plain error in Oklahoma

2023Under the plain error test set forth in Simpson v. State , 1994 OK CR 40, ¶¶ 10, 26, 30 , 876 P.2d 690, 694, 699 , 701 this Court determines whether the appellant has shown an actual error, which is plain or obvious, and which affects his or her substantial rights.

2023Under the plain error test set forth in Simpson v. State , 1994 OK CR 40, ¶¶ 10, 26, 30 , 876 P.2d 690, 694, 699 , 701 this Court determines whether the appellant has shown an actual error, which is plain or obvious, and which affects his or her substantial rights.

2023See Hogan v. State , 2006 OK CR 19, ¶ 38 , 139 P.3d 907, 923 . ¶2 Our plain error standard is similar in some respects to the plain error standard used in federal court.

2023See Hogan v. State , 2006 OK CR 19, ¶ 38 , 139 P.3d 907, 923 . ¶2 Our plain error standard is similar in some respects to the plain error standard used in federal court.

2016“To be entitled to relief under the plain error doctrine, Appellant must prove: 1) the existence of an actual error (i.e., deviation from a legal rule); 2) that the error is plain or obvious; and 3) that the error affected his substantial rights, meaning the error affected the out *917 come of the proceeding.” Levering v. State, 2013 OK CR 19, ¶ 6 , 315 P.3d 392, 395 .

2016“To be entitled to relief under the plain error doctrine, Appellant must prove: 1) the existence of an actual error (i.e., deviation from a legal rule); 2) that the error is plain or obvious; and 3) that the error affected his substantial rights, meaning the error affected the out *917 come of the proceeding.” Levering v. State, 2013 OK CR 19, ¶ 6 , 315 P.3d 392, 395 .

2018Barnard v. State , 2012 OK CR 15 , ¶ 13, 290 P.3d 759 , 764.

2018Barnard v. State , 2012 OK CR 15 , ¶ 13, 290 P.3d 759 , 764.

2018Baird , 2017 OK CR 16 , ¶ 25, 400 P.3d at 883 ; Ashton , 2017 OK CR 15 , ¶ 34, 400 P.3d at 896-97 ; Tollett v. State , 2016 OK CR 15 , ¶ 4, 387 P.3d 915 , 917 ; Hogan v. State , 2006 OK CR 19 , ¶ 38, 139 P.3d 907 , 923. ¶9 Assuming without deciding it was error to bifurcate the trial on Appellant's misdemeanor count, we find the error, if any, does not rise to the level of plain error in this case as Appellant fails to show the error affected his sentence.

2018Baird , 2017 OK CR 16, ¶ 25 , 400 P.3d. at 883; Ashton , 2017 OK CR 15, ¶ 34 , 400 P.3d. at 896-97; Tollett v. State , 2016 OK CR 15, ¶ 4 , 387 P.3d 915, 917 ; Hogan v. State , 2006 OK CR 19, ¶ 38 , 139 P.3d 907, 923 . ¶9 Assuming without deciding it was error to bifurcate the trial on Appellant's misdemeanor count, we find the error, if any, does not rise to the level of plain error in this case as Appellant fails to show the error affected his sentence.

2023However, the plain error doctrine contained in 20 O.S.2021, § 3001.1 and as upheld by the Supreme Court in United States v. Olano , 507 U.S. 725, 734-35 (1993), gives an appellant a back door to obtain review on appeal if he/she can meet the assigned burden of proof.

2016Furthermore, I continue to adhere to the plain error review discussed in Hogan v. State, 2006 OK CR 19, ¶ 38 , 139 P.3d 907 , 923 that is based on the federal statutory plain error review explained in United States v. Olano, 507 U.S. 725, 734-35 , 113 S.Ct. 1770, 1777-78 , 123 L.Ed.2d 508 (1993). 12 I am authorized to state that Judge Smith joins in this opinion concurring in result.

