DAWKINS v. STATE

DAWKINS v. STATE
2011 OK CR 1
Case Number: F-2009-293
Decided: 01/05/2011
DANNY R. DAWKINS, Appellant, v. THE STATE OF OKLAHOMA, Appellee.

OPINION

SMITH, JUDGE:

¶2 Dawkins raises seven propositions of error in support of his appeal:

I. Appellant had an absolute right to use lethal force to repel an unlawful intruder. Therefore, he is immune from prosecution and his conviction for manslaughter, in violation of his legal rights, must be vacated and dismissed.

II. The instruction on section 1289.25 was inaccurate and confusing and did not properly convey the law to the jury.

III. Irrelevant instructions, coupled with the prosecutor's misleading argument, erroneously conveyed to the jury that Dawkins was not legally entitled to act in self defense, violating the Fourteenth Amendment to the United States Constitution and Article II, §§ 7 and 20 of the Oklahoma Constitution.

IV. Evidence of flight was never contested by the defendant rendering the flight instruction a violation of Dawkins' fundamental presumption of innocence.

V. Prosecutorial misconduct deprived Dawkins of a fair trial.

VI. Dawkins was deprived of the effective assistance of counsel in violation of the sixth and fourteenth Amendments to the United States Constitution and Article II, Sections 7 and 20 of the Oklahoma Constitution.

VII. The accumulation of error in this case deprived Dawkins of due process of law and necessitates reversal pursuant to the Fourteenth Amendment to the United States Constitution and Article II, section 7 of the Oklahoma Constitution.

¶3 After thorough consideration of the entire record before us on appeal, including the original record, transcripts, exhibits and briefs, we find that neither reversal nor modification are required by the law and evidence.

¶4 Just after midnight on February 6, 2008, Dawkins fatally shot Brandon Sanford in the chest with Dawkins's sawed-off shotgun. Sanford had been in an abusive relationship with 19-year-old Shonna Jennings. Shonna lived with her older sister Summer in Holdenville. On February 5, Sanford came to their house, got in a fight with Shonna, and knocked her to the ground. He left, got drunk, and eventually returned to Shonna's house around midnight.

¶5 Dawkins had never met Sanford but Shonna had told Dawkins about him. After Sanford left on the night of February 5, Dawkins and his friend James Bradley picked up the girls. They drove to Seminole, stopping at Holdenville Lake. Dawkins usually carried a sawed-off shotgun, and he, Bradley and Shonna fired the gun while they were at the lake. They returned to the girls' house. Bradley sat on the couch and Dawkins went outside. Sanford drove up and immediately walked in the house uninvited. Dawkins got his sawed-off shotgun from his car. Sanford spoke to Shonna briefly but was distracted when he saw Bradley on the couch. Asking if Bradley wanted to start something, Sanford began to hit Bradley. Summer and Shonna yelled at Sanford to stop. As Sanford attacked Bradley, Dawkins stepped inside the front door. Sanford turned to look at him. Dawkins raised the gun and shot Sanford once in the chest. Dawkins admitted shooting Sanford but told police it was an accident. Arguing that Sanford was leaving Bradley and coming for him, he claimed self-defense at trial.

¶6 Dawkins claims in Proposition I that his prosecution was barred by the "stand your ground" law. Oklahoma statutes provide that a person has the right to expect absolute safety in a place they have a right to be, and may use deadly force to repel an unlawful intruder.

¶7 Dawkins has claimed throughout the proceedings that this statute applies to him and he should not have been prosecuted. The State responds that the statute does not apply to Dawkins. The State is correct. The statute twice explicitly states that, for a person to be justified in using deadly force, the person must not be "engaged in an unlawful activity".

¶8 When construing statutory language, we must attempt to give effect to the Legislature's intention as expressed in the statute. State v. Anderson,

¶9 This Court reviews analogous precedent as we analyze this issue of first impression. In Anderson we parsed the initial version of the "stand your ground" law (then known as the "make my day" law), which did not contain the explicit provision exempting persons who used deadly defensive force while engaged in unlawful activity. We found that the term "occupant" includes any person lawfully inside a dwelling, without regard to any possessory or privacy interest. Anderson,

¶10 Taking the provisions of the statute together, it appears that the Legislature intended to allow Oklahoma citizens the right of defense in furtherance of their expectation of absolute safety in places they have a right to be, unless the citizens are engaging in unlawful activity at the time.

