James Lee Gilford, Jr. v The State of Oklahoma

F-2010-1237

Filed: Sep. 5, 2012

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

James Lee Gilford, Jr. appealed his conviction for robbery with a weapon. Conviction and sentence: life imprisonment on each count, served consecutively. Judge Lumpkin dissented.

Decision

The Judgment and Sentence of the district court on Counts I and IV is AFFIRMED. The Judgment and Sentence of the district court on Counts II and III is REVERSED with instructions to dismiss. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2012), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Issues

• whether the State's use of peremptory challenges to remove minorities from the petit jury violated his rights under Batson v. Kentucky and his rights under the equal protection clauses of the federal and state constitutions;
• whether he was denied due process and his rights to confrontation and a fair trial when the State presented the jury with materially misleading and inaccurate information concerning the criminal history, testimonial quid pro quo, and credibility of a key State's witness;
• whether multiple convictions and sentences for robbery with a weapon, assault and battery with a dangerous weapon, and assault while masked or disguised were based upon a single act against a single victim and violated his rights to be free from multiple punishment under 21 O.S.2001, § 11;
• whether the judgment and sentence on Count II contains material and prejudicial inaccuracies and should be modified.

Findings

• the court did not err in the jury selection process under Batson v. Kentucky
• the court did not find a due process violation regarding the State's disclosure of witness information
• the court reversed convictions for Assault and Battery with a Dangerous Weapon and Assault While Masked due to multiple punishment violation
• the claim regarding inaccuracies in the Judgment and Sentence for Count II is moot due to the reversal
• the Judgment and Sentence of the district court on Counts I and IV is affirmed
• the Judgment and Sentence of the district court on Counts II and III is reversed with instructions to dismiss

F-2010-1237

Sep. 5, 2012

James Lee Gilford, Jr.

Appellant

v

The State of Oklahoma

Appellee

SUMMARY OPINION

A. JOHNSON, PRESIDING JUDGE:

Appellant James Lee Gilford, Jr. was tried by jury and convicted of Robbery with a Weapon (Count I), in violation of 21 O.S.2001, § 801, Assault and Battery with a Dangerous Weapon (Count II), in violation of 21 O.S.Supp.2006, § 645, Assault While Masked or Disguised (Count III), in violation of 21 O.S.2001, § 1303, and First Degree Burglary (Count IV), in violation of 21 O.S.2001, § 1431, each after former conviction of six felonies, in the District Court of Tulsa County, Case No. CF-2009-25. The jury fixed punishment at life imprisonment on each count. The Honorable Kurt G. Glassco, who presided at trial, sentenced Gilford accordingly and ordered the sentences to be served consecutively. The court also imposed a $100 fine on Count III. From this Judgment and Sentence, Gilford appeals, raising the following issues:

1. Gilford must serve 85% of his sentences on Counts I and IV before becoming eligible for parole consideration. 21 O.S.Supp.2007, § 13.1.

(1) whether the State’s use of peremptory challenges to remove minorities from the petit jury violated his rights under Batson v. Kentucky1 and his rights under the equal protection clauses of the federal and state constitutions;
(2) whether he was denied due process and his rights to confrontation and a fair trial when the State presented the jury with materially misleading and inaccurate information concerning the criminal history, testimonial quid pro quo, and credibility of a key State’s witness;
(3) whether multiple convictions and sentences for robbery with a weapon, assault and battery with a dangerous weapon, and assault while masked or disguised were based upon a single act against a single victim and violated his rights to be free from multiple punishment under 21 O.S.2001, § 11; and
(4) whether the judgment and sentence on Count II contains material and prejudicial inaccuracies and should be modified.

We find reversal is required on Counts II and III for the reasons discussed below. We, however, affirm the Judgment and Sentence of the District Court on Counts I and IV.