2018Baird , 2017 OK CR 16 , ¶ 25, 400 P.3d at 883 ; Ashton , 2017 OK CR 15 , ¶ 34, 400 P.3d at 896-97 ; Tollett v. State , 2016 OK CR 15 , ¶ 4, 387 P.3d 915 , 917 ; Hogan v. State , 2006 OK CR 19 , ¶ 38, 139 P.3d 907 , 923. ¶9 Assuming without deciding it was error to bifurcate the trial on Appellant's misdemeanor count, we find the error, if any, does not rise to the level of plain error in this case as Appellant fails to show the error affected his sentence.

2018Baird , 2017 OK CR 16, ¶ 25 , 400 P.3d. at 883; Ashton , 2017 OK CR 15, ¶ 34 , 400 P.3d. at 896-97; Tollett v. State , 2016 OK CR 15, ¶ 4 , 387 P.3d 915, 917 ; Hogan v. State , 2006 OK CR 19, ¶ 38 , 139 P.3d 907, 923 . ¶9 Assuming without deciding it was error to bifurcate the trial on Appellant's misdemeanor count, we find the error, if any, does not rise to the level of plain error in this case as Appellant fails to show the error affected his sentence.

2018Baird , 2017 OK CR 16 , ¶ 25, 400 P.3d at 883 ; Ashton , 2017 OK CR 15 , ¶ 34, 400 P.3d at 896-97 ; Tollett v. State , 2016 OK CR 15 , ¶ 4, 387 P.3d 915 , 917 ; Hogan v. State , 2006 OK CR 19 , ¶ 38, 139 P.3d 907 , 923. ¶9 Assuming without deciding it was error to bifurcate the trial on Appellant's misdemeanor count, we find the error, if any, does not rise to the level of plain error in this case as Appellant fails to show the error affected his sentence.

2018Baird , 2017 OK CR 16, ¶ 25 , 400 P.3d. at 883; Ashton , 2017 OK CR 15, ¶ 34 , 400 P.3d. at 896-97; Tollett v. State , 2016 OK CR 15, ¶ 4 , 387 P.3d 915, 917 ; Hogan v. State , 2006 OK CR 19, ¶ 38 , 139 P.3d 907, 923 . ¶9 Assuming without deciding it was error to bifurcate the trial on Appellant's misdemeanor count, we find the error, if any, does not rise to the level of plain error in this case as Appellant fails to show the error affected his sentence.

2017Jackson v. State , 2016 OK CR 5, ¶ 4, 371 P.3d 1120, 1121.

2017Jackson v. State , 2016 OK CR 5, ¶ 4, 371 P.3d 1120, 1121.

1998See Willingham, 947 P.2d at 1088 . ¶84 Wilson finally complains that the victim impact evidence in this case served as nothing more than a “superaggravator.” We have previously held that victim impact evidence is very different and serves a different purpose than aggravation evidence.

1998See Willingham, 947 P.2d at 1088 . ¶ 85 Brown finally complains that the victim impact evidence in this case served as nothing more than a "superaggravator." We have previously held that victim impact evidence is very different and serves a different purpose than aggravation evidence.

2018Baird , 2017 OK CR 16 , ¶ 25, 400 P.3d at 883 ; Ashton , 2017 OK CR 15 , ¶ 34, 400 P.3d at 896-97 ; Tollett v. State , 2016 OK CR 15 , ¶ 4, 387 P.3d 915 , 917 ; Hogan v. State , 2006 OK CR 19 , ¶ 38, 139 P.3d 907 , 923. ¶9 Assuming without deciding it was error to bifurcate the trial on Appellant's misdemeanor count, we find the error, if any, does not rise to the level of plain error in this case as Appellant fails to show the error affected his sentence.

2018Baird , 2017 OK CR 16, ¶ 25 , 400 P.3d. at 883; Ashton , 2017 OK CR 15, ¶ 34 , 400 P.3d. at 896-97; Tollett v. State , 2016 OK CR 15, ¶ 4 , 387 P.3d 915, 917 ; Hogan v. State , 2006 OK CR 19, ¶ 38 , 139 P.3d 907, 923 . ¶9 Assuming without deciding it was error to bifurcate the trial on Appellant's misdemeanor count, we find the error, if any, does not rise to the level of plain error in this case as Appellant fails to show the error affected his sentence.

