*1
No. 101328. Nov. 2004. Supreme Court of Oklahoma. Rehearing Denied Jan. 2005.
Nov.
ORDER
petitioner's
The
application for a writ of
ORDER
corpus,
habeas
question
legality
of his
T1 Original jurisdiction is assumed. Let
confinement
in a federal penitentiary is de
prohibition
writ of
issue
Andreana
nied
jurisdiction.
for want of
power
The
Colley,
Burns,
v.
Defendant,
Chad
entertain a writ
Plaintiff
corpus
habeas
depen
CJ-2008-2518,
Case No.
whereby the Honor-
jurisdiction
dent on
custodian,
over the
Harbour,
able
M.
David
District Court of
this case the warden of
peniten
the federal
County,
Oklahoma
is directed not to enforce
tiary
Reno,
in El
Brittingham
Oklahoma.
v.
1, 2004,
plain- U.S.,
July
order of
(9th Cir.1992).
requiring
pay the required 152.1(7). cost § in 28 0.8. Smith,
See Barnes v. 1937 OK (the 1217, 1218 right to a civil trial be exercised at option party willing
to bear
statutory
expense).
13 DONE BY ORDER OF THE SU-
William P. Attorney Tulsa, OK, attorney for defendant at trial. lick, Weintraub, Yvonne Lisa Assistant District Attorneys, County Tulsa District At- Tulsa, OK, torney, *3 attorneys for the State at trial. Purcell,
Thomas E. Appellate Defense Counsel, Norman, OK, attorney appellant for appeal. on Edmondson, W.A. Drew Attorney General Oklahoma, Harris, Keeley L. Assistant General, Attorney OK, City, Oklahoma attor- neys appellee appeal. for on
OPINION
CHAPEL, Judge. D'Angelo
T1 James Pink1 was tried jury and Robbery convicted of with a Dan gerous AFCF, Weapon 0.8.2001, under 21 (Count § I), Conspiracy to Commit with a Robbery Dangerous AFCF, Weapon 0.8.2001, (Count § under 21 II), in Tulsa County, Case No. CF-2002-8670.2 In accor dance jury's with the recommendation, Honorable Jefferson D. Sellers sentenced Pink imprisonment (85) thirty-five years $5,000 and a fine of on I Count (10) imprisonment years for ten and a fine of $2,500 on Count II. The court ordered the sentences to be consecutively. served Pink appeals his convictions and his sentences.
FACTS
12 Just after
p.m.,
10:00
on March
Bowman,
Diana
an
manager
assistant
at the Dollar General Store on East Admiral
Tulsa, Oklahoma,
Place in
was robbed at
knifepoint by David Lane and Kristifer Hel-
len, after she exited
got
the store and
into
her car.3 Although three other female em
ployees exited the Dollar
along
General
with
night,
Bowman that
and Bowman had hidden
Although
spelled "Deange-
first name
Yabhola,
along with Lisa Ann
who was likewise
record,
lo" in much of the
spelled
trial court
it is
charged
Robbery
with one count of
with a Dan-
"D'Angelo"
gerous
Judgment
Weapon and one
Sentence docu-
Conspiracy
count of
ments
filings
all of
appeal.
on
Robbery
Commit
Dangerous
.
Weapon.
with
acquitted
Yahola was
on both counts.
Pink was also
with Possession of a
(Count III),
Firearm AFCF
but the
Conflicting
found
presented regarding
evidence was'
guilty
him not
of this crime. Pink was tried
whether or not
gun.
one of the robbers also had a
driving. Lane
Pink
Bryant,
carrying
she
money that
bags of
two
face and
already painted his
two
he had
apron,
and store
her shirt
under
well,
as
paint
face
put
on
Hellen
Bowman,
Pink told
demanded
directly to
went
robbers
Lane testi-
they knew she
masks.
not have
they
did
told
since
money, and
her
home,
infor-
Pink
they had inside
by a
they
it-suggesting
drove
fied
had
carrying Dollar
person
who would
home of
about
mation
indicated
day.
rob,
for the
Dollar
deposits
as the
as well
going
General's
they were
store,
pointed out
Pink
where
General
was that
theory at trial
The State's
T3
Pink
to Bowman.
belonged
parked car
masterminded
robbery was
General
Dollar
the woman
and Hellen
told Lane
Pink en
and that
by D'Angelo James
hair,
would
long blond
had
to rob
and Hel-
into a
tered
have
skirt,
she would
and that
long
wearing a
Lisa Ann
Bryant and
Misty
len, along with
*4
that
David two
told them
Pink
money
General.4
Yahola,
the Dollar
to rob
also
bags.
would
seared
lady"
trial,
Misty
"church
did
was a
and
as
she
Pink's
at
Lane testified
at
years
old
Lane
Lane,
money right up.
was sixteen
give
who
the
Bryant.5
would
and
understanding that
and
he
his
that
it was
robbery,
testified
that
testified
of the
the time
Hellen,6
Ear
friend,
contacted
Lane
though
person,"
Kristifer
his
"inside
Pink had an
Ray,"
Jr.,
Dean,
person
as "Uncle
was.
known
who the
Ray
told
was not
nest
committing
money by
making some
about
Pink
dropped
that
testified
T5 Lane
they
that
testified
Lane
crime.7
kind of
some
Hellen a
gave
Pink
that
home and
off at a
to
took them
subsequently
Ray
Uncle
robbery. Bryant
then
to use in
knife
to three
Pink,
two
approximately
home
Dol-
toward the
back
and Hellen
Lane
drove
Gen
robbery of the Dollar
before
weeks
told
and
got nervous
Hellen
but
lar General,
Bryant in
Pink and
eral,
they
with
met
where
Lane
gun
a
too.
