*1 which was not verdict indicates jury’s was the verdict on Count I. LOCKE, Appellant,
unanimous Wendell Lamon the criteria set forth Blanton Applying we the maximum Nachtigal, find for As- periods incarceration authorized Oklahoma, Appellee. STATE of Battery Transporting and for sault Firearm Vehicle re- Loaded a Landborne No. F-95-1165. of- legislative that the
flect a determination Appeals of Criminal of Oklahoma. “petty” Court question presumptively fenses purposes of application Sixth 1, Aug. Therefore, right jury trial. Amendment Constitution, 2, § 19 of the art. Oklahoma jury allows non-unanimous verdicts for
which (6) carry crimes which less than six months
imprisonment, unconstitutionally de- does not criminal his Sixth
prive a defendant of right Accordingly,
Amendment trial. properly that it instructed could
render a less than unanimous verdict III, and we find that Counts Count V and I—
Proposition 9 is without merit. Proposition 2
We further find that II,
requires reversal of due to the trial Count requested
court’s failure instruction self-defense,
on when the evidence showed
some evidence such defense.
Powell v. 1995). Further, due to the loss of evidence alleged the hands as
Proposition dismissal of Count II re required.
mand is
Having propositions of er- considered the Court, argument presented
ror and to this Court, by a vote of 3 to has decided to
AFFIRM the sentences in convictions and I, III, By
Counts IV of 3 to and V. vote RE-
we have decided to REVERSE and
MAND WITH TO DIS- INSTRUCTIONS II.
MISS Count
IT IS SO ORDERED. M. Reta Strubhar
/s/ STRUBHAR,
RETA M. Presiding Judge
Vice Gary Lumpkin L.
/s/ LUMPKIN, L.
GARY
Judge James F. Lane
/s/ LANE, Judge
JAMES F. *3 Henry, City,
David for defen- Oklahoma at trial. dant Keel, Pate, Lou Mark Assistant District Attorneys, City, Oklahoma for the State at trial. Walker-Johnson,
Nancy Oklahoma Indi- System, Norman, gent appellant Defense appeal. Edmondson, Attorney Drew W.A. General Oklahoma, Slayton, A. Diane Assistant General, Attorney City, appel- Oklahoma appeal. lee on OPINION house was killed others in- and two jured. LANE, JUDGE: Locke, Appellant, Wendell Lamon was con- OF ERROR PROPOSITIONS Murder, O.S.1991, Degree victed First one, In proposition Appellant con 701.7, § and two Use of a Vehicle tends that the trial court erred when it failed to Facilitate the Intentional requested instruction on the de Firearm, 21 O.S.Supp.1992, after a requested fense of alibi. The instruction fol trial the District Court of Oklahoma approved lows this Court’s instruction which CF-94-4538, County, Case before Number Wilson, Major R. Honorable District An instruction on the law of alibi
Judge. should recommended *4 they inform the murder, that if entertain a parole sentenced to life without presence reasonable doubt of the of twenty years’ the imprisonment and for each of place accused at the “drive-by” the time and where the shooting offenses.1 The trial committed, they crime was accordingly, court should resolve ordering sentenced that the doubt the concurrently. favor of accused and the sentences run From this him. judgment Appellant acquit per- and sentence has appeal.
fected this (Okl.Cr. State, 196, Cortez 1966); see also Stuart v. 35 Okl.Cr. propositions alleges eight of er- 103, (1926). P. 159 ror which him he claims entitle to relief. To entitle the defense of alibi to consider- thorough After propo- consideration these ation, the evidence must be such as to sitions and the entire record before us on show very at the time of the commis- appeal, original record, including the tran- sion of the the charged, crime accused was briefs, scripts, and we have determined that place away at another so far or under such one, Judgment in count and Sentences not, circumstances that could with ordi- two, Degree, Murder the First and count exertion, nary place have reached the Using a Vehicle to Facilitate the Intentional where the crime was committed so Firearm, as to Discharge of a shall be affirmed participated have in the commission and, three, there- Using count Vehicle to Facili- of; and, in prosecution, a criminal unless Discharge Firearm, tate the Intentional requirement the evidence fills this shall be reversed and remanded with instruc- law, subject no instruction on the of alibi is tions to dismiss.
necessary by given to be the trial court. Goodwin FACTS 1982); Henderson v. Sufficient evidence was introduced to con- jury beyond vince a a reasonable doubt that Henry Love testified that he was Appellant, by accompanied while nine other playing Village Apartm basketball at the Kerr members, people, mostly gang committed the p.m. ents2 midnight between 4:00 and on evening April above crimes. On the April during 1994. Locke He saw there 1994, at p.m., many forty around 11:00 as as time, that but he recall if Locke could not left gunshots were fired from two ears into a go anywhere get gun. or left to Lader- occupied by people. house seven The evi- ick Crenshaw he was at testified that Kerr dence indicated that fired from Village until p.m. about 11:30 and Locke was twenty-six fifteen to rounds from a M-90 still there when he left. assault rifle. The rest shots were by fired from handguns used two others in These witnesses never testified that Locke group. occupants present Apartments One of the either at sought penalty 1. Formerly Apartments. The State the death named the Grove Oak "great was instructed on the risk of death person” aggravating more than one circum- stance. number rounds those inside. The sheer of the commission of “drive precise time presence fired from this rifle would show malice afore- by” shooting that not, just thought a reckless he could and such circumstances Therefore, exertion, life. did not have reached evidence ordinary in- giving committed. of the lesser included offense the crime was struction. testified The State’s witnesses Appellant alleges of 11:00 three
shooting occurred
times
between
21,1994.
subject
punishment
and
p.m. April
There
he was
double
p.m.
