F-2016-194
**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **DONTE LEMAR PAYTON,** Appellant, *Case No. F-2016-194* v. **STATE OF OKLAHOMA,** Appellee. **SUMMARY OPINION** **HUDSON, JUDGE:** Appellant, Donte Lemar Payton, was convicted in the Oklahoma County District Court, Case No. CF-2014-7586, of Manslaughter in the First Degree, in violation of 21 O.S.2011, § 711(3). The jury acquitted him of first-degree murder but found him guilty of the lesser-included offense. The Honorable Donald L. Deason sentenced him to life imprisonment, and Payton appeals, presenting six propositions of error: **I.** The trial court erred in failing to comply with statutory law regarding juror contact, violating Appellant's Sixth and Fourteenth Amendment rights. **II.** The court's communication with the jury improperly suggested they could avoid their duty to assess punishment. **III.** Appellant was denied effective assistance of counsel. **IV.** The life sentence imposed was excessive under the circumstances. **V.** The trial court erroneously refused to instruct the jury on self-defense, violating Appellant's rights. **VI.** Cumulative errors deprived Appellant of due process. Upon thorough review, including the evidence and arguments presented, the Court finds no relief necessary. The judgment and sentence are AFFIRMED. ### Propositions I and II A presumption of prejudice arises from unauthorized judicial communications with a jury after they commence deliberations (Givens v. State, 1985 OK CR 104). In this case, the jury was informed by the bailiff about the trial court's potential to impose a sentence if they could not reach an agreement. This occurred after they had already found Appellant guilty. An evidentiary hearing confirmed that the communication, while improper, was addressed within the statutory framework (22 O.S.2011, § 927.1) regarding jury deadlock. The communication was limited and factual, and the jury was informed to continue deliberations, which ultimately established that they were deadlocked. Appellant failed to object to any of these proceedings or request an Allen charge, thus forfeiting those claims on appeal. The communication did not undermine the integrity of the proceedings, and therefore the presumption of prejudice was adequately overcome. Hence, we deny Propositions I and II. ### Proposition III To establish ineffective assistance of counsel, Appellant must show both deficient performance and resulting prejudice (Strickland v. Washington, 1984). In this case, the existing record did not support claims of ineffective assistance. Furthermore, there is no clear and convincing evidence suggesting that counsel's failure to present character witness statements at sentencing prejudiced the outcome. Accordingly, Proposition III is denied. ### Proposition IV Considering the complete context, we agree that Appellant's life sentence is not so excessive as to shock the conscience (Duclos v. State, 2017 OK CR 8). The nature of the crime was severe, further justifying the sentence based on the facts presented. ### Proposition V The trial court's decision to deny a self-defense instruction was within its discretion. The standard for prima facie evidence was not met since Appellant's testimony did not suggest a reasonable belief in imminent danger, thus precluding such an instruction (Davis v. State, 2011). ### Proposition VI Allegations of cumulative error must be based on actual determinations of error, which were not established here (Neloms v. State, 2012). Therefore, we deny Proposition VI as well. ### DECISION The judgment and sentence of the District Court are AFFIRMED. Appellant's Application for an Evidentiary Hearing on Sixth Amendment Claims is DENIED. **APPEARANCES:** * For Appellant: Stacy Smith, Attorney at Law * For Appellee: Mike Hunter, Attorney General; John Salmon, Assistant District Attorney; Matthew D. Haire, Assistant Attorney General **OPINION BY:** HUDSON, J. *LUMPKIN, P.J.: CONCUR* *LEWIS, V.P.J.: CONCUR IN RESULTS* *KUEHN, J.: CONCUR* *ROWLAND, J.: RECUSE* **NOTE**: The presence of procedural errors warrants caution, but in this instance, they did not materially affect the outcome. Trial courts should maintain vigilance regarding communications with jurors to avoid future complications.