Terry Lyn Elkins v The State Of Oklahoma

F-2017-950

Filed: Feb. 7, 2019

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Terry Lyn Elkins appealed his conviction for possession of methamphetamine and resisting an officer. His conviction and sentence included 40 years in prison for possession and a $500 fine for resisting. Judge Lumpkin dissented on the issue of resentencing. Elkins was found guilty by a jury in Comanche County for having drugs and resisting police. The jury did not find him guilty of assaulting a police officer. During the trial, the court allowed a document called a "pen pack," which showed Elkins' past crimes and bad behavior while in prison, to be used to make his sentence harsher. The judges agreed that while some of this past information was related to his sentence, including too much unnecessary and unfairly prejudicial information from the pen pack could have influenced the jury's decision on how long to sentence him. As a result, they decided to keep Elkins' convictions but sent the case back for a new sentence on the drug charge. Judge Lumpkin disagreed with sending the case back, believing that the sentence given was not too harsh considering Elkins' past. He felt that the extra information had not negatively impacted Elkins' punishment enough to require a new sentence.

Decision

The Judgment of the District Court of Comanche County is AFFIRMED, but the case is REMANDED FOR RESENTENCING on Count 1. 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 improper and irrelevant evidence presented to the jury that affected Appellant's substantial rights and the fairness of the sentencing proceeding?
• did the trial court err by allowing the State to introduce additional prejudicial information contained in the pen pack beyond what was necessary for sentence enhancement?
• was any error in the admission of the pen pack harmless given that Appellant did not receive the maximum sentence available?

Findings

• the court erred in allowing irrelevant and unfairly prejudicial evidence to be presented to the jury
• the evidence was sufficient to affirm the convictions
• the case is remanded for resentencing on Count 1

F-2017-950

Feb. 7, 2019

Terry Lyn Elkins

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

KUEHN, VICE PRESIDING JUDGE: Appellant, Terry Lyn Elkins, was convicted by a jury in Comanche County District Court, Case No. CF-2016-318, of Count 1, Possession of Methamphetamine (63 O.S.Supp.2012, § 2-402), After Conviction of Two or More Felonies, and Count 3, Resisting an Officer (21 O.S.2011, § 268). The jury acquitted Appellant of Count 2, Assault and Battery on a Police Officer. On September 6, 2017, the Honorable Emmit Tayloe, District Judge, sentenced him in accordance with the jury’s verdict to 40 years imprisonment on Count 1 and a $500 fine on Count 3. This appeal followed.

Appellant raises one proposition of error in support of his appeal: THE PRESENTATION AND ADMISSION TO THE JURY OF IMPROPER AND IRRELEVANT EVIDENCE AFFECTED APPELLANT’S SUBSTANTIAL RIGHTS AND SERIOUSLY AFFECTED THE FAIRNESS OF THE SENTENCING PROCEEDING.

After thorough consideration of this proposition, the briefs of the parties, and the record on appeal, we affirm the convictions but remand for resentencing on Count 1. To enhance sentence on the felony counts, the State alleged Appellant’s five prior drug-related felony convictions. Over defense objection, the trial court allowed the State to prove up these convictions with Appellant’s pen pack, a document compiled by the Department of Corrections which included not only the Judgment and Sentence documents needed for sentence enhancement, but information about other crimes and bad acts as well.

The pen pack referenced several felony convictions from the 1980’s which were not alleged for sentence-enhancement purposes. It also included decades’ worth of Consolidated Record Cards, which document when Appellant was subjected to disciplinary action while in prison, the reason for the discipline, and the kind of sanctions imposed. The misconduct ranged from general disrespect to staff, lying, and being in unauthorized areas, to more serious offenses like assault and battery on other inmates and staff.

The pen pack also included documents showing that Appellant had a 1983 probationary sentence accelerated due to the commission of a new crime. While the Judgment and Sentence documents relating to the five convictions alleged for sentence enhancement were properly admitted, see Terrell v. State, 2018 OK CR 22, 425 P.3d 399, the introduction of this additional information was error.

Harney v. State, 2011 OK CR 10, 91 16-19, 256 P.3d 1002, 1006; Stewart v. State, 2016 OK CR 9, TI 13-23, 372 P.3d 508, 511-13.¹ In his separate writing, Judge Lumpkin tries to distinguish Harney from the present case, because Harney involved information in the defendant’s Driving Index, not a pen pack – as if the label applied to a document determined the relevance of its contents. But even Judge Lumpkin, in Harney, observed: The issue is not whether Appellant’s Driving Index was admissible but whether the State should have been required to redact any irrelevant and unfairly prejudicial information from the Index. 2011 OK CR 10, I 16, 256 P.3d at 1006 (emphasis added).

