Tucker Ryan McGee v The State Of Oklahoma

F-2015-393

Filed: Dec. 2, 2016

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Tucker Ryan McGee appealed his conviction for First Degree Malice Aforethought Murder. The conviction was affirmed, and he was originally sentenced to life imprisonment without the possibility of parole. The court later vacated this sentence and sent the case back for re-sentencing. Judge Lumpkin dissented on the decision to vacate the sentence.

Decision

The Judgment of the district court is AFFIRMED. The sentence of life without the possibility of parole is VACATED and the matter REMANDED to the district court for re-sentencing.

Issues

• whether the district court erred in giving a non-uniform instruction on First Degree Manslaughter and failing to instruct the jury on the lesser included offense of Second Degree Depraved Mind Murder;
• whether the district court erred by submitting a flight instruction;
• whether the district court erred by failing to provide the jury with a verdict form for the lesser included offense of First Degree Manslaughter;
• whether the district court erred in submitting the State's requested non-uniform instruction on the defense of voluntary intoxication;
• whether the district court erred by failing to give the Oklahoma uniform jury instruction on reenactments;
• whether he was deprived of a fair trial by the admission of irrelevant and prejudicial evidence;
• whether prosecutorial misconduct deprived him of a fair trial;
• whether the district court erred by excluding impeachment evidence of bias;
• whether the district court erred by failing to remove a juror for cause;
• whether he was deprived of a fair trial because grand jury counsel had an actual conflict of interest;
• whether he received effective assistance of counsel;
• whether cumulative error deprived him of a fair trial;
• whether his sentence of life without the possibility of parole is unconstitutional.

Findings

• the court did not err in giving a non-uniform instruction on First Degree Manslaughter and the request for a lesser included offense instruction on Second Degree Depraved Mind Murder was denied
• the court did not err by submitting a flight instruction, and any potential error did not require relief
• the court's failure to provide a verdict form for a lesser offense did not harm McGee's case
• the court did not err in submitting the State's requested non-uniform instruction on voluntary intoxication
• the court's failure to provide a jury instruction on reenactments did not constitute error
• the admission of evidence did not deny McGee a fair trial
• prosecutorial misconduct did not deprive McGee of a fair trial
• the court did not err by excluding impeachment evidence of bias
• the court did not err by failing to remove a juror for cause
• the claim of actual conflict of interest related to grand jury counsel was denied
• McGee did not receive ineffective assistance of counsel
• cumulative error did not deprive McGee of a fair trial
• McGee's sentence of life without the possibility of parole was found unconstitutional and is to be vacated and remanded for re-sentencing

F-2015-393

Dec. 2, 2016

Tucker Ryan McGee

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

JOHNSON, JUDGE:

Appellant Tucker Ryan McGee was tried by jury in the District Court of Custer County, Case No. CF-2013-440, and convicted of First Degree Malice Aforethought Murder in violation of 21 O.S.2011, § 701.7(A). The jury assessed punishment at life imprisonment without the possibility of parole. The Honorable F. Doug Haught, who presided at trial, sentenced McGee accordingly. From this Judgment and Sentence McGee appeals, raising the following issues: (1) whether the district court erred in giving a non-uniform instruction on First Degree Manslaughter and failing to instruct the jury on the lesser included offense of Second Degree Depraved Mind Murder; (2) whether the district court erred by submitting a flight instruction; (3) whether the district court erred by failing to provide the jury with a verdict form for the lesser included offense of First Degree Manslaughter; (4) whether the district court erred in submitting the State’s requested non-uniform instruction on the defense of voluntary intoxication; (5) whether the district court erred by failing to give the Oklahoma uniform jury instruction on reenactments; (6) whether he was deprived of a fair trial by the admission of irrelevant and prejudicial evidence; (7) whether prosecutorial misconduct deprived him of a fair trial; (8) whether the district court erred by excluding impeachment evidence of bias; (9) whether the district court erred by failing to remove a juror for cause; (10) whether he was deprived of a fair trial because grand jury counsel had an actual conflict of interest; (11) whether he received effective assistance of counsel; (12) whether cumulative error deprived him of a fair trial; and (13) whether his sentence of life without the possibility of parole is unconstitutional.

