Jerry Lee Newman v. State

• Decision Date: 04 June 2020
• Docket Number: Case No. F-2018-1178
• Citation: 466 P.3d 574
• Parties: Jerry Lee NEWMAN, Appellant v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

466 P.3d 574

Jerry Lee NEWMAN, Appellant

v.The STATE of Oklahoma, Appellee.

Case No. F-2018-1178

Court of Criminal Appeals of Oklahoma.

FILED JUNE 04, 2020

OPINION

ROWLAND, JUDGE:

¶1 Appellant Jerry Lee Newman was tried by a jury in the District Court of Tulsa County, Case No. CF-2017-3086, for the crimes of First Degree Felony Murder -- Eluding an Officer (Count 1) in violation of 21 O.S.Supp.2012, § 701.7(B) ; Larceny of Automobile (Count 2) in violation of 21 O.S.2011, § 1720 ; Obstructing an Officer (Count 3) in violation of 21 O.S.Supp.2015, § 540 ; Leaving the Scene of a Fatality Collision (Count 4) in violation of 47 O.S.2011, § 10-102.1 ; Driving with License Suspended (Count 5) in violation of 47 O.S.Supp.2016, § 6-303(B) ; and Assault with a Dangerous Weapon (Count 6) in violation of 21 O.S.2011, § 645. Newman was convicted on Counts 1-5 and acquitted on Count 6. The jury assessed punishment at life in prison with the possibility of parole and a $10,000.00 fine on Count 1, twenty-three years imprisonment on Count 2, thirty years imprisonment and a $10,000.00 fine on Count 4, and one year and a $500.00 fine on each of Counts 3 and 5. The Honorable William D. LaFortune, District Judge, presided over the trial and sentenced Newman in accordance with the jury's recommendation ordering the sentence imposed in Count 2 to run consecutive to Count 1, Count 3 to run concurrent with Count 2, Count 4 to run consecutive to Counts 1, 2, and 3, and Count 5 to run concurrent with Count 4. Newman appeals his Judgment and Sentence raising the following issues:

(1) whether there was sufficient evidence to convict him beyond a reasonable doubt of first degree felony murder-eluding an officer;

(2) whether he was denied a fair trial when the trial court erred by failing to instruct the jury on the lesser related offense of second degree felony murder;

(3) whether the trial court erred in admitting prejudicial photographs into evidence;

(4) whether the use of improper other crimes evidence deprived him of a fair trial;

(5) whether use of the crime of eluding a peace officer as the predicate felony for first degree felony murder violated the intended use of the felony murder statute;

(6) whether prosecutorial misconduct denied him his due process rights to a fair trial;

(7) whether he was denied effective assistance of counsel; and

(8) whether an accumulation of error deprived him of a fair trial.

¶2 We find relief is not required and affirm the Judgment and Sentence of the district court.

FACTS

¶3 At 5:00 a.m. on May 24, 2017, Donald Watkins, a self-employed truck driver, was sitting in his truck at Rush Peterbilt Truck Center in Sapulpa waiting for the business to open. Around 5:30 a.m., a man wearing a red hoodie and carrying a backpack walked beside his truck. After watching this man attempt to get into numerous locked vehicles on the property and into the locked building, Watkins called 911 to report the suspicious behavior.

¶4 Three Sapulpa police units responded to the 911 call, one standing by with Watkins while the other two went to different locations on the property. One of these three officers, Sapulpa Police Captain Steve Thompson, saw a large white Oklahoma Natural Gas utility truck driving toward him through the lot. The truck accelerated and drove through the fence, and Captain Thompson was forced to move his patrol car to avoid being hit.

¶5 The truck sped off the lot with at least two patrol cars giving chase with lights and sirens activated, and others from the Tulsa Police Department and the Oklahoma Highway Patrol joining the pursuit. The utility truck proceeded through Sapulpa and its outskirts for nearly half an hour, running red lights and stop signs at speeds of up to 89 mph. When the truck entered State Highway 75 driving southbound in the northbound lane, the pursuing officers pulled to the shoulder and increased the distance between them and the utility truck while trying to keep the truck in sight. They kept their lights and sirens activated to warn the cars on the highway to yield or slow down while others attempted to catch up with the utility truck by driving parallel to it in the proper southbound lane of the highway.

