Barnett v. State , F–2009–698.

• Decision Date: 01 February 2012
• Docket Number: No. F–2009–698.,F–2009–698.
• Citation: 271 P.3d 80,2012 OK CR 2
• Parties: Eric Jose BARNETT, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

2012 OK CR 2

271 P.3d 80

Eric Jose BARNETT, Appellant,

v.The STATE of Oklahoma, Appellee.

No. F–2009–698.

Court of Criminal Appeals of Oklahoma.

Feb. 1, 2012.

ORDER GRANTING PETITION FOR REHEARING

¶ 1 Eric Jose Barnett, Appellant, was tried by jury and found guilty of second degree felony murder, in violation of 21 O.S.2001, § 701.8(2), in the District Court of Okmulgee County, Case No. CF–2009–2. The jury sentenced Appellant to twenty-three (23) years imprisonment. Appellant filed a timely appeal in this Court, and on November 1, 2011, this Court affirmed the conviction and sentence. Barnett v. State, 2011 OK CR 28, 263 P.3d 959. Appellant now petitions for rehearing. A petition for rehearing shall only be filed for the following reasons:

(1) Some question decisive of the case and duly submitted by the attorney of record has been overlooked by the Court, or

(2) The decision is in conflict with an express statute or controlling decision to which the attention of this Court was not called either in the brief or in oral argument.

Rule 3.14, Rules of the Oklahoma Court of Criminal Appeals, 22 O.S. Ch. 18, App. (2012). Rehearing is GRANTED, but relief is DENIED.

¶ 2 Appellant's first ground for rehearing argues that the Court's decision to overrule Quillen v. State, 2007 OK CR 22, 163 P.3d 587 and affirm his conviction for second degree murder violates the ex post facto principles against retroactive judicial decisions embodied in the Due Process Clause. U.S. Const. Amend. XIV. See Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964). We reject this contention for several reasons. First, we address Appellant's underlying premise that our continued adherence to the merger doctrine inevitably would have resulted in a reversal or modification of his murder conviction on direct appeal. Here Appellant's argument disregards the significance of his waiver of the issue when he failed to object at trial to the lesser included offense instruction on second degree felony murder. Grissom v. State, 2011 OK CR 3, ¶ 28, 253 P.3d 969, 980. Our review of his merger doctrine argument on direct appeal was limited to whether the district court committed plain error, which is error that goes to the foundation of the case or takes from the defendant a right essential to his defense. Grissom, 2011 OK CR 3, ¶ 28, 253 P.3d at 980 ( citing Simpson v. State, 1994 OK CR 40, ¶ 12, 876 P.2d 690, 695).

¶ 3 Plain error provides a very limited avenue of appellate review. The decision to correct an error that has been forfeited by the failure to object at trial lies within the “sound discretion” of the appeals court, to be exercised only where “the error ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’ ” Simpson, 1994 OK CR 40, ¶ 30, 876 P.2d at 700–701, ( citing United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508, 518 (1993)). We agreed with Appellant on direct appeal “that the predicate felony of using a vehicle to facilitate the intentional discharge of a firearm is not independent from the homicidal act of shooting Vernon Sutton, and that his conviction therefore violates the merger doctrine set forth in Quillen.” Barnett, 2011 OK CR 28, ¶ 15, 263 P.3d at 964. However, Appellant reads more into this statement than he should when he assumes that a finding of error would have dictated reversal or modification of his murder conviction to the underlying felony, as the Court had done four years earlier in Quillen.

¶ 4 Under the plain error doctrine, relief would be required only if the merger doctrine violation seriously affected the fairness, integrity or public reputation of the proceedings resulting in his conviction. As we indicated in the direct appeal, this Court's application of the merger doctrine to reverse Appellant's conviction for murder and convict him only of the underlying felony would be a miscarriage of justice. Appellant killed a human being while in the commission of a felonious drive-by shooting, and was clearly guilty of second degree felony murder, at the very least. 21 O.S.2001, § 701.8(2). Although the jury acquitted him of malice aforethought murder, it need not have done so, as evidence of malice aforethought was abundant. Thus, notwithstanding his claim of error under the merger doctrine, Appellant clearly benefited from the trial court's decision to instruct on the lesser included offense of second degree felony murder, giving the jury a means to express sympathy for his position and spare this young man the heavy penalty of life imprisonment.

