Michael Keith Brock v The State Of Oklahoma

F 2001-1497

Filed: Mar. 12, 2003

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Michael Keith Brock appealed his conviction for multiple drug-related crimes, including Manufacturing Methamphetamine and Trafficking in Illegal Drugs. His conviction and sentence included a total of over 90 years in prison and various fines. Judge Lile, writing for the court, found that most of Brock's arguments against his conviction were not valid, but they agreed to reverse one conviction related to the possession of a precursor substance. Judge Lumpkin and Judge Johnson agreed with the decision, while Judge Chapel concurred with the results.

Decision

Count three of the Judgment and Sentence of the trial court is REVERSED and remanded to the District Court with instructions to DISMISS. The remaining counts of the Judgment and Sentence are AFFIRMED.

Issues

• Was the search and seizure of Michael Brock unreasonable for Fourth Amendment purposes?
• Did bringing the Appellant before the jury panel in jail clothes destroy the presumption of innocence?
• Did the affidavit for SW 2000-27 provide the magistrate with a substantial basis for probable cause?
• Did SW 2000-27 violate Article II, § 30 of the Oklahoma Constitution regarding searches and seizures?
• Was the search of a person not named in the warrant, specifically Michael Brock, illegal?
• Did the pickup in front of the house to be searched fall within the scope of the search warrant?
• Did the Appellant's convictions violate the prohibitions against double jeopardy and double punishment?
• Was there sufficient evidence to show that the Appellant possessed a firearm during the commission of a felony?
• Was the evidence insufficient to prove that the Appellant committed an offense?

Findings

• the search and seizure was reasonable under the circumstances
• Appellant was not prejudiced by wearing jail clothing at trial
• count three must be reversed and remanded with instructions to dismiss
• convictions for the remaining offenses do not violate double jeopardy or double punishment
• the evidence presented was sufficient for a rational trier of fact to find a sufficient nexus between the felonies committed and the firearms possessed
• the evidence presented was sufficient to prove the essential elements of the crimes charged

F 2001-1497

Mar. 12, 2003

Michael Keith Brock

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LILE, VICE PRESIDING JUDGE: Appellant, Michael Brock, was convicted, after a jury trial, of: count one, Manufacturing a Controlled Dangerous Substance (Methamphetamine); count two, Trafficking in Illegal Drugs (Methamphetamine); count three, Possession of a Precursor Substance; count four, Possession of a Firearm in the Commission of a Felony; and count five, Conspiracy to Manufacture a Controlled Dangerous Substance (Methamphetamine) in Logan County District Court, Case No. CF-2000-284, before the Honorable Donald L. Worthington, District Judge. Judge Worthington, in accord with the jury verdict, sentenced Appellant to forty years imprisonment and a $100,000 fine on count one, ten years imprisonment and a $25,000 fine on count two, ten years imprisonment and a $10,000 fine on count three, two years imprisonment on count four, and twenty years imprisonment and a $50,000 fine on count five.

From the Judgment and Sentence of the District Court, Appellant has perfected this appeal. Appellant raises the following issues in support of his appeal:

1. The search and seizure of Michael Brock was unreasonable for Fourth Amendment purposes for it was unnecessarily painful, degrading, prolonged and involved undue invasion of privacy.

2. All persons are entitled to be cloaked with the presumption of innocence until proven guilty and prisoners are no exception to the rule. To bring the Appellant before the jury panel in jail clothes destroys that presumption and constitutes plain error.

3. Affidavit for SW 2000-27 did not provide the magistrate with substantial basis for the determination of probable cause. Mere conclusory statements give the magistrate virtually no basis at all for making judgment regarding probable cause.

4. SW 2000-27 violated Article II, § 30, Oklahoma Constitution—the right of people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause supported by oath or affirmation, describing as particularly as may be the place to be searched and the person or thing to be seized.

5. Search of person not named in warrant. Michael Brock was not named in SW 2000-27. It was illegal to search and seize Michael Brock. Mere propinquity to others suspected of criminal activity does not, without more, give rise to probable cause to search the person.

6. A pickup sitting in front of the house to be searched and not owned by the occupant of the house being searched did not come within the purview of the description herein as an object of search.

7. Appellant’s conviction for Manufacturing Methamphetamine, Trafficking in Illegal Drugs, Possession of a Precursor to Manufacture CDS, and Conspiracy to Deliver, Manufacture, Possess CDS, violate the prohibitions against double jeopardy and double punishment.

8. There was no evidence introduced at the jury trial to show that Appellant was in possession of a firearm during the commission of a felony. There was no showing of a nexus between the guns and drug-related charges.

