Michael Gerald Turner v The State of Oklahoma

F-2001-1243

Filed: Dec. 20, 2002

Not for publication

Prevailing Party: The State of Oklahoma

Summary

Michael Gerald Turner appealed his conviction for multiple crimes, including Assault and Battery on a Police Officer and DUI. His conviction and sentence included many charges resulting in a total of over 25 years in prison and various fines. Judge Strubhar dissented on some points. In the end, the court agreed with some of Turner’s arguments, especially about admitting blood test results taken too late, which led to reversing his DUI convictions. They said it was unfair to charge him with both DUI and Personal Injury DUI for the same incident. They confirmed other convictions, like Assault and Battery on a Police Officer.

Decision

In regard to Case No. CF-2001-32, Turner's Convictions and Sentences for Assault and Battery Upon a Police Officer, Unauthorized Use of a Vehicle, Possession of a Controlled Substance, Driving While Impaired, and Attempted Escape (Counts I, III, IV, V, and VII, respectively) are AFFIRMED. Turner's convictions for Personal Injury DUI and DUI (Counts II and VI, respectively) are REVERSED and DISMISSED. In addition, this case is REMANDED for correction of Count V on the Judgment and Sentence document, through an order nunc pro tunc by the district court. In regard to Case No. CM-2001-29, the Judgment and Sentence of the District Court is AFFIRMED in its entirety.

Issues

• was the admission of blood test results permissible given that the sample was drawn more than two hours after the arrest?
• did the State violate double jeopardy by charging Turner with multiple crimes arising from a single act?
• did the trial court err by allowing the State to use a prior DUI conviction from Massachusetts to enhance Turner's charges?
• did the numerous errors in the case deny Turner due process of law?

Findings

• the court erred by admitting blood test results that were drawn more than two hours after the arrest
• the conviction for DUI must be reversed and dismissed due to double jeopardy
• the charges of Unauthorized Use of a Vehicle and Attempted Escape do not violate double jeopardy
• the Massachusetts conviction was properly used to enhance the DUI charge
• no pervasive errors existed to deny due process
• Turner's convictions and sentences for Assault and Battery Upon a Police Officer, Unauthorized Use of a Vehicle, Possession of a Controlled Substance, Driving While Impaired, and Attempted Escape are affirmed
• Turner's convictions for Personal Injury DUI and DUI are reversed and dismissed
• the Judgment and Sentence in Case No. CM-2001-29 is affirmed in its entirety

F-2001-1243

Dec. 20, 2002

Michael Gerald Turner

Appellant

v

The State of Oklahoma

Appellee

SUMMARY OPINION

CHAPEL, JUDGE: Michael Gerald Turner was tried by jury and convicted of Assault and Battery Upon a Police Officer, under 21 O.S.Supp.2000, § 649(B) (Count I); Being Involved in a Personal Injury Accident While DUI, under 47 O.S.2001, § 11-904 (Count II); Unauthorized Use of a Vehicle, under 47 O.S.2001, § 4-102 (Count III); Possession of a Controlled Substance (Methamphetamine), under 63 O.S.2001, § 2-402 (Count IV); Driving While Impaired, under 47 O.S.2001, § 761 (Count V); Driving Under the Influence of Intoxicating Substances (Drugs), under 47 O.S.Supp.2000, § 11-902 (Count VI); and Attempted Escape from Arrest or Detention, under 21 O.S.2001, § 444 (Count VII), in Creek County, Case No. CF-2001-32.¹

In Case No. CM-2001-29, which arose from the same incident and was consolidated with CF-2001-32 for trial, Turner was tried by jury and convicted of Obstructing an Officer, under 21 O.S.2001, 540 (Count I); and Transporting an Open Bottle or Container of Liquid, under 37 O.S.Supp.2000, § 537(A)(7).

In accordance with the jury’s recommendation, the Honorable Donald D. Thompson sentenced Turner, in CF-2001-32, to four (4) years imprisonment and a fine of $500 on Count I; five (5) years imprisonment and a fine of $3,000 on Count II; five (5) years imprisonment and a fine of $2,500 on Count III; five (5) years imprisonment and a fine of $10,000 on Count IV; six (6) months imprisonment and a fine of $500 on Count V; four (4) years imprisonment and a fine of $2,000 on Count VI; and two (2) years imprisonment and a fine of $1,000 on Count VII. In accordance with the jury’s recommendation in CM-2001-29, the Honorable Donald D. Thompson sentenced Turner to six (6) months imprisonment and a fine of $500 on Count I; and a fine of $50 on Count II. All of the sentences were ordered to be served consecutively. Turner appeals his convictions and his sentences.