¶ 5 This Court could have readily affirmed Appellant's second degree murder conviction solely on the presumption that he desired the second degree felony murder instructions as a strategic benefit and waived any objection based on the merger doctrine. Shrum v. State, 1999 OK CR 41, ¶ 11, 991 P.2d 1032, 1037 (finding that if “the trial court proposes or the State requests the lesser included offense instruction and the defense does not object, we will presume the defendant desired the lesser included offense instruction as a benefit”). We did not reach this issue in affirming the conviction, because our decision to abandon the merger doctrine foreclosed analysis of questions arising from a finding of error. Appellant's supposition that our abandonment of the merger doctrine deprived him of an otherwise inevitable reversal or modification of his murder conviction misunderstands the nature of our holding on direct appeal. We now clarify our view that Appellant's murder conviction, which is authorized by the plain language of the second degree murder statute and supported by overwhelming evidence, is free from error that seriously affects the fairness, integrity or public reputation of judicial proceedings.

¶ 6 Second, we reject the argument that retroactive application of our decision in Barnett violates ex post facto principles embodied in the Due Process Clause. “Nothing in the Constitution alters the fundamental rule of ‘retrospective operation’ that has governed ‘[j]udicial decisions ... for near a thousand years.’ ” Harper v. Virginia Dept. of Taxation, 509 U.S. 86, 94, 113 S.Ct. 2510, 2516, 125 L.Ed.2d 74 (1993) ( quoting Kuhn v. Fairmont Coal Co., 215 U.S. 349, 372, 30 S.Ct. 140, 148, 54 L.Ed. 228 (1910) (Holmes, J., dissenting)). “Retroactive operation of an overruling decision is neither required nor prohibited by the United States Constitution.” Griggs v. State ex rel. Dept. of Transp., 1985 OK 51, ¶ 11, 702 P.2d 1017, 1020. Our decision to overrule Quillen and apply that ruling in the case before us was fully consonant with the general “common-law norm that an overruling precedent is to be applied retroactively,” Griggs, 1985 OK 51, ¶ 10, 702 P.2d at 1020, to the parties before the Court and to other appeals then pending on direct review and not yet final. Harper, 509 U.S. at 97, 113 S.Ct. at 2517 (holding that when Supreme Court applies a rule of federal law to parties before it, that rule is controlling and retroactive on direct review, regardless whether events predate or postdate announcement of the rule).

¶ 7 The Supreme Court has identified limited circumstances where the retroactive application of a judicial decision can violate due process in the same way as an ex post facto law.¹ See Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964). The Court has not incorporated the specific prohibitions of the Ex Post Facto Clause “jot-for-jot” when applying the Due Process Clause to retroactive judicial decision-making, but rather has recognized “the more basic and general principle of fair warning” that the Supreme Court articulated in Bouie. Rogers v. Tennessee, 532 U.S. 451, 459, 121 S.Ct. 1693, 1699, 149 L.Ed.2d 697 (2001). We analyze Appellant's constitutional argument according to Bouie's controlling principle of fair warning.

¶ 8 In Bouie, the petitioners were convicted under a state criminal statute which defined trespass as entry after notice from the owner that entry was prohibited. Prior state case law had uniformly held that a conviction under the statute required proof that notice was given to the would-be trespasser before entry. Id., 378 U.S. at 349 n. 1, 84 S.Ct. at 1700 n. 1. On appeal, the South Carolina Supreme Court enlarged the statute by construction to include the case where a person refused to leave premises after receiving notice, and upheld petitioner's convictions. Id., 378 U.S. at 349–50, 357, 84 S.Ct.at 1697, 1700–01.

¶ 9 The Supreme Court in Bouie held the state supreme court's retroactive application of its decision to affirm petitioners' trespass convictions violated due process. The Court grounded its decision in the “basic principle that a criminal statute must give fair warning of the conduct that it makes a crime.” Id., 378 U.S. at 350, 84 S.Ct. at 1701.

[A]n unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law ... If a state legislature is barred by the Ex Post Facto Clause from passing such a law, it must follow that a State Supreme Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction ... If a judicial construction of a criminal statute is unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue, it must not be given retroactive effect.

Bouie, 378 U.S. at 353–354, 84 S.Ct. at 1702–03 (internal quotations and citations omitted) (emphasis added).

¶ 10 In Rogers v. Tennessee, the Supreme Court held that the state supreme court's decision to abandon the common law “year and a day” rule in upholding the appellant's second degree murder conviction did not violate Bouie's principle of due process. Id., 532 U.S. at 466–67, 121 S.Ct. at 1703. The Supreme Court in Rogers reasoned that the state court's decision was neither...