Robert Lee Peace v The State Of Oklahoma

F-2005-1145

Filed: May 3, 2007

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Robert Lee Peace appealed his conviction for Assault and Battery with a Dangerous Weapon. His conviction and sentence were set for thirty-five (35) years in prison. The court decided to reduce his sentence to twenty-five (25) years. Judge A. Johnson dissented from the decision.

Decision

Appellant's conviction is hereby AFFIRMED, but his sentence is hereby MODIFIED to twenty-five (25) years imprisonment. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2007), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• was there ineffective assistance of counsel due to failure to utilize evidence to undermine the credibility of the State's witness?
• did the trial counsel fail to properly argue the transactional nature of prior felony convictions, affecting sentencing enhancement?
• was there prosecutorial misconduct that warranted a reduction in the sentence imposed?
• did trial counsel and the State violate Appellant's rights to effective assistance of counsel and a fair trial in various respects, including failure to investigate and present mitigating evidence?

Findings

• the court erred regarding ineffective assistance of counsel but found no prejudice affecting the outcome
• the court erred regarding the submission of prior felony convictions as they were transactional
• no prosecutorial misconduct was found
• no further relief was granted for ineffective assistance claims raised in the pro se brief
• Appellant's conviction is affirmed and sentence is modified to twenty-five (25) years imprisonment

F-2005-1145

May 3, 2007

Robert Lee Peace

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

MICHAEL S. KICHIE LUMPKIN, PRESIDING JUDGE:

Appellant, Robert Lee Peace, was tried by jury in the District Court of Tulsa County, Case Number CF-2004-2174, and convicted of Assault and Battery with a Dangerous Weapon, in violation of 21 O.S.2001, § 645. The jury set punishment at thirty-five (35) years imprisonment, and the trial judge sentenced Appellant in accordance with the jury’s determination. Appellant now appeals his conviction and sentence. Appellant raises the following propositions of error in this appeal:

I. Trial counsel deprived Appellant Peace of his Sixth Amendment right to effective assistance of counsel by failing to utilize readily available evidence to undermine the credibility of the State’s only substantive witness;

II. Trial counsel deprived Appellant of his Sixth Amendment right to effective assistance of counsel by allowing two transactional prior felony convictions to be submitted for the jury’s consideration in enhancing Appellant’s sentence pursuant to Okla.Stat.Tit.21, § 51.1;

III. Prosecutorial misconduct warrants a reduction in the sentence imposed; and

IV. Trial counsel and the State deprived Appellant of his Fifth, Sixth and Fourteenth Amendment right to effective assistance of counsel and a fair trial by various ways raised by Appellant in his pro se brief, including counsel’s failure to adequately investigate his case, counsel’s failure to present mitigating mental health evidence, and the State’s failure to disclose (and counsel’s failure to discover) deals the State made with the complainant that would have impeached her credibility.

After a thorough consideration of these propositions and the entire record before us, including the original record, transcripts, and briefs of the parties, we find modification is required, as set forth below.

With respect to proposition one, we find defense counsel should have used the lab report during cross-examination of the victim; however, no prejudice occurred, at least insofar as a determination of guilt is concerned. Appellant has not shown a reasonable probability that but for counsel’s professional error the result of the proceeding would have been different, and this lone error does not sufficiently undermine our confidence in the outcome reached. Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984).

With respect to proposition two, we find no reasonable trial strategy in defense counsel’s failure to claim that Appellant’s prior felony convictions, occurring against the same victims on the same day in the same county of Arkansas, were transactional. 21 O.S.Supp.2002, § 51.1. The clear appearance is that they were. This error is addressed by a modification of the sentence.

With respect to proposition three, we find no prosecutorial misconduct. Ryder v. State, 2004 OK CR 2, ¶ 83, 83 P.3d 856, 875.

Appellant’s motion to supplement the record, tendered June 12, 2006, is hereby granted. The request for evidentiary hearing is hereby denied.

And finally, with respect to the ineffective assistance and Brady claims raised in Appellant’s pro se brief, we find none entitling Appellant to any further relief. Many of the ineffective assistance claims raised fall within the scope of strategic choices, while others are not adequately supported. Appellant’s pro se claims do not show errors by counsel that were so serious as to deprive him of a fair trial, one with a reliable result, under the teachings of Strickland.

DECISION

Appellant’s conviction is hereby AFFIRMED, but his sentence is hereby MODIFIED to twenty-five (25) years imprisonment. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2007), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

AN APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY

THE HONORABLE THOMAS P. THORNBROUGH, DISTRICT JUDGE

APPEARANCES AT TRIAL

RON WALLACE & ANNA JOHNSON
423 SOUTH BOULDER, SUITE 300
TULSA, OK 74103
COUNSEL FOR APPELLANT

APPEARANCES ON APPEAL

STEPHEN J. GREUBEL
423 SOUTH BOULDER, SUITE 300
TULSA, OK 74103
COUNSEL FOR APPELLANT

LATISHA HARPER & IRENE ASAI
W.A. DREW EDMONDSON
ASSISTANT DISTRICT ATTORNEYS
TULSA COUNTY

STEPHANIE D. JACKSON
DISTRICT ATTORNEY’S OFFICE
500 S. DENVER AVE., SUITE 406
TULSA, OK 74103
COUNSEL FOR THE STATE

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

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Footnotes:

1. 21 O.S.2001, § 645
2. Okla.Stat.Tit.21, § 51.1
3. 21 O.S.Supp.2002, § 51.1
4. Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984)
5. Ryder v. State, 2004 OK CR 2, I 83, 83 P.3d 856, 875
6. Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2007)

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 645 - Assault and Battery with a Dangerous Weapon
• Okla. Stat. tit. 21 § 51.1 - Enhancement of Sentence
• Okla. Stat. tit. 21 § 51.1 - Enhancement of Sentence
• Okla. Stat. tit. 21 § 51.1 - Enhancement of Sentence

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:

• Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984)
• Ryder v. State, 2004 OK CR 2, I 83, 83 P.3d 856, 875