Bryan Decheveria Aragon v The State Of Oklahoma

F-2012-167

Filed: Sep. 23, 2013

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Bryan Decheveria Aragon appealed his conviction for robbery with a firearm, assault and battery with a dangerous weapon, conspiracy to commit a felony, burglary in the first degree, kidnapping, and possession of a firearm in the commission of a felony. Conviction and sentence included various terms of imprisonment for each count, totaling up to twelve years. Count 6 (possession of a firearm) and Count 5 (kidnapping) were reversed, but his convictions for robbery with a firearm, assault, conspiracy, and burglary were upheld. Judge Lumpkin dissented.

Decision

The Judgment and Sentence of the district court on Counts 1, 2, 3 and 4 is AFFIRMED. The Judgment and Sentence of the district court on Counts 5 and 6 is REVERSED with instructions to DISMISS. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2013), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Issues

• was it error for the prosecutor to call co-defendants, knowing they would refuse to testify and whether the introduction of their hearsay statements deprived him of his right to confront the witnesses against him
• did prosecutorial misconduct deprive him of a fair trial
• did his convictions for robbery with a firearm, kidnapping, assault and battery with a dangerous weapon, and possession of a firearm in the commission of a felony punish him multiple times for a single criminal transaction in violation of the prohibition against double punishment

Findings

• the court erred regarding the prosecutor's calling of co-defendants but no relief is required
• no relief is required on Aragon's prosecutorial misconduct claim
• the conviction for Possession of a Firearm in the Commission of a Felony must be dismissed
• the kidnapping conviction is reversed
• the convictions for Robbery with a Firearm and Assault and Battery with a Dangerous Weapon do not violate the prohibition against multiple punishment

F-2012-167

Sep. 23, 2013

Bryan Decheveria Aragon

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

Appellant Bryan Decheveria Aragon was tried by jury in the District Court of Cleveland County, Case No. CF-2009-1472, and convicted of Robbery with a Firearm (Count 1), in violation of 21 O.S.2001, § 801, Assault and Battery with a Dangerous Weapon (Count 2), in violation of 21 O.S.Supp.2006, § 645, Conspiracy to Commit a Felony (Count 3), in violation of 21 O.S.2001, § 421, Burglary in the First Degree (Count 4), in violation of 21 O.S.2001, §§ 1431 & 1436, Kidnapping (Count 5), in violation of 21 O.S.Supp.2009 § 741, and Possession of a Firearm in the Commission of a Felony (Count 6), in violation of 21 O.S.Supp.2007, § 1287.1 The jury fixed punishment at twelve years imprisonment on Count 1, ten years imprisonment on Count 2, three years imprisonment on Count 3, twelve years imprisonment on Count 4, five years imprisonment on Count 5, and five years imprisonment on Count 6.2 The Honorable Tom A. Lucas, who presided at trial, sentenced Aragon according to the jury’s verdict and ordered the sentences to be served consecutively, but suspended the sentences in Counts 3, 5, and 6. From this Judgment and Sentence Aragon appeals, raising the following issues: (1) whether it was error for the prosecutor to call co-defendants, Jenkins and Pettway, knowing they would refuse to testify and whether the introduction of their hearsay statements deprived him of his right to confront the witnesses against him; (2) whether prosecutorial misconduct deprived him of a fair trial; and (3) whether his convictions for robbery with a firearm, kidnapping, assault and battery with a dangerous weapon, and possession of a firearm in the commission of a felony punish him multiple times for a single criminal transaction in violation of the prohibition against double punishment. We find reversal is not required and affirm the Judgment and Sentence of the District Court on Counts 1, 2, 3, and 4. We find relief is required on Counts 5 and 6 for the reasons discussed below.

1. Aragon’s claim that it was reversible error for the prosecutor to call Pettway and Jenkins knowing that they would refuse to testify does not require relief under the circumstances of this case. Neither Pettway nor Jenkins asserted a Fifth Amendment privilege not to testify and each answered some questions posed by the prosecutor and all questions posed on cross-examination. More importantly, the prosecutor did not attempt to build the State’s case out of inferences arising from use of Pettway’s and Jenkins’ refusals to answer certain questions or make inferences from Pettway’s and Jenkins’ refusal to answer questions to add critical weight to the State’s case in a form not subject to cross-examination. See Namet v. United States, 373 U.S. 179, 186-187, 83 S.Ct. 1151, 1155-56, 10 L.Ed.2d 278 (1963); Payne v. State, 1987 OK CR 214, I 11, 744 P.2d 196, 200. We also reject Aragon’s claim that admission of Jenkins’ and Pettway’s hearsay statements denied him the right of confrontation in violation of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) and Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Aragon’s case is distinguishable from those cases because Aragon’s co-defendants testified and were subject to cross-examination. See Shelton v. State, 1990 OK CR 34, I 22, 793 P.2d 866, 873 (holding Bruton does not extend to cases where the codefendant, whose statements are used at trial, testifies as a witness and is subject to cross-examination.) No relief is required.