2017See Hooks v. State , 2001 OK CR 1, ¶ 49, 19 P.3d 294, 316; Bland v. Sirmons , 459 F.3d 999, 1015 (10th Cir. 2006) ¶53 Although the prosecutor's comments in the present case were somewhat inartful, they do not rise to the level of plain error.

2017See Hooks v. State , 2001 OK CR 1, ¶ 49, 19 P.3d 294, 316; Bland v. Sirmons , 459 F.3d 999, 1015 (10th Cir. 2006) ¶53 Although the prosecutor's comments in the present case were somewhat inartful, they do not rise to the level of plain error.

2000The State correctly points out that there was no objection to the instruction as given and the error is waived; however we must examine for "plain error." Turrentine, 1998 OK CR 33, ¶ 67 , 965 P.2d at 975 . 176 "Plain error" is error "which goles] to the foundation of the case, or which take[s] from a defendant a right which was essential to his defense." Simpson, 1994 OK CR 40, ¶ 12 , 876 P.2d at 695 ; see also Rea v. State, 8 Okl.Cr. 281 , 105 P. 386 (1909) (phrase first used by this Court). 1 77 In Johnson, 1996 OK CR 86 , ¶ 41, 928 P.2d at 818 , we said: .

2000The State correctly points out that there was no objection to the instruction as given and the error is waived; however we must examine for "plain error." Turrentine, 1998 OK CR 33, ¶ 67 , 965 P.2d at 975 . ¶ 76 "Plain error" is error "which go[es] to the foundation of the case, or which take[s] from a defendant a right which was essential to his defense." Simpson, 1994 OK CR 40, ¶ 12 , 876 P.2d at 695 ; see also Rea v. State, 3 Okl.Cr. 281 , 105 P. 386 (1909) (phrase first used by this Court). ¶ 77 In Johnson, 1996 OK CR 36 , ¶ 41, 928 P.2d at 318 , we said: "From a practical semantic standpo

2024See Warner v. State , 2006 OK CR 40 , ¶ 14, 144 P.3d 838 , 858, overruled on other grounds in Taylor v. State , 2018 OK CR 6 , 419 P.3d 265 (reviewing juror misconduct claim for plain error where defense counsel at the hearing on the motion for new trial presented no evidence, or even argument, in support of the affidavits attached to said motion). ¶26 "Plain error review requires the defendant to prove: (1) the existence of an actual error; (2) that the error is plain or obvious; and (3) that the error affected his substantial rights, meaning the error affected the outcome of the proceeding."

2024See Warner v. State , 2006 OK CR 40 , ¶ 14, 144 P.3d 838 , 858, overruled on other grounds in Taylor v. State , 2018 OK CR 6 , 419 P.3d 265 (reviewing juror misconduct claim for plain error where defense counsel at the hearing on the motion for new trial presented no evidence, or even argument, in support of the affidavits attached to said motion). ¶26 "Plain error review requires the defendant to prove: (1) the existence of an actual error; (2) that the error is plain or obvious; and (3) that the error affected his substantial rights, meaning the error affected the outcome of the proceeding."

2022Massey Coal Co., 556 U.S. 868, 885 (2009) (quoting Withrow, 421 U.S. at 47 ). ¶3 The dissent erroneously analyzes Fort's judicial bias claim under the plain error doctrine.

2022Massey Coal Co., 556 U.S. 868, 885 (2009) (quoting Withrow, 421 U.S. at 47 ). ¶3 The dissent erroneously analyzes Fort's judicial bias claim under the plain error doctrine.

2019See Pryor v. State , 2011 OK CR 18, ¶ 4, 254 P.3d 721, 722. ¶11 While some of the comments at issue may have bordered upon impropriety, none rose to the level of plain error.

2019See Pryor v. State , 2011 OK CR 18, ¶ 4, 254 P.3d 721, 722. ¶11 While some of the comments at issue may have bordered upon impropriety, none rose to the level of plain error.

