Court Says No Harm, Yes Foul
The errors the court acknowledged – and other errors the defense alleged on appeal – are only part of the story. For a hit-and-run case, the prosecution essentially argued an assault and battery with a dangerous weapon case.
Even the overwrought hit-and-run case was riddled with errors. In rebuttal testimony, a prosecutor asked an accident victim about a barely noticeable back brace she wore – even though there was no testimony about the brace to be rebutted.
“Both the State and the defense agree” that the questions were not proper rebuttal testimony, the appeals court wrote.
The jury was instructed, wrongly, that the minimum sentence for the offense was 4 years – not thirty days. “[W]e find error occurred,” the appellate court wrote.
The judge did not provide the deadlocked jury a routine instruction explaining that the law would allow them to retire without reaching a verdict. Again, the appellate court found error.
“We find the trial court erred in failing to give the uniform deadlock jury instruction” the court wrote.
Yet none of the errors was so significant as to harm the defendant’s right to a fair trial on charges that could send him to prison for life, the appeals judges concluded. Nor did the court believe he suffered from ineffective counsel when his defense attorney failed to object to errors as they occurred at trial.
The errors the Oklahoma Court of Criminal Appeals acknowledged in a May 14, 2015 opinion were only a sampling of errors the man’s attorney raised on appeal.
Playing to Jurors’ Sympathy
Prosecutors may not elicit sympathy for a crime victim. That rule was lost on prosecutors, the appellate attorney argued.
Prosecutors may not argue that defendants will commit future crimes. Yet they appellate court found no error in the prosecutions’ final argument asking jurors to “[m]ake him stop. Make him stop. He has no ability to stop himself… No more. Nor more of these. It must stop and it must stop now.”
On appeal, the State argued “the prosecutor was not truly arguing the defendant would commit the same crime in the future.”
The appeals court did not consider the “no more of these” argument to be prosecutorial misconduct.
In one error, the defense attorney did object. He objected to improper rebuttal testimony about the back brace, which was nothing more than out-of-turn direct testimony driving home the point that the victim had been injured – a fact already well established by an accumulation of testimony.
At trial, the prosecution claimed testimony about the back brace was somehow a benefit for the defendant – as if a prosecutor seeking to put someone in prison for life would gratuitously offer beneficial testimony for a defendant.
The prosecution piled on improper testimony after the victim had already testified about the life-changing extent of her injuries – testimony more fitting to support an aggravated battery charge than as proof in a leaving the scene of an injury accident case.
Prosecutors elicited testimony about how the injury affected her work prospects. Over defense objections, she was led through questions about how the injury affected her family life. That testimony served to “lay out what the injuries were” the trial judge said, overruling the defense objection.
Of course, once it was established that there were injuries, “what the injuries were” had no further factual relevance to a charge of leaving the scene of an injury accident. It was not as if the defendant’s failure to provide assistance complicated the injuries.
The prosecution piled up pictures of the driver in a neck brace at the scene, and later in the hospital after spinal surgery. Such photographs might be excluded as cumulative and prejudicial under Okla. Stat. tit. 12 § 2403.
In Jones v. State 1987 OK CR 103, the appeals court excluded evidence of undisputed facts that that were already established through other evidence. The cumulative evidence was more likely prejudicial than serving to prove anything, the court determined in Jones v State.
Even with three acknowledged errors, an accumulation of heart-strings evidence well beyond what was needed to prove an injury accident, and closing arguments that appealed to a jury to prevent future crimes, the appeals court let the conviction stand.
Erroneous Instructions to Hung Jury
As a repeat offender, the man could be sentenced to life in prison. That is what the jury recommended – in just 30 minutes – after some eight hours of deliberating his guilt. They reached the hasty life-in-prison decision after telling the judge they could not reach a unanimous verdict on his guilt.
In his erroneous instruction, the trial judge told jurors “You must render any decision based thereon” – referencing evidence, exhibits, instructions and arguments presented at trial. He never told them they are not required to reach a decision.
Still, the appeals court decided erroneous instructions to a deadlocked jury “fairly and accurately stated applicable law.”
Uniform Oklahoma jury instructions for deadlocked juries have been established based on prior case law. It is similar to what federal courts call an Allen charge, based on Allen v. United States, 164 U.S. 492 (1896). Jurors may not be coerced to reach a decision, and are told to individually decide the case for himself or herself.
The uniform instruction the judge chose not to read states, “[i]n making all statements made to you I have not, nor do I now, express or intimate, nor indicate, in any way the conclusions to be reached by you in this case, nor do I intend in any way or manner to coerce a verdict, nor directly or indirectly to force a verdict in this case.” Oklahoma Uniform Jury Instructions CR 10-11
Charges Did Not Match Allegation
As egregious as the accumulation of recognized errors on top of judicially determined non-errors might be, this case points to a more troubling trend among Oklahoma prosecutors. That trend is to charge one crime, then to present evidence of a more serious crime at trial. The practice plays to jurors’ sympathies and deprives defendants a right to prepare a defense against charges as stated.
In this case, prosecutors did not present evidence of an accident. They presented evidence of a defendant stalking and repeatedly ramming a vehicle with sufficient force to deliberately injure a driver.
Had the defendant been charged with the violent crime the prosecution alleged at trial, he might have taken more seriously the need to investigate alibi witnesses. Why did prosecutors not charge assault and battery with a dangerous weapon, or aggravated assault and battery?
At trial, the defense alluded to the defendant being home sick on the day of the “accident.” Yet the defense failed to share the evidence with prosecutors in time to present an alibi defense, as court rules require. The court let the testimony in, but the defense was prevented from pursuing it as an alibi.
Granted, the defendant knew he could face life in prison for the charge but – contrary to what the jury was told – he also believed he was facing a charge that could result in a mere 30-day sentence. He turned down a plea bargain that could have netted him five years.
The prosecution won a conviction for leaving the scene of an injury accident after presenting a case that said there was no accident.
The prosecution presented evidence of a man who deliberately stalked then battered a woman’s vehicle after he prepared to defend himself against charges related to an accident scene. They elicited sympathy toward an apparent victim of a violent crime under a statute intended to make each driver accountable for accidental mishaps on Oklahoma roadways.
I would hope Oklahoma courts would be more mindful of a need for orderly justice in a modern society – not Wild West justice driven by fear and prejudice toward bad guys, driven not by fawning sympathy toward victims but by mature sympathy for the rule of law. Unfortunately, that is not always the case in this nation’s 47th state.
Unless and until Oklahoma courts develop a more cautious jurisprudence toward the administration of law, it remains up to Oklahoma defense attorneys to ever more zealously guard defendants’ rights at each stage of a trial. We must impress upon our fellow citizens, sitting as jurors, that our responsibilities are toward the system of laws, no matter how sympathetic we may feel toward victims and vindictive we may feel toward the accused.
As a defense attorney, I recognize that proper representation almost always poses a personal, emotional and financial burden to the accused. I encourage my clients to not take any of these burdens lightly, seeking all the support they need to effectively defend their interests in a justice system with sometimes unbalanced sympathies.
Free Consultation: Tulsa Defense Lawyer
If you are facing criminal charges in an Oklahoma court, I encourage you to contact me for a free, confidential consultation about your legal matter. Wirth Law Office has successfully defended numerous clients, at trial and on appeal. We have also learned from experience how willing Oklahoma courts may be to let the trial process tilt in favor of prosecutors or to allow prosecutors to none-to-subtly elicit sympathy for victims at the expense of the accused.
For a free, confidential consultation with a Tulsa criminal defense lawyer, call Wirth Law Office at (918) 879-1681 or send us your question using the email form on this page.