Edgar Lee Rucker, Jr. v State Of Oklahoma

F-2000-1634

Filed: Dec. 20, 2001

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Edgar Lee Rucker, Jr. appealed his conviction for Unlawful Delivery of a Controlled Dangerous Substance (Methamphetamine). Conviction and sentence were 12 years in prison and a $10,000 fine. Judge Strubhar dissented.

Decision

The Judgment is AFFIRMED, the twelve year prison sentence is AFFIRMED and the $10,000 Fine is MODIFIED TO $2,500.

Issues

• Was Appellant's Fourteenth Amendment rights violated when his jury was permitted to sentence him under both the drug offense enhancement statute and the habitual offender statute?
• Did the State fail to present sufficient evidence to prove that Appellant was a habitual offender, thus violating his Sixth and Fourteenth Amendment rights?
• Did the trial court commit reversible error by permitting the State to introduce evidence of other bad acts that were not part of the transaction for which Appellant was being tried?
• Did the State fail to prove beyond a reasonable doubt that Appellant committed the crime of unlawful delivery of a controlled and dangerous substance as alleged in count I of the information?
• Was Appellant denied the effective assistance of counsel, in violation of the Sixth Amendment to the United States Constitution?
• Were Appellant's Fourteenth Amendment rights violated when the prosecutor engaged in prosecutorial misconduct?
• Did the accumulation of error in this case so infect the trial with unfairness that Appellant was denied due process of law?

Findings

• the court erred in combining sentencing provisions from the Habitual Offender Act and the drug enhancement statutes, modifying the fine to $2,500
• the evidence was sufficient to prove Appellant was a habitual offender
• the admission of evidence regarding Appellant's prior drug usage and outstanding warrants was appropriate as part of the res gestae
• there was no variance between the felony information and the evidence presented at trial
• Appellant was not denied the effective assistance of counsel
• Appellant was not denied a fair trial due to prosecutorial misconduct
• the accumulation of error did not result in a denial of fair trial

F-2000-1634

Dec. 20, 2001

Edgar Lee Rucker, Jr.

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, PRESIDING JUDGE: Appellant Edgar Lee Rucker, Jr., was tried by jury for Unlawful Delivery of Controlled Dangerous Substance (Methamphetