Blog

IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA GARY DON THOMPSON II, ) NOT FOR PUBLICATION ) Appellant, ) ) V. ) Case No. F-2010-288 ) PILED THE STATE OF OKLAHOMA, ) IN COURT OF CRIMINAL APPEALS ) STATE OF OKLAHOMA Appellee. ) APR – of 2011 SUMMARY OPINION MICHAEL S. RICHIE C. JOHNSON, JUDGE: CLERK Appellant, Gary Don Thompson II, was convicted by a jury in Okmulgee County District Court, Case No. CF-2009-129, of Possession of Marijuana, After Conviction of Two or More Felonies (63 O.S.Supp.2004, § 2-402). On March 29, 2010, the Honorable John Maley, District Judge, sentenced Appellant to ten years imprisonment and a $5000 fine, in accordance with the jury’s recommendation. This appeal followed. In his sole proposition of error, Appellant claims his conviction should be reversed because the evidence supporting it was the product of an unlawful detention. Prior to trial, Appellant filed a motion to suppress; the motion was denied by the district court, based on the arresting officer’s testimony at preliminary hearing. At trial, the officer gave a more detailed account of his encounter with Appellant, an account which was materially inconsistent with the one given at preliminary hearing. Defense counsel renewed her motion to suppress, but it was again denied. Appellant’s claim has been preserved for review. Williams U. State, 2008 OK CR 19, I 50, 188 P.3d 208, 220-21. We review the district court’s ruling on the motion to suppress for an abuse of discretion. Gomez U. State, 2007 OK CR 33, 9 5, 168 P.3d 1139, 1141-42. A trial court has the authority to revisit pretrial rulings on the admissibility of evidence, including motions to suppress based on alleged Fourth Amendment violations. Wing v. State, 1978 OK CR 53, I 6, 579 P.2d 196, 198; State v. Greenwood, 1977 OK CR 202, I 7, 565 P.2d 701, 703. There is no dispute that Appellant, a pedestrian, disposed of a small baggie of marijuana when the police officer approached him. The officer conceded he had no particularized suspicion of criminal activity, only the fact that Appellant and his companion were walking down the street in what he called a “high crime area” late at night. While the officer’s testimony at preliminary hearing did not indicate that Appellant had been seized before he disposed of the drugs, his testimony at trial clearly did. At trial the officer stated that Appellant did not dispose of the baggie until he complied with the officer’s second command to stop, given as the officer exited his car and began to approach the two men. We find, based on this version of the events, that Appellant was seized without reasonable suspicion of criminal activity, that his disposal of the marijuana after submitting to the officer was the direct product of an unreasonable seizure, and that the trial court abused its discretion in denying the renewed motion to suppress after this marked change in the officer’s account. Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968); Wong Sun U. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963); California v. Hodari D., 499 U.S. 621, 628, 111 S.Ct. 1547, 1552, 113 L.Ed.2d 2 690 (1991); Revels V. State, 1983 OK CR 105, “I 7, 666 P.2d 1298, 1300. DECISION The Judgment and Sentence of the district court is REVERSED AND REMANDED WITH INSTRUCTIONS TO DISMISS. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2011), the MANDATE is ORDERED issued upon the delivery and filing of this decision. AN APPEAL FROM THE DISTRICT COURT OF OKMULGEE COUNTY THE HONORABLE JOHN MALEY, DISTRICT JUDGE APPEARANCES AT TRIAL APPEARANCES ON APPEAL CORI R. GRAYSON ROBERT W. JACKSON ATTORNEY AT LAW INDIGENT DEFENSE SYSTEM P.O. BOX 998 P.O. BOX 926 OKMULGEE, OK 74447 NORMAN, OK 73070 ATTORNEY FOR DEFENDANT ATTORNEY FOR APPELLANT THOMAS C. GUILIOLI W. A. DREW EDMONDSON DISTRICT ATTORNEY ATTORNEY GENERAL OF OKLAHOMA 314 W. 7th ST. JENNIFER B. MILLER OKMULGEE, OK 74447 ASSISTANT ATTORNEY GENERAL ATTORNEY FOR THE STATE 313 N.E. 21st ST. OKLAHOMA CITY, OK 73105 ATTORNEYS FOR THE STATE OPINION BY C. JOHNSON, J. A. JOHNSON, P.J.: CONCUR IN RESULTS LEWIS, V.P.J.: CONCUR LUMPKIN, J.: CONCUR IN RESULTS SMITH, J.: CONCUR RB 3

Click Here To Download PDF