Robert Larue Jones v The State Of Oklahoma

F-2006-1339

Filed: Mar. 27, 2008

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Robert Larue Jones appealed his conviction for Robbery with a Dangerous Weapon. His conviction and sentence were set to fifty years in prison. Judge C. Johnson dissented. In this case, Jones was found guilty, but he argued that the trial did not allow him to properly defend himself with an alibi. The court decided that he should have been given the chance to tell the jury his side of the story, which could show he was not at the scene of the robbery. Because of this mistake, the court reversed the original decision and ordered a new trial for Jones.

Decision

The Judgment and Sentence of the District Court is REVERSED and REMANDED with instructions to hold a new trial. Under Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2008), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• was there sufficient evidence to sustain his conviction
• did the jury receive proper instruction on his defense of alibi
• is his sentence excessive

Findings

• the court erred
• the evidence was not sufficient
• the sentence was excessive

F-2006-1339

Mar. 27, 2008

Robert Larue Jones

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

MAR 27 2008

Appellant Robert Larue Jones was tried by jury and convicted in the District Court of Oklahoma County, Case No. CF-2005-6445, of Robbery with a Dangerous Weapon, After Former Conviction of Two or More Felonies in violation of 21 O.S.2001, § 801. The jury fixed punishment at fifty years imprisonment. The Honorable Virgil C. Black, who presided at trial, sentenced Jones accordingly. From this judgment and sentence, Jones appeals, raising the following issues: (1) whether the evidence is sufficient to sustain his conviction; (2) whether the jury received proper instruction on his defense of alibi; and (3) whether his sentence is excessive. We find reversal is required and reverse this case for retrial with appropriate instructions.

Jones filed a notice of intent to offer alibi as his defense and requested an instruction on his theory of defense. An instruction on a defense should be given when sufficient, prima facie evidence is presented which meets the legal criteria for the defense. See Malone v. State, 2007 OK CR 34, ¶ 22, 168 P.3d 185, 196; Jackson v. State, 1998 OK CR 39, ¶ 65, 964 P.2d 875, 892 (per curiam). The evidence of the defense may come from any source and should not be weighed by the trial court. Malone, 2007 OK CR 34, ¶ 22, 168 P.3d at 197. The trial court erred in refusing Jones’s request for an alibi instruction on the basis that Jones failed to produce witnesses other than himself to place him at another location at the time of the robbery. Jones was entitled to an instruction informing the jury of his defense so it could evaluate the evidence. See Glossip v. State, 2001 OK CR 21, ¶¶ 28-29, 29 P.2d 597, 603-04; Novey v. State, 1985 OK CR 142, 709 P.2d 696, 698. The failure to include an alibi instruction in this case requires reversal.

DECISION

The Judgment and Sentence of the District Court is REVERSED and REMANDED with instructions to hold a new trial. Under Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2008), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

AN APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY

THE HONORABLE VIRGIL C. BLACK, DISTRICT JUDGE

APPEARANCES AT TRIAL

CURTIS BRUEHL
ASSISTANT PUBLIC DEFENDER
320 ROBERT S. KERR, SUITE 611
OKLAHOMA CITY, OK 73102
ATTORNEY FOR APPELLANT

FAUSTINE ELIZABETH CURRY
TIM WILSON
ASSISTANT PUBLIC DEFENDERS
320 ROBERT S. KERR, STE. 611
OKLAHOMA CITY, OK 73102

APPEARANCES ON APPEAL

HEATHER COYLE
ASSISTANT DISTRICT ATTORNEY
320 ROBERT S. KERR, STE. 505
OKLAHOMA CITY, OK 73102
ATTORNEY FOR STATE

W. A. DREW EDMONDSON
OKLAHOMA ATTORNEY GENERAL

JENNIFER L. STRICKLAND
ASSISTANT ATTORNEY GENERAL
313 N.E. 21ST STREET
OKLAHOMA CITY, OK 73105
ATTORNEYS FOR APPELLEE

OPINION BY: A. JOHNSON, J.

LUMPKIN, P.J.: Dissent
C. JOHNSON, V.P.J.: Concur
CHAPEL, J.: Concur
LEWIS, J.: Concur

LUMPKIN, PRESIDING JUDGE: DISSENT

This Court has been consistent since Territorial days as to the requirements that must be met to receive an instruction on the alibi defense. In Barbe v. Territory, 16 Okl. 562, 86 P. 61, 64 (1906) the court stated: To entitle the defense of alibi to consideration, the evidence must be such as to show that, at the very time of the commission of the crime charged, the accused was at another place so far away or under such circumstances that he could not, with ordinary exertion, have reached the place where the crime was committed so as to have participated in the commission thereof, and in a criminal prosecution, unless the evidence fills this requirement of law, no instruction on the subject of alibi is necessary to be given by the trial court. This standard has been used throughout the years by this Court. See Locke v. State, 1997 OK CR 43, 94, 943 P.2d 1090, 1093, overruled on other grounds by Burleson v. Saffle, 2002 OK CR 15, 18, 46 P.3d 150, 153; Honeycutt v. State, 1992 OK CR 36, ¶ 22, 834 P.2d 993, 999; Trissell v. State, 1987 OK CR 107, ¶ 5, 737 P.2d 1228, 1229; Goodwin v. State, 1982 OK CR 183, ¶ 14, 654 P.2d 643, 644; Leeth v. State, 1951 OK CR 54, ¶ 70, 230 P.2d 942, 952; Giles v. State, 70 Okla. Crim. 72, 104 P.2d 975, 977 (1940).

