F-2018-446

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Byron Craig Herd v State Of Oklahoma

F-2018-446

Filed: Sep. 19, 2019

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Byron Craig Herd appealed his conviction for First Degree Burglary. Conviction and sentence: life in prison. Lewis, P.J., 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 excessive prosecutorial misconduct that deprived Appellant of a fair trial and caused the jury to render an excessive sentence?
  • did the trial court err in imposing a life sentence as excessive under the circumstances of the case?

Findings

  • the court erred regarding excessive prosecutorial misconduct but determined it did not affect the fundamental fairness of the trial
  • the sentence of life in prison is not excessive given the overwhelming evidence of guilt and the appellant's prior convictions


F-2018-446

Sep. 19, 2019

Byron Craig Herd

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, JUDGE: Appellant Byron Craig Herd was tried by jury and found guilty of First Degree Burglary, After Former Conviction of Two or More Felonies (21 O.S.2011, § 1431), in the District Court of Tulsa County, Case No. CF-2017-1112. The jury recommended as punishment life in prison and the trial court sentenced accordingly. It is from this judgment and sentence that Appellant appeals. Appellant raises the following propositions of error in support of his appeal:

1. Appellant must serve 85% of his sentence before becoming eligible for consideration for parole. 21 O.S.2011, § 13.1.

I. Excessive prosecutorial misconduct deprived Appellant of a fair trial and caused the jury to render an excessive sentence.

II. Appellant’s life sentence is excessive and should be modified.

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 under the law and the evidence no relief is warranted.

In Proposition I, Appellant contends that he was denied a fair trial by pervasive prosecutorial misconduct. He argues that the prosecutor elicited sympathy for the victims during voir dire, opening statement, direct examination of the State’s witnesses, and closing argument.

We evaluate alleged prosecutorial misconduct within the context of the entire trial, considering not only the propriety of the prosecutor’s actions, but also the strength of the evidence against the defendant and the corresponding arguments of defense counsel. Sanders v. State, 2015 OK CR 11, ¶ 21, 358 P.3d 280, 286. Relief will be granted on claims of prosecutorial misconduct only where the prosecutor committed misconduct that so infected the defendant’s trial that it was rendered fundamentally unfair, such that the jury’s verdict should not be relied upon. Id.

Reviewing the questioning and arguments now challenged on appeal, we note that many were met with contemporaneous objections. In those cases, the objections were sustained. The majority of those rulings were not accompanied by an admonishment to the jury. However, admonishments were never requested by the defense. This Court does not require an admonishment each time an objection is sustained. Mack v. State, 2008 OK CR 23, ¶ 9, 188 P.3d 1284, 289. The court’s sustaining of the objections cured any error. Young v. State, 2000 OK CR 17, ¶ 50, 12 P.3d 20, 37.

Other of the challenged questions and comments were not met with contemporaneous objections. Therefore, our review is for plain error. Malone v. State, 2013 OK CR 1, ¶ 40, 293 P.3d 198, 211. 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 substantial rights. See Duclos v. State, 2017 OK CR 8, ¶ 5, 400 P.3d 781, 783.

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. This Court has repeatedly held it is improper for the prosecution to ask jurors to have sympathy for victims. Bench v. State, 2018 OK CR 31, ¶ 144, 431 P.3d 929, 967; Garrison v. State, 2004 OK CR 35, ¶ 117, 103 P.3d 590, 610-11; Tobler v. State, 1984 OK CR 90, ¶ 16, 688 P.2d 350, 354.

It is clearly improper for a prosecutor to make arguments which tend to ‘divert the jury from its duty to decide the case on the evidence. Jones v. State, 1987 OK CR 103, ¶ 17, 738 P.2d 525, 530.

At the outset of this trial, the prosecutor asked the jury to have sympathy for the victims. During voir dire, the prosecutor groomed and indoctrinated the jury so that they would feel sympathy for the victims. Questioning in voir dire focused on how the potential jurors would feel as a burglary victim; what the phrase your home is your castle meant to them; their security concerns for themselves, their home, and their possessions; and what they would do if someone broke into their home. At one point, the judge even called the prosecutor to the bench and admonished her to discontinue this type of questioning.

