Bobby Dewayne Ray v The State of Oklahoma

F-2015-720

Filed: Feb. 28, 2017

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Bobby Dewayne Ray appealed his conviction for second degree burglary and impersonating an officer. His conviction and sentence were 15 years in prison and a $1,500 fine for burglary, and 1 year in jail with a $100 fine for impersonation. Judge Hudson dissented on the decision to vacate the fine.

Decision

The fine of $1,500.00 in Count 1 is VACATED. The judgment and sentence is, in all other respects, AFFIRMED. 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 an impermissibly suggestive identification procedure that violated due process?
• did the erroneous jury instruction regarding the fine require it to be vacated?

Findings

• the court erred in admitting the victim's in-court identification and related evidence
• the fine assessed Appellant was vacated
• the judgment and sentence was affirmed in all other respects

F-2015-720

Feb. 28, 2017

Bobby Dewayne Ray

Appellant

v

The State of Oklahoma

Appellee

SUMMARY OPINION

LEWIS, VICE-PRESIDING JUDGE:

Appellant, Bobby Dewayne Ray, was tried by jury and found guilty of Count 1, second degree burglary, in violation of 21 O.S.2011, § 1435; and Count 2, impersonating an officer, in violation of 21 O.S.2011, § 264, in the District Court of Leflore County, Case No. CF-2013-391. The jury found Appellant committed Count 1 after former conviction of two (2) or more felonies and sentenced Appellant to fifteen (15) years imprisonment and a $1,500.00 fine in Count 1, and one (1) year in jail and a $100 fine in Count 2. The Honorable Jonathan K. Sullivan, District Judge, pronounced judgment and ordered the sentences served concurrently.

Appellant appeals in the following propositions of error:
1. The conviction of Mr. Ray, based on an impermissibly suggestive identification procedure, was a violation of due process, requiring that his convictions be reversed and remanded with instructions to dismiss;
2. The fine assessed Appellant was based upon an erroneous jury instruction and thus should be vacated.

In Proposition One, Appellant argues that his in-court identification by the victim eyewitness was tainted by a suggestive pre-trial identification and violated due process; and that without this evidence, the charge of burglary must be dismissed due to insufficient evidence. Trial counsel failed to object when the identification was made in open court, and waived all but plain error. Harmon v. State, 2011 OK CR 6, I 42, 248 P.3d 918, 935; Simpson v. State, 1994 OK CR 40, I 3, II 23, 876 P.2d 690, 694, 695, 698. Appellant must therefore demonstrate that the in-court identification was plain or obvious error. Hogan v. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923. We will correct plain error only when it seriously affects the fairness, integrity, or public reputation of the proceedings or represents a miscarriage of justice. Murphy v. State, 2012 OK CR 8, I 18, 281 P.3d 1283, 1290. An eyewitness’s identification at trial, if tainted by a prior photographic identification that was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification, violates due process of law. Harmon, 2011 OK CR 6, I 43, 248 P. 3d at 935-36. Here, we find the officer’s use of a single photograph of Appellant, where no exigent circumstances justified that procedure, was unnecessarily suggestive. Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977). However, based on the totality of the circumstances, including the witness’ opportunity to view the suspect at the time of the crime; her degree of attention; the accuracy of her prior descriptions; the level of certainty demonstrated at the confrontation; and the short time between the crime and the confrontation, we find the suggestive procedure did not create a very substantial likelihood of irreparable misidentification. Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). There was no plain or obvious error in admitting the victim’s in-court identification and related evidence. Reviewing the trial evidence in the light most favorable to the State, we further conclude that any rational trier of fact could find the elements of second degree burglary proven beyond a reasonable doubt. Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203. Proposition One is therefore denied.

Proposition Two argues that the trial court’s instruction on the fine in Count 1 was plain error, as defined above. We recently held that an instruction telling jurors a fine was mandatory, when the fine was optional, was plain error. Daniels v. State, 2016 OK CR 2, I 6, 369 P.3d 381, 384. The Court held the error was harmless in Daniels because the jury imposed the maximum fine. The jury here imposed only a $1,500.00 fine, indicating that it probably would have imposed an even lower amount, or no fine at all, under a correct instruction. As we have done in several unpublished cases involving the same error, the fine here is vacated.

DECISION

The fine of $1,500.00 in Count 1 is VACATED. The judgment and sentence is, in all other respects, AFFIRMED. 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.

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Footnotes:

1. Harmon v. State, 2011 OK CR 6, ¶ 42, 248 P.3d 918, 935;
2. Simpson v. State, 1994 OK CR 40, ¶ 3, ¶ 11, 23, 876 P.2d 690, 694, 695, 698.
3. Hogan v. State, 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923.
4. Murphy v. State, 2012 OK CR 8, ¶ 18, 281 P.3d 1283, 1290.
5. Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977).
6. Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).
7. Spuehler v. State, 1985 OK CR 132, ¶ 7, 709 P.2d 202, 203.
8. Daniels v. State, 2016 OK CR 2, ¶ 6, 369 P.3d 381, 384.
9. Daniels v. State, 2016 OK CR 2, ¶ 6, 369 P.3d 381, 384.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1435 - Second degree burglary
• Okla. Stat. tit. 21 § 264 - Impersonating an officer
• Okla. Stat. tit. 22 § 3.15 - Rules of the Oklahoma Court of Criminal Appeals
• Okla. Stat. tit. 22 § 18 - Appellate procedures
• Okla. Stat. tit. 21 § 701.8 - Sentencing for felony offenses

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:

• Harmon v. State, 2011 OK CR 6, ¶ 42, 248 P.3d 918, 935
• Simpson v. State, 1994 OK CR 40, ¶ 3, ¶ 23, 876 P.2d 690, 694, 695, 698
• Hogan v. State, 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923
• Murphy v. State, 2012 OK CR 8, ¶ 18, 281 P.3d 1283, 1290
• Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977)
• Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972)
• Spuehler v. State, 1985 OK CR 132, ¶ 7, 709 P.2d 202, 203
• Daniels v. State, 2016 OK CR 2, ¶ 6, 369 P.3d 381, 384