Jeremy Tyson Irvin v State Of Oklahoma

F-2018-801

Filed: Dec. 5, 2019

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Jeremy Tyson Irvin appealed his conviction for First Degree Murder. His conviction and sentence were for life in prison with the possibility of parole after serving 85% of his sentence. Judge Lumpkin wrote the opinion, and Judges Lewis, Kuehn, Hudson, and Rowland all agreed. In his appeal, Irvin claimed he did not get proper help from his lawyer during the trial. He also said he wasn't allowed to show important evidence about the victim's past violence, and he argued that a long standoff with police shouldn't have been used against him. Additionally, he felt the jury was not given the right instructions on how to consider his actions after the crime. After reviewing everything, the court decided that Irvin was fairly tried and his lawyer's performance was acceptable. The court found no significant errors to change the outcome of the trial, and they denied his appeal.

Decision

The JUDGMENT and SENTENCE is AFFIRMED. The APPLICATION FOR EVIDENTIARY HEARING ON SIXTH AMENDMENT CLAIMS IS DENIED.

Issues

• Was there a denial of the right to effective assistance of trial counsel?
• Did the trial court violate the Appellant's right to present a complete defense by refusing specific character evidence?
• Was the admission of the Appellant's thirteen-hour standoff with police considered plain error due to prejudice outweighing probative value?
• Did the court's failure to instruct the jury on evidence of flight constitute plain error?
• Did the cumulative effect of all errors deprive the Appellant of a fair trial?

Findings

• the court did not err in denying the claim of ineffective assistance of counsel
• there was no error in the trial court's limitation on the admission of evidence of the victim's prior bad acts
• there was no plain error in the admission of evidence regarding Appellant's thirteen-hour standoff with police
• there was no plain error in the absence of a jury instruction on flight
• the cumulative effect of the errors did not deny Appellant a fair trial

F-2018-801

Dec. 5, 2019

Jeremy Tyson Irvin

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, JUDGE: Appellant Jeremy Tyson Irvin was tried by jury and convicted of First Degree Murder (21 O.S.Supp.2015, § 701.7(A)), Case No. CF-2016-256 in the District Court of Lincoln County. The jury recommended a sentence of life in prison with the possibility of parole and the trial court sentenced accordingly. It is from this judgment and sentence that Appellant appeals.1

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

Appellant raises the following propositions of error in support of his appeal:

I. Appellant was denied his right to the effective assistance of trial counsel, in violation of the 6th and 14th Amendments to the United States Constitution and Art. II, §§ 7, 9, and 20, of the Oklahoma Constitution.

II. The trial court violated Appellant’s right to present a complete defense when the court refused to allow specific character evidence regarding Robert’s Godwin’s violent history.

III. Admission of Appellant’s thirteen-hour standoff with police was plain error because any probative value was substantially outweighed by prejudice.

IV. The court’s failure to instruct the jury on evidence of flight was plain error.

V. The cumulative effect of all the errors addressed above deprived Appellant of a fair trial.

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 asserts that he was denied the effective assistance of counsel. His claim is based on both record and extra-record materials. The extra-record allegations include claims that counsel was ineffective by: 1) failing to utilize evidence of Appellant’s traumatic brain injury; 2) failing to investigate the voluntariness of Appellant’s statement to law enforcement and identify the presence of alleged coercive law enforcement tactics; and 3) failing to make a sufficient offer of proof detailing Appellant’s knowledge of the victim’s prior acts of violence and criminal history. The record based claims of ineffectiveness include: 1) the failure to object to evidence of the 13-hour standoff; and 2) failure to request a flight instruction. Claims of ineffective assistance are reviewed under the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Sanders v. State, 2015 OK CR 11, ¶ 29, 358 P.3d 280, 287.

In order to show that counsel was ineffective, Appellant must show both deficient performance and prejudice. Id., 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 strategy. Id. at ¶ 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 ¶ 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). When a claim of ineffective assistance of counsel can be disposed of on the ground of lack of prejudice, that course should be followed. Strickland, 466 U.S. at 696, 104 S.Ct. at 2070, 80 L.Ed.2d at 699.

In support of his extra-record claims, Appellant has filed contemporaneously with his appellate brief, an Application for Evidentiary Hearing on Sixth Amendment Grounds. Appellant argues that his extra-record claims should be considered with the remainder of his claims in order to determine whether counsel’s representation, as a whole, fell below minimal constitutional standards of effective representation.

