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ORIGINAL *1044689071* IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA JASMINE MICHELLE IRVIN, Appellant, ) NOT FOR PUBLICATION V. ) Case No. F-2018-622 STATE OF OKLAHOMA ) FILED IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA Appellee. ) SEP 19 2019 ) JOHN D. HADDEN CLERK OPINION LUMPKIN, JUDGE: Appellant Jasmine Michelle Irvin was convicted in a non-jury trial of First Degree Murder (21 O.S.Supp.2002, § 701.7(A)), Case No. CF-2016-255 in the District Court of Lincoln County. The trial court sentenced Appellant to life in prison without the possibility of parole. It is from this judgment and sentence that Appellant appeals. 1 Appellant was convicted of the first degree murder of her estranged husband, Robert Godwin. The victim’s body was found July 15, 2016, in a secluded untraveled area near County Road 790 1 Appellant was charged conjointly with her brother Jeremy Tyson Irvin. Their cases were separated for trial. Jeremy Irvin has filed a separate appeal of his conviction. Case No. F-2018-801. 1 and County Road 3530 in Lincoln County. The body was found approximately thirty (30) – (40) yards from the victim’s pickup. The victim had four (4) gunshot wounds to his back and several spent shell casings were found at the scene. His wallet and driver’s license were in his pants pocket. His cell phone was found inside his truck. Cell phone data showed the last cell phone contact was at approximately 9:00 p.m. on July 14, 2016, from Appellant. As Appellant has not challenged the sufficiency of the evidence supporting her conviction, the summary of the evidence will be brief. The evidence showed that Appellant told those around her that she hated the victim and wanted him dead. Appellant attempted to elicit others to help her kill the victim but ultimately she and her brother, Jeremy Irvin, committed the act. The victim was last seen leaving a bar on July 14, 2016, between approximately 8:30 and 9:00 p.m. Through a series of text messages, Appellant lured the victim to the secluded country road. Evidence showed the victim had tried to run but was caught in a barbed wire fence and shot four (4) times in the back. He died as a result of those gunshots and his death was ruled a homicide. Further facts will be set forth as necessary. 2 In Proposition I, Appellant contends the record is insufficient to show that she knowingly and intelligently waived her right to a jury trial. She raised no objection regarding the waiver of her right prior to the bench trial. Therefore, our review on appeal is for plain error under the standard set forth in Simpson U. State, 1994 OK CR 40, 876 P.2d 690. To be entitled to relief under plain error, an appellant must show an actual error, which is plain or obvious, and which affects her substantial rights. See Duclos U. State, 2017 OK CR 8, I 5, 400 P.3d 781, 783 (citing Simpson, 1994 OK CR 40, 11 10, 26, 30, 876 P.2d at 694, 699, 701). 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. “A defendant may waive his right to jury trial. There must be a clear showing that the waiver was competent, knowing and intelligent.” Hinsley V. State, 2012 OK CR 11, I 5, 280 P.3d 354, 355. “A record showing an intelligent, competent and knowing waiver of a fundamental right is mandatory. Anything less is not a waiver. It is incumbent upon the trial court to make a record of a waiver of a fundamental right, and all doubts concerning waiver must be 3 resolved in the accused’s favor.” Id. “The better practice is for a defendant to make the waiver personally, in open court, orally or in writing, and the trial court must inquire to be sure the waiver is expressly and intelligently made.” Id. The record in this case shows a knowing and voluntary waiver. On February 2, 2018, Appellant, counsel, and the prosecutor appeared before the trial court for a waiver of Appellant’s right to a jury trial. Under questioning by the trial court, Appellant acknowledged that she was competent to waive her right to a jury trial and that counsel had adequately advised her of her rights to a jury trial. When asked by the judge whether she understood that if her case was to be tried by a jury of 12 people, they would have to unanimously agree in order to render a verdict of guilt, Appellant paused before answering. Although she answered in the affirmative, the judge noted Appellant’s hesitation and asked if she was unsure about waiving her rights to a jury trial. Appellant replied that she was not sure. The judge advised Appellant that she would show that Appellant maintained her right to a jury trial and her case was set on the next jury term. 4 The parties appeared again before the court on February 5, 2018. Defense counsel announced that after consulting with Appellant, she had elected to waive her right to a jury trial. Counsel said he had answered several questions from Appellant and was willing to answer any more she might have. After ensuring that Appellant was competent, the judge inquired of Appellant as to whether she wished to give up her right