Eric Jose Barnett v. The State of Oklahoma

¶1 Eric Jose Barnett, Appellant, was tried by jury and found guilty of second degree felony murder, in violation of 21 O.S.2001, § 701.8(2), in the District Court of Okmulgee County, Case No. CF-2009-2.1 The jury sentenced Appellant to twenty-three (23) years imprisonment. The Honorable H. Michael Claver, District Judge, pronounced judgment and sentence accordingly.2 Mr. Barnett appeals the following propositions of error:

1. The trial court's refusal to instruct the jury on Appellant's theory of defense deprived him of his rights to a fair trial and to the due process of law, in violation of the Sixth and Fourteenth Amendments of the Federal Constitution and in violation of Article 2, §§ 7, 19, and 20 of the Oklahoma Constitution;

2. The trial court's exclusion of extrinsic evidence concerning Vernon Sutton's violent character deprived the defendant of his right to present a defense, to a fair trial, and to due process guaranteed by the Sixth and Fourteenth Amendments to the Federal Constitution and by Article 2, §§ 7, 19, and 20 of the Oklahoma Constitution;

3. Prosecutorial misconduct deprived Appellant of his constitutional right to a fair trial and due process of law, in violation of the Fifth, Sixth, and Fourteenth Amendments of the Federal Constitution and in violation of Article 2, §§ 7, 19, 20, and 21 of the Oklahoma Constitution;

4. Mr. Barnett was denied effective assistance of counsel in violation of his rights under the Sixth and Fourteenth Amendments to the Federal Constitution and Article 2, §§ 7 and 20 of the Oklahoma Constitution;

5. Appellant's conviction for second degree felony murder must be vacated because the merger doctrine prohibits using the act that caused the decedent's death as a predicate felony in a felony murder prosecution;

6. Under the unique circumstances of this case, imposition of a twenty-three year sentence for a seventeen-year-old offender is excessive and should be modified;

7. The accumulation of errors deprived Appellant of a fair trial and reliable verdict.

¶2 Appellant lived with his mother and younger sister in Okmulgee, Oklahoma. On the evening of August 21, 2008, he and two friends were standing outside his house when the decedent, Vernon Sutton, and another man pulled up to the house, got out of the car, and walked toward them. Sutton apparently knew one of the men standing with Appellant from prison. Appellant noticed that Sutton had one blue eye. A black man with one blue eye had raped his mother years before and been convicted of the crime. Appellant went inside and told his mother that the man who had raped her was standing in the yard.

¶3 Appellant's mother came outside to confront Sutton, who was in fact the convicted rapist who had assaulted her. She asked him if he remembered her. Sutton smiled and said he knew where he was. Appellant's mother angrily demanded that he leave. When he refused, Appellant picked up a length of lumber and went toward Sutton. Sutton prepared to fight, but a passing Okmulgee police officer intervened. When Appellant's mother explained who Sutton was, the officer made him leave the premises. Sutton smirked at Appellant and his mother and told them he would be back, and that he "had something" for them.

¶4 Almost a month later, Appellant received a text from one of his friends, Breylon Griffin, who had been present during the confrontation with Vernon Sutton. Griffin's text told Appellant "dat n*gg*r's ova here" at another house in Okmulgee. Appellant called Griffin and learned that Sutton was visiting with some other men at a house in Okmulgee. Appellant called Jennifer McNac and asked her to give him a ride to that location. She initially refused but then changed her mind. Appellant was already walking toward the location when McNac picked him up.

¶5 As they neared the house, Appellant put the hood of his jacket over his head and covered his face with a bandana. When they reached the house where Vernon Sutton and others were standing, Appellant leaned out and fired three or four shots, fatally striking Sutton in the chest and abdomen. Five days after the shooting, Appellant told police in an interview that he was out of town when the shooting happened. At trial, Appellant admitted the shooting, but said he killed Sutton because he was afraid Sutton would come back to harm his family.

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¶6 In Proposition One, Appellant challenges the trial court's refusal to give requested instructions on self-defense and defense of another. We review the trial court's rulings on requested instructions for abuse of discretion. Dill v. State, 2005 OK CR 20, ¶ 11, 122 P.3d 866, 869. An instruction on a theory of defense is required "when evidence has been introduced at trial that is adequate to raise that defense, i.e., to establish a prima facie case" of that defense. Malone v. State, 2007 OK CR 34, ¶ 22, 168 P.3d 185, 196. Appellant's claim must fail. Evidence that Appellant feared Sutton does not raise an issue of self defense or defense of another, where the evidence showed that Appellant had no reasonable belief that he or his family were in imminent danger of being attacked or killed by Sutton at the time Appellant used deadly force. Instruction Nos. 8-2, 8-6, OUJI-CR(2d); Perryman v. State, 1999 OK CR 39, ¶ 9, 990 P.2d 900, 903-04. Proposition One is denied.

The Judgment and Sentence of the District Court of Okmulgee County is AFFIRMED. Pursuant to Rule 3.15, Rules of the Court of Criminal Appeals, Title 22, Ch. 18, App. (2011), the MANDATE is ORDERED issued upon the delivery and filing of this decision.