they needed
Bryant that
Pink told
that
testified
yard. Lane
front
her cell
Pink on
Bryant called.
that
testified
"licks," meaning rob
had some
that he
them
they then
gun, and
a
getting
phone about
money.
to make
beries,
they
do
could
some
After
get one.
house to
Pink's
to
went
was
there
them that
Pink told
particular,
there, howev-
gun
find the
not
Bryant could
rob, and
they could
that
a Dollar General
go ahead with
agreed
er,
Lane
and
Hellen
to
willingness
their
indicated
Hellen
Lane and
knife,
Bryant
just the
robbery with
so.
to do
cemetery near
a
off at
dropped them
although
{4
he saw
that
testified
Lane
General.
Dollar
to March
prior
occasion
one other
Pink on
wait-
Hellen
he and
that
Lane
T6
testified
he and
day that
until that
it was
group
a
until
the Dollar General
outside
ed
Ray,
informed,
through Uncle
were
Hellen
they had no
and that
out
came
women
six
very
place
take
robbery was to
that the
by Pink
one described
out the
picking
trouble
they were told
Lane testified
night.
Bowman).
just as
her
(i.e.,
They confronted
and that
store
Family Dollar
at a
Pink
meet
holding
car,
Hellen
with
her
got inside
there,
she
in a
up
picked
Hellen
he and
give
demanding that she
Lane
knife
by Pink
Intrepid,
Dodge
green
black
just be-
indicates
in this case
record
6. The
Ann
charged as "Lisa
originally
4. Yahola was
seventeen
who was
Hellen,
trial,
Pink's
fore
noted
informations
but
Ross,"
subsequent
guilty
robbery, pled
time of
years
at the
old
Ann Yahola"
as "Lisa
known
was also
she
the armed
to both
youthful offender
aas
Pink,
joint
with
trial
At her
Ross."
"Lisa Yahola
eight
was sentenced
and the
Yahola.
consistently
to as Lisa
referred
was
she
counts,
to be run
(8)
on both
imprisonment
years
employee at the
General
was a Dollar
Yahola
however,
not,
testify
concurrently.
did
Hellen
girlfriend of
robbery,
well as a
of the
time
as
against Pink.
Pink's,
was the
she
State maintained
and the
supplied the
person" who
"inside
coconspirator
charged as a
was
7. Dean
Yahola,
Bowman and
Pink,
about
the information
with
robbery, along with
the armed
bags.
money
not been
he had
Hellen, but
Lane, and
Bryant,
trial. Lane
time of
apprehended at the
Hellen,
pre-
he,
joint
cross-examination
Bryant
testified
on
also
Lane and
gang.
Blood
members
were all
Dean
hearing
and Yahola.
liminary
of Pink
f-ing money."
them "the
Lane testified Afterwards Hellen and
picked up
Lane were
Ray.10
Uncle
at first
the woman
bag
handed him a
it,
cleaning
with
supplies in
gave
but
then
8 Diana
description
Bowman's
of the rob
him money bag
when he told her the first
bery
largely
was
consistent with that of
bag
money.
wasn't
Lane testified that
Lane. Bowman testified that she was an as
he and Hellen fled the scene without getting
manager
sistant
at the Dollar General at the
money
bag,
second
time and
after one of the
that one of
responsibilities
other
her
was
deposits
shift,
make
Dollar
after her
employees attempted
General
to run
when she
manager
was
duty,
on
as she was on
over
They
Hellen with her car.
ran to the
night of
robbery.
She testified that al
cemetery,
seeing
after
though the store closed
p.m.,
at 8:00
she and
there,
they
shirts,
along
burned their
cashiers Joanne Deronmanis and Marcheri
plastic
money
Dollar General
bag
Smith, as well
manager
Dearman,
as
Clara
had
money,
contained the
and ran to a
were there until after
p.m.
10:00
working and
~
friend's home in the area.
talking.11Bowman
testified that
all went
T7.
out together,
testified that
Hellen then called
but that
as she
reached her car
down,
and sat
two
"boys"
white
painted
while,
Pink and that after waiting a
due to all
appeared
faces
from near the side of the
police
area,
helicopters
building, one of
knife,
whom
holding
up in
Intrepid
pick
up.
them
drove
*5
her,
cursed
told her
they
that
knew she had
Bryant
Lane testified that
passen
was in the
money
the
they
and that
gun,
had a
and to
ger's seat and that
people,
three other
in
hurry up
give
and
money.12
them the
Bow
cluding
Ray,
Uncle
in the back seat.
were
man testified that she had hidden the two
Pink told Hellen
get
and Lane to
in the
money bags
smock,
under her shirt and work
trunk, because
enough
there wasn't
room in
skirt,
top
of her
but
that when she
car,
they
and
did so. Lane testified that
reached her car she
bags
threw the
on the
twenty
after about
stopped,
minutes the car
Initially,
confusion,
floorboard.
in her
Bow
opened
and Pink
the trunk
told them
and
man
boys
handed one of the
a Dollar General
they
that
going
were
to walk to his
then
bag containing candy.