to a jury trial. The judge reminded Appellant they had discussed the matter earlier, and reiterated that Appellant had a constitutional right to a jury trial and if she chose to waive that right, it meant she was giving up the right to have a jury trial. The judge further reminded Appellant that once she waived the right, it was very difficult to reclaim it. Appellant indicated she understood. Under further questioning by the court, Appellant indicated she had discussed the matter with counsel, and she felt that she had been adequately informed and advised about the decision to waive her right to a jury trial. Appellant indicated she had no further questions for the court. After receiving a waiver from the State regarding its right to a jury trial, the judge found Appellant had 5 knowingly waived her right to a jury trial and the case was set for pre-trial conference. As this record shows, Appellant personally appeared before the court and ultimately unequivocally informed the court that she wished to waive her right to a jury trial. The trial court’s finding of a knowing and intelligent waiver was consistent with the law and the record. Finding no error, we find no plain error and this proposition is denied. In Proposition II, Appellant contends her due process rights were violated by the improper admission of victim impact testimony. This objection was not raised at trial; therefore, our review is for plain error under the standard set forth above. Martinez U. State, 2016 OK CR 3, I 64, 371 P.3d 1100, 1115 (citing Simpson, 1994 OK CR 40, I 2, 876 P.2d at 692-93). Victim impact evidence may be presented at the time of sentencing for violent crimes pursuant to 21 O.S.Supp.2014, § 142A- 1. Under § 142A-1(1) in homicide cases, surviving family members are considered victims. Section 142A-1(8) provides that members of the immediate family of each victim or person designated by the family members of the victim may testify in person at the defendant’s 6 sentencing hearing or may present a written victim impact statement to be read at the hearing. At the sentencing hearing in this case, the three witnesses gave victim impact testimony – the victim’s two (2) sisters and a friend of the victim’s mother, Ms. Brown-Fanning. The prosecutor also read a brief statement from the victim’s son. Appellant now challenges the testimony of Ms. Brown-Fanning arguing that as she was not a family member or designated family representative under § 142A-1(8), her testimony was prohibited under Lott U. State, 2004 OK CR 27, 98 P.3d 318. In Lott, this Court held that “[t]he [statutory] listing in the disjunctive of the persons who may give victim impact evidence indicates the Legislature’s intent to make these three categories of victim impact witnesses mutually exclusive.” 2004 OK CR 27, I 110, 98 P.3d at 347. Therefore, allowing Ms. Brown-Fanning to testify in addition to the victim’s family members was error. See Mitchell V. State, 2006 OK CR 20, I 73, 136 P.3d 671, 702. However, this error does not necessarily warrant relief. Victim impact testimony improperly admitted in Lott was not cause for resentencing as it did not “cause[d] the verdict to be the result of an unreasonable emotional response.” Id., at I 114, 98 P.3d at 347. In 7 the present case, the judge heard the victim impact testimony and made the sentencing determination. Appellant has failed to rebut the presumption that the trial court considered only competent and admissible evidence in reaching its verdict. See Long v. State, 2003 OK CR 14, I 4, 74 P.3d 105, 107 (“[w]e presume, when a trial court operates as the trier of fact, that only competent and admissible evidence is considered in reaching a decision”.). In a bench trial, where “[t]he decision maker [was] a judge, not a jury, and unless proven otherwise, we will presume the decisions made with respect to sentencing were in compliance with the law ” Marshall U. State, 1998 OK CR 30, 9 32, 963 P.2d 1, 11. The trial judge is presumed to know the law. Magnan U. State, 2009 OK CR 16, I 51, 207 P.3d 397, 412. Appellant further argues that he was prejudiced because each of the victim impact witnesses referenced the effect of the victim’s death on his four (4) children. As the sentencing proceeding was held before a judge and not a jury, Appellant has a higher burden of showing that the potentially prejudicial evidence influenced the sentencing. Bush U. State, 2012 OK CR 9, I 95, 280 P.3d 337, 353. Statements made by the judge in pronouncing Appellant’s sentence 8 show that she relied on the evidence presented at trial and not anything, including victim impact testimony, presented at sentencing. Appellant has not shown the trial court was influenced into imposing a sentence which was not warranted by the evidence. We find no plain error occurred as there was no violation of her substantial rights and deny this proposition of error. In Proposition III, Appellant contends counsel was ineffective for failing to ensure that her waiver of the right to a jury trial was entered competently, intelligently, and knowingly; and