree Felony Murder violated her right to be free from multiple punishments
  • her claims of ineffective assistance of counsel were without merit
  • the cumulative effect of errors did not deprive her of a fair trial

F-2012-703

Jun. 12, 2014

Heather Ann Jones

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

Appellant Heather Ann Jones was tried by jury and convicted in the District Court of Sequoyah County, in Case Number CF-2010-211, for the crimes of Second Degree Murder (Count 1), in violation of 21 O.S.2001, § 701.8(B), Robbery Committed by Two or More Persons (Count 4), in violation of 21 O.S.2001, § 800, Conspiracy to Commit Robbery by Two or More Persons (Count 5), in violation of 21 O.S.2001, § 421, and Child Neglect (Count 6), in violation of 21 O.S.Supp.2009, § 843.5(C). The jury set punishment at fifteen years imprisonment on Count 1, five years imprisonment for Count 4, a $2,500.00 fine for Count 5, and one year in the county jail for Count 6. The Honorable J. Jeffrey Payton, District Judge, who presided at trial, sentenced Jones according to the jury’s verdict and ordered the sentences to be served concurrently to each other. From this Judgment and Sentence Jones appeals, raising the following issues:

1. Under 21 O.S.Supp.2011, § 13.1, Jones must serve 85% of the sentence imposed on Counts 1 and 6 before she is eligible for parole.

(1) whether the evidence was sufficient to convict her of Second Degree Felony Murder, Robbery, and Conspiracy to Commit Robbery;
(2) whether it was plain error for the trial court to allow the prosecutor to solicit testimony about statements Jones made during a television news interview after the court held the video recording of that news report was inadmissible because it contained prejudicial hearsay;
(3) whether the admission of written statements of witness Tyler Hughes to police was erroneous and deprived her of a fair trial and reliable sentencing;
(4) whether it was plain error for the trial court to admit certain character evidence;
(5) whether her convictions and sentences for both Robbery and Second Degree Felony Murder, based on larceny from a house, violated her right to be free from multiple punishments;
(6) whether she was deprived of the effective assistance of counsel; and
(7) whether the cumulative effect of all errors deprived her of a fair trial.

For the reasons set out below, we reverse Count 4, but otherwise affirm the Judgment and Sentence of the District Court.

1. Sufficiency of the Evidence

After reviewing the evidence in the light most favorable to the State, as we must, we find that any rational trier of fact could have found beyond a reasonable doubt that Jones committed the crimes of second degree felony murder, robbery, and conspiracy to commit robbery. See Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-204. Accepting all reasonable inferences and credibility choices supporting the verdict, we find the evidence was sufficient to prove Jones had knowledge of her accomplices’ intent to rob their victim or commit larceny from his house. We find further that the evidence was sufficient to show that Jones aided and abetted the crime of larceny from a house, the predicate felony upon which the charge of second degree felony murder was based. Although the evidence showed that Jones’ accomplices entered the victim’s house with his consent, the evidence also showed that the consent was obtained through deception. The proof of deception was sufficient to make the entry unlawful, and thereby satisfy the first element of the crime of larceny from a house.

2. Testimony about Television News Interview

Reviewing for plain error only, we find the trial court did not commit reversible error in permitting a sheriff’s investigator to testify about Jones’ demeanor during a television news interview. Lott v. State, 2004 OK CR 27, I 70, 98 P.3d 318, 340. While the trial judge ruled that the entire video recording of the news report was inadmissible, he obviously did so because Jones’ statements on the video were intertwined with irrelevant and hearsay statements made by the news anchor and reporter. Jones’ statement, as testified to by the sheriff’s investigator without reference to the news anchor or reporter, was a statement by a party, and not hearsay. See 12 O.S.2011, § 2801(B(2)(a). Additionally, the investigator’s testimony about Jones’ demeanor did not present a hearsay statement to jurors. Under the hearsay rule, a hearsay statement is an oral assertion, or nonverbal conduct intended as an assertion. 12 O.S. 2011, § 2801(A)(1). Jones’ demeanor – described by the investigator as answering questions without crying – was not an assertion. See Romano v. State, 1995 OK CR 74, I 8, 909 P.2d 92, 107; Mayes v. State, 1994 OK CR 44, I 65, 887 P.2d 1288, 1307. Relief for plain error is not warranted.

3. Written Statements to Police as Hearsay

Again reviewing only for plain error, we find that, while the trial court erroneously admitted a written statement given to police by a witness who testified at trial, the error does not require reversal. Young v. State, 2000 OK CR 17, T 49, 12 P.3d 20, 37. As the State rightly concedes, the written statement admitted as Exhibits 68 and 68A was hearsay and did not qualify for admission under any hearsay exception. But because the substance of the witness’ written statement was substantially the same as his in-court testimony, the statement was merely cumulative to that testimony. If the statement had been excluded, the outcome would remain unchanged. Relief for plain error is not warranted.

