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F-2018-147

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Marcus Dewayne Boyd v The State Of Oklahoma

F-2018-147

Filed: Sep. 26, 2019

Not for publication

Prevailing Party: The State of Oklahoma

Summary

# Marcus Dewayne Boyd appealed his conviction for First Degree Murder, Shooting with Intent to Kill, and Possession of a Firearm After Former Conviction of a Felony. Conviction and sentence: life in prison for murder, twenty years for each shooting charge, and two years for firearm possession, all to run consecutively, with a requirement to serve 85% of his sentences before being eligible for parole. Judge Lumpkin wrote the opinion and Judge Kuehn dissented. In this case, Boyd was found guilty of murder and related charges after a jury trial. He argued that he did not receive a fair trial due to several issues, including the admission of bad character evidence regarding his gang affiliation, improper questioning of witnesses, and problems with the photographic lineup used for identification. The court reviewed Boyd's claims and found that the trial court made some mistakes but decided those mistakes did not significantly affect the trial's outcome. The court found no abuse of discretion regarding the gang evidence, photographic lineup, or witness questioning. Boyd's defense was also said to be adequate despite his claims of ineffective counsel. Ultimately, the court affirmed Boyd's conviction and sentence, and they did not find enough evidence of harmful error to overturn the trial's decisions. The dissenting opinion noted concerns about how the original court handled constitutional error claims.

Decision

The Judgment and Sentence of the District Court is hereby AFFIRMED. The Application for Evidentiary Hearing pursuant to Rule 3.11(B)(3)(b) is DENIED. 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 Appellant's right to due process and a fair trial violated by the improper admission of bad character evidence?
  • Did the prosecutor improperly impeach defense witness Deisha Ewell with evidence of the bad character of her relatives and associates?
  • Were the photographic lineup procedures so suggestive that they violated Appellant's due process rights?
  • Did the State suppress favorable evidence in violation of due process of law, denying Appellant a fair trial?
  • Was the State's impeachment of defense witness Ashaela Phillips with evidence of her prior misdemeanor shoplifting conviction improper?
  • Did the trial court err in requiring Appellant to stand trial while wearing a restraining device without a proper showing that such restraint was necessary?
  • Was Appellant deprived of the reasonably effective assistance of counsel guaranteed by the Sixth Amendment?
  • Did the accumulation of errors in this case deprive Appellant of due process of law?

Findings

  • the court did not err in admitting bad character evidence
  • the court did not err in the impeachment of defense witness Deisha Ewell
  • the court did not err in the photographic lineup procedures
  • the State did not suppress favorable evidence in violation of due process
  • the court did not err in impeaching defense witness Ashaela Phillips
  • the trial court erred in requiring Appellant to wear a restraining device without a proper showing that such restraint was necessary
  • Appellant was not deprived of the reasonably effective assistance of counsel
  • cumulative error did not deprive Appellant of due process

F-2018-147

Sep. 26, 2019

Marcus Dewayne Boyd

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, JUDGE: Appellant, Marcus Dewayne Boyd, was tried by jury and convicted of Count A, First Degree Murder, in violation of 21 O.S.Supp.2012, § 701.7,1 Counts B-E, Shooting with Intent to Kill, in violation of 21 O.S.2011, § 652(A) and Count F, Possession of a Firearm After Former Conviction of a Felony, in the District Court of Tulsa County Case Number CF-2016-3995. The jury recommended as punishment imprisonment for life in Count A, twenty years in Counts B-E and two years in Count F. The trial court sentenced Appellant accordingly and ordered the sentences run consecutively. It is from these judgments and sentences that Appellant appeals.