2018Cipriano v. State , 2001 OK CR 25 , ¶ 48, 32 P.3d 869 , 879 (finding open court requirement of section 894 is mandatory). ¶ 11 This Court has more than once indicated that when a trial court's communications with the jury violate the dictates of section 894-even with the agreement or acquiescence of the parties-a "presumption of prejudice arises." Mitchell v. State , 2011 OK CR 26 , ¶ 130, 270 P.3d 160 , 188 ( quoting Givens v. State , 1985 OK CR 104 , ¶ 19, 705 P.2d 1139 , 1142 ).

2018Cipriano v. State , 2001 OK CR 25 , ¶ 48, 32 P.3d 869 , 879 (finding open court requirement of section 894 is mandatory). ¶ 11 This Court has more than once indicated that when a trial court's communications with the jury violate the dictates of section 894-even with the agreement or acquiescence of the parties-a "presumption of prejudice arises." Mitchell v. State , 2011 OK CR 26 , ¶ 130, 270 P.3d 160 , 188 ( quoting Givens v. State , 1985 OK CR 104 , ¶ 19, 705 P.2d 1139 , 1142 ).

2018Cipriano v. State , 2001 OK CR 25 , ¶ 48, 32 P.3d 869 , 879 (finding open court requirement of section 894 is mandatory). ¶ 11 This Court has more than once indicated that when a trial court's communications with the jury violate the dictates of section 894-even with the agreement or acquiescence of the parties-a "presumption of prejudice arises." Mitchell v. State , 2011 OK CR 26 , ¶ 130, 270 P.3d 160 , 188 ( quoting Givens v. State , 1985 OK CR 104 , ¶ 19, 705 P.2d 1139 , 1142 ).

2018Cipriano v. State , 2001 OK CR 25 , ¶ 48, 32 P.3d 869 , 879 (finding open court requirement of section 894 is mandatory). ¶ 11 This Court has more than once indicated that when a trial court's communications with the jury violate the dictates of section 894-even with the agreement or acquiescence of the parties-a "presumption of prejudice arises." Mitchell v. State , 2011 OK CR 26 , ¶ 130, 270 P.3d 160 , 188 ( quoting Givens v. State , 1985 OK CR 104 , ¶ 19, 705 P.2d 1139 , 1142 ).

2018Glossip , 2007 OK CR 12 , ¶ 113, 157 P.3d at 161 (rejecting ineffective assistance of counsel claim where underlying claim did not rise to the level of plain error). ¶160 Second, Appellant claims that counsel was ineffective for failing to object to the expert testimony of Dr. Terese Hall which he argued was improper in Proposition VI.

2018Glossip , 2007 OK CR 12 , ¶ 113, 157 P.3d at 161 (rejecting ineffective assistance of counsel claim where underlying claim did not rise to the level of plain error). ¶160 Second, Appellant claims that counsel was ineffective for failing to object to the expert testimony of Dr. Terese Hall which he argued was improper in Proposition VI.

2022Hogan v. State, 2006 OK CR 19 139 P.3d 907 Id. ¶14 Claims of prosecutorial misconduct are evaluated "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." Lee v. State, 2018 OK CR 14 422 P.3d 782 Lamar v. State, 2018 OK CR 8 419 P.3d 283 Bramlett v. State , 2018 OK CR 19 422 P.3d 788 Oliver v. State , 2022 OK CR 15 Taylor v. State , 2011 OK CR 8 248 P.3d 362 Browning v. State , 2006 OK CR 8 134 P.3d 816 ¶15 The closing argument was b

2022Hogan v. State, 2006 OK CR 19 139 P.3d 907 Id. ¶14 Claims of prosecutorial misconduct are evaluated "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." Lee v. State, 2018 OK CR 14 422 P.3d 782 Lamar v. State, 2018 OK CR 8 419 P.3d 283 Bramlett v. State , 2018 OK CR 19 422 P.3d 788 Oliver v. State , 2022 OK CR 15 Taylor v. State , 2011 OK CR 8 248 P.3d 362 Browning v. State , 2006 OK CR 8 134 P.3d 816 ¶15 The closing argument was b

2007This comment is similar to the ones condemned in Duckett v. State, 1995 OK CR 61 , ś 46, 919 P.2d 7, 19 . [15] However, as in Duckett , we find that the comment did not rise to the level of plain error. ś 133 Appellant next claims that the prosecutor attempted to elicit sympathy for the victim by pointing out that Appellant murdered a man with admirable attributes, noting specific aspects of his life.

