Montain Lamont Maxwell v The State Of Oklahoma
F-2001-1514
Filed: Mar. 20, 2003
Not for publication
Prevailing Party: The State Of Oklahoma
Summary
Montain Lamont Maxwell appealed his conviction for Robbery with Firearms. His conviction and sentence were reversed, meaning he will get a new trial. Judge Johnson dissented. In this case, Montain Lamont Maxwell was found guilty of robbing someone with a gun, and the jury gave him a 20-year prison sentence. He argued that the prosecutor made mistakes during the trial, including bringing up his right to stay silent. The court agreed that these mistakes, along with issues with how the trial was handled, were serious enough to affect the fairness of the trial. They decided he did not get a fair chance to defend himself and ordered a new trial.
Decision
The judgment and sentence are hereby REVERSED and the matter is REMANDED for a new trial consistent with this Opinion.
Issues
- Was there improper commentary by the prosecution on Appellant's right to remain silent at trial?
- Did Appellant's conviction rely on unreliable identification that warranted reversal?
- Should the trial court have given a cautionary instruction on eyewitness identification?
- Was the evidence sufficient to support Appellant's conviction for Robbery with a Dangerous Weapon?
- Did Appellant receive ineffective assistance of counsel in violation of his Sixth and Fourteenth Amendment rights?
Findings
- the court erred
- the evidence was not sufficient
- the court erred
- the evidence was insufficient to support Appellant's conviction for Robbery with a Dangerous Weapon
- the court erred
F-2001-1514
Mar. 20, 2003
Montain Lamont Maxwell
Appellantv
The State Of Oklahoma
Appellee
v
The State Of Oklahoma
Appellee
SUMMARY OPINION
LUMPKIN, J.: Appellant, Montain Lamont Maxwell, was tried by jury in the District Court of Oklahoma County, Case Number CF-2000-1430, and convicted of Robbery with Firearms, in violation of 21 O.S.1991, § 801, after former conviction of two or more felonies. The jury set punishment at twenty (20) years imprisonment, and the trial judge sentenced Appellant accordingly. Appellant now appeals his convictions and sentences. Appellant raises the following propositions of error in this appeal:
I. The prosecution improperly commented upon Appellant’s right to remain silent at trial, in violation of the rights guaranteed by the Fifth Amendment to the U.S. Constitution and corresponding provisions of the Oklahoma Constitution;
II. Appellant’s conviction is based upon unreliable identification and should be reversed;
III. Appellant’s conviction should be reversed because the trial court erred by failing to give a cautionary instruction on eyewitness identification;
IV. The evidence was insufficient to support Appellant’s conviction for Robbery with a Dangerous Weapon; and
V. Appellant was denied his Sixth and Fourteenth Amendment Right to effective assistance of counsel.
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 reversal is required. With respect to propositions one, four, and five, we find the prosecutor asked a series of improper impeachment questions during cross-examination and made improper closing arguments concerning Appellant’s post-arrest silence in violation of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 48 L.Ed.2d 91 (1976). It is a violation for a state prosecutor to seek to impeach a defendant’s exculpatory story, told for the first time at trial, by cross-examining the defendant about his failure to have told the story after receiving Miranda warnings at the time of his arrest. 426 U.S. at 611, 96 S.Ct. at 2241. In such circumstances, it is fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial. 426 U.S. at 618, 96 S.Ct at 2245. Furthermore, the prosecutor asked improper questions to a police officer during the State’s case-in-chief regarding Appellant’s pre-arrest silence, when he was being investigated for the instant crime. These questions— which concerned Appellant’s refusal to speak to police, his hiring of an attorney, his attorney’s instruction to not speak to police, and Appellant’s failure to bring forth evidence when facing accusations—cannot fairly be considered impeachment, despite the fact Appellant