Davis v. State
993 P.2d 124
Okla. Crim. App.
1999
Check Treatment

*1 1999 OK CR 48 DAVIS,

Jerry Appellant, Lee Oklahoma, Appellee.

STATE of

FNo. 98-697. Appeals of

Court of Criminal Oklahoma.

Dec. Reheard, Cox, Eufaula, OK,

Deborah Sam for Defendant at trial. Wilson,

Christopher Assistant District At- OK, torney, for at trial. Purcell, Appellate

Thomas Defense Coun- sel, Norman, OK, Indigent System, Defense Appellant appeal. on Edmondson, General, Attorney Drew W.A. George, Attorney Aleda A. Aassistant Gener- al, OK, City, Appellee ap- Oklahoma peal.

SUMMARY OPINION LILE, Judge. Davis, Appellant, Jerry Lee was tried jury and convicted of from a O.S.1991, §

House violation of (count 1), Dangerous Weapon Assault with *2 125 ¶3 (count 2), O.S.1991, thorough § 645 After consideration of the 21 in violation of appeal including in entire record before us on Larceny of an Automobile violation and (count 3), record, original transcripts, all Two the briefs and 21 1720 After Convictions, in parties, the District exhibits of the we have determined Felony or More County, Case Pittsburg No. CF-96- that Davis’s convictions and sentences should verdict, jury’s 626. In accordance with be AFFIRMED. Bartheld, Thomas M. Associ- Honorable ¶ find, 4 In decision we in reaching our Davis twen- Judge, ate District sentenced one, Davis’s convictions for one, twenty- count ty years imprisonment on prohibi- all violate the three offenses do not two, twenty years years and five on count Blockburger against jeopardy. tions double judgments and count three. From these 299, 304, States, 52 v. United 284 U.S. S.Ct. perfected appeal. sentences Davis has his (1932); 76 Rivers L.Ed. 309 1994 OK 292.1 CR following propositions 2 Davis raises Blockburger following forth the The case sets appeal: support

of error of his in to be if the test used to determine Double sepa- for Appellant’s conviction three provision Jeopardy applies: offenses, all arose a rate which “[Wjhere the transaction same act or con- transaction, single prohibi- violates the stitutes a two distinct violation of punishment and against double tions applied provisions, to be the test deter- jeopardy. mine whether there are two offenses or trial was Mr. Davis’s second barred provision only one is each re- whether jeopardy clauses of the Okla- proof quires fact which the of an additional States homa and United Constitutions. Blockburger, other does 284 U.S. at not.” sup- 3. The evidence was insufficient to 304, 52 S.Ct. at 180. port conviction Mr. Davis’s 5 from a House Larce from a house. have ny of an each elements that Automobile have 4. Mr. Davis’s confession should Therefore, prosecution the other does not. suppressed failed been Jeopar does the Double both not violate prove that the confession was volun- dy provision of Federal or our State tary, brought not in and because he was Constitution.. until magistrate front of a one month matter, separate after his arrest. V6 As not involv a issues, must deter Appellant’s must re- conviction be if the mine convictions violate trial versed because the court errone- O.S.1991, 11, alleges. 21 Davis Davis ously rejected requested defense in- Hale v. CR 888 P.2d cites 1995 OK reliability eyewitness struction on the argues he that because testified testimony and identification the volun- purse in intent order that his was to steal confession, depriving thus tariness of the steal get the that he could so rights to a Mr. Davis of his fair and vehicle, he can convicted of one of be impartial under the Due Process fense. Clause of the Fourteenth Amendment II, Section 7 of the Okla- Article provides pertinent homa Constitution. that: pun- is made process by act or omission which “[A]n

