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F-2017-1261

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Carlos Santana Gunter v State Of Oklahoma

F-2017-1261

Filed: Dec. 5, 2019

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Carlos Santana Gunter appealed his conviction for robbery and assault. Conviction and sentence were upheld with thirty years in prison for each count. Judge Hudson noted that while there were some concerns about how evidence was presented during the trial, it did not affect the outcome, and Gunter's conviction was confirmed. Judge Lewis disagreed about the evidence's nature but agreed with the decision.

Decision

The Judgment and Sentence of the district court 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 delivery and filing of this decision.

Issues

  • Was there improper victim impact evidence introduced during the guilt-innocence phase of trial that inflamed the passions of the jury and prejudiced the appellant?
  • Did Officer Motley’s comment on the appellant requesting an attorney violate the appellant's Fifth Amendment rights?
  • Was the appellant's sentence improperly enhanced with felonies that were presumptively void due to lack of showing that the appellant was represented by counsel during those convictions?
  • Did prosecutorial misconduct deprive the appellant of a fair trial by expressing personal opinions of guilt and goading jurors into sentencing based on deterrence?
  • Was the appellant denied constitutionally effective assistance of counsel based on various stipulations and failure to object to prosecutorial misconduct?
  • Did the cumulative effect of errors in this case deprive the appellant of due process of law in violation of constitutional rights?

Findings

  • Proposition I is denied.
  • Proposition II is denied.
  • Proposition III is denied.
  • Proposition IV is denied.
  • Proposition V is denied.
  • Proposition VI is denied.
  • The Judgment and Sentence of the district court is AFFIRMED.

F-2017-1261

Dec. 5, 2019

Carlos Santana Gunter

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

JOHN D. HADDEN HUDSON, JUDGE:

Appellant, Carlos Santana Gunter, was tried and convicted by a jury in Canadian County District Court, Case No. CF-2015-374, of Count 1: Robbery with a Dangerous Weapon, in violation of 21 O.S.2011, § 801; and Counts 2 and 3: Assault and Battery with a Dangerous Weapon, in violation of 21 O.S.2011, § 645, all After Former Conviction of Two or More Felonies. The jury recommended sentences of thirty years imprisonment on each count. The Honorable Paul Hesse, District Judge, presided at trial and sentenced Gunter in accordance with the jury’s verdicts.¹ Judge

Hesse ordered Counts 1 and 2 to run concurrently with each other, and Count 3 to run consecutively to Count 2. Judge Hesse also imposed various costs and fees. Gunter now appeals.

Gunter alleges the following propositions of error on appeal:

I. ASKING THE VICTIMS ABOUT POST-CRIME EFFECTS OF THEIR INJURIES DURING THE GUILT-INNOCENCE PHASE OF TRIAL CONSTITUTED IMPROPER VICTIM IMPACT EVIDENCE AND SERVED TO INFLAME THE PASSIONS OF THE JURY AND PREJUDICE APPELLANT;

II. APPELLANT’S FIFTH AMENDMENT RIGHT WAS VIOLATED WHEN OFFICER MOTLEY COMMENTED ON THE FACT THAT APPELLANT ASKED FOR AN ATTORNEY WHEN HE WAS QUESTIONED ABOUT THE ROBBERY;

III. APPELLANT’S SENTENCE WAS IMPROPERLY ENHANCED WITH FELONIES THAT WERE PRESUMPTIVELY VOID BECAUSE THERE WAS NO SHOWING THAT APPELLANT WAS REPRESENTED BY COUNSEL DURING ANY OF THE CONVICTIONS THAT WERE LATER USED FOR ENHANCEMENT;

IV. PROSECUTORIAL MISCONDUCT ROBBED APPELLANT OF A FAIR TRIAL WHEN [THE PROSECUTOR] STATED HIS OWN OPINION OF THE GUILT OF THE ACCUSED, MOCKED THE ELEMENTS OF THE CRIME, AND GOADED THE JURORS INTO SENTENCING BASED ON DETERRENCE;

