James Rickey Ezell, III v The State of Oklahoma

F 2000-1543

Filed: Jan. 1, 2002

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

James Rickey Ezell, III, appealed his conviction for Trafficking in Illegal Drugs (Crack Cocaine), Resisting an Officer, and Public Drunk. Conviction and sentence were modified to 40 years for drug trafficking, while the other convictions were upheld. Judge Lumpkin dissented on the reasoning for the sentence modification.

Decision

The Judgment and Sentences in Counts 2 and 3 of Tulsa County District Court, Case No. CF 98-4298, are hereby AFFIRMED. The Judgment in Count 1 is also AFFIRMED and the Sentence MODIFIED to forty (40) years imprisonment.

Issues

• Was Appellant's arrest unlawful in violation of constitutional rights, requiring suppression of evidence?
• Did the jury selection process violate Appellant's Fourteenth Amendment rights?
• Is Title 63 O.S. § 2-415, Trafficking in Controlled Drugs, unconstitutional?
• Did the trial court fail to instruct on the appropriate lesser included offense of possession of cocaine with intent to distribute?
• Did Appellant receive ineffective assistance of counsel in his second stage proceedings, denying him a fair trial?

Findings

• The court did not err in determining that Appellant's arrest was lawful.
• Appellant's constitutional rights were not violated by the jury selection process.
• Title 63 O.S. § 2-415 is constitutional as applied and does not violate due process or equal protection.
• No plain error occurred regarding the trial court's failure to instruct on a lesser included offense.
• Trial counsel's performance was deficient, leading to improper admission of prior convictions that prejudiced Appellant, resulting in sentence modification.

F 2000-1543

Jan. 1, 2002

James Rickey Ezell, III

Appellant

v

The State of Oklahoma

Appellee

SUMMARY OPINION

JOHNSON, VICE-PRESIDING JUDGE: Appellant, James Rickey Ezell, III, was convicted in Tulsa County District Court, Case No. CF 98-4298, of Trafficking in Illegal Drugs (Crack Cocaine)(Count 1), in violation of 63 O.S.Supp.1998, § 2-415(A); Resisting an Officer (Count 2), in violation of 21 O.S.Supp.1995, § 268; and Public Drunk (Count 3), in violation of 37 O.S.1991, § 8, after two or more felony convictions. Jury trial was held on November 6th – 9th, 2000, before District Judge Linda Morrissey. The jury set punishment at seventy (70) years imprisonment on Count 1; one (1) year imprisonment on Count 2; and fourteen (14) days in the county jail on Count 3. The jury fined Appellant Sixty-Two Thousand Five Hundred Dollars ($62,500.00) on Count 1, One Thousand Dollars ($1,000.00) on Count 2, and Fifty Dollars ($50.00) on Count 3. Judgment and Sentence was imposed on November 20, 2000. Thereafter, Appellant filed this appeal.

Appellant raises five propositions of error.

1. Appellant’s arrest was unlawful in violation of the Fourth, Eighth and Fourteenth Amendments to the United States Constitution, as well as corresponding provisions of the Oklahoma Constitution, requiring the suppression of the evidence against him;
2. The jury selection process violated Appellant’s Fourteenth Amendment rights;
3. Title 63 O.S. § 2-415, Trafficking in Controlled Drugs, is unconstitutional;
4. The trial court failed to instruct on the appropriate lesser included offense of possession of cocaine with intent to distribute; and,
5. Appellant received ineffective assistance of counsel in his second stage proceedings, denying him a fair trial pursuant to the Sixth and Fourteenth Amendments to the United States Constitution.