Appeals for sympathy continued during opening statement when the prosecutor asked the jurors to put themselves in the same position as the victims. The jurors were told the victims were scared and vulnerable. The prosecutor’s questioning of the victims and witnesses raised the subject of the victims’ fear during the crime and their demeanor after the crime. In closing argument, the prosecutor argued the crime was just moments from becoming a murder and specifically requested the jury put themselves in the victims’ shoes.

We have distinguished between instances where a prosecutor overtly sought sympathy for the victims and instances where the prosecutor’s comments likely evoked an emotional reaction but were reasonable inferences based upon the evidence. Bench, 2018 OK CR 31, ¶ 145, 431 P.3d at 967-68. The comments in the present case are closer to the former rather than the latter. The prosecutor clearly attempted to have the jurors put themselves in the position of the victims by appealing to their own vulnerabilities.

Such blatant appeals to emotions exceed the bounds of fair comment and stray into the prohibited realm of argument intended to arouse the passions and prejudices of the jury. Pryor v. State, 2011 OK CR 18, ¶ 5-10, 254 P.3d 721, 722-25. Such strategy is tantamount to asking jurors to disregard their oaths as jurors. Such attempts violate The ABA Standards for Criminal Justice, § 3-5.8(c), which have been adopted by this Court. See Jones, 1987 OK CR 103, ¶ 17, 738 P.2d at 529.

Under this standard, a prosecutor is strictly prohibited from using arguments calculated to inflame the passions and prejudices of the jury. Id. [T]he primary duty of a lawyer engaged in public prosecution is not to convict, but to see that justice is done. Id.

The most blatant attempts at sympathy were met with objections that were sustained. Other comments drew no objection, but they constituted error nonetheless. Fortunately for the prosecution, the evidence of guilt was more than overwhelming. Appellant was seen on camera in the victims’ home. There was no doubt as to his identity and his actions. He was caught by police moments after leaving the victims’ home. The jury was fully instructed not to let sympathy, sentiment or prejudice enter into their deliberations. We presume the jury follows their instructions. Garrison, 2004 OK CR 35, ¶ 119, 103 P.3d at 611.

Additionally, the State proved seven (7) prior convictions with the most recent from 1993 resulting in a thirty-five (35) year sentence. The jury obviously believed a life sentence was the appropriate punishment.

As addressed in Proposition II, Appellant’s sentence was not excessive and cannot serve as evidence of prejudice resulting from any misconduct by the prosecutor. Even though some of the prosecutor’s conduct was objectionable, we cannot say the combined effect of the improper arguments was so prejudicial as to adversely affect the fundamental fairness of Appellant’s trial. As the prosecutor’s misconduct did not determine the verdict or result in a miscarriage of justice, no relief is warranted. Pack v. State, 1991 OK CR 109, ¶ 17, 819 P.2d 280, 284 citing 20 O.S. § 3001.1.

In a case where the evidence of guilt is not so overwhelming as it is here, the prosecutor’s misconduct could have literally snatched defeat from the jaws of victory. This proposition is denied.

In Proposition II, Appellant contends his life sentence is excessive. He admits the sentence is within statutory range but argues the prosecutor’s misconduct resulted in him receiving the maximum sentence. This Court will not modify a sentence within the statutory range unless, considering all the facts and circumstances, it shocks our conscience. Thompson v. State, 2018 OK CR 32, ¶ 16, 429 P.3d 690, 694.