2007This comment is similar to the ones condemned in Duckett v. State, 1995 OK CR 61 , ś 46, 919 P.2d 7, 19 . [15] However, as in Duckett , we find that the comment did not rise to the level of plain error. ś 133 Appellant next claims that the prosecutor attempted to elicit sympathy for the victim by pointing out that Appellant murdered a man with admirable attributes, noting specific aspects of his life.

2024Parker v. State , 2021 OK CR 17, ¶ 16, 495 P.3d 653, 660. ¶6 To be entitled to relief under the plain error doctrine, Appellant must prove: "1) the existence of an actual error (i.e., deviation from a legal rule); 2) that the error is plain or obvious; and 3) that the error affected his substantial rights, meaning the error affected the outcome of the proceeding." Id . at ¶ 16, 495 P.3d at 660-61.

2024Parker v. State , 2021 OK CR 17, ¶ 16, 495 P.3d 653, 660. ¶6 To be entitled to relief under the plain error doctrine, Appellant must prove: "1) the existence of an actual error (i.e., deviation from a legal rule); 2) that the error is plain or obvious; and 3) that the error affected his substantial rights, meaning the error affected the outcome of the proceeding." Id . at ¶ 16, 495 P.3d at 660-61.

2023The Supreme Court has basically incorporated the prejudice prong from Strickland v. Washington , 466 U.S. 668, 694 (1984) into the third element of the plain error test as the standard to meet to show actual prejudice.

2008A reasonable probability is a probability sufficient to undermine the confidence in the outcome." Strickland, 466 U.S. at 694 , 104 S.Ct. at 2068 . 1129 Williams points out that counsel failed to object to the introduction of several pieces of testimonial and real evidence, which he has complained about in several propositions in this appeal. 22 In discussing these propositions of error, we found that either there was no error or that the error did not rise to the level of plain error. 1180 Williams also argues that counsel was ineffective for failing to object to several instances of prosecut

2022See Brumfield v. State , 2007 OK CR 10 155 P.3d 826 Stouffer v. State , 2006 OK CR 46 147 P.3d 245 Fitzgerald v. State , 1998 OK CR 68 972 P.2d 1157 Bryan v. State , 1997 OK CR 15 935 P.2d 338 Carter v. State, 1994 OK CR 49 879 P.2d 1234 ¶5 Here, Appellant's claim fails to two reasons.

2022See Brumfield v. State , 2007 OK CR 10 155 P.3d 826 Stouffer v. State , 2006 OK CR 46 147 P.3d 245 Fitzgerald v. State , 1998 OK CR 68 972 P.2d 1157 Bryan v. State , 1997 OK CR 15 935 P.2d 338 Carter v. State, 1994 OK CR 49 879 P.2d 1234 ¶5 Here, Appellant's claim fails to two reasons.

2018Pickens v. State , 2001 OK CR 3 , ¶ 40, 19 P.3d 866 , 880 (finding prosecutor's request for jurors to remember that last person the victim saw was the defendant and the last sound the victim heard was sound of thunder from gun did not rise to the level of plain error).

2018Pickens v. State , 2001 OK CR 3 , ¶ 40, 19 P.3d 866 , 880 (finding prosecutor's request for jurors to remember that last person the victim saw was the defendant and the last sound the victim heard was sound of thunder from gun did not rise to the level of plain error).

2018Davis v. State , 2018 OK CR 7 , ¶¶ 26-27, 419 P.3d 271 , 280-81 (overruling prior decisions to the contrary).

2018Davis v. State , 2018 OK CR 7 , ¶¶ 26-27, 419 P.3d 271 , 280-81 (overruling prior decisions to the contrary).