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S-2018-1173

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Kyle Tyree Ward v The State of Oklahoma

F-2018-895

Filed: Oct. 24, 2019

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Kyle Tyree Ward appealed his conviction for possession of a firearm after being convicted of two or more felonies. His conviction and sentence were for seven years in prison and a $100 fine. Judge Cynthia Ferrell Ashwood was in charge of the trial. Ward claimed that there were five major errors in his case. He argued that he was arrested without a good reason, that there wasn't enough evidence to prove he had a firearm, that his statements to police should not have been used in court, that a test done on his hands was illegal, and that his lawyer didn't help him properly. After looking at all the arguments he made and the evidence, the court decided to keep the original decision. They said Ward's arrest was proper, that his admission of having a gun was enough evidence, and that the tests and statements were legal. They also ruled that his lawyer did not make any mistakes that would change the outcome of the case. In the end, the court affirmed the judgment and sentence from Lincoln County Court. Judge Kuehn and the other judges agreed on this decision.

Decision

The Judgment and Sentence of the District Court of Lincoln 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 probable cause for Appellant's arrest?
  • Was there sufficient evidence to support Appellant's conviction of possession of a firearm after former conviction of two or more felonies?
  • Were Appellant's out-of-court statements improperly admitted into evidence, violating his constitutional right to be free from compelled self-incrimination?
  • Was the admission of the results of the gunshot residue test obtained in violation of Appellant's constitutional right to be free from unreasonable searches?
  • Was Appellant denied effective assistance of counsel?

Findings

  • the court erred
  • evidence was sufficient
  • the court erred
  • the court erred
  • the court erred

F-2018-895

Oct. 24, 2019

Kyle Tyree Ward

Appellant

v

The State of Oklahoma

Appellee

SUMMARY OPINION

KUEHN, VICE PRESIDING JUDGE: Appellant, Kyle Tyree Ward, was convicted at a bench trial, the Honorable Cynthia Ferrell Ashwood, District Judge, presiding, of Possession of a Firearm After Conviction of Two or More Felonies, in Lincoln County District Court Case No. CF-2017-38. On August 7, 2018, he was sentenced to seven years imprisonment and fined $100.

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

PROPOSITION I. APPELLANT WAS ARRESTED WITHOUT PROBABLE CAUSE. THEREFORE, ALL OF THE EVIDENCE OBTAINED BY THE STATE AFTER THE ILLEGAL ARREST SHOULD HAVE BEEN SUPPRESSED AS FRUIT OF THE POISONOUS TREE.

PROPOSITION II. THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT MR. WARD’S CONVICTION OF POSSESSION OF A FIREARM AFTER FORMER CONVICTION OF TWO OR MORE FELONIES.

PROPOSITION III. MR. WARD’S OUT-OF-COURT STATEMENTS WERE IMPROPERLY ADMITTED INTO EVIDENCE, VIOLATING HIS CONSTITUTIONAL RIGHT TO BE FREE FROM COMPELLED SELF-INCRIMINATION.

PROPOSITION IV. THE ADMISSION OF THE RESULTS OF THE GUNSHOT RESIDUE TEST WAS ERROR BECAUSE THE TEST WAS OBTAINED IN VIOLATION OF MR. WARD’S CONSTITUTIONAL RIGHT TO BE FREE FROM UNREASONABLE SEARCHES.

PROPOSITION V. MR. WARD WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL.

After thorough consideration of these propositions, the briefs of the parties, and the record on appeal, we affirm.

Appellant was arrested on suspicion of unlawfully discharging a firearm and other crimes. A loaded firearm was found at the scene. According to the police officers involved in the arrest, and in the administration of a gunshot-residue (GSR) test to Appellant’s face and hands, Appellant admitted he was holding a gun when it discharged. Although no eyewitness to the disturbance testified at preliminary hearing or trial, the State relied on the firearm seized at the scene, gunpowder particles removed from Appellant’s face, and Appellant’s admission to support the charge. At trial, Appellant stipulated to four felony convictions, but denied possessing any firearm and denied telling police otherwise.

In Proposition I, Appellant claims his arrest was illegal because it was not based on probable cause. Because he did not challenge the legality of his arrest below, we review only for plain error, which requires Appellant to show a plain or obvious error which affected his substantial rights. White v. State, 2019 OK CR 2, ¶ 15, 437 P.3d 1061, 1067. Since this claim implicates the constitutional right to be free from unreasonable arrests (seizures of the person), our review is ultimately governed by Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967), which places the burden on the State to show that any error of constitutional importance was harmless beyond a reasonable doubt. First, however, we must determine if any error plainly appears from the record. White, 2019 OK CR 2, ¶ 17, 437 P.3d at 1068. Because Appellant did not raise this issue below, the record contains no development of the facts underlying the arrest. However, the officers’ testimony and the Probable Cause Affidavit reveal no problems whatsoever with the arrest. Thus we find no plain or obvious error. White, 2019 OK CR 2, ¶¶ 17-18, 437 P.3d at 1068. Proposition I is denied.

