Petition for Writ of Certiorari — Jonathan Ray Thomas, Petitioner v. Oklahoma

CHIC

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IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA

JONATHAN RAY THOMAS,

NOT FOR PUBLICATION

Appellant,

V.

Case No. F-2016-132

THE STATE OF OKLAHOMA,

IN COURT OF CRIMINAL APPEAl_S.

STATE OF OKLAHOMA

Appellee.

DEC -12017

SUMMARY OPINION•

LEWIS, VICE-PRESIDING JUDGE:

Appellant, Jonathan Ray Thomas, was tried by jury and found guilty

of

Count 1, assault and battery with a deadly weapon, in violat

ion of 21

O.S.2011, § 652; and Count 2, possession of a firearm after

of a felony, in violation of 21 O.S.Supp.2014,

former conviction

§ 1283, in the District Court of

Tulsa County, Case No. CF-2015-4530. The jury sentenced Appel

lant to life

imprisonment in Count 1 and ten (10) years imprisonment in Coun

t 2. The

Honorable William Musseman, District Judge, pronounced judgm

ent and

ordered the sentences served consecutively.' Mr. Thomas appea

ls in the

following proposition of error:

The trial court abused its distraction [sic] allowing the

admission of State's Exhibits 18 and 19 as proper

impeachment evidence;

The trial court committed plain error when it incorrectly

instructed the jury that Exhibits 18 and 19 could be used

as substantive evidence of guilt;

'Appellant must serve 85% of the sentence in Count 1 before being

eligible for

consideration for parole or earned credits. 21 O.S.Supp.2014, § 13.1(5).

A 'P&'ii W.

Several of the prosecutor's comments during closing

argument were improper and deprived Appellant of a fair

trial in violation of the Fourteenth Amendment to the

United States Constitution;

Appellant was deprived of the effective assistance of

counsel in violation of the Sixth and Fourteenth

Amendments to the United States Constitution when

counsel failed to object to the sufficiency of the

information.

Appellant argues in Proposition One that the trial court abused its

discretion by allowing the admission of States Exhibits 18 and 19 as

impeachment evidence. We review the admission of evidence over a timely

objection for abuse of discretion. An abuse of discretion is a clearly erroneous

judgment, contrary to the logic and effect of the facts presented. Nelorns v.

nt's

State, 2012 OK CR 7, ¶ 35, 274 P.3d 161, 170. The admission of Appella

statements on cross-examination to attack the credibility of his direct

testimony was not an abuse of discretion, and no relief is required. Boling v.

State, 1979 OK CR 11, ¶ 11, 589 P. 2d 1089, 1093. Proposition One is denied.

Appellant argues in Proposition Two that the trial court erred by

instructing the jury to determine whether his statements were voluntary, and

allowing the jury to consider his prior inconsistent statements as substantive

evidence. Counsel raised no objections on these grounds below, waiving all but

plain error. Simpson v. State, 1994 OK CR 40, ¶[ 2, 23, 876 P.2d 690, 692-93,

698. To obtain relief, Appellant must show that a plain or obvious error

affected the outcome. Hogan v. State, 2006 OK CR 19, 1 38, 139 P.3d 907, 923.

The Court will correct plain error only where it seriously affects the fairness,

ON

integrity, or public reputation of the proceeding. Simpson, 1994 OK CR 40,

¶

30, 876 P.2d at 701.

We find the instruction that the jury determine whether Appellant's

statements were voluntary before considering those statements clearly

benefited Appellant, and was not plainly erroneous. Though the State would

concede error in the failure to instruct on the limited "impeachment" purpos

e

for which the jury should consider prior inconsistent statements offered

against Appellant on cross-examination, we find these non-hearsay admissions

by a party are not subject to the rule of limited admissibility for extrajudicial,

prior inconsistent statements by other witnesses. 12 O.S.2011, § 2801

(B)(2)(a); Omaiza v. State, 1995 OK CR 80,

¶ ¶ 13, 39, 911 P.2d 286, 296, 300

(recognizing that non-hearsay statements allowed by specific provisions of the

Evidence Code are admissible as substantive evidence); Douglas v. State, 1997

OK CR 79, 1 50, 951 P. 2d 651, 668 (non-hearsay admissions by a

party may

be admitted and "considered on the issue of guilt"). There was no plain

or

obvious error in the trial court's instructions. Proposition Two is denied.

