APPEAL FROM THE DISTRICT COURT OF BECKHAM COUNTY THE
HONORABLE F. DOUGLAS HAUGHT, ASSOCIATE DISTRICT JUDGE
APPEARANCES AT TRIAL RYAN DON RECKER RECKER & RECKER
COUNSEL FOR DEFENDANT.
APPEARANCES ON APPEAL ROBERT W. JACKSON APPELLATE DEFENSE
COUNSEL COUNSEL FOR APPELLANT.
MICHAEL A. ABEL LYNN LAWRENCE ASSISTANT DISTRICT ATTORNEYS
COUNSEL FOF THE STATE.
HUNTER ATTORNEY GENERAL OF OKLA. TESSA. L. HENRY ASSISTANT
ATTORNEY GENERAL COUNSEL FOR THE STATE.
LUMPKIN, PRESIDING JUDGE.
Appellant, Darren Thomas Terrell, was tried by jury and
convicted of Unlawful Distribution of a Controlled Dangerous
Substance Within 2, 000 Feet of a Park or School
(Methamphetamine) (Count 1) (63 O.S.Supp.2012, § 2-401
(F)) and Conspiracy to Deliver a Controlled Dangerous
Substance (Methamphetamine) (Count 2) (63 O.S.2011, §
2-408) After Former Conviction of Two or More Felonies in the
District Court of Beckham County, Case Number CF-2016-30. The
jury recommended as punishment imprisonment for eighteen (18)
years in each count. The trial court sentenced accordingly,
granted Appellant credit for time served, ordered the
sentences to run concurrently, and imposed a period of
post-imprisonment supervision. It is from these judgments and
sentences that Appellant appeals.
Appellant conspired with Brian Maher to deliver
Methamphetamine to a confidential informant working for the
District 2 Drug Task Force. On October 13, 2015, Appellant
delivered Methamphetamine to the confidential informant
during a controlled-buy wherein the informant wore an
audio/video recording device.
In his sole proposition of error, Appellant contends that the
jury was improperly exposed to evidence and argument telling
the jurors that Appellant had previously received suspended
sentences. He concedes that he waived appellate review of his
claim for all but plain error when he failed to challenge the
evidence and argument below. Therefore, we review
Appellant's claim pursuant to the test set forth in
Simpson v. State, 1994 OK CR 40, 876 P.2d 690.
See Harney v. State, 2011 OK CR 10, ¶ 23, 256
P.3d 1002, 1007. Under this test, an appellant must show an
actual error, which is plain or obvious, and which affects
his substantial rights. Baird v. State, 2017 OK CR
16, ¶ 25, 400 P.3d 875, 883. 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.
The record shows that during the second stage of the trial,
the prosecutor introduced an exhibit detailing
Appellant's six prior felony convictions. This exhibit
showed that several of Appellant's prior sentences had
been suspended in whole or in part, and in some instances,
revoked for violations of the terms of suspension. Then in
closing argument the prosecutor referenced Appellant's
prior convictions and sentences, specifically mentioned the
suspended sentences, and argued "He's been given
chance after chance after chance."
Appellant claims that the references to suspended sentences
in the exhibit and the prosecutor's argument violated the
holding in Hunter v. State, 2009 OK CR 17, 208 P.3d
931. Prior to Hunter, this Court had recognized that
jurors were not to speculate on pardon or parole, thus, the
parties were prohibited from making an unmistakable comment
on pardon or parole. See Martin v. State, 1983 OK CR
168, ¶ 22, 674 P.2d 37, 41--42; Starr v. State,
1979 OK CR 126, ¶¶ 12-13, 602 P.2d 1046, 1049;
Satterlee v. State, 1976 OK CR 88, ¶ 26, 549
P.2d 104, 111; Bell v. State, 1962 OK CR 160, ¶
18, 381 P.2d 167, 173. Without discussion or analysis,
Hunter expanded this rule to prohibit both the
introduction of judgment and sentence documents reflecting
receipt of a suspended sentence and explicit references to
probation in opening or closing argument. Hunter,
2009 OK CR 17, ¶ 10, 208 P.3d at 933-34. However, the
introduction of the judgment and sentence is a proper part of
the proof of a former felony conviction. Camp v.
State, 1983 OK CR 74, ¶¶ 2--3, 664 P.2d 1052,
1053--54. Thus, we were forced in Stewart v. State,
2016 OK CR 9, ¶ 17, 372 P.3d 508, 512, to draw a
distinction between unmistakable comments upon probation or
parole and the instance where the judgment and sentence
documents simply reflect receipt of a deferred or suspended
Today, we recognize that the rule announced in
Hunter is simply unworkable. Jurors are free to
consider the relevant proof of a prior conviction including
any evidence that a defendant previously received probation,
suspension, or deferral of a sentence and any acceleration or
revocation of such a sentence. See Honeycutt v.
State, 1967 OK CR 154, ¶¶ 18--20, 432 P.2d 124, 128
(finding proof of suspension of sentence by trial court
proper proof of former felony conviction). The receipt of a
probationary term ...