V. APPELLANT WAS DENIED CONSTITUTIONALLY EFFECTIVE ASSISTANCE OF COUNSEL BASED ON TRIAL COUNSEL’S STIPULATION TO INTRODUCTION OF PAROLE INFORMATION, FURTHER DRAWING ATTENTION TO THE SAME INFORMATION, AND FAILING TO OBJECT TO VARIOUS FORMS OF PROSECUTORIAL MISCONDUCT; and

VI. THE ACCUMULATION OF ERROR IN THIS CASE DEPRIVED APPELLANT OF DUE PROCESS OF LAW IN VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE II, § 7 OF THE OKLAHOMA CONSTITUTION.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, exhibits and the parties’ briefs, we find that no relief is required under the law and evidence. Gunter’s judgment and sentence is AFFIRMED.

Proposition I. Gunter challenges the testimony of Hope Baugh and Ashley Coston’s concerning the on-going effects caused by the robbery and Gunter’s physical attack on each of them. Gunter argues this evidence amounted to improper victim impact evidence. Given that the challenged evidence is not the type of victim impact evidence contemplated by 21 O.S.2011, §§ 142A-1(8) and 142A-8,² we review the challenged testimony to determine whether it was properly admissible relevant evidence.

Relevant evidence is evidence having any tendency to make the existence of a fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. 12 O.S. 2011, § 2401. Relevant evidence need not conclusively, or even directly, establish the defendant’s guilt; it is admissible if, when taken with other evidence in the case, it tends to establish a material fact in issue. Here, however, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. The record shows Gunter failed to object at trial to the now challenged testimony. He has thus waived review of this alleged error for all but plain error.

To be entitled to relief for plain error, 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. 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. To the extent Gunter’s claim can be construed as challenging the victims’ testimony concerning the bodily injuries they each sustained when physically attacked by Gunter, there is no error, plain or otherwise. This testimony was relevant in establishing the elements of Gunter’s assault and battery with a dangerous weapon charges.

First, this evidence was relevant to show the willful and purposeful use of force or violence against the victims, consistent with the definitions of assault and battery. Second, this evidence was also relevant to show that the manner in which Gunter used his gun to strike the victims was likely to produce great bodily harm and thus was relevant to prove the third element of the crime, i.e., that the gun, as used by Gunter, was a dangerous weapon. Lastly, evidence that Gunter’s attack caused physical injuries to both women was relevant to prove Gunter’s intent was to cause bodily harm to the victims. However, testimony by Baugh and Coston concerning the on-going mental impact caused by the robbery and Gunter’s physical attack on each of them was minimally relevant and verged on improper victim sympathy.

Nonetheless, any error in the testimony presented to the jury was harmless in light of the substantial evidence of Gunter’s guilt, the sufficiency of which Gunter does not challenge on appeal. Moreover, testimony regarding the residual mental impact resulting from Gunter’s crimes was nominal. Nothing in the record indicates that the jury based its verdicts on anything other than the evidence of the charged crimes. The sentences imposed in particular reflect the violent nature of Gunter’s crimes as well as his four prior felony convictions. As such, any error in the admission of this testimony did not affect the outcome of the trial. Proposition I is denied.

Proposition II. At the close of Oklahoma City Police Detective Dustin Motley’s direct examination testimony, the prosecutor asked Motley if he had ever interview[ed] Carlos Gunter? Det. Motley responded, I did take [Gunter] to an interview room. The second we sat down, he stated that he would like an attorney. Defense counsel promptly objected, and the trial court sustained the objection. Thereafter, defense counsel approached the bench and moved for a mistrial, which the trial court denied.

In his second proposition of error, Gunter argues that the trial court’s act of simply sustaining the objection was insufficient to remedy the error. Citing relevant case law, he asserts the only appropriate remedy to a comment on the right to remain silent is a mistrial because admonishing the jury would only compound the error. Thus, Gunter argues the primary issue before this Court is whether the trial court’s failure to grant a mistrial was harmless.

