Quillen v. State

• Decision Date: 14 June 2007
• Docket Number: No. F-2005-243.,F-2005-243.
• Citation: 2007 OK CR 22,163 P.3d 587
• Parties: Carla Renee QUILLEN, Appellant v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

163 P.3d 587

2007 OK CR 22

Carla Renee QUILLEN, Appellant v.STATE of Oklahoma, Appellee.

No. F-2005-243.

Court of Criminal Appeals of Oklahoma.

June 14, 2007.

An Appeal from the District Court of Oklahoma County; the Honorable Ray C. Elliott, District Judge.

David Slane, Isaac Funderburk, Oklahoma City, OK, attorneys for defendant at trial.

Patricia High, Assistant District Attorney, Oklahoma City, OK, attorneys for the state at trial.

Katrina Conrad-Legler, Norman, OK, attorney for appellant on appeal.

W.A. Drew Edmondson, Attorney General of Oklahoma, Jennifer L. Strickland, Assistant Attorney General, Oklahoma City, OK, attorneys for the State on appeal.

SUMMARY OPINION

C. JOHNSON, Vice-Presiding Judge.

¶ 1Appellant, Carla Renee Quillen, was charged with First Degree Child Abuse Murder (Count I) and Unlawful Removal of the Dead, After Former Conviction of Two or More Felonies (Count II), in Oklahoma County District Court, Case No. CF-2002-3179.The jury convicted Appellant of the lesser offense of Second Degree Felony Murder in Count I and the crime charged in Count II.They assessed punishment at twenty-five years imprisonment on Count I and twenty years imprisonment on Count II.The Honorable Ray C. Elliott sentenced Appellant in accordance with the jury's recommendations and ordered the sentences to run consecutively.Appellant timely filed this appeal in which she raises the following propositions of error:

1.Appellant's conviction for Second Degree Felony Murder must be vacated because the merger doctrine prohibits the use of the act which allegedly caused the decedent's death from being used as the predicate felony in a felony murder prosecution.

2.Appellant's Fourteenth Amendment due process rights pursuant to the United States Constitution were violated when the jury was erroneously instructed as to the range of punishment for Count II, Unlawful Removal of the Dead.

3.The prosecutor abused her discretion by filing and then seeking a conviction in Count II, Unlawful Removal of the Dead.

4.The trial judge abandoned his role of impartiality when he went beyond the uniform jury instructions during voir dire.

5.Prosecutorial misconduct deprived Appellant of a fair trial.

6.Appellant's sentence is excessive.

7.The cumulative effect of all the errors addressed above deprived Appellant of a fair trial.

¶ 2 After thorough consideration of the propositions, and the entire record before us on appeal, including the original record, transcripts, and briefs of the parties, we have determined that relief is warranted based upon errors raised in Propositions I and II.

¶ 3 In addition to instructing the jury on the charged crime of First Degree Child Abuse Murder, the trial court instructed on the lesser offense of Second Degree Felony Murder with Child Neglect as the underlying felony.Appellant was convicted of this lesser offense.In her first proposition, Appellant argues that this conviction cannot stand because under the merger doctrine the underlying felony merges into the murder charge unless the underlying felony is separate from the act which caused the death.As Appellant correctly notes, the merger doctrine has been applied in Oklahoma for many years.It was first mentioned in the 1896case of Jewell v. Territory,4 Okla. 53, 43 P. 1075(Okla.Terr.1896) and has been a part of Oklahoma's jurisprudence ever since.¹

¶ 4The State responds that in light of the legislative intent evinced by the plain language of 21 O.S.2001, § 701.8(2)², this Court's application of the merger doctrine is unfounded and should be discontinued.As the State correctly notes, the merger doctrine is not based upon statutory language.Rather, it derived from the policy considerations first fully discussed in Tarter v. State,1961 OK CR 18, ¶¶ 40-44, 359 P.2d 596, 602, which are simply that without the merger doctrine, any person who commits a felony, other than one enumerated for First Degree Felony Murder, from which a death that is not excusable or justified results, can be prosecuted for Second Degree Felony Murder.Although the State argues that such concerns are no longer viable, we find this argument unpersuasive.We further disagree with the State's argument that the merger doctrine is contra to clear legislative intent.The fact that this Court has recognized the merger doctrine for over one hundred years without legislative intervention lends credibility to the conclusion that this Court's application of the merger doctrine is not at odds with legislative intent.

