Davis v. State

1999 OK CR 48, 993 P.2d 124, 70 O.B.A.J. 3763, 1999 Okla. Crim. App. LEXIS 78, 1999 WL 1138547

Opinions

SUMMARY OPINION

LILE, Judge.

¶ 1 Appellant, Jerry Lee Davis, was tried by a jury and convicted of Larceny from a House in violation of 21 O.S.1991, § 1723 (count 1), Assault with a Dangerous Weapon in violation of 21 O.S.1991, § 645 (count 2), and Larceny of an Automobile in violation of 21 O.S.1991, § 1720 (count 3), all After Two or More Felony Convictions, in the District Court of Pittsburg County, Case No. CF-96-626. In accordance with the jury’s verdict, the Honorable Thomas M. Bartheld, Associate District Judge, sentenced Davis to twenty years imprisonment on count one, twenty-five years on count two, and twenty years on count three. From these judgments and sentences Davis has perfected his appeal.

¶ 2 Davis raises the following propositions of error in support of his appeal:

1. Appellant’s conviction for three separate offenses, which all arose from a single transaction, violates the prohibitions against double punishment and double jeopardy.

2. Mr. Davis’s second trial was barred by the double jeopardy clauses of the Oklahoma and United States Constitutions.

3. The evidence was insufficient to support Mr. Davis’s conviction for larceny from a house.

4. Mr. Davis’s confession should have been suppressed because the State failed to prove that the confession was voluntary, and because he was not brought in front of a magistrate until one month after his arrest.

5. Appellant’s conviction must be reversed because the trial court erroneously rejected a requested defense instruction on the reliability of eyewitness identification testimony and the volun-tariness of the confession, thus depriving Mr. Davis of his rights to a fair and impartial trial under the Due Process Clause of the Fourteenth Amendment and Article II, Section 7 of the Oklahoma Constitution.

6. Mr. Davis was denied due process by not receiving a speedy trial.

¶3 After thorough consideration of the entire record before us on appeal including the original record, transcripts, briefs and exhibits of the parties, we have determined that Davis’s convictions and sentences should be AFFIRMED.

¶ 4 In reaching our decision we find, in proposition one, that Davis’s convictions for all three offenses do not violate the prohibitions against double jeopardy. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932); Rivers v. State, 1994 OK CR 82, 889 P.2d 288, 292.¹ The Blockburger case sets forth the following test to be used to determine if the Double Jeopardy provision applies:

“[Wjhere the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.” Blockburger, 284 U.S. at 304, 52 S.Ct. at 180.

¶ 5 Larceny from a House and Larceny of an Automobile each have elements that the other does not. Therefore, prosecution for both does not violate the Double Jeopardy provision of the Federal or our State Constitution..

V 6 As a separate matter, not involving double jeopardy issues, we must determine if the convictions violate the provisions of 21 O.S.1991, § 11, as Davis alleges. Davis cites Hale v. State, 1995 OK CR 7, 888 P.2d 1027, and argues that because he testified that his intent was to steal the purse in order to get the keys so that he could steal the vehicle, he can only be convicted of one offense.

¶ 7 In pertinent part Section 11 provides that:

“[A]n act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, ... but in no case can it be punished under more than one....” 21 O.S.1991, § 11.

The crimes in this case were a series of separate crimes which are not prohibited by Section 11.

¶ 8 Davis’s crime of larceny from a house was completed when he left the house with the purse with the intent to permanently deprive the owner thereof. The fact that he used the keys which were in the purse to facilitate the stealing of the vehicle does not cause the larceny from the house to merge into the larceny of a vehicle.

¶ 9 Davis’s convictions do not violate Section 11 under a Hale analysis. However, the language in Hale has caused confusion as to what types of separate crimes violate Section 11. Our interpretation of Section 11 found in Hale v. State, 1995 OK CR 7, 888 P.2d 1027, is not only unclear, it is not based on proper statutory construction. Section 11 grants no greater protection than what is clearly spelled out in the language of Section 11.

¶ 10 Hale contains language that goes far beyond what the legislature intended. Hale states that Section 11 is violated when a defendant is convicted of two offenses, one of “which is (1) a mere means to some other ultimate objective, (2) a lesser offense included in some other offense, or (3) merely a different incident or facet of some primary offense.” Id. at 1028. Hale wrongly expands the Section 11 prohibition to crimes which are mere means to some other ultimate objective, or part of some primary offense.²

¶ 11 This Court in Hale relied on Clay v. State, 1979 OK CR 26, 593 P.2d 509, 510, for the three prohibitions cited above. The offending language was first used in Clay. However, the language has no prior precedent in Oklahoma. The language in Hale has caused this Court, as well as countless attorneys and trial judges, to try and determine whether one crime is merely a means to some other objective or part of some primary offense. This struggle is unnecessary and unprecedented. Were we to continue with this “ultimate objective/primary offense” test, we would have the power to dismiss some crimes which “merely” tend to facilitate some ultimate crime, regardless of the nature of the crimes.³ The legislature has not given us this power. Therefore, we specifically reject our prior cases which rely on an “ultimate objective” or “primary offense” test.

¶ 12 We have clear precedent holding that where there are a series of separate and distinct crimes, Section 11 is not violated. Ziegler v. State, 1980 OK CR 23, 610 P.2d 251, 254. In Ziegler the defendant was convicted of first degree burglary, rape, sodomy and unauthorized use of a motor vehicle. This Court held that the convictions did not violate Section 11 because the burglary was complete upon the forced entry with the intent to commit a crime and the crimes committed inside the residence were not necessary elements of burglary. Id.