got
After he
upset,
house,whichthe three of them then did. At
she found one of
money
bags and threw
Pink's home
bedroom,
went into Pink's
him, just
it at
Dearman,
before Clara
in her
money
where the
up
ways,
was divided
three
car,
boys
came at the
and attempted to hit
Pink, Hellen,
Lane,
between
and
sepa
with a
one of them.13
point
At that
boys
ran off
rate share for "someone
being
else"
set
toward
cemetery
across the street. Bow
aside. Lane further
testified that after the man testified that after
police
came and
money
divided, they bought
was
guns
some
husband,
she called her
she also called her
from
particular,
Pink.8In
bought
Lane
a .380 friend,
Yahola,
Lisa
to tell her what had
bought
and Hellen
and a .22rifle.9 happened.14
gauge
a 12
8. Lane
one,
testified on cross-examination
there
deposit
since the afternoon
had not been
that
was
$3,000
around
bag
in cash
made.
and
money
that
got
each of the
$800
three men
around
money.
that
12. Bowman also testified that she later saw that
little,
boy
gun.
other
had a
black
home,
9. Lane also testified that while at Pink's
they smoked some "weed" and that earlier in the
day he had used "some coke" and "some meth."
money
Bowman testified that
bags
one of the
$3,800,
coniained around
while the other con-
tained
$4,400,
around
and that
stole the
boys
10. At the
testimony,
end of his
Lane acknowl-
$4,400.
containing
one
approximately
Some
edged
already pled
guilty
he had
in the
portion
money
of this
would have consisted of
exchange
being
youthful
treated as a
of-
personal checks.
fender,
yet
but that he had not
been sentenced.
11. Bowman
day
testified that
Yahola worked that
Bowman's
account of the
was corrob-
p.m.,
until
picked
Dearman,
8:00
up by
by
that she was
orated
"her
Clara
who testified that she
boyfriend,"
Pink,
D'Angelo
grayish/greenish
by
in a
came
after the
night
store closed that
Dodge, and that
accompany
Yahola would have known that
making
Bowman
deposits.
Bowman
deposits
would
day
make the
for that
Dearman testified that when she saw that Bow-
money
that she
bags
robbed,
would have two
being
instead
got
man was
she
in her car and
just
weapon
one
not feel comfortable
did
likewise
was
Misty Bryant's
gun,
a
a
they attempted to obtain
of the
Lane's account
largely consistent
home,
was
.380,
but
that she
from Pink's
Dollar General
rob the
conspiracy to
she
Bryant
Bryant
testified that
robbery.15
testi
find it.
unable to
of the
carrying out
cemetery
near
boys off at
dropped the
home at the
living in Pink's
was
that she
fied
General,
supposed to
where she was
Dollar
actual rob
robbery planning and
time
afterward,
did not
that she
"girifriend" Mona
them
Pink's
meet
bery, along with
in end
meeting
there.
up meeting them
Bryant described
Welch.16
during March
home
yard at Pink's
front
Instead,
up Pink at
picked
T11
she later
and initial
and Hellen
at which
home,
he
Pink told her that
Yahola's
Bryant
present.17
also
Ray were
ly Uncle
accomplished,
robbery had been
knew the
Hellen
Lane and
Pink told
testified
and told
called Yahola
Bowman had
because
do,
them
"job" that he wanted
about
Bryant
further
testified
it.
her about
Bryant
General.
rob a Dollar
namely,
Pink,
girlfriend later
she,
Ray, and his
Uncle
that he had se
indicated
Pink
testified
home.19
boys up
private
at a
picked
Admiral because
on
Dollar General
lected the
get
telling
boys to
Pink
Bryant described
"somebody
information"
"inside
he had
near
driving to a school
trunk and then
have the
who would
about
worked there"
who
them out and
where Pink let
home,
be, etc.18
they would
bags, where
money
walking to his home.
began
three of them
testimo-
Lane's
Bryant
T10
substantiated
Pink told her
Bryant
€ 12
testified
up Lane
picking
Pink
she and
ny
girlfriend
about
and then
and his
drop off Dean
Hellen,
the Dollar General
night
house,
on the
she did
which
him back
meet
Pink
child).
Bryant
(still
testified
robbery.
toting Welch's
Stratus,
home,
Dodge
green 2000
driving a
returned to the
when she
regularly
bedroom,
by Mona Welch
and there
boys
owned
in a
two-year-
Pink,
that Welch's
Although
driven
money
the floor.
pile of
on
was a
*6
them,
with
be-
in the car
division of
was also
not know the exact
Bryant
old son
did
working. Bryant testified
was
"in-
cause Welch
that
understanding was
money,
her
paint
and
boys"
had on face
of "the
that
get
that one
and
going
was
person"
$500
side
Pink,
ways,
in the
paint
split three
between
put
one
on face
was
the other
the rest
that
testified
by
Lane,
Bryant
further
driving
Bowman's
Hellen.
Bryant described
and
car.
night
that
that
boys that Bowman
Pink informed her
telling the
that
and Pink
house
Bryant not-
Yahola.
and
was Lisa
money
person
under her shirt
inside
would have
money for
no
they
personally received
Bryant
that she
testified
ed
resist.
wouldn't
it to
robbery,
that she did
in the
and
Yahola's
role
baby off at
her
Pink and the
dropped
feelings for
Pink,
had
who she still
help out
boys a knife to
gave
Pink
home and
boys
at the time.
that the
robbery.
noted
in the
She
use
common-law
men,
to as Pink's
Welch was referred
attempt
to hit
16.
straight
in an
at the
drove
Bryant
testified that
during
men
further
one of the
trial.
testified that
wife
She likewise
them.
holding
gun
previously
he aimed it
her.
had a sexual
though
and that
had
she and Pink
just
the time.
relationship,
friends at
were
pled
already
Bryant
that she had
testified
case,
yet
though
not
been
guilty
she had
met Lane
Bryant
that she had not
testified
sentenced,
expected the State to
she
but
brought
Ray
previously
that Uncle
and
Hellen
years
prison
serve five
that she
recommend
them there.
