HARNEY v. STATE

HARNEY v. STATE
2011 OK CR 10
Case Number: F-2009-908
Decided: 02/15/2011
BRIAN HAYDEN HARNEY, Appellant, v. STATE OF OKLAHOMA, Appellee.

SUMMARY OPINION

LUMPKIN, JUDGE:

¶1 Appellant, Brian Hayden Harney, was tried by jury and convicted of Driving a Motor Vehicle While Under the Influence of Alcohol, a felony, (

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

I. The Trial Court Committed Reversible Error In Failing To Instruct The Jury On The Lesser Included Offense Of Driving While Impaired.

II. The Introduction Of Harney's "Driving Index" Which Detailed His Entire Driving Record Was Unfairly Prejudicial And Violated his Rights To A Fundamentally Fair Trial Under The Oklahoma Constitution Article II, Section 7, And The Fourteenth Amendment To The United States Constitution.

III. The Trial Court Committed Reversible Error When It Refused To Instruct The Jury On The Full Range of Punishment For Felony DUI.

IV. Reversible Prosecutorial Misconduct Occurred When The Prosecutor Asked Harney Directly What He Was Sentenced To On His Prior DUI And If Other Witnesses Lied During Their Testimony.

V. The Accumulation of Errors At Trial Resulted In A Fundamentally Unfair Adjudicatory Proceeding In Violation Of The Rights of Harney Under The Fourteenth Amendment To The United States Constitution And Article II, Section 7 Of The Oklahoma Constitution.

¶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 22, 2008, Appellant was involved in a single vehicle rollover accident on Centralia Road in Nowata County, Oklahoma. Loretta Culp and her husband, Don Culp, discovered that Appellant's vehicle had run off of the roadway and into a field at a curve in the road. The vehicle had rolled over, landed on its wheels and rolled back up to the roadway. It was nose first into a ditch near the roadway. When the Culps discovered the vehicle, it was still running with its headlights on. Smoke was pouring out of the vehicle. Ms. Culp noticed an individual sitting-up out in the field. The Culps contacted emergency officials and a nearby friend, Tony Morris.

¶5 Tony Morris and Undersheriff Douglas Sonenberg discovered Appellant in the field. Appellant was bleeding and in pain. It was apparent that he had been thrown from his truck. Appellant resided nearby and both Sonenberg and Morris knew him. Both believed that Appellant had been drinking. Appellant's speech was slurred. Morris and Sonenberg observed debris thrown from the truck in the field. Within the debris officers found a beer carton and nine empty beer cans. Morris heard Appellant admit to the emergency medical worker that he had consumed alcohol earlier in the day.

¶6 Trooper Samuel Stose investigated the accident on behalf of the Oklahoma Highway Patrol. Stose travelled to the hospital emergency room where Appellant received medical treatment. Upon entry into the big open room, Stose observed the odor of an alcoholic beverage. Stose contacted Appellant and noticed that he had red, watery, bloodshot eyes. Stose noted the odor of an alcoholic beverage coming from Appellant's person. He asked Appellant: "Well how much have you had to drink tonight?" Appellant responded: "Three or four, or four or five beers." Based upon his observations, training and experience, Stose believed that Appellant was under the influence of alcohol and placed him under arrest. Stose read the State's implied consent test request to Appellant and he refused to take the State's blood test. Trooper Stose determined that Appellant's driver's license had been revoked.

¶7 Officers remained at the accident scene for a couple of hours after the accident. At no point in time, did anyone observe any other individual at or near the scene of the accident. None of the debris observed in the field could be associated with a woman's purse. Appellant never informed any of the witnesses at the scene that anyone else had been present in the truck. Morris heard Appellant inform the emergency workers: "If you can get me back to my pickup, I can go home." Appellant specifically acknowledged to Trooper Stose that he was the driver of the vehicle. Appellant further stated that "he had left a friend's house a couple of miles away from the accident . . . ran off of the road and crashed, and he didn't know why he crashed."

¶8 Appellant testified in his own defense. He specifically testified he was neither under the influence of alcohol nor impaired by alcohol at the time of accident. He further testified that he was a passenger in the truck when the accident occurred. Appellant testified that he had 3 beers over a three hour period while doing yard work that day. He went to dinner with Cassie Jacobs

ANALYSIS

¶9 In his first proposition, Appellant contends that the trial court should have instructed the jury regarding the lesser included offenses of Driving While Impaired and Actual Physical Control.

¶10 The determination of which instructions shall be given to the jury is a matter within the discretion of the trial court. Absent an abuse of that discretion, this Court will not interfere with the trial court's judgment if the instructions as a whole, accurately state the applicable law. Cipriano v. State,

¶11 Appellant's defense at trial was complete innocence. Appellant testified that he was neither the driver of the vehicle nor impaired by alcohol. This Court has long recognized the rule of law that a defendant is not entitled to instructions on any lesser included offense when he defends against the charge by proclaiming his innocence. Gilson v. State,

¶12 In Owens v. State,

¶13 The present case is distinguishable from Owens. We are not presented with the circumstances of distinguishing between the offenses of first degree robbery and second degree robbery by and through the definition of serious bodily injury. Owens,

¶14 As Appellant took the stand as a witness, claimed that he was innocent of any crime and did not claim that he committed a lesser offense, he was not entitled to instructions on any lesser included offense. Gilson,

¶15 In his second proposition of error, Appellant contends that the trial court improperly admitted evidence of his other alcohol related offenses, license suspensions, and traffic offenses as reflected in Appellant's Department of Public Safety Driving Index. Appellant properly preserved appellate review of the alleged error by timely objecting to the admission of the Driving Index at trial. Simpson v. State,

