Frazier v. State

• Decision Date: 05 March 2020
• Docket Number: Case No. F-2018-483
• Parties: Willie Vern FRAZIER, Jr., Appellant v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

470 P.3d 296

Willie Vern FRAZIER, Jr., Appellant

v.The STATE of Oklahoma, Appellee.

Case No. F-2018-483

Court of Criminal Appeals of Oklahoma.

FILED MARCH 5, 2020

APPEARANCES AT TRIAL

ANGELA BONILLA, CORI FELKINS, ATTORNEYS AT LAW, P.O. BOX 998, OKMULGEE, OK 74447, COUNSEL FOR DEFENDANT.

O.R. BARRIS, III, DISTRICT ATTORNEY, CAROL ISKI, ASST. DISTRICT ATTORNEY, 314 WEST 7TH STREET, OKMULGEE, OK 74447, COUNSEL FOR STATE.

APPEARANCES ON APPEAL

DANNY JOSEPH, JEREMY STILLWELL, APPELLATE DEFENSE COUNSEL, P.O. BOX 926, NORMAN, OK 73070, COUNSEL FOR APPELLANT.

MIKE HUNTER, ATTORNEY GENERAL OF OKLAHOMA, JOSHUA R. FANELLI, ASSISTANT ATTORNEY GENERAL, 313 N.E. 21ST STREET, OKLAHOMA CITY, OK 73105, 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 discuss the case with anyone or allow anyone to discuss the case with him or her; (2) that he or she followed the court's admonition throughout trial not to read or listen to any news report concerning the case; (3) that he or she also abided by these admonitions during the lunch break after the case was submitted; (4) that he or she decided Frazier's case based solely on the evidence presented at trial; and (5) that he or she did not use a cell phone or other media device during the lunch break to search for information about Frazier. The majority of contact that jurors had with non-jurors during the challenged lunch break was placing a lunch order. The few who conversed with non-jurors beyond placing a lunch order testified there was no conversation about the case. Each juror also affirmed his or her signed affidavit attesting that he or she followed the court's directives throughout trial, including the challenged lunch break.

¶6 The district court read all pleadings on this issue, listened to the testimony of the jurors, examined the applicable case law, and found that the State had met its burden to disprove the presumption that prejudice resulted from the break in jury sequestration. We agree. There was neither evidence contradicting the testimony of the jurors nor evidence that any of the jurors were improperly swayed by outside influences. All jurors heeded the district court's admonitions at all times and reached a verdict based solely on the evidence presented at trial. Each juror understood the gravity of his or her duty and carefully guarded against any impropriety that might interfere with his or her duty to fairly and impartially decide the case. With the presumption of prejudice amply rebutted by the State, we reject Frazier's claim that he was denied due process from the break in jury sequestration.

2. Multiple Punishment

¶7 Frazier claims he was punished twice for the same act when he was convicted and sentenced for Unlawful Possession of a Firearm by a Convicted Felon (Count 1) and two misdemeanors, namely Transporting a Loaded Firearm (Count 5) and Possession of a Firearm While Intoxicated (Count 6). He contends that his possession of the same gun served as the basis for the charges in Counts 1, 5, and 6 and that there was no temporal break between the alleged acts. He maintains that the acts were therefore not separate and distinct and his convictions violate the statutory prohibition against multiple punishments for the same act under 21 O.S.2011, § 11.³

¶8 Frazier did not raise a multiple punishment objection at trial. This claim is therefore waived and will be reviewed for plain error only. Logsdon v. State , 2010 OK CR 7, ¶ 15, 231 P.3d 1156, 1164. Frazier has the burden in plain error review to demonstrate that "an error, plain or obvious under current law, adversely affected his substantial rights." Hammick v. State , 2019 OK CR 21, ¶ 8, 449 P.3d 1272, 1275 ; Hogan v. State , 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923. Only if Frazier does so will this Court entertain correcting the error provided the error seriously affected the fairness, integrity or public reputation of the judicial proceedings or represented a miscarriage of justice. Hammick 2019 OK CR 21, ¶ 8, 449 P.3d at 1275.

¶9 We analyze claims raised under Section 11 by focusing on the relationship between the crimes, considering "(1) the particular facts of each case; (2) whether those facts set out separate and distinct crimes;...