years
probation. On cross-examina-
with two
acknowledged
had also been
Bryant
that she
tion
resisting
battery and
with assault
did not
however,
testified,
18. Bryant
was,
only
like-
separate
though
to which she had
person
arrest in a
who the inside
state
sentenced,
yet
pled guilty
been
wise
Lisa
there was
that worked
person that she knew
the sentences
part
deal was that
of her
through Pink.
who she met
Yahola,
with her
run concurrent
case would be
other
robbery.
sentences
again
baby was
Bryant
that Welch's
expected the
that she
Bryant
indicated
also
them,
seat.
in the back
with
robbery charge against her to be amended
armed
offense,
not be
that she would
so
to a non-violent
required
of her sentence.
to serve 85%
ANALYSIS
the defendant
to the commission of the of
fense,
merely
to the
perpe
admitted
I,
Proposition
113 In
Pink argues that
trators of the offense.2
his co-defendants David
because
State,23
115 In Cummings v.
recog
we
Misty Bryant
"accomplices"
were both
to the
"general
nized the
rule" that
of an
robbery
armed
and the
of which
accomplice "must be corroborated with
convicted,
evi
he was
their
because
testimo-
dence,
alone,
standing
tends to link
ny
corroborated,
inadequately
his convie-
defendant with the commission of the crime
tions must
reversed. This
up
Court
takes
charged."2 We have likewise described as
separately,
two
beginning
crimes
"well settled"
interpretation
§
of 742 as
with a dangerous weapon
requiring that "corroborative evidence must
charge.
itself,
without
the aid of the
accomplice,
an
degree
tend to some
to con
Accomplice Testimony
A.
nect
defendant
the commission of
T 14 The
dispute
State does not
that Lane
offense,"
[the]
"independent
noted that
accomplices
to the armed
merely
consistent with the main
robbery,
any
nor
dispute
was there
about
story is not sufficient to corroborate it if it
this at the trial court level.20 Oklahomastat
requires any part
accomplice's
of the
testimo
(Title
utory
742)
law
Section
specifically
ny to make it tend to connect the defendant
provides
of such accom with the crime."26
plices
by
must be corroborated
evidence that
116 The
correctly
State
notes that we
Tinks the defendant
to the commission of the
required
have not
quantity
crime:
independent evidence connecting the defen
A conviction cannot
upon
be had
the testi
dant to
great,
the crime
though
we have
mony of an accomplice unless he be cor
insisted that
the evidence raise more than
roborated
such other evidence as tends
suspicion.
mere
In Cummings,
recog
we
to connect the defendant with the commis
nized that
accomplice's
an
testimony need
offense,
sion of the
and the corroboration
not be corroborated in all material
respects
is not sufficient
if it merely shows the
and that the amount of corroborationre
commission
the offense or the cireum-stancesquired
simply
"at least one material fact of
there of.21
independent evidence that
tends to connect
This Court
strictly
has
§
enforced the
742 the defendant with the commission of the
*7
27
requirement
that corroborating evidence link
crime."
recognized
We also
that cireum-
instructed,
jury
20.
properly
was
accord
Rutledge,
26.
1973 OK
107, ¶ 6,
CR
507 P.2d at
(2d)
(Supp.2000),
OUJI-CR
552;
that both
State,
4, ¶ 6,
see also
v.
L.E.Y.
1982 OK CR
were,
fact,
Bryant
Lane and
accomplices
1253,
639 P.2d
("Corroborating
1255
evidence
robbery
the
dangerous
crime of
with a
weapon.
must
terd to connect
the defendant with the
commission of the offense absent
the accom
0.9.2001, §
21. 22
742.
plice's
State,
testimony.")
(citing Jones v.
1976
See,
1061).
State,
OK
56,
261,
CR
555
e.g.,
22.
P.2d
¶ 9,
Rider v.
