Carl Ray Holmes v State Of Oklahoma

F-1999-1260

Filed: Jan. 3, 2001

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Carl Ray Holmes appealed his conviction for making and possessing methamphetamine and possessing marijuana. His convictions included making methamphetamine, possessing meth with the intent to distribute, and possessing marijuana. Holmes received a sentence of 50 years for making meth, 75 years for possessing meth to distribute, and 8 years for possessing marijuana, with all sentences to be served one after the other. The court looked at several issues raised by Holmes, including problems with admitting his past convictions during the trial, concerns about double jeopardy (being punished twice for the same crime), and whether he received a fair trial. The court agreed that admitting his past marijuana conviction was a mistake, so they reversed the marijuana possession charge and ordered a new trial for that count. However, they found that the evidence was strong enough to support the other charges, so those convictions stood. In summary, Holmes appealed his conviction for making and possessing methamphetamine and marijuana. The court affirmed the convictions for meth offenses but reversed the marijuana possession charge, ordering a new trial for that count. Judge Chapel dissented regarding the second count, believing it should also be dismissed.

Decision

The Judgment and Sentence of the trial court on Counts I and II is AFFIRMED. Count IV is REVERSED and REMANDED for new trial.

Issues

• Was there reversible error by allowing the introduction of a prior conviction during the first stage of trial and by advising the jury of other crime evidence?
• Did the Appellant's right to be free of double jeopardy get violated?
• Was there a Brady violation that denied the Appellant a fair trial?
• Did the trial court err by admitting the Appellant's statement at trial?
• Was the search warrant invalid?
• Was the arrest of the Appellant unlawful?
• Was the evidence sufficient to support the charge of manufacturing a controlled dangerous substance?

Findings

• The court erred in admitting Appellant's prior marihuana conviction in the first stage to prove Count IV, unlawful possession of marihuana, necessitating a reversal and remand for a new trial on Count IV.
• No reversible error regarding double jeopardy for convictions on Counts I and II.
• No Brady violation found as Appellant did not meet the burden to show evidence was withheld or material.
• The trial court's ruling on the admissibility of Appellant's statement to police was upheld.
• The search warrant was valid and not based on an unlawful search of Appellant's curtilage.
• Appellant's arrest was legal and based on probable cause.
• The evidence was sufficient to prove beyond a reasonable doubt that Appellant knowingly manufactured methamphetamine.

F-1999-1260

Jan. 3, 2001

Carl Ray Holmes

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

JAMES W. PATTERSON STRUBHAR, PRESIDING JUDGE:

Carl Ray Holmes, hereinafter Appellant, was tried by jury in the District Court of Rogers County, Case No. CF-99-12, and convicted of Unlawful Manufacture of a Controlled Drug (Methamphetamine), After Former Conviction of One or More Felonies (63 O.S.Supp.1994, § 2-401) (Count I), Unlawful Possession of a Controlled Drug (Methamphetamine) With Intent to Distribute, After Former Conviction of One or More Felonies (63 O.S.Supp.1994, § 2-401) (Count II), and Unlawful Possession of Marijuana (63 O.S.Supp. 1995, § 2-402) (Count IV). The Honorable James D. Goodpaster sentenced Appellant in accordance with the jury’s verdict to fifty (50) years imprisonment and a $50,000 fine on Count I, seventy-five (75) years imprisonment and a $40,000 fine on Count II, and eight (8) years imprisonment on Count IV, and ordered the sentences to be served consecutively. From this Judgment and Sentence, Appellant appeals.

The following propositions of error were considered:

I. The trial court committed reversible error by allowing the introduction of a prior conviction during the first stage of trial and by advising the jury of other crime evidence;
II. Appellant’s right to be free of double jeopardy was violated;
III. A Brady violation denied Appellant a fair trial;
IV. The trial court erred by admitting Appellant’s statement at trial;
V. The search warrant was invalid;
VI. The arrest of Appellant was unlawful; and
VII. The evidence was not sufficient to support the charge of manufacturing a controlled dangerous substance.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, and briefs of the parties, we affirm in part and reverse in part.
As to Proposition I, we find the trial court erred in admitting Appellant’s prior marihuana conviction in the first stage to prove Count IV, unlawful possession of marihuana (second and subsequent offense). Gamble v. State, 751 P.2d 751, 753 (Okl.Cr.), cert. denied, 88 U.S. 835, 109 S.Ct. 97, 102 L.Ed.2d 73 (1988). As such, we find Count IV must be reversed and remanded for a new trial. However, we find the error harmless beyond a reasonable doubt as to Counts I and II because the evidence of guilt was overwhelming and there is no evidence the jury considered the prior conviction in reaching its verdict on these charges. We further find Appellant was not prejudiced by the statements of the police officers on the videotape since the audio portion of the videotape was not played for the jury.

As to Proposition II, we find that Appellant is not being punished twice for one act or subjected to double jeopardy for his convictions on Counts I and II. Davis v. State, 993 P.2d 124, 126 (Okl.Cr.1999).

As to Proposition III, we find that Appellant has not met his burden to show the prosecution withheld evidence or that the allegedly withheld evidence was material. Woundenberg v. State, 942 P.2d 224, 227 (Okl.Cr.1997). Therefore, we find no Brady violation. We further find that Appellant has failed to show the police acted in bad faith in failing to seize the wallet and therefore relief is not required. Hogan v. State, 877 P.2d 1157, 1161 (Okl.Cr.1994), cert. denied, 513 U.S. 1174, 115 S.Ct. 1154, 130 L.Ed.2d 1111 (1995).

