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F-2016-997

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Jimmie Lee Lovell v State Of Oklahoma

F-2016-997

Filed: Dec. 2, 2017

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Jimmie Lee Lovell appealed his conviction for First Degree Manslaughter and Driving Under the Influence. The conviction and sentence were for four years in prison for manslaughter and ten days in the county jail plus a $1,000 fine for driving under the influence, with the prison time suspended. The court affirmed the judgment, but noted an error regarding the jail sentence that needed correction. Judge Hudson dissented.

Decision

The JUDGMENT and SENTENCE IN COUNT I is AFFIRMED. The JUDGMENT IN COUNT II is AFFIRMED. The case is REMANDED TO THE DISTRICT COURT with directions to correct the Judgment and Sentence in Count II to conform with the jury's sentence recommendation. APPELLANT'S OBJECTION TO ORDER GRANTING MOTION TO SUPPLEMENT THE RECORD ON APPEAL IS DENIED. 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 the delivery and filing of this decision.

Issues

  • Was there an error in denying the Motion to Suppress the blood test results?
  • Did the trial court err in denying the Motion to Enter Verdict on the charge of manslaughter?

Findings

  • the trial court did not err in denying the motion to suppress the blood test results
  • the conviction for First Degree Manslaughter is affirmed and no relief is granted for the inconsistency in verdicts
  • the case is remanded to the District Court to correct the Judgment and Sentence in Count II to conform with the jury's sentence recommendation

F-2016-997

Dec. 2, 2017

Jimmie Lee Lovell

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, PRESIDING JUDGE: Appellant Jimmie Lee Lovell was tried by jury and convicted of First Degree Manslaughter (Count I) (21 O.S.2011, § 711) and Driving Under the Influence (Count II) (47 O.S.Supp.2013, § 11-902(A)(1)) in the District Court of Sequoyah County, Case No. CF-2014-612. The jury recommended as punishment imprisonment for four (4) years in Count I and ten (10) days in the county jail and a $1,000.00 fine in Count II. In Count I, the trial court sentenced according to the jury’s recommendation, but ordered the sentence suspended. In Count II, the court sentenced Appellant to a term of one year, to run concurrent with Count I. It is from this judgment and sentence that Appellant appeals.

Appellant raises the following propositions of error in support of his appeal:

I. The Motion to Suppress the blood test results should have been sustained.

II. The trial court should have sustained Appellant’s Motion to Enter Verdict on the charge of manslaughter.

After thorough consideration of these propositions and the entire record before us on appeal including the original record, transcripts, and briefs of the parties, we have determined that under the law and the evidence no relief is warranted.

In Proposition I, Appellant contends the trial court erred in denying his motion to suppress the results of his blood test because he did not have the opportunity as provided in 47 O.S.2011, § 752(E) to conduct an independent analysis of the blood before it was destroyed. We review Appellant’s challenge to the trial court’s ruling on the motion to suppress for an abuse of discretion. Johnson v. State, 2013 OK CR 12, 8, 308 P.3d 1053, 1055; State v. Pope, 2009 OK CR 9, 4, 204 P.3d 1285, 1287; Gomez v. State, 2007 OK CR 33, 5, 168 P.3d 1139, 1141. An abuse of discretion is any unreasonable or arbitrary action taken without proper consideration of the facts and law pertaining to the matter at issue or “a clearly erroneous conclusion and judgment, one that is clearly against the logic and effect of the facts presented.” State v. Delso, 2013 OK CR 5, 5, 298 P.3d 1192, 1194. In reviewing a trial court’s decision suppressing evidence, we defer to the trial court’s findings of fact unless they are clearly erroneous. State v. Nelson, 2015 OK CR 10, 11, 356 P.3d 1113, 1117.

Pursuant to 47 O.S.2011, § 752(E) when blood is withdrawn for testing of its alcohol concentration, at the request of a law enforcement officer, a sufficient quantity of the same specimen shall be obtained to enable the tested person, at his or her own option and expense, to have an independent analysis made of such specimen. The excess blood specimen shall be retained by an approved laboratory for sixty (60) days from the date of collection. In the present case, the excess blood specimen was kept for approximately six months before its destruction, far beyond the statutorily required sixty (60) days. At no time during this period was any request made by the defense for a specimen to conduct an independent analysis. While Appellant claimed before the trial court and now on appeal that he had no knowledge of the blood draw or its results until after charges were filed, the trial court found these claims unsubstantiated and not sufficient to suppress the results of the blood test. We find the record and law support this finding.