¶ 13 The proper analysis of a claim raised under Section 11 is then to focus on the relationship between the crimes. If the crimes truly arise out of one act as they did in Hale4 then Section 11 prohibits prosecution for more than one crime. One act that violates two criminal provisions cannot be punished twice, absent specific legislative intent,⁵ This analysis does not bar the charging and conviction of separate crimes which may only tangentially relate to one or more crimes committed during a continuing course of conduct.

¶ 14 Applying this analysis to the facts of this case we find Larceny from a House and Larceny of an Automobile to be separate and distinct crimes and Section 11 does not bar conviction and punishment for both. The proposition is denied.

¶ 15 In proposition two, we find that the State did not “goad” Davis into moving for the mistrial, engage in bad-faith conduct, or even benefit from the mistrial; accordingly, double jeopardy did not bar Davis’s second trial. Napier v. State, 1991 OK CR 120, 821 P.2d 1062, 1064-65. In proposition three, we find that there was sufficient evidence presented, when viewed in a light most favorable to the prosecution, so that the jury could have found the essential elements of larceny from a house. Spuehler v. State, 1985 OK CR 132, 709 P.2d 202, 203-04. In proposition four, we find that there was sufficient evidence to support the trial court’s determination that Davis never invoked his right to counsel and his confession was voluntary. LaFevers v. State, 1995 OK CR 26, 897 P.2d 292, 298-99. We find in proposition five that the trial court did not err in refusing to give the cautionary eye witness identification instruction. Robinson v. State, 1995 OK CR 25, 900 P.2d 389, 404. We find that the trial court erred in failing to give the instruction regarding the voluntariness of a defendant’s statement, OUJI-CR 2d, 9-12 (1996), however, the error was harmless considering the entire record. Harper v. State, 1983 OK CR 30, 665 P.2d 827, 830, cert. denied, 464 U.S. 837, 104 S.Ct. 126, 78 L.Ed.2d 123 (1985). We find in proposition six that Davis was not denied his right to a speedy trial. Conley v. State, 1990 OK CR 66, 798 P.2d 1088, 1089.

DECISION

¶ 16 The Judgments and Sentences of the trial court are AFFIRMED.

JOHNSON, J., Concurs. LUMPKIN, V.P.J., Specially Concurs. STRUBHAR, P.J., and CHAPEL, J., Concur in Part/Dissent in Part.

1 . In cases of multiple punishment in a single trial, this Court utilizes the "same evidence” test (whether each offense contains an element not contained in the other). Further, in Mooney v. State, 1999 OK CR 34, ¶ 17, 990 P.2d 875, 70 O.B.J. 2412 (1999), this Court adopted “the United States Supreme Court’s decision in United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993), overruling Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), and [did] away with the ‘same transaction’ test.” The decision in Mooney requires us to review the crimes in question to determine if each contains elements that are not contained in the other.

2 .This Court in Hale correctly applied Section 11 to the facts contained in Hale. In Hale, the defendant’s convictions for two separate offenses arising out of one act violated Section 11, but would not have violated constitutional prohibitions of double jeopardy (elements test). The defendant’s one act of forcible sexual intercourse with his sister could have been charged as incest or rape, but not both, because of Section 11. Another classic example of a proper Section 11 analysis is robbery with a firearm which could be charged as pointing a firearm or robbery with a firearm, but not both.

3 . For example, a defendant steals a firearm that he intends to use to shoot someone. If he is convicted of larceny of the firearm and shooting another, following the language of Hale, we would have to dismiss the larceny count because the defendant merely took the firearm as a mere means to commit an ultimate objective: shooting another. Further, if an inmate commits a homicide during an escape, an analysis under Hale might lead to the improper conclusion that prosecution for both crimes would violate Section 11.

4 . Supra, footnote 2 (for facts of Hale).

5 . For example, Violation of a Protective Order is punishable by imprisonment and/or fine. Title 22 O.S.1991, § 60.6. This statute specifically provides that “the provisions of this subsection shall not affect the applicability of Sections 644, 645, 647 and 652 of Title 21." This is permissible under a Blockburger double jeopardy analysis.

In Albernaz v. United States, 450 U.S. 333, 340, 101 S.Ct. 1137, 1143, 67 L.Ed.2d 275 (1981), the United States Supreme Court stated "[t]he Block-burger test is a 'rule of statutory construction,’ and because it serves as a means of discerning congressional purpose the rule should not be controlling where, for example, there is a clear indication of contrary legislative intent." In Missouri v. Hunter, 459 U.S. 359, 368-69, 103 S.Ct. 673, 679, 74 L.Ed.2d 535 (1983), the Supreme Court said: “Where, as here, a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the 'same' conduct under Blockburger, a court’s task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial.”

Likewise, evaluation under Section 11 would not prohibit prosecution for violation of a protective order in addition to prosecution for a violation of an underlying assault charge because the legislative enactment concerning protective order violations was enacted after Section 11 and is controlling, Ritchie v. Raines, 1962 OK CR 101, 374 P.2d 772, and is further the more specific provision. Ex parte Smith, 95 Okl.Cr. 370, 246 P.2d 389 (1952).