In Proposition II, Appellant complains that no eyewitness testified at trial to place the firearm in his hands. The State’s case depended chiefly on Appellant’s admission to possessing a firearm, which was heard by two police officers. The seizure of a firearm at the scene, and the results of the GSR test, corroborated that admission. The trial court, sitting as fact-finder, could easily conclude, beyond a reasonable doubt, that Appellant’s sworn denials were not credible. The evidence supports the conviction. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); White, 2019 OK CR 2, ¶ 9, 437 P.3d at 1065. Proposition II is denied.

In Proposition III, Appellant claims his admission to police was the product of an illegal interrogation. He raised this claim at trial, preserving it for review. A suspect should be advised of his rights to silence and to counsel before police initiate any custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 467, 86 S.Ct. 1602, 1624, 16 L.Ed.2d 694 (1966). At the time Appellant admitted possessing the firearm, he was under arrest, but he was not being interrogated. The officers who heard the admission said he volunteered it spontaneously as the GSR test was being administered. The statement was thus properly admitted. Hyatt v. State, 1989 OK CR 56, ¶ 3, 779 P.2d 993, 994-95. Proposition III is denied.

In Proposition IV, Appellant claims the GSR swabs taken of his face and hands violated his constitutional protection from unreasonable searches. He did not raise this claim below, so we review only for plain error. Barnard v. State, 2012 OK CR 15, ¶ 25, 290 P.3d 759, 767. Again, under Chapman, 386 U.S. 18, 87 S.Ct. 824, the constitutional significance of this claim ultimately requires the State to show that any error was harmless. We recently considered the Fourth Amendment ramifications of post-arrest GSR tests in White, 2019 OK CR 2, ¶¶ 20-21, 437 P.3d at 1069-70, and concluded they were entirely permissible as the retrieval of evidence from a suspect’s person incident to arrest. Appellant claims the concerns which support searches incident to arrest were not present here; because he was handcuffed when the test was administered, he posed no threat to the officers and could not have tried to destroy the evidence they sought to collect. But Appellant would not be handcuffed forever. The justification for searches incident to arrest would resurface the moment he was uncuffed. There was no plain error in admitting this evidence. Id. Proposition IV is denied.

In Proposition V, Appellant claims his trial counsel was deficient for failing to challenge the legality of his arrest and the admissibility of the GSR test results. To obtain relief, Appellant must establish both deficient performance and a reasonable probability of resulting prejudice. In other words, he must show counsel made an objectively unreasonable decision which undermines confidence in the outcome of the trial. Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984); Sanchez v. State, 2009 OK CR 31, ¶ 98, 223 P.3d 980, 1012. Failure to prove either deficient performance or resulting prejudice is fatal to an ineffective-counsel claim. Malone v. State, 2013 OK CR 1, ¶ 14, 293 P.3d 198, 206. The substantive bases for these two complaints were considered and rejected in Propositions I and IV. As discussed therein, there is no error plainly apparent from the record, and Appellant offers nothing to counter that conclusion. Hence, there is no basis for finding deficient performance. Proposition V is denied.

DECISION

The Judgment and Sentence of the District Court of Lincoln 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.

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Footnotes:

  1. White U. State, 2019 OK CR 2, T 15, 437 P.3d 1061, 1067.
  2. Chapman U. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967).
  3. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); White, 2019 OK CR 2, II 9, 437 P.3d at 1065.
  4. Miranda v. Arizona, 384 U.S. 436, 467, 86 S.Ct. 1602, 1624, 16 L.Ed.2d 694 (1966).
  5. Hyatt v. State, 1989 OK CR 56, I 3, 779 P.2d 993, 994-95.
  6. Barnard U. State, 2012 OK CR 15, I 25, 290 P.3d 759, 767.
  7. White, 2019 OK CR 2, II 20-21, 437 P.3d at 1069-70.
  8. Strickland U. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984); Sanchez U. State, 2009 OK CR 31, I 98, 223 P.3d 980, 1012.
  9. Malone U. State, 2013 OK CR 1, I 14, 293 P.3d 198, 206.

Oklahoma Statutes citations:

  • Okla. Stat. tit. 21 § 1289.17 - Possession of a Firearm After Former Conviction of Two or More Felonies
  • Okla. Stat. tit. 22 § 1089 - Sufficient Evidence for Conviction
  • Okla. Stat. tit. 22 § 154 - Miranda Rights
  • Okla. Stat. tit. 21 § 701.8 - Ineffective Assistance of Counsel
  • Okla. Stat. tit. 22 § 222 - Appeal Procedures

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:

  • White v. State, 2019 OK CR 2, I 15, 437 P.3d 1061, 1067
  • White v. State, 2019 OK CR 2, I 17, 437 P.3d at 1068
  • White v. State, 2019 OK CR 2, II 9, 437 P.3d at 1065
  • White v. State, 2019 OK CR 2, II 17-18, 437 P.3d at 1068
  • Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)
  • Miranda v. Arizona, 384 U.S. 436, 467, 86 S.Ct. 1602, 1624, 16 L.Ed.2d 694 (1966)
  • Hyatt v. State, 1989 OK CR 56, I 3, 779 P.2d 993, 994-95
  • Barnard v. State, 2012 OK CR 15, I 25, 290 P.3d 759, 767
  • Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984)
  • Sanchez v. State, 2009 OK CR 31, I 98, 223 P.3d 980, 1012
  • Malone v. State, 2013 OK CR 1, I 14, 293 P.3d 198, 206

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