Appellant raises the following propositions of error in this appeal:

I. Appellant’s rights to due process and a fair trial were violated by the improper admission of bad character evidence.
II. The prosecutor improperly impeached defense witness Deisha Ewell with evidence of the bad character of her relatives and associates.
III. The photographic lineup procedures in this case were so suggestive that they violated Appellant’s due process rights and required that his convictions be reversed.
IV. The State’s suppression of favorable evidence in violation of due process of law denied Appellant a fair trial.
V. The State improperly impeached defense witness Ashaela Phillips with evidence that she had previously been convicted of misdemeanor shoplifting.
VI. The trial court erred in requiring Appellant to stand trial while wearing a restraining device without a proper showing that such restraint was necessary under the facts of the case.
VII. Appellant was deprived of the reasonably effective assistance of counsel, guaranteed him by the Sixth Amendment to the United States Constitution.
VIII. 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 these propositions and the entire record before us on appeal including the original record, transcripts and briefs of the parties, we have determined that neither reversal nor modification of sentence is warranted under the law and the evidence.

In Proposition One, Appellant contends the trial court erred when it admitted bad character evidence. He asserts that evidence concerning his gang affiliation denied him due process and a fair trial. Contrary to the assertion contained in Appellant’s brief, defense counsel objected prior to the testimony of Corporal Rusty Brown, supervisor of the Tulsa Police Department’s organized gang unit. Therefore, our review is for an abuse of the trial court’s discretion. An abuse of discretion has been defined as a clearly erroneous conclusion and judgment, one that is clearly against the logic and effect of the facts presented or, stated otherwise, any unreasonable or arbitrary action taken without proper consideration of the facts and law pertaining to the matter at issue. Reviewing the record, we find that the trial court did not abuse its discretion when it determined that the gang affiliation evidence was admissible.

Evidence is considered part of the res gestae when: a) it is so closely connected to the charged offense as to form part of the entire transaction; b) it is necessary to give the jury a complete understanding of the crime; or c) when it is central to the chain of events. This Court has found that evidence of gang involvement or affiliation may be admitted when it is ‘fundamental to understanding what happened and why it happened. Appellant’s affiliation with the Red Mob Bloods was so closely connected to the charged offenses as to form part of the entire transaction and was central to the chain of events.

To the extent Appellant claims a due process violation associated with the admission of the subject evidence, we review the claim for plain error since he did not raise this claim in the trial court. Under the plain error test, 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. As set forth above, the gang affiliation evidence was properly admitted. Therefore, no error, much less plain error occurred. Proposition One is denied.

In Proposition Two, Appellant argues the prosecutor improperly impeached defense witness Deisha Ewell. We find Appellant has waived review of this claim for all but plain error as he raises a different claim in this appeal from the one he made in the trial court. Reviewing Appellant’s claim pursuant to the test for plain error, we find no error, therefore no plain error, occurred in the impeachment of Ewell, as exposure of a witness’s motivation to lie is a proper purpose of cross-examination.

In Proposition Three, Appellant maintains that the photographic lineup, shown by police to Bean and D.P., was improperly suggestive. Appellant failed to object at trial to the witnesses’ identifications; therefore, this Court will review the claim for plain error. Having reviewed the record regarding the lineup, we find there was no error and thus, no plain error. The lineup included Appellant and five other African-American males, all of whom bear similar physical characteristics to those of Appellant. Any difference in the darkness of the photographs is of no relevance to the propriety of the lineup.

In his fourth proposition, Appellant claims the State failed to disclose an agreement with Bean regarding his pending criminal cases in violation of the tenets of Brady v. Maryland. The record shows Bean admitted on direct examination that he had three criminal cases pending in Tulsa County. Appellant has failed to show the State suppressed evidence favorable to him as required by Brady. That Bean ultimately received a more favorable plea bargain than originally offered by the State does not mean the later plea bargain was in existence at the time Bean testified. Furthermore, even excluding Bean’s evidence, there was ample evidence presented in support of Appellant’s guilt.

In his fifth proposition, Appellant contends Ashaela Phillips was improperly impeached with evidence of her misdemeanor shoplifting conviction. Appellant acknowledges the precedent which holds that convictions for crimes of stealing involve dishonesty and are admissible. Appellant invites this Court to overturn its precedent. We decline this invitation. There was no error, and certainly no plain error, in the prosecutor’s impeachment of Phillips with her misdemeanor shoplifting conviction.

