Armand Rashawn Johnson v State Of Oklahoma

F-2008-763

Filed: Jul. 24, 2009

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Armand Rashawn Johnson appealed his conviction for multiple crimes including robbery, pointing a firearm, assault, burglary, possession of a firearm, and kidnapping. Conviction and sentence were reversed and the case was sent back for a new trial. Judge Lewis dissented.

Decision

The Judgment and Sentence is REVERSED AND REMANDED FOR A NEW TRIAL. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2008), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Issues

• Was there a violation of the appellant's right to trial by jury due to the trial court's conduct during voir dire?
• Did multiple convictions based on the same use of a firearm violate the prohibition against double jeopardy?
• Was the evidence insufficient to support the appellant's convictions due to unreliable identification?
• Did the admission of prejudicial victim impact evidence warrant a new trial or modification of sentences?
• Did the introduction of details regarding the appellant's prior convictions and sentencing conditions unfairly inflate his sentences?
• Were jurors misinstructed on the punishment range for Assault and Battery with a Deadly Weapon?
• Was there ineffective assistance of counsel that resulted in failure to preserve issues for review?
• Did cumulative errors deprive the appellant of a fair trial and reliable verdicts and sentences?

Findings

• The trial court erred in the manner of conducting voir dire, leading to invalid verdicts.
• The multiple convictions based on the same use of a firearm do not violate double jeopardy; however, further examination is unnecessary due to the reversal.
• The evidence was deemed sufficient to sustain Appellant's convictions.
• The admission of victim impact evidence was not found to require a new trial or modification of sentences.
• No prejudicial details of Appellant's prior convictions were demonstrated to inflate his sentences.
• The jurors were misinstructed on the range of punishment, necessitating favorable modification of the consecutive sentences in Counts IV and V.
• Cumulative errors that deprived Appellant of a fair trial and reliable verdicts were not examined further due to the case being reversed.

F-2008-763

Jul. 24, 2009

Armand Rashawn Johnson

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, JUDGE: Appellant Armand Rashawn Johnson was tried by jury and convicted of Robbery with a Firearm (Counts I and II) (21 O.S.2001, § 801); Pointing a Firearm (Count III) (21 O.S.2001, § 1289.16); Assault and Battery with a Deadly Weapon (Counts IV and V) (21 O.S.Supp. 2007, § 652); First Degree Burglary (Count VI) (21 O.S.2001, § 1431); Felonious Possession of a Firearm (Count VII) (21 O.S. Supp. 2007, § 1283)¹ and Kidnapping (Counts VIII, IX and X) (21 O.S. Supp. 2004, § 741), all After Former Conviction of Two or More Felonies, Case No. CF-2007-6271 in the District Court of Oklahoma County. The jury recommended as punishment imprisonment for thirty (30) years in each of Counts I, II and IV; twenty-five (25) years on Count III; forty (40) years in each of Counts IV and V; and twenty (20) years in each of Counts VII, IX and X. The trial court sentenced accordingly, ordering the sentences in Counts I¹ and IV to run concurrently with each other, Counts II and V to run concurrently with each other but consecutively to Counts I and IV, and all other counts to run concurrently with each other.² It is from this judgment and sentence that Appellant appeals.

Appellant raises the following propositions of error in support of his appeal:

I. Appellant’s convictions should be reversed because the trial court’s lecture produced invalid verdicts and denied his right to trial by jury.

II. Multiple convictions and punishments based on the same use of a firearm violates the prohibition of double jeopardy and double punishment and all but one count for each complainant must be dismissed.

III. The evidence was insufficient to sustain Appellant’s convictions because the State’s case rested upon an inherently unreliable identification.

IV. Admission of prejudicial victim impact evidence including subsequent medical care and treatment, and speculation regarding possible fatality and long-term complications requires a new trial or favorable modification of the resulting sentences.

V. Prejudicial details of Appellant’s prior convictions and the possibility that he might serve less time in prison than the jury imposed inflated his sentences.

VI. Jurors were misinstructed on the range of punishment for Assault and Battery with a Deadly Weapon, and the consecutive 40 year sentences in Count IV and V must be favorably modified.

