Parker v. State

495 P.3d 653

Michael Gary PARKER, Jr., Appellant,

v.The STATE of Oklahoma, Appellee.

Case No. F-2019-247

Court of Criminal Appeals of Oklahoma.

FILED JULY 15, 2021

APPEARANCES AT TRIAL

BEVERLY ATTEBERRY, ATTORNEY AT LAW, 1815 EAST 15^TH ST., TULSA, OK 74104, COUNSEL FOR DEFENDANT

MARK COLLIER, JOHN TJEERDSMA, ASST. DISTRICT ATTORNEYS, 500 S. DENVER, SUITE 900, TULSA, OK 74103, COUNSEL FOR STATE

APPEARANCES ON REMAND

JAMIE D. PYBAS, DIVISION CHIEF, OKLAHOMA INDIGENT DEFENSE SYSTEM, P.O. BOX 926, NORMAN, OK 73070, COUNSEL FOR DEFENDANT/APPELLANT

MIKE HUNTER, ATTY. GENERAL OF OKLAHOMA, RANDALL YOUNG, ASST. ATTORNEY GENERAL, 313 N.E. 21ST STREET, OKLAHOMA CITY, OK 73105, COUNSEL FOR STATE

APPEARANCES ON APPEAL

JAMIE D. PYBAS, DIVISION CHIEF, OKLAHOMA INDIGENT DEFENSE SYSTEM, P.O. BOX 926, NORMAN, OK 73070, COUNSEL FOR APPELLANT

MIKE HUNTER, ATTY. GENERAL OF OKLAHOMA, THEODORE M. PEEPER, ASST. ATTORNEY GENERAL, 313 N.E. 21ST STREET, OKLAHOMA CITY, OK 73105, COUNSEL FOR APPELLEE

OPINION

ROWLAND, VICE-PRESIDING JUDGE:

¶1 Appellant Michael Gary Parker, Jr. appeals his Judgment and Sentence from the District Court of Tulsa County, Case No. CF-2018-3184, for First Degree Manslaughter, in violation of 21 O.S.2011, § 711.¹ Parker's jury unanimously found him guilty, but deadlocked on the issue of punishment. The Honorable William J. Musseman, Jr., District Judge, who presided over Parker's jury trial, sentenced Parker to twenty years imprisonment, with seventeen years to be served in prison and the remaining three years suspended with supervised probation.² Parker raises seven claims on appeal:

(1) whether his conviction must be reversed because the State failed to prove beyond a reasonable doubt that he was not acting in self-defense;

(2) whether the district court erred by submitting a first degree manslaughter instruction over his objection;

(3) whether he was denied an impartial jury;

(4) whether the district court erred by denying his motion to suppress and admitting his confession at trial;

(5) whether prosecutorial misconduct deprived him of a fair trial;

(6) whether he received the effective assistance of trial counsel; and

(7) whether the district court had jurisdiction of this matter.

We affirm the Judgment and Sentence of the district court.

Facts

¶2 On July 22, 2018, Parker fatally shot John Wilson outside a Tulsa after-hours club. The two were not acquainted, but had been involved in an altercation at a different club, the 007 Club, earlier that evening. The prosecution theorized that Parker, angry and upset over his altercation with Wilson, went home, armed himself, drove to the after-hours club, and intentionally shot Wilson who, though armed, was not acting in a threatening manner. Two witnesses to the shooting testified Wilson was not acting in a threatening manner and the shooter targeted him.

¶3 Parker, on the other hand, insisted that he acted in self-defense. He claimed after his altercation with Wilson at the 007 Club, he had his cousin, Patrick Tolon, take him home because he was upset. On the way, he reluctantly agreed to accompany Patrick and their cousin, Roosevelt Tolon, to an after-hours spot. Parker grabbed his handgun from his home for protection and drove himself to the after-hours club because his cousins were convicted felons and were not permitted to be in cars with firearms. Parker, who claimed he did not anticipate seeing Wilson again that evening, glimpsed Wilson just after his arrival at the after-hours club. Parker testified that Wilson began approaching and cussing him in the club parking lot. Parker said Wilson reached for his pocket and Parker assumed he was going for the gun he had seen Wilson with earlier. Parker drew his own gun from his waistband and fired four shots, killing Wilson. The issue at trial was whether Parker shot Wilson with malice aforethought, in a heat of passion, or in self-defense. Additional facts will be discussed in relation to the propositions raised for review.

1. Sufficiency of the Evidence

¶4 Parker argues his First Degree Manslaughter conviction must be reversed and dismissed for insufficient evidence. He contends the prosecution failed to prove beyond a reasonable doubt that he did not act in self-defense. We disagree.