1972 OK CR
("[The
494
347,
P.2d
350
evidence
independent
accomplice
of the
of the
must
45,
tend to
¶ 20,
27. 1998 OK CR
(citing
593 this publication of following the In trials the ade- misunderstand jury would Pink's testimony, accomplice involve opinion that in contained requirement corroboration quate according to this instructed jury shall be instructions, may like- which accomplice its (2d) 9-82. of OUJI-CR modifiedversion apparent, but jury's help explain wise trial, this Court Pink's Regarding corrobora- 124 mistaken, adequate decision cor adequately did not the State finds that established. had been tion testimony of accomplice roborate prose {23 recognizes The Court the armed connecting Pink to and a reason upon based argument was cutor's Hence General.36 the Dollar of "may," which word of construal able danger robbery with a for conviction dangerous particularly argument made her be reversed. weapon must ous the test because of the context discretionary op or truly is articulated Testimony Coconspirator B. law, Oklahoma law. Under under our tional if assumes apparently the testi able to eliminate jury must be falls, so too robbery conviction armed his (or accomplices) and accomplice mony anof conspiracy to commit for conviction does his separate find some able to be still This is weapon. dangerous robbery with with the the defendant to connect that tends Although accom necessarily the case. Hence charged offense.35 commission versa, vice coconspirators and plices can be (2d) 9-82 hereby that OUJI-CR find we con accomplice law and although both and as to state hereby modified is and must be re special considerations spiracy law involve follows: crimes," are not the terms "group garding ac applying to to the law question as nor is determining synonymous, In or coconspirators identical testimony complices ac- and of an not the or whether fact, the current In fully parallel.37 even you corroborated, complice has been to important it is how testimony case demonstrates eliminate able to must be between Oklahoma recognize the distinction all of the entirely then examine and their accomplices and regarding testimo law facts, testimony, remaining coconspirators and regarding law ny and our circumstances, and ascertain testimony. their any is there whether examination such according the commis- tending instructed to show 126 Pink's cocon- regarding tending instructions to the OUJI the offense of sion correspond to the testimony the of- spirator defendant connect to accomplice to applying is, of instructions OUJI then If there fense. mandate instructions testimony.38 These accomplice is corroborated. conspir- abetting aiding nor ... Neither ac- fact. 22-26 and supra cited in notes cases 35. See acquiescence; addition, mere acy be established can the Committee companying text. In (2d) 9-32 the defendant OUJI-CR the current instead, it must Comments proven aiding abet- encouraged, or for helped or "[EJxecution either (Supp.2000) as follows: state conspiracy, help, agreed for expressed ting, 742 man- statutory policies in section crime."); Conspir- indepen- corroborating proof be 16 Am.Jur.2d aof commission dates relevant, accomplice." ("The (1998) between difference of another acy § dent of the that, liability while accomplice conspiracy and CR State, 1963 OK v. Burkhalter 36. See also of the crime element agreement an essential an (reversing larceny 6-13, ¶¶ 719-20 P.2d accomplice liabil- conspiracy, aid sufficient not ade where conviction any agreement between given ity without linking defen by evidence quately corroborated been Accordingly, has parties. CR crime); Rodriques OK v. dant to offense from separate distinct adjudged (same). 13-19, ¶¶ 508-09 abetting, it involves aiding since that of connivance preconcert and element additional (2002) See, § Conspiracy eg., C.J.S. 15A joint activity in the mere inherent not necessarily aiding and a crime ("Conspiracy to commit abetting."). aiding and common of- are distinct abetting its commission agreement requirement of an ... It is fenses. jury was instructed particular, Pink's that distin- scheme participate in a criminal (2d) 9-37, 9-33, 9-35, OUJI-CR accordance related offense conspiracy from the guishes a apply co- (Supp.2000), 9-38 and although based abetting, often which, aiding lan- testimony, which track the conspirator require proof of that agreement, does not an on *10 594 testimony be eoconspii’ator any evaluated ac consider the as it statement would
cording special other a requirement indepen to the same is instruction necessary See corroborating appropriate. nor dent has been neither State, (Okl.Cr. Laske v. 536, 694 P.2d applying accomplice as to 538 summarized above 1985) (judge whether testimony. requirement decides the State has The basis for in this law, however, independent introduced sufficient conspiracy highly is Oklahoma prove to conspiracy).40 dubious.
ports responding statutory provision applying to coconspirator’s as follows: “Committee Comments” ing applies (2d) namely, Oklahoma accomplice,”39however, and there is no cor- ¶ 27 which 9-39 accomplice The source of the tests for specifically necessity (Supp.2000), “Although quoted testimony, state, adequate testimony coconspirators. Statutes, to “the above. This corroboration which articulates one little requirement following corroboration of a testimony Title authority quite revealingly, 22, The OUJI OUJI-CR provision of testi- regard- Section of an clear, sup- his his such corroboration is must resolve this for inadequate particular, testimony. And because regarding coconspirator testimony, evaluated tions evidence implicitly er Hence [4] a appeal. jury provide conflicting ¶ Oklahoma’s 29 should be in whether such Upon reviewing the same manner as conviction should be reversed corroboration conflict given special rests Uniform required, signals about wheth- testimony in upon Pink’s our order to resolve by independent Jury a claim that statutes instructions this Court claim that accomplice should be Instruc- in mony of this coconspirator, a Court’s jurispru- Commission extensive has (cid:127) dence, logic distinguishing discerned we little conclude Oklahoma law does require coconspirator of an accomplice from that of a coconspirator regard.” evaluated to according this cor- requirement roboration applies ac- ¶. hand, 28 On the other the former OUJI- complice testimony and hence that the OUJI (2d) 9-17, which CR was titled “Evidence— asserting instructions explaining a such Coconspirators,” Statements and Acts of now inaccurate, requirement are misleading, and states “NO INSTRUCTION SHOULD BE juries.41 should given not be i GIVEN.” Committee corre- The Comments lows: sponding -to this non-instruction note as fol- n Once the judge decides that a coconspira- persons acy” [5] is an ¶ 30 commit a agreement -Under Oklahoma crime, between two or more plus law, an a “conspir- overt act admissible,