¶16 The issue is not whether Appellant's Driving Index was admissible but whether the State should have been required to redact any irrelevant and unfairly prejudicial information from the Index. A certified copy of a defendant's driving record establishes the essential element of license suspension or revocation. Riddle v. State,

¶17 The basic law is well established-when one is put on trial, one is to be convicted-if at all-by evidence which shows one guilty of the offense charged; and proof that one is guilty of other offenses not connected with that for which one is on trial must be excluded. Lott v. State,

¶18 However, we find that the admission of the other crimes evidence found in Appellant's Driving Index did not influence the jury's determination of Appellant's guilt. Sattayarak v. State,

¶19 Conversely, we cannot find that the error was harmless as to the jury's determination of sentence. The jury recommended the maximum possible punishment for both offenses. Therefore, we find that the case should be remanded to the trial court for resentencing. See

¶20 In his third proposition of error, Appellant contends that the trial court erred when it failed to instruct the jury on the full range of punishment for the offense of felony driving a motor vehicle while under the influence of alcohol. Appellant preserved this error for appellate review by requesting that the trial court instruct the jury regarding the treatment options set forth in

¶21 We find the trial court abused its discretion in this case by refusing to instruct the jury as to all punishment options listed under § 11-902(C)(2). Cf., Hicks v. State,

¶22 It is impossible to determine what a jury in this case would have done under a proper instruction setting forth all punishment options. Therefore, we find the case should be remanded to the trial court for resentencing with instructions to instruct the jury, if a jury trial is requested, as to all punishment options listed under § 11-902(C)(2).

¶23 In his fourth proposition of error, Appellant contends that prosecutorial misconduct deprived him of a fundamentally fair trial. Appellant failed to raise a timely objection to the alleged instances of misconduct. Thus he has waived appellate review of the claim for all but plain error. Romano v. State,

¶24 Appellant contends that the prosecutor impermissibly introduced evidence and argument regarding the length of the sentence upon which he was currently incarcerated. This Court finds error where evidence concerning the actual length of time served for a prior conviction is introduced. Martin v. State,

Whether in light of the totality of the closing argument the prosecuting attorney makes such an unmistakable reference to the pardon and parole system of Oklahoma to result in prejudice to defendant.

Darks v. State

¶25 We find that the evidence and argument did not make an unmistakable reference to pardon or parole in the present case. The prosecutor properly impeached Appellant's credibility with the fact that he had been convicted of a felony in April 2008. Dodd v. State,

¶26 Appellant further contends that the prosecutor impermissibly forced him during cross examination, to comment upon the veracity of two of the State's witnesses. Although this form of impeachment is not desirable, it does not constitute error. Stemple v. State,

¶27 Reviewing the entire record, the cumulative effect of the prosecutor's questions, and comments did not deprive Appellant of a fair trial. Warner v. State,

¶28 Appellant asserts that his counsel rendered ineffective assistance by failing to preserve appellate review of the alleged instances of prosecutorial misconduct. "Any misconduct that might have occurred did not affect the outcome of this case, so there can be no ineffective assistance of counsel." Glossip v. State,

¶29 In his final proposition of error, Appellant asserts that the accumulation of error in his case requires relief. When there have been numerous irregularities during the course of a trial that tend to prejudice the rights of the defendant, reversal will be required if the cumulative effect of all the errors is to deny the defendant a fair trial. Bechtel v. State,

¶30 We have found error in propositions two and three. In viewing the cumulative effect of these errors we do not find that they require reversal of Appellant's convictions as none were so egregious or numerous as to have denied Appellant a fair determination of his guilt. Williams v. State,

DECISION

¶31 The Judgments are AFFIRMED, and the case is REMANDED TO THE DISTRICT COURT FOR RESENTENCING CONSISTENT WITH THIS OPINION. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2010), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

AN APPEAL FROM THE DISTRICT COURT OF NOWATA COUNTY
THE HONORABLE CURTIS L. DELAPP, DISTRICT JUDGE

APPEARANCES AT TRIAL

APPEARANCES ON APPEAL

LINDA M. BRANSTETTER

JAMES L. HANKINS

234 N. MAPLE STREET

OGLE LAW FIRM, P.L.L.C

NOWATA, OK 74055

101 PARK AVE, SUITE 500

COUNSEL FOR APPELLANT

OKLAHOMA CITY, OK 73102

COUNSEL FOR APPELLANT

VIRGIL L. SMITH

ASSISTANT DISTRICT ATTORNEY

W.A. DREW EDMONDSON

229 N. MAPLE STREET

ATTORNEY GENERAL OF OKLAHOMA

NOWATA, OK 74048

JENNIFER J. DICKSON

COUNSEL FOR THE STATE

ASSISTANT ATTORNEY GENERAL

313 N.E. 21ST ST.

OKLAHOMA CITY, OK 73105

COUNSEL FOR THE STATE

OPINION BY: LUMPKIN, J.

FOOTNOTES

1 The record reflects that defense counsel was unable to locate Cassie Jacobs at the time of trial. Appellant elected to proceed to trial without her testimony.

2 The offense of Actual Physical Control is not a lesser included offense of Driving a Motor Vehicle While Under the Influence of Alcohol. Both offenses arise from the same statute and carry the exact same punishment. 47 O.S.Supp.2006, § 11-902.

3 However, the Court in Owens failed to include, as it should have, each of the examples defining "serious bodily injury" set out in 10A O.S.Supp.2009, § 1-1-105(31) and 27A O.S.2001, § 2-6-202 into the definition that was to be applied.