Proposition Three argues that the prosecutor committed reversible error

in closing argument. Because counsel did not object, our review is for plain

error. We grant relief only when a prosecutor's misconduct effectively deprive

s

the defendant of a fair trial or sentencing. Harmon v. State, 2011 OK CR

6,

180, 248 P.3d 918, 943. No relief is warranted here. Proposition Three

denied.

is

Proposition Four argues that counsel was ineffective in failing to object

to the errors identified in Propositions Two and Three. Appellant

must

therefore demonstrate that trial counsels performance was unreasonab

ly

deficient; and a reasonable probability that, but for the deficient perfor

mance,

the outcome of the trial would have been different. Strickland v. Washi

ngton,

466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Becau

se we

find that Appellant's belated objections would have been properly overru

led,

Appellant has shown neither deficient performance nor prejudice. Propos

ition

Four is without merit.

DECISION

The Judgment and Sentence is AFFIRMED. Pursuant to Rule

3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22,

Ch. 18, App. (2017), the MANDATE is ORDERED issued upon

delivery and filing of this decision.

AN APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY

HONORABLE WILLIAM MUSSEMAN, DISTRICT JUDGE

APPEARANCES AT TRIAL

APPEARANCES ON APPEAL

RICHARD KOLLER

BLAKE SHIPLEY

423 S. BOULDER, STE. 300

TULSA, OK 74103-3805

ATTORNEYS FOR DEFENDANT

NICOLE DAWN HERRON

423 S. BOULDER, STE. 300

TULSA, OK 74103-3805

ATTORNEY FOR APPELLANT

ISAAC SHIELDS

KEVIN KELLER

ASST. DISTRICT ATTORNEYS

500 S. DENVER, STE. 900

TULSA, OK 74103

ATTORNEYS FOR STATE

E. SCOTT PRUITF

ATTORNEY GENERAL

WILLIAM R. HOLMES

ASSISTANT ATTORNEY GENERAL

313 E. 21ST ST.

OKLAHOMA CITY, OK 73015

ATTORNEYS FOR APPELLEE

OPINION BY LEWIS, V.P.J.

LUMPKIN, P4.: Concur in !art / Dissent in Part

HUDSON, J: Concur

KUEHN, J.: Concur in Results

LUMPKIN, V.P.J.: CONCURING IN PART/DISSENTING IN PART

I concur in affirming Appellant's convictions and sentences, however, I

cannot acquiesce in the analysis of Proposition Two. A criminal defendant's

statement obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct.

1602, 16 LEd.2d 694 (1966), is inadmissible as substantive evidence of the

defendant's guilt.

Since Appellant failed to object to the trial court's instruction, we review

the trial court's instruction for plain error under the test set forth in Simpson v.

Stczte, 1994 OK CR 40, 876 P.2d 690. Levering v. State, 2013 OK CR 19,1 6,

315 P3d 392, 395. Under this test, an appellant must show an actual error,

which is plain or obvious, and which affects his substantial rights. Id.; Hogan

v. State, 2006 OK CR 19, 1 38, 139 P.3d 907, 923. This Court will only correct

plain error if the error seriously affects the fairness, integrity or public

reputation of the judicial proceedings or otherwise represents a miscarriage of

justice Id.

he State correctly concedes that Appellant, has shown the existence of

an actual error in the present case. After the trial court found that Appellant's

otherwise voluntary statements to the police were inadmissible because of a

Miranda violation, the trial court permitted the State to impeach Appellant with

his prior statements when he testified at trial. However, the trial court then

erred when it instructed the jurors that they could consider Appellant's prior

statements as substantive evidence.

If we were to simply review the admissibility of the defendant'

s former

statements under 12 O.S.2011, § 2801, we would find that they

are

admissible

as substantive evidence of his guilt under the party's own statem

ent exception

pursuant to § 2801(B)(2)(a). However, this matter is controlled by

Supreme Court precedent. The Supreme Court has determined

United States

that, although

inadmissible in the State's case, a criminal defendant's statem

ent obtained in

violation of Miranda is admissible for impeachment purposes.

Harri

York, 401 U.S. 222, 224-26, 91 S. Ct. 643, 645-46, 28 L. Ed.

Since Harris, the Supreme Court has not expanded this rule.

s v. New

2d 1 (1971).

Kansas v. Ventris,

556 U.S. 586, 594, 129 S. Ct. 1841, 1847, 173 L. Ed. 2d 801 (2009

); Oregon u.

Hass, 420 U.S. 714, 723, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975

). Therefore,

Appellant's prior statements were solely admissible for impeachme

nt purposes

and the jury could not consider them as substantive evidence

of his guilt. See

Sykes v. State, 1977 OK CR 311, ¶ 5, 572 P.2d 247, 249 (holding

defendant's

prior inconsistent statements given in violation of Miranda were not

introduced

as proof of matter asserted but solely for purpose of impeachme

nt).

