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F-2017-1230

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Oleithia June Cudjo v The State Of Oklahoma

F-2017-1230

Filed: Apr. 25, 2019

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Oleithia June Cudjo appealed her conviction for second degree murder while driving under the influence, driving with a suspended license, and transporting an open container. Her conviction and sentence were for 30 years in prison for the murder charge and 6 months each for the other two charges, served at the same time. Judge Hudson dissented.

Decision

The judgment and sentence is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18 App. (2019), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

  • Was there error in instructing the jury on the lesser related offense of misdemeanor manslaughter due to the expiration of the statute of limitations?
  • Did the conviction violate fundamental due process because misdemeanor manslaughter with driving while privilege suspended was not a lesser related offense of second degree felony murder?
  • Was the State's evidence insufficient to prove the appellant's guilt beyond a reasonable doubt?
  • Did evidentiary errors deprive the appellant of a fair trial and a reliable sentencing determination?
  • Was there a violation of the appellant's right to a fair trial due to misstatements of law by the prosecution during the guilt phase?
  • Was the appellant's sentence excessive and requiring modification under the facts and circumstances of the case?
  • Do trial errors, when considered cumulatively, warrant a new trial?

Findings

  • The court did not err in instructing the jury on the lesser related offense of misdemeanor manslaughter as the statute of limitations had not expired.
  • No fundamental due process violation occurred regarding the conviction for misdemeanor manslaughter.
  • The evidence was sufficient to support the conviction beyond a reasonable doubt.
  • No abuse of discretion occurred in the admission of evidence which Appellant claimed deprived her of a fair trial.
  • No prosecutorial misconduct warrants relief regarding the misstatement of law during the guilt phase.
  • The sentence imposed was not excessive and did not shock the conscience of the Court.
  • No cumulative errors warranted a new trial.

F-2017-1230

Apr. 25, 2019

Oleithia June Cudjo

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LEWIS, PRESIDING JUDGE: Oleithia June Cudjo, Appellant, was tried by jury for Count 1, second degree murder, while in the commission of felony driving under the influence, in violation of 21 O.S.2011, § 701.8; Count 3, driving while privilege suspended, in violation of 47 O.S.2011, § 6-303(B); and Count 4, transporting an open container of liquor, in violation of 37 O.S.2011, § 537(A)(7), all after former conviction of two or more felonies, in the District Court of Oklahoma County, Case No. CF-2012-6970.

The jury convicted Ms. Cudjo as charged on Counts 3 and 4, and on the lesser related offense of first degree manslaughter with driving under suspension as the underlying offense on Count 1 and set punishment at six (6) months on each of Counts 3 and 4 and thirty (30) years imprisonment on Count 1. The Honorable Bill Graves, District Judge, who presided at trial, granted Ms. Cudjo’s motion to merge Count 3 with Count 1 and sentenced her in accordance with the jury’s verdict on Counts 1 and 4 with the sentences to be served concurrently with each other and with credit for time served.

Ms. Cudjo appeals in the following propositions of error:
1. The trial court committed error in instructing the jury on the lesser related offense of misdemeanor manslaughter because the statute of limitations had expired for the manslaughter charge requiring Ms. Cudjo’s conviction to be vacated;
2. Because misdemeanor manslaughter with the predicate offense of driving with privilege suspended was not a lesser related offense necessarily included in the greater offense of second degree felony murder, Ms. Cudjo’s conviction violates fundamental due process under the Federal and State Constitutions and must be dismissed;
3. The State’s evidence was insufficient to prove Ms. Cudjo’s guilt beyond a reasonable doubt, making the evidence insufficient to support a conviction;
4. Evidentiary errors deprived Ms. Cudjo of a fair trial and a reliable sentencing determination under the Federal and State Constitutions;
5. Misstatement of law argued by the prosecution in the guilt phase of trial violated Ms. Cudjo’s right to a fair trial;
6. Under the facts and circumstances of this case Ms. Cudjo’s sentence is excessive and requires modification;
7. Trial errors, when considered in a cumulative fashion, warrant a new trial.

