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| After Formers |
Bifurcated Trials: Some Tips When Your Client has Priors
The unpublished opinions in this issue (Frost and Nye) contain some good law on how the State can use your client's prior felony convictions in jury trials where the State has to prove the existence of the prior felonies in order to enhance. This is, of course, a horrible situation for the accused but defense counsel can mitigate the State's use of such evidence and now you have the case law to do it! The State will generally introduce documents from the court file to prove the priors, usually the J&S and whatever else it feels it can introduce to prejudice the jury. If you are in trial in a bifurcated case, look at the documents closely and keep in mind the following:
1. Make an on-the-record motion to redact the actual sentences that were imposed for the prior felony convictions. The Frost case (and the published authority cited therein) holds that it is an abuse of discretion for a trial court to refuse such a request. You must request this in order to get it!
2. Move to redact any mention of jail stays or suspended or revoked sentences in the documents. The Nye case holds that the introduction of such evidence is plain error.
3. Make sure to move in limine and to object at trial if the prosecutor comments on the sentences imposed for the priors, asks your client about how much time he served, or if the prosecutor comments on or alludes to the possibility that your client got paroled on the priors. Use the Frost case for this. Mentioning the length of the sentence imposed may give rise to an inference that your client was paroled at the time he committed the new crime and such is not for the jury to consider.
Basically, it appears that these cases are good authority to limiting the State strictly to the J&S and arguing the fact that the crimes were felonies. Anything more than that should be met with an objection and motion for a mis-trial.
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Anthony Joseph Frost v. State,
No. F-2004-1305 (Okl.Cr., May 18, 2006) (unpublished): Trial with Prior Felony Convictions. Frost was convicted of Aggravated Attempt to Elude (AFCF) and Possession of Paraphernalia. He was nailed with a 40-year sentence on the felony and 1-year on the misdemeanor. During the second-stage of the trial, where the State had to allege and prove the existence of the prior felony convictions for enhancement purposes, Frost requested that the punishment imposed for the priors be redacted and shielded from the jury. The reason is the obvious prejudice when the jury finds out that he had been sentenced to 15 years in 2000 but was obviously paroled out early (and proceeded to commit more crimes). The Court has fashioned the following rules that we all should heed: 1) a trial court abuses its discretion in refusing a request to redact documents showing that the accused was released early; and 2) it is error for the prosecutor to ask an accused about the length of a given sentence he was required to serve and to comment on the possibility of early release during closing arguments. Both of those events happened to Mr. Frost and the Court modified his sentence from 40 years to 25 years.
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James Newton Nye v. State,
No. F-2005-41 (Okl.Cr., May 22, 2006) (unpublished): Trial with Prior Felony Convictions. Nye was convicted by jury of Manufacturing (Meth) AFCF and sentenced to 60 years. COCA modified the sentence to 20 years based upon prosecutorial misconduct (arguing guilt based upon association with known criminals, arguing facts not in evidence, and improperly focusing on the sentences Nye received for his prior convictions) and the error that occurred in the Frost case, above, namely that the documents introduced by the State to prove the prior felony convictions contained "irrelevant and prejudicial evidence relating to the dates he entered and left the county jail as well as information concerning suspended and revoked sentences." Admission of this evidence constituted plain error(!)
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Hargrove v. State,
No. F-2004-666 (Okl.Cr., June 8, 2005) (Unpublished): Interesting opinion in which Hargrove was convicted of a single count of Failure to Register as a Sex Offender. The Court found error in the introduction of the details of Hargrove's prior sex offenses, including the fact that the sentences were suspended in large part. The legal error was ineffective assistance of trial counsel for failing to seek exclusion of this evidence and the Court noted that the jury was probably influenced by this information since it recommended the maximum sentence. No reversal; but the Court did modify the sentence from five years to two. I guess being assigned the Number of the Beast didn't hurt Hargrove.
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Marion Whitmore v. State,
No. F-2004-1283 (Okl.Cr., July 7, 2006) (unpublished): After-Formers: Whitmore was convicted of Possession of Meth, AFCF, and whacked for sixty-five (65) years. The Court modified his sentence to thirty-five (35) years because the prosecutor, during second stage closing arguments, made direct reference to the fact that Whitmore did not serve the full sentences imposed in his prior convictions. Trial Judge: Ted A. Knight (LeFlore County).
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Head v. State,
2006 OK CR 44 (Okl.Cr., October 24, 2006): After Formers; Eyewitness ID/Line-Ups; Residue: Head was convicted of Robbery in the First Degree, Resisting Arrest, Possession of CDS (Crack), and Possession of Paraphernalia in Oklahoma County (Judge Susan P. Caswell). AFFIRMED over several claims: 1) Sufficiency of the Evidence regarding the Possession of CDS count: this is a "charred residue" case in which the Court noted that it had held previously that the statute does not prescribe a minimum amount of CDS that must be possessed but held that even if residue is insufficient, the State presented enough evidence to convict by introducing Mr. Head's statement, "[l]eave me alone, I didn't take nothing. I was just smoking crack;" 2) double punishment (no double punishment for conviction of Possession of CDS and Possession of Paraphernalia); 3) improper testimony by the police officer concerning identification of Head by the complaining witness; and 4) sentencing errors involving IAC for failure to move to redact the Judgments and Sentences of the priors and jury consideration of parole (it sent a note saying "[d]o sentences run concurrently?"); and 5) excessive sentence.
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United States v. Snellenberger,
No. 06-50169 (9th Cir., April 3, 2007): After Formers: A minute order is not a "judicial record" that can be relied upon to establish the nature of a prior conviction.
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Jamie Cruz v. State,
No. F-2007-200 (Okl.Cr., June 5, 2008) (unpublished): After Formers: Cruz was convicted in Oklahoma County of two counts of Lew Acts and sentenced to LWOP. The Court addressed several interesting issues. First, trial counsel filed late a motion to suppress the admissions of Cruz and the trial court, the Hon. Twyla Mason Gray, declined to consider the motion on the merits (it is unclear from the opinion whether the motion was re-urged at trial). The Court held that the trial court did not abuse its discretion in denying a continuance and refusing to consider the motion to suppress (ugh) In this posture, Cruz had to present the suppression issue via an IAC claim. The basis for the motion was that Cruz was on probation (a suspended sentence) for other sex crimes at the time of the new crimes, and part of his probation included mandatory sex offender treatment counseling which included a polygraph. Cruz failed the polygraph, mad admissions about the new crimes, and was prosecuted. The Court ultimately held that there was no violation of the Fifth Amendment right against self-incrimination because Cruz was not advised specifically that if he invoked his right to remain silent, he would be penalized (only that he would be considered a "program failure" and a report would be filed with the DA and the judge would decide the matter). Second, Cruz argued that portions of videotaped interviews that mentioned the polygraph results should not have been redacted. The Court found no error because polygraph results are not admissible for any purpose---even when the parties stipulate per Wilson v. State, 1981 OK CR 9, para. 2, 624 P.2d 80, 81. Third, the Court found no error in the trial court refusing to disallow the State from referring to the complaining witness as "the victim." Fourth, the trial court's imposition of a 30-minute time period to conduct voir dire was not an abuse of discretion. Finally, the State enhanced the sentence to LWOP under 21 O.S. 51.1a. The Court held that the most recent amendments to 21 O.S. 1123(A) directed that enhancement must be under the more specific statute; thus, the crimes were punishable by 1-20, not mandatory LWOP. REMANDED for RESENTENCING.
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