The State further correctly notes that plain error did not occur

because

the error was harmless. The failure, to give a limiting instr

uction on

impeachment evidence is considered harmless where, as in the

present case,

the evidence does not form a substantial part of the State's case.

State, 1997 OK CR 79, 1 91, 951 P.2d 651, 676; Sykes, 1977

Douglas v.

OK CR 311, 17,

572 P.2d at 249. The trial court's error did not seriously affect

integrity or public reputation of the judicial proceeding

the fairness,

s or otherwise

2

represents a miscarriage of justice in this case. Levering, 2013 OK CR 19,

1 6,

315 P.3d at 395. Instead, the error was harmless beyond a reasonable doubt.

Simpson, 1994 OK CR 40, 1 34, 876 P.2d at 701, citing Chapman v. California,

386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967).

KUEHN, J., CONCURRING IN RESULTS:

I agree that all Propositions should be denied, but disagree with the

analysis of 12 O.S.201 1, § 280 1(B)(2)(a) in Proposition Two.

The trial judge correctly found Appellant's two statements to police were

inadmissible. The statements were excluded because of Miranda' violations as

the trial court determined that the statements were not free and voluntary.

The trial court also correctly concluded that the statements could be used for

impeachment purposes if the Defendant took the stand and "opened the door."

However, I believe the trial court then erred by instructing the jury that, if they

determined the statements were voluntary, that they could be considered as

substantive evidence.

When the Appellant took the stand and testified, he was impeached in

'I

cross examination with the statements made to the police. The statements are

not inconsistent statements under 12 0.S.20 11, § 280 l(B)(2)(a). I disagree

with the majority's conclusion that they could have been admitted under the

statute for substantive purposes under Omaiza v. State, 1995 OK CR 80 It 13,

29, 911 P.2d 286, 296, 300 (finding inconsistent statements that are made

under oath are admissible as substantive evidence because of the "significant

safeguards" in place under § 280 1(B)(2)(a)) and Douglas v. State, 1997 OK CR

79, 150, 951 P.2d 651, 668 (finding that a Defendant's attempts to influence

witnesses, after a specific finding by the trial court, can be admitted as

substantive evidence). I believe that the situation is controlled by. Harris v.

1384 U.S. 436, 86

S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

New York, 401 U.S. 222, 224 (1971), where the United States Supreme Court

found that a statement excluded in the State's case-in-chief for a Miranda

violation used on cross-examination of a Defendant can be used as

impeachment evidence, but not as substantive evidence of guilt.

The majority then analyzes the Appellant's statements under 12 O.S.

2011 §2801(B)(2)(a) and finds the statements of the Appellant are also party

admissions and non-hearsay.

Therefore, the majority concludes the

statements are also admissible and can be considered substantive evidence

after the trial court and then the jury determines voluntariness. Again, I

disagree. Arguably, the same "significant safeguards" can be assumed to be

found in party admissions as in inconsistent statements. These safeguards

lend inherent trustworthiness to the admission of hearsay or help to classify a

statement as non-hearsay. "The freedom which admissions have enjoyed from

technical demands of searching for an assurance of trustworthiness in some

against-interest circumstance, and from the restrictive influences of the

opinion rule and the rule requiring firsthand knowledge, when taken with the

apparently prevalent satisfaction with the results, calls for generous treatment

of this avenue to admissibility." See Fed. R. Evid. 801(d)(2) (Advisory Comm.

Notes).

Problematic, however, is that during the Jackson v. Denno2 hearing the

trial court found the statements were involuntary. The "significant safeguard"

built into 12 O.S.2011, § 280 1(B)(2)(a) is not present when a court rules the

2378 U.S. 368, 84 S. Ct. 1774 (1964).

statements were involuntary. Without a safeguard, there is no inherent

trustworthiness. The majority seems to mandate an additional finding that the

Appellant has to show he was "abused or threatened" to find the statements

involuntary. The trial court 'ruled the statements involuntary based on

Miranda3 violations, and, that alone takes the statements out of the realm of

substantive evidence. Therefore, they should not have been considered for

anything other than the true purpose for which they were admitted, for

impeachment.

Notwithstanding the decision to admit the statements as substantive

evidence, I find the error does not seriously affect the fairness, integrity, or

public reputation of the proceeding. The jury was able to weigh the evidence,

the inconsistency of the statements and the testimony of all witness to reach a

guilty verdict. As well, the Appellant's testimony regarding the events and the

statements made involuntarily were not a "substantial part" of the Appellant's

case. The statements at issue, even if taken as true by the jury, were not

necessary for the State to prevail with the verdict of guilt.

3354 U.S. 436, 86 S. Ct. 1602 (1966).

A