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F-2003-1145

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James Lee Wiggins v The State Of Oklahoma

F-2003-1145

Filed: Mar. 18, 2004

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

James Lee Wiggins appealed his conviction for Knowingly Concealing Stolen Property. His conviction and sentence were originally ten years in prison. Judge Lumpkin dissented regarding the modification of his sentence. In the case, Wiggins was found guilty of hiding stolen items. During his trial, he and the prosecutor discussed his past crimes, which influenced the jury's decision. Wiggins argued that there were mistakes made during his trial, including unfair evidence admission, misleading statements, and improper questions from the prosecutor. The court decided that some mistakes did require changing Wiggins' sentence from ten years to eight years. They also ordered that Wiggins should get credit for the time he had already served in jail. Judge Lumpkin agreed that Wiggins should keep his conviction but did not believe the sentence needed to be changed.

Decision

The Judgment of the District Court is AFFIRMED. The Sentence is MODIFIED to Eight (8) years imprisonment. The case is REMANDED for correction of the Judgment and Sentence document through an Order nunc pro tunc to reflect that Wiggins should receive credit for time served.

Issues

  • Was there prejudicial error in the admission of other crimes evidence that deprived Wiggins of a fundamentally fair trial?
  • Did irrelevant, improper, and misleading evidence and argument result in an inflated sentence?
  • Did prosecutorial misconduct deprive Wiggins of a fair trial and result in an excessive sentence?
  • Should the Court remand Wiggins's case to correct the judgment and sentence to reflect credit for time served?
  • Did the cumulative effect of the errors deprive Wiggins of a fair trial?

Findings

  • The court erred in admitting evidence of other crimes but it did not affect the jury's verdict and does not require relief.
  • The prosecutor did not err in questioning Wiggins about his prior offenses when he took the stand.
  • The prosecutor erred in questioning Wiggins about the time he actually served in prison for his prior offenses, which requires modification of the sentence.
  • The trial court's oral order for credit for time served was not included in the Judgment and Sentence and should be corrected by an Order nunc pro tunc.
  • No accumulated error requires relief.

F-2003-1145

Mar. 18, 2004

James Lee Wiggins

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

CHAPEL, JUDGE: James Lee Wiggins was tried by jury and convicted of Knowingly Concealing Stolen Property in violation of 21 O.S.2001, § 1713, after former conviction of two or more felonies, in the District Court of Choctaw County, Case No. CF-2003-88. In accordance with the jury’s recommendation the Honorable Don Ed Payne sentenced Wiggins to ten (10) years imprisonment. Wiggins appeals from this conviction and sentence.

Wiggins raises five propositions of error in support of his appeal:
I. Admission of other crimes evidence prejudiced the jury, deprived Wiggins of a fundamentally fair trial, and warrants modification of the sentence;
II. Irrelevant, improper, and misleading evidence and argument resulted in an inflated sentence;
III. Prosecutorial misconduct deprived Wiggins of a fair trial and resulted in an excessive sentence;
IV. This Court should remand Wiggins’s case with instructions to correct the judgment and sentence to conform to the trial court’s oral order that Wiggins receive credit for time served by an order nunc pro tunc; and
V. The cumulative effect of all the errors addressed above deprived Wiggins of a fair trial.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, exhibits and briefs, we find that modification is required by the law and evidence. We find in Proposition I that error in admitting evidence Wiggins had previously sold property not belonging to him did not affect the jury’s verdict and does not require relief. We find in Proposition II that the prosecutor did not err in questioning Wiggins about his prior offenses when he took the stand. We further find that the prosecutor erred in questioning Wiggins about the time he actually served in prison for his prior offenses, and the time he was on probation or parole. During deliberations, jurors asked what percentage of time Wiggins would spend in prison. The record supports a conclusion that the improper introduction of evidence was not res gestae, as it was not connected with the charged offense and did not rise incidentally from proof of that offense. It appeared designed to improperly suggest that Wiggins habitually sold property belonging to others.

Evidence that Wiggins filed a police report did fall within res gestae. The inference that Wiggins filed a false police report was only possible with the addition of the erroneously admitted evidence. Bean v. State, 1964 OK CR 59, 392 P.2d 753, does not apply because it involved an attempt by the State to introduce details of prior offenses while proving the allegations of prior convictions for sentence enhancement. Wiggins stipulated to his prior convictions and testified about them on direct examination. We note that the State failed to respond to this claim.