1. Jury Selection

The district court chose to believe the prosecutor’s proffered race neutral explanations with regard to the three panelists Gilford complains were removed in violation of Batson v. Kentucky. The record supports the district court’s ruling that Gilford failed to meet his burden of showing discriminatory intent in the removal of these panelists. Grant v. State, 2009 OK CR 11, ¶¶ 26-28, 205 P.3d 1, 14-15; Smith v. State, 2007 OK CR 16, ¶ 16, 157 P.3d 1155, 1162-63. Hence, we find that the district court did not clearly err in determining that there was no Batson violation. Smith, 2007 OK CR 16, ¶ 16, 157 P.3d at 1163.

2. Due Process

We cannot find on this record that Gilford was denied due process, his right to confrontation, or a fair trial by the prosecution’s failure to timely disclose a plea agreement made with co-defendant Livingston or its failure to disclose the existence of Livingston’s prior misdemeanor involving dishonesty. Evidence of a witness’s bias, credibility and motivation for testifying is always relevant. Baker v. State, 2010 OK CR 19, ¶ 5, 238 P.3d 10, 11. We have considered the materiality of the untimely disclosed and non-disclosed impeachment information and find that there is not a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Jones v. State, 2006 OK CR 5, ¶ 51, 128 P.3d 521, 540-41; Wright v. State, 2001 OK CR 19, ¶ 22, 30 P.3d 1148, 1152.

In conjunction with this claim, Gilford asks this Court to take judicial notice of records from Tulsa Municipal Court Case No. 5417948, showing that Livingston pled no contest to Larceny of Merchandise from a Retailer (a misdemeanor involving dishonesty) and to take judicial notice of records from Tulsa County District Court Case No. CM-2008-97, in which Livingston was charged prior to the present case with two misdemeanor drug charges. Livingston’s larceny case is mentioned in the Tulsa County records of Case No. CM-2008-97 and Gilford argues that the State was on notice of Livingston’s misdemeanor involving dishonesty. These records are certified copies of the actual records. In the alternative, Gilford asks this Court to direct a supplementation of the record with this information under Rule 3.11, (A), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2012) This Court may take judicial notice of these records under 12 O.S.2011, § 2202(B). See also Collier v. Reese, 2009 OK 86, ¶ 8, n.7, 223 P.3d 966, 970, n.7; McHam v. State, 2005 OK CR 28, ¶ 33, 126 P.3d 662, 672.

3. Multiple Punishment

Title 21 O.S.2001, § 11(A) governs multiple punishments for a single criminal act. The proper analysis of a § 11 claim focuses on the relationship between the crimes. Head v. State, 2006 OK CR 44, ¶ 11, 146 P.3d 1141, 1144; see also Davis v. State, 1999 OK CR 48, ¶ 13, 993 P.2d 124, 126. Section 11 does not bar the charging and conviction of two separate crimes which may only tangentially relate to one or more crimes committed during a continuing course of conduct. Davis, 1999 OK CR 48, ¶ 13, 993 P.2d at 127. Section 11 is not violated where offenses arising from the same transaction are separate and distinct and require dissimilar proof. Jones v. State, 2006 OK CR 5, ¶ 63, 128 P.3d 521, 543.

Under the facts of this case, the assault and battery and assault while masked were the same act comprising the robbery. Robbery with a dangerous weapon is the wrongful taking and carrying away of another’s personal property from the person by force through the use of a dangerous weapon. See OUJI-CR2d 4-144. In this case, Gilford pushed his way into the victim’s room, wearing a mask, and stabbed the victim while his confederate, Livingston, took the victim’s bag with money and drugs. The acts of assault were part and parcel of the force used to effectuate the robbery and avoid detection. The acts were simultaneous with no temporal separation and against a single victim. We find that Gilford’s convictions for Assault and Battery with a Dangerous Weapon and Assault While Masked violate the prohibition against multiple punishment for a single act in § 11 and must be reversed.