After thorough consideration of the propositions raised, the briefs of the parties and the entire record before us on appeal, we have determined that the convictions should be affirmed. The sentence imposed for Drug Trafficking, Count I, is modified for the reasons set forth below. Mr. Ezell’s arrest for public intoxication was not unlawful and 37 O.S.1991, § 8 is not unconstitutional as applied or as a status offense. Clark v. State, 1974 OK CR 211, T 10, 527 P.2d 347, 350; Rothrock v. State, 89 Okl.Cr. 262, 266, 206 P.2d 1009, 1010 (Okl.Cr. 1949); See Profit v. City of Tulsa, 1980 OK CR 77, I 5, 617 P.2d 250, 251; Findlay v. City of Tulsa, 1977 OK CR 113, Il 15, 561 P.2d 980, 984.

Secondly, Appellant’s constitutional rights were not violated by the jury selection process. The prosecutor stated a sufficiently race neutral reason for his exercise of peremptory challenge against Juror Britto. Bland v. State, 2000 OK CR 11, 11, 4 P.3d 702, 711, cert. denied, U.S. , 121 S.Ct. 832, 148 L.Ed.2d 714 (2001). The trial court did not abuse its discretion when excusing Juror Matland for cause. Spears v. State, 1995 OK CR 36, I 9, 900 P.2d 431, 437, cert. denied, 516 U.S. 1031, 116 S.Ct. 678, 133 L.Ed.2d 527 (1995). Oklahoma’s drug trafficking statute, Title 63, Section 2-415, does not violate due process by creating an irrebuttable presumption. See Anderson v. State, 1995 OK CR 63, I 5, 905 P.2d 231, 233. It also does not violate equal protection, as the statute bears a rational relationship to a legitimate state interest of punishing those persons who possess large quantities of drugs more severely than others. Tyler v. State, 1989 OK CR 31, I 8, 777 P.2d 1352, 1354.

We review the claim raised in Proposition Five for plain error, because Appellant did not request such an instruction at trial. See Bland v. State, 2000 OK CR 11, 53-54, 4 P.3d 702, 719, cert. denied, U.S. , 121 S.Ct. 832, 148 L.Ed.2d 714 (2001). No plain error occurred, where the case was apparently defended on the theory that Appellant was not in possession of the drugs and Appellant objected to even instructing the jury on simple possession. Lastly, Appellant submits his trial counsel’s performance in second stage was deficient because he failed to object to the admission of three transactional prior convictions. We agree. Evidence in the record shows trial counsel should have investigated the transactional nature of the prior convictions.

In this case, Appellant possessed an amount only slightly over the minimum amount required and received a seventy (70) year sentence. While we agree that two prior convictions were properly admissible for enhancement, we cannot say the improper admission of two additional prior convictions did not prejudice Appellant. 21 O.S.Supp. 1995, § 51(B); Miller U. State, 1984 OK CR 33, 11 9-10, 675 P.2d 453, 454-455. Accordingly, Appellant’s sentence of imprisonment on Count I is hereby MODIFIED to forty (40) years imprisonment.

DECISION

The Judgment and Sentences in Counts 2 and 3 of Tulsa County District Court, Case No. CF 98-4298, are hereby AFFIRMED. The Judgment in Count 1 is also AFFIRMED and the Sentence MODIFIED to forty (40) years imprisonment.

APPEARANCES AT TRIAL

ALLEN AUTRY
ATTORNEY AT LAW
P. O. BOX 570993
TULSA, OK 74157
ATTORNEY FOR DEFENDANT

BILL MUSSEMAN
ASSISTANT DISTRICT ATTORNEY
TULSA COUNTY COURTHOUSE
500 SOUTH DENVER, SUITE 406
TULSA, OK 74103
ATTORNEY FOR THE STATE

APPEARANCES ON APPEAL

STUART SOUTHERLAND
MARTIN & ASSOCIATES, P.C.
222 WEST 8TH STREET
TULSA, OK 74119
ATTORNEY FOR APPELLANT

W.A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA
LORI S. CARTER
ASSISTANT ATTORNEY GENERAL
112 STATE CAPITOL BUILDING
OKLAHOMA CITY, OKLAHOMA 73104
ATTORNEYS FOR APPELLEE

Motion to Supplement and Request for Evidentiary Hearing. The State answers this claim not by disputing the transactional nature of the offenses, but rather on the basis that Appellant cannot show prejudice. Because we decide the matter today, we find Appellant’s Motion to Supplement and Request for Evidentiary Hearing is Denied.