This Court has long held that a prosecutor should not call the possibility of probation or parole to the jury’s attention. We recently held [a]ny instruction attempted by the judicial branch, about future actions of the executive or legislative branch in these areas [parole and assignment to prisons], is doomed to inaccuracy. There is simply no clear answer to this type of question, and for that reason, none should be attempted. This error was not cured by instructions to the jury. We decline to find counsel ineffective on any claim raised in Proposition II.

We find in Proposition III that any error in closing argument does not require relief. However, the error raised in Proposition II requires Wiggins’s sentence be modified. We find in Proposition IV that the trial court’s unequivocal oral order that Wiggins be given credit on his sentence for time served was not included in the Judgment and Sentence. The Judgment and Sentence shall be corrected by an Order nunc pro tunc to reflect this clerical error. We find in Proposition V that no accumulated error requires relief.

Decision
The Judgment of the District Court is AFFIRMED. The Sentence is MODIFIED to Eight (8) years imprisonment. The case is REMANDED for correction of the Judgment and Sentence document through an Order nunc pro tunc to reflect that Wiggins should receive credit for time served.

OPINION BY: CHAPEL, J.
JOHNSON, P.J.: CONCUR
LILE, V.P.J.: CONCUR IN RESULTS
LUMPKIN, J.: CONCUR IN PART/DISSENT IN PART
STRUBHAR, J.: CONCUR

LUMPKIN, JUDGE: CONCUR IN PART/DISSENT IN PART
I agree in the affirmance of the conviction in this case. However, I dissent to the modification of the sentence. I disagree that the record supports a conclusion that pardon and parole issues sparked juror concern about the amount of time Appellant would actually spend in prison and therefore infected the sentencing deliberations. Appellant testified about his prior convictions. When asked on direct examination if he had completed his sentences on them, he replied, served full time on them. On cross-examination, the prosecutor asked how much time Appellant served on each of the prior convictions. No defense objection was raised to this line of questioning; therefore, I review only for plain error. Any error in the prosecutor’s line of inquiry was invited by defense counsel’s direct examination. Further, the court’s response to the jury’s note deflected any concern that the jury may have based their recommendation on evidence that Appellant had been paroled in Illinois. The court directed the jury to Instruction No. 19, which set out the punishment and informed the jury they were not to speculate about what percentage of a sentence would be served. Therefore, any error in the prosecutor’s comments was rendered harmless. Accordingly, modification of the sentence is not warranted.

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Footnotes:

  1. 20 O.S.2001, § 3001.1; Rogers U. State, 1995 OK CR 8, 890 P.2d 959, 971, cert. denied, 516 U.S. 919, 116 S.Ct. 312, 133 L.Ed.2d 215.
  2. 12 O.S.2001, §§ 2403, 2404(B; Burks v. State, 1979 OK CR 10, 594 P.2d 771, 772, overruled in part on other grounds Jones U. State, 1989 OK CR 7, 772 P.2d 922.
  3. Bean v. State, 1964 OK CR 59, 392 P.2d 753.
  4. Harris U. State, 2004 OK CR 1, 84 P.3d 731, 757.
  5. Mayes v. State, 1994 OK CR 44, 887 P.2d 1288, 1318, cert. denied, 513 U.S. 1194, 115 S.Ct. 1260, 131 L.Ed.2d 140 (1995); Suits U. State, 1973 OK CR 158, 507 P.2d 1260, 1261; Tucker v. State, 1972 OK CR 170, 499 P.2d 458, 461; Cox v. State, 1971 OK CR 486, 491 P.2d 357, 359; French U. State, 1964 OK CR 125, 397 P.2d 909.
  6. Johnson v. State, 2004 OK CR 25, 95 P.3d 1099.
  7. Strickland U. Washington, 466 U.S. 668, 104 S.Ct. 2052, 1064, 80 L.Ed.2d 674 (1984).
  8. Hooks v. State, 2001 OK CR 1, 19 P.3d 294, 314, cert. denied, 534 U.S. 963, 122 S.Ct. 371, 151 L.Ed.2d 282.
  9. Ward U. State, 1981 OK CR 102, 633 P.2d 757, 759-60.
  10. Starr U. State, 1979 OK CR 126, 602 P.2d 1046, 1049.
  11. Satterlee U. State, 1976 OK CR 88, 549 P.2d 104, 111.
  12. Carbray v. State, 1976 OK CR 15, 545 P.2d 813, 816, cert. denied, 498 U.S. 1072, 111 S.Ct. 796, 112 L.Ed.2d 858 (1991).
  13. Bell U. State, 1962 OK CR 160, 381 P.2d 167, 173-74.
  14. Demry v. State, 1999 OK CR 31, 986 P.2d 1145, 1148-49.
  15. Alverson U. State, 1999 OK CR 21, 983 P.2d 498, 520, cert. denied, 528 U.S. 1089, 120 S.Ct. 820, 145 L.Ed.2d 690 (2000).

Oklahoma Statutes citations:

  • Okla. Stat. tit. 21 § 1713 (2001) - Knowingly Concealing Stolen Property
  • Okla. Stat. tit. 20 § 3001.1 (2001) - Res Gestae Evidence
  • Okla. Stat. tit. 12 § 2403 (2001) - Exclusion of Relevant Evidence on Grounds of Prejudice
  • Okla. Stat. tit. 12 § 2404 (2001) - Character Evidence; Crimes; Exceptions
  • Okla. Stat. tit. 21 § 701.8 (2011) - Sentence Modification
  • Okla. Stat. tit. 21 § 701.3 (2011) - Effect of Prior Convictions on Sentencing

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

  • 17 U.S.C. § 107 - Limitations on exclusive rights: Fair use
  • 46 U.S.C. § 61309 - Notification of certain passenger vessel operations

Other citations:

No other rule citations found.

Case citations:

  • Rogers v. State, 1995 OK CR 8, 890 P.2d 959, 971, cert. denied, 516 U.S. 919, 116 S.Ct. 312, 133 L.Ed.2d 215.
  • Neill v. State, 1994 OK CR 69, 896 P.2d 537, 551, cert. denied, 516 U.S. 1080, 116 S.Ct. 791, 133 L.Ed.2d 740.
  • Lalli v. State, 1994 OK CR 15, 870 P.2d 175, 177.
  • Burks v. State, 1979 OK CR 10, 594 P.2d 771, 772, overruled in part on other grounds Jones v. State, 1989 OK CR 7, 772 P.2d 922.
  • Dean v. State, 1983 OK CR 148, 671 P.2d 60, 61.
  • Harris v. State, 2004 OK CR 1, 84 P.3d 731, 757.
  • Mayes v. State, 1994 OK CR 44, 887 P.2d 1288, 1318, cert. denied, 513 U.S. 1194, 115 S.Ct. 1260, 131 L.Ed.2d 140.
  • Suits v. State, 1973 OK CR 158, 507 P.2d 1260, 1261.
  • Tucker v. State, 1972 OK CR 170, 499 P.2d 458, 461.
  • Cox v. State, 1971 OK CR 486, 491 P.2d 357, 359.
  • French v. State, 1964 OK CR 125, 397 P.2d 909.
  • Johnson v. State, 2004 OK CR 25, 95 P.3d 1099.
  • Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
  • Hooks v. State, 2001 OK CR 1, 19 P.3d 294, 314, cert. denied, 534 U.S. 963, 122 S.Ct. 371, 151 L.Ed.2d 282.
  • Ward v. State, 1981 OK CR 102, 633 P.2d 757, 759-60.
  • Starr v. State, 1979 OK CR 126, 602 P.2d 1046, 1049.
  • Satterlee v. State, 1976 OK CR 88, 549 P.2d 104, 111.
  • Carbray v. State, 1976 OK CR 15, 545 P.2d 813, 816, cert. denied, 498 U.S. 1072, 111 S.Ct. 796, 112 L.Ed.2d 858 (1991).
  • Bell v. State, 1962 OK CR 160, 381 P.2d 167, 173-74.
  • Demry v. State, 1999 OK CR 31, 986 P.2d 1145, 1148-49.
  • Alverson v. State, 1999 OK CR 21, 983 P.2d 498, 520, cert. denied, 528 U.S. 1089, 120 S.Ct. 820, 145 L.Ed.2d 690 (2000).
  • Simpson v. State, 876 P.2d 690, 693 (Okl.Cr.1994).
  • Bland v. State, 4 P.3d 702, 729-730 (Okl.Cr.2000).

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