Stewart v. State

• Decision Date: 26 April 2016
• Docket Number: No. F–2015–282.,F–2015–282.
• Citation: 372 P.3d 508,2016 OK CR 9
• Parties: Bruce Conway STEWART, Jr., Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

372 P.3d 508

2016 OK CR 9

Bruce Conway STEWART, Jr., Appellant

v.The STATE of Oklahoma, Appellee.

No. F–2015–282.

Court of Criminal Appeals of Oklahoma.

April 26, 2016.

Micah Sielert, Michael Housely, Oklahoma Indigent Defense System, Clinton, OK, counsel for defendant at trial.

Ricky A. McPhearson, Assistant District Attorney, Arapaho, OK, counsel for the State at trial.

Rana Hill, Appellate Defense Counsel, Norman, OK, counsel for appellant on appeal.

E. Scott Pruitt, Attorney General of Oklahoma, Timothy J. Downing, Assistant Attorney General, Oklahoma City, OK, counsel for the State on Appeal.

OPINION

LUMPKIN, Vice Presiding Judge.

¶ 1 Appellant, Bruce Conway Stewart, Jr., was tried by jury and convicted of Driving a Motor Vehicle While Under the Influence of Drugs (Count 1) 47 O.S.Supp.2013, § 11–902(A)(4)

, After Two or More Felony Convictions, and Driving With License Suspended (Count 4) 47 O.S.2011, § 6–303, in the District Court of Custer County, Case Number CF–2014–256.¹ The jury recommended as punishment imprisonment for twenty (20) years and a $5,000.00 fine in Count 1 and incarceration in the county jail for one (1) year and a $500.00 fine in Count 4. The trial court sentenced Appellant accordingly but reduced the fine in Count 1 to $500.00. The trial court further ordered the sentences to run concurrently. It is from this judgment and sentence that Appellant appeals.

¶ 2 Appellant raises the following propositions of error in this appeal:

I. Improper evidence led to an excessive sentence.

II. The evidence was insufficient to convict Mr. Stewart of Driving Under the Influence of Drugs.

III. The trial court failed to instruct the jury on the definitions of “under the influence” and “impaired ability.”

IV. Ineffective assistance of counsel denied Mr. Stewart a fair trial.

¶ 3 After a thorough consideration of these propositions and the entire record before us on appeal including the original records, transcripts, and briefs of the parties, we have determined the case should be remanded for resentencing.

FACTS

¶ 4 On August 16, 2014, at approximately 11:45 p.m., Oklahoma Highway Patrol Trooper Aaron Hunter observed Appellant make an improper turn from U.S. Highway 183 onto Gary Boulevard, in Clinton, Oklahoma. Appellant deviated from the direct course and travelled into the outside lane during his turn. The windshield on the vehicle that Appellant was driving was cracked in the critical area within the span of the driver's side windshield wiper area. Trooper Hunter initiated his emergency lights and stopped Appellant's vehicle. As Appellant exited the car, Hunter observed a small package fall onto the pavement. Appellant picked up the package and leaned back into the car for several seconds. When Appellant finally made his way back to Hunter's patrol car, he informed the Trooper that he did not have a driver's license because it was suspended.

¶ 5 Hunter had Appellant take a seat inside the passenger seat in his patrol car. He observed that Appellant's speech was very thick and slurred. His movements were abnormal and very exaggerated. Appellant used his hands a lot and made brisk movements. Appellant's mouth was very dry and he smacked his lips a lot while talking. Hunter recognized all of these as indicators of methamphetamine or stimulant use. When Hunter asked Appellant if he had used methamphetamine or any stimulants, Appellant advised that he had done so in the past.

¶ 6 Appellant remained nervous throughout the encounter. Hunter could see Appellant's pulse beating in the side of his neck. He also observed Appellant's pulse beat through his stomach area. Five minutes after Hunter had Appellant take a seat in the patrol car, Hunter checked Appellant's pulse and observed that it was outside the normal range of 60 to 72 beats per minute. Hunter determined that Appellant's pulse was elevated to 110 beats per minute. Appellant's elevated heart rate was also a sign of methamphetamine or stimulant use.

¶ 7 When Lieutenant Paul Christian arrived to assist Hunter with the passenger in the vehicle, Hunter had Appellant step out of the patrol car. Hunter performed the Romberg sobriety test on Appellant and had him estimate the passage of 30 seconds. Appellant's perception of time was sped up. Appellant estimated that 30 seconds had passed after only 11 seconds. A normal response on this test is between 27 and 33 seconds. Because stimulant use speeds up the processes and causes the user to think that time is passing faster than it actually is, Appellant's test result suggested to Hunter that Appellant was under the influence of intoxicants. Based upon his training and experience, Hunter believed that Appellant was extremely intoxicated.

¶ 8 Lieutenant Christian observed Appellant during the time that Hunter gave him the Romberg test. He noticed that Appellant was unsteady on his feet, very animated, and fidgety. Appellant was sweating profusely and his shirt was wet with sweat. Christian believed that Appellant was under the influence of methamphetamine.