In his sixth proposition, Appellant claims the trial court made him wear an ankle restraint without requiring a proper showing of necessity. Reviewing the record, we find the trial court abused its discretion in requiring Appellant to wear a restraint during trial. However, where the restraints are not visible, the burden is on the defendant to demonstrate that he was prejudiced. Since there is no evidence in the record that Appellant’s jury saw the ankle restraint and no evidence that the presence of the ankle restraint prevented Appellant from assisting his counsel or participating in his trial, Appellant has failed to show that this error prejudiced him.

In his seventh proposition, Appellant contends his counsel was ineffective for a variety of reasons. The Strickland test requires an appellant to show: (1) that counsel’s performance was constitutionally deficient; and (2) that counsel’s deficient performance prejudiced the defense. Since we have found no errors in Propositions One, Two, Three, and Five, Appellant has not shown his counsel’s performance was deficient or that he suffered any prejudice.

In his final proposition, Appellant claims the combined errors in his trial denied him of due process. Only one error was found in Proposition Six. Thus, relief on a cumulative error basis is not warranted.

DECISION

The Judgment and Sentence of the District Court is hereby AFFIRMED. The Application for Evidentiary Hearing pursuant to Rule 3.11(B)(3)(b) is DENIED. Pursuant to Rule 3.15, the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

  1. 21 O.S.Supp.2012, § 701.7
  2. 21 O.S.2011, § 652(A)
  3. 21 O.S.2011, § 13.1
  4. 21 O.S.2011, § 2404(B)
  5. Lott v. State, 2004 OK CR 27, 9 40, 98 P.3d 318, 334
  6. Rogers v. State, 1995 OK CR 8, 20-21, 890 P.2d 959, 971
  7. Jackson v. State, 2006 OK CR 45, 28, 146 P.3d 1149, 1160
  8. Thompson v. State, 2007 OK CR 38, I 34, 169 P.3d 1198, 1209
  9. Simpson v. State, 1994 OK CR 40, II 2, 11, 23 30, 876 P.2d 692-95, 698-702
  10. Tryon v. State, 2018 OK CR 20, I 94, 423 P.3d 617, 644
  11. U.S. v. Abel, 469 U.S. 45, 52, 105 S. Ct. 465, 469, 83 L. Ed. 2d 450 (1984)
  12. Beck v. State, 1991 OK CR 126, I 13, 824 P.2d 385, 389
  13. 12 O.S.2011, § 2608(B)
  14. Young v. State, 1998 OK CR 62, I 44, 992 P.2d 332, 343
  15. Ashinsky v. State, 1989 OK CR 59, I 15, 1989 780 P.2d 201, 206
  16. Dodd v. State, 2004 OK CR 31, I 73, 100 P.3d 1017, 1039-40
  17. Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963)
  18. Gates v. State, 1988 OK CR 77, I 19, 754 P.2d 882, 886-87
  19. United States v. Bagley, 473 U.S. 667, 682 (1985)
  20. Kyles v. Whitley, 514 U.S. 419, 434, 115 S. Ct. 1555, 1566, 131 L. Ed. 2d 490 (1995)
  21. Jones v. State, 2006 OK CR 5, I 51, 128 P.3d 521, 540-41
  22. 22 O.S.2011, §§ 952 and 953
  23. Deck v. Missouri, 544 U.S. 622, 624, 125 S. Ct. 2007, 2009, 161 L. Ed. 2d 953 (2005)
  24. 22 O.S.2001, § 15
  25. Sanchez v. State, 2009 OK CR 31, I 34, 223 P.3d 980, 994
  26. Ochoa v. State, 2006 OK CR 21, I 30, 136 P.3d 661, 669
  27. Ochoa v. State, 2006 OK CR 21, 32, 136 P.3d at 670
  28. Mason v. State, 1988 OK CR 113, I 7, 756 P.2d 612, 614
  29. Collins v. State, 2009 OK CR 32, I 23, 223 P.3d 1014, 1019
  30. Robinson v. State, 1987 OK CR 195, 11, 742 P.2d, 1088
  31. Malone v. State, 2013 OK CR 1, T 14, 293 P.3d 198, 206
  32. Harrington v. Richter, 562 U.S. 86, 112, 131 S. Ct. 770, 792, 178 L. Ed. 2d 624 (2011)
  33. Neloms v. State, 2012 OK CR 7, I 40, 274 P.3d 161, 171
  34. Frederick v. State, 2017 OK CR 12, I 166, 400 P.3d 786, 827
  35. Williams v. State, 2011 OK CR 12, I 87, 252 P.3d 221, 253
  36. Warner v. State, 2006 OK CR 40, I 205, 144 P.3d 838, 893

