The State of Oklahoma v Steven Cory Lymen

S-2011-765

Filed: Jul. 18, 2012

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Steven Cory Lymen appealed his conviction for Second Degree Burglary. Conviction and sentence were dismissed by the trial court. The State of Oklahoma disagreed with this decision and appealed. The judges found that the trial court made the right choice in excluding evidence that was not gathered properly, so they denied the State's appeal. Judge Johnson dissented.

Decision

The State's appeal from the District Court order suppressing evidence and dismissing the case is DENIED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2012), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was the District Court's ruling to sustain Defendant's Motion to Quash and Suppress the State's Evidence erroneous?
• Did the trial court abuse its discretion in finding the initial identification unduly suggestive and tainting the subsequent in-court identification?
• Was the subsequent in-court identification independently reliable under the totality of the circumstances as argued by the State?
• Is the appeal properly considered under 22 O.S.2011, § 1053(4) for judgment quashing due to insufficient evidence in a felony?

Findings

• the court did not err in granting the motion to suppress the in-court identification
• the trial court did not abuse its discretion in finding that the initial identification was unduly suggestive
• the evidence presented was not sufficient to establish the subsequent in-court identification as independently reliable
• the State's appeal from the District Court order suppressing evidence and dismissing the case is denied

S-2011-765

Jul. 18, 2012

The State of Oklahoma

Appellant

v

Steven Cory Lymen

Appellee

SUMMARY OPINION

STATE OF OKLAHOMA

SMITH, JUDGE:

Steven Cory Lymen was charged with Second Degree Burglary in violation of 21 O.S.2001, § 1435, in the District Court of Tulsa County, Case No. CF-2011-1023. Lymen was bound over at preliminary hearing and filed a pretrial motion to suppress the in-court identification. After a hearing, the Honorable James M. Caputo granted Lymen’s motion to suppress and motion to dismiss the case. The State appeals.

The State raises one proposition of error in support of its appeal:

I. The District Court’s ruling to sustain Defendant’s Motion to Quash and Suppress the State’s Evidence for failing to follow the established policy of the Tulsa Police Department in showing photos of the Defendant to a witness was erroneous.

After thorough consideration of the entire record before us, including the original record, transcripts and briefs, we find that the law and evidence do not require relief. The State appeals under 22 O.S.2011, § 1053(5), which allows for expedited State appeals where a trial court has suppressed or excluded evidence and appellate review would be in the best interests of justice. This statutory provision was added to allow the State to bring what is essentially an interlocutory appeal, where evidence has been suppressed but the case continues. Lymen’s case was dismissed. Whatever relief this Court may grant, it cannot include remanding the case for further proceedings. As the case has been dismissed, § 1053(5) is not the appropriate avenue for this appeal. State U. Love, 2004 OK CR 11, 1 1 n. 1, 85 P.3d 849, 849 n. 1. The appropriate statutory section for the State’s appeal of the trial court’s decision dismissing the case is § 1053(4), judgment quashing for insufficient evidence in a felony. 22 O.S.2011, § 1053(4).

1 We review a trial court’s decision to suppress evidence for abuse of discretion. State v. Pope, 2009 OK CR 9, Il 4, 204 P.3d 1285, 1287. An abuse of discretion has been defined as a conclusion or judgment that is clearly against the logic and effect of the facts presented. State v. Hooley, 2012 OK CR 3, IT 4, 269 P.3d 949, 950. The State has failed to show that the trial court abused its discretion. The trial court found that the initial identification was unduly suggestive and tainted the subsequent in-court identification. The State argues that, where a pre-trial identification is unduly suggestive, a subsequent in-court identification may be admissible if it is established as independently reliable under the totality of the circumstances. Pennington v. State, 1995 OK CR 79, IT 33. 913 P.2d 1356, 1365-66. Factors include: (1) the witness’s prior opportunity to observe the defendant during the crime; (2) the witness’s degree of attention; (3) the accuracy of the prior identification; (4) the witness’s level of certainty; and (5) the time between the crime and confrontation. Id. The State relies on the evidence at preliminary hearing to argue that these factors are met. All this information was available to the trial court, from the preliminary hearing transcript, when it considered the motion to suppress. Upon considering the evidence and argument, the trial court concluded that the subsequent in-court identification was not independently reliable. This conclusion is not clearly against the logic and effect of the facts presented.

DECISION

The State’s appeal from the District Court order suppressing evidence and dismissing the case is DENIED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2012), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

AN APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY

ATTORNEYS AT TRIAL

LEE BERLIN
1874 S. BOULDER
TULSA, OKLAHOMA 74119

ATTORNEY FOR DEFENDANT

ATTORNEYS ON APPEAL

KALI STRAIN
ASSISTANT DISTRICT ATTORNEY
500 S. DENVER AVE., SUITE 900
TULSA, OKLAHOMA 74103

ATTORNEY FOR APPELLANT

KALI STRAIN
ASSISTANT DISTRICT ATTORNEY
P. O. BOX 926
NORMAN, OK 73070

ATTORNEY FOR APPELLEE

TERRY J. HULL
ASSISTANT DISTRICT ATTORNEY
500 S. DENVER AVE., SUITE 900
TULSA, OKLAHOMA 74103

ATTORNEY FOR STATE

OPINION BY: SMITH, J.
A. Johnson, P.J.: Concur
Lewis, V.P.J.: Concur in Results
Lumpkin, J.: Concur in Results
C. Johnson, J.: Concur

RA 3

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Footnotes:

1. Okla. Stat. tit. 22 § 1053(5)
2. State v. Love, 2004 OK CR 11, ¶ 1 n. 1, 85 P.3d 849, 849 n. 1.
3. Okla. Stat. tit. 22 § 1053(4)
4. State v. Pope, 2009 OK CR 9, ¶ 4, 204 P.3d 1285, 1287.
5. State v. Hooley, 2012 OK CR 3, ¶ 4, 269 P.3d 949, 950.
6. Pennington v. State, 1995 OK CR 79, ¶ 33, 913 P.2d 1356, 1365-66.
7. State v. Campbell, 1998 OK CR 38, ¶ 8, 965 P.2d 991, 992-93.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1435 (2001) - Second Degree Burglary
• Okla. Stat. tit. 22 § 1053(5) (2011) - Expedited State Appeals
• Okla. Stat. tit. 22 § 1053(4) (2011) - Judgment Quashing for Insufficient Evidence
• Okla. Stat. tit. 22 § 1053(3) (2011) - Reserved Question of Law

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:

• State U. Love, 2004 OK CR 11, I 1 n. 1, 85 P.3d 849, 849 n. 1.
• State v. Pope, 2009 OK CR 9, "Il 4, 204 P.3d 1285, 1287.
• State v. Hooley, 2012 OK CR 3, IT 4, 269 P.3d 949, 950.
• Pennington v. State, 1995 OK CR 79, IT 33. 913 P.2d 1356, 1365-66.
• State v. Campbell, 1998 OK CR 38, "I 8, 965 P.2d 991, 992-93.