Barnett v. State

• Decision Date: 01 November 2011
• Docket Number: No. F–2009–698.,F–2009–698.
• Citation: 263 P.3d 959,2011 OK CR 28
• 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

263 P.3d 959

2011 OK CR 28

Eric Jose BARNETT, Appellant,

v.The STATE of Oklahoma, Appellee.

No. F–2009–698.

Court of Criminal Appeals of Oklahoma.

Nov. 1, 2011.

¶ 0 An Appeal from the District Court of Okmulgee County; the Honorable M. Michael Claver, District Judge.James Dennis, Sapulpa, OK, attorney for defendant at trial.O.R. Barris, III, Asst. District Attorney, Okmulgee, OK, attorney for The State at trial.Lee Ann Jones Peters, Okla. Indigent Defense System, Norman, OK, attorney for appellant on appeal.W.A. Drew Edmondson, Attorney General, Lori S. Carter, Assistant Attorney General, Oklahoma City, OK, attorneys for appellee on appeal.

OPINION

LEWIS, Vice–Presiding Judge.

¶ 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–2009–2.¹ The jury sentenced Appellant to twenty-three (23) years imprisonment. The Honorable H. Michael Claver, District Judge, pronounced judgment and sentence accordingly. ² Mr. Barnett appeals the following propositions of error:

1. The trial court's refusal to instruct the jury on Appellant's theory of defense deprived him of his rights to a fair trial and to the due process of law, in violation of the Sixth and Fourteenth Amendments of the Federal Constitution and in violation of Article 2, §§ 7, 19, and 20 of the Oklahoma Constitution;

2. The trial court's exclusion of extrinsic evidence concerning Vernon Sutton's violent character deprived the defendant of his right to present a defense, to a fair trial, and to due process guaranteed by the Sixth and Fourteenth Amendments to the Federal Constitution and by Article 2, §§ 7, 19, and 20 of the Oklahoma Constitution;

3. Prosecutorial misconduct deprived Appellant of his constitutional right to a fair trial and due process of law, in violation of the Fifth, Sixth, and Fourteenth Amendments of the Federal Constitution and in violation of Article 2, §§ 7, 19, 20, and 21 of the Oklahoma Constitution;

4. Mr. Barnett was denied effective assistance of counsel in violation of his rights under the Sixth and Fourteenth Amendments to the Federal Constitution and Article 2, §§ 7 and 20 of the Oklahoma Constitution;

5. Appellant's conviction for second degree felony murder must be vacated because the merger doctrine prohibits using the act that caused the decedent's death as a predicate felony in a felony murder prosecution;

6. Under the unique circumstances of this case, imposition of a twenty-three year sentence for a seventeen-year-old offender is excessive and should be modified;

7. The accumulation of errors deprived Appellant of a fair trial and reliable verdict.

FACTS

¶ 2 Appellant lived with his mother and younger sister in Okmulgee, Oklahoma. On the evening of August 21, 2008, he and two friends were standing outside his house when the decedent, Vernon Sutton, and another man pulled up to the house, got out of the car, and walked toward them. Sutton apparently knew one of the men standing with Appellant from prison. Appellant noticed that Sutton had one blue eye. A black man with one blue eye had raped his mother years before and been convicted of the crime. Appellant went inside and told his mother that the man who had raped her was standing in the yard.

¶ 3 Appellant's mother came outside to confront Sutton, who was in fact the convicted rapist who had assaulted her. She asked him if he remembered her. Sutton smiled and said he knew where he was. Appellant's mother angrily demanded that he leave. When he refused, Appellant picked up a length of lumber and went toward Sutton. Sutton prepared to fight, but a passing Okmulgee police officer intervened. When Appellant's mother explained who Sutton was, the officer made him leave the premises. Sutton smirked at Appellant and his mother and told them he would be back, and that he “had something” for them.

¶ 4 Almost a month later, Appellant received a text from one of his friends, Breylon Griffin, who had been present during the confrontation with Vernon Sutton. Griffin's text told Appellant “dat n*gg*r's ova here” at another house in Okmulgee. Appellant called Griffin and learned that Sutton was visiting with some other men at a house in Okmulgee. Appellant called Jennifer McNac and asked her to give him a ride to that location. She initially refused but then changed her mind. Appellant was already walking toward the location when McNac picked him up.

¶ 5 As they neared the house, Appellant put the hood of his jacket over his head and covered his face with a bandana. When they reached the house where Vernon Sutton and others were standing, Appellant leaned out and fired three or four shots, fatally striking Sutton in the chest and abdomen. Five days after the shooting, Appellant told police in an interview that he was out of town when the shooting happened. At trial, Appellant admitted the shooting, but said he killed Sutton because he was afraid Sutton would come back to harm his family.

