Johnny Lee Ingram v State Of Oklahoma

F-2015-1007

Filed: Jun. 8, 2017

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Johnny Lee Ingram appealed his conviction for Assault and Battery with a Deadly Weapon. Conviction and sentence were 25 years in prison and a $10,000 fine. Judge James M. Caputo sentenced him. Ingram had several claims, including that the trial court made mistakes when answering jury questions, that the prosecutor behaved unfairly, and that his lawyer didn't help him enough. The higher court found that the trial court did make an important mistake in how it answered the jury's questions, which likely caused confusion in their decision. Because of this, the court decided to reverse Ingram's conviction and ordered a new trial. Judge Lumpkin disagreed with this decision.

Decision

The Judgment and Sentence of the district court is REVERSED and REMANDED for NEW TRIAL. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2017), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Issues

• Was there plain error in the trial court's response to a jury question regarding instruction related to principals to a crime?
• Did prosecutorial misconduct deprive Appellant of a fair trial and fair sentencing proceeding?
• Was Appellant deprived of effective assistance of counsel?
• Did cumulative error deprive Appellant of a fair trial?

Findings

• the court erred in its response to a jury question regarding Instruction 22 relating to principals to a crime
• prosecutorial misconduct did not deprive Appellant of a fair trial and fair sentencing proceeding
• Appellant was not deprived of effective assistance of counsel
• cumulative error did not deprive Appellant of a fair trial
• The Judgment and Sentence of the district court is REVERSED and REMANDED for NEW TRIAL

F-2015-1007

Jun. 8, 2017

Johnny Lee Ingram

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

Appellant Johnny Lee Ingram was tried by a jury in the District Court of Tulsa County, Case No. CF-2015-340, for the crime of Count 1: Assault and Battery with a Deadly Weapon, After Former Conviction of Two or More Felonies, in violation of 21 O.S.2011, § 652; and Count 2: Possession of a Firearm, After Former Conviction of a Felony, in violation of 21 D.S.Supp.2014, § 1283. The jury convicted Ingram of Count 1 and recommended he serve twenty-five (25) years imprisonment and be fined $10,000.00. The jury acquitted Ingram of Count 2. The Honorable James M. Caputo, District Judge, sentenced Appellant in accordance with the jury’s verdict.¹ Ingram now appeals. Appellant alleges four propositions of error on appeal:

I. THE TRIAL COURT COMMITTED PLAIN ERROR IN ITS RESPONSE TO A JURY QUESTION REGARDING INSTRUCTION 22 RELATING TO PRINCIPALS TO A CRIME; ¹ Appellant must serve at least 85% of his sentence before parole eligibility. 21 O.S.Supp.2014, § 13.1(5).

II. PROSECUTORIAL MISCONDUCT DEPRIVED APPELLANT OF A FAIR TRIAL AND FAIR SENTENCING PROCEEDING;

III. APPELLANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL; and

IV. CUMULATIVE ERROR DEPRIVED APPELLANT OF A FAIR TRIAL.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, exhibits and the parties’ briefs, we find Proposition I has merit and that the case must be REVERSED and the matter REMANDED for NEW TRIAL. We find in Proposition I that the trial court failed to sufficiently answer the jury’s questions concerning Instruction 22—the uniform instruction defining principals and aiding and abetting. See OUJI-CR (2d) 2-6. And, as a result of such error, there is a reasonable likelihood the jury misapplied the instruction in reaching their guilty verdict.

Jury deliberations in the case began at 10:10 a.m. on October 22, 2015. At 2:42 p.m. the jury sent out the following question: Instruction 22: Does criminal intent or commission of a crime refer strictly to the case at hand or any crime committed? (Emphasis added). With the approval of the parties, the trial court responded: Please refer to Instruction 23 for guidance. All of your instructions are applicable to this case. You have all the information necessary to complete your deliberations. Good luck in your deliberations. The jury returned to its deliberations only to send out a second question regarding Instruction 22 just 11 minutes later asking: Does the admission that he was there to commit a crime not listed in the current charges make him principle (sic) to the charged crime if he is deemed to not have prior knowledge of the crime charged? (Emphasis added). With the parties’ approval, the trial court responded: You have all the information necessary to complete your deliberations. Approximately an hour later at 4:22 p.m., the jury sent out a third question reporting the jury was unanimous on Count 1 but hung on Count 2 and inquiring about their options. In response, the trial court gave the Allen² instruction—which comported with OUJI-CR (2d) 10-11—to the jury in open court. The jury later returned with its guilty verdict on Count 1—Assault and Battery with a Deadly Weapon—and not guilty verdict on Count 2—Possession of a Firearm, After Former Conviction of a Felony.