¶ 5 Having reaffirmed that the merger doctrine continues to be a part of Oklahoma's jurisprudence, we now discuss its application in the case at bar.Under the facts of this case,³ it is clear that the felony charge upon which Appellant's Second Degree Felony Murder conviction is predicated, Child Neglect, was not separate from the act which caused the death.Therefore, we find that the underlying felony merged into the homicide and could not be used to sustain the Second Degree Felony Murder conviction.This error requires that Appellant's conviction for Second Degree Felony Murder be reversed.In finding the Appellant guilty of Second Degree Felony Murder the jury necessarily found the evidence sufficient to prove the felony of Child Neglect beyond a reasonable doubt.Therefore, we modify Appellant's sentence to this lesser crime and modify the sentence to fifteen years imprisonment.

¶ 6 With regard to Proposition II, we find that the jury was improperly instructed that the range of punishment for Unlawful Removal of the Dead, After Former Conviction of Two or More Felonies, was not less than twenty years imprisonment.⁴The actual range of punishment for this crime is from four years to life imprisonment.See21 O.S.2001, § 1161(D);21 O.S. 2001, § 51.1(C).Failure to properly instruct on the range of punishment was plain error warranting relief.Taylor v. State,2002 OK CR 13, ¶ 4, 45 P.3d 103, 105.Based upon the facts of this case, we find that the appropriate remedy is to modify Appellant's sentence on Count II to ten years imprisonment.

¶ 7We find in Proposition III that the prosecutor did not abuse her discretion in filing the charges in Count II as there was probable cause to believe that the Appellant committed the crime charged and as the Appellant has not shown that the prosecution was based upon impermissible discriminatory grounds.SeeWoodward v. Morrissey,1999 OK CR 43, ¶¶ 9 & 17, 991 P.2d 1042, 1045 & 1047.

¶ 8 In Proposition IV we find that the trial court's comments did not constitute an abandonment of the judge's role of impartiality or improperly invade the province of the jury.Nor did the comments at issue misstate the law.Thus, we find no abuse of discretion here.Williams v. State,2001 OK CR 9, ¶ 15, 22 P.3d 702, 710.Further, trial counsel's failure to object to the comments at issue does not warrant a finding of ineffectiveness under Strickland v. Washington,466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984).

¶ 9We find with regard to allegations of prosecutorial misconduct raised in Proposition V that the majority of the comments at issue were proper given the wide latitude afforded counsel to discuss the evidence and the reasonable inferences drawn therefrom.Hogan v. State,2006 OK CR 19, ¶ 91, 139 P.3d 907, 936.Of those that tested the bounds of propriety, none were so egregious as to have deprived Appellant of a fair trial or sentencing.Id.¶ 10 It is not necessary to address Appellant's argument in Propositions VI and VII that the sentences imposed on Counts I and II were excessive and that cumulative trial error requires relief as we modified her Judgment and Sentence on Count I and modified the sentence on Count II based upon errors raised in Propositions I and II.

DECISION

Appellant's Judgment and Sentence on Count I is MODIFIED to reflect a conviction for Child Neglect and a sentence of fifteen years imprisonment.Her Judgment on Count II is AFFIRMED and her sentence MODIFIED to ten years imprisonment.The sentences on Counts I and II are ordered to run concurrently.Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals,Title 22, Ch.18, App. (2005), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

CHAPEL, A. JOHNSON, and LEWIS, JJ.: concur.

LUMPKIN, P.J.: concurs in part/dissents in part.

LUMPKIN, Presiding Judge: concur in part/dissent in part.

¶ 1 I dissent to the modification of the conviction in Count I to Child Neglect.I concur in the affirmance of the conviction and the modification of the sentence in Count II.

¶ 2 The majority has correctly stated that the "merger doctrine" relied upon to reverse the second-degree felony murder conviction in Count I is based upon policy considerations and not the plain language of the statute.However, I find these policy considerations are not supported by legislative intent, together with the fact the antiquated basis for those old policies is no longer present,¹ and therefore should not be reaffirmed and applied in the present case.

¶ 3 In 1896, at the time Jewell v. Territory was decided, the statutory felony murder provision provided that homicide was murder "when perpetrated without design to effect death by a person engaged in the commission of a felony".4 Okl. 53, 43 P. 1075, 1077, 1896 OK 16.However, language contained in Jewell, and relied upon by this Court to establish the "merger doctrine", was not contained in the statute.It is only in the syllabus to Jewell, in reference to felony murder, the Court stated:

Homicide is murder, under the third sub-division, "when perpetrated without any design to effect death, by a person engaged in the commission of any felony"; and this means some felony as defined by statute other than that of the killing itself.

4 Okl. 53, 43 P. 1075, 1896 OK 16.(emphasis added)

¶ 4 In the Jewell opinion, the Court did not discuss, nor analyze the...