Appellant’s proposition one claims the trial court committed error when it instructed the jury on the lesser related offense of misdemeanor manslaughter because the statute of limitations had expired for the manslaughter charge. Instructions are within the discretion of the trial court. Tucker v. State, 2016 OK CR 29, ¶ 25, 395 P.3d 1, 8. The trial judge should instruct jurors on the applicable law, including the elements of the offense and the law applying to that case’s evidence. Day v. State, 2013 OK CR 8, ¶ 14, 303 P.3d 291, 298.

Appellant argues that the issue is not waived because the statute of limitations issue implicates a jurisdictional defect. In Cox v. State, 2006 OK CR 51, ¶ 4, 9, 152 P.3d 244, 248-49, overruled on other grounds in State v. Vincent, 2016 OK CR 7, ¶ 9, 371 P.3d 1127, this Court held that a violation of a statute of limitations acts as a jurisdictional bar and may be raised for the first time on appeal. Appellant did not assent to the giving of this instruction, thus we cannot say that she waived the giving of this instruction.

The incident giving rise to these charges occurred on November 4, 2012. The State filed its Information on November 7, 2012, charging the homicide offense of second degree felony murder with DUI being the underlying felony. This timing was within the three (3) year limitation period for the lesser offense of first degree manslaughter, which was included in the instructions at the 2017 trial. A statute is tolled at the filing of an Information. Thacker v. Marshall, 1958 OK CR 97, ¶ 9, 331 P.2d 488, 493.

The cases relied upon by Appellant are distinguishable. In Spaziano v. Florida, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984), charges were filed two years and one month after the offense. Spaziano was charged with first degree murder. The trial court informed the defendant that it would instruct on lesser included noncapital offenses which had limitation periods of two (2) years if he would waive the statute of limitations. The defendant objected to the instructions and refused to waive the statute. The jury returned a verdict of guilty on first-degree murder. The Court found it was not error to allow the defendant to go all or nothing and instruct on the lesser offenses.

In this case, the defendant was not forced to choose between waiving two rights; either choose to go all or nothing or choose to waive the statute of limitations. Charges of second degree felony murder were filed in this case on November 7, 2012, thus the statute was tolled for the charged offense and the lesser offense of first degree manslaughter. In Palmer v. State, 1994 OK CR 16, 871 P.2d 429, overruled on other grounds by Willingham v. State, 1997 OK CR 62, 947 P.2d 1074, the defendant was charged five years after the offense. The three year statute of limitations had expired for lesser offenses and the defendant did not request instructions. The Court held that he was not entitled to instructions on lesser offenses because they were barred by the statute of limitations.

Here there is no error. The initial charges were filed within the three year limitations period for first-degree manslaughter. A trial court should instruct on any lesser offense that is reasonably supported by the evidence, so long as the accused is not unfairly surprised by the lesser-offense theory such that he had no adequate opportunity to defend against it. Shrum v. State, 1999 OK CR 41, ¶ 6-11, 991 P.2d 1032, 1034-37. Along with this requirement, it follows that the statute is tolled for the lesser offenses.

Appellant was not unfairly surprised because she was charged with the homicidal act and the underlying crime of driving under suspension. There is no error here.

In proposition two, Appellant argues because misdemeanor manslaughter with the predicate offense of driving with privilege suspended was not a lesser related offense necessarily included in the greater offense of second degree felony murder, her conviction violates fundamental due process and must be dismissed. Defense counsel objected to the instruction being given, but did so on other grounds; therefore, review is for plain error only. 12 O.S.2011, § 2104, (a court may take notice of plain errors affecting substantial rights although they were not brought to the attention of the court.).

When a specific objection is made at trial, this Court will not entertain a different objection on appeal. Myers v. State, 2006 OK CR 12, ¶ 27, 133 P.3d 312, 324; also see Baird v. State, 2017 OK CR 16, ¶ 17, 400 P.3d 875, 881. This Court will, therefore, review for plain error only. Myers, supra.

To be entitled to relief for plain error, an appellant must show: (1) the existence of an actual error (i.e., deviation from a legal rule); (2) that the error is plain or obvious; and (3) that the error affected his substantial rights, meaning the error affected the outcome of the proceeding. Hogan v. State, 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923. See also Simpson v. State, 1994 OK CR 40, ¶¶ 2, 11, 23, 876 P.2d 690, 694, 695, 698.