tor statement
agreement.42
furtherance of
This
cert,
9-25,
(2d)
9-28, 9-30, 9-31,
Cir.),
guage
denied,
(1979),
of OUJI-CR
595 alsoWe standard.48 ance of the evidence" crime recognized "[the long has Court on evi- following limitations nature, noted crime is a by very its conspiracy, such denee: proved very secrecy is seldom in clothed al we have satisfy the Hence by coconspirator's evidence."43 statements direct A reliability and are admissi requirements the existence to establish the State lowed a evidenc conspiracy e.44 through indirect theOn proof and circumstantial other hand, ble as only where non-hearsay substantive the trial court finds: [1] a we have herent particularly when rely upon statements in the admission recognized the the State made possible of such by coconspirators is attempting dangers evidence, in conspiracy statements and the parties alleged coconspirator declarant existed; were made to the [2] conspiracy; during the duration both the defendant [3] during the course law spirator's Court al. We statement recognized, is admissible Harjo course and dence ator's statement conspiracy, the an in spiracy regarding the made camera hearing,47 to determine reviewed against actually noted T31 statements in furtherance by his however, that under Oklahoma hearing, and is not In Omalza the defendant trial court existed, and summarized is offered can be coconspirator presentation that before during a often under conspiracy admitted of their is hearsay."4 We v. required against referred whether conspiracy tri a charged with State,45 this "preponder- a of a during the conspiracy coconspir- Oklahoma into evi law, a alleged. 6 to hold to as a cocon- a con party "(al imperative finding that a but ted ments outside admissible beginning of the conspiracy require exception" to spirators), other evaluated furthered of the addition, that the court (such these requirements rule of evidence.50 132 Oklahoma that a conspiracy; under as statements that the trial unless against a we coconspirator's statements the context coconspirator's the test noted Omalza goals of the hearsay they come likewise ensure law does conspiracy court not be satisfied made [4] rule of this the statements or in under some not be not, testimony be conspiracy.49 prior to by "conspiracy defendant, that state only insist that it is however, non-con before admit cor- may court consider trial conspiracy P.2d 536-the 694 of a cently "the essence noted that alleged coconspirator within its anof act'" statements unlawful agreement to commit an 'an existed). conspiracy a whether determination 274, 270, U.S. Recio, 537 v. United States Jimenez (all (2003) 819, 822, 744 154 L.Ed.2d 123 S.Ct. omitted). 80, ¶ 13, citations at 296. The 911 P.2d CR 48. 1995 OK live, coconspirator's a exception rule is for to this 77, 10, ¶ State, P.2d CR 598 1979 OK v. 43. Fetter State, v. See Johns at trial. in-court 297, 1142, OK CR Pearson, 1976 178, ¶ 8, see also 262, 265; 1146 742 P2d OK CR 1987 (same). ¶ 20, at 1030 556 P.2d testimo coconspirator's live trial (holding is not conspiracy defendant with the ny about his (Existence conspiracy need not of a 44. Id. about his statements hearsay: such witness's proof of cir- direct established are not hear participation and observations own of a which existence cumstances all; testimony about say and the witness's at (citation sufficient.") fairly be inferred coconspirator are ad by his accused statements omitted). admissions); Huckaby see also party as missible 447, 84, ¶ 13, State, 451 804 P.2d CR 1990 OK v. 80, (per 286 911 P.2d curiam). OK CR 45. 1995 hearing "independent (no in camera need for conspira connecting to the [defendant] (emphasis P.2d at T13, 911 Id. con coconspirator testifies cy," during where 0.S.1981, 2801(4)(b)(5)); § (citing original) 12 14, ); trial) P.2d (citing at 1 804 id. spiracy Johns ¶ Armstrong 34, 14, OK CR State, v. 1991 see also testimony can (coconspirator's in-court at 451 (same). relied The 593, 597 provision 811 P.2d of both sufficient constitute Armstrong can now upon in Omalza conspiracy); participation and defendant's 2801(B)(2)(e). § 0.$.Supp.2002, at 12 found 29, ¶ 4, P.2d CR State, 1994 OK v. Hackney ). Huckaby (citing Johns ¶ 25, 797 CR Harjo State, OK v. 47. See during (holding camera P.2d 80, ¶ 13, at 296. CR 1995 OK admissibility of statements hearing regarding the the Court's coconspirator-required under of a at 296. at% 911 P.2d Id. CR 1985 OK prior Laske v. decision in *12 roborating applied evidence that is to accom conspiracy was for separate for a of- fenge.53 plice testimony. Although there have been occasions opinions when this Court's seem to "coconspirator" use the terms 138 This Court specifical has never "accomplice" interchangeably,51 the terms ly held independent corroborating synonymous, are not nor are the standards evidence applies standard that accomplice to evaluating testimony for of persons such testimony applies equally testimony to the of the same. testify Even when the individual coconspirator, a and we decline to do so ing accomplice is both an coconspira and a here.54 Pink does (apart not claim from his tor-a not uncommon suffi scenario-the inadequate argument) corroboration that the ciency of the regarding witness's testimony State's regarding conspiracy his "primary (eg., murder, robbery, crime" conviction was otherwise insufficient. And etc.) fraud, separately must be evaluated we conclude that presented by appropriateness
from the
adequacy
of
trial,
the State at
including
testimony
of
testimony
regard
witness's
in
to the
Pink's coconspirators, David
Misty
Lane and
charge
conspiracy
to commit
that same
Bryant, as well as the victim of their com
crime.52 Hence in
involving
cases
both a
pleted conspiracy,
Bowman,
Diana
conspiracy
was more
conviction
a
conviction for a
offense(s),
than
separate
support
sufficient
to
this Court has
conviction
evaluated
conspiracy
for
adequacy
particular
of a
to
robbery
witness's testi
with a dan
commit
mony according
standards,
gerous weapon.
to different
de
Thus this conviction is aff
pending on whether the conviction at issue
irmed.55
complice
e.g.,
See,
v. State,
Moss
corroboration
1994
CR
instruction was
re-
¶ 37,
OK
(referring
argument
888 P.2d
518
to
quired).
co-conspirator
witness
"a
testimony
whose
corroborated,"
sufficiently
must be
when witness
54. To the extent that Cox v.
1986 OK CR
was also an
whose
in rela
accomplice,
testimony
3-7,
¶¶
909, 910-11,
fact, ap
tion to murder
offense did need
be,
to
and was,
plies
§
742
requirement
corroboration
to the
-
corroborated).
conspiracy
(in
'conviction at issue in that case
presenting
addition to the
a false insurance claim
52. We
thorny hypothetical
do not here decide the
conviction),
hereby
it is
overruled.
