Marion Lewis v The State Of Oklahoma

F 2004-577

Filed: Dec. 22, 2005

Not for publication

Prevailing Party: Marion Lewis

Summary

# Marion Lewis appealed his conviction for First Degree Rape, Forcible Oral Sodomy, and Indecent or Lewd Acts with a Child. Conviction and sentence: life without parole for 12 counts and 20 years for 1 count. Judge Lumpkin dissented. Marion Lewis was found guilty of several serious crimes, including rape and lewd acts against a child. He wanted to represent himself in court but did not have enough time to prepare. The trial court allowed him to do so just four days before the trial, which was not enough time for him to get his witnesses and documents ready to defend himself. Lewis raised three points in his appeal. He argued that he was not properly informed about the dangers of representing himself, that he might have been tried when he wasn’t mentally ready, and that he was unfairly denied time to gather evidence and witnesses for his defense. The court agreed that Lewis’s right to a fair trial was violated when he was not given a short delay to prepare. They decided that this error was so serious that it affected his trial's outcome, so they reversed his conviction and ordered a new trial. Judge Lumpkin disagreed, believing that the trial court did not make a mistake in denying the extra time Lewis needed.

Decision

The Judgment and Sentences imposed in Oklahoma County District Court, Case No. CF 2002-5082, are hereby REVERSED AND REMANDED FOR A NEW TRIAL consistent with this Opinion.

Issues

• Was there a failure to adequately warn Mr. Lewis of the dangers of self-representation, resulting in a decision that violated the Sixth Amendment?
• Did the trial court ignore significant information that cast doubt on Mr. Lewis's competency to stand trial, violating his Fourteenth Amendment rights?
• Did the trial court's refusal to grant a continuance deprive Mr. Lewis of the ability to call witnesses and present a defense, violating his due process rights under the Fourteenth Amendment?

Findings

• the trial court erred in failing to adequately warn Mr. Lewis of the dangers of self-representation
• the trial court erred by ignoring significant information casting doubt on Mr. Lewis's competency to stand trial
• the trial court abused its discretion in denying Mr. Lewis's request for a continuance

F 2004-577

Dec. 22, 2005

Marion Lewis

Appellant

v

The State Of Oklahoma

Appellee

OPINION

C. JOHNSON, JUDGE: Appellant, Marion Lewis, was found guilty by a jury in Oklahoma County District Court, Case No. CF 2002-5082, of First Degree Rape (Counts 1-5, 8-12), after former conviction of a felony, in violation of 21 O.S.2001, § 1111; of Forcible Oral Sodomy, after former conviction of a felony, in violation of 21 O.S.2001, § 888 (Counts 6 and 7); and of Indecent or Lewd Acts with a Child under Sixteen, after former conviction of a felony, in violation of 21 O.S.2001, § 1123 (Count 13). Jury trial was held on April 12-15, 2004, before the Honorable Susan W. Bragg, District Judge. The jury set punishment at life without the possibility of parole on Counts 1 – 12, and at twenty (20) years imprisonment on Count 13. Judgment and Sentence was imposed on June 2, 2004, and Judge Bragg ordered the sentences be served consecutively. Thereafter, Mr. Lewis filed this appeal.

Mr. Lewis raises three propositions of error:

1. The trial court failed to adequately warn Mr. Lewis of the dangers of self-representation. Accordingly, Mr. Lewis’s purported waiver of the right to counsel was not knowingly entered and his subsequent convictions violate the Sixth Amendment;

2. The trial court ignored significant information that cast doubt on Mr. Lewis’s competency to stand trial. The error creates an unacceptable possibility that Mr. Lewis was tried while incompetent in violation of his Fourteenth Amendment rights;

3. The trial court’s refusal to grant a continuance deprived Mr. Lewis of the ability to call witnesses and to present a defense. His convictions, accordingly, violate the due process clause of the Fourteenth Amendment.

A recitation of the facts is unnecessary because reversible error occurred when the trial court refused to grant a continuance after allowing Mr. Lewis to proceed pro se. Its failure to afford Mr. Lewis additional time to prepare his case for trial violated his due process right to present a defense. Okla. Const. art. II, § 20; U.S. Const. amend. XIV. The decision to grant or deny a motion for continuance is within the sound discretion of the trial court whose decision will not be disturbed unless an abuse of discretion is shown. Warner v. State, 2001 OK CR 11, ¶ 14, 29 P.3d 569, 575. This Court will examine the entire record to ascertain whether or not the defendant has suffered any prejudice by the trial court’s denial of the request. Waterdown v. State, 1990 OK CR 65, ¶ 5, 798 P.2d 635, 638; Ochoa v. State, 1988 OK CR 41, ¶ 8, 963 P.2d 583, 590.

In this case, Mr. Lewis filed numerous pro se pleadings for many months prior to trial expressing his desire to proceed pro se. He also filed numerous applications for subpoenas. His pro se pleadings were never acted upon or even acknowledged by the trial court until four (4) days prior to trial. At a motion hearing held at that time, the trial court granted Mr. Lewis’s request to proceed pro se. Following the trial court’s decision to allow Mr. Lewis to represent himself, the State filed a Motion in Limine seeking to preclude Mr. Lewis from introducing, mentioning or displaying any evidence regarding any child welfare actions or investigations involving any of the witnesses or introducing documents relating thereto because the same was not made available to the State through discovery. Mr. Lewis responded that he had made every effort to comply with discovery through his pro se pleadings and that he would call a DHS witness to authenticate his documents. Extensive discussion and argument relating to Mr. Lewis’s trial strategy was held. Stand-by counsel noted for the trial court that Mr. Lewis sought to handle his case differently than the way stand-by counsel had prepared the case and thus wanted to introduce documentary evidence and witnesses that stand-by counsel had not prepared to call. Counsel suggested Mr. Lewis be afforded a brief continuance to obtain his witnesses to defend the case the way he wanted to defend it, because the trial court had only four days earlier granted his request to proceed pro se. Following further discussion with Mr. Lewis, the prosecutor, and stand-by counsel, the trial court denied Mr. Lewis’s request for continuance stating its concern about the cost to the State because it had paid for out-of-state witnesses to be present for trial and referencing the fullness of the trial court’s docket.