The record on appeal shows Gunter invoked his right to counsel after being Mirandized by Det. Motley. Thus, the trial court properly sustained Gunter’s objection to Det. Motley’s erroneous reference to Gunter’s right to remain silent. Nonetheless, upon review we find such error was harmless beyond a reasonable doubt as the evidence of Gunter’s guilt was overwhelming and no prejudice resulted. Proposition II is denied.

Proposition III. During the second stage of trial, Gunter stipulated to the four prior convictions alleged by the State, removing the need for the State to introduce the judgments and sentences. In addition, Gunter testified during the second stage of trial. He acknowledged his stipulation and admitted he entered guilty pleas in each of his four prior felony cases. Gunter thus waived appellate review of this claim for all but plain error review. Gunter fails to show actual or obvious error.

Having admitted the four prior felonies alleged by the State through his stipulation and testimony, Gunter now bears the burden of proof in his collateral attack on these judgments and sentences for lack of assistance of counsel. Gunter has not even attempted to meet [t]his burden, and has given us no reason to believe he was without counsel on those occasions. Proposition III is denied.

Proposition IV. Because Gunter’s various claims of prosecutorial misconduct now challenged on appeal were not met with objection at trial, our review is limited to plain error. Gunter fails to demonstrate plain error. On claims of prosecutorial misconduct, relief will be granted only where the prosecutor committed misconduct that so infected the defendant’s trial that it was rendered fundamentally unfair, such that the jury’s verdicts should not be relied upon.

We find the challenged comments, taken individually or cumulatively, did not deprive Gunter of a fundamentally fair trial in violation of due process. Thus, finding no error, plain or otherwise, Proposition IV is denied.

Proposition V. To prevail on an ineffective assistance of counsel claim, the appellant must show both that counsel’s performance was deficient and that the deficient performance prejudiced his defense. In Proposition I, III and IV, we addressed and rejected the underlying claims to Gunter’s ineffective assistance argument. Gunter is thus unable to show Strickland prejudice. Relief for Proposition V is denied.

Proposition VI. Gunter alleges that relief is warranted based upon the cumulative effect of the propositions of error alleged in his brief in chief. Cumulative error, however, does not deprive the defendant of a fair trial when the errors considered together do not affect the outcome of the proceedings. Gunter’s claims, neither individually nor collectively, warrant relief. Proposition IV is denied.

DECISION

The Judgment and Sentence of the district court 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 delivery and filing of this decision.

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Footnotes:

  1. Under 21 O.S.Supp.2014, § 13.1, Gunter must serve a minimum of 85% of his Count 1 sentence before he is eligible for parole.
  2. Given that the challenged evidence is not the type of victim impact evidence contemplated by 21 O.S.2011, §§ 142A-1(8) and 142A-8.
  3. Relevant evidence is evidence having any tendency to make the existence of a fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. 12 O.S. 2011, § 2401.
  4. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
  5. See Shultz v. State, 1991 OK CR 57, I 52, 811 P.2d 1322, 1335.
  6. See Guy v. State, 1989 OK CR 35, I 9, 778 P.2d 470, 473.
  7. See Coddington U. State, 2006 OK CR 34, 9 52, 142 P.3d 437, 452.
  8. See Bland U. State, 2000 OK CR 11, I 110, 4 P.3d 702, 730.
  9. See Cheatham U. State, 1995 OK CR 32, I 50, 900 P.2d 414, 427.
  10. See Musonda, 2019 OK CR 1, I 6, 435 P.3d at 696.
  11. See Hanson U. State, 1986 OK CR 40, I 6, 716 P.2d 688, 689-90.
  12. See Sanders U. State, 2015 OK CR 11, I 21, 358 P.3d 280, 286.
  13. See Darden v. Wainwright, 477 U.S. 168, 181, 106 S. Ct. 2464, 2471, 91 L. Ed. 2d 144 (1986).
  14. See Tryon, 2018 OK CR 20, I 137, 423 P.3d at 654.
  15. See Bosse v. State, 2017 OK CR 10, 91 92, 400 P.3d 834, 865-66.
  16. See Marshall U. State, 2010 OK CR 8, I 61, 232 P.3d 467, 481.
  17. Postelle, 2011 OK CR 30, I 94, 267 P.3d at 146 (internal quote omitted).

