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Duclos v. State

Court of Criminal Appeals of Oklahoma

April 11, 2017

DAVID PAUL DUCLOS, Appellant,
v.
THE STATE OF OKLAHOMA, Appellee.

         AN APPEAL FROM THE DISTRICT COURT OF CANADIAN COUNTY THE HONORABLE JACK D. McCURDY, II, SPECIAL JUDGE

          JOI E. McCLENDON ATTORNEY AT LAW COUNSEL FOR DEFENDANT.

          PAUL HESSE FIRST ASSISTANT DISTRICT ATTORNEY COUNSEL FOR THE STATE.

          SARAH MacNIVEN APPELLATE DEFENSE COUNSEL COUNSEL FOR APPELLANT.

          E. SCOTT PRUITT ATTORNEY GENERAL OF OKLAHOMA THEODORE M. PEEPER ASSISTANT ATTORNEY GENERAL COUNSEL FOR THE STATE.

          OPINION

          LUMPKIN, PRESIDING JUDGE

         ¶1 Appellant, David Paul Duclos, was tried by jury and convicted of Unlawful Communication With Minor By Use of Technology (21 O.S.2011, § 1040.13a) in District Court of Canadian County Case Number CF-2013-623. The jury recommended as punishment imprisonment for eight (8) years and a $5, 000.00 fine. The trial court sentenced Appellant accordingly. It is from this judgment and sentence that Appellant appeals.

         FACTS

         ¶2 On October 18, 2013, Appellant communicated through both email and a cellphone text messaging application with an individual whom he believed to be a 14-year-old female. The exchanges communicated Appellant's sexual or prurient interest in the minor. Appellant was unaware that he was actually interacting with Lieutenant Adam Flowers of the Canadian County Sheriff's Department Internet Crimes Against Child Task Force. Ultimately, Appellant arranged a meeting with the minor at the movie theater in El Reno, Oklahoma.

         ¶3 Appellant parked his Denali on the dark and secluded side of the movie theater. He backed into a parking space and placed a sun visor across the glass of the front windshield. Officer Jason McWhorter of the El Reno Police Department made contact with Appellant inside the theater. When McWhorter identified himself, Appellant declared: "I'm the one." Appellant waived his rights under Miranda and voluntarily admitted to Lieutenant Flowers that he had come to the movie theater to meet a 14-year-old girl. [1] Although Appellant claimed that he had not intended to have sex with the minor, a search of Appellant's vehicle revealed a pillow and blanket in the back seat.

         ¶4 In Proposition One, Appellant contends that his trial was not conducted in accordance with 22 O.S.2011, § 576. He argues that Section 576 disqualified the Honorable Jack D. McCurdy II, Special Judge, from presiding over his trial because Judge McCurdy presided at his preliminary hearing.

         ¶5 Appellant failed to assert his right to preclude Judge McCurdy from presiding at trial, thus, we find that he has waived appellate review of his claim for all but plain error. Mitchell v. State, 2006 OK CR 20, ¶ 86, 136 P.3d 671, 706 (holding defendant waived right to preclude disqualified judge from hearing case by failing to properly pursue claim in trial court); Welch v. State, 2000 OK CR 8, ¶ 37, 2 P.3d 356, 372 ("[T]he right to preclude a disqualified judge from trial is a personal privilege which can be waived by the failure to strictly comply with the proper procedure for See king the disqualification of the trial judge."). We review Appellant's claim pursuant to the test for plain error set forth in Simpson v. State, 1994 OK CR 40, 876 P.2d 690. Stewart v. State, 2016 OK CR 9, ¶ 12, 372 P.3d 508, 511. Under this test, an appellant must show an actual error, which is plain or obvious, and which affects his substantial rights. Simpson, 1994 OK CR 40, ¶¶ 10, 26, 30, 876 P.2d at 694, 699, 701; Hogan v. State, 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923. This Court will only correct plain error if the error seriously affects the fairness, integrity or public reputation of the judicial proceedings or otherwise represents a miscarriage of justice. Id., 1994 OK CR 40, ¶ 30, 876 P.2d at 701; Hogan, 2006 OK CR 19, ¶ 38, 139 P.3d at 923.

         ¶6 Reviewing the record in the present case we find that Appellant has shown the existence of an actual error. Section 576 provides that: "The judge who conducts the preliminary examination shall not try the case except with the consent of all parties." To effect such a consent the trial court should inform the defendant of this statutory right and secure an affirmative expression of consent from the parties on the record. Nelson v. State, 2001 OK CR 4, ¶ 17, 21 P.3d 55, 59; Doss v. State, 1992 OK CR 15, ¶ 7, 829 P.2d 45, 46.

         ¶7 Judge McCurdy presided over Appellant's preliminary hearing in this case. Although both parties consented to have a special judge preside over the trial, the record is silent as to whether Appellant consented to have the ...


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