We certainly do not hold that a pen pack is per se inadmissible, only that irrelevant and unfairly prejudicial information in that document should be redacted, and that failure to do so may require relief. See Mitchell v. State, 2016 OK CR 21, I 29, 387 P.3d 934, 945 (no unfair prejudice in introducing defendant’s pen pack; references to his prison misconduct had been redacted from it).

Judge Lumpkin’s suggestion that we deny relief because pen packs are generally admissible, citing Frazier v. State, 1994 OK CR 31, 874 P.2d 1289, is particularly dumbfounding. Frazier dealt only with whether identifying information in the pen pack established a relevant issue (whether the defendant had a prior conviction). In fact, Frazier states:

We note that the relevance of the material in the pen pack was not at issue in this case, for only that information which pertained to [a] former conviction was admitted. The fact that the pen pack is admissible does not relieve the trial court of its duty to make a determination of relevance prior to admitting any evidence. 1994 OK CR 31, I 13, 874 P.2d at 1292 (emphasis added).

Although Appellant had a history of convictions for simple possession and distribution of drugs, the amount of illegal drugs at issue in this case was minimal, the number of references to potentially prejudicial information in the pen pack was considerable, and the sentence imposed by the jury was significant. We find a reasonable probability that the improper information affected the jury’s punishment recommendation on Count 1, and REMAND for resentencing on that count. Stewart, 2016 OK CR 9, I 23, 372 P.3d at 513.

DECISION

The Judgment of the District Court of Comanche County is AFFIRMED, but the case is REMANDED FOR RESENTENCING on Count 1. 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.

Click Here To Download PDF

Footnotes:

1. 63 O.S.Supp.2012, § 2-402
2. 21 O.S.2011, § 268
3. Terrell v. State, 2018 OK CR 22, 425 P.3d 399
4. Harney U. State, 2011 OK CR 10, 256 P.3d 1002
5. Stewart v. State, 2016 OK CR 9, 372 P.3d 508
6. Mitchell v. State, 2016 OK CR 21, 387 P.3d 934
7. Frazier v. State, 1994 OK CR 31, 874 P.2d 1289
8. Sealy U. State, 1986 OK CR 141, 738 P.2d 521
9. Smallwood v. State, 1995 OK CR 60, 907 P.2d 217

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-402 (2012) - Possession of Methamphetamine
• Okla. Stat. tit. 21 § 268 (2011) - Resisting an Officer
• Okla. Stat. tit. 22 § 18 (2019) - Rules of the Oklahoma Court of Criminal Appeals
• Okla. Stat. tit. 21 § 701.8 (2011) - Enhancement of Sentences
• Okla. Stat. tit. 21 § 9 (2011) - General Provisions
• Okla. Stat. tit. 22 § 1054 (2011) - Evidence and Testimony
• Okla. Stat. tit. 22 § 1060 (2011) - Court Procedures
• Okla. Stat. tit. 22 § 1096 (2011) - Sentencing Procedures
• Okla. Stat. tit. 22 § 1001 (2011) - Generally
• Okla. Stat. tit. 22 § 1053 (2011) - Admission of Evidence
• Okla. Stat. tit. 22 § 987 (2011) - Appeals
• Okla. Stat. tit. 22 § 1065 (2011) - Confidentiality of Records
• Okla. Stat. tit. 22 § 1059 (2011) - Public Records
• Okla. Stat. tit. 22 § 1052 (2011) - Preservation of Evidence
• Okla. Stat. tit. 22 § 1057 (2011) - Rules of Evidence
• Okla. Stat. tit. 22 § 1085 (2011) - Appeals to District Court
• Okla. Stat. tit. 22 § 1061 (2011) - Presidential Voting
• Okla. Stat. tit. 22 § 1063 (2011) - Jury Selection
• Okla. Stat. tit. 22 § 1067 (2011) - Jury Instructions

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:

• Terrell v. State, 2018 OK CR 22, 425 P.3d 399
• Harney v. State, 2011 OK CR 10, 256 P.3d 1002
• Stewart v. State, 2016 OK CR 9, 372 P.3d 508
• Frazier v. State, 1994 OK CR 31, 874 P.2d 1289
• Sealy v. State, 1986 OK CR 141, 738 P.2d 521
• Smallwood v. State, 1995 OK CR 60, 907 P.2d 217