2. Relief is not required on Aragon’s prosecutorial misconduct claim because any error in the prosecutor’s argument did not deprive Aragon of a fair trial or a fair and reliable sentencing proceeding. See Harmon v. State, 2011 OK CR 6, I 80, 248 P.3d 918, 943. Moreover, the district court correctly sustained defense counsel’s objection to the second remark challenged by Aragon thus curing any error. See Hanson v. State, 2009 OK CR 13, T 19, 206 P.3d 1020, 1028; Mack, 2008 OK CR 23, I 9, 188 P.3d at 1289 (When the district court sustains an objection to improper argument, error is cured.)

3. The State concedes that Aragon’s conviction for Possession of a Firearm in the Commission of a Felony (Count 6) violates 21 O.S.2001, § 11 and must be dismissed. We also find that Aragon’s convictions for both Robbery with a Firearm and Kidnapping violate § 11 because they arose out of the same act. See Davis v. State, 1999 OK CR 48, IF 13, 993 P.2d 124, 126. We therefore reverse Aragon’s kidnapping conviction in Count 5. Aragon’s convictions for Robbery with a Firearm and Assault and Battery with a Dangerous Weapon do not violate 21 O.S.2001, § 11 and the prohibition against multiple punishment because, under the facts of this case, the acts were separate and distinct. Id.; Head U. State, 2006 OK CR 44, I 11, 146 P.3d 1141, 1144.

DECISION

The Judgment and Sentence of the district court on Counts 1, 2, 3 and 4 is AFFIRMED. The Judgment and Sentence of the district court on Counts 5 and 6 is REVERSED with instructions to DISMISS. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2013), the MANDATE is ORDERED issued upon delivery and filing of this decision.

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Footnotes:

1. 21 O.S.2001, § 801
2. 21 O.S.Supp.2006, § 645
3. 21 O.S.2001, § 421
4. 21 O.S.2001, §§ 1431 & 1436
5. 21 O.S.Supp.2009, § 741
6. 21 O.S.Supp.2007, § 1287
7. 21 O.S.Supp.2011, § 13.1
8. 21 O.S.2001, § 11
9. 21 O.S.2001, § 11
10. 21 O.S.2001, § 11
11. 21 O.S.2001, § 11

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 801 (2001) - Robbery with a Firearm
• Okla. Stat. tit. 21 § 645 (Supp. 2006) - Assault and Battery with a Dangerous Weapon
• Okla. Stat. tit. 21 § 421 (2001) - Conspiracy to Commit a Felony
• Okla. Stat. tit. 21 § 1431 (2001) - Burglary in the First Degree
• Okla. Stat. tit. 21 § 1436 (2001) - Burglary in the First Degree
• Okla. Stat. tit. 21 § 741 (Supp. 2009) - Kidnapping
• Okla. Stat. tit. 21 § 1287 (Supp. 2007) - Possession of a Firearm in the Commission of a Felony
• Okla. Stat. tit. 21 § 11 (2001) - Prohibition against Double Punishment
• Okla. Stat. tit. 21 § 13.1 (Supp. 2011) - Parole Eligibility

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:

• Namet v. United States, 373 U.S. 179, 186-187, 83 S.Ct. 1151, 1155-56, 10 L.Ed.2d 278 (1963)
• Payne v. State, 1987 OK CR 214, I 11, 744 P.2d 196, 200
• Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)
• Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968)
• Shelton v. State, 1990 OK CR 34, "I 22, 793 P.2d 866, 873
• Harmon v. State, 2011 OK CR 6, I 80, 248 P.3d 918, 943
• Hanson v. State, 2009 OK CR 13, T 19, 206 P.3d 1020, 1028
• Mack, 2008 OK CR 23, I 9, 188 P.3d at 1289
• Davis v. State, 1999 OK CR 48, IF 13, 993 P.2d 124, 126
• Head v. State, 2006 OK CR 44, I 11, 146 P.3d 1141, 1144