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. Hogan, 2006 OK CR 19, ¶ 38, 139 P.3d at 923. There is no plain error here. A trial court should give instructions on lesser forms of homicide supported by the evidence. Shrum, supra. This Court will not reverse on instructional error unless the error has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right. Spence v. State, 2008 OK CR 4, ¶ 8, 177 P.3d 582, 582.

This test is similar to plain error review where 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. Hogan v. State, 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923, see Shrum, 1999 OK CR 41, ¶ 10, 991 P.2d at 1036 (under the evidence approach all lesser forms of homicide are necessarily included and instructions on lesser forms of homicide should be submitted if they are supported by the evidence).

Here, there was no plain error. First degree manslaughter is a lesser related offense to second degree murder. Appellant had notice because she was charged with the homicidal act and the underlying offense of driving under suspension. This proposition should fail.

In proposition three, Appellant claims the State’s evidence was insufficient to prove her guilt beyond a reasonable doubt, therefore insufficient to support her conviction. This Court reviews challenges to the sufficiency of the evidence in the light most favorable to the State and will not disturb the verdict if any rational trier of fact could have found the essential elements of the crime charged to exist beyond a reasonable doubt. Head v. State, 2006 OK CR 44, ¶ 6, 146 P.3d 1141, 1144. See also Spuehler v. State, 1985 OK CR 132, ¶ 7, 709 P.2d 202, 203-04.

In evaluating the evidence presented at trial, we accept the fact-finder’s resolution of conflicting evidence as long as it is within the bounds of reason. See Gilson v. State, 2000 OK CR 14, ¶ 77, 8 P.3d 883, 910; Day v. State, 2013 OK CR 8, ¶ 12, 303 P.3d 291, 298. This Court also accepts all reasonable inferences and credibility choices that tend to support the verdict. Coddington v. State, 2006 OK CR 34, ¶ 70, 142 P.3d 437, 456.

Appellant argues that there was no causal connection between the death of the victim and the underlying offense of driving under suspension. This issue was resolved in State v. Ceasar, 2010 OK CR 15, ¶¶ 10-13, 237 P.3d 792, 794-95. A defendant may be convicted of first degree manslaughter with the underlying offense of driving with a suspended license, because the defendant had no legal right to be driving. The act, therefore, was causally related to the death. We find no reason to revisit this issue.

Next, Appellant claims that there was insufficient evidence that she was driving while her privileges were suspended. The State introduced a certified copy of an Order of Suspension from the Department of Public Safety showing that Appellant’s driving privileges were suspended on April 4, 2010. There was no evidence that her driving privileges in Oklahoma had been reinstated. The evidence was sufficient.

Next, in proposition four, Appellant argues that it was error for the trial court to admit two key pieces of evidence submitted by the State and the admission of this evidence deprived her of a fair trial and a reliable sentencing determination. The admission of evidence lies within the sound discretion of the trial court and, when the issue is properly preserved for appellate review, we will not disturb the trial court’s decision absent an abuse of discretion. Pavatt v. State, 2007 OK CR 19, ¶ 42, 159 P.3d 272, 286. Defense counsel made timely objections in both instances, therefore, we review for an abuse of discretion. An abuse of discretion is a clearly erroneous conclusion and judgment, contrary to the logic and effect of the facts presented. Neloms v. State, 2012 OK CR 7, ¶ 35, 274 P.3d 161, 170.

The first piece of evidence objected to was an animated re-enactment video based on the crime scene analysis conducted by Officer Harrison. Reenactments may be used if it correctly represents the object portrayed or is a fair and accurate representation, is relevant, and its probative value is not substantially outweighed by the dangers found in 12 O.S.2011, § 2403. Harris v. State, 2000 OK CR 20, ¶ 16, 13 P.3d 489, 495. The trial court must also give a limiting instruction informing the jury that the exhibition is only a recreation of the proponent’s view of the events. Id.

Here, the reenactment was based on specific measurements taken by the accident investigators and the computer modules found in Appellant’s vehicle. Unlike the reenactment found in Dunkle v. State, 2006 OK CR 29, ¶ 64, 139 P.3d 228, 249-50, this reenactment was a fair and accurate representation of the evidence. The expert here had solid data on which to complete the animation; therefore, there were none of the dangers this court found in Dunkle. The trial court did not abuse its discretion.