¶11 In reaching this conclusion, this Court finds that the Legislature intended the "stand your ground" provisions to protect regular, law-abiding citizens from intruders bent on criminal activity. We therefore conclude that the Legislature's intent was to exclude from the benefit of this statute persons who are actively committing a crime, not persons who have or may have committed a crime in the past. Examples of current crimes include, but are not limited to, use of an illegal weapon in commission of the homicide, possession of illegal drugs on the premises, or an ongoing assault by the defendant against another person in the residence. We further find that the Legislature did not intend to prohibit use of the right of defense to persons who may have committed minor infractions of the law. Examples of such infractions include, but are not limited to, persons who are illegally parked or have outdated vehicle registration, have outstanding warrants for minor offenses, or are in arrears with child support payments. We give these examples as a guide to trial courts in exercising their discretion, and are confident that this interpretation of the law implements the Legislature's stated intent. Anderson,

¶12 Dawkins argues that this Court recognizes a nexus requirement for the crimes of felony murder and possession of a firearm during the commission of a felony. Felony murder relieves prosecutors of the burden to show malice, by transferring a defendant's intent to commit a felony to the commission of murder. Wade v. State,

¶13 This is not the case with the "stand your ground" law. That is a legislative exception to the criminal code, allowing the use of defensive deadly force under certain circumstances clearly set forth in the statute. Neither the plain language of the statute nor the intent of the Legislature, as best we can discern it from the text and circumstances, requires this Court to create a requirement not contained within the statute itself. Dawkins was engaged in illegal activity and not entitled to benefit from the provisions of the "stand your ground" law.

¶14 We find in Proposition II that, as the "stand your ground" law does not apply to Dawkins's case, any possible error in instruction is harmless.

¶15 We find in Proposition III that Dawkins requested the uniform jury instructions on self-defense given by the trial court. A defendant may not invite error by complaining after the trial court gives his proposed instructions. Hogan v. State,

¶16 We find in Proposition IV that Dawkins raised self-defense, but he neither testified nor explained his departure from the scene, and the flight instruction should not have been given. Hancock v. State,

¶17 We find in Proposition V that comments in the State's closing argument do not require relief. Dawkins failed to object to any of these comments at trial and we review for plain error. The prosecutor ought not to have argued that "the presumption of innocence is not something for guilty men to hide behind" and "that shield of innocence should be removed from [Dawkins]." This Court has found that very similar comments were reversible because they denied a defendant a constitutional right by misstating the presumption of innocence. Miller v. State,

¶18 Dawkins did not testify. The record suggests the prosecutor intended to argue that Dawkins explained his actions in his own words, that jurors heard these words through other witnesses, and that Dawkins's explanations were not consistent with his trial claim of self-defense. This would have been proper argument. However, in making it the prosecutor told jurors "He did testify." A prosecutor should not comment on a defendant's decision not to testify.

¶19 The remaining allegations in Proposition V do not rise to the level of plain error. The comment regarding Dawkins's statements did not shift the burden of proof. Dawkins was required to present evidence of self-defense, through his own or the State's witnesses; only then does the State have the burden to prove beyond a reasonable doubt that the defendant was not acting in self-defense. Perez v. State,

¶20 We find in Proposition VI that counsel was not ineffective. Dawkins must show both that counsel's performance was deficient and that he was prejudiced by counsel's deficient performance. Strickland v. Washington,

¶21 Dawkins fails to show he was prejudiced by counsel's failure to object to instructions and argument. We found in Proposition II that, as the "stand your ground" law does not apply in Dawkins's case, any possible error in the instruction on that law was harmless. Counsel cannot be ineffective for failing to object to the form of an instruction on law that was not relevant to Dawkins's case. We found in Proposition V that the prosecutor improperly referred to the presumption of innocence and commented on Dawkins's failure to testify. However, we determined that these comments did not affect the verdict and do not warrant relief. As the improper comments did not affect the outcome of the trial, Dawkins cannot show he was prejudiced by counsel's failure to object.

¶22 We find in Proposition VII that the accumulation of error does not require reversal. We found in Proposition IV that the trial court erred in instructing jurors on flight. We found in Proposition V that improper prosecutorial remarks did not affect the verdict and do not require relief. We found no other error. Where a trial has been fairly conducted, cumulative errors do not require relief. Brumfield v. State,

DECISION

¶23 The Judgment and Sentence of the District Court of Hughes County is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2011), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

AN APPEAL FROM THE DISTRICT COURT OF HUGHES COUNTY
THE HONORABLE TIMOTHY L. OLSEN, ASSOCIATE DISTRICT JUDGE

APPEARANCES AT TRIAL                                         APPEARANCES ON APPEAL

JERRY COLCLAZIER                                                  KATHLEEN M. SMITH
LLOYD PALMER                                                        APPELLANT DEFENSE COUNSEL
ATTORNEYS AT LAW                                                P.O. BOX 926
404 N. MAIN STREET                                                 NORMAN, OK 73070
SEMINOLE, OK 74868                                               COUNSEL FOR APPELLANT
COUNSEL FOR DEFENDANT

LINDA EVANS                                                          W.A. DREW EDMONDSON
ASSISTANT DISTRICT ATTORNEY                             ATTORNEY GENERAL OF
200 N. BROADWAY STREET                                    OKLAHOMA
HOLDENVILLE, OK 74848                                         STEPHANIE D. JACKSON
COUNSEL FOR STATE                                             ASSISTANT ATTORNEY GENERAL 
                                                                                313 N.E. 21ST STREET
                                                                               OKLAHOMA CITY, OK 73105
                                                                               COUNSEL FOR APPELLEE

OPINION BY: SMITH, J.

FOOTNOTES

1 This was a lesser included offense of the charged crime, First Degree Murder. Dawkins was acquitted of that charge.