for failing to object to the admission of improper victim impact evidence. Appellant’s claim of ineffective assistance is reviewed under the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to show that counsel was ineffective, Appellant must show both deficient performance and prejudice. Sanders v. State, 2015 OK CR 11, I 29, 358 P.3d 280, 287 citing Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. In Strickland, the Supreme Court said there is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional conduct, i.e., an appellant must overcome the presumption that, under the circumstances, counsel’s conduct constituted sound trial 9 strategy. Sanders, 2015 OK CR 11, II 29, 358 P.3d at 287. To establish prejudice, Appellant must show that there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id., at “I 29, 358 P.3d at 287. A reasonable probability is a probability sufficient to undermine the confidence in the outcome. Id, citing Harrington v. Richter, 562 U.S. 86, 111-112, 131 S.Ct. 770, 791-792, 178 L.Ed.2d 624 (2011). As addressed in Proposition I, the record is sufficient to show Appellant’s waiver of the right to jury trial was entered competently, intelligently, and knowingly. Therefore, Appellant has failed to show counsel’s performance was deficient. In Proposition II, we found error in the admission of victim impact testimony. However, we also found that error did not constitute plain error as it did not affect Appellant’s substantial rights. The record shows the judge’s sentencing determination was based on properly admitted evidence. Appellant has failed to show there is a reasonable probability that, but for counsel’s failure to object to the victim impact testimony, the result of her sentencing proceeding would have been different. 10 Having thoroughly reviewed Appellant’s claim of ineffective assistance, we find she has failed to carry her burden of showing deficient performance and prejudice resulting from counsel’s alleged omissions. Warner v. State, 2006 OK CR 40, I 206, 144 P.3d 838, 893. This proposition is denied. In Proposition IV, Appellant argues the accumulation of errors denied her a fair trial. This Court has held that a cumulative error argument has no merit when this Court fails to sustain any of the other errors raised by Appellant. Engles v. State, 2015 OK CR 17, I 13, 366 P.3d 311, 315; Williams U. State, 2001 OK CR 9, I 127, 22 P.3d 702, 732. While an error was found in the admission of victim impact testimony, neither this error nor any other of the errors raised by Appellant warrant relief. Therefore, we find no relief is warranted by the accumulation of errors. 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. 11 AN APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY THE HONORABLE CYNTHIA FERRELL ASHWOOD, DISTRICT JUDGE APPEARANCES AT TRIAL APPEARANCES ON APPEAL CHARLES MICHAEL THOMPSON WYNDI THOMAS HOBBS PATRICK AARON THOMPSON OKLA INDIGENT DEFENSE SYSTEM 104 W. 8TH ST. P.O. BOX 926 CHANDLER, OK 74834 NORMAN, OK 73070 COUNSEL FOR THE DEFENDANT COUNSEL FOR APPELLANT MIKE HUNTER RICHARD L. SMOTHERMON ATTY GENERAL OF OKLAHOMA DISTRICT ATTORNEY JAY SCHNIEDERJAN PATRICIA HIGH ASST. ATTORNEY GENERAL JAMES MICHAEL SIDERIAS 313 N.E. 21 ST ST. ASST. DISTRICT ATTORNEYS OKLAHOMA CITY, OK 73105 LINCOLN CO. COURTHOUSE COUNSEL FOR THE STATE 811 MANVEL AVE., STE. 1 CHANDLER, OK 74834 COUNSEL FOR THE STATE OPINION BY: LUMPKIN, J. LEWIS, P.J.: Concur KUEHN, V.P.J.: Concur in Results HUDSON, J.: Concur ROWLAND, J.: Concur RA 12 KUEHN, V.P.J., CONCURRING IN RESULT: I concur in affirming Appellant’s conviction and sentence. I write to discuss the standard of review used to resolve Proposition I. I agree that, as Appellant did not raise her waiver of jury trial below, we review for plain error. However, the Majority improperly reviews this issue under the standard this Court reserves for nonconstitutional claims. Waiver of jury trial is indisputably a constitutional claim, and the appropriate test for alleged constitutional violations is that required by Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967), rather than the qualitatively different test for nonconstitutional violations found in Simpson v. State, 1994 OK CR 40, 876 P.2d 690. Our Court has explicitly recognized this difference, reaffirming that we analyze unpreserved claims of constitutional error under the Chapman standard. Bartell U. State, 1994 OK CR 59, I 14, 881 P.2d 92, 97. We have not explicitly stated that a waiver of jury trial is reviewed under Chapman. However, we have explicitly and emphatically held that a defendant’s right to be present during critical stages of trial – an equally important and analogous right – is reviewed exclusively under Chapman. Dunn v. State, 2018 OK CR 35, IT 13, 434 P.3d 1, 4; Watson v. State, 2010 OK CR 9, IT 16, 234 P.3d 111, 115. Reviewing Proposition I under Chapman, I would find the State has shown beyond a reasonable doubt that Appellant knowingly and intelligently waived her right to a jury trial. 2

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