Rule 3.11(B)(3)(b), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019) allows an appellant to request an evidentiary hearing when it is alleged on appeal that trial counsel was ineffective for failing to utilize available evidence which could have been made available during the course of trial. Frederick v. State, 2017 OK CR 12, ¶ 166, 400 P.3d 786, 826-827 overruled on other grounds, Williamson v. State, 2018 OK CR 15, ¶ 51, n.1., 422 P.3d 752, 762, n.1.

Once an application has been properly submitted along with supporting affidavits, this Court reviews the application to see if it contains sufficient evidence to show this Court by clear and convincing evidence there is a strong possibility trial counsel was ineffective for failing to utilize or identify the complained-of evidence. Id. The attachments filed in support of a request for an evidentiary hearing are not considered, by reason of their filing with this Court, part of the trial record. Bland v. State, 2000 OK CR 11, ¶ 115, 4 P.3d 702, 731; Dewberry v. State, 1998 OK CR 10, ¶ 9, 954 P.2d 774, 776. The attachments will be considered only in regards to the application for evidentiary hearing on sixth amendment claims. In order to meet the clear and convincing standard sufficient to warrant an evidentiary hearing, Appellant must present this Court with evidence, not speculation, second guesses or innuendo. Lott v. State, 2004 OK CR 27, ¶ 136, 98 P.3d 318, 351.

After thorough consideration of each of Appellant’s claims in light of both the evidence offered at trial and materials submitted in support of his Rule 3.11 application, we find that Appellant has not shown clear and convincing evidence suggesting a strong possibility that trial counsel was ineffective in the acts or omissions challenged here. Imaginative criticisms of trial counsel’s performance issue all too readily from the gainful vantage of a zealous hindsight. Hancock v. State, 2007 OK CR 9, ¶ 113, 155 P.3d 769, 822. These criticisms fall short of impeaching counsel’s trial performance. Appellant has not shown the strong possibility that counsel’s alleged errors resulted in a breakdown of the adversarial process so serious that the trial cannot be deemed to have produced a reliable result. Id. Appellant’s request to remand for evidentiary hearing under Rule 3.11 is denied.

When we review and deny a request for an evidentiary hearing on a claim of ineffective assistance under the standard set forth in Rule 3.11, we necessarily make the adjudication that Appellant has not shown defense counsel to be ineffective under the more rigorous federal standard set forth in Strickland.

Therefore, the claims of ineffective assistance of counsel raised in the appellate brief accompanying the extra-record claims raised in the 3.11 motion are hereby denied. Turning to Appellant’s record based claims, we find evidence of the thirteen-hour standoff between Appellant and law enforcement and the surrounding circumstances was relevant evidence properly admitted. Dodd v. State, 2004 OK CR 31, ¶ 34, 100 P.3d 1017, 1031; 12 O.S.2011, § 2403. Any objection by counsel to the admission of the evidence would have been overruled. Trial counsel will not be found ineffective for failing to raise objections that would have been overruled. Eizember v. State, 2007 OK CR 29, ¶ 155, 164 P.3d 208, 244.

A flight instruction was not given in this case, nor was one requested. Under Williamson v. State, 2018 OK CR 15, ¶ 48, 422 P.3d 752, 762, decided one month before trial in this case, it seems likely the trial court would have given a flight instruction if defense counsel had requested. However, this Court has previously noted there can be valid strategic reasons for not requesting the instruction for the instruction spells out how the evidence may be considered as circumstantial evidence of guilt. Garrison v. State, 2004 OK CR 35, ¶ 103, 103 P.3d 590, 609.

Here, the jury heard not only about the length of the standoff, but also that Appellant had a gun to his head for most of that time and that more than one law enforcement agency had negotiated with Appellant to get him to surrender. The jury also heard that he had destroyed or concealed multiple phones with evidentiary value, and that he had defaced the murder weapon and attempted to hide it. Under this evidence, trial counsel could have reasonably decided not to emphasize this evidence and to forego any instruction which would tell the jury the evidence could be considered as illustrating Appellant’s consciousness of guilt. This type of decision would be a valid strategic move. This Court will not second-guess matters concerning trial strategy if there is a reasonable basis for counsel’s actions. Lee v. State, 2018 OK CR 14, ¶ 14, 422 P.3d 782, 786.

Appellant has failed to show any prejudice by counsel’s conduct. We have thoroughly reviewed Appellant’s claims of ineffectiveness. His claims merely show that appellate counsel would have tried the case differently from trial counsel. [T]he fact that another lawyer would have followed a different course during the trial is not grounds for branding the appointed attorney with the opprobrium of ineffectiveness, or infidelity, or incompetency. Absent a showing of incompetence, the Appellant is bound by the decisions of his counsel and mistakes in tactic and trial strategy do not provide grounds for subsequent attack. Id. 2018 OK CR 14, ¶ 15, 422 P.3d at 786-787. We will not find counsel ineffective for pursuing strategies different than what appellate counsel might have followed. Appellant has failed to meet his burden of showing a reasonable probability that, but for any unprofessional errors by counsel, the result of the trial would have been different as any errors or omissions by counsel did not influence the jury’s determination of guilt or sentencing recommendation. Accordingly, we find that Appellant was not denied the effective assistance of counsel and this proposition of error is denied.