As we stated in Kinsey v. State, 1990 OK CR 64, ¶ 18, 798 P.2d 630, 632-33, it is not error to refuse to give an instruction on the defendant’s theory of defense if there is insufficient evidence to support it. The evidence required is any competent evidence sufficient to establish prima facie proof of the legal defense sought to be offered. As I have stated previously in Jackson v. State, 1998 OK CR 39, 964 P.2d 875, 902, (Lumpkin, Judge: Concur in Results), In deciding whether a defendant has established a prima facie proof of the defense using the any competent evidence standard, the Court shall determine if the competent evidence presented is good and sufficient on its face. That means evidence which, in the judgment of the law, is sufficient to establish a given fact, or the group or chain of facts constituting the defendant’s claim or defense, and which if not rebutted or contradicted, will remain sufficient to sustain a judgment in favor of the issue which it supports.

Reviewing the evidence presented in this case with the requirements of proof we have mandated for instructions on the defense of alibi as set out in Barbe v. Territory, together with the requirement of a prima facie proof of that defense by competent evidence, I cannot find the trial court erred in denying the instruction on alibi in this case. Assuming for argument sake it was error to fail to give the instruction, the error would be harmless. See Ellis v. Ward, 2000 OK CR 18, ¶ 4, 13 P.3d 985, 986 (misinstruction of the jury is subject to a harmless error analysis). As the State points out in its brief, nevertheless, the jury was presented with the alibi evidence and counsel argued that the evidence showed that the defendant was not at the scene of the crime. The evidence was not sufficient to warrant the instruction and it was certainly not sufficient enough to create a reasonable doubt in the minds of the jurors in this case. I would affirm the judgment and sentence in this case.

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Footnotes:

1. 21 O.S.2001, § 801
2. Malone v. State, 2007 OK CR 34, 1 22, 168 P.3d 185, 196
3. Jackson v. State, 1998 OK CR 39, 1 65, 964 P.2d 875, 892 (per curiam)
4. Malone, 2007 OK CR 34, 1 22, 168 P.3d at 197
5. Glossip v. State, 2001 OK CR 21, 11 28-29, 29 P.2d 597, 603-04
6. Novey v. State, 1985 OK CR 142, 709 P.2d 696, 698
7. Barbe v. Territory, 16 Okl. 562, 86 P. 61, 64 (1906)
8. Locke v. State, 1997 OK CR 43, 94, 943 P.2d 1090, 1093
9. Burleson v. Saffle, 2002 OK CR 15, 18, 46 P.3d 150, 153
10. Honeycutt v. State, 1992 OK CR 36, IT 22, 834 P.2d 993, 999
11. Trissell v. State, 1987 OK CR 107, IT 5, 737 P.2d 1228, 1229
12. Goodwin v. State, 1982 OK CR 183, 14, 654 P.2d 643, 644
13. Leeth v. State, 1951 OK CR 54, IT 70, 230 P.2d 942, 952
14. Giles v. State, 70 Okla. Crim. 72, 104 P.2d 975, 977 (1940)
15. Kinsey v. State, 1990 OK CR 64, 18, 798 P.2d 630, 632-33
16. Jackson v. State, 1998 OK CR 39, 964 P.2d 875, 902 (Lumpkin, Judge: Concur in Results)
17. Ellis v. Ward, 2000 OK CR 18, II 4, 13 P.3d 985, 986

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 801 (2001) - Robbery with a Dangerous Weapon
• Okla. Stat. tit. 22 § 18 - Rules of the Oklahoma Court of Criminal Appeals
• Okla. Stat. tit. 22 § 3.15 - Rules of the Oklahoma Court of Criminal Appeals
• Okla. Stat. tit. 21 § 701.8 (2011) - Second Degree Murder
• Okla. Stat. tit. 21 § 701.1 (2011) - Capital Murder

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:

• Malone v. State, 2007 OK CR 34, I 22, 168 P.3d 185, 196
• Jackson v. State, 1998 OK CR 39, I 65, 964 P.2d 875, 892
• Glossip v. State, 2001 OK CR 21, I 28-29, 29 P.3d 597, 603-04
• Novey v. State, 1985 OK CR 142, 709 P.2d 696, 698
• Barbe v. Territory, 16 Okl. 562, 86 P. 61, 64 (1906)
• Locke v. State, 1997 OK CR 43, I 94, 943 P.2d 1090, 1093
• Burleson v. Saffle, 2002 OK CR 15, I 18, 46 P.3d 150, 153
• Honeycutt v. State, 1992 OK CR 36, I 22, 834 P.2d 993, 999
• Trissell v. State, 1987 OK CR 107, I 5, 737 P.2d 1228, 1229
• Goodwin v. State, 1982 OK CR 183, I 14, 654 P.2d 643, 644
• Leeth v. State, 1951 OK CR 54, I 70, 230 P.2d 942, 952
• Giles v. State, 70 Okla. Crim. 72, 104 P.2d 975, 977 (1940)
• Kinsey v. State, 1990 OK CR 64, I 18, 798 P.2d 630, 632-33
• Ellis v. Ward, 2000 OK CR 18, II 4, 13 P.3d 985, 986