The second piece of evidence objected to was an in-life photograph of the victim. Appellant objected at trial arguing that the photograph was substantially more prejudicial than probative. The photograph depicts the victim and his pet dog. These types of photographs are admissible under 12 O.S.2011, § 2403 (in a prosecution for any criminal homicide, an appropriate photograph of the victim while alive shall be admissible evidence when offered by the district attorney to show the general appearance and condition of the victim while alive.) This photograph was admissible and the relevance of this photograph was not substantially outweighed by any danger of unfair prejudice. There is no abuse of discretion here.

Appellant claims in proposition five that during the guilt phase of the trial the prosecutor, in two instances, misstated the law as it related to causation for the manslaughter charge. Defense counsel made timely objections that were overruled by the trial court. This Court will not grant relief based on prosecutorial misconduct unless the State’s argument is so flagrant and that it so infected the defendant’s trial that it was rendered fundamentally unfair. Williams v. State, 2008 OK CR 19, ¶ 124, 188 P.3d 208, 230.

The prosecutor argued that in causing the victim’s death while driving under suspension, that they could find Appellant guilty of manslaughter. An objection by Appellant was overruled by the trial court. These statements were proper based on our decision in Ceasar, 2010 OK CR 15, ¶ 13, 237 P.3d at 795. There was no error here.

In proposition six, Appellant claims, under the facts and circumstances of this case, her sentence is excessive and should be modified. Appellant’s sentence is supported by the facts and circumstances of the case and is within the range of punishment provided by law. This Court will not disturb a sentence within statutory limits unless, under the facts and circumstances of the case, it is so excessive as to shock the conscience of the Court. Pullen v. State, 2016 OK CR 18, ¶ 16, 387 P.3d 922, 928. Appellant’s sentence does not meet that test, and no relief is warranted.

Finally, in proposition seven, we find that there are no individual errors requiring relief. As we find no error that was harmful to Appellant, there is no accumulation of error to consider. Barnett v. State, 2011 OK CR 28, ¶ 34, 263 P.3d 959.

**DECISION:** The judgment and sentence is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18 App. (2019), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

  1. Okla. Stat. tit. 21 § 701.8
  2. Okla. Stat. tit. 47 § 6-303(B)
  3. Okla. Stat. tit. 37 § 537(A)(7)
  4. Okla. Stat. tit. 22 § 13.1(3)
  5. Okla. Stat. tit. 12 § 2104
  6. Okla. Stat. tit. 12 § 2403
  7. Okla. Stat. tit. 22 § 18 App. (2019)
  8. Okla. Stat. tit. 12 § 2403 (prosecution for any criminal homicide)
  9. Okla. Stat. tit. 21 § 701.8 (conviction for first degree manslaughter)
  10. Okla. Stat. tit. 22 § 13.1
  11. Okla. Stat. tit. 22 § 18 App. (2019)
  12. Okla. Stat. tit. 22 § 13.1
  13. Okla. Stat. tit. 21 § 701.8 (jurisdictional defect)
  14. Okla. Stat. tit. 47 § 6-303(B)

Oklahoma Statutes citations:

  • Okla. Stat. tit. 21 § 701.8 (2011) - Second Degree Murder
  • Okla. Stat. tit. 47 § 6-303 (2011) - Driving While Privilege Suspended
  • Okla. Stat. tit. 37 § 537 (2011) - Open Container of Liquor
  • Okla. Stat. tit. 22 § 13.1 (2011) - Parole Eligibility
  • Okla. Stat. tit. 12 § 2104 (2011) - Notice of Plain Errors
  • Okla. Stat. tit. 12 § 2403 (2011) - Admissibility of Photographs
  • Okla. Stat. tit. 21 § 16 (2011) - Homicide
  • Okla. Stat. tit. 21 § 841 (2011) - Manslaughter
  • Okla. Stat. tit. 21 § 692 (2011) - Driving Under the Influence
  • Okla. Stat. tit. 21 § 701.1 (2011) - Definitions

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:

No case citations found.

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