¶ 9 The Troopers placed Appellant under arrest and searched the vehicle which Appellant had been driving. Hunter found a Crown Royal bag between the driver's seat and the center console. Inside the bag were 4 plastic baggies containing marijuana, a single plastic baggy containing methamphetamine, and a marijuana smoking pipe.

¶ 10 The Troopers took Appellant to the Custer County Jail. They offered him a blood test but Appellant refused to take the test. Detention Officer Audrey Mejia booked Appellant into the jail. She noticed that Appellant was sweating, jittery, dramatic and kind of agitated looking. Based upon her training and experience she believed that Appellant was intoxicated on methamphetamine.

ANALYSIS

¶ 11 In Proposition One, Appellant contends that the trial court committed error when it admitted prejudicial evidence during the second stage of the trial. He argues that this improper evidence caused the jury to recommend an excessive sentence in Count 1.

¶ 12 Appellant concedes that he waived appellate review of this issue when he failed to raise this challenge before the trial court. Simpson v. State, 1994 OK CR 40, ¶¶ 2, 23, 876 P.2d 690, 692–93, 698

. Therefore, we review Appellant's claim pursuant to the test set forth in Simpson. Under this test, an appellant must show an actual error, which is plain or obvious, and which affects his substantial rights. Malone v. State, 2013 OK CR 1, ¶ 41, 293 P.3d 198, 211–212 ; Levering v. State, 2013 OK CR 19, ¶ 6, 315 P.3d 392, 395 ; Simpson, 1994 OK CR 40, ¶¶ 10, 26, 30, 876 P.2d at 694, 699, 701. We will correct plain error only if the error seriously affects the fairness, integrity or public reputation of the judicial proceedings or otherwise represents a miscarriage of justice. Id.

¶ 13 Appellant, first, argues that the State improperly introduced judgment and sentence documents which referenced suspended sentences, supervised probation and rules of probation. We find that Appellant has not shown that error occurred within this claim.

¶ 14 The longstanding rule is that the parties are not to encourage jurors to speculate about probation, pardon or parole policies. Florez v. State, 2010 OK CR 21, ¶ 4, 239 P.3d 156, 157

; Hunter v. State, 2009 OK CR 17, ¶ 10, 208 P.3d 931, 933 ; Anderson v. State, 2006 OK CR 6, ¶ 11, 130 P.3d 273, 278. We determine whether, in light of the totality of the circumstances, the prosecution made such an unmistakable reference to the pardon and parole system of Oklahoma to result in prejudice to the defendant. Harney v. State, 2011 OK CR 10, ¶ 24, 256 P.3d 1002, 1007.

¶ 15 In the present case, the State introduced four separate judgment and sentence documents to prove Appellant's prior felony convictions in the present case. State's Exhibit Number 4 was a certified copy of Appellant's Judgment and Sentence in the District Court of Custer County Case No. CF–2003–161, which reflected his conviction for the felony of Possession of Marijuana. State's Exhibit Number 5 was a certified copy of Appellant's Judgment and Sentence in Custer County District Court Case No. CF–2005–414, which reflected his conviction for the felony of Driving a Motor Vehicle While Under the Influence of Alcohol. State's Exhibit Number 6 was a certified copy of Appellant's Judgment and Sentence in the District Court of Woodward County Case No. CF–2009–51, which reflected Appellant's conviction for Distribution of Controlled Substance (Marijuana). State's Exhibit Number 7 was a certified copy of Appellant's Judgment and Sentence in the District Court of Ellis County Case No. CF–2011–38 which reflected Appellant's conviction for the felony of Driving a Motor Vehicle While Under the Influence of Alcohol. (Tr. 238–39).

¶ 16 Exhibit Numbers 5, 6, and 7 all referenced the fact that Appellant had received suspended sentences. Exhibit Numbers 6 and 7 both contained Rules and Conditions of Probation.

¶ 17 This Court has distinguished between the circumstance where a prosecutor makes an unmistakable comment upon probation or parole and the instance where the judgment and sentence documents reference probation or parole. See Darks v. State, 1998 OK CR 15, ¶ 59, 954 P.2d 152, 167

(citing

Richardson v. State, 1979 OK CR 100, ¶ 19, 600 P.2d 361, 367 ). The introduction of the judgment and sentence is a proper part of the proof of a former felony conviction. Camp v. State, 1983 OK CR 74, ¶¶ 2–3, 664 P.2d 1052, 1053–54. A judgment and sentence which indicates that the defendant received a suspended sentence, standing alone, does not constitute plain error. Id.;

Honeycutt v. State, 1967 OK CR 154, ¶¶ 18–20, 432 P.2d 124, 128. In contrast, this Court has found that it is error for the prosecutor to explicitly inform the jury that the defendant has received a suspended sentence through reading this fact off of the Information during the State's opening statement and calling the jury's attention to this fact during closing argument. Hunter, 2009...