271 P.3d 80
Okla. Crim. App.2012Background
- Appellant Eric Barnett was convicted by jury of second degree felony murder under 21 O.S.2001, § 701.8(2).
- Jury sentenced Barnett to 23 years in prison in CF-2009-2 in Okmulgee County.
- This Court affirmed Barnett’s conviction on direct appeal, 2011 OK CR 28, 263 P.3d 959.
- Barnett filed a petition for rehearing; Rule 3.14 governs rehearing.
- Rehearing was granted, but relief was denied on the merits.
- Grounds argue ex post facto concerns and failure to instruct on a lesser offense; the court addresses both.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ex post facto retroactivity of Barnett decision | Barnett argues retroactive application of merger doctrine overruling Quillen violates due process. | State contends retroactive application is permissible under common-law retroactivity. | Ex post facto/due process claims rejected; Barnett overruled Quillen and applied retroactively. |
| Failure to instruct on first degree manslaughter | Appellant contends the district court erred by not instructing on the lesser included offense of first degree manslaughter. | State argues no abuse of discretion; sufficient evidence did not warrant manslaughter instruction. | Rehearing granted; court otherwise upholds prior rulings; no reversible error found on manslaughter instruction. |
Key Cases Cited
- Quillen v. State, 163 P.3d 587 (Okla. 2007) (merger doctrine questioned/abandoned later)
- Grissom v. State, 253 P.3d 969 (Okla. 2011) (plain error standard limited review; waiver context)
- Simpson v. State, 876 P.2d 690 (Okla. 1994) (plain error review framework)
- United States v. Olano, 507 U.S. 725 (U.S. 1993) (plain error standard in criminal appeals)
- Harper v. Virginia Dept. of Taxation, 509 U.S. 86 (U.S. 1993) (retroactivity/fair warning principles cited)
- Bouie v. City of Columbia, 378 U.S. 347 (U.S. 1964) (fair warning and retroactivity doctrine)
- Rogers v. Tennessee, 532 U.S. 451 (U.S. 2001) (abandonment of year-and-a-day rule not due process violation)
- Boute v. City of Columbia, 378 U.S. 1? (U.S. 1964) (retroactivity of judicial decisions and fair warning)
- Evans v. State, 390 F.3d 1247 (10th Cir. 2004) (retroactivity analysis applying Rogers)
- Warner v. State, 144 P.3d 871 (Okla. 2006) (retroactivity/merger doctrine discussion)