Petition for Writ of Certiorari — William Todd Lewallen, Petitioner v. Scott Crow

Appendix C

IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA

WILLIAM TODD LEWALLEN,

Appellant, NOT FOR PUBLICATION

Vv. Case No. F-2017-189

THE STATE OF OKLAHOMA, ILED

F

IK COURT 0:

Appellee. iT OF

STATE OF OKLAHOMAN

MAY & 4.2018

SUMMARY OPINION

ROWLAND, JUDGE:

Appellant William Todd Lewallen was tried by jury and convicted of Child

Neglect, After Former Conviction of Two or More Felonies, in violation of 21

O.8.2011, § 843.5(C), in the District Court of Tulsa County, Case No. CF-2012-

5174. The jury assessed punishment at twenty-three years imprisonment. The

Honorable Mark Barcus, District Judge, sentenced Lewallen accordingly.

Lewallen appealed his Judgment and Sentence to this Court in Case No. F-14-

1063. In a published opinion, this Court affirmed Lewallen’s judgment but

vacated his sentence and remanded the cause to the district court for

resentencing. Lewallen v. State, 2016 OK CR 4, 370 P.3d 828. At the

conclusion of Lewallen’s resentencing trial, the jury assessed punishment at

fourteen years imprisonment. The Honorable Kelly Greenough, District Judge,

CRIMINAL APPEAL

vets ee enn ee

who presided over the resentencing trial sentenced Lewallen accordingly.!

Lewallen appeals his sentence, raising the following issue:

(1) whether the trial court erred when it denied him the right to testify

in his own defense during trial.

We find relief is not required and affirm the judgment and sentence of

the district court.

Prior to his resentencing trial Lewallen filed a Notice of Intent to Present

Evidence. Acknowledging that he had not testified or presented live testimony

at his first jury trial, Lewallen requested that he be allowed to testify at his

resentencing trial. The State objected and the trial court denied Lewallen’s

request both prior to the resentencing trial and after Lewallen’s offer of proof at

the resentencing trial. Lewallen argues on appeal that the ruling denying his

request to testify at his resentencing trial was structural error which denied

him his fundamental right to testify in his own defense.

Structural errors are those which affect the conduct of the entire trial,

“undermine the fairness of a criminal proceeding as a whole,” and cannot be

separated from it for the purpose of analysis. Robinson v. State, 2011 OK CR

15, § 3, 255 P.3d 425, 428, (quoting United States v. Dominguez Benitez, 542

U.S. 74, 81, 124 S.Ct. 2333, 2339, 159 L.Ed.2d 157 (2004)). See also Duclos v.

State, 2017 OK CR 8, J 10, 400 P.2d 781, 784. While most constitutional

errors can be harmless, structural error requires automatic reversal. Chapman

v. California, 386 U.S. 18, 87 §.Ct. 824, 17 L.Ed.2d 705 (1967); Johnson v.

1 Under 21 0.8.2011, § 13.1, Lewallen must serve 85% of the sentence imposed before he is

eligible for parole.

2

Appellate Case: 21-5009

United States, 520 U.S. 461, 468-69, 117 S.Ct. 1544, 1549-50, 137 L.Ed.2d

718 (1997). “There is a strong presumption that errors which occur during trial

are subject to harmless error analysis, as long as a defendant is represented by

counsel and is tried by an impartial judge.” Robinson, 2011 OK CR 15, 4 4, 255

P.3d at 428, (citing Neder v. United States, 527 U.S. 1, 8, 119 S.Ct. 1827, 1833,

144 L.Ed.2d 35 (1999)), Lewallen’s argument that denial of the right to testify is

structural error requiring a presumption of prejudice is unpersuasive; the

claimed error in the present case does not fall within any of the limited class of

constitutional error cases which the Supreme Court has labeled structural

error.

It is true, however, that the United States Constitution guarantees

criminal defendants “a meaningful opportunity to present a complete defense.”

Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 2146, 90 L.Ed.2d 636

(1986) (quoting California v. Trombetta, 407 U.S.479, 485, 104 S.Ct. 2528,

2532, 81 L.Ed.2d 413 (1984)), A defendant’s due process right under the Fifth

Amendment and right to compulsory process under the Sixth Amendment

include the right to present witnesses in his own defense. United States v.

Dowlin, 408 F.3d 647, 659 (10th Cir, 2005); see also Washington v. Texas, 388

2In Johnson vu. United States, 520 U.S. 461, 468-69, 117 S.Ct, 1544, 1549-50, 144 L.Ed.2d 35

(1999), the Supreme Court noted that structural errors have been found in only a “very limited

class of cases: See Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (a

total deprivation of the right to counsel}; Tumey v. Ohio, 273 U.S. 510, 47 8.Ct. 437, 71 L.Ed.

749 (1927) (lack of an impartial trial judge); Vasquez v, Hillery, 474 U.S. 254, 106 S.Ct. 617, 88

L.Ed.2d 598 (1986) (unlawful exclusion of grand jurors of defendant's race); McKaskle v.

Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984) (the right to self-representation at

trial}; Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) (the right to a

public trial); Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993)

(erroneous reasonable-doubt instruction to jury),”

3

U.S. 14, 18-19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967). “The right to

offer the testimony of witnesses .. . is in plain terms the right to present a

defense .... This right is a fundamental element of due process of law.”

Washington, 388 U.S. at 19, 87 S.Ct. at 1923. See also Coddington v. State,

2006 OK CR 34, 4 46, 142 P.3d 437, 450-51. Also inherent in this right to

present a defense is the right to testify om one’s own behalf. Faretta v.

California, 422 U.S. 806, 819, n. 15, 95 S.Ct. 2525, 2533 n. 15, 45 L.Ed.2d

562 (1975)(the right to testify on one’s own behalf is a right “essential to due

process of law in a fair adversary process”). This constitutionally guaranteed

right to present a complete defense, however, is not without limitation. “In the

exercise of this right, the accused, as is required of the State, must comply

with established rules of procedure and evidence designed to assure both

fairness and reliability in the ascertainment of guilt and innocence.” Gore v.

State, 2005 OK CR 14, § 21, 119 P.3d 1268, 1275, (citing Chambers v.

Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297

(1973)). Further, the admissibility of evidence is within the discretion of the

trial court, which will not be disturbed absent a clear showing of abuse,

accompanied by prejudice to the accused. Jackson v, State, 2006 OK CR 45,

48, 146 P.3d 1149, 1165.

In Rock v. Arkansas, 483 U.S. 44, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987),

the case upon which Lewallen most heavily relies, the United States Supreme

Court specifically addressed an issue related to limitations placed on a criminal

4

defendant’s right to testify at trial. In Rock, the issue before the Court was

whether Arkansas' evidentiary rule prohibiting the admission of hypnotically

refreshed testimony violated petitioner's constitutional right to testify on her

own behalf as a defendant in a criminal case. The Court initially noted that,

“[ajt this point in the development of our adversary system, it cannot be

doubted that a defendant in a criminal casc has the right to take the witness

stand and to testify in his or her own defense.” Rock, at 49, 107 S.Ct. at 2708.

Indeed, the Supreme Court acknowledged that the right of the accused to

“present his own version of the event in his own words” is “even more

fundamental to a personal defense than the right of selfrepresentation.” Rock,

at 52, 107 S.Ct. at 2709. However, the Court went on to state that “the right to

present relevant testimony is not without limitation” and “may, in appropriate

cases, bow to accommodate other legitimate interests in the criminal trial

process.” Rock, at 55, 107 S.Ct. at 2711, (quoting Chambers, at 295, 93 S.Ct.

1046). “In applying its evidentiary rules a State must evaluate whether the

interests served by a rule justify the limitation imposed on the defendant's

constitutional right to testify.” Rock, at 56, 107 U.S, at 2711.