9. The evidence was insufficient to prove that Appellant committed an offense.

After thorough consideration of the entire record before us on appeal including the original record, transcripts, briefs and exhibits of the parties, we have determined that Appellant’s conviction and sentence for count three should be reversed and the convictions and sentences for the remaining counts should be affirmed.

In reaching our decision we find, in propositions one, three, four, five, and six that Appellant has failed to properly preserve these issues by failing to make a contemporaneous objection to evidence obtained and introduced at trial. In our review of these issues for plain error, we find that the seizure of Appellant was reasonable under the circumstances and that the search and seizure was valid under our jurisprudence.

In proposition two, we find that Appellant was not prejudiced by wearing jail clothing at trial.

In proposition seven, we find that convictions for Possession of a Precursor Substance (ephedrine) and Manufacturing a Controlled Dangerous Substance (Methamphetamine) violate the provisions of 22 O.S.2001, § 11. Therefore, count three must be reversed and remanded with instructions to dismiss. Convictions for the remaining offenses do not violate the provisions of double jeopardy or double punishment.

In proposition eight, we find that the evidence presented, when viewed in a light most favorable to the State, was sufficient for any rational trier of fact to find that there was a sufficient nexus between the felonies committed and the firearms possessed.

In proposition nine, we find that the evidence presented, when viewed in a light most favorable to the State, was sufficient for any rational trier of fact to find the essential elements of the crimes charged.

DECISION

Count three of the Judgment and Sentence of the trial court is REVERSED and remanded to the District Court with instructions to DISMISS. The remaining counts of the Judgment and Sentence are AFFIRMED.

APPEARANCES AT TRIAL

F. E. McANALLY
211 N. PERKINS ROAD
STILLWATER, OK 74075
ATTORNEY FOR DEFENDANT

APPEARANCES ON APPEAL

EDDY VALDEZ
ASSISTANT DISTRICT ATTORNEY
LOGAN COUNTY COURTHOUSE
GUTHRIE, OK 73044
ATTORNEY FOR THE STATE

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Footnotes:

1. 1 Brock was tried conjointly with co-defendant Alton Raymond Ames (See Court of Criminal Appeals Case No. F 2001-1498).
2. 2 The punishments for counts one and three were ordered to run consecutively. The punishments for counts two, four and five are were ordered to run concurrently to each other and concurrently to counts one and three.
3. Luna v. State, 1992 OK CR 26, ¶ 5, 829 P.2d 69, 71.
4. Moore v. State, 1990 OK CR 5, ¶ 33, 788 P.2d 387, 396; Beeler v. State, 1984 OK CR 55, ¶¶ 17-19, 677 P.2d 653, 657-58; Davis v. State, 1990 OK CR 20, ¶ 23, 792 P.2d 76, 84.
5. Washington v. State, 1977 OK CR 240, ¶ 15, 568 P.2d 301, 306.
6. Davis v. State, 1999 OK CR 48, ¶¶ 4, 12-14, 993 P.2d 124, 125-27.
7. Pebworth v. State, 1993 OK CR 28, 855 P.2d 605 and Ott v. State, 1998 OK CR 51, 967 P.2d 472.
8. Spuehler v. State, 1985 OK CR 132, ¶ 7, 709 P.2d 202, 203-04.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.8 (2011) - Manufacturing a Controlled Dangerous Substance
• Okla. Stat. tit. 63 § 2-401 (2011) - Trafficking in Illegal Drugs
• Okla. Stat. tit. 63 § 2-503 (2011) - Possession of a Precursor Substance
• Okla. Stat. tit. 21 § 1287 (2011) - Possession of a Firearm in the Commission of a Felony
• Okla. Stat. tit. 21 § 421 (2011) - Conspiracy
• Okla. Stat. tit. 22 § 11 (2001) - Double Jeopardy
• Oklahoma Constitution, Article II, § 30 - Right to Privacy and Protection Against Unreasonable Search and Seizure

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:

• Luna v. State, 1992 OK CR 26, I 5, 829 P.2d 69, 71
• Moore v. State, 1990 OK CR 5, I 33, 788 P.2d 387, 396
• Beeler v. State, 1984 OK CR 55, I 17-19, 677 P.2d 653, 657-58
• Davis v. State, 1990 OK CR 20, I 23, 792 P.2d 76, 84
• Washington v. State, 1977 OK CR 240, I 15, 568 P.2d 301, 306
• Davis v. State, 1999 OK CR 48, I 4, 12-14, 993 P.2d 124, 125-27
• Pebworth v. State, 1993 OK CR 28, 855 P.2d 605
• Ott v. State, 1998 OK CR 51, 967 P.2d 472
• Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-04