In Proposition II, we review for plain error the trial court’s limitation on the admission of evidence of the victim’s prior bad acts and criminal history. Under the test set forth in Simpson v. State, 1994 OK CR 40, ¶ 10, 26, 30, 876 P.2d 690, 694, 699, 701, this Court determines whether the 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. Id.; Hogan v. State, 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923. See also Jackson v. State, 2016 OK CR 5, ¶ 4, 371 P.3d 1120, 1121; Levering v. State, 2013 OK CR 19, ¶ 6, 315 P.3d 392, 395.

The defense was allowed to present substantial evidence of the victim’s prior bad acts/criminal history through Appellant’s testimony. Appellant did not offer any additional evidence at trial nor does he now in his appellate brief. Any limitations placed upon the presentation of additional evidence of the victim’s prior bad acts or criminal history was not error and did not infringe upon Appellant’s ability to present his defense. Appellant fully explained his fear of the victim due to the victim’s prior threats to Appellant’s family and that as a result, he was in imminent fear for his life. The defense evidence was sufficient to warrant a self-defense instruction. We find no error and thus no plain error. This proposition is denied.

In Proposition III, Appellant claims admission of his thirteen-hour standoff and the surrounding circumstances was more prejudicial than probative and denied him a fair trial. No objection was raised to the admission of this evidence. Therefore, our review is for plain error under the standard set forth above. See Daniels v. State, 2016 OK CR 2, ¶ 3, 369 P.3d 381, 383. When measuring the relevancy of evidence against its prejudicial effect, the court should give the evidence its maximum reasonable probative force and its minimum reasonable prejudicial value. Mayes v. State, 1994 OK CR 44, ¶ 77, 887 P.2d 1288, 1309. The burden is on the party opposing its introduction to show it is substantially more prejudicial than probative. Id. Appellant has failed to meet that burden here. The evidence was relevant to illustrate Appellant’s consciousness of guilt and not so prejudicial or an act of such inflammatory nature as to distract the jury from the issues before it. Dodd v. State, 2004 OK CR 31, ¶ 36, 100 P.3d 1017, 1031. We find no error and thus no plain error in its admission. This proposition is denied.

In Proposition IV, we review for plain error, under the standard set forth above, the absence of a jury instruction on flight. Daniels, 2016 OK CR 2, ¶ 3, 369 P.3d at 383. In light of the evidence of guilt, separate and apart from the thirteen-hour standoff and accompanying circumstances, and considering the full panoply of instructions given to the jury, we find any error in omitting a flight instruction did not affect Appellant’s substantial rights or deny him a fair trial. Appellant’s argument that he would not have been convicted if a flight instruction had been given is not supported by the record. Finding no plain error, this proposition is denied.

In Proposition V, Appellant argues the cumulative effect of the errors in his case denied him a fair trial. This Court has repeatedly held that a cumulative error argument has no merit when this Court fails to sustain any of the other errors raised by Appellant. Lee, 2018 OK CR 14, ¶ 20, 422 P.3d at 787. However, when there have been numerous irregularities during the course of a trial that tend to prejudice the rights of the defendant, reversal will be required if the cumulative effect of all the errors is to deny the defendant a fair trial. Id. Any errors found in this case did not require relief, and when considered cumulatively, do not require reversal or modification of the sentence. Accordingly, this appeal is denied.

DECISION

The JUDGMENT and SENTENCE is AFFIRMED. The APPLICATION FOR EVIDENTIARY HEARING ON SIXTH AMENDMENT CLAIMS 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.

