Omar Sharrod Pollard v The State Of Oklahoma

F-2012-732

Filed: Feb. 26, 2014

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Omar Sharrod Pollard appealed his conviction for Unlawful Distribution of a Controlled Dangerous Substance (crack cocaine). His conviction and sentence were for forty years in prison. Judge Clark Huey sentenced Pollard. The court ruled that he was not denied a fair trial, but it did decide to change his sentence to 25 years due to some errors made during the trial regarding his past convictions. The case involved issues about how his previous felonies were shared with the jury, and how this may have affected their decision on his sentence. Judge C. Johnson disagreed with the final opinion.

Decision

The Judgment of the district court is AFFIRMED. Pollard's sentence is MODIFIED to 25 years imprisonment. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2014), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Issues

• whether he was deprived of a fair trial by the admission of multiple felonies from the same transaction for sentence enhancement
• whether prosecutorial misconduct deprived him of a fair trial
• whether ineffective assistance of counsel deprived him of a fair sentencing proceeding
• whether information about suspended sentences and pardon and parole deprived him of a fair sentence and must result in modification
• whether the evidence is sufficient to support his conviction
• whether his sentence is excessive
• whether cumulative error deprived him of a fair trial

Findings

• the court erred regarding the admission of multiple felonies from the same transaction for sentence enhancement
• the court erred regarding prosecutorial misconduct
• the court did not find ineffective assistance of counsel
• the court did not find that information about suspended sentences and pardon and parole deprived him of a fair sentence
• evidence was sufficient to support his conviction
• the sentence was excessive but modified to a lesser term
• cumulative error did not deprive him of a fair trial

F-2012-732

Feb. 26, 2014

Omar Sharrod Pollard

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

Appellant Omar Sharrod Pollard was tried by jury and convicted in the District Court of Jackson County, Case No. CF-2011-165, of Unlawful Distribution of a Controlled Dangerous Substance (crack cocaine), After Former Conviction of Two Felonies in violation of 63 O.S.2011, § 2-401. The jury fixed punishment at forty years imprisonment. The Honorable Clark Huey, who presided at trial, sentenced Pollard accordingly. From this Judgment and Sentence Pollard appeals, raising the following issues: (1) whether he was deprived of a fair trial by the admission of multiple felonies from the same transaction for sentence enhancement; (2) whether prosecutorial misconduct deprived him of a fair trial; (3) whether ineffective assistance of counsel deprived him of a fair sentencing proceeding; (4) whether information about suspended sentences and pardon and parole deprived him of a fair sentence and must result in modification; (5) whether the evidence is sufficient to support his conviction; (6) whether his sentence is excessive; and (7) whether cumulative error deprived him of a fair trial. We find reversal is not required and affirm the Judgment of the District Court. Modification of Pollard’s sentence, however, is required for the reasons discussed below.

This case involves three major issues, two dealing with sentencing and one challenging the sufficiency of the evidence. The combination of two plain errors related to the sentencing stage of trial warrants brief discussion and relief.¹ The State sought to enhance Pollard’s sentence based on two prior felony convictions. The second page of the information alleged one prior conviction for second degree burglary and another prior conviction consisting of nine counts of various sex offenses that arose out of a single transaction.² The prosecutor read the supplemental information at the beginning of second stage and listed all nine counts of the second conviction alleged for sentence enhancement. Defense counsel stipulated to the convictions as read and did not object to the introduction of the Judgment and Sentence (State’s Exhibit 11) reflecting the nine counts arising out of the same transaction.

During closing argument, the prosecutor asked the jury to assess punishment considering that the Defendant has two prior felony convictions, one of those being convicted of nine counts. Defense counsel asked the jury to consider in its sentencing deliberations the light sentence received by the informant in this case for selling cocaine. The prosecutor responded that it was the informant’s first offense. He went on to say concerning Pollard’s record, [s]o you can either look at it as, like strike three or like strike eleven if you want to count each count. It was error to admit State’s Exhibit 11 showing more than one conviction arising out of a single transaction and to include that information in opening statement and closing argument.