¶6 Many and perhaps all of the officers lost sight of the utility vehicle when they slowed or exited the northbound lane, but they quickly came upon a collision wherein the utility truck had struck a small white car head on. The driver of the white car was dead at the scene and the ONG truck was rolling slowly toward a fence off the side of the highway. A witness who passed the utility truck on the highway seconds before the collision heard the impact and immediately stopped at about the same time that patrol cars arrived on the scene. Another witness saw a man wearing red over blue running behind the utility truck after the crash. When the officers checked, the man was gone and there was no one inside or around the utility truck leading officers to assume its driver had jumped the fence.

¶7 The police developed information about the identity of the driver of the utility truck, and later that same day Jerry Newman was taken into custody and booked into the Tulsa County Jail. In a recorded telephone call made to his father from the jail, Newman admitted to being the driver of the stolen utility truck. Furthermore, video taken by a DriveCam in the cab of the ONG truck clearly shows that Newman was driving the vehicle. At trial, Donald Watkins, the truck driver who called 911 from the Sapulpa business, also identified Newman as the person he watched walk around the lot trying to get into vehicles and the building that early morning.

1.

¶8 In his first proposition, Newman claims that the evidence presented at trial was insufficient to support his conviction for first degree felony murder – eluding an officer. This Court reviews challenges to the sufficiency of the evidence in the light most favorable to the State and will not disturb the verdict if any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt. See Logsdon v. State , 2010 OK CR 7, ¶ 5, 231 P.3d 1156, 1161 ; Spuehler v. State , 1985 OK CR 132, ¶ 7, 709 P.2d 202, 203-04. In evaluating the evidence presented at trial, we accept the fact-finder's resolution of conflicting evidence as long as it is within the bounds of reason. See Day v. State , 2013 OK CR 8, ¶ 13, 303 P.3d 291, 298. See also Davis v. State , 2011 OK CR 29, ¶ 83, 268 P.3d 86, 112-13 ("The credibility of witnesses and the weight and consideration to be given to their testimony are within the exclusive province of the trier of facts and the trier of facts may believe the evidence of a single witness on a question and disbelieve several others testifying to the contrary."). "Pieces of evidence must be viewed not in isolation but in conjunction, and we must affirm the conviction so long as, from the inferences reasonably drawn from the record as a whole, the jury might fairly have concluded the defendant was guilty beyond a reasonable doubt." Davis v. State , 2004 OK CR 36, ¶ 22, 103 P.3d 70, 78 (quoting Matthews v. State , 2002 OK CR 16, ¶ 35, 45 P.3d 907, 919-20 ). This Court also accepts all reasonable inferences and credibility choices that tend to support the verdict. Coddington v. State , 2006 OK CR 34, ¶ 70, 142 P.3d 437, 456.

¶9 Newman's specific claim is that because at the time of the deadly crash officers had backed off their active pursuit, he was no longer in the commission of the crime of eluding an officer and thus not guilty of felony murder. In support of this argument, Newman directs this Court's attention to the testimony of Sapulpa Police Officer David Snelson that when Newman started driving southbound in the northbound lane of a major highway, the pursuit was terminated. However, Officer Snelson clarified, "In other words, we quit actively chasing him in the southbound lane northbound." He added that the officers were still attempting to catch up with Newman by driving parallel to him while driving southbound in the southbound lane.

¶10 Newman takes too myopic a view of his own actions and the consequences thereof. He stole a truck, crashed through a fence, and spent more than half an hour running from up to a dozen police officers. When it became too dangerous to maintain the direct pursuit, officers did their best to back off but still keep him in sight although at times just prior to the crash they lost visual contact with him. The fact that the officers chose not to follow him speeding the wrong way down a highway does not magically end his commission of the crime nor does it absolve him of criminal liability for it. The evidence, when viewed in the light most favorable to the State, proved each element of the crime of first degree felony murder and the predicate crime of eluding an officer, beyond a reasonable doubt.

¶11 Newman also argues in this proposition that the jury instruction defining "in the commission of" was confusing. The instruction, not met with objection below, was given as follows:

A person is in the commission of eluding an officer when he is performing an act which is an inseparable part of and/or performing an act which is necessary in order to complete the course of conduct constituting and/or fleeing from the immediate scene of eluding an officer.

¶12 While the instruction included all three clauses instead of just one, the record reflects that this was intentional because the trial court believed that the evidence presented at trial supported each of them. The instruction given substantially mirrored the uniform jury instruction OUJI-CR(2d) 4-65 and was not confusing. This proposition is without merit.

2.

¶13 In his second proposition, Newman argues that the trial court erred in failing to instruct the jury, sua sponte, on the lesser offense of second degree felony murder with larceny of an automobile as the underlying felony. "It is settled law that trial courts have a...