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Footnotes:

1. Appellant must serve 85% of his sentence before becoming eligible for consideration for parole. 21 O.S.2011, § 13.1.
2. Appellant was charged conjointly with his sister Jasmine Michelle Irvin. Their cases were separated for trial. This Court affirmed the judgment and sentence in Jasmine Irvin's separate appeal, Case No. F-2018-622, opinion not for publication, September 19, 2019.
3. Claims of ineffective assistance are reviewed under the standard set forth in Strickland U. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Sanders v. State, 2015 OK CR 11, ¶ 29, 358 P.3d 280, 287.
4. Rule 3.11(B)(3)(b), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019) allows an appellant to request an evidentiary hearing when it is alleged on appeal that trial counsel was ineffective for failing to utilize available evidence which could have been made available during the course of trial. Frederick U. State, 2017 OK CR 12, ¶ 166, 400 P.3d 786, 826-827 overruling on other grounds, Williamson U. State, 2018 OK CR 15, ¶ 51, n.1., 422 P.3d 752, 762, n.1.
5. The attachments filed in support of a request for an evidentiary hearing are not considered, by reason of their filing with this Court, part of the trial record. Bland U. State, 2000 OK CR 11, ¶ 115, 4 P.3d 702, 731; Dewberry U. State, 1998 OK CR 10, ¶ 9, 954 P.2d 774, 776.
6. In order to meet the clear and convincing standard sufficient to warrant an evidentiary hearing, Appellant must present this Court with evidence, not speculation, second guesses or innuendo. Lott v. State, 2004 OK CR 27, ¶ 136, 98 P.3d 318, 351.
7. "Imaginative criticisms of trial counsel's performance issue all too readily from the gainful vantage of a zealous hindsight." Hancock U. State, 2007 OK CR 9, ¶ 113, 155 P.3d 769, 822.
8. Simpson U. State, 1994 OK CR 40, ¶ 10, 26, 30, 876 P.2d 690, 694, 699, 701.
9. Jackson U. State, 2016 OK CR 5, ¶ 4, 371 P.3d 1120, 1121.
10. Levering U. State, 2013 OK CR 19, ¶ 6, 315 P.3d 392, 395.
11. Daniels U. State, 2016 OK CR 2, ¶ 3, 369 P.3d 381, 383.
12. Mayes U. State, 1994 OK CR 44, ¶ 77, 887 P.2d 1288, 1309.
13. Dodd v. State, 2004 OK CR 31, ¶ 36, 100 P.3d 1017, 1031.
14. Eizember v. State, 2007 OK CR 29, ¶ 155, 164 P.3d 208, 244.
15. Williamson U. State, 2018 OK CR 15, ¶ 48, 422 P.3d 752, 762.
16. Garrison U. State, 2004 OK CR 35, ¶ 103, 103 P.3d 590, 609.
17. Lee v. State, 2018 OK CR 14, ¶ 14, 422 P.3d 782, 786.
18. Lee, 2018 OK CR 14, ¶ 20, 422 P.3d at 787.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.7 (2015) - First Degree Murder
• Okla. Stat. tit. 21 § 13.1 (2011) - Sentencing
• Okla. Stat. tit. 12 § 2403 (2011) - Rule on Relevant Evidence
• Okla. Stat. tit. 22 § 3.11 (2019) - Request for Evidentiary Hearing
• Okla. Stat. tit. 22 § 3.15 (2019) - Mandate

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

• 6th Amendment - -
• 14th Amendment - -

Other citations:

No other rule citations found.

Case citations:

• Bramlett v. State, 2018 OK CR 19, I 36, 422 P.3d 788, 799-800
• Sanders v. State, 2015 OK CR 11, I 29, 358 P.3d 280, 287
• Frederick v. State, 2017 OK CR 12, I 166, 400 P.3d 786, 826-827
• Bland v. State, 2000 OK CR 11, 115, 4 P.3d 702, 731
• Dewberry v. State, 1998 OK CR 10, II 9, 954 P.2d 774, 776
• Lott v. State, 2004 OK CR 27, IT 136, 98 P.3d 318, 351
• Hancock v. State, 2007 OK CR 9, T 113, 155 P.3d 769, 822
• Simpson v. State, 2010 OK CR 6, I 53, 230 P.3d 888, 906
• Daniels v. State, 2016 OK CR 2, IT 3, 369 P.3d 381, 383
• Mayes v. State, 1994 OK CR 44, I 77, 887 P.2d 1288, 1309
• Dodd v. State, 2004 OK CR 31, I 34, 100 P.3d 1017, 1031
• Eizember v. State, 2007 OK CR 29, I 155, 164 P.3d 208, 244
• Williamson v. State, 2018 OK CR 15, I 51, n.1., 422 P.3d 752, 762, n.1.
• Garrison v. State, 2004 OK CR 35, 9 103, 103 P.3d 590, 609
• Lee v. State, 2018 OK CR 14, I 14, 422 P.3d 782, 786
• Jackson v. State, 2016 OK CR 5, IT 4, 371 P.3d 1120, 1121
• Levering v. State, 2013 OK CR 19, 9 6, 315 P.3d 392, 395
• Simpson v. State, 1994 OK CR 40, 10, 26, 30, 876 P.2d 690, 694, 699, 701