Oklahoma Statutes citations:

  • Okla. Stat. tit. 21 § 701.7 (2012) - First Degree Murder
  • Okla. Stat. tit. 21 § 652(A) (2011) - Shooting with Intent to Kill
  • Okla. Stat. tit. 21 § 1283 (2011) - Possession of a Firearm After Former Conviction of a Felony
  • Okla. Stat. tit. 22 § 955 (2011) - Due Process Rights
  • Okla. Stat. tit. 22 § 1060 (2011) - Fair Trial Rights

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

  • 373 U.S. § 83 - Brady v. Maryland
  • 473 U.S. § 667 - United States v. Bagley
  • 514 U.S. § 419 - Kyles v. Whitley
  • 565 U.S. § 228 - Perry v. New Hampshire
  • 544 U.S. § 622 - Deck v. Missouri
  • 466 U.S. § 668 - Strickland v. Washington

Other citations:

No other rule citations found.

Case citations:

  • Davis v. State, 2011 OK CR 29, I 86, 268 P.3d 86, 113
  • Neloms v. State, 2012 OK CR 7, I 35, 274 P.3d 161, 170
  • Lott v. State, 2004 OK CR 27, I 40, 98 P.3d 318, 334
  • Rogers v. State, 1995 OK CR 8, 20-21, 890 P.2d 959, 971
  • Jackson v. State, 2006 OK CR 45, I 28, 146 P.3d 1149, 1160
  • Thompson v. State, 2007 OK CR 38, I 34, 169 P.3d 1198, 1209
  • Vanderpool v. State, 2018 OK CR 39, I 24, 434 P.3d 318, 324
  • Tryon v. State, 2018 OK CR 20, I 94, 423 P.3d 617, 644
  • Simpson v. State, 1994 OK CR 40, II 2, 11, 23, 30, 876 P.2d 692-95, 698-702
  • 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
  • Hogan v. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923
  • Bench v. State, 2018 OK CR 31, I 140, 431 P.3d 929, 966
  • Harmon v. State, 2011 OK CR 6, I 42, 248 P.3d 918, 935
  • Leigh v. State, 1985 OK CR 41, I 5, 698 P.2d 936, 937
  • Clayton v. State, 1992 OK CR 60, I 55, 840 P.2d 18, 33
  • Perry v. New Hampshire, 565 U.S. 228, 239-44, 132 S. Ct. 716, 724-28, 181 L. Ed. 2d 694 (2012)
  • Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963)
  • Gates v. State, 1988 OK CR 77, I 19, 754 P.2d 882, 886-87
  • Jones v. State, 2006 OK CR 5, I 51, 128 P.3d 521, 540-41
  • Mason v. State, 1988 OK CR 113, I 7, 756 P.2d 612, 614
  • Robinson v. State, 1987 OK CR 195, I 11, 742 P.2d 1088
  • Collins v. State, 2009 OK CR 32, I 23, 223 P.3d 1014, 1019
  • Sanchez v. State, 2009 OK CR 31, I 34, 223 P.3d 980, 994
  • Ochoa v. State, 2006 OK CR 21, I 30, 136 P.3d 661, 669
  • Frederick v. State, 2017 OK CR 12, I 166, 400 P.3d 786, 827
  • Harrington v. Richter, 562 U.S. 86, 112, 131 S. Ct. 770, 792, 178 L. Ed. 2d 624 (2011)
  • Warner v. State, 2006 OK CR 40, I 205, 144 P.3d 838, 893

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