Billie Wayne Byrd v The State Of Oklahoma

F-2018-867

Filed: Sep. 19, 2019

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Billie Wayne Byrd appealed his conviction for Child Sexual Abuse - Under 12. The conviction and sentence were twenty-five years in prison, along with three years of supervision after being released. Judge Kuehn dissented regarding the statute's constitutionality.

Decision

The Judgment and Sentence of the District Court of Muskogee County 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 plain error when the jury desired to see the judge but was directed to submit any question in writing?
• Did prosecutorial misconduct deprive Appellant of a fair trial?

Findings

• There was no plain error regarding the jury's desire to see the judge.
• There was no prosecutorial misconduct that deprived Appellant of a fair trial.

F-2018-867

Sep. 19, 2019

Billie Wayne Byrd

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

KUEHN, VICE PRESIDING JUDGE: Billie Wayne Byrd was tried by jury and convicted of Child Sexual Abuse – Under 12 in violation of 21 O.S.Supp.2014, § 843.5(F)1, in the District Court of Muskogee County, Case No. CF-2017-621. In accordance with the jury’s recommendation the Honorable Norman D. Thygesen sentenced Appellant to twenty-five (25) years imprisonment, with a three-year term of post-imprisonment supervision. Appellant appeals this conviction and sentence.

Appellant raises two propositions of error in support of his appeal:

1. Plain error occurred when the jury desired to see the judge but was directed to submit any question in writing.
2. Prosecutorial misconduct deprived Appellant of a fair trial.

After thorough consideration of the entire record before us, including the original record, transcripts, exhibits and briefs, we find that the law and evidence do not require relief. We find in Proposition I that the trial court’s failure to follow the mandatory procedure set forth in 22 O.S.2011, § 894 did not prejudice Appellant. Appellant did not object to the use of written communication and we review for plain error. Nicholson U. State, 2018 OK CR 10, I 10, 421 P.3d 890, 895. Plain error is an actual error, that is plain or obvious, and that affects a defendant’s substantial rights, affecting the outcome of the trial. Thompson v. State, 2018 OK CR 5, I 7, 419 P.3d 261, 263. If jurors disagree as to the testimony, or want to be informed on a point of law during deliberations, they must require the officer to conduct them into court, and an answer must be given in the presence of, or after notice to, counsel and the defendant. 22 O.S.2011, § 894. We have found a written response to a juror question is a plain violation of the statute. Nicholson, 10, 421 P.3d at 895. However, where counsel has been given notice of the question, and an opportunity to be heard, there is no presumption of prejudice from this procedure. Id., 12, 421 P.3d at 895. The record here does not show whether counsel was aware of the notes or had either a response or an opportunity to respond; the notes are included as unmarked exhibits attached to a trial transcript. Given that, we will presume prejudice. The presumption of prejudice may be rebutted if, on the face of the record, we find no actual prejudice occurred. Id., If 11, 421 P.3d at 895. The answers to the first and third questions were both accurate and appropriate. Nothing in the record suggests Appellant was actually prejudiced by the form through which the answers were communicated. After the judge responded to the jury’s first question in writing, jurors asked in the second question to see the judge. The answer, that they should put any questions in writing, was an invitation to further communication rather than foreclosing it. And, in fact, it was followed by the third question in writing. Appellant’s suggestion that the second question indicated jurors had serious concerns about the case is speculation. Appellant received the minimum sentence for the crime, and no prejudice is found on the face of the record. After thoroughly reviewing the record, we find there was no actual prejudice to Appellant. We strongly urge trial courts to follow the mandate of § 894.

However, the presumption of prejudice here is overcome. This proposition is denied.

We find in Proposition II that there was no prosecutorial misconduct in closing argument. Both parties have wide latitude to argue the evidence and its inferences, and we will not grant relief unless improper argument affects the fairness of the trial. Barnes U. State, 2017 OK CR 26, I 6, 408 P.3d 209, 213. We will not grant relief unless errors in argument render a trial SO fundamentally unfair that we cannot rely on the jury’s verdict. Webster U. State, 2011 OK CR 14, I 81, 252 P.3d 259, 281. Appellant failed to object to the comments raised here, and we review for plain error. Mathis v. State, 2012 OK CR 1, I 24, 271 P.3d 67, 76. The prosecutor stated the victim was trustworthy and consistent, then noted that the crime would stick with her forever and color all her relationships, including a future boyfriend and marriage. Appellant first argues this improperly encouraged sympathy for the victim. Evidence showed that the victim was in therapy as a result of the crime and disclosure, and argument about its future effects was a reasonable inference from that evidence. The comment about trustworthiness is more troubling. Prosecutors should not express a personal belief in a witness’s credibility. Mathis, I 25, 271 P.3d at 76-77. However, taken in context, this comment did not express a personal opinion. The prosecutor was responding to defense counsel’s vigorous argument that E.H. was inconsistent in her testimony. Browning U. State, 2006 OK CR 8, I 43, 134 P.3d 816, 841. There is no plain error, and this proposition is denied.

DECISION

The Judgment and Sentence of the District Court of Muskogee County 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.

Click Here To Download PDF

Footnotes:

1. 21 O.S.Supp.2014, § 843.5(F)
2. A.O. U State, 2019 OK CR 18, P.3d__(Kuehn, V.P.J., dissenting)
3. 22 O.S.2011, § 894
4. Nicholson U. State, 2018 OK CR 10, I 10, 421 P.3d 890, 895
5. Thompson v. State, 2018 OK CR 5, "I 7, 419 P.3d 261, 263
6. Browning U. State, 2006 OK CR 8, I 43, 134 P.3d 816, 841
7. Barnes U. State, 2017 OK CR 26, I 6, 408 P.3d 209, 213
8. Webster U. State, 2011 OK CR 14, I 81, 252 P.3d 259, 281
9. Mathis v. State, 2012 OK CR 1, I 24, 271 P.3d 67, 76
10. Mathis, I 25, 271 P.3d at 76-77

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 843.5 (2014) - Child Sexual Abuse
• Okla. Stat. tit. 22 § 894 (2011) - Procedure for Jury Questions

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:

• A.O. U State, 2019 OK CR 18, P.3d__(Kuehn, V.P.J., dissenting)
• Nicholson U. State, 2018 OK CR 10, I 10, 421 P.3d 890, 895
• Thompson v. State, 2018 OK CR 5, "I 7, 419 P.3d 261, 263
• Barnes U. State, 2017 OK CR 26, I 6, 408 P.3d 209, 213
• Webster U. State, 2011 OK CR 14, I 81, 252 P.3d 259, 281
• Mathis v. State, 2012 OK CR 1, I 24, 271 P.3d 67, 76
• Browning U. State, 2006 OK CR 8, I 43, 134 P.3d 816, 841