Kaylin Mixon v State Of Oklahoma

F-2017-902

Filed: Nov. 15, 2018

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Kaylin Mixon appealed his conviction for Second Degree Depraved Mind Murder. The conviction and sentence was for 30 years in prison plus a $100.00 fine. Judge Rowland 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. (2018), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there a failure to hearken the jury or offer the Defendant an opportunity to have the jury individually polled, requiring reversal and remand for a new trial?
• Did the admission of exhibits depicting the handiwork of the medical examiner deny Appellant's right to a fair trial consistent with due process of law?
• Did the trial court commit plain error in assessing a $100.00 fine in addition to the punishment set out by the jury?

Findings

• the court did not err in failing to poll the jury
• the court did not abuse its discretion in admitting autopsy photographs
• the court did not err in assessing a $100.00 fine

F-2017-902

Nov. 15, 2018

Kaylin Mixon

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, PRESIDING JUDGE: Appellant Kaylin Mixon was tried by jury and convicted of Second Degree Depraved Mind Murder (21 O.S.2011, § 701.8), After Former Conviction of Two or More Felonies, in the District Court of Oklahoma County, Case No. CF-2016-154. The jury recommended as punishment thirty (30) years in prison and the trial court sentenced accordingly, additionally ordering the assessment of a $100.00 fine. It is from this judgment and sentence that Appellant appeals.

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

I. The trial court’s failure to hearken the jury or at least offer the Defendant an opportunity to have the jury individually polled requires that his conviction be reversed and remanded for a new trial.

II. Appellant’s right to a fair trial consistent with due process of law, as secured to him by the 5th and 14th Amendments to the United States Constitution, as well as Article II, Section 7 of the Oklahoma Constitution, by the admission into evidence exhibits depicting the handiwork of the medical examiner.

III. The trial court committed plain error in assessing a $100.00 fine in addition to the punishment set out by the jury.

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 find that under the law and the evidence no relief is warranted.

In Proposition I, Appellant argues his conviction must be reversed and remanded because the trial court’s failure to poll the jury after the first stage guilty verdict denied him the right to a unanimous verdict and violated the provisions of 22 O.S.2011, §§ 921 & 922. We review only for plain error as this objection was not raised before the trial court. Under the plain error test set forth in Simpson v. State, 1994 OK CR 40, 876 P.2d 690, we determine whether 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 also Bivens v. State, 2018 OK CR 33, 11, P.3d; 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; Hogan v. State, 2006 OK CR 19, 38, 139 P.3d 907, 923.

The record shows that the trial court asked the jury foreperson if the jury had reached a verdict. When the foreperson answered in the affirmative, he was directed to hand the verdict to the bailiff who handed it to the judge to be read aloud. After reading the verdict aloud, the judge asked the foreperson if that was the verdict from the jury, to which the foreperson replied, yes, ma’am. The jury was not individually polled as to the verdict, but such was not requested nor was the absence of such met with an objection. No juror raised an objection to the verdict or claimed it was not the verdict of the jury. This procedure sufficiently complies with the dictates of §§ 921 and 922. Appellant’s request to overturn Nichols v. Territory, Okla., 3 Okla. 622, 1985 OK 46, 41 P. 108 (1895) is not persuasive. Appellant has not made a showing on appeal, nor is any apparent from the record, that the first stage verdict in this case was not a unanimous verdict. This Court will not presume error from a silent record. Leech v. State, 2003 OK CR 4, 4, 66 P.3d 987, 989. We find no error and thus no plain error in the return of the first stage verdict in this case.

In Proposition II, Appellant contends he was denied a fair trial by the admission of State’s Exhibits 34 & 35, autopsy photographs of the decedent’s head. Appellant admits the photos show the bullet hole through the decedent’s skull. However, he argues the photos were not relevant and highly inflammatory as the cause of death was not challenged and the photos depict the handiwork of the medical examiner and should have been excluded as being substantially more prejudicial than probative. Appellant’s objection at trial was overruled; therefore, our review on appeal is for an abuse of discretion and absent an abuse of that discretion, this Court will not reverse the trial court’s ruling. Martinez v. State, 2016 OK CR 3, 39, 371 P.2d 1100, 1112; Mitchell v. State, 2010 OK CR 14, 57, 235 P.3d 640, 655.