As to Proposition IV, we find the trial court’s ruling that Appellant’s statement to police was voluntary and therefore admissible is supported by the record and no relief is required. Romano v. State, 909 P.2d 92, 109 (Okl.Cr.1995), cert. denied, 519 U.S. 855, 117 S.Ct. 151, 136 L.Ed.2d 96 (1996).

As to Proposition V, we find the search warrant was valid and was not predicated on an unlawful search of Appellant’s curtilage. U.S. v. Dunn, 480 U.S. 294, 300, 107 S.Ct. 1134, 1139, 94 L.Ed.2d 396 (1987).

As to Proposition VI, we find Appellant’s arrest was legal and based on probable cause. Washington v. State, 989 P.2d 960, 971 (Okl.Cr.1999).

As to his final proposition, we find the evidence was sufficient to prove beyond a reasonable doubt that Appellant knowingly manufactured methamphetamine. Cheatham v. State, 900 P.2d 414, 422 (Okl.Cr.1995).

DECISION
The Judgment and Sentence of the trial court on Counts I and II is AFFIRMED. Count IV is REVERSED and REMANDED for new trial.

APPEARANCES AT TRIAL
KATHY FRY
ATTORNEY AT LAW
202 E. 2ND AVENUE
OWASSO, OK 74055
ATTORNEY FOR APPELLANT

PATRICK ABITBOL
ASSISTANT DISTRICT ATTORNEY
ROGERS COUNTY COURTHOUSE
CLAREMORE, OK 74017
ATTORNEY FOR THE STATE

KEELEY L. HARRIS
ASSISTANT ATTORNEY GENERAL
2300 N. LINCOLN BLVD., SUITE 112
OKLAHOMA CITY, OK 73104
ATTORNEYS FOR APPELLEE

OPINION BY: STRUBHAR, P.J.
LUMPKIN, V.P.J.: CONCUR
JOHNSON, J.: CONCUR
CHAPEL, J.: CONCUR IN PART/DISSENT IN PART
LILE, J.: CONCUR

CHAPEL, J., CONCURRING IN PART AND DISSENTING IN PART:
I concur in reversing Count IV. However, I find merit in Proposition II and would reverse and order Count II dismissed as violating both 21 O.S.1991, § 11 and the double jeopardy clauses of the Oklahoma and U.S. Constitutions.

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Footnotes:

1. Okla. Stat. tit. 63 § 2-401
2. Okla. Stat. tit. 63 § 2-401
3. Okla. Stat. tit. 63 § 2-402
4. Gamble v. State, 751 P.2d 751, 753 (Okl.Cr.), cert. denied, 88 U.S. 835, 109 S.Ct. 97, 102 L.Ed.2d 73 (1988)
5. Davis v. State, 993 P.2d 124, 126 (Okl.Cr.1999)
6. Woundenberg v. State, 942 P.2d 224, 227 (Okl.Cr.1997)
7. Hogan v. State, 877 P.2d 1157, 1161 (Okl.Cr.1994), cert. denied, 513 U.S. 1174, 115 S.Ct. 1154, 130 L.Ed.2d 1111 (1995)
8. Romano v. State, 909 P.2d 92, 109 (Okl.Cr.1995), cert. denied, 519 U.S. 855, 117 S.Ct. 151, 136 L.Ed.2d 96 (1996)
9. U.S. v. Dunn, 480 U.S. 294, 300, 107 S.Ct. 1134, 1139, 94 L.Ed.2d 396 (1987)
10. Washington v. State, 989 P.2d 960, 971 (Okl.Cr.1999)
11. Cheatham v. State, 900 P.2d 414, 422 (Okl.Cr.1995)
12. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)
13. 21 O.S.1991, § 11

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-401 - Unlawful Manufacture of a Controlled Drug (Methamphetamine)
• Okla. Stat. tit. 63 § 2-401 - Unlawful Possession of a Controlled Drug (Methamphetamine) With Intent to Distribute
• Okla. Stat. tit. 63 § 2-402 - Unlawful Possession of Marijuana
• Okla. Stat. tit. 21 § 11 - Double Jeopardy

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:

• Gamble v. State, 751 P.2d 751, 753 (Okl.Cr.), cert. denied, 88 U.S. 835, 109 S.Ct. 97, 102 L.Ed.2d 73 (1988)
• Davis v. State, 993 P.2d 124, 126 (Okl.Cr.1999)
• Woundenberg v. State, 942 P.2d 224, 227 (Okl.Cr.1997)
• Hogan v. State, 877 P.2d 1157, 1161 (Okl.Cr.1994), cert. denied, 513 U.S. 1174, 115 S.Ct. 1154, 130 L.Ed.2d 1111 (1995)
• Romano v. State, 909 P.2d 92, 109 (Okl.Cr.1995), cert. denied, 519 U.S. 855, 117 S.Ct. 151, 136 L.Ed.2d 96 (1996)
• U.S. v. Dunn, 480 U.S. 294, 300, 107 S.Ct. 1134, 1139, 94 L.Ed.2d 396 (1987)
• Washington v. State, 989 P.2d 960, 971 (Okl.Cr.1999)
• Cheatham v. State, 900 P.2d 414, 422 (Okl.Cr.1995)