As Appellant did not object to Instruction 22 or the Court’s proposed responses to the jury’s questions, he has waived all but plain error review on appeal. Cannon v. State, 1998 OK CR 28, 9 34, 961 P.2d 838, 849. Under the plain error test, an appellant must show an actual error, that is plain or obvious, affecting his substantial rights. Jackson U. State, 2016 OK CR 5, I 4, 371 P.3d 1120, 1121. This Court will only correct plain error if the error seriously affects the fairness, integrity or public reputation of the judicial proceedings or otherwise represents a miscarriage of justice. Id.; Stewart U. State, 2016 OK CR 9, I 12, 372 P.3d 508, 511.

Whether a trial court answers a jury question is, of course, left to the trial court’s broad discretion. Smallwood U. State, 1995 OK CR 60, 99 83-84, ² See Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896). 3 907 P.2d 217, 238; Boling v. State, 1979 OK CR 11, I 4, 589 P.2d 1089, 1091; see also 22 O.S.2011, § 894 (allowing for additional instruction during deliberations if there be a disagreement between the jurors as to any part of the testimony or if they desire to be informed on a point of law arising in the cause[.]).

In the present case, while Instruction 22 in and of itself accurately stated the applicable law and is seemingly unambiguous, the record clearly demonstrates that the jury nonetheless found the instruction to be unclear or confusing. The jury’s second question in particular demanded additional legal guidance and clarification. When a jury makes explicit its difficulties a trial judge should clear them away with concrete accuracy. Bollenbach U. United States, 326 U.S. 607, 612-13, 66 S. Ct. 402, 405, 90 L. Ed. 350 (1946). Unfortunately, the trial court’s responses to the jury’s questions in this case did not adequately rectify the jury’s confusion. The trial court’s response to the jury’s first question—referring the jury to Instruction 23 defining criminal intent pursuant to OUJI-CR 2-9—likely added to jury’s confusion and failed to address the jury’s questions.

Moreover, the trial court’s response to the jury’s second question offered no discernible guidance or direction despite the jury’s readily apparent and alarming confusion. To clear away the jury’s confusion here, a supplemental instruction to the jury simply advising that an admission to a crime not listed in the current charges could not be utilized to convict Appellant was needed. Thus, the trial court’s responses to the jury’s questions did not sufficiently clarify Instruction 22 for the jury.

In SO finding, we caution that our decision in no way should be read to say that trial judges are required to answer all jury questions with the specificity needed here. Rather, this case presents an extremely unique set of circumstances the likes of which will rarely occur. We must next determine whether this failure resulted in a reasonable likelihood that the jury misapplied Instruction 22. See Waddington v. Sarausad, 555 U.S. 179, 190-91, 129 S. Ct. 823, 831, 172 L.Ed.2d 532 (2009) (to show a federal constitutional error due to an ambiguous jury instruction, a defendant must show (1) the instruction was ambiguous; and (2) there was a reasonable likelihood the jury applied the instruction in a way that relieved the State of its burden of proving every element of the crime beyond a reasonable doubt); Boyde v. California, 494 U.S. 370, 380, 110 S. Ct. 1190, 1198, 108 L. Ed. 2d 316 (1990) (proper inquiry for claim that an instruction is ambiguous and thus subject to an erroneous interpretation is whether there is a reasonable likelihood that the jury has misapplied the challenged instruction in an unconstitutional manner); Williams U. State, 2001 OK CR 9, II 75-78, 22 P.2d 702, 721-22 (applying the reasonable likelihood standard to determine whether jurors misinterpreted the trial court’s instructions).

Although it is conceivable that the jury’s guilty verdict may have had a proper basis, due to the jury’s undeniable confusion we cannot ignore the reasonable likelihood that their verdict rested on a misapplication of Instruction 22.

The jury was clearly confused and struggling to reconcile the State’s evidence with Appellant’s testimony.³ As noted above, following the jury’s second question, the jury reported that they were unanimous on Count 1 but hung on Count 2. The trial court instructed the jury pursuant to OUJI-CR 10-11 (Allen Charge), and approximately an hour later the jury returned a not guilty verdict on Count 2—Possession of a Firearm AFCF. Based on this verdict, it is only logical to conclude that the jury determined Appellant was not in possession of a gun that night, and hence, was not the shooter. Thus, to find Appellant guilty of Count 1—Assault and Battery with a Deadly Weapon—the jury had to find Appellant was a principal to the crime pursuant to Instruction 22. In light of the jury’s clear and unresolved confusion regarding Instruction 22, there is a reasonable likelihood that one or more of the jurors determined Appellant was a principal based solely upon his admission that he was at victim’s house that night to purchase methamphetamine.