Under all the facts and circumstances presented here, denial of Mr. Lewis’s request for continuance based upon the fact that the State would be out the cost of its witnesses or based upon the trial court’s docket was improper. Mr. Lewis suffered prejudice from the trial court’s denial of his request for a short continuance to obtain witnesses he believed were vital to his defense; its ruling deprived Mr. Lewis of his right to due process and his right to present a defense.

The record reflects Mr. Lewis filed numerous requests to discharge his retained counsel and to proceed pro se. His pleadings reflected he wanted to proceed pro se because Watson was not defending him in the manner he wanted. With retained counsel, a defendant has made a choice regarding the counsel who will represent him or her. Miller v. State, 2001 OK CR 17, ¶ 48, 29 P.3d 1077, 1087. Here, no one questioned Watson’s competence in defending the case except Mr. Lewis. A defendant who elects to proceed pro se after dismissing his counsel, whom he considers to be ineffective, should also be provided time for preparation. Coleman v. State, 1980 OK CR 75, ¶ 6, 617 P.2d 243, 245. The district court docket, filed here as four volumes of Original Record, shows Mr. Lewis made numerous requests to proceed pro se and his requests, like his applications for subpoenas, were completely ignored by the district court. Had the trial court not ignored his numerous motions and considered any one of his numerous requests to proceed pro se or his Applications for Subpoenas, Mr. Lewis might have been afforded the opportunity to obtain his subpoenas and handle his defense in the way that he wanted.

Here, where Mr. Lewis was granted his right to self-representation only four days prior to trial, he should have been afforded some opportunity to obtain witnesses to sponsor evidence he believed relevant and vital to his defense. The trial court’s abuse of discretion in denying Mr. Lewis’s request for continuance violated his due process right to present a defense. Okla. Const. art. II, § 20; U.S. Const. amend. XIV. When the refusal of a continuance operates to deprive a defendant of a fair trial, a conviction may be reversed. Yeargain v. State, 1975 OK CR 84, ¶ 15, 535 P.2d 693, 696. Although this error affected a constitutional right, it is subject to harmless error analysis. Gore v. State, 2005 OK CR 14, ¶ 30, 119 P.3d 1268, 1277. We cannot say the error was harmless beyond a reasonable doubt. Accordingly, because we find merit to the issue raised in Proposition Three, the remaining propositions of error are rendered moot and need not be addressed.

DECISION

The Judgment and Sentences imposed in Oklahoma County District Court, Case No. CF 2002-5082, are hereby REVERSED AND REMANDED FOR A NEW TRIAL consistent with this Opinion. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeal, Title 22, Ch. 18, App. (2005), the MANDATE is ORDERED issued upon the

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Footnotes:

1. Okla. Stat. tit. 21 § 1111
2. Okla. Stat. tit. 21 § 888
3. Okla. Stat. tit. 21 § 1123
4. Okla. Const. art. II, § 20
5. U.S. Const. amend. XIV
6. Warner v. State, 2001 OK CR 11, ¶ 14, 29 P.3d 569, 575
7. Waterdown v. State, 1990 OK CR 65, ¶ 5, 798 P.2d 635, 638
8. Ochoa v. State, 1988 OK CR 41, ¶ 8, 963 P.2d 583, 590
9. Miller v. State, 2001 OK CR 17, ¶ 48, 29 P.3d 1077, 1087
10. Coleman v. State, 1980 OK CR 75, ¶ 6, 617 P.2d 243, 245
11. Yeargain v. State, 1975 OK CR 84, ¶ 15, 535 P.2d 693, 696
12. Gore v. State, 2005 OK CR 14, ¶ 30, 119 P.3d 1268, 1277
13. Harris v. State, 1992 OK CR 74, ¶ 8, 841 P.2d 597, 600
14. Bryson v. State, 1994 OK CR 32, ¶ 31, 876 P.2d 240, 254

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1111 (2001) - First Degree Rape
• Okla. Stat. tit. 21 § 888 (2001) - Forcible Oral Sodomy
• Okla. Stat. tit. 21 § 1123 (2001) - Indecent or Lewd Acts with a Child under Sixteen
• Okla. Stat. tit. 22 § 584 (2001) - Written Motion for Continuance
• Okla. Stat. tit. 12 § 668 (2001) - Affidavit Requirement for Motion for Continuance

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:

• Warner v. State, 2001 OK CR 11, I 14, 29 P.3d 569, 575
• Waterdown v. State, 1990 OK CR 65, I 5, 798 P.2d 635, 638
• Ochoa v. State, 1988 OK CR 41, I 8, 963 P.2d 583, 590
• Miller v. State, 2001 OK CR 17, I 48, 29 P.3d 1077, 1087
• Coleman v. State, 1980 OK CR 75, I 6, 617 P.2d 243, 245
• Yeargain v. State, 1975 OK CR 84, I 15, 535 P.2d 693, 696
• Gore v. State, 2005 OK CR 14, I 30, 119 P.3d 1268, 1277
• Harris v. State, 1992 OK CR 74, I 8, 841 P.2d 597, 600
• Bryson v. State, 1994 OK CR 32, I 31, 876 P.2d 240, 254