question of whether an individual could ever be
"accomplice
conspiracy,"
an
to a
without also
Judge Lumpkin's
opinion,
attached
concur-
being
coconspirator,
a
testimony
whose
in rela-
ring
part
dissenting
part,
troubling
is a
conspiracy
tion to the
subject
would then be
hand,
opinion
one. On the
happily
one
con-
§
adequate
742
independent
standard for
curs in the affirmance
conspiracy
of Pink's
con-
corroboration. In the current
as in most
significant
viction and also to
revisions to our
clearly
Lane and
were
cases,
not mere
Uniform
Instructions,
in order
Jury
to make
"accomplices
conspiracy''-if
to this is even
~
§
statutory
clear that
requirement
742
for
possible-they
unquestionably parties
to the
adequate
accomplice's
corroboration of an
testi-
agreement
General,
to rob the Dollar
and hence
mony,
regard
robbery
to crimes such as
coconspirators
crime. Hence
conspiracy
murder,
apply equally
does
conspiracy
testimony
we hold that their
in relation to the
regard,
convictions.
ensuring
In this
i.e.,
crime, i.e.,
primary
robbery,
the armed
to which
opinions
our
instructions don't make
they
legally "accomplices,"
are
must be evaluat-
conspiracy
get
convictions harder
than our
according
§
ed
accomplice
to the
742
mandates,
opinion
caselaw
calls this Court to
standard
supra,
articulated
while their
great
diligent
act with
care,
to "be
in the correct
crime,
in relation to
regarding
terminology,"
use of
to use "a few extra words"
legally
"coconspirators,"
must be
opinions
necessary,
in our
if
and to "ensure we
according
evaluated
to the
law stan-
put
all,
the law and facts in context...." After
dards articulated herein.
is the hard work that
this Court is called
upon to do.
See,
Johns,
178, ¶¶
e.g.,
7-11,
1987 OK CR
742
(finding
P.2d at
hand,
that witness was both a
opinion
On the other
dismisses as
coconspirator
accomplice,
applying
an
overly picky
and "law-review-like" the same kind
requirement
§
careful,
corroborating
exacting, precedent-based
analysis
only
regarding
non-con
leads this
robbery
Court to reverse Pink's
offenses);
spiracy
53, ¶¶
Harjo,
conviction,
1990 OK
despite
CR
19-
powerful
evidence that he
(finding
precedence.
with the
quirements
set forth Omalza v.
manner in which the Court has applied the
(Okl.Cr.1995)
P.2d
Harjo
v. State
law of
to the facts of this case,
(Okl.Cr.1990),
prior
P.2d 338
to the ad
and must
dissent
the decision to reverse mission of the statements of a co-conspirator,
and dismiss the conviction in Count I.
corroboration of that
prior
statement
to its
A conspira
admission.
2 I
part
problem
believe a
with the
cy may
proven by
cireumstantial evidence
application,
reached,
Court's
and the results
"from which the
existence of a
sequence
began
Court
its
may be
Hackney,
inferred."
4 Huckaby 447, In 5, (1940)) v. 71 804 P.2d Okla.Crim. 451 107 P.2d 825 added). (Okl.Cr.1990), (emphasis this Court Corroborating cites Johns in hold ing only consist Harjo the Laske and of requiring rule circumstantial evidence. - Id. independent evidence before the admission of a co-conspirator's apply statements does not Repeatedly, T8 this Court has stated that to the direct in-court testimony of a co-con we will take "the view of strongest the cor spirator. Euckaby co-conspira held that a roborating testimony that such testimony will tor's in-court direct was sufficient warrant sufficiency where the of the corrobo independent evidence of a and of rating evidence challenged." Barber v. participation co-defendant's in it. Id. State, (Okl.Cr.1963). 388 P.2d Glaze, See also 712; 565 P.2d at v. Eaton bar, In the case at our case law does T5, State, (Okl.Cr.1965); 404 P.2d 53 Barrett require any corroboration of the co-con- State, (Okl.Cr.1960). v. P.2d 1022 spirator's However, testimony. the State presented both direct and cireamstantial evi- I primary purpose 9 The of accomplice denee at trial (21 742) corroborated the co-con- $ 0.8.2001 requiring corrob- statute spirator's testimony. My reference to accomplice oration of testimony is to assure evidence is for purposes only illustration person that no is convicted of a solely crime should not any way construed to mean on an accomplice whose him information for supplying the inside on questionable. might be testifying motive for confirmed when robbery. This fact was Accomplices "are Glaze, P.2d at robbery report finger of called Yahola Bowman point need by the motivated knew the reported he Appellant to mini in order involved at the others guilt report completed participation their because had been appearance mize the P.2d opinion wants to v. to him. The felony" Faulkner Yahola (Okl.Cr.1982). In this and cireumstantial piece of direct dismiss independent testifying being sufficient as not no motive had witnesses the defen as all of Appellant testimony un- against support one, had been dants, exception of Yet, so opinion does § 742. der for armed co-conspirator as a evi- acknowledging what without vacuum robbery. already admitted as substan- been dence had law of co- guilt under tive evidence independent Glaze, [10 two there Further, opinion fails to conspirator. and model make that described sources question, not a law recognize this is automobile. of the defendants' analysis. article review evi cireumstantial held that This Court apprehended the defendant dence both direct case that contains 14 This is a by the one described to the similar a car apply evidence. We circumstantial corrobo was sufficient sources de appellate review rule of long established accomplice's testimo rating evidence Virginia, 443 U.S. v. from Jackson rived ny. Id. *15 (1979) and 61 L.Ed.2d 99 S.Ct. co-conspira { testimony, like Accessory State, 709 P.2d Spuehler v. adopted in accomplice testimo testimony, and unlike tor (Okl.Cr.1985) recently ap more independent corrobora require not ny, does 556, 559 v. plied in Easlick Faulkner, This P.2d at 1308. tion. to de (Okl.Cr.2004) requires this Court corroborating evi required has Court in the "viewed if evidence were termine like a testimony because accessory dence of any state would favorable to the light most accessory's