Thus, we find plain error occurred.

DECISION

The Judgment and Sentence of the district court is REVERSED and REMANDED for NEW TRIAL. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2017), the MANDATE is ORDERED issued upon delivery and filing of this decision.

AN APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY

THE HONORABLE JAMES M. CAPUTO, DISTRICT JUDGE

APPEARANCES AT TRIAL

APPEARANCES ON APPEAL

RYAN McDONALD RICHARD COUCH TARA JACK

ASSISTANT PUBLIC DEFENDER ASSISTANT PUBLIC DEFENDERS

423 SOUTH BOULDER, SUITE 300 423 SOUTH BOULDER, SUITE 300

TULSA, OK 74103 TULSA, OK 74103

COUNSEL FOR APPELLANT COUNSEL FOR DEFENDANT

HEATHER ANDERSON E. SCOTT PRUITT

ASSISTANT DISTRICT ATTORNEY OKLAHOMA ATTORNEY GENERAL

TULSA COUNTY COURTHOUSE LORI S. CARTER

500 SOUTH DENVER ASSISTANT ATTORNEY GENERAL

TULSA, OK 74103 313 N.E. 21ST STREET

COUNSEL FOR THE STATE OKLAHOMA CITY, OK 73105

COUNSEL FOR APPELLEE

OPINION BY: HUDSON, J.

LUMPKIN, P.J.: DISSENTS

LEWIS, V.P.J.: CONCUR IN RESULTS

JOHNSON, J.: NOT PARTICIPATING

SMITH, J.: CONCUR

5

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Footnotes:

1. Appellant must serve at least 85% of his sentence before parole eligibility. 21 O.S.Supp.2014, § 13.1(5).
2. See OUJI-CR (2d) 2-6.
3. See Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896).
4. See OUJI-CR 2-9.
5. See Waddington v. Sarausad, 555 U.S. 179, 190-91, 129 S. Ct. 823, 831, 172 L.Ed.2d 532 (2009).
6. See Boyde v. California, 494 U.S. 370, 380, 110 S. Ct. 1190, 1198, 108 L. Ed. 2d 316 (1990).
7. See Williams v. State, 2001 OK CR 9, II 75-78, 22 P.2d 702, 721-22.
8. See Bollenbach v. United States, 326 U.S. 607, 612-13, 66 S. Ct. 402, 405, 90 L. Ed. 350 (1946).
9. See Smith v. State, 2013 OK CR 14, I 38, 306 P.3d 557, 571.
10. See Gray v. State, 1982 OK CR 137, I 20, 650 P.2d 880, 884.
11. See Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 190, 76 L.Ed. 356 (1932).

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 652 (2011) - Assault and Battery with a Deadly Weapon
• Okla. Stat. tit. 21 § 1283 (2014) - Possession of a Firearm, After Former Conviction of a Felony
• Okla. Stat. tit. 21 § 13.1 (2014) - Sentencing
• Okla. Stat. tit. 22 § 894 (2011) - Additional instructions during deliberations

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

• 18 U.S.C. § 924 - Firearms

Other citations:

No other rule citations found.

Case citations:

• Cannon v. State, 1998 OK CR 28, I 34, 961 P.2d 838, 849
• Jackson v. State, 2016 OK CR 5, I 4, 371 P.3d 1120, 1121
• Stewart v. State, 2016 OK CR 9, I 12, 372 P.3d 508, 511
• Smallwood v. State, 1995 OK CR 60, I 83-84, 907 P.2d 217, 238
• Boling v. State, 1979 OK CR 11, I 4, 589 P.2d 1089, 1091
• Waddington v. Sarausad, 555 U.S. 179, 190-91, 129 S. Ct. 823, 831, 172 L.Ed.2d 532
• Boyde v. California, 494 U.S. 370, 380, 110 S. Ct. 1190, 1198, 108 L. Ed. 2d 316
• Williams v. State, 2001 OK CR 9, II 75-78, 22 P.2d 702, 721-22
• Bollenbach v. United States, 326 U.S. 607, 612-13, 66 S. Ct. 402, 405, 90 L. Ed. 350
• Smith v. State, 2013 OK CR 14, I 38, 306 P.3d 557, 571
• Tollett v. State, 2016 OK CR 15, I 4, 387 P.3d 915, 916
• Gray v. State, 1982 OK CR 137, I 20, 650 P.2d 880, 884
• Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 190, 76 L.Ed. 356