DAVIS v. STATE
2018 OK CR 7
Okla. Crim. App.2018Background
- Terron A. Davis was tried jointly with two codefendants and convicted by a jury in Cleveland County of: Attempted Robbery with a Weapon (Count 1), Assault and Battery with a Deadly Weapon (Count 2), and First‑Degree Burglary (Count 3); the jury recommended 25 years on Counts 1 and 3 and life on Count 2.
- Sentences were imposed concurrently; Davis must serve 85% of the sentences for Counts 2 and 3 before parole eligibility.
- The factual sequence: defendants entered an occupied duplex, a fight ensued during which Davis stabbed the victim in the chest (deadly‑weapon assault), and after the stabbing a separate attempted robbery occurred.
- Davis raised ten propositions on appeal including: double punishment, erroneous jury instructions (intent element), refused lesser‑related instruction, severance/peremptory challenges for inconsistent defenses, admissibility of extrajudicial identifications and failure to give an eyewitness‑identification cautionary instruction, ineffective assistance, and excessive sentence.
- The Court reviewed the record and denied relief on all propositions, affirming the judgment and sentence.
Issues
| Issue | Plaintiff's Argument (Davis) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Double punishment under 21 O.S. § 11 | Convictions for stabbing, burglary and attempted robbery derive from a single criminal episode and therefore multiple punishments violate statute | The stabbing (deadly‑weapon assault), the completed burglary entry, and the later attempted robbery were separate acts requiring different proof and thus punishable separately | No plain error: offenses were distinct in time and proof; Proposition I denied |
| Jury instruction on intent for assault & battery with a deadly weapon | Trial instructions improperly allowed conviction without proving intent to kill; jury should have been told intent‑to‑kill is required | Assault and battery with a deadly weapon does not require intent to kill under Oklahoma precedent and uniform jury instruction | Denied: Court reaffirmed that intent to kill is not an element; Proposition II denied |
| Refusal to give lesser‑related offense instruction (assault & battery with a dangerous weapon) | Requested instruction should have been given as a lesser related offense | Evidence (life‑threatening chest stab) did not provide prima facie support for mere‑injury intent; no rational basis for lesser verdict | Denied: no prima facie evidence supported lesser instruction; Proposition III denied |
| Admission of extrajudicial identification testimony (victim/third‑party) | Testimony about prior identification was inadmissible and suggestive (show‑up) | Statutory hearsay rules (12 O.S. § 2801(B)(1)(c)) permit out‑of‑court identification testimony when declarant testifies and is cross‑examined; third‑party recounting is admissible under the statute | Denied: Court held §§ 2801/2802 authorize substantive admission of extrajudicial IDs by identifiers and third parties when the identifier testifies and is cross‑examined; Jones limited/overruled as inconsistent; Proposition VI denied |
Key Cases Cited
- Tucker v. State, 395 P.3d 1 (Okla. Crim. App. 2016) (reaffirming assault and battery with a deadly weapon does not require intent to kill)
- Goree v. State, 163 P.3d 583 (Okla. Crim. App. 2007) (same holding on intent element)
- Hill v. State, 500 P.2d 1075 (Okla. Crim. App. 1972) (recognized admissibility and probative value of prior extrajudicial identifications)
- Jones v. State, 695 P.2d 13 (Okla. Crim. App. 1985) (limited rule excluding extrajudicial ID testimony where no evidence links the photo to the defendant; court narrows/limits Jones here)
- Elvaker v. State, 707 P.2d 1205 (Okla. Crim. App. 1985) (permitting two‑step presentation where witness cannot ID in court but identifies photo, with detective linking photo to defendant)