6. Mr. was denied due pro- ways by in speedy different receiving not trial. ishable different (1993), Grady overruling multiple single v. Cor L.Ed.2d 1. In in cases trial, bin, utilizes the "same evidence” test this Court L.Ed.2d (whether contains an (1990), each offense element away with the ‘same trans [did] Further, other). Mooney v. contained in the in Mooney requires test.” in action’ decision CR 1999 OK question to determine us to review the crimes in adopted O.B .J. this Court “the Unit are not each contained if contains elements ed States Court’s in United in the other. Dixon, States U.S. 113 S.Ct. punished prohibitions three visions of this code be under cited above. The of- provisions, fending language Clay. either of such ... but first used in However, can it be more than prior prece- case under has no O.S.1991,§ one....” dent Oklahoma. The Court, has caused this as well as countless *3 The crimes in this case were a series of attorneys judges, try deter- and to and separate prohibited by crimes which are not merely mine whether one crime is a means to Section objective part primary or some other some ¶ larceny 8 Davis’s crime of from a house struggle unnecessary offense. This is completed was when he left the house with unprecedented. Were we to continue with purse permanently with the intent to test, objective/primary this “ultimate offense” deprive the owner fact thereof. The that he power we would have the to dismiss some used the which were in the “merely” crimes which tend to facilitate some stealing facilitate the of the vehicle does not crime, regardless ultimate of the nature of larceny merge cause the from house legislature given the crimes.3 The has not us larceny of a into the vehicle. Therefore, power. reject specifically this we ¶ 9 Davis’s convictions do not violate Sec- prior rely our cases which on an “ultimate However, analysis. tion 11 a under Hale objective” “primary or offense” test. language in Hale has caused confusion as to types separate crimes violate Section precedent holding have clear We interpretation 11. Our of Section 11 found in separate where there are a series of State, Hale v. 1995 OK CR 888 P.2d crimes, distinct Section 11 is not violated. unclear, only proper is not it is not based on State, Ziegler v. 1980 OK CR grants construction. Section no 251, Ziegler 254. In the defendant was con- greater protection clearly than what degree burglary, rape, sodomy victed of first spelled language out in the of Section 11. and unauthorized use of a motor vehicle. goes 10 Hale contains far This Court held that the did convictions not beyond legislature what the intended. Hale burglary violate Section 11 states that 11 is Section violated when a complete upon entry the forced with the offenses, defendant is convicted of two one of intent to commit a crime and the crimes (1) “which is a mere means to some other committed inside the residence not were nec- (2) objective, ultimate offense lesser includ- essary burglary. elements of Id. (3) offense, ed in merely some other or primary different incident or facet of some proper analysis 13 The of a claim wrongly offense.” Id. at 1028. Hale ex- raised under Section is then to focus on pands prohibition Section to crimes relationship between the crimes. If the which are mere means to some other ulti- truly they crimes arise out of one act as did objective, primary mate or of some of- prohibits prosecu then Section Hale4 fense.2 tion for than more one crime. One act that ¶ 11 Clay This Court Hale relied on two violates criminal cannot be twice, specific legislative absent int correctly applied example, 2.This Court in Hale Section 11 3. For a defendant steals a firearm that Hale, to the facts contained in Hale. In he intends to defen- use shoot someone. If he is larceny separate shooting dant’s convictions for two convicted of another, of the firearm and offenses aris- following ing out of one act violated Section but would would have to dismiss the count because prohibitions not have violated constitutional merely the defendant (elements test). took the as a mere firearm The defendant’s objective: shooting means to commit an ultimate one act of forcible sexual intercourse with his Further, another. if an inmate commits a homi- charged rape, sister could have been as incest or during escape, analysis cide an both, under Hale but not because of Section 11. Another might improper pros- lead to the conclusion that example proper analysis classic of a Section 11 ecution for both crimes would violate robbery charged with a firearm which could be firearm, pointing robbery a firearm or with a (for Hale). Supra, but not both. footnote 2 facts of ent,5 er, considering was harmless analysis charg not bar the error does separate Harper v. crimes which entire record. and conviction denied, tangentially relate to one more cert. U.S. continuing during a course crimes committed