4. Nunc Pro Tunc Order

The dismissal of Count II because of the multiple punishment violation renders this claim concerning inaccuracies in the Judgment and Sentence for Count II moot.

DECISION

The Judgment and Sentence of the district court on Counts I and IV is AFFIRMED. The Judgment and Sentence of the district court on Counts II and III is REVERSED with instructions to dismiss. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2012), 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, § 1303
4. 21 O.S.2001, § 1431
5. 21 O.S.Supp.2007, § 13.1
6. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)
7. Baker v. State, 2010 OK CR 19, I 5, 238 P.3d 10, 11
8. Jones v. State, 2006 OK CR 5, I 51, 128 P.3d 521, 540-41
9. Wright v. State, 2001 OK CR 19, "I 22, 30 P.3d 1148, 1152
10. Collier v. Reese, 2009 OK 86, I 8, n.7, 223 P.3d 966, 970, n.7
11. McHam v. State, 2005 OK CR 28, I 33, 126 P.3d 662, 672
12. Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995)
13. 21 O.S.2001, § 11(A)
14. Head v. State, 2006 OK CR 44, I 11, 146 P.3d 1141, 1144
15. Davis v. State, 1999 OK CR 48, T 13, 993 P.2d 124, 126
16. Jones v. State, 2006 OK CR 5, I 63, 128 P.3d 521, 543
17. 20 O.S.2001, § 3001.1
18. Warner v. State, 2006 OK CR 40, 14, 144 P.3d 838, 858
19. Dewberry v. State, 1998 OK CR 10, I 9, 954 P.2d 774, 776
20. Berget v. State, 1991 OK CR 121, "I 9, 824 P.2d 364, 368-69

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 801 (2001) - Robbery with a Weapon
• Okla. Stat. tit. 21 § 645 (Supp. 2006) - Assault and Battery with a Dangerous Weapon
• Okla. Stat. tit. 21 § 1303 (2001) - Assault While Masked or Disguised
• Okla. Stat. tit. 21 § 1431 (2001) - First Degree Burglary
• Okla. Stat. tit. 21 § 11 (2001) - Multiple Punishment
• Okla. Stat. tit. 21 § 13.1 (Supp. 2007) - Parole Eligibility
• Okla. Stat. tit. 12 § 2202(B) (2011) - Judicial Notice
• Okla. Stat. tit. 22 § 3001.1 (2001) - Plain Error Review
• Okla. Stat. tit. 22, Ch. 18, App. (2012) - Rules of the Oklahoma Court of Criminal Appeals

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
• Grant v. State, 2009 OK CR 11, II 26-28, 205 P.3d 1, 14-15
• Smith v. State, 2007 OK CR 16, 11-16, 157 P.3d 1155, 1162-63
• Baker v. State, 2010 OK CR 19, I 5, 238 P.3d 10, 11
• Jones v. State, 2006 OK CR 5, I 51, 128 P.3d 521, 540-41
• Wright v. State, 2001 OK CR 19, "I 22, 30 P.3d 1148, 1152
• Head v. State, 2006 OK CR 44, I 11, 146 P.3d 1141, 1144
• Davis v. State, 1999 OK CR 48, T 13, 993 P.2d 124, 126
• Jones v. State, 2006 OK CR 5, I 63, 128 P.3d 521, 543
• Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995)
• Collier v. Reese, 2009 OK 86, I 8, n.7, 223 P.3d 966, 970, n.7
• McHam v. State, 2005 OK CR 28, 1 33, 126 P.3d 662, 672
• Ziegler v. State, 1980 OK CR 23, I 10, 610 P.2d 251, 254
• Rogers v. State, 1994 OK CR 82, 889 P.2d 288
• Warner v. State, 2006 OK CR 40, 14, 144 P.3d 838, 858
• Dewberry v. State, 1998 OK CR 10, I 9, 954 P.2d 774, 776
• Berget v. State, 1991 OK CR 121, "I 9, 824 P.2d 364, 368-69