11:15
jeopardy by being charged
con-
presented that it would have
double
was no evidence
Using
get
from victed
Vehicle
taken more than fifteen minutes
Village
a Firearm. First
Apartments.
Facilitate the
to the Kerr
Therefore,
Appellant argues that
the two convictions
could have seen Locke
Crenshaw
O.S.1991, §
p.m.,
provisions
left
violate the
apartments when he
at 11:30
at the
However,
those
shooting.
is reserved for
after Locke had returned
Section
punished
one act
under two
cases where
that the “alibi” evidence
We find
separate
provisions State statutes.
giving of an
case
not sufficient for the
punish-
act or omission which is made
[An]
Therefore,
no error
we find
alibi instruction.
provi-
ways
able in
different
different
request-
trial court’s failure
*5
may
punished
of
code
sions
be
ed instruction.
provisions,
...
either
such
but in no
of
two,
argues
In
punished under
than
case can it be
more
right
constitutional
that was denied his
one; ...
a
trial court’s refusal
fair trial
O.S.1991,§
21
11
offense
de
the lesser
of second
instruct on
apply
Section 11 does not
here. There-
Appellant’s theory of
gree murder.
defense
fore, we must examine whether the two con-
shooting.
commit the
was that he did not
jeopardy provi-
victions
violate
double
Therefore,
instruc
degree murder
second
of
constitution. The elements of
sions
our
only if
tions
have been warranted
would
Using
Discharge
a
to Facilitate
Vehicle
such
supported
evidence
instructions.
State’s
of a Firearm are:
repeatedly held
This Court has
any
1. use of
vehicle
an
offense
instruction
a lesser included
discharge;
2.
to facilitate the intentional
only
given
need
when there is evidence in
firearm;
any
3. of
such an instruction.
record
disregard
conscious
for the safe-
(Okl.
State,
v.
P.2d
431
Robedeaux
866
ty
any
persons.
of
other
or
State,
Cr.1993);
v.
also Foster
See
(Okl.Cr.1986);
State,
652(B).
v.
611
O.S.Supp.1992,
P.2d
Green
(Okl.Cr.1980). “It is
within
trial
Using
of
Facil-
two counts
a Vehicle to
responsibility to con
court’s discretion and
only
itate
a Firearm differ
sider
if such in
the evidence to determine
injured
the names of
victims
Robedeaux,
structions are warranted.”
866 by gunfire.
facts show
431;
The same result was reached
reversed and
remanded
instructions
(Okl.Cr.1996),
where the
upon
jeopardy grounds.
based
dismiss
double
multiple
defendant
selling
magazines
obscene
to an undercov-
proposition four, Appellant
In
argues that
transaction;
police
er
officer in
one
one
count
the introduction of a MAK-90 semi-automatic
magazine.
for each
tape showing
assault rifle and a
firing
In Hunnicutt we
Robinson v. United
cited
prejudicial
this rifle constituted
error.
It
States,
(10th
Cir.1944),
143 F.2d
undisputed that
rifle was not
used in this
grounds,
on other
its assignment of error without merit. relevant facts. mine these firing was also introduced tape The Appellant proposition In six claims ejected when the are how shells to show the he was a fair trial because of denied in response firing rifle. This the prejudicial improper and com prosecutor’s regarding the fact that questioning defense im alleged ments. have examined We cartridges not recov- spent all accompanying proper comments and tape scene. The shows how ered at the Appellant argues that record. First casings rapidly forcefully empty shell interjected personal opinion his prosecutor ejected from rifle. Appellant’s about mental state. We find admissibility of demonstrative The based on the evi this comment was question legal relevance with evidence is a improper. was not Carol v. dence and See court, of the trial sound discretion appeal ruling disturbed on whose will not be argues, proposition next of discretion. Owens v. absent an abuse prosecutor eight, that was allowed (Okl.Cr.1987) 960-61 We during comment on not evidence introduced of these find no error the introduction prelimi the trial. The evidence consisted of pieces of evidence. nary hearing testimony position claims, five, Lopez, victim at the time of the Sr.’s head by reading fair trial that was denied a shooting. preliminary hearing testimo testimony. preliminary hearing of Prince’s testimony ny closing referred to used testimony used to rehabilitate This by impeach Morrison. defense witness attorneys Prince had cross- after defense reporter Morrison had that the court claimed him inconsistencies between examined about testimony. re changed had The court testimony. preliminary hearing his trial and testimony porter testified that the was not using prelimi prosecutor was When the changed. argument position about improper nary hearing transcript rea Lopez’ rea properly head was based on sons, Appellant’s trial court sustained by supported sonable evidence. inference objections. Appellant was de We hold arguments properly that the We find fell preliminary nied a fair trial the use argumentation al- range within the wide transcript trial. hearing *7 Appellant improperly lowed that was not and proposition Appellant argues In six that he prejudiced by them. Miller v. See juror by prejudiced contact between P.2d family. victim’s and member the This juror patting of a the back contact consisted in contends of a This victim’s relative. conduct occurred