We affirm McGee’s conviction for First Degree Malice Aforethought Murder, but vacate his sentence of life without the possibility of parole and remand the matter to the district court for re-sentencing.

**Background**

On October 14, 2012, sixteen-year-old JaRay Wilson disappeared. JaRay had been having behavior problems and using drugs in the months before her disappearance. She refused to adhere to her parents’ curfew and they restricted her activities. They allowed her to go to church with a friend on October 7, but JaRay refused to come home afterwards unless her parents gave in to her demand to abandon her curfew. The Wilsons refused and urged JaRay to come home and accompany them on a trip to Wyoming. JaRay refused to come home or go to Wyoming, but she had contact with her parents every day either through text message(s) or telephone call(s) from October 8 through 14. JaRay’s parents tried, without success, to reach her on October 15. When JaRay did not respond to texts or answer their telephone calls, her parents grew worried that something was wrong and reported her missing on October 16.

Early in the investigation information surfaced leading investigators to suspect that JaRay was a possible victim of human trafficking. Agents with the Oklahoma Bureau of Narcotics Human Trafficking Division conducted much of the investigation surrounding JaRay’s disappearance. Agents were able to piece together JaRay’s activities and various locations on October 14. Their investigation revealed that the last known people to see JaRay were Appellant McGee and Cody Godfrey. Both McGee and Godfrey admitted they were with JaRay in the early evening on the 14th. Each said that they dropped her off at the University Apartments in Weatherford where someone else was picking her up, and that they never saw or heard from her again.

Agents conducted numerous interviews and followed up on all alleged sightings of JaRay and possible leads. Despite their best efforts, agents could not advance JaRay’s timeline past the evening of the 14th when she was with McGee and Godfrey. After fourteen months, new information concerning the case was scarce and the investigation had failed to produce any productive leads. To preserve information garnered during the investigation, witnesses and potential suspects, including McGee and Godfrey, were subpoenaed to appear before the multicounty grand jury to memorialize their testimony. McGee and Godfrey testified before the grand jury on December 10, 2013, and each repeated the story they had concocted and provided during previous interviews. McGee and Godfrey agreed to come to Oklahoma City for another interview on December 16, 2013. Godfrey’s interview was scheduled first and he arrived ready to cooperate with police because the secret had been eating at him and he wanted to do the right thing. Godfrey agreed to take police to JaRay’s body and testify truthfully in exchange for a seven year suspended adult sentence for accessory to first degree murder.

Godfrey testified at trial that he met up with McGee mid-afternoon on October 14 to hang out and smoke synthetic marijuana known as K2. He noticed McGee had a satchel and McGee showed him a .22 semi-automatic pistol that was inside and said sarcastically, we could kill JaRay. Godfrey did not take McGee seriously, and the two went to pick up JaRay from a friend’s house. From there, the three headed to the weed patch north of Weatherford. They parked off the roadway and stood around talking and smoking K2 for several hours. JaRay was on her telephone much of the time texting and witnesses and telephone records confirmed her phone usage. One of the last texts she sent said she was out in the country with McGee and Godfrey and that she needa leave. Like f__k and that she felt sketched out. Godfrey explained that McGee became agitated, short and sarcastic with JaRay and that McGee retrieved the gun from his satchel and put it in his waistband. McGee’s action made Godfrey uneasy and he feared something bad was going to happen. When JaRay said she wanted some methamphetamine, Godfrey volunteered to go get it so he could get away. He said that as he drove off, he saw McGee in the rearview mirror point the gun at JaRay’s head and fire. He turned the car around and pulled alongside McGee. JaRay was making noises causing McGee to ask why she was not dead. McGee stepped toward JaRay and shot her again in the head. Godfrey helped McGee move JaRay’s body over a fence under some trees. McGee instructed Godfrey to drive around while he moved her body farther into a wooded area. As Godfrey was headed toward Weatherford, Caleb McLemore pulled up with McGee in his truck. The three went back out into the country and smoked K2. McGee told Godfrey that McLemore knew about JaRay’s murder, but said nothing else about what he had told him. After a couple of hours, McGee and Godfrey headed back to Weatherford; they dumped JaRay’s purse and backpack at a car wash. The next day McGee, Godfrey and McLemore returned to the crime scene. McLemore dropped McGee and Godfrey off and the two buried JaRay’s body in a shallow grave. McLemore corroborated Godfrey’s testimony about the night of the 14th and McGee’s admission about killing JaRay.