4. Character Evidence

Reviewing for plain error, we reject Jones’ claim that the trial judge improperly allowed the prosecutor to ask several witnesses about her demeanor after her daughter was shot. Coddington v. State, 2006 OK CR 34, I 52, 142 P.3d 437, 451. Several police officers testified that Jones did not appear to be as upset as they would have been if their child had been shot. Jones claims this is improper character evidence. It is not. Title 12 O.S.2011, § 2404(A) governs the admissibility of character evidence and states in relevant part that [e]vidence of a person’s character or a trait of his character is not admissible for the purpose of proving action in conformity therewith. Here, the testimony about Jones’ demeanor in dealing with the injury and death of her child was not evidence of some unrelated bad act from which jurors could infer that she committed the criminal act alleged in this case. The demeanor testimony was probative of and directly supported the State’s burden of proving that Jones willfully or maliciously failed to provide adequate supervision of her child as charged in the child neglect count (Count 6).

5. Multiple Punishment

Jones’ claim that her convictions for conjoint robbery and second degree felony murder with larceny from a house as the predicate felony violate her right to be free from multiple punishments under 21 O.S.2001, § 11 has merit and requires relief. As Jones did not raise this claim in the district court, it is reviewed only for plain error. Jones was found guilty in Count 1 of second degree felony murder with the underlying felony being larceny from a house. She was also found guilty in Count 4 of conjoint robbery (robbery committed by two or more persons). Jones contends that because the larceny and robbery offenses were both based on the conduct of her accomplices in taking money from the victim’s pockets and, nearly simultaneously, taking guns from his immediate presence in his bedroom, the larceny and robbery convictions constitute impermissible multiple punishment for the same continuous criminal act of theft.

Title 21 O.S.2001, § 11(A) prohibits multiple punishments for a single criminal act. The proper analysis of a § 11 claim focuses on the relationship between the crimes. Based on the evidence presented and the State’s theory of the case, we find these actions cannot be separated into two crimes. Because the criminal acts cannot be separated, the double convictions constitute a substantial violation of Jones’ statutory right to be free from multiple punishment. Relief for plain error is warranted. Jones’ conviction for first degree conjoint robbery must be reversed with instructions to dismiss.

6. Ineffective Assistance of Counsel

Jones claims that trial counsel’s failure to timely object to a television video news report, certain law enforcement reports, and testimony about her demeanor constituted ineffective assistance of counsel. To prevail on a claim of ineffective assistance of counsel, an appellant must show both that counsel’s performance was deficient and that the deficient performance prejudiced her.

Jones claims first that trial counsel’s failure to object to a television news report allowed snippets of that report containing irrelevant and hearsay statements to be played for the jury before the judge ruled the entire tape inadmissible. Jones asserts the portions of the video that were played for the jury were prejudicial and would not have been heard by jurors had trial counsel objected. The record shows the prosecutor attempted several times to play the video of Jones’ interview with a television news reporter. Each time the video was started, however, it was cut off by the judge because the prosecutor could not move directly to that part of the interview containing Jones’ statements alone.

Jones claims further that trial counsel was ineffective for failing to object to testimony by various witnesses about her demeanor in the minutes and hours after her daughter was shot. The testimony about Jones’ demeanor was properly allowed into evidence. Had trial counsel objected to the testimony, the objection would have been overruled. We will not find counsel ineffective for failing to raise an objection which would have been overruled.

7. Cumulative Error

Jones requests that if no single error in her case warrants reversal, we review all the errors in the aggregate to determine whether an accumulation of error denied her a fair trial. This Court has held that when there are numerous irregularities during the course of [a] trial that tend to prejudice the rights of the defendant, reversal will be required if the cumulative effect of all the errors was to deny the defendant a fair trial.

Jones’ trial was not error free. We find, however, that the errors identified do not require relief even considered in the aggregate. Those errors did not render her trial fundamentally unfair, taint the jury’s verdict, or render the sentencing unreliable.