co-conspirator, "an have found essential of fact rational trier unreliability found the inherent not have does beyond a reasonable of crime elements testimony." Id. accomplice's in an in the the facts when I believe doubt." parsed the has decision T12 The Court's sequence, in and the case are viewed present chronologi- separate events and into facts in the applied admitting law Applying to the law. cally applied the facts jury in manner, judgment of the same testimony unfolded facts as the law to the supported sufficient I is Count trial, presented judge was first doubt beyond a reasonable which establishes testimony of admissibility of the of the issue 0.8.2001, § 742. It is 21of requirements directly testifying person, in co-conspirators, parsed the law are only when the facts describing his Appellant and identifying the made the case can be sequence that of out of and execution planning in the role the statuto compliance with is not that there proceeds. robbery and distribution co-conspirators' Once ry requirements. Harjo the Omalza met This as substan admitted properly are statements as substan- admitted and was requirements sequence in this guilt tive evidence Appellant's actions. guilt of tive evidence with then be events, cannot that evidence Therefore, evi- no additional as not dismissed trial and from the drawn co- necessary to corroborate dence sufficiency of the determining the in relevant co-con- testimony. Onee conspirators' Especial completed crime. for the Omalzsa met spirators' the accom co-conspirator and ly, when jury to up to the it was Harjo requirements I parties or individuals. same plice are the testimony in their reject the accept or either legal reason logical, practical no know of deliberations. case. Ac differently in this them to treat judgment I would affirm cordingly, {13 regarding also The witnesses counts. of both sentence someone acknowledgment he had Appellant's selves, I15 would also like to comment on practitioners and the apply who must issue of the OUJI-CR and the Committee this law in the courtrooms of our state on a out, opinion points Comments. As the daily basis. I believe each member of this part Court must shoulder for blame Court is indebted to the members of the guidance lack of clear the law to enable Instruction Committee for the hours of labor clear, our prepare has, OUJI-CR Committee to go and continues to into the creat- concise instructions on the law. Our failure ing updating of the OUJI-CR for the diligent the correct use of terminolo- benefit of the courts of the State of Okla- gy appropriate context creates confu- Thankfully, homa. ongoing it is an process Committee, sion the bench and the that allows for corrections when the need is might bar. Even when it take extra few brought to our attention this manner. put words we should ensure we the law and judiciary Members of the practicing bar context, required give facts and if histori- encouraged notify should be the Commit- cal context to our decisions. We should nev- any if tee difficulties with the in- uniform paraphrase cases, holdings prior er experienced. structions only It we holdings should ensure when we cite we through process they remain a viable validity have researched the of those cites tool for the justice. administration of expressed. and the law While at times we are overwhelmed with the volume of cases desk, accuracy
that cross our and histori- cal correctness of our work para- must be required mount. Often we are to take the time to type write cases of this to reset
plumb give perspective line to to both our- notes testimony of (on While night of Pink told her testimony that eral. Lane robbery occurred how the regarding robbery had robbery) that he knew indepen by the strongly corroborated was called Bowman accomplished-because been also Diana Bowman testimony of dent corrobo it-was her about and told Yahola Dearman, nothing within Clara that fact that Bowman by the rated testified actual to the Pink connected women of these tell her Yahola that did call she night that testified Bowman Although robbery. however, the again, robbery. Once about the the Dollar at up Yabola pick Pink she saw indepen by this corroborated fact material Dodge, over grayish/greenish in a General i.e., Yaho- Bowman called that dent merely robbery, before two hours robbery, does still told her about la and alleged accom to one Pink connected to the commission to connect not tend Pink and the (who ultimately acquitted) was plices testimony of robbery. Without enough scene, not close crime Lane, the fact Bryant and accomplices adequate robbery to constitute time to nothing con Yahola does called Bowman corroboration. robbery.30 the Dollar General Pink with nect con upon evidence focuses The State signifi presented Although the State both green Dodge to the necting Pink . establishing and uncontested cant being as Bryant described used occurred, General that the Dollar sub present did robbery, and the State evi independent much of this although to establish independent stantial and ac accomplice Lane dence corroborated particular drove Pink sometimes and how of when Bryant's accounts complice evidence-apart Unfortunately, no car.29 present occurred, simply did the State it Bryant- Lane and testimony of from the tended independent evidence adequate commis actual Dodge to the connected robbery.31 armed actual Pink with the to connect the victims robbery, neither since sion non-accomplice evidence State's The party observed any other nor knowledge about alleged prior garding Pink's 45, ¶ 20, Cummings, OK CR carrying on money Bowman would much how Bryant robbery. testified night of the (a State word to Bowman's "approximately" testimony, addition Pink told Yahola a.m., on March that at 1:00 presented twice) money Bowman much how used Baumann Officer Dianna any- Police 2002, Tulsa would be amount that the have and would having Dodge Stratus green 2000 stopped a $5,000. $3,000 testified Bowman where from the car tag. expired Baumann an shift's actually the afternoon totaled that Yahola D'Angelo night by being driven