Shaw v. State

500 P.3d 641

Jackie Ray SHAW, Jr., Appellant,

v.STATE of Oklahoma, Appellee.

No. F-2020-290

Court of Criminal Appeals of Oklahoma.

FILED OCTOBER 14, 2021

APPEARANCES AT TRIAL

DANIEL WHITE, RACHAEL WANT, ASST. PUBLIC DEFENDERS, 320 ROBERT S. KERR AVE., SUITE 611, OKLAHOMA CITY, OK 73102, COUNSEL FOR DEFENDANT

DANIEL POND, CARSON TURNER, ASST. DISTRICT ATTORNEYS, 320 ROBERT S. KERR AVE., SUITE 505, OKLAHOMA CITY, OK 73102, COUNSEL FOR THE STATE

APPEARANCES ON APPEAL

AMANDA N. HOLDEN, ASST. PUBLIC DEFENDER, 320 ROBERT S. KERR AVE., SUITE 400, OKLAHOMA CITY, OK 73102, COUNSEL FOR APPELLANT

MIKE HUNTER, ATTORNEY GENERAL, HANNAH WHITE, ASST. ATTORNEY GENERAL, 313 N.E. 21ST STREET, OKLAHOMA CITY, OK 73105, COUNSEL FOR APPELLEE

OPINION

HUDSON, VICE PRESIDING JUDGE:

¶1 Appellant, Jackie Ray Shaw, Jr., was tried and convicted by a jury in Oklahoma County District Court, Case No. CF-2018-4303, of Count 1: Robbery with a Dangerous Weapon, After Former Conviction of Two or More Felonies, in violation of 21 O.S.2011, § 801 ; and Count 2: Kidnapping for the Purpose of Extortion, After Former Conviction of Two or More Felonies, in violation of 21 O.S.2011, § 745.¹ The jury recommended a sentence of twenty years imprisonment for each count. The Honorable Ray C. Elliott, District Judge, presided at trial and sentenced Shaw in accordance with the jury's verdicts. Shaw must serve 85% of the sentence imposed on Count 1 before becoming eligible for parole. 21 O.S.Supp.2015, § 13.1(8). Judge Elliott further ordered the sentences to run concurrently, granted Shaw credit for time served, and imposed various costs and fees.

¶2 Shaw now appeals, alleging three propositions of error on appeal:

I. THE STATE COMMITTED PROSECUTORIAL MISCONDUCT THROUGH IMPROPER CLOSING ARGUMENT, THUS DEPRIVING [APPELLANT] OF A FAIR TRIAL AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS OF THE FEDERAL CONSTITUTION AND ARTICLE II, § 7 OF THE OKLAHOMA CONSTITUTION ;

II. THE OTHER BAD ACTS EVIDENCE IN THIS CASE WAS IMPROPERLY ADMITTED IN VIOLATION OF OKLA. STAT. TIT. 12, § 2404(B) AND THE DUE PROCESS CLAUSES OF THE STATE AND FEDERAL CONSTITUTIONS; and

III. TRIAL ERRORS, WHEN CONSIDERED IN A CUMULATIVE FASHION, WARRANT A NEW TRIAL.

¶3 After thorough consideration of the entire record before us on appeal, including the original record, transcripts, exhibits and the parties' briefs, we find that no relief is required under the law and evidence. Appellant's judgment and sentence is AFFIRMED .

FACTS

¶4 On the evening of August 29, 2018, Appellant robbed and kidnapped Holly Harper in northwest Oklahoma City. Harper and Appellant, both drug users, were acquainted through a mutual friend. Earlier in the day, Harper had run into Appellant while hanging out in a parking lot near 27^th and Pennsylvania Avenue. Appellant approached Harper and asked if she wanted to "get high," Harper said "yeah," and the two rode to Harper's house in a black SUV driven by Appellant. At the house, the pair shared some crack, and afterward, Appellant left.

¶5 Later that evening at 6:30 p.m., Appellant returned to Harper's house, forced open the door, and put a knife to Harper's abdomen. Appellant threatened Harper's life, her son's life, and her dog's life. Appellant inquired where Harper's purse and debit card were and walked Harper into her bedroom to retrieve the necessary items. Appellant took Harper's purse, three phones, and debit card. Appellant then held Harper at knifepoint and told her to get in the black SUV. In the SUV, Appellant asked where a bank was, and Harper directed him to a nearby IBC bank. The pair arrived at the bank between 6:47 and 6:49 p.m. Harper told Appellant she did not have any money in her account. Undeterred, Appellant attempted to withdraw money from the account, but was unsuccessful. Appellant then drove Harper to a nearby Dollar Tree.