DECISION

Jones’ conviction and sentence for first degree (conjoint robbery)(Count 4) is REVERSED with instruction to the District Court to DISMISS. In all other respects, the Judgment and Sentence of the district court 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. Under 21 O.S.Supp.2011, § 13.1, Jones must serve 85% of the sentence imposed on Counts 1 and 6 before she is eligible for parole.
  2. See Spuehler v. State, 1985 OK CR 132, ¶ 7, 709 P.2d 202, 203-204.
  3. Cf. Patton v. State, 1998 OK CR 66, ¶ 42, 973 P.2d 270, 287.
  4. Instruction No. 5-97, OUJI-CR(2d); 21 O.S.2011, § 1723; Ex Parte Wright, 1941 OK CR 157, 119 P.2d 97, 98-99.
  5. See e.g., People v. Jamieson, 88 A.D.3d 1298, 1298-1299 (N.Y. App. Div. 2011); Davis v. State, 804 So.2d 1153, 1158-1160 (Ala.Crim.App. 2000).
  6. 12 O.S.2011, § 2801(B)(2)(a).
  7. 12 O.S. 2011, § 2801(A)(1).
  8. See Romano v. State, 1995 OK CR 74, ¶ 8, 909 P.2d 92, 107; Mayes v. State, 1994 OK CR 44, ¶ 65, 887 P.2d 1288, 1307.
  9. See Hogan v. State, 2006 OK CR 19, ¶ 39, 139 P.3d 907, 923.
  10. Young v. State, 2000 OK CR 17, ¶ 49, 12 P.3d 20, 37.
  11. Coddington v. State, 2006 OK CR 34, ¶ 52, 142 P.3d 437, 451.
  12. Title 12 O.S.2011, § 2404(A).
  13. Instruction No. 4-37, OUJI-CR(2d); see also 21 O.S.Supp.2010, § 843.5(C).
  14. See e.g., Andrew v. State, 2007 OK CR 23, ¶ 58, 164 P.3d 176, 193; Black v. State, 2001 OK CR 5, ¶ 49, 21 P.3d 1047, 1067; Darks v. State, 1998 OK CR 15, ¶ 14, 954 P.2d 152, 158.
  15. Title 21 O.S.2001, § 11.
  16. Logsdon v. State, 2010 OK CR 7, ¶ 15, 231 P.3d 1156, 1164.
  17. Head v. State, 2006 OK CR 44, ¶ 11, 146 P.3d 1141, 1144; see also Davis v. State, 1999 OK CR 48, ¶ 13, 993 P.2d 124, 126.
  18. Jones v. State, 2006 OK CR 5, ¶ 63, 128 P.3d 521, 543.
  19. Section 11 provides in relevant part that: [A]n act or omission which is made punishable in different ways by different provisions of this title may be punished under any such provisions, but in no case can a criminal act or omission be punished under more than one section of law; and an acquittal or conviction and sentence under one section of law, bars the prosecution for the same act or omission under any other section of law.
  20. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Alverson v. State, 1999 OK CR 21, ¶ 26, 983 P.2d 498, 510.
  21. Strickland, 466 U.S. at 693, 104 S.Ct. at 2067.
  22. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.
  23. Bland v. State, 2000 OK CR 11, ¶ 113, 4 P.3d 702, 731.
  24. Marshall v. State, 2010 OK CR 8, ¶ 67, 232 P.3d 467, 482.
  25. Jones v. State, 2009 OK CR 1, ¶ 104, 201 P.3d 869, 894; DeRosa v. State, 2004 OK CR 19, ¶ 100, 89 P.3d 1124, 1157.

Oklahoma Statutes citations:

  • Okla. Stat. tit. 21 § 701.8 - Second Degree Murder
  • Okla. Stat. tit. 21 § 800 - Robbery Committed by Two or More Persons
  • Okla. Stat. tit. 21 § 421 - Conspiracy to Commit Robbery
  • Okla. Stat. tit. 21 § 843.5 - Child Neglect
  • Okla. Stat. tit. 21 § 11 - Prohibition of Multiple Punishments
  • Okla. Stat. tit. 12 § 2404 - Admissibility of Character Evidence
  • Okla. Stat. tit. 12 § 2801 - Hearsay Definitions
  • Okla. Stat. tit. 21 § 843.5(C) - Child Neglect (Supp. 2009)

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:

  • Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-204
  • Patton v. State, 1998 OK CR 66, I 42, 973 P.2d 270, 287
  • Lott v. State, 2004 OK CR 27, I 70, 98 P.3d 318, 340
  • Romano v. State, 1995 OK CR 74, I 8, 909 P.2d 92, 107
  • Mayes v. State, 1994 OK CR 44, I 65, 887 P.2d 1288, 1307
  • Hogan v. State, 2006 OK CR 19, I 39, 139 P.3d 907, 923
  • Young v. State, 2000 OK CR 17, I 49, 12 P.3d 20, 37
  • Coddington v. State, 2006 OK CR 34, I 52, 142 P.3d 437, 451
  • Head v. State, 2006 OK CR 44, I 11, 146 P.3d 1141, 1144
  • Davis v. State, 1999 OK CR 48, I 13, 993 P.2d 124, 126
  • Jones v. State, 2006 OK CR 5, I 63, 128 P.3d 521, 543
  • Marshall v. State, 2010 OK CR 8, I 67, 232 P.3d 467, 482
  • Bland v. State, 2000 OK CR 11, I 113, 4 P.3d 702, 731
  • DeRosa v. State, 2004 OK CR 19, I 100, 89 P.3d 1124, 1157

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