ANALYSIS

¶ 6 In Proposition One, Appellant challenges the trial court's refusal to give requested instructions on self-defense and defense of another. We review the trial court's rulings on requested instructions for abuse of discretion. Dill v. State, 2005 OK CR 20, ¶ 11, 122 P.3d 866, 869. An instruction on a theory of defense is required “when evidence has been introduced at trial that is adequate to raise that defense, i.e., to establish a prima facie case” of that defense. Malone v. State, 2007 OK CR 34, ¶ 22, 168 P.3d 185, 196. Appellant's claim must fail. Evidence that Appellant feared Sutton does not raise an issue of self defense or defense of another, where the evidence showed that Appellant had no reasonable belief that he or his family were in imminent danger of being attacked or killed by Sutton at the time Appellant used deadly force. Instruction Nos. 8–2, 8–6, OUJI–CR(2d); Perryman v. State, 1999 OK CR 39, ¶ 9, 990 P.2d 900, 903–04. Proposition One is denied.

¶ 7 In Proposition Two, Appellant argues that the trial court erred in excluding certain evidence offered by the defense tending to prove the violent character of the victim. We review these rulings for abuse of discretion, and find none. Hancock v. State, 2007 OK CR 9, ¶ 72, 155 P.3d 796, 813. Proposition Two requires no relief.

¶ 8 Proposition Three claims that prosecutorial misconduct denied Appellant a fair trial. Due to the lack of a timely objection to any of the challenged statements, Appellant has waived all but plain error. Matthews v. State, 2002 OK CR 16, ¶ 38, 45 P.3d 907, 920. This Court will reverse for prosecutorial misconduct where grossly improper and unwarranted argument affects a defendant's rights. Howell v. State, 2006 OK CR 28, ¶ 11, 138 P.3d 549, 556. The comments challenged on appeal were not improper. Warner v. State, 2006 OK CR 40, ¶ 179, 144 P.3d 838, 888; Hogan v. State, 2006 OK CR 19, ¶ 91, 139 P.3d 907, 936. Proposition Three is denied.

¶ 9 Appellant argues in Proposition Four that he was denied the effective assistance of counsel. Appellant also filed an application for evidentiary hearing on his Sixth Amendment claims pursuant to Rule 3.11(B)(3)(b), Rules of the Court of Criminal Appeals, Title 22, Ch. 18 (2011), App. Ineffective counsel claims must overcome a strong initial presumption that counsel rendered reasonable professional assistance, by showing: (1) that trial counsel's performance was deficient; and (2) that he was prejudiced by the deficient performance. If Appellant demonstrates that counsel's representation was objectively unreasonable under prevailing professional norms, he must also show that he suffered prejudice, defined as a reasonable probability that, but for counsel's unprofessional errors, the outcome of the trial or sentencing would have been different Hancock, 2007 OK CR 9, ¶¶ 106–107, 155 P.3d 796, 821. To warrant an evidentiary hearing under Rule 3.11(B)(3)(b)(i), Appellant's application and supporting materials must set forth “sufficient information to show this Court by clear and convincing evidence there is a strong possibility trial counsel was ineffective for failing to utilize or identify the complained-of evidence.” Reviewing Appellant's application and his arguments, we find no evidentiary hearing is required and no relief is warranted. Proposition Four is without merit.

¶ 10 In Proposition Five, Appellant argues that his conviction for second degree felony murder violates the merger doctrine, or independent crime requirement, recognized by our case law in Quillen v. State, 2007 OK CR 22, 163 P.3d 587, and earlier cases. Although the State charged Appellant in Count 2 with first degree malice aforethought murder, the trial court also instructed the jury on the lesser included offense of second degree felony murder in the commission of using a vehicle to facilitate the intentional discharge of a firearm.³ The jury acquitted Appellant of first degree murder, but convicted him of second degree murder in the commission of the underlying felony.⁴ Counsel's failure to object to the second degree felony murder instruction at trial waived all but plain error. Eizember v. State, 2007 OK CR 29, ¶ 110, 164 P.3d 208, 236. We therefore consider whether Appellant's conviction of second degree murder in the commission of this underlying felony is plain error; that is, an error which goes “to the foundation of the case,” or which takes from a defendant “a right which was essential to his defense.” Simpson v. State, 1994 OK CR 40, ¶ 12, 876 P.2d 690, 695.

¶ 11 Under this Court's merger doctrine, or independent crime requirement, “[i]n order for the taking of human life in the commission of a felony to constitute murder, the precedent felony must constitute an independent crime not included within the resulting homicide.” Sullinger v. State, 1984 OK CR 44, ¶ 3, 675 P.2d 472, 473. The merger doctrine is a historical feature...