Before Godfrey led authorities to JaRay’s body, he participated in several recorded telephone calls with McGee during which McGee was crying and writing a letter to his mother. Officers found the letter during the execution of a search warrant at his home. In the letter, McGee apologized to his mother and wrote that he would probably be locked up for a long time. He admitted he messed up and claimed he would do anything to go back. Two days before McGee’s arrest on December 17, 2013, he confessed to Alfred Pendelton that he had killed JaRay. McGee’s jury rejected his voluntary intoxication defense and attempts to shift blame to Godfrey.

1. **Lesser Included Offense Instructions**

McGee claims the district court improperly submitted a non-uniform jury instruction on first degree manslaughter, rendering the instructions inadequate to properly state the law. He also claims the district court erred by not providing the jury with an instruction on the lesser offense of second degree depraved mind murder. We review a district court’s rulings on jury instructions for an abuse of discretion, and will find no abuse of discretion if the instructions as a whole state the applicable law. It is true that the trial court must instruct on any lesser included offense warranted by the evidence. An underlying requirement, however, is that a lesser offense instruction should not be given unless the evidence would support a conviction for the lesser offense. McGee submitted a list of requested jury instructions, including instructions on first degree misdemeanor manslaughter and first degree heat of passion manslaughter. He also requested instructions on the defense of voluntary intoxication. Defense counsel announced during the jury instruction conference that, by agreement, the fifth element of the first degree manslaughter instruction had been reworded to conform with the defense of voluntary intoxication. McGee’s jury received instructions on first degree murder and first degree manslaughter. Instruction No. 41 provided the elements of first degree manslaughter the parties agreed were applicable to the facts in this case. A fair reading of these two instructions together shows that the jury was presented with multiple ways homicides fall into the category of first degree manslaughter. We disagree with McGee’s claim that the district court erred in denying his request for an instruction on second degree murder.

2. **Flight Instruction**

McGee argues the district court erred in giving a flight instruction because there was no evidence he fled the scene or concealed himself from law enforcement. The State concedes that it was error to submit a flight instruction in this case; however, the strength of the evidence of McGee’s guilt suggests that the erroneous submission of the flight instruction did not affect the jury’s verdict.

3. **Verdict Form**

McGee claims the district court erred by failing to submit a lesser offense verdict form. The omission of the verdict form he maintains left his jury without a way to record a verdict for the lesser offense of first degree manslaughter that was submitted as an available option. However, the record indicates the jury was well aware of its options and how to present its decision on the verdict form.

4. **Voluntary Intoxication Instruction**

McGee claims the district court’s non-uniform jury instruction concerning the defense of voluntary intoxication was cumulative and served only to confuse the jury. This claim is denied as the instruction provided an accurate statement of the law on voluntary intoxication.

5. **Reenactment Evidence Instruction**

McGee claims the district court erred in failing to instruct his jury on reenactment evidence. The challenged evidence consists of digital photographs taken at the crime scene. The district court should not have been required to follow the procedures outlined for video or computer reenactments since the evidence in question was not equivalent.