VII. Any failure to preserve issues for review was the result of the ineffective assistance of counsel.²

VIII. Cumulative errors deprived Appellant of a fair trial and reliable verdicts and sentences.

After thorough consideration of these propositions and the entire record before us on appeal including the original record, transcripts, and briefs of the parties, we have determined that the convictions should be reversed and the case remanded to the District Court for a new trial. In Proposition I, the trial court abused its discretion by the manner in which voir dire was conducted. See Young v. State, 2000 OK CR 17, ¹ 19, 12 P.3d 20, 31-32. An important aspect of voir dire is to educate prospective jurors on what will be asked of them under the law. Eizember v. State, 2007 OK CR 29, ¹ 40, 164 P.3d 208, 221. However, the trial court is not to influence the jurors in their decision making process. The Oklahoma Uniform Jury Instructions – Criminal (2d) are comprehensive instructions which follow a chronology designed to give jurors as much information as they need about the trial proceedings. Trial courts should follow the introductory information provided in the Oklahoma Uniform Jury Instructions. If the court determines that jurors should be instructed on a matter not included within the Uniform Jury Instructions, the court may give an instruction that is simple, brief, impartial and free from argument. 12 O.S. 2001, § 577.2. Analogies and examples may be used to illustrate the uniform opening instructions, but trial courts should be objective and careful not to appear to guide the jury to a particular decision. See McCarty v. State, 1995 OK CR 48, ¹ 42-54, 904 P.2d ³ 110, 123-125 (trial court required to exercise great caution to say nothing to coerce an agreement or to indicate his feeling in the case.) While the trial court in the present case incorporated material from the uniform instructions, the court’s emphasis on the potential cost of the proceedings and potential consequences of the jurors’ failure to follow the court’s instructions was improper.³ Further, the court’s comments about the deliberation process were premature and effectively a preemptive Allen charge. See Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). See Thomas U. State, 1987 OK CR 113, ¹ 20-21, 741 P.2d 482, 488; Pickens v. State, 1979 OK CR 99, ¹ 10-11, 600 P.2d 356, 357-58. It is important that each juror make his or her own decision and not be encouraged to abandon their own personal beliefs. Here, many of the remarks of the trial judge during voir dire were improper and may have had a coercive effect upon the jury. It is by far the better practice for the trial judge to lecture a jury as little as possible and be most cautious in his remarks for fear he may say something that will prejudice the rights of the defendant. Spomer v. State, 1964 OK CR 92, ¹ 7, 395 P.2d 657, 664. Accordingly, our decision to reverse and remand the case for a new trial makes it unnecessary to address the remaining propositions of error.³

The daily challenges and responsibilities of judges of the District Court are great. The Court empathizes with the demands that are placed on trial judges and often the frustrations that arise from those demands. However, instructions to jurors must not reflect those frustrations. Jurors should only be instructed on the law and evidence relevant in the case and the process they should follow in arriving at their independent decisions pursuant to those instructions.

DECISION

The Judgment and Sentence is REVERSED AND REMANDED FOR A NEW TRIAL. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2008), the MANDATE is ORDERED issued upon delivery and filing of this decision.

AN APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY

THE HONORABLE RAY C. ELLIOTT, DISTRICT JUDGE

APPEARANCES AT TRIAL

APPEARANCES ON APPEAL

VERNON SMYTHE
1330 N. CLASSEN, # 310
OKLAHOMA CITY, OK
COUNSEL FOR APPELLANT

KIMBERLY D. HEINZE
P.O. BOX 926
NORMAN, OK 73070
COUNSEL FOR APPELLANT

DAVID C. PRATER
DISTRICT ATTORNEY

W.A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA

SAMUEL CHAVERS
ASSISTANT DISTRICT ATTORNEY

DONALD D. SELF
ASSISTANT ATTORNEY GENERAL

320 ROBERT S. KERR, STE. 505
OKLAHOMA CITY, OK

313 N.E. 21st ST.
OKLAHOMA CITY, OK 73105
COUNSEL FOR THE STATE

OPINION BY: LUMPKIN, J.
C. JOHNSON, P.J.: CONCUR
A. JOHNSON, V.P.J.: CONCUR
CHAPEL, J.: CONCUR
LEWIS, J.: CONCUR

RC 5

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Footnotes:

1. Count VII was dismissed by the State prior to the second stage.
2. Counts I and II, Robbery with a Firearm; Counts IV and V, Assault and Battery with a Deadly Weapon; and Count VI, First Degree Burglary, are subject to the 85% Rule pursuant to 21 O.S. 2001, § 13.1.
3. The Oklahoma Uniform Jury Instructions - Criminal (2d) are comprehensive instructions which follow a chronology designed to give jurors as much information as they need about the trial proceedings.
4. See Young v. State, 2000 OK CR 17, 1 19, 12 P.3d 20, 31-32.
5. Eizember v. State, 2007 OK CR 29, 1 40, 164 P.3d 208, 221.
6. See McCarty v. State, 1995 OK CR 48, 11 42-54, 904 P.2d 3 110, 123-125.
7. See Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896).
8. See Thomas U. State, 1987 OK CR 113, IT 20-21, 741 P.2d 482, 488.
9. Spomer v. State, 1964 OK CR 92, IT 7, 395 P.2d 657, 664.
10. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2008), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 801 (2001) - Robbery with a Firearm
• Okla. Stat. tit. 21 § 1289.16 (2001) - Pointing a Firearm
• Okla. Stat. tit. 21 § 652 (Supp. 2007) - Assault and Battery with a Deadly Weapon
• Okla. Stat. tit. 21 § 1431 (2001) - First Degree Burglary
• Okla. Stat. tit. 21 § 1283 (Supp. 2007) - Felonious Possession of a Firearm
• Okla. Stat. tit. 21 § 741 (Supp. 2004) - Kidnapping
• Okla. Stat. tit. 21 § 13.1 (2001) - 85% Rule
• Okla. Stat. tit. 12 § 577.2 (2001) - Oklahoma Uniform Jury Instructions

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

No US Code citations found.

Other citations:

No other rule citations found.

Case citations:

• Young v. State, 2000 OK CR 17, ¶ 19, 12 P.3d 20, 31-32
• Eizember v. State, 2007 OK CR 29, ¶ 40, 164 P.3d 208, 221
• McCarty v. State, 1995 OK CR 48, ¶¶ 42-54, 904 P.2d 3, 110, 123-125
• Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896)
• Thomas v. State, 1987 OK CR 113, ¶¶ 20-21, 741 P.2d 482, 488
• Pickens v. State, 1979 OK CR 99, ¶¶ 10-11, 600 P.2d 356, 357-58
• Spomer v. State, 1964 OK CR 92, ¶ 7, 395 P.2d 657, 664