had declared his intention to later testify. While the improper questions may or may not amount to Fifth Amendment violations, the evidence sought was not relevant. See Farley v. State, 717 P.2d 111, 113 (Okl.Cr.1986 (finding evidence of pre-arrest silence does not increase the probability that a defendant’s testimony is false and is thus irrelevant). Doyle errors can be harmless. Brecht v. Abrahamson, 507 U.S. 619, 627-32, 113 S.Ct. 1710, 1716-19, 123 L.Ed.2d 353 (1993); Jenkins v. Anderson, 447 U.S. 231, 239, 100 S.Ct. 2124, 2129, 65 L.Ed.2d 86 (1980). But here the evidence came down to a swearing match between Appellant and the victim, both of whom had credibility issues. The jury struggled with its decision, sending back no less than seven notes concerning its difficulty reaching a decision. Reviewing the evidence in its entirety, we cannot say the Doyle errors and other improper questions addressed above were harmless. Simpson v. State, 876 P.2d 690, 701-02 (Okl.Cr.1994). The violation of Appellant’s right to remain silent and questions concerning his pre-arrest and post-arrest silence may have impacted the jury by suggesting Appellant was trying to hide something or had some sort of duty to come forward with evidence. Defense counsel failed to lodge any objections to these improper questions and arguments, however, including the following closing argument by the Assistant District Attorney:
Do you think you’re going to spend two years with that secret, protecting a stranger when all you had to do was tell your lawyer, hey, this other guy did it? Little Man. You’re not going to do that. That’s again where common sense comes into play. People who are innocent tell you SO. They protest loudly. They protest longly (sic) and they don’t give up. They don’t patiently wait til they’re facing jury trial to say, hey, I want to come clean. I want to tell you the truth about this. This doesn’t happen, ladies and gentlemen.
Failure to object, of course, waives all but plain error. Simpson, 876 P.2d at 693. While plain error arguably exists, we find defense counsel’s complete failure to object to any of these incidents amounted to ineffective assistance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Propositions two and three, however, are without merit. Young v. State, 12 P.3d 20, 34 (Okl.Cr.2000); Loman v. State, 806 P.2d 663, 668 (Okl.Cr.1991).
DECISION
The judgment and sentence are hereby REVERSED and the matter is REMANDED for a new trial consistent with this Opinion.
Footnotes:
- Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 48 L.Ed.2d 91 (1976).
- Farley v. State, 717 P.2d 111, 113 (Okl.Cr.1986).
- Brecht v. Abrahamson, 507 U.S. 619, 627-32, 113 S.Ct. 1710, 1716-19, 123 L.Ed.2d 353 (1993).
- Jenkins v. Anderson, 447 U.S. 231, 239, 100 S.Ct. 2124, 2129, 65 L.Ed.2d 86 (1980).
- Simpson v. State, 876 P.2d 690, 701-02 (Okl.Cr.1994).
- Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).
- Young v. State, 12 P.3d 20, 34 (Okl.Cr.2000).
- Loman v. State, 806 P.2d 663, 668 (Okl.Cr.1991).
- Okla. Stat. tit. 21 § 801.
Oklahoma Statutes citations:
- Okla. Stat. tit. 21 § 801 (1991) - Robbery with Firearms
- Okla. Stat. tit. 21 § 701.8 (2011) - Sentencing
- Okla. Stat. tit. 22 § 1226 (2011) - Post-Arrest Silence
- Okla. Stat. tit. 22 § 1123 (2011) - Impeachment
- Okla. Stat. tit. 22 § 1089 (2011) - Ineffective Assistance of Counsel
Oklahoma Administrative Rules citations:
No Oklahoma administrative rules found.
U.S. Code citations:
- Fifth Amendment - (2012)
- Sixth Amendment - (2012)
- Fourteenth Amendment - (2012)
- Doyle v. Ohio - 426 U.S. 610 (1976)
- Brecht v. Abrahamson - 507 U.S. 619 (1993)
- Jenkins v. Anderson - 447 U.S. 231 (1980)
- Strickland v. Washington - 466 U.S. 668 (1984)
Other citations:
No other rule citations found.
Case citations:
- Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 48 L.Ed.2d 91 (1976)
- Farley v. State, 717 P.2d 111 (Okl.Cr. 1986)
- Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)
- Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980)
- Simpson v. State, 876 P.2d 690 (Okl.Cr. 1994)
- Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)
- Young v. State, 12 P.3d 20 (Okl.Cr. 2000)
- Loman v. State, 806 P.2d 663 (Okl.Cr. 1991)