The supplemental information also stated that the five year sentence imposed for Pollard’s conviction for second degree burglary was all suspended and that the twenty year sentence imposed on each of the nine felonies arising out of the same transaction was suspended except for the first two and one half years. The prosecutor read the supplemental information, including the information about the suspended sentences, to the jury at the beginning of second stage. The information that these sentences were entirely or partially suspended was included on the Judgment and Sentence exhibits admitted as State’s Exhibits 10 and 11. It was error to tell the jury about the suspension of Pollard’s sentences in opening statement of the punishment phase of trial and to include that information on the Judgment and Sentence exhibits.

We reject the State’s contention that Pollard suffered no prejudice from these errors. The felonies arising from the same transaction were for nine serious and violent sex offenses of which Pollard was required to serve only a fraction of the sentence imposed. The prosecutor twice highlighted the number of counts during closing argument. And the jury imposed punishment well beyond the prosecutor’s request of at least 20 years. It flies in the face of common sense to conclude the jury’s sentence was not adversely influenced by the admission of the number of counts arising from the same transaction or the suspended nature of the sentences received by Pollard for those convictions. Modification of Pollard’s sentence is appropriate.

DECISION

The Judgment of the district court is AFFIRMED. Pollard’s sentence is MODIFIED to 25 years imprisonment. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2014), the MANDATE is ORDERED issued upon delivery and filing of this decision.

AN APPEAL FROM THE DISTRICT COURT OF JACKSON COUNTY THE HONORABLE CLARK HUEY, ASSOCIATE DISTRICT JUDGE

APPEARANCES AT TRIAL
ELAINA CARPENTER
ATTORNEY AT LAW
OKLAHOMA INDIGENT DEFENSE SYSTEM
P.O. BOX 313
MANGUM, OK 73554
ATTORNEY FOR DEFENDANT

APPEARANCES ON APPEAL
LISBETH L. MCCARTY
P. O. BOX 926
NORMAN, OK 73030
ATTORNEY FOR APPELLANT

KEN DARBY
E. SCOTT PRUITT
ASSISTANT DISTRICT ATTORNEY
OKLAHOMA ATTORNEY GENERAL
JACKSON COUNTY COURTHOUSE
ALTUS, OK 73521

JENNIFER B. WELCH
FIRST FLOOR
ASSISTANT ATTORNEY GENERAL
313 N.E. 21ST STREET
OKLAHOMA CITY, OK 73105
ATTORNEY FOR STATE

OPINION BY: A. JOHNSON, J.
LEWIS, P.J.: Concur
SMITH, V.P.J.: Concur
LUMPKIN, J.: Concur in Results
C. JOHNSON, J.: Concur

RB 5

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Footnotes:

1. ¹ See Hogan v. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923.
2. ² Pollard was convicted of five counts of rape by instrumentation, three counts of forcible sodomy and one count of first degree rape in the District Court of Jackson County, Case No. CF-2008-256.
3. ³ See Miller v. State, 1984 OK CR 33, I 9, 675 P.2d 453, 455.
4. 4 See Hunter V. State, 2009 OK CR 17, II 9-10, 208 P.3d 931, 933-34.
5. Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2014).

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-401 (2011) - Unlawful Distribution of a Controlled Dangerous Substance
• Okla. Stat. tit. 21 § 701.8 (2011) - Sentencing of convicted felons
• Okla. Stat. tit. 22 § 918 (2011) - Introduction of prior convictions
• Okla. Stat. tit. 22 § 1054 (2011) - Closing arguments
• Okla. Stat. tit. 22 § 1111 (2011) - Jury instructions regarding prior convictions
• Okla. Stat. tit. 22 § 1050 (2011) - Prejudicial error in trial

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:

• Hogan v. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923
• 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
• Miller v. State, 1984 OK CR 33, I 9, 675 P.2d 453, 455
• Hunter v. State, 2009 OK CR 17, II 9-10, 208 P.3d 931, 933-34