¶5 Evidence is sufficient to support a conviction if, viewing the evidence and all reasonable inferences from it in the light most favorable to the State, any rational trier of fact could find the defendant guilty beyond a reasonable doubt. Mason v. State , 2018 OK CR 37, ¶ 13, 433 P.3d 1264, 1269 ; Spuehler v. State , 1985 OK CR 132, ¶ 7, 709 P.2d 202, 203-04. This Court does not reweigh conflicting evidence or second-guess the fact-finding decisions of the jury; we accept all reasonable inferences and credibility choices that tend to support the verdict. Mason , 2018 OK CR 37, ¶ 13, 433 P.3d at 1269. We further recognize that the law makes no distinction between direct and circumstantial evidence and either, or any combination of the two, may be sufficient to support a conviction. Id. We examine pieces of evidence together in context rather than in isolation, and we will affirm a conviction so long as, from the inferences reasonably drawn from the record as a whole, the jury might fairly have concluded the defendant was guilty beyond a reasonable doubt. Id.

¶6 A person is entitled to use deadly force to defend himself or herself "when the person using force reasonably believes such force is necessary to prevent death or great bodily harm to himself or herself or another or to terminate or prevent the commission of a forcible felony." 21 O.S.Supp.2014, § 733(A)(2). Self-defense is an affirmative defense in which the defendant necessarily admits the elements of the charged homicide crime, but offers a legal justification for the fatal conduct. McHam v. State , 2005 OK CR 28, ¶ 10, 126 P.3d 662, 667. Parker maintained in his police interview and during his trial testimony that he shot the victim in self-defense. Based on the evidence, the district court properly submitted the issue of self-defense to the jury and instructed the jury on the State's burden to disprove self-defense beyond a reasonable doubt. See id.

¶7 The trial evidence, viewed in the light most favorable to the prosecution, sufficiently proved beyond a reasonable doubt that Parker did not act in self-defense. Two witnesses to the shooting contradicted Parker's self-defense account. These eyewitnesses neither heard the victim make any threats nor saw the victim make any kind of threatening movements before Parker shot him. A rational jury could find, based on the evidence, that Parker's self-defense claim was unworthy of belief because any belief that deadly force was necessary to prevent death or great bodily harm was unreasonable under the circumstances. Because the evidence was sufficient to disprove Parker's claim of self-defense, his conviction may stand. This claim is denied.

2. Jury Instructions

¶8 Parker claims the district court erred by instructing his jury on first degree manslaughter, over his objection, because there was no evidence to support the conclusion that he shot the victim in a heat of passion. He maintains submission of the unsupported lesser included offense encouraged the jury to reach a compromise verdict. We review the district court's decision to submit a first degree manslaughter instruction for an abuse of discretion. Davis v. State, 2018 OK CR 7, ¶ 7, 419 P.3d 271, 277. This Court finds an abuse of discretion only where the district court's decision is unreasonable or arbitrary and was made without proper consideration of the relevant facts and law. Bramlett v. State , 2018 OK CR 19, ¶ 19, 422 P.3d 788, 795. This claim is without merit.

¶9 The record shows the district court explained, during a jury instruction conference, that generic imperfect self-defense is not a recognized defense and cited Mack v. State , 2018 OK CR 30, ¶ 5, 428 P.3d 326, 328. Although case law does not recognize imperfect self-defense as a separate defense, the district court concluded that this Court's prior cases establish that some form of manslaughter instruction may be appropriate where a self-defense claim fails but the evidence establishes conditions satisfying the elements of manslaughter. Id. , 2018 OK CR 30, ¶ 5, 428 P.3d at 328-29. The district court went on to outline three plausible views of the trial evidence, the first two of which were premeditated murder and classic self-defense. The third plausible view of the evidence, according to the district court, was that Parker acted in a heat of passion when he unexpectedly saw the victim again at the after-hours club and that he was overcome with emotion and fear from their earlier encounter, causing him to perceive the victim's movements as a threat, although the threat was not real and his perception was unreasonable.

¶10 The district court's analysis of the trial evidence was fair and supported by the record. Parker's contention that the evidence was insufficient to show the existence of any passion, fear, or anger at the time of the shooting from his and the victim's earlier encounter was but one view of the evidence which does not negate other reasonable interpretations. We find, based on the evidence, that the district court did not abuse its discretion in submitting a first degree manslaughter instruction. Accordingly, this claim is denied.

3. Impartial Jury

¶11 Parker claims he was denied a fair trial and impartial jury because the prosecution removed all three African-American male panelists from the venire with peremptory challenges without demonstrating adequate race-neutral reasons for their removal. Batson v. Kentucky , 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) (holding the government may not discriminate on the basis of race when exercising peremptory challenges against prospective jurors in a criminal trial).³ Parker contends the district court failed to sufficiently consider whether the race-neutral...