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F-2013-137

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Antonio Catalino Myrie v The State Of Oklahoma

F-2013-137

Filed: May 7, 2014

Not for publication

Prevailing Party: Antonio Catalino Myrie

Summary

Antonio Catalino Myrie appealed his conviction for burglary in the second degree. His conviction and sentence are 35 years in prison and a $10,000 fine. Judge Lewis wrote the opinion, and Judge Smith dissented in part.

Decision

The Judgment and Sentence of the District Court of Tulsa County of thirty-five (35) years imprisonment is AFFIRMED. The fine of $10,000.00 is VACATED. Pursuant to Rule 3.15, Rules of the Court of Criminal Appeals, Title 22, Ch. 18, App. (2014), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

  • Was there an abuse of discretion in denying Appellant's motion to suppress the State's DNA evidence?
  • Did the trial court err in denying Appellant's motion for a continuance?
  • Should the trial court have declared a mistrial sua sponte?
  • Did the State introduce inadmissible hearsay that denied Appellant a fair trial?
  • Was the $10,000 fine assessed against Appellant the result of an erroneous jury instruction?
  • Did prosecutorial misconduct constitute fundamental error and deprive Appellant of a fair penalty phase of trial?
  • Is Appellant's 35-year sentence excessive and shocking to the conscience?
  • Did the cumulative effect of errors deprive Appellant of a fair trial?

Findings

  • the court did not err in denying the motion to suppress the State's DNA evidence
  • the court did not err in denying the motion for a continuance
  • the court did not err in failing to declare a mistrial sua sponte
  • the court did not err in admitting hearsay evidence
  • the court erred in instructing the jury regarding the fine, resulting in the fine being vacated
  • the court did not err in denying claims of prosecutorial misconduct
  • the sentence of thirty-five years is not excessive
  • the cumulative effect of errors did not deprive Mr. Myrie of a fair trial

F-2013-137

May 7, 2014

Antonio Catalino Myrie

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

MICHAEL S. RICHIE LEWIS, PRESIDING JUDGE:

Antonio Catalino Myrie, Appellant, was tried by jury and found guilty of burglary in the second degree, in violation of 21 O.S.2001, § 1435, in the District Court of Tulsa County, Case No. CF-2008-6224. The jury sentenced Appellant to thirty-five (35) years imprisonment and a $10,000.00 fine. The Honorable William Kellough, District Judge, sentenced Appellant accordingly. Mr. Myrie appeals in the following propositions of error:

1. The trial court abused its discretion in denying Appellant’s motion to suppress the State’s DNA evidence. This error denied Mr. Myrie his right to a fair trial and warrants relief;

2. The trial court’s denial of Appellant’s motion for a continuance in the instant case constitutes an abuse of discretion and reversible error;

3. The trial court’s failure to declare mistrial sua sponte in the instant case constitutes an abuse of discretion and reversible error;

4. The State’s introduction of inadmissible hearsay denied Mr. Myrie his right to a fair trial and warrants relief;

5. The $10,000 fine assessed against Mr. Myrie was the result of an erroneous jury instruction. Therefore the Court should vacate or favorably modify the fine;

6. Prosecutorial misconduct constituted fundamental error and deprived Mr. Myrie of a fair penalty phase of trial;

7. Appellant’s 35-year sentence is excessive and should shock the conscience of this Court. Thus, this Court should grant relief to Mr. Myrie in the form of a favorable sentence modification;

8. The cumulative effect of all these errors deprived Mr. Myrie of a fair trial and warrants relief.

Propositions One, Two, and Three raise related challenges to the trial court’s refusal to: (1) suppress the State’s DNA evidence; (2) grant Appellant a continuance to re-test certain DNA evidence originally believed to be lost; and (3) declare a mistrial so the DNA evidence, discovered just before trial, could be re-tested. We review the trial court’s decisions to admit or exclude evidence and grant or deny a continuance for abuse of discretion. Hancock v. State, 2007 OK CR 9, 9 72, 155 P.3d 796, 813; Douglas v. State, 1997 OK CR 79, I 56, 951 P.2d 651, 669. Appellant made no request for a mistrial, limiting our review of Proposition Three to plain error. Simpson v. State, 1994 OK CR 40, I 2, 876 P.2d 690, 692.

An abuse of discretion is a clearly erroneous conclusion and judgment, one that is clearly against the logic and effect of the facts presented. C.L.F. v. State, 1999 OK CR 12, 1 5, 989 P.2d 945, 946. Appellant has not shown that the trial court’s denial of his motions to suppress the DNA evidence or delay the trial was clearly erroneous, or that he suffered any prejudice from the denial of this chance to further test the DNA. The jury’s acquittal of the charge of setting a fire inside the building indicates it had a reasonable doubt that Appellant entered the building; and convicted him instead on evidence that he drove an accomplice to the scene intending to aid and abet the burglary. A new DNA test would not alter these facts, or make an acquittal of burglary reasonably probable even with a favorable DNA test, which is purely speculation. Rojem v. State, 2006 OK CR 7, 25-26, 130 P.3d 287, 293-94 (finding no prejudice where further DNA testing would not produce exculpatory result and outcome of further testing was speculative). Propositions One, Two, and Three are denied.

In Proposition Four, Appellant argues that the trial court admitted improper hearsay testimony identifying Appellant’s friend, Ton Ramon, as a former employee of the Name Brand Clothing Store; a fact which, along with Appellant’s statements, was incriminating. We review the admission of this evidence for abuse of discretion. Appellant did not object to earlier testimony connecting Ramon to Name Brand Clothing, and the challenged testimony, if hearsay, was merely cumulative. Proposition Four is denied.