Turner raises the following proposition of error:

I. Results of an involuntary blood test are admissible only if the blood sample is drawn within two hours of the arrest pursuant to 47 O.S.2001, § 756. The trial court committed reversible error by admitting blood test results over defense objection after the State conceded the blood was drawn more than two hours after the foundation arrest; without the blood test results, the evidence is not sufficient to prove the Defendant was under the influence of drugs.

II. The State violated 21 O.S. § 11 and the Defendant’s state and federal constitutional right to be free from double jeopardy by charging him with multiple crimes arising out of a single act.

III. The trial court committed reversible error by allowing the State to use a DUI conviction from the State of Massachusetts in violation of 47 O.S.Supp. 2000 § 11-902C as a predicate to enhance from misdemeanors to felonies the charges of Actual Physical Control, DUI, DUI with Personal Injury, and Attempted Escape.

IV. The numerous and pervasive errors present in this case denied the Defendant due process of law as guaranteed by the state and federal constitutions and require reversal and remand for new trial.

After thoroughly considering the entire record before us on appeal, including the original record, transcripts, briefs, and exhibits of the parties, we find, in regard to Case No. CF-2001-32, that Turner’s convictions and sentences for Assault and Battery Upon a Police Officer, Unauthorized Use of a Vehicle, Possession of a Controlled Substance, Driving While Impaired, and Attempted Escape (Counts I, III, IV, V, and VII) should be affirmed. We find, however, that Turner’s convictions for Personal Injury DUI and DUI (Counts II and VI) should be reversed and dismissed. We further find that the Judgment and Sentence in Case No. CM-2001-29 should be affirmed.

Regarding Proposition I, this Court finds that the blood test results should not have been admitted at Turner’s trial, because the blood test was done more than two hours after Turner was arrested. Furthermore, because Turner’s jury rejected the APC charge on Count V, this Court cannot conclude that without these blood test results, the same jury would have found adequate evidence of intoxication (rather than simply impairment) within the other evidence presented at trial. Hence we must reverse and dismiss Turner’s convictions for Personal Injury DUI and DUI.

Regarding Proposition II, the State correctly concedes that it violates double jeopardy to convict Turner of both Personal Injury DUI and DUI for his actions in driving the same vehicle. Hence in addition to the error addressed in Proposition I, Turner’s conviction for DUI must be reversed and dismissed on the basis of double jeopardy as well.

This Court further finds, however, that it does not violate either double jeopardy or 21 O.S. § 11 to convict Turner of both Unauthorized Use of a Vehicle and Attempted Escape.

Regarding Proposition III, Turner pled guilty in Massachusetts to Operating a Motor Vehicle while Under the Influence of Alcohol, not to any particular blood alcohol level. Turner’s Massachusetts conviction was based upon this guilty plea, and Turner’s Oklahoma charges were properly enhanced on the basis of this prior conviction. In addition, Turner was properly charged and convicted of felony Attempted Escape.

Regarding Proposition IV, this Court has already addressed and resolved Turner’s earlier claims. Turner cannot show prejudice in relation to the nine misdemeanor drug possession counts upon which the jury acquitted. And Turner has not shown error or bias within the trial court’s actions during the testimony of Trooper Vern Wilson.

Decision

In regard to Case No. CF-2001-32, Turner’s Convictions and Sentences for Assault and Battery Upon a Police Officer, Unauthorized Use of a Vehicle, Possession of a Controlled Substance, Driving While Impaired, and Attempted Escape (Counts I, III, IV, V, and VII, respectively) are AFFIRMED. Turner’s convictions for Personal Injury DUI and DUI (Counts II and VI, respectively) are REVERSED and DISMISSED. In addition, this case is REMANDED for correction of Count V on the Judgment and Sentence document, through an order nunc pro tunc by the district court, in accordance with this opinion.

In regard to Case No. CM-2001-29, the Judgment and Sentence of the District Court is AFFIRMED in its entirety.

ATTORNEYS AT TRIAL

JESSICA RAINEY
OKLAHOMA INDIGENT DEFENSE
610 SOUTH HIAWATHA
SAPULPA, OKLAHOMA 74066

ATTORNEY FOR DEFENDANT

ATTORNEYS ON APPEAL

GAIL L. WETTSTEIN
GAIL L. WETTSTEIN, P.C.
3035 NW 63RD STREET, SUITE 230N
OKLAHOMA CITY, OKLAHOMA 73116

ATTORNEY FOR APPELLANT

MAX COOK
DISTRICT ATTORNEY

W.A. DREW EDMONDSON
CAROL ISKI
ATTORNEY GENERAL OF OKLAHOMA
ASSISTANT DISTRICT ATTORNEY

WILLIAM R. HOLMES
CREEK COUNTY COURTHOUSE
222 EAST DEWEY
SAPULPA, OKLAHOMA 74066

ATTORNEYS FOR THE STATE

OPINION BY: CHAPEL, J.

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

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Footnotes:

1. The Judgment and Sentence in CF-2001-32 inaccurately states that Turner was convicted of Actual Physical Control ("APC"), under 47 O.S. § 11-902, in Count V.
2. Turner was acquitted on Counts III, IV, V, VI, VII, VIII, IX, X, and XI in CM 2001-29, which were for Unlawful Possession of a Controlled Drug, for the possession of testosterone enanthate, nandrolone decanoate, testosterone cypinoate, methandrostenolone, methandriol dipropionate, temazepam, diazepam, dihydrocodeinone, and zolpidem, respectively (all Schedule III and IV).
3. To be admissible in a proceeding, the evidence must first be qualified by establishing that the test was administered to the person within two (2) hours after the arrest of the person; see also Warden U. State, 1972 OK CR 41, 499 P.2d 937, 938-39; Holding v. State, 1984 OK CR 77, 685 P.2d 403, 404.
4. See U.S. Const. Amend. V; Okla. Const. Art. II, § 21; Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed.2d 306; Hale v. State, 1988 OK CR 24, 750 P.2d 130, 137, cert. denied, 488 U.S. 878, 109 S.Ct. 195, 102 L.Ed.2d 164.
5. While all the crimes committed by Appellant were directed towards his goal of escape, each crime other than the attempted escape requires proof of more than the elements of escape.
6. Turner's Massachusetts conviction was based upon this guilty plea, and Turner's Oklahoma charges were properly enhanced on the basis of this prior conviction.
7. See Mass. Gen. Laws. ch. 90, § 24.
8. It is irrelevant that the arresting officer and the prosecutor who filed the original information were not initially aware of Turner's prior conviction-which made his original APC charge a felony, rather than a misdemeanor. See 47 O.S.Supp.2000, § 11-902 and 21 O.S.2001, § 444(C).

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 649(B) - Assault and Battery Upon a Police Officer
• Okla. Stat. tit. 47 § 11-904 - Being Involved in a Personal Injury Accident While DUI
• Okla. Stat. tit. 47 § 4-102 - Unauthorized Use of a Vehicle
• Okla. Stat. tit. 63 § 2-402 - Possession of a Controlled Substance (Methamphetamine)
• Okla. Stat. tit. 47 § 761 - Driving While Impaired
• Okla. Stat. tit. 47 § 11-902 - Driving Under the Influence of Intoxicating Substances (Drugs)
• Okla. Stat. tit. 21 § 444 - Attempted Escape from Arrest or Detention
• Okla. Stat. tit. 47 § 756 - Blood Test Admissibility
• Okla. Stat. tit. 21 § 11 - Double Jeopardy
• Okla. Stat. tit. 47 § 11-902C - Evidence of Prior DUI Conviction

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:

• Bramlett v. State, 2018 OK CR 19, I 36, 422 P.3d 788, 799-800
• Warden U. State, 1972 OK CR 41, 499 P.2d 937, 938-39
• Holding v. State, 1984 OK CR 77, 685 P.2d 403, 404
• Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed.2d 306
• Hale v. State, 1988 OK CR 24, 750 P.2d 130, 137
• Turner v. State, 1990 OK CR 6, 786 P.2d 1251, 1253