The statutory range of punishment for first-degree burglary, after former conviction of two or more felonies, is 20 years to life. 21 O.S.2011, § 51.1(B); 21 O.S.2011, § 1436. The maximum sentence of life imposed upon Appellant is not excessive as the evidence of his guilt was overwhelming and in light of his seven (7) prior convictions. Finding no legal reason to modify Appellant’s sentence, this proposition is denied. Accordingly, 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. (2019), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

AN APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY THE HONORABLE DOUG DRUMMOND, DISTRICT JUDGE

APPEARANCES AT TRIAL

APPEARANCES ON APPEAL

JASON LOLLMAN
THOMAS REESE
TULSA COUNTY PUBLIC DEFENDER’S OFFICE
423 S. BOULDER AVE., STE. 300
TULSA, OK 74103-3805

COUNSEL FOR THE DEFENSE

STEVE KUNZWEILER
MIKE HUNTER
DISTRICT ATTORNEY
ATTORNEY GENERAL OF OKLAHOMA
AN DANIEL
ASST. DISTRICT ATTORNEY
ASHLEY L. WILLIS
ASST. ATTORNEY GENERAL
500 S. DENVER, STE. 900
TULSA, OK 74103

COUNSEL FOR THE STATE

OPINION BY: LUMPKIN, J.
LEWIS, P.J.: Concur
KUEHN, V.P.J.: Concur
HUDSON, J.: Concur
ROWLAND, J.: Concur

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Footnotes:

  1. 21 O.S.2011, § 1431.
  2. 21 O.S.2011, § 13.1.
  3. Sanders U. State, 2015 OK CR 11, I 21, 358 P.3d 280, 286.
  4. Mack U. State, 2008 OK CR 23, I 9, 188 P.3d 1284, 289.
  5. Young v. State, 2000 OK CR 17, I 50, 12 P.3d 20, 37.
  6. Malone v. State, 2013 OK CR 1, 1 40, 293 P.3d 198, 211.
  7. Simpson v. State, 1994 OK CR 40, 876 P.2d 690.
  8. Duclos v. State, 2017 OK CR 8, 9 5, 400 P.3d 781, 783.
  9. Pack v. State, 1991 OK CR 109, 9 17, 819 P.2d 280, 284 citing 20 O.S. § 3001.1.
  10. Thompson v. State, 2018 OK CR 32, I 16, 429 P.3d 690, 694.
  11. 21 O.S.2011, § 51.1(B); 21 O.S.2011, § 1436.

Oklahoma Statutes citations:

  • Okla. Stat. tit. 21 § 1431 (2011) - First Degree Burglary, After Former Conviction of Two or More Felonies
  • Okla. Stat. tit. 21 § 13.1 (2011) - Parole Eligibility
  • Okla. Stat. tit. 21 § 51.1(B) (2011) - Statutory Range of Punishment for First-Degree Burglary
  • Okla. Stat. tit. 21 § 1436 (2011) - Punishments for Specific Crimes
  • Okla. Stat. tit. 20 § 3001.1 - Prosecutorial Misconduct
  • Okla. Stat. tit. 22, Ch.18, App. (2019) - Rules of the Oklahoma Court of Criminal Appeals

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:

  • Sanders v. State, 2015 OK CR 11, I 21, 358 P.3d 280, 286
  • Mack v. State, 2008 OK CR 23, I 9, 188 P.3d 1284, 289
  • Young v. State, 2000 OK CR 17, I 50, 12 P.3d 20, 37
  • Malone v. State, 2013 OK CR 1, I 40, 293 P.3d 198, 211
  • Simpson v. State, 1994 OK CR 40, 876 P.2d 690
  • Duclos v. State, 2017 OK CR 8, I 9, 400 P.3d 781, 783
  • Bench v. State, 2018 OK CR 31, I 144, 431 P.3d 929, 967
  • Garrison v. State, 2004 OK CR 35, I 117, 103 P.3d 590, 610-11
  • Tobler v. State, 1984 OK CR 90, I 16, 688 P.2d 350, 354
  • Jones v. State, 1987 OK CR 103, I 17, 738 P.2d 525, 530
  • Pryor v. State, 2011 OK CR 18, I 5-10, 254 P.3d 721, 722-25
  • Pack v. State, 1991 OK CR 109, I 17, 819 P.2d 280, 284
  • Thompson v. State, 2018 OK CR 32, I 16, 429 P.3d 690, 694