Jones v. State

1988 OK CR 267, 764 P.2d 914, 1988 Okla. Crim. App. LEXIS 277, 1988 WL 122550
Court of Criminal Appeals of Oklahoma·Decided November 17, 1988·No. F-85-235·Published·Cited by 24 cases

Opinions

OPINION

BRETT, Presiding Judge:

The appellant, Willie Morris Jones, was tried by jury for the crime of Rape in the First Degree in violation of 21 O.S.Supp. 1983, § 1114 in Case No. CRF-84-2322 in the District Court of Oklahoma County. The jury returned a verdict of guilty and set punishment at seventy-five (75) years’ imprisonment. The trial court sentenced the appellant in accordance with the jury’s verdict. From this judgment and sentence, a timely appeal has been perfected to this Court.

On or about April 22, 1984, appellant took his six-year old daughter into his bedroom and had sexual intercourse with her. While S.B., the victim, and her two brothers, ages eight and four, lived with foster parents at the time, they were staying with their father, appellant, during this Easter holiday. Mr. Alfred Mbroh, a social worker who was familiar with these children as a result of having transported them to and from different locations, picked them up from appellant’s home and returned them to their foster parents’ house. He testified that on that day, S.B. did not behave in her normal, outgoing fashion. In fact, S.B. was so quiet that Mr. Mbroh asked her if she were sick. (Tr. 43)

At various times between the day S.B. returned from appellant’s house and the day she was taken to the hospital, her foster mother noticed that upon returning home from school she would get off the school bus and run inside to the bathroom, holding her hand between her legs. On May 5, approximately fifteen days after the weekend with appellant, S.B.’s foster mother discovered blood on S.B.’s underwear, and she took S.B. to the hospital. At that time, S.B. told her that appellant was the cause of her condition. (Tr. 38) Dr. Pur-nell examined S.B. and determined from her condition that she had been sexually abused. (Tr. 4) He also diagnosed her as having a bladder infection.

In appellant’s first assignment of error, he asserts that he was denied his Sixth Amendment right to the effective assistance of counsel. As evidence of deficient performance, appellant cites defense counsel’s elicitations, during direct examination, of his prior arrests and his prior conviction which was over ten years old. Appellant argues that because neither his arrests nor his prior conviction could have been admitted into evidence against him, defense counsel’s decision to elicit them constituted unreasonably poor performance.

It is well settled that to prevail on an ineffective assistance of counsel claim, the accused must demonstrate both a deficient performance and resulting prejudice. Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 2586, 91 L.Ed.2d 305 (1986); Fisher v. State, 736 P.2d 1003, 1011 (Okl.Cr.1987). In order to prove deficient performance, the claimant must show “that counsel’s representation was unreasonable under prevailing professional norms and that the challenged action was not sound [916]*916strategy.” Kimmelman, 477 U.S. at 381, 106 S.Ct. at 2586. To establish prejudice, “the claimant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is one that undermines confidence in the outcome.” Fisher, 736 P.2d at 1012. (emphasis added).

Cross-examination regarding ar rests which have not culminated in convictions is precluded. United States v. Dennis, 625 F.2d 782, 798 (8th Cir.1980); Hipp v. City of Tulsa, 692 P.2d 566, 567 (Okl.Cr.1984); McDonald v. State, 764 P.2d 202 (Okl.Cr.1988). Therefore, defense counsel's direct examination inquiry into appellant's prior arrests could be interpreted as an unnecessary attempt to “draw the sting”: defense counsel did not derive any advantage from being the first to present appellant’s prior arrests to the jury because in no event would this evidence have been available to the State for purposes of impeachment. However, defense counsel’s strategy might also have been to convey to the jury that appellant was willing to admit that he had been in trouble with the State, and to emphasize that some of the charges once brought against appellant had been dropped. “There are countless ways to provide effective assistance in any given case,” and here, defense counsel’s actions “might be considered sound trial strategy.” Strickland v. Washington, 466 U.S. 668, 689-90, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984); cf. Ay cox v. State, 702 P.2d 1057, 1058 (Okl.Cr.1985). Furthermore, in light of the evidence that S.B. was molested, that she testified with certainty that appellant had been the perpetrator, and that people who knew her noticed a change in her attitude after she left appellant’s house in April of 1984, we do not find a “reasonable probability” that the result of this trial would have been different had the evidence of appellant’s prior arrests not been introduced. Id. 466 U.S. at 689, 104 S.Ct. at 2065. We therefore find that appellant was not denied effective assistance of counsel when his attorney elicited information about his prior arrests.

Neither was appellant denied effec tive assistance of counsel when his attorney inquired, during direct examination, into his prior manslaughter conviction which was over ten years old. Appellant argues that because 12 O.S.1981, § 2609(B) precludes the admission into evidence of a conviction which is over ten years old, his attorney’s decision to introduce it constituted unreasonably poor performance. However, under section 2609(B), a conviction over ten years old is admissible if “the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.” We will never know whether the trial court would have allowed into evidence appellant’s manslaughter conviction had the State attempted to admit it. Therefore, as with his elicitation of appellant’s prior arrests, we conclude that defense counsel’s inquiry into appellant’s pri- or conviction over ten years old could have been sound trial strategy, and that in any event it did not affect the outcome of the trial. Appellant’s first assignment of error is denied.

In appellant’s second assignment of error, he claims that he was denied a fair trial because the jury improperly considered the possibility of parole in arriving at his sentence. Appellant offers two incidents at trial to support his contention. First, the jury sent a note to the judge which asked: “When does probation come up if sentence was? 1. life imprisonment; 2. 100 yrs.; 3. 50 yrs.; 4. 20 yrs.?” (Tr. 149; Court’s Exhibit No. 1). The judge responded: “Your question cannot be answered by the Court. This is not a matter for you to consider.” (Tr. 149) Second, the prosecutor recommended, during closing argument, that the jury give appellant life imprisonment.

The test used to determine the merits of a claim that the jury improperly considered the possibility of parole in arriving at a sentence, is whether, in light of the totality of closing argument, the prosecutor made such an unmistakable reference to the pardon and parole system as to preju[917]*917dice the accused. Camp v. State,

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Jones v. State, 1988 OK CR 267, 764 P.2d 914, 1988 Okla. Crim. App. LEXIS 277, 1988 WL 122550 (Okla. Ct. App. 1988).

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