Donald Ray Morrow v The State Of Oklahoma

F-2018-852

Filed: Aug. 29, 2019

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Donald Ray Morrow appealed his conviction for first-degree burglary, second-degree burglary, and larceny of an automobile. His convictions resulted in a total sentence of fifteen years for the first charge, four years for the second, and six years for the third, all served at the same time. Judge Jill C. Weedon presided over the trial. Justice Lumpkin dissented.

Decision

The judgment and sentence is AFFIRMED, but the cause is REMANDED with instructions for the trial court to address Appellant's request for correction of the judgment to grant credit for time served by order nunc pro tunc. 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 actual bias in the juror that warranted a mistrial?
• Did the trial court err by not granting credit for time served in the sentencing order?

Findings

• the trial court properly denied the motion to remove the juror and declare a mistrial
• the judgment and sentence is affirmed, but the cause is remanded for correction of the judgment to grant credit for time served by order nunc pro tunc

F-2018-852

Aug. 29, 2019

Donald Ray Morrow

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

JOHN D. HADDEN LEWIS, PRESIDING JUDGE:

Donald Ray Morrow, Appellant, was tried by jury and found guilty of Count 1, first degree burglary, in violation of 21 O.S.2011, § 1431; Count 2, second degree burglary, in violation of 21 O.S.2011, § 1435; and Count 3, larceny of an automobile, in violation of 21 O.S.2011, § 1720, in the District Court of Custer County, Case No. CF-2018-1. The jury found Appellant guilty of these crimes after former conviction of a felony, and sentenced him to fifteen (15) years imprisonment on Count 1, four (4) years imprisonment on Count 2, and six (6) years imprisonment on Count 3. The trial court dismissed Counts 4 and 5 at the State’s request on the first day of trial. The Honorable Jill C. Weedon, Associate District Judge, pronounced judgment and ordered the sentences served concurrently.

Mr. Morrow appeals in the following propositions of error:

1. Appellant was prejudiced because the District Court allowed a juror with actual bias to remain on the panel rather than declaring a mistrial requested by Appellant;
2. Appellant’s sentence should be modified to include credit for time served.

Appellant argues in Proposition One that the trial court erred in refusing to disqualify a juror who revealed after the commencement of trial that she was socially acquainted with a prosecution witness. Upon inquiry by the trial court, the juror explained that she had not recognized the witness by the name used during voir dire. She was not closely acquainted with the witness, though her aunt was good friends with the witness’s wife. The juror testified that she had heard about what had happened from her aunt; but that she could set aside any prior knowledge and base her decision on the evidence.

Appellant must serve 85% of his sentence on Count 1 before being eligible for consideration for parole. 22 O.S. Supp.2015, § 13.1(12). This Court reviews a trial court’s ruling on a motion for mistrial for abuse of discretion. See Jackson v. State, 2006 OK CR 45, ¶ 11, 146 P.3d 1149, 1156. An abuse of discretion is a clearly erroneous conclusion, contrary to the logic and effect of the facts presented. Nicholson v. State, 2018 OK CR 10, ¶ 7, 421 P.3d 890, 895. When a defendant requests a mistrial based on juror bias or misconduct, he must ordinarily show actual bias or misconduct, as well as harm resulting from the juror’s service. Edwards v. State, 1991 OK CR 71, ¶ 13, 815 P.2d 670, 674.

Appellant makes no persuasive showing of bias, misconduct, or actual harm. The juror scrupled to alert the trial court when she realized that she knew a prosecution witness, and assured the trial court that her prior knowledge of the witness or any facts about the case would not affect her decision. This is not deliberate concealment of information by the juror or evidence of bias against the defendant. The motion to remove this juror and declare a mistrial was properly denied. Id., 1991 OK CR 71, ¶ 14, 815 P.2d at 674.

In Proposition Two, Appellant complains that the judgment and sentence does not recite the trial court’s order granting credit for time served. In Mathis v. State, 2012 OK CR 1, 271 P.3d 67, this Court remanded a case for correction of the judgment and sentence through an order nunc pro tunc to reflect that Mathis shall be given credit for time served, among other things. Id., 2012 OK CR 1, ¶ 34, 271 P.3d at 79; see also, Sears v. State, 2019 OK CR 8, ¶ 8, P.3d. We will make the same order here. No further relief is required.

DECISION

The judgment and sentence is AFFIRMED, but the cause is REMANDED with instructions for the trial court to address Appellant’s request for correction of the judgment to grant credit for time served by order nunc pro tunc.

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.

APPEAL FROM THE DISTRICT COURT OF CUSTER COUNTY

THE HON. JILL C. WEEDON, ASSOCIATE DISTRICT JUDGE

APPEARANCES AT TRIAL

RICHARD YOHN
P. O. BOX 1494
CLINTON, OK 73601
ATTORNEY FOR DEFENDANT

APPEARANCES ON APPEAL

JEREMY STILLWELL
P. O. BOX 926
NORMAN, OK 73070
ATTORNEY FOR APPELLANT

RICKY A. McPHEARSON
ASST. DISTRICT ATTORNEY
P.O. BOX 36
ARAPAHO, OK 73620

MIKE HUNTER
ATTORNEY GENERAL

SHERI M. JOHNSON
ASST. ATTORNEY GENERAL
313 N.E. 21ST STREET
OKLAHOMA CITY, OK 73105
ATTORNEYS FOR THE STATE

OPINION BY: LEWIS, P.J.
KUEHN, V.P.J.: Concur
LUMPKIN, 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, § 1435
3. 21 O.S.2011, § 1720
4. 22 O.S.Supp.2015, § 13.1(12)
5. Jackson v. State, 2006 OK CR 45, ¶ 11, 146 P.3d 1149, 1156
6. Nicholson v. State, 2018 OK CR 10, ¶ 7, 421 P.3d 890, 895
7. Edwards v. State, 1991 OK CR 71, ¶ 13, 815 P.2d 670, 674
8. Edwards v. State, 1991 OK CR 71, ¶ 14, 815 P.2d at 674
9. Mathis v. State, 2012 OK CR 1, 271 P.3d 67
10. Mathis v. State, 2012 OK CR 1, ¶ 34, 271 P.3d at 79
11. Sears v. State, 2019 OK CR 8, ¶ 8, P.3d
12. Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019)

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1431 (2011) - First Degree Burglary
• Okla. Stat. tit. 21 § 1435 (2011) - Second Degree Burglary
• Okla. Stat. tit. 21 § 1720 (2011) - Larceny of an Automobile
• Okla. Stat. tit. 22 § 13.1 (2015) - Parole Eligibility

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:

• Jackson v. State, 2006 OK CR 45, ¶ 11, 146 P.3d 1149, 1156.
• Nicholson v. State, 2018 OK CR 10, ¶ 7, 421 P.3d 890, 895.
• Edwards v. State, 1991 OK CR 71, ¶ 13, 815 P.2d 670, 674.
• Edwards v. State, 1991 OK CR 71, ¶ 14, 815 P.2d at 674.
• Mathis v. State, 2012 OK CR 1, ¶ 34, 271 P.3d 67.
• Sears v. State, 2019 OK CR 8, ¶ 8, P.3d.