419 P.3d 271
Okla. Crim. App.2018Background
- Terron A. Davis was tried jointly with two codefendants and convicted by a jury of: Attempted Robbery with a Weapon (Count 1), Assault and Battery with a Deadly Weapon (Count 2), and First‑Degree Burglary (Count 3); jury recommended 25 years each on Counts 1 & 3 and life on Count 2; sentences ordered concurrent.
- The factual sequence: defendants entered an occupied duplex, a fight occurred during which Davis stabbed the victim in the chest (completed assault), and after the fighting stopped the defendants attempted a robbery (separate act).
- Davis raised ten propositions on appeal including double punishment, instructional errors (intent and lesser offenses), severance and peremptory challenge claims, extrajudicial identification challenges, eyewitness‑identification instruction, ineffective assistance, excessive sentence, and cumulative error.
- Many trial objections were not preserved; most claims were reviewed for plain error where preservation was lacking.
- The Court affirmed the convictions and sentences in full, rejecting all ten propositions.
Issues
| Issue | Davis's Argument | State's Argument | Held |
|---|---|---|---|
| Multiple punishment (Counts 1–3) | Convictions punish same conduct in different ways in violation of 21 O.S. § 11 | Offenses were distinct in time and required different proof | No plain error; acts were separate (stabbing finished before robbery began) — affirmed |
| Assault & Battery with a Deadly Weapon — intent element | Trial instruction allowed conviction without requiring intent to kill; must require intent to kill | Uniform instruction correct; intent to kill is not an element | Affirmed; intent to kill not required (Tucker/Goree precedent) |
| Lesser related offense instruction (dangerous weapon) | Court refused requested lesser related instruction | Evidence (lethal chest wound) showed more than mere intent to injure; no prima facie basis for lesser crime | No abuse of discretion; no prima facie evidence — refused properly |
| Severance (joinder) | Joint trial prejudiced Davis; defenses inconsistent | Defenses not mutually antagonistic; all attacked State's witnesses; jury was instructed to consider separately | No abuse of discretion denying severance |
| Peremptory challenges | Needed five separate peremptories due to inconsistent defenses | Defenses were not inconsistent; defendant waived by not requesting separate exercise | Waived; no plain error; claim denied |
| Extrajudicial identifications | Testimony about out‑of‑court ID was tainted or inadmissible | Statutory hearsay rules (12 O.S. § 2801(B)(1)(c)) permit such ID testimony when identifier testifies and is cross‑examined | Admission proper; Court clarifies and expands admissibility of extrajudicial ID (overruling conflicting precedent) |
| Eyewitness cautionary instruction | Trial court erred by not giving cautionary jury instruction on eyewitness ID | No request made; general credibility instructions sufficient | No plain error; cautionary instruction not required absent request |
| Ineffective assistance of counsel | Counsel failed to preserve many issues | Under Strickland, must show prejudice; underlying claims fail on merits so no prejudice | Denied: no prejudice shown as underlying claims rejected |
Key Cases Cited
- Tucker v. State, 395 P.3d 1 (Okla. Crim. App. 2016) (assault and battery with deadly weapon does not require intent to kill)
- Goree v. State, 163 P.3d 583 (Okla. Crim. App. 2007) (same holding regarding intent element)
- Hill v. State, 500 P.2d 1075 (Okla. Crim. App. 1972) (prior identification admissible and more reliable than later in‑court ID)
- Jones v. State, 695 P.2d 13 (Okla. Crim. App. 1985) (limits on admitting extrajudicial ID where uncertainty about photograph identity)
- Elvaker v. State, 707 P.2d 1205 (Okla. Crim. App. 1985) (two‑step proof: witness identifies photo and officer links photo to defendant)
- Scales v. State, 737 P.2d 950 (Okla. Crim. App. 1987) (limits on using extrajudicial ID when in‑court ID exists)
- Owens v. United States, 484 U.S. 554 (U.S. 1988) (availability and cross‑examination satisfy reliability concerns for prior statements)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two‑part test for ineffective assistance of counsel)