The statute clearly places the burden on the defendant to comply with each statutory condition or any independent test results are inadmissible at trial. Foy v. State, 1974 OK CR 177, 6, 533 P.2d 634, 637. “The purpose of § 752[(E)] is to ensure that the person whose blood is drawn may obtain, upon his request and within certain time constraints, an independent analysis of his blood.” Craig v. State, 1991 OK CR 108, 12, 818 P.2d 1244, 1247. In Craig, the appellant’s unsubstantiated claim of unconsciousness at the time of the blood draw was not sufficient, in light of the absence of any request for a sample for independent analysis and absent any demonstration of prejudice, to find error in the procedure employed to retain a sample of his blood. Id. As Appellant did not make any request for a blood sample to be used in an independent analysis during the prescribed statutory timeframe, the trial court did not abuse its discretion in denying the motion to suppress. Further, Appellant has not shown any resulting prejudice from his alleged inability to independently test his blood sample as the trial court allowed the parties to discuss the issue at trial with the State permitted to introduce the result of the blood test and the defense allowed to question state witnesses on the blood draw, the results, and the retention of the remaining sample. Finding no abuse of discretion in the denying of the motion to suppress, the proposition is denied.

In Proposition II, Appellant contends that because the jury marked “guilty” on the verdict form for First Degree Manslaughter and “not guilty” on the verdict form for the lesser included offense of Negligent Homicide, the verdicts are inconsistent and his conviction for First Degree Manslaughter should be reversed. No objections were raised to the verdicts upon their return and the defense declined the court’s invitation to poll the jury. As Appellant did not make a timely objection to the verdicts when they were returned, our review on appeal is for plain error. Patterson v. State, 1995 OK CR 37, 35, 906 P.2d 765, 775-776. Under the test set forth in Simpson v. State, 1994 OK CR 40, 10, 26, 30, 876 P.2d 690, 694, 699, 701 this Court determines whether the appellant has shown an actual error, which is plain or obvious, and which affects his or her substantial rights. 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. See Hogan v. State, 2006 OK CR 19, 38, 139 P.3d 907, 923. See also Jackson v. State, 2016 OK CR 5, 4, 371 P.3d 1120, 1121; Levering v. State, 2013 OK CR 19, 6, 315 P.3d 392, 395.

The verdict forms in this case do not warrant relief. The verdicts clearly indicate the jury found Appellant guilty of First Degree Manslaughter and not guilty of the lesser offense of Negligent Homicide. The instructions repeatedly told the jury to mark “guilty” on the verdict form if they found beyond a reasonable doubt the defendant committed the crime of First Degree Manslaughter; and if they had a reasonable doubt of the defendant’s guilt or found the State had failed to prove all of the elements of the charge beyond a reasonable doubt, they should return a verdict of “not guilty” and mark the verdict form appropriately. Based upon the record in this case, we can clearly ascertain the jury’s intent to find Appellant guilty of First Degree Manslaughter. Appellant attempts to retry the case and argues the evidence supported a verdict of guilt of Negligent Homicide, not First Degree Manslaughter. A verdict is proper if it is supported by sufficient evidence. Gray v. State, 1982 OK CR 137, 20, 650 P.2d 880, 884 citing Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932). On appeal, we review the sufficiency of the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crimes charged beyond a reasonable doubt. Davis v. State, 2011 OK CR 29, 74, 268 P.3d 86, 111. This Court will accept all reasonable inferences and credibility choices that tend to support the verdict. Id. Here, the evidence proved beyond a reasonable doubt Appellant drove his motorcycle at approximately 84 mph while intoxicated, leaving the roadway for no external reasons, i.e., weather or other traffic, thus causing the death of his passenger. Appellant’s conduct fell outside the realm of mere negligence and proved the commission of First Degree Manslaughter. The jury clearly did not believe his claim that he had no memory of the accident or ensuing events. Under this evidence, the jury’s verdict of guilt of First Degree Manslaughter is supported by the evidence. Anything atypical in the verdict form is not error and not plain error warranting relief. This proposition is denied.

Additionally, while not raised as an issue on appeal, we note a variance exists between the jury’s verdict and the Judgment and Sentence regarding the sentence in Count II. The jury’s verdict form for Count II recommends punishment as “10 days in the county jail + $1,000. Fine”. The Judgment and Sentence provides Count II punishment as “1 year, concurrent with Count I.” Where there is a variance between the verdict of the jury and the sentence of the court, on appeal this Court will remand the case with directions to the trial court to correct its judgment and sentence to make it conform to the verdict.

This case is therefore remanded to the District Court with directions to issue a Judgment and Sentence in conformance with the jury’s verdict.

DECISION

The JUDGMENT and SENTENCE IN COUNT I is AFFIRMED. The JUDGMENT IN COUNT II is AFFIRMED. The case is REMANDED TO THE DISTRICT COURT with directions to correct the Judgment and Sentence in Count II to conform with the jury’s sentence recommendation.

APPELLANT’S OBJECTION TO ORDER GRANTING MOTION TO SUPPLEMENT THE RECORD ON APPEAL IS DENIED.

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 the delivery and filing of this decision.

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Footnotes:

  1. 21 O.S.2011, § 711
  2. 47 O.S.Supp.2013, § 11-902(A)(1)
  3. 47 O.S.2011, § 11-802
  4. 21 O.S.2011, § 13.1
  5. 47 O.S.2011, § 752(E)
  6. Foy v. State, 1974 OK CR 177, ¶ 6, 533 P.2d 634, 637
  7. Craig v. State, 1991 OK CR 108, ¶ 12, 818 P.2d 1244, 1247
  8. Gray v. State, 1982 OK CR 137, ¶ 20, 650 P.2d 880, 884 citing Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932)
  9. Davis v. State, 2011 OK CR 29, ¶ 74, 268 P.3d 86, 111
  10. Young v. State, 1952 OK CR 4, 95 Okl.Cr. 82, 239 P.2d 1042, 1043
  11. McCann v. State, 1942 OK CR 137, 75 Okl.Cr. 216, 130 P.2d 108, 110

Oklahoma Statutes citations:

  • Okla. Stat. tit. 21 § 711 - First Degree Manslaughter
  • Okla. Stat. tit. 47 § 11-902 - Driving Under the Influence
  • Okla. Stat. tit. 47 § 11-802 - Speeding
  • Okla. Stat. tit. 21 § 13.1 - Parole Eligibility
  • Okla. Stat. tit. 47 § 752 - Blood Testing Procedures

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:

  • Johnson v. State, 2013 OK CR 12, I 8, 308 P.3d 1053, 1055
  • State v. Pope, 2009 OK CR 9, I 4, 204 P.3d 1285, 1287
  • Gomez v. State, 2007 OK CR 33, I 5, 168 P.3d 1139, 1141
  • State v. Delso, 2013 OK CR 5, I 5, 298 P.3d 1192, 1194
  • Foy v. State, 1974 OK CR 177, I 6, 533 P.2d 634, 637
  • Craig v. State, 1991 OK CR 108, I 12, 818 P.2d 1244, 1247
  • Patterson v. State, 1995 OK CR 37, I 35, 906 P.2d 765, 775-776
  • Simpson v. State, 1994 OK CR 40, II 10, 26, 30, 876 P.2d 690, 694, 699, 701
  • Hogan v. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923
  • Jackson v. State, 2016 OK CR 5, I 4, 371 P.3d 1120, 1121
  • Levering v. State, 2013 OK CR 19, I 6, 315 P.3d 392, 395
  • Gray v. State, 1982 OK CR 137, I 20, 650 P.2d 880, 884
  • Davis v. State, 2011 OK CR 29, I 74, 268 P.3d 86, 111
  • Young v. State, 1952 OK CR 4, 95 Okl.Cr. 82, 239 P.2d 1042, 1043
  • McCann v. State, 1942 OK CR 137, 75 Okl.Cr. 216, 130 P.2d 108, 110

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