¶6 At the Dollar Tree, while Appellant was grabbing a few items, Harper devised a plan to hide from Appellant in the back storage room near the bathroom. She told Appellant she needed to use the restroom, proceeded back there, and hid. She stayed there until Dollar Tree employee, Charlotte Lamberson, told her she could not be back there because the bathrooms were out of order. Harper left the back area and went to the front of the store, where she then hid behind a cash register, curled up in a ball and shaking with fear. Lamberson went over to speak with her and Harper reported that "there was somebody that was trying to kill her and ... she ran in the store to get away from him." By this time, Appellant had left the store. Lamberson called 9-1-1 and handed the phone to Harper. Harper reported the robbery and kidnapping and also informed the emergency dispatcher that Appellant was wearing an ankle monitor. Police arrived while Harper was speaking with the dispatcher.

¶7 At 7:03 p.m., the software monitoring Appellant's ankle monitor showed the ankle monitor had been tampered with. Appellant's ankle monitor, which had been cut off, was recovered at Pennsylvania Avenue and Mattern. Harper's driver's license, insurance card, and debit card were discovered just a block away, on 48^th and Pennsylvania Avenue.

¶8 Appellant testified on his own behalf at trial. Appellant's testimony largely coincided with Harper's and placed the two together, but Appellant denied any wrongdoing. Appellant contended that after smoking crack together at Harper's house, he left the house with Harper's bank card, which she had voluntarily given him, to withdraw money for more drugs. However, Appellant forgot Harper's PIN number by the time he reached the ATM so he drove back to Harper's house and retrieved Harper, who freely accompanied him back to the bank. Appellant asserted it was Harper's idea to go to the Dollar Tree to use her bank card to get "cash back." At the Dollar Tree, however, Harper fabricated the robbery story. Appellant begged Harper not to contact authorities because he was on probation, wearing an ankle monitor, and did not want to go back to prison. Afraid and panicked, Appellant threw Harper's belongings out of his car window along with his ankle monitor. Appellant admitted that he cut off his ankle monitor but could not recall the instrument he used to do so.

¶9 Additional facts will be presented below as necessary.

¶10 Proposition I. Appellant complains the prosecutor "grossly exceeded proper argument" by stating Appellant lied to the jury, making improper commentary on his character, and bolstering the victim's testimony. This Court will not grant relief for prosecutorial misconduct unless, viewed in the context of the entire trial, the misconduct rendered the trial fundamentally unfair such that the jury's verdict is unreliable. Darden v. Wainwright , 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) ("The relevant question is whether the prosecutor['s] comments so infected the trial with unfairness as to make the resulting conviction a denial of due process.") (internal quotation omitted); Tryon v. State , 2018 OK CR 20, ¶ 137, 423 P.3d 617, 654. "[W]e evaluate the alleged misconduct within the context of the entire trial, considering not only the propriety of the prosecutor's actions, but also the strength of the evidence against the defendant and the corresponding arguments of defense counsel." Hanson v. State , 2009 OK CR 13, ¶ 18, 206 P.3d 1020, 1028.

¶11 Our review here is further constrained, however, because none of the challenged comments drew an objection below. Mahdavi v. State , 2020 OK CR 12, ¶ 42, 478 P.3d 449, 460 ; Chadwell v. State , 2019 OK CR 14, ¶ 9, 446 P.3d 1244, 1247. "To be entitled to relief under the plain error doctrine, [Appellant] must show the existence of an actual error (i.e., deviation from a legal rule), that is plain or obvious, and that affects his substantial rights, meaning the error affected the outcome of the proceeding." Musonda v. State , 2019 OK CR 1, ¶ 6, 435 P.3d 694, 696. "If these elements are met, this Court 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. ; 20 O.S.2011, § 3001.1. Review of the challenged comments does not reveal plain error that deprived Appellant of his substantial rights.

¶12 In response to defense counsel's guilt-stage closing argument, the prosecutor addressed Appellant's character, interest in the outcome of the case, and motivation to lie, accusing him multiple times of lying. While it is proper for a prosecutor to challenge a defendant's veracity, we have held prosecutors should not "tell the jury in absolute terms that the defendant lied on the stand. The version they choose to believe is strictly for the jury's unbiased determination." Robertson v. State , 1974 OK CR 87, ¶ 8, 521 P.2d 1401, 1402. Here, the prosecutor's repeated explicit references to Appellant as a liar, in addition to his commentary on Appellant's character, exceeded the bounds of proper argument. Nonetheless, "error alone is insufficient to require reversal." Bland v. State , 2000 OK CR 11, ¶ 91, 4 P.3d 702, 727. Appellant must also show "that the resulting prejudice from the error was such that reversal is warranted." Id. We find no outcome-influencing error occurred here. See Brewer v. State , 2006 OK CR 16, ¶ 13, 133 P.3d 892, 895. The jury's findings of guilt were overwhelmingly supported by the evidence. The lack of prejudice is further evidenced by the jury's Count III acquittal and the jury's twenty-year sentence recommendations, the minimum sentence allowed on each count. The prosecutor's remarks did not rise to the level of plain error adversely affecting the overall fairness and integrity of the proceedings.

¶13 As to the prosecutor's challenged comments relating to the victim's veracity—which Appellant contends improperly bolstered the victim's testimony—these comments were made in direct response to defense counsel's closing argument...