IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA JOSEPH EUGENE DEAN, ) ) Appellant, ) NOT FOR PUBLICATION ) V. ) Case No. F-2019-224 ) STATE OF OKLAHOMA, ) ) IN COURT OF CRIMINAL APPEALS Appellee. ) STATE OF OKLAHOMA ) FEB 13 2020 SUMMARY OPINION JOHN D. HADDEN CLERK HUDSON, JUDGE: Appellant, Joseph Eugene Dean, was tried and convicted by a jury in Muskogee County District Court, Case No. CF-2017-1030, of Endangering Others While Eluding or Attempting to Elude Police Officer, After Former Conviction of Two or More Felonies (Count 2), in violation of 21 O.S.2011, § 540(B). 1 The jury recommended a sentence of twenty years imprisonment and a $2,500.00 fine. The Honorable Bret A. Smith, District Judge, presided at trial and sentenced Dean in accordance with the jury’s verdict. Judge Smith also imposed various costs and fees. 1 The jury acquitted Appellant of Count 1-Possession of a Stolen Vehicle. Dean now appeals, raising the following proposition of error before this Court: 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, AND 20, OF THE OKLAHOMA CONSTITUTION. 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: Dean asserts defense counsel was ineffective for failing to request a cautionary eyewitness identification instruction- OUJI-CR (2d) 9-19. As Dean fails to provide any relevant authority or argument supporting his claim, 2 we find he has forfeited appellate review of the issue. Rule 3.5(C)(6), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2020) (“Failure to present relevant authority in compliance with these requirements will result in the issue being forfeited on appeal.”); Bench U. State, 2018 OK CR 2 While Dean provides legal authority relating to the standard of review for claims of ineffective assistance of counsel, he fails to provide any relevant legal authority or argument to support the underlying basis of his claim-i.e. that a cautionary eyewitness identification instruction was warranted. 2 31, 96, 431 P.3d 929, 958, cert. denied, Bench v. Oklahoma, U.S. 140 S. Ct. 56 (2019). We alternatively reject Dean’s ineffectiveness claim on the merits. To prevail on an ineffective assistance of counsel claim, a defendant must show both that counsel’s performance was deficient and that the deficient performance prejudiced his defense. Strickland U. Washington, 466 U.S. 668, 687 (1984). See also Harrington v. Richter, 562 U.S. 86, 104-05 (2011) (summarizing Strickland two- part test). In the present case, a cautionary eyewitness identification instruction was unwarranted as “no serious question exist[ed] concerning the reliability of the [eyewitness’s] identification[s].” Robinson U. State, 1995 OK CR 25, 9 56, 900 P.2d 389, 404. See also Mason v. State, 2018 OK CR 37, I 25, 433 P.3d 1264, 1272. Trial counsel was therefore not ineffective for failing to make a meritless request for such instruction. Logan U. State, 2013 OK CR 2, I 11, 293 P.3d 969, 975 (“The omission of a meritless claim cannot constitute deficient performance; nor can it have been prejudicial.”). See also Barnes v. State, 2017 OK CR 26, I 19, 408 P.3d 209, 216; Jackson v. State, 2016 OK CR 5, I 13, 371 P.3d 1120, 1123. Dean’s sole proposition of error is thus denied. 3 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. (2020), the MANDATE is ORDERED issued upon the delivery and filing of this decision. AN APPEAL FROM THE MUSKOGEE COUNTY DISTRICT COURT THE HONORABLE BRET A. SMITH, DISTRICT JUDGE APPEARANCES AT TRIAL APPEARANCES ON APPEAL LARRY VICKERS DERECK J. HURT 600 EMPORIA, SUITE B OKLA. INDIGENT DEFENSE MUSKOGEE, OK 74401 SYSTEM COUNSEL FOR DEFENDANT P.O. BOX 926 NORMAN, OK 73070 COUNSEL FOR APPELLANT SEAN WATERS MIKE HUNTER ASST. DISTRICT ATTORNEY ATTORNEY GENERAL DISTRICT ATTORNEYS OFFICE AMY STUART 220 STATE STREET ASST. ATTORNEY GENERAL MUSKOGEE, OK 74401 313 N.E. 21 ST STREET COUNSEL FOR THE STATE OKLAHOMA CITY, OK 73105 COUNSEL FOR APPELLEE OPINION BY: HUDSON, J. LEWIS, P.J.: CONCUR KUEHN, V.P.J.: CONCUR LUMPKIN, J.: CONCUR ROWLAND, J.: CONCUR 4
F-2019-224
Tags: Affirmed, Appellant, Appellate Review, Appellee, Bret A. Smith, Cautionary Eyewitness Identification, Cautionary Instruction, Counsel for Appellant, Counsel for Defendant, Counsel for the State, Court of Criminal Appeals, Decision, Deficient Performance, District Attorney, District Court, Effective Assistance, Eluding Police Officer, Endangering Others, Failure to Present Authority, Fourteenth Amendment, Indigent Defense, Ineffective Assistance of Counsel, Joseph Eugene Dean, Judgment and Sentence, Legal Authority, Meritless Request, Muskogee County, Okla. Stat. tit. 21 § 540(B), Okla. Stat. tit. 22 § 3.15, Okla. Stat. tit. 22 § 3.5(C)(6), Oklahoma Constitution, Oklahoma Court of Criminal Appeals, Prejudicial Defense, Proposition of Error, Reliability of Eyewitness, Sixth Amendment, State of Oklahoma, Strickland Standard, Trial Counsel