of conduct. Davis was not We find six that speedy Conley right denied his trial. this to the facts of Applying a House and this we find case separate and Larceny of an Automobile to be DECISION and Section does bar

distinct crimes for both. The conviction ¶ 16 The Judgments Sentences of proposition is denied. trial court are AFFIRMED. *4 two, proposition find 15 In we that J., JOHNSON, Concurs. “goad” moving into the did not mistrial, conduct, engage in for the bad-faith V.P.J., LUMPKIN, Specially Concurs. mistrial; according from the even benefit ly, Davis’s did not bar sec P.J., CHAPEL, J., STRUBHAR, State, 120, Napier v. 1991 CR ond trial. OK in in Concur Part. Part/Dissent 1062, proposition 821 In P.2d 1064-65. STRUBHAR, Presiding Judge: Concurs three, find that was sufficient evi we there in in Part. Part/Dissents light presented, when viewed in a most dence agree majority’s 1 I with prosecution, jury Although to so that the the favorable the Appellant’s Judgment to found the elements decision affirm could have essential III, State, I regarding v. Counts II and larceny Spuehler from a house. Sentence 202, I. to decision to affirm Count I 203-04. In dissent the four, Appellant’s argument in proposition that there was suffi would find that find meritorious, Ap- Proposition holding I that support to the trial court’s is cient evidence pellant’s Larceny for both from a that invoked convictions determination Davis never his of an Automobile violat- right counsel and confession was volun House to his State, tary. statutory prohibition against double CR ed the LaFevers v. 1995 OK O.S.1991, punishment in under P.2d 298-99. We find five presented supported the refusing in at trial that trial court did not err to evidence the cautionary eye finding Appellant stole the give witness identification that the State, objective the house the ultimate of tak- instruction. Robinson v. with stealing it the from and find that truck We holding supported by is this failing in truck. give court erred to the instruction v. analysis of section 11 in Hale regarding the voluntariness of a defendant’s Court’s (1996), State, statement, 2d, 888 P.2d 1027. howev- OK CR OUJI-CR specifically punishment example, cumulative Violation a Protective Order is authorizes For statutes, regardless punishable by imprisonment fine. under of whether those Title two and/or specifically pro- proscribe 60.6. This statute conduct under two statutes 'same' Blockburger, statutory “the this subsection vides that shall task construc- a court’s 644, 645, applicability prosecutor may not affect the of Sections at seek tion is an end and the permissible of Title 647 and 652 21." This jury may impose cumula- trial court or Blockburger jeopardy analysis. under punishment single such in a tive under statutes trial.” States, 450 U.S. In v. United Albernaz Likewise, under 11 would evaluation (1981), 101 S.Ct. prohibit protec prosecution for violation of a "[t]he Block- States Court stated United prosecution viola order for a tive in addition construction,’ burger a 'rule test is underlying charge tion of an assault discerning it a means of and because serves as legislative concerning protective or enactment purpose congressional the rule should not be where, 11 and der was enacted after Section violations controlling example, is a there clear Raines, controlling, v. Ritchie contrary legislative intent." indication of spe Hunter, 359, 368-69, the more and is further Missouri Smith, parte provision. Okl.Cr. cific Ex the Su- L.Ed.2d 535 “Where, here, legislature preme Court said: as ¶2 State, (Okl.Cr.1995), Although majority states that its Hale 888 P.2d 1027 uphold sought apply each of the convic- I be. While Hale in accor Hale, supported by tions is under I origi dance with what understood was the goes rejecting intent, it on to State, criticize much of nal Carter v. 922 P.2d 634 language majority found therein. The (Okl.Cr.1996), I have at the same time been claims, authority, without recitation of appears unsup concerned with what to be an upon proper statutory Hale is not based ported expansion beyond original intent. language construction and contains (Okl.Cr. which See