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 conclusion or judgment clearly against the logic and effect of the facts presented. State v. Delso, 2013 OK CR 5, 5, 298 P.3d 1192, 1194. Photographs are admissible if their content is relevant and their probative value is not substantially outweighed by their prejudicial effect. Mitchell, 2010 OK CR 14, 57, 235 P.3d at 655. The probative value of photographs of murder victims can be manifested in numerous ways, including showing the nature, extent and location of wounds, establishing the corpus delicti, depicting the crime scene, and corroborating the medical examiner’s testimony. Id. The photos in this case were relevant in showing the nature and extent of the wound and the cause of death. Appellant’s argument that the photographs were unduly prejudicial because the manner of death was not disputed has been previously rejected by this Court. Mitchell, 2010 OK CR 14, 57, 235 P.3d at 655 citing Patton v. State, 1998 OK CR 66, 59, 973 P.2d 270, 290. The trial court did not abuse its discretion in admitting State’s Exhibits 34 and 35.

In Proposition III, Appellant contends the trial court erred in assessing a $100.00 fine in addition to the punishment recommended by the jury. Appellant admits he did not object to the fine at sentencing, thereby waiving all but plain error review. Under the plain error review set forth above, we find no error and thus no plain error. See Simpson v. State, 1994 OK CR 40, 876 P.2d 690. Appellant correctly notes that there is no fine provided in 21 O.S.2011, § 701.8, second degree depraved mind murder. He also acknowledges that 21 O.S.2011, § 64(B) provides that in a felony case, where no fine is prescribed by law, the court or a jury may impose a fine on the offender not exceeding Ten Thousand Dollars ($10,000.00) in addition to the imprisonment prescribed. Additionally, in Fite v. State, 1993 OK CR 58, § 11, 873 P.2d 293, 295, this Court determined that 22 O.S. § 991a allows the trial court to impose additional sanctions prescribed by law. Appellant argues that Fite should be overruled by the subsequent amendment to § 64 allowing the jury, as well as the judge, to impose a fine. Contrary to Appellant’s argument, the language of § 64, allowing the judge and the jury to impose a fine in addition to the prescribed imprisonment does not obviate Fite and Appellant has not provided sufficient argument for now overruling Fite. We find no error in the trial court’s assessment of the $100.00 fine. Finding no error, and thus no plain error, this proposition is denied.

This appeal is denied.

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. (2018), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

AN APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY THE HONORABLE CINDY H. TRUONG, DISTRICT JUDGE

APPEARANCES AT TRIAL

TONY COLEMAN

DAVID PRATER
DISTRICT ATTORNEY

ANTUANYA DEBOSE
P.O. BOX 926
NORMAN, OK 73070

COUNSEL FOR APPELLANT

MIKE HUNTER
ATTORNEY GENERAL

APPEARANCES ON APPEAL

JAMES LOCKARD

MEREDITH EASTER
OF OKLAHOMA

101 PARK AVE., STE. 300
OKLAHOMA CITY, OK 73102

COUNSEL FOR DEFENDANT

RYAN STEPHENSON
DONALD D. SELF
ASST. DISTRICT ATTORNEYS
320 ROBERT S. KERR, STE. 505
OKLAHOMA CITY, OK 73102

COUNSEL FOR THE STATE

OPINION BY: LUMPKIN, P.J.

LEWIS, V.P.J.: Concur

HUDSON, J.: Concur

KUEHN, J.: Concur

ROWLAND, J.: Recuse

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Footnotes:

1. 21 O.S.2011, § 701.8
2. 22 O.S.2011, §§ 921 & 922
3. Simpson v. State, 1994 OK CR 40, 876 P.2d 690
4. Jackson v. State, 2016 OK CR 5, 4, 371 P.3d 1120, 1121
5. Levering v. State, 2013 OK CR 19, 6, 315 P.3d 392, 395
6. Hogan v. State, 2006 OK CR 19, 38, 139 P.3d 907, 923
7. Leech v. State, 2003 OK CR 4, 4, 66 P.3d 987, 989
8. Martinez v. State, 2016 OK CR 3, 39, 371 P.2d 1100, 1112
9. Mitchell v. State, 2010 OK CR 14, 57, 235 P.3d 640, 655
10. State v. Delso, 2013 OK CR 5, 5, 298 P.3d 1192, 1194
11. Patton v. State, 1998 OK CR 66, 59, 973 P.2d 270, 290
12. Fite v. State, 1993 OK CR 58, § 11, 873 P.2d 293, 295
13. 22 O.S. § 991a
14. 21 O.S.2011, § 64(B)

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.8 (2011) - Second Degree Depraved Mind Murder
• Okla. Stat. tit. 22 § 921 (2011) - Polling of Jury
• Okla. Stat. tit. 22 § 922 (2011) - Polling of Jury
• Okla. Stat. tit. 21 § 64(B) (2011) - Fine in Felony Cases
• Okla. Stat. tit. 22 § 991a (2011) - Additional Sanctions
• Okla. Stat. tit. 21 § 64 (2011) - General Provisions Regarding Fines

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.