In Proposition Five, Appellant argues that the trial court erred by instructing the jury that the punishment for burglary, after two or more prior convictions, was imprisonment in the State penitentiary for a term of from six years to life and a fine of up to $10,000. Because counsel failed to object to the instructions, we review only for plain error. To obtain relief for plain error, a defendant must show: (1) an actual error; (2) that is plain or obvious; (3) affected the outcome of the proceeding. Hogan v. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923. The State agrees that this instruction indicated a fine was mandatory when the fine was optional, resulting in plain error. We have consistently vacated the fine under these circumstances in recent unpublished decisions, and will do so here. Proposition Five is granted.

Appellant’s Proposition Six argues that prosecutorial misconduct denied a fair penalty phase of trial. Counsel failed to object to the alleged instances of misconduct, waiving all but plain error, as defined above. Simpson v. State, 1994 OK CR 40, II 2, 876 P.2d 690, 693. The decision to correct plain error lies within the sound discretion of the Court, to be exercised only where the error seriously affects the fairness, integrity or public reputation of judicial proceedings. Id., 1994 OK CR 40, I 30, 876 P.2d at 700-701. Without objection, the State presented evidence of seven (7) prior felony convictions dated between 1999 and 2005, with sentences totaling approximately twenty-nine (29) years. Three of the State’s exhibits specifically referred to suspended sentences. The prosecutor also referenced the number and length of these prior sentences in closing argument, and without explicit mention of probation or parole, made several references to Appellant being released before the expiration of those sentences. We condemned this type of evidence and argument as plain error in very similar circumstances in Hunter v. State, 2009 OK CR 17, 208 P.3d 931. The State concedes that the un-redacted exhibits and the prosecutor’s comments run afoul of Hunter but argues no relief is warranted. We agree. Evidence of Appellant’s seven (7) prior convictions in the decade preceding his arrest for this crime, including a ten (10) year prison sentence marked all time in custody received in 2005, made it obvious that he had not served his entire sentences before committing a new crime. We find the number and type of convictions sustained, rather than improper emphasis on probation or parole policy as such, explain the jury’s thirty-five (35) year sentence, where the maximum sentence was life imprisonment. Because the sentence was not unfairly increased by references to probation or parole policy, we conclude the errors did not seriously affect the fairness, integrity or public reputation of judicial proceedings. Simpson, 1994 OK CR 40, I 30, 876 P.2d at 700-701. Proposition Six is therefore denied.

In Proposition Seven, Appellant argues that his thirty-five (35) year sentence is shocking to the conscience. We find the sentence is within the statutory range of punishment and reasonable in light of Appellant’s prior criminal history. No relief is warranted. Rea v. State, 2001 OK CR 28, I 5, 34 5 P.3d 148, 149 (shock the conscience is appropriate standard for review of excessiveness of sentence).

In Proposition Eight, Appellant seeks relief due to cumulative error. We vacated the fine imposed under an improper instruction, and found no relief was warranted for the violations of Hunter v. State. We find no accumulation of error unfairly prejudiced Appellant’s trial or sentencing. Parker v. State, 2009 OK CR 23, I 28, 216 P.3d 841, 849. This proposition is denied.

DECISION

The Judgment and Sentence of the District Court of Tulsa County of thirty-five (35) years imprisonment is AFFIRMED. The fine of $10,000.00 is VACATED. Pursuant to Rule 3.15, Rules of the Court of Criminal Appeals, Title 22, Ch. 18, App. (2014), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

  1. Okla. Stat. tit. 21 § 1435
  2. Hancock v. State, 2007 OK CR 9, 155 P.3d 796
  3. Douglas v. State, 1997 OK CR 79, 951 P.2d 651
  4. Simpson v. State, 1994 OK CR 40, 876 P.2d 690
  5. C.L.F. v. State, 1999 OK CR 12, 989 P.2d 945
  6. Rojem v. State, 2006 OK CR 7, 130 P.3d 287
  7. Hogan v. State, 2006 OK CR 19, 139 P.3d 907
  8. Hunter v. State, 2009 OK CR 17, 208 P.3d 931
  9. Mathis v. State, 2012 OK CR 1, 271 P.3d 67
  10. Barnard v. State, 2012 OK CR 15, 290 P.3d 759

Oklahoma Statutes citations:

  • Okla. Stat. tit. 21 § 1435 (2001) - Burglary in the second degree
  • Okla. Stat. tit. 21 § 701.8 (2011) - Sentencing for certain crimes
  • Okla. Stat. tit. 22 § 3.15 (2014) - Mandate upon decision
  • Okla. Stat. tit. 22 § 18 (2014) - Rules of the Court of Criminal Appeals
  • Okla. Stat. tit. 21 § 14 (2011) - Definitions related to criminal law

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:

  • Hancock v. State, 2007 OK CR 9, I 72, 155 P.3d 796, 813
  • Douglas v. State, 1997 OK CR 79, I 56, 951 P.2d 651, 669
  • Simpson v. State, 1994 OK CR 40, I 2, 876 P.2d 690, 692
  • C.L.F. v. State, 1999 OK CR 12, I 5, 989 P.2d 945, 946
  • Rojem v. State, 2006 OK CR 7, 25-26, 130 P.3d 287, 293-94
  • Hogan v. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923
  • Hunter v. State, 2009 OK CR 17, 208 P.3d 931
  • Rea v. State, 2001 OK CR 28, I 5, 345 P.3d 148, 149
  • Parker v. State, 2009 OK CR 23, I 28, 216 P.3d 841, 849
  • Mathis v. State, 2012 OK CR 1, I 31, 271 P.3d 67, 78
  • Barnard v. State, 2012 OK CR 15, I 13, 290 P.3d 759, 764

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