Hammon v. 898 P.2d 1287 goes beyond legislature 1995) intended. J., (Lumpkin, in Concur Part/Dissent rejects It as unfounded in (Okl.Cr. Part); in Le v. 947 P.2d 535 prohibits which holds that section 1997) J., (Lumpkin, in Concur Part/Dissent for crimes which are mere (Okl. Part); in Jones v. 899 P.2d 635 objective,” means to some other “ultimate or Cr.1995) J., (Lumpkin, Concur Part/Dis “primary of a majority offense.” The Part). Judge sent Lile has succeeded in having prece- dismisses this providing objective a more criteria ana ruling, majority dent Oklahoma. In so lyzing punishment prohibition the double set disregarded significant has line of cases O.S.1991, § forth in 21 Hopefully, this dating back to in which this Court objective bring criteria will about more rea the language *5 majority utilized to which the applications soned pro and consistent of the objects. thorough A reading of Hale reveals visions of Section 11. that these cases are noted therein. See 1995 OK CR at n. 888 P.2d at CHAPEL, Judge, Concurring in Part and 1028,n. 1. Dissenting in Part: ¶ 3 A early review these cases reveals disagree 1 I majority’s disposi- with the that gave significant this Court consideration Proposition tion of conducting I. After statutory to its construction of section 11. appropriate analysis following statutory The noted in Shackelford law, directive and well-settled I conclude that that California had Davis’s conviction for from the house provision enacted a code identical to section § prohibition against violates the double 11. The Court of California had punishment purse because the victim’s ruled Neal v. 55 Cal.2d 9 Cal. sake; rather, not stolen for its own Rptr. intended to use the inside the statutory prohibi under the California steal the victim’s truck.1 against tion punishment, all “[i]f ¶2 I separately write to take issue with objective, the offenses were incident to one majority’s rejection unnecessary of the may the defendant any be one controlling case on statutory pro- Oklahoma’s of such but not offenses for more than one.” against punishment. hibition The Shackelford, ¶¶ 5-8, at opinion majority simply shows the fails to at this Court found this statuto State,2 understand Hale v. in which this ry persuasive. construction to be sound and Court summarized decades case law to set Accordingly, I majority’s rejec find that the simple forth a determining test for whether a tion of this Court’s Hale is unnec subject defendant is twice for essary disposition to the of this case and is cursory act omission. Even a review of upon not based precedent. established subsequent and our LUMPKIN, Vice-Presiding Judge: Spe- expands cases show Hale neither the statute cially Concurs. concept nor punishment. of complement my 1 I colleague taking majority’s claim that the Hale has perceived time to enunciate I widespread unsupported caused confusion is original holding of this Court’s filings recent cases or before this Court. 11; OK CR 7, 1. 21 Lev. 2. 1995 888 P.2d 1027. denied, 947 cert. persons reach differ- 3 Reasonable (or using interpreting

ent results test), majority’s respect and I

any other lar- conviction for

determination that Davis’s § 11 not violate

ceny a house does

using I am left to wonder the Hale test. majority, having reached this unre-

why the conclusion, fixing prob- insists on

markable appeal.3 Both raised as

lems not error complaint and ar-'

parties Hale without cite do or don’t vio-

gue Davis’s convictions applied § 11 as there. There is

late prior reject “specifically our cases”

reason to I conclude the ma-

applying Hale. can

jority in order overturn overreaching exactly

case law it doesn’t like. judicial members of the ma-

sort of activism

jority complain of in cases.4 other APP 116

1999 OK CIV *6 QUEEN Rae and John

Connie Queen, Appellants,

Robert

v.

Sherry HENSON, Appellee. Lee 93,011.

No. Oklahoma, Appeals of Civil No. 2.

Division

Aug. 1999. Nov.

Certiorari Denied See, Dodd, e.g, 70 OBJ OBJ Dodd Lile, J., V.P.J., V.P.J., dissenting); (Lumpkin, Cohee (Lumpkin, dissenting), Petition Rehearing Opinion & With Granted & Vacated J, drawn, part/dissent part). (Lumpkin, concur in OBJ