6. **Evidentiary Issues**

McGee argues he was denied a fair trial by the admission of irrelevant, prejudicial evidence. However, we find that almost all of the evidence was plainly relevant and its probative value was not substantially outweighed by the danger of unfair prejudice.

7. **Prosecutorial Misconduct**

McGee complains that several instances of prosecutorial misconduct deprived him of a fair trial. After reviewing the challenged questions and comments in context, we find nothing that deprived McGee of a fair trial.

8. **Bias Evidence**

McGee claims the district court violated his Sixth Amendment right of confrontation as well as abused its discretion in excluding impeachment evidence showing Cody Godfrey’s bias. The evidence of Godfrey’s plea bargain with the prosecution constituted evidence of bias. His taste in music, however, failed to provide a reason for him to slant his testimony.

9. **Juror Issue**

McGee argues he was deprived of a fair and impartial jury. The record shows that the juror’s acquaintance with the district attorney did not affect his ability to be fair and impartial.

10. **Conflict of Interest**

McGee argues grand jury counsel’s representation of Godfrey at the follow-up interview violated his right to conflict-free counsel. However, there is no evidence that grand jury counsel purposefully chose Godfrey over McGee or used confidential information obtained from McGee against him.

11. **Ineffective Assistance of Counsel**

McGee contends he was deprived of his constitutional right to effective assistance of counsel at trial. He has not established the necessary prejudice required to warrant relief.

12. **Cumulative Error**

McGee claims that even if no individual error in his case merits relief, the cumulative effect of the errors committed requires that his case be reversed. We find no errors that merit reversal.

13. **Constitutionality of Life Without Parole Sentence**

McGee was granted leave to file a supplemental brief challenging the constitutionality of his sentence based on the United States Supreme Court’s ruling in Montgomery v. Louisiana, 577 U.S. 136 S. Ct. 718, 193 L. Ed. 2d 599 (2016). Given McGee’s age at the time of the offense and the absence of a meaningful procedure for considering his youth and potential for rehabilitation, we find that McGee’s life without parole sentence is constitutionally infirm and we vacate the sentence and remand for re-sentencing.

DECISION

The Judgment of the district court is AFFIRMED. The sentence of life without the possibility of parole is VACATED and the matter REMANDED to the district court for re-sentencing.

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Footnotes:

1. 1. Tucker Ryan McGee was convicted of First Degree Malice Aforethought Murder in violation of 21 O.S.2011, § 701.7(A).
2. 2. The evidence showed that McGee had the gun with him and that he suggested killing JaRay when he met Godfrey that afternoon before the two smoked K2.
3. 3. The idea of killing JaRay was already on McGee's mind.
4. 4. Contrary to McGee's claim, the evidence did not suggest that he shot JaRay while he was impaired and recklessly handling the gun; the evidence showed instead that he deliberately pointed the gun at JaRay's head and fired.
5. 5. When asked to describe Appellant's relationship with other people, McGee testified "he is very kind" and that Appellant "tends to be more of a follower than a leader. He is always willing, you know, to help out a friend or do what they ask of him." (Tr. 1455).
6. 6. Appellant's treatment included family therapy meetings (Tr. 1461).
7. 7. After being released from the Weatherford hospital, Ms. McGee drove Appellant to St. Anthony Hospital's behavioral unit where Appellant was admitted for treatment.
8. 8. Appellant's jury received instructions on first degree murder and first degree manslaughter.
9. 9. The trial court's ruling that Juror R.H. could be fair and impartial is supported by the record.
10. 10. McGee's jury understandably found him guilty of first degree murder from the evidence presented.
11. 11. Testimony from Dr. Thomas Kupiec provided expert testimony concerning the effects of synthetic marijuana (Tr. 1470-87).
12. 12. The proposed verdict form contained the caption of the case and stated: VERDICT COUNT 1 -MURDER IN THE FIRST DEGREE - MALICE AFORETHOUGHT.
13. 13. Although using the uniform lesser offense verdict form is the better practice, we find the use of the verdict form in this case in lieu of the uniform verdict form did not prejudice McGee or affect the jury's decision.
14. 14. Appellant was not subject to a mandatory sentence of life without the possibility of parole.
15. 15. Appellant attempted suicide by taking a handful of Ecstasy tablets that he stole from a friend (Tr. 1449).
16. 16. Under 22 O.S.2011, § 355(B)(1), a witness subpoenaed to appear and testify before a multicounty grand jury is entitled to the assistance of counsel.
17. 17. The district court must instruct on any lesser included offense warranted by the evidence.
18. 18. The evidentiary issues were within the sound discretion of the trial court.
19. 19. The majority holds that the prosecution's conduct did not rise to the level of prosecutorial misconduct.
20. 20. Given the strength of the evidence of McGee's guilt, we find the erroneous submission of the flight instruction did not affect the jury's verdict.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.7(A) - First Degree Malice Aforethought Murder
• Okla. Stat. tit. 21 § 711 - First Degree Manslaughter
• Okla. Stat. tit. 22 § 926.1 - Jury Sentencing
• Okla. Stat. tit. 21 § 701.9 - Punishment for First Degree Murder
• Okla. Stat. tit. 22 § 355 - Right to Counsel Before Multicounty Grand Jury
• Okla. Stat. tit. 21 § 2401 - Relevance of Evidence
• Okla. Stat. tit. 21 § 2403 - Exclusion of Relevant Evidence
• Okla. Stat. tit. 21 § 2404 - Character Evidence
• Okla. Stat. tit. 21 § 701.10-1(A) - Sentences for First Degree Murder
• Okla. Stat. tit. 12 § 2402 - Admissibility of Evidence
• Okla. Stat. tit. 12 § 2403 - Exclusion of Relevant Evidence

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:

• Bramlett v. State, 2018 OK CR 19, I 36, 422 P.3d 788, 799-800
• Barnard v. State, 2012 OK CR 15, II 20, 290 P.3d 759, 766
• Jones v. State, 2006 OK CR 17, II 6, 134 P.3d 150, 154
• Shrum v. State, 1999 OK CR 41, 991 P.2d 1032
• Harris v. State, 2004 OK CR 1, I 50, 84 P.3d 731, 750
• Coddington v. State, 2011 OK CR 17, IT 69, 254 P.3d 684, 711
• Hogan v. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923
• Mitchell v. State, 1993 OK CR 56, I 11, 876 P.2d 682, 685
• Bruner v. State, 1925 OK CR 275, 238 P. 1000
• Dawkins v. State, 2011 OK CR 1, II 16, 252 P.3d 214, 219
• Grissom v. State, 2011 OK CR 3, IT 44, 253 P.3d 969, 985
• Cuesta-Rodriguez v. State, 2011 OK CR 4, I 7, 247 P.3d 1192, 1195
• Postelle v. State, 2011 OK CR 30, I 31, 267 P.3d 114, 131
• Taylor v. State, 2011 OK CR 15, I 40, 248 P.3d 362, 376
• Mayes v. State, 1994 OK CR 44, I 77, 887 P.2d 1288, 1310
• Livingston v. State, 1995 OK CR 68, IT 15, 907 P.2d 1088, 1092-93
• Edwards v. State, 1991 OK CR 71, 979 P.2d 670, 673-74
• Jiminez v. State, 2006 OK CR 43, I 6, 144 P.3d 903, 905
• Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)
• Murphy v. State, 2002 OK CR 32, 54 P.3d 556
• Luker v. State, 1976 OK CR 135, IT 12, 552 P.2d 715, 719
• Redell v. State, 1975 OK CR 229, I 31, 543 P.2d 574, 581-82
• Fite v. State, 1993 OK CR 58, IT 2, 873 P.2d 293, 297-98