nine his were Evi that sentences excessive. finding guilt after had been a and there dence indicated that knew the proceedings. stage after the second occupied. Appellant house fired a full magazine rifle occu from his assault into an Appellant has not how shown pied framed at a wood house level where by prejudiced this conduct. The State people amazing It is would be struck. sought penalty Appellant, the death how more not individuals were killed. We find ever, punishment the recommended be relationship that the a direct sentences bear parole. The fails set life without record to the of nature and circumstances of any reflect that evi defense counsel offered fense and do not shock our conscience. See juror requested ques dence or Freeman v. allegation. tioned in order to A 1994). prejudice defendant must show actual from any Accordingly, Appellant’s Judgment alleged misconduct and defense and AF- speculation mere for counts one and counsel’s and surmise is Sentence two premise upon insufficient which to cause re FIRMED. Count three is REVERSED and versal. REMANDED with to DISMISS. instructions West STRUBHAR, V.P.J, discharge concurs. vehicle facilitate the of a fire- arm. LUMPKIN, J., concurs in result. majority The concludes that Locke cannot CHAPEL, P.J., JOHNSON, J., concur and be convicted of counts under Section part. in part/dissent
in 652(B) where the elements of the crime are LUMPKIN, Judge, concurring in results. only the same and the difference is the I disagree. names of the opin victims. The by in the I concur results reached by analogy ion cites Hunnicutt v. State2 and However, I Court in this case. do so based Trim v. State.3 In Hunnicutt we held statutory application language on an only one 652(B). offense occurred when the defen O.S.Supp.1992, in 21 contained As purchased dant a sack which contained more is opinion *8 of shooting explicit- offense with intent to kill part/dissenting part: ly requires any person. the intent to kill I affirming battery deadly concur Court’s decision Assault and a weapon with using Locke’s convictions for and explicitly require injure murder a not an does intent to discharge vehicle to facilitate the kill if weapon likely firearm or or force to used is (“drive-by” death; shooting). I produce simple requires Because believe the assault a Legislature another,4 multiple prose- intended to attempt injure simple allow willful to bat- statute,11 tery “drive-by” cutions under the only would the willful use of force affirm Locke’s using injure,5 second conviction for a no intent to and assault and 652(B). O.S.1991, O.S.Supp.1992, § § 1. 21 21 641. 4.
2. 105 O.S.1991, § 21 5. 642. (OkI.Cr. 1996).
3. 909 841 P.2d
1098 dnve-by dangerous weapon requires punishment shootings, for a additional battery with not to bodily cate- defendants discount rate for TaHng harm.6 this intent to do shooting jurisdictions, whole, into a crowd. Other it clear the gory crimes as is provisions, interpreting similar have reached punish use of Legislature intended willful As one same conclusion.8 California against or another whether force or violence court found: specific has intent a defendant injure kill. or primary purpose of the proscription punishment n against double to insure in- “Drive-by” shooting, shooting like punishment the defendant’s will be battery and with a tent kill or assault liability. with his criminal commensurate indisputably weapon, is a crime deadly A an defendant who commits act of vio Legislature against person. The intend- lence to harm with the intent more than using stop persons vehicles to aid ed person one a means likely to cause people, them other focus culpable harm to several more aids is on behavior which the intentional only person.’ than who harms defendant one against person are shooting. Crimes 9 ” they separate if are at and distinct directed 652(B), separate long part has been of Locke’s twice violated “[I]t victims. actions Section victims, against separate properly where involved and were jurisprudence our crimes prosecuted I involved, in two counts. would affirm though even various are both convictions. transaction, they part acts of the same separate will and crimes constitute distinct Judge I am to state authorized separate they are directed and dis- where joins Charles vote. Johnson this Temporal spatial prox- tinct persons. and/or was, imity weapon the fact that the used not, identical, are not material.”7 The
majority opinion compelling offers no reason
why apply well-settled rule should not this particular against person. crime majority although holds Locke
shot in- fifteen times could have over
jured people, he remains seven hable for charge criminal statute. This Legislature
result makes no sense. The
clearly impose section an intended this O.S.1991, (where (Okl.Cr.1973)
6.
645.
defendant
prosecuted
battery
danger-
assault and
for
with a
(Okl.Cr.
Jennings
v.
attempted
weapon
battery
ous
assault and
1973) (no
jeopardy
double
violation where defen
dangerous weapon,
with a
and the court found
prosecuted
dant was
for
counts of assault
jeopardy
no
double
violation
some ele-
dangerous weapon against
vic
with a
tims);
different
ments differed and different victims were in-
v.