Blog

IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA RANDALL PATRICK MOLLOY, ) ) NOT FOR PUBLICATION Appellant, ) ) Case No. F-2018-502 V. ) ) STATE OF OKLAHOMA, ) FILED ) IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA Appellee. ) AUG 29 2019 SUMMARY OPINION JOHN D. HADDEN CLERK HUDSON, JUDGE: Appellant, Randall Patrick Molloy, was tried and convicted by a jury in Tulsa County District Court, Case No. CF-2017-62, of Child Abuse by Injury, in violation of 21 O.S.Supp.2014, § 843.5(A). The jury recommended a sentence of sixteen years imprisonment and a $5,000.00 fine. The Honorable Doug Drummond, District Judge, presided at trial and sentenced Molloy in accordance with the jury’s verdict. However, Judge Drummond suspended the last three years of the sentence imposed. 1 Molloy now appeals, raising two propositions of error before this Court: 1 Molloy will be required to serve not less than 85% of the sentence imposed before becoming eligible for parole. 21 O.S.Supp.2015, § 13.1 (14). I. APPELLANT WAS DENIED DUE PROCESS AND A FAIR TRIAL WHEN THE STATE FAILED TO DISCLOSE ITS TACIT AGREEMENT WITH THE CO-DEFENDANT AND ELICITED MISLEADING TESTIMONY THEREOF; and II. AN UNNECESSARY AND INADEQUATE LIMITING INSTRUCTION INTERFERED WITH THE JURY’S CONSIDERATION OF THE CO-DEFENDANT’S PRIOR INCRIMINATING STATEMENTS. 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. Appellant’s judgment and sentence is AFFIRMED Proposition I. Appellant did not raise below at any point his claim based on Brady U. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Our review is thus limited to plain error. Musonda v. State, 2019 OK CR 1, “I 12, 435 P.3d 694, 696; Roberts U. State, 1994 OK CR 1, II 19-21, 868 P.2d 712, 719. 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.” Hogan U. State, 2006 OK CR 19, I 38, 139 P.3d 907, 923. This Court will only correct plain error if the error seriously affects the fairness, integrity 2 or public reputation of the judicial proceedings or otherwise represents a miscarriage of justice. Baird v. State, 2017 OK CR 16, I 25, 400 P.3d 875, 883. Appellant fails to show actual or obvious error. “To establish a Brady violation, a defendant must show that the prosecution suppressed evidence that was favorable to him or exculpatory, and that the evidence was material.” Jones U. State, 2006 OK CR 5, I 51, 128 P.3d 521, 541. This rule includes the disclosure of any impeachment evidence favorable to the accused. Brown U. State, 2018 OK CR 3, I 104, 422 P. 3d 155, 175. Evidence is material “only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” Bramlett U. State, 2018 OK CR 19, I 28, 422 P.3d 788, 797 (quoting United States U. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481 (1985)). There is no indication from the record that there was a Brady violation in the present case. The record shows simply that Paige Harris testified without a deal in the hopes that her truthful testimony would influence the prosecutor’s future handling of her 3 case. This fact was fully disclosed to the jury at trial and defense counsel was well aware of Harris’s status before trial. The record does not show that Harris had any kind of a deal with the prosecutor, or any kind of promise, in exchange for her testimony. The fact that Harris desired favorable consideration based upon her testimony does not prove the existence of an undisclosed agreement. The record shows Harris’s testimony was more an act of faith on her part that her truthful testimony would be an advantage later when her case was disposed. The mere fact that the State dismissed Harris’s case after her testimony also does not demonstrate an undisclosed deal. Appellant’s speculation to the contrary is not proof of such a deal and is insufficient to show error, plain or otherwise. Stewart U. State, 2016 OK CR 9, “I 27, 372 P.3d 508, 514 (appellant has “the heavy burden of demonstrating plain error” on appeal). Under the total circumstances presented here, there was no actual or obvious error and, thus, no plain error. Proposition I is denied. Proposition II. Appellant did not object to Instruction No. 20 at trial. Our review again is limited to plain error. Barnes v. State, 2017 OK CR 26, I 22, 408 P.3d 209, 217. “The instructions given to 4 the jury are reviewed by this Court for an abuse of discretion.” Reed U. State, 2016 OK CR 10, I 15, 373 P.3d 118, 122. We do not interfere with the trial court’s judgment “‘if the instructions as a whole, accurately state the applicable law.” Id. (quoting Harney U. State, 2011 OK CR 10, I 10, 256 P.3d 1002, 1005). We define abuse of discretion as “any unreasonable or arbitrary action taken without proper consideration of the facts and law pertaining to the matter at issue.” Id. (quoting Neloms U. State, 2012 OK CR 7, I 35, 274 P.3d 161, 170). Harris’s statement at the hospital that she may have hurt the victim during breastfeeding was inconsistent with her testimony at trial that she was unaware of any time she could have hurt the victim. The first part of Instruction No. 20 addressing the jury’s use of Harris’s prior inconsistent statement for impeachment purposes was thus proper. See 12 O.S.2011, §§ 2607, 2613. Moreover, assuming arguendo that any deficiency in the second part of the instruction negatively impacted the jury’s consideration of Harris’s prior inconsistent statement as proof of guilt or innocence, it did not affect Appellant’s substantial rights. This is because Harris described on the stand how she made the statement at the hospital and then 5 explained it to the jury. This allowed the jury to give this aspect of Harris’s testimony, and by extension her prior statement at the hospital, whatever weight it thought appropriate in adjudicating Appellant’s guilt or innocence. There thus was no plain error arising from Instruction No. 20. Proposition II 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 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 BEVERLY ATTEBERRY CHAD JOHNSON ATTORNEY AT LAW OKLA. INDIGENT DEFENSE P.O. BOX 420 SYSTEM TULSA, OK 74101-0420 P.O. BOX 926 COUNSEL FOR DEFENDANT NORMAN, OK 73070 COUNSEL FOR APPELLANT STEPHANIE JACOBY MIKE HUNTER SARAH MCAMIS ATTORNEY GENERAL ASST. DISTRICT ATTORNEYS JAY SCHNIEDERJAN TULSA COUNTY COURTHOUSE ASST. ATTORNEY GENERAL 500 SOUTH DENVER, SUITE 900 313 N.E. 21 ST STREET TULSA, OK 74103 OKLAHOMA CITY, OK 73105 COUNSEL FOR THE STATE COUNSEL FOR APPELLEE 6 OPINION BY: HUDSON, J. LEWIS, P.J.: CONCUR IN RESULTS KUEHN, V.P.J.: CONCUR LUMPKIN, J.: CONCUR ROWLAND, J.: CONCUR 7

Click Here To Download PDF