Frazier v. State, 030520 OKCRI, F-2018-483

Docket Nº:F-2018-483
Opinion Judge:ROWLAND, JUDGE.
Party Name:WILLIE VERN FRAZIER, JR., Appellant v. THE STATE OF OKLAHOMA, Appellee.
Attorney:ANGELA BONILLA CORI FELKINS ATTORNEYS AT LAW COUNSEL FOR DEFENDANT. O.R. BARRIS, III DISTRICT ATTORNEY CAROL ISKI ASST. DISTRICT ATTORNEY COUNSEL FOR STATE DANNY JOSEPH JEREMY STILLWELL APPELLATE DEFENSE COUNSEL COUNSEL FOR APPELLANT MIKE HUNTER ATTORNEY GENERAL OF OKLAHOMA JOSHUA R. FANELLI ASSI...
Judge Panel:LEWIS, P.J.: Concur in Results. KUEHN, V.P.J.: Concur. LUMPKIN, J.: Concur. HUDSON, J.: Concur.
Case Date:March 05, 2020
Court:Court of Appeals of Oklahoma, Court of Criminal Appeals of Oklahoma
 
FREE EXCERPT

2020 OK CR 7

WILLIE VERN FRAZIER, JR., Appellant

v.

THE STATE OF OKLAHOMA, Appellee.

No. F-2018-483

Court of Criminal Appeals of Oklahoma

March 5, 2020

AN APPEAL FROM THE DISTRICT COURT OF OKMULGEE COUNTY, THE HONORABLE CYNTHIA PICKERING, ASSOCIATE DISTRICT JUDGE.

ANGELA BONILLA CORI FELKINS ATTORNEYS AT LAW COUNSEL FOR DEFENDANT.

O.R. BARRIS, III DISTRICT ATTORNEY CAROL ISKI ASST. DISTRICT ATTORNEY COUNSEL FOR STATE

DANNY JOSEPH JEREMY STILLWELL APPELLATE DEFENSE COUNSEL COUNSEL FOR APPELLANT

MIKE HUNTER ATTORNEY GENERAL OF OKLAHOMA JOSHUA R. FANELLI ASSISTANT ATTORNEY GENERAL COUNSEL FOR APPELLEE

OPINION

ROWLAND, JUDGE.

¶1 Appellant Willie Vern Frazier, Jr. appeals his Judgment and Sentence from the District Court of Okmulgee County, Case No. CF-2016-491, for Unlawful Possession of a Firearm by a Convicted Felon, After Former Conviction of Two or More Felonies (Count 1), in violation of 21 O.S.Supp.2014, § 1283 (A); Possession of Controlled Dangerous Substance (Hydrocodone/Methamphetamine), After Former Conviction of Two or More Felonies (Count 2), in violation of 63 O.S.Supp.2016, § 2-402; Possession of Controlled Dangerous Substance (Marijuana), a misdemeanor (Count 3), in violation of 63 O.S.Supp.2016, § 2-402; Driving a Motor Vehicle While Under the Influence of Drugs, a misdemeanor (Count 4), in violation of 47 O.S.Supp.2016, § 11-902 (A)(4); Transporting Loaded Firearm in Motor Vehicle, a misdemeanor (Count 5), in violation of 21 O.S.Supp.2012, § 1289.13; and Carrying Firearm While under the Influence, a misdemeanor (Count 6), in violation of 21 O.S.Supp.2012, § 1289.9. The Honorable Cynthia D. Pickering, Associate District Judge, presided over Frazier's jury trial and sentenced him, in accordance with the jury's verdict, to life imprisonment and a $5, 000.00 fine on Count 1, five years imprisonment and a $5, 000.00 fine on Count 2, one year in the county jail and a $1, 000.00 fine on each of Counts 3 and 4, and six months in the county jail and a $500.00 fine on each of Counts 5 and 6. Judge Pickering ordered Counts 1, 5, and 6, to run concurrently with each other, Counts 2 and 3 to run concurrently with each other but consecutively to Counts 1, 5, and 6, and Count 4 to run consecutive to all other counts. Frazier appeals raising the following issues: (1) whether a break in jury sequestration requires relief;

(2) whether he suffered double punishment for his convictions and sentences in Counts 1, 5, and 6;

(3) whether he was denied a fair trial because the district court allowed the prosecution's peremptory challenge of an African-American panelist;

(4) whether prosecutorial misconduct deprived him of a fair trial;

(5) whether his life sentence for possession of a firearm after felony conviction is excessive; and

(6) 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 on Counts 1, 2, 3, and 4. We find, however, that the Judgment and Sentence of the district court on Counts 5 and 6 must be remanded to the district court with Instruction to dismiss.

Facts

¶3 The facts underlying Frazier's convictions are not in dispute. On December 16, 2016, a trooper with the Oklahoma Highway Patrol stopped Frazier for speeding on Highway 75. The trooper clocked Frazier with his radar gun driving ninety miles per hour in a sixty-five mile per hour zone. The highway was wet and slick because of misty weather and part of the roadway was under construction. The trooper made contact with Frazier and noted a strong odor of raw marijuana. After running Frazier's license, the trooper again approached Frazier's pickup to issue a warning citation and this time observed a smoked marijuana blunt on the center console. The trooper asked Frazier to exit the pickup, and he observed various signs of intoxication, including the odor of burnt marijuana on Frazier's person and breath, dilated pupils, eye and body tremors, a green film on Frazier's tongue as well as a general unsteadiness. The trooper searched Frazier and recovered a rolled up dollar bill from his pocket containing two hydrocodone pills and two other pills. Frazier admitted smoking marijuana within two hours of the stop. The trooper searched the pickup and seized the smoked marijuana blunt, a digital scale with methamphetamine residue, roughly 100 grams of raw marijuana and a loaded Raven.25 caliber pistol.

1. Break in Jury Sequestration

¶4 Frazier argues he was denied due process of law because the district court allowed his jury to go to lunch, over defense counsel's objection, after the case was submitted for deliberations in violation of 22 O.S.2011, § 857. 1 He maintains this error requires reversal of his convictions. The State has never contested in this appeal that a break in jury sequestration occurred or that the district court violated Section 857 by allowing the jury to separate for lunch. See Johnson v. State, 2004 OK CR 23, ¶ 18, 93 P.3d 41, 47 (reaffirming that a case is submitted to the jury once the court has delivered the jury instructions and the parties have completed closing argument). The State has acknowledged from the beginning this Court's long-standing case law, holding that a district court's failure to adhere to the statutory mandate of Section 857 constitutes error. J.M.F. v. State, 2018 OK CR 29, ¶ 5, 427 P.3d 154, 155; Johnson, 2004 OK CR 23, ¶ 20, 93 P.3d at 47. The State has further acknowledged violations of Section 857 over defense objection result in a presumption of prejudice and the burden falls to the State to prove the break in sequestration did not prejudice the accused. J.M.F., 2018 OK CR 29, ¶ 5, 427 P.3d at 155; Johnson, 2004 OK CR 23, ¶ 20, 93 P.3d at 47 . To meet its burden, the State requested an evidentiary hearing and we granted that request and ordered the evidentiary hearing under Rule 3.11(A), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019). 2 The district court held the evidentiary hearing on September 5, 2019, and filed its Findings of Fact with the Clerk of this Court on October 3, 2019.

¶5 Each juror who served on Frazier's jury appeared at the evidentiary hearing, including the alternate. Each one was questioned individually and separately from the other jurors. Each juror who deliberated testified: (1) that throughout trial he or she followed the court's admonition not to...

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