Harney v. State
2011 OK CR 10
| Okla. Crim. App. | 2011Background
- Harney was convicted by jury of felony DUI (47 O.S.Supp.2006, § 11-902(A)(2)) in CF-2008-85 and Driving With License Revoked (47 O.S.Supp.2007, § 6-303) in CM-2008-199; sentences were five years and $2,500 fine for DUI and one year and $500 fine for DLR, to run concurrently; court ordered DUI sentence to run concurrent with Tulsa County conviction but amended judgment lacks Tulsa case number; remanded for resolution of that issue.
- Evidence showed alcohol odor, red eyes, alcoholic beverage on scene, and defendant’s statements implying drinking; defendant claimed innocence and that he was a passenger.
- Driving Index admitted to show license suspensions/ revocations and other offenses; some entries were old and unrelated; court found admission error but harmless as to guilt, though sentencing impact suspected.
- Trial court refused to instruct on full range of punishment under 47 O.S.Supp.2006, § 11-902(C)(2); court held rehabilitative option (inpatient treatment) available to judge or jury, remanding for resentencing with full options.
- Prosecutorial questions about prior sentence and witness credibility were challenged; court found no plain error or reversible misconduct; cumulative error not sufficient for reversal, but resentencing ordered due to earlier errors.
- The case was ultimately remanded for resentencing consistent with the opinion, and judgments affirmed to the extent not inconsistent with remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether lesser-included offenses should have been instructed | Harney sought Driving While Impaired/Actual Physical Control | Harney defense of innocence warranted lesser instructions | No reversible error; no entitlement due to innocence defense. |
| Admission of Driving Index and unfair prejudice | Driving Index contained other crimes; prejudicial | State should redact irrelevant items | Admission found error but harmless regarding guilt; remanded for resentencing due to sentencing impact. |
| Failure to instruct full punishment range for felony DUI | Requires all § 11-902(C)(2) options | Judge/jury could consider full range | Abuse of discretion; remand for resentencing with all options. |
| Prosecutorial misconduct in closing/cross-examination | Misconduct affected fair trial | Errors not prejudicial; plain error absent | No plain error; no reversible misconduct. |
| Cumulative error analysis | Multiple errors taint trial overall | Errors not egregious enough for reversal | No reversal; remand for resentencing due to two propositions. |
Key Cases Cited
- Owens v. State, 2010 OK CR 1 (Okla. Crim. App. 2010) (reliance on innocence defense; defines 'serious bodily injury' in context of lesser offenses not controlling here)
- Lott v. State, 98 P.3d 318 (Okla. Crim. 2004) (proof of other crimes not connected must be excluded)
- Burks v. State, 594 P.2d 771 (Okla. Crim. 1979) (reversals based on insufficiency of evidence; some overruled later in part)
- Bechtel v. State, 738 P.2d 559 (Okla. Crim. 1987) (cumulative-error framework for ineffective reversal decisions)
- Dodd v. State, 100 P.3d 1017 (Okla. Crim. 2004) (permissible impeachment and closing argument considerations)