Oklahoma Statutes citations:

  • Okla. Stat. tit. 21 § 801 (2011) - Robbery with a Dangerous Weapon
  • Okla. Stat. tit. 21 § 645 (2011) - Assault and Battery with a Dangerous Weapon
  • Okla. Stat. tit. 21 § 13.1 (2014) - Parole Eligibility
  • Okla. Stat. tit. 12 § 2401 (2011) - Relevant Evidence
  • Okla. Stat. tit. 21 § 142A-1 (2014) - Definition of Victim Impact Evidence
  • Okla. Stat. tit. 21 § 142A-8 (2014) - Parameters for Admission of Victim Impact Evidence
  • Okla. Stat. tit. 21 § 701.8 (2011) - Sentencing
  • Okla. Stat. tit. 22 § 3.15 (2019) - Mandate Issuance

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

  • 18 U.S.C. § 3501 - Procedures for rapid disposal of certain confession cases
  • 21 U.S.C. § 851 - Prior convictions
  • 21 U.S.C. § 142A - Victim impact evidence

Other citations:

No other rule citations found.

Case citations:

  • Bramlett v. State, 2018 OK CR 19, I 36, 422 P.3d 788, 799-800
  • Frederick v. State, 2001 OK CR 34, I 94, 37 P.3d 908, 934
  • Moore v. State, 2019 OK CR 12, I 17, 443 P.3d 579, 584
  • Postelle v. State, 2011 OK CR 30, I 31, 267 P.3d 114, 131
  • Tafolla v. State, 2019 OK CR 15, I 27, P.3d__
  • Williamson v. State, 2018 OK CR 15, I 12, 422 P.3d 752, 757
  • Davis v. State, 2018 OK CR 7, I 14, 419 P.3d 271, 278
  • Musonda v. State, 2019 OK CR 1, I 6, 435 P.3d 694, 696
  • Baird v. State, 2017 OK CR 16, I 25, 400 P.3d 875, 883
  • Diaz v. State, 1986 OK CR 167, I 11, 728 P.2d 503, 509-10
  • Shultz v. State, 1991 OK CR 57, I 52, 811 P.2d 1322, 1335
  • Guy v. State, 1989 OK CR 35, I 9, 778 P.2d 470, 473
  • Shepherd v. State, 1931 OK CR 271, 51 Okl.Cr. 209, 300 P. 421, 424
  • Runnels v. State, 1977 OK CR 146, I 35, 562 P.2d 932, 936
  • White v. State, 1995 OK CR 15, I 22, 900 P.2d 982, 992
  • Bland v. State, 2000 OK CR 11, I 110, 4 P.3d 702, 730
  • Cheatham v. State, 1995 OK CR 32, I 50, 900 P.2d 414, 427
  • Hanson v. State, 1986 OK CR 40, I 6, 716 P.2d 688, 689-90
  • Chadwell v. State, 2019 OK CR 14, I 9, _P.3d_
  • Harmon v. State, 2011 OK CR 6, I 36, 248 P.3d 918, 934
  • Sanders v. State, 2015 OK CR 11, I 21, 358 P.3d 280, 286
  • Darden v. Wainwright, 477 U.S. 168, 181, 106 S. Ct. 2464, 2471, 91 L. Ed. 2d 144 (1986)
  • Tryon v. State, 2018 OK CR 20, I 137, 423 P.3d 654
  • Bosse v. State, 2017 OK CR 10, I 92, 400 P.3d 834, 865-66
  • Marshall v. State, 2010 OK CR 8, I 61, 232 P.3d 467, 481
  • Postelle v. State, 2011 OK CR 30, I 94, 267 P.3d 114, 146
  • Garrison v. State, 2004 OK CR 35, I 117, 103 P.3d 590, 610-11

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