This Court has cautioned that “resentencing proceedings should not be

viewed as a second chance at revisiting the issue of guilt.” Rojem v. State, 2006

OK CR 7, 4 56, 130 P.3d 287, 299, Resentencing proceedings are unique, the

original jurors who heard evidence relating to guilt/innocence are gone and

have been replaced with jurors who are not familiar with that evidence. Rojem,

2006 OK CR 7, 7 53, 130 P.3d at 298. The resentencing jurors are told that the

defendant has already been found guilty and they are only asked to assess

punishment. While this Court has specifically held that a-defendant has no

right to present mitigating evidence in the sentencing phase of a non-capital

case, see Malone v. State, 2002 OK CR 34, {] 5-7, 58 P.3d 208, 209-10, we do

not ask the jurors to assess punishment without the benefit of knowing the

acts they are punishing. See Rojem, 2006 OK CR 7, { 55, 130 P.3d at 299

(jurors in a resentencing proceeding will always be able to consider the weight

of the evidence in deciding punishment). Accordingly, relevant evidence

properly admitted in the prior trial is admissible in the resentencing trial. Title

22 O.8.2011, § 929(C)(1) specifically addresses the introduction of evidence in

a non-capital case remanded for a new sentencing proceeding before a jury

providing and states:

All exhibits and a transcript of all testimony and other evidence

properly admitted in the prior trial and sentencing shall be

admissible in the new sentencing proceeding. Additional relevant

evidence may be admitted including testimony of witnesses who

testified at the previous trial.

The evidence of Lewallen’s medical condition and his consumption of

prescribed medication as well as its effect on his ability to clean his house and

care for his children was introduced in his original trial and was introduced

through the testimony of State’s witnesses at the resentencing trial. This

evidence was relevant to show Lewallen’s resentencing jury the facts upon

which his conviction was based and to allow them to make an informed

decision regarding the assessment of his sentence. The evidentiary restrictions

6

relied upon by the trial court in its decision to disallow Lewallen’s proffered

testimony at the resentencing trial, however, were neither arbitrary nor

disproportionate to the purposes they were designed to serve. Lewallen was not

precluded from testifying at his resentencing trial because he had not testified

at the original trial. Rather, the trial court ruled against his request because

his proffered testimony went to guilt or innocence and its mitigation value was

not relevant to sentencing. The trial court denied Lewallen’s request based

upon the most basic rule of admissibility, i., the mile of relevancy. 12

O.8.2011, § 2402. The trial court’s ruling did not deny Lewallen the right to

present a defense; it excluded the admission of irrelevant evidence. There was

no structural error, no constitutional error, and no abuse of discretion by the

trial court in excluding this evidence. Relief is not required.

| DECISION

The Sentence of the district court is AFFIRMED. Pursuant to Rule 3.15,

Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2018),

the MANDATE is ORDERED issued upon delivery and filing of this decision.

AN APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY

THE HONORABLE KELLY GREENOUGH, DISTRICT JUDGE

APPEARANCES AT TRIAL APPEARANCES ON APPEAL

STUART SOUTHERLAND RICHARD COUCH

BLAKE SHIPLEY TULSA COUNTY PUBLIC

TULSA COUNTY PUBLIC DEFENDER'S OFFICE

DEFENDER’S OFFICE 423 SOUTH BOULDER AVE.,

493 SOUTH BOULDER AVE., SUITE 300 SUITE 300

TULSA, OK 74103 TULSA, OK 74103

COUNSEL FOR DEFENDANT COUNSEL FOR APPELLANT

TANYA WILSON

ASSISTANT DISTRICT ATTORNEY

500 SOUTH DENVER, SUITE 900

TULSA, OK 74103

COUNSEL FOR STATE

OPINION BY: ROWLAND, J.

LUMPKIN, P.J.: Concur

LEWIS, V.P.J.: Concur in Results

HUDSON, J.: Concur

KUERN, J.: Concur

MIKE HUNTER

OKLAHOMA ATTORNEY GENERAL

KEELEY MILLER

ASSISTANT ATTORNEY GENERAL

313 N.E, 218? STREET

OKLAHOMA CITY, OK 73105

COUNSEL FOR APPELLEE