OPINION BY: JOHNSON, V.P.J.
LUMPKIN, P.J.: CONCURS IN RESULT
CHAPEL, J.: CONCURS
STRUBHAR, J.: CONCURS
LILE, J.: CONCURS

LUMPKIN, PRESIDING JUDGE: CONCUR IN RESULTS. I concur in the results reached by the Court in the affirming of the judgments and sentences in Counts 2 and 3, and the affirming of the judgment in Count 1, with the modification of the sentence. However, this modification of the sentence cannot be based on a record showing three of the prior felonies were transactional because the items submitted as a part of the application pursuant to Rule 3.11, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2000), are not evidence for this Court to consider as a part of the record on appeal. Id. Regardless, I do agree it was incumbent on trial counsel to investigate the nature of the prior convictions to be effective, and agree to the modification of sentence in Count 1.

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Footnotes:

1. 63 O.S.Supp.1998, § 2-415(A);
2. 21 O.S.Supp.1995, § 268;
3. 37 O.S.1991, § 8;
4. Clark v. State, 1974 OK CR 211, T 10, 527 P.2d 347, 350;
5. Rothrock v. State, 89 Okl.Cr. 262, 266, 206 P.2d 1009, 1010 (Okl.Cr. 1949);
6. Profit v. City of Tulsa, 1980 OK CR 77, I 5, 617 P.2d 250, 251;
7. Findlay v. City of Tulsa, 1977 OK CR 113, "Il 15, 561 P.2d 980, 984;
8. Bland v. State, 2000 OK CR 11, 11, 4 P.3d 702, 711, cert. denied, U.S. , 121 S.Ct. 832, 148 L.Ed.2d 714 (2001);
9. Spears v. State, 1995 OK CR 36, I 9, 900 P.2d 431, 437, cert. denied, 516 U.S. 1031, 116 S.Ct. 678, 133 L.Ed.2d 527 (1995);
10. Anderson v. State, 1995 OK CR 63, I 5, 905 P.2d 231, 233;
11. Tyler v. State, 1989 OK CR 31, I 8, 777 P.2d 1352, 1354;
12. Bland v. State, 2000 OK CR 11, 53-54, 4 P.3d 702, 719, cert. denied, U.S. , 121 S.Ct. 832, 148 L.Ed.2d 714 (2001);
13. 21 O.S.Supp. 1995, § 51(B);
14. Miller U. State, 1984 OK CR 33, 11 9-10, 675 P.2d 453, 454-455;

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-415 (1998) - Trafficking in Controlled Drugs
• Okla. Stat. tit. 21 § 268 (1995) - Resisting an Officer
• Okla. Stat. tit. 37 § 8 (1991) - Public Drunkenness
• Okla. Stat. tit. 21 § 51(B) (1995) - Enhancements for Prior Convictions

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:

• Clark v. State, 1974 OK CR 211, T 10, 527 P.2d 347, 350
• Rothrock v. State, 89 Okl.Cr. 262, 266, 206 P.2d 1009, 1010 (Okl.Cr. 1949)
• Profit v. City of Tulsa, 1980 OK CR 77, I 5, 617 P.2d 250, 251
• Findlay v. City of Tulsa, 1977 OK CR 113, "Il 15, 561 P.2d 980, 984
• Bland v. State, 2000 OK CR 11, 11, 4 P.3d 702, 711
• Spears v. State, 1995 OK CR 36, I 9, 900 P.2d 431, 437
• Anderson v. State, 1995 OK CR 63, I 5, 905 P.2d 231, 233
• Tyler v. State, 1989 OK CR 31, I 8, 777 P.2d 1352, 1354
• Bland v. State, 2000 OK CR 11, 53-54, 4 P.3d 702, 719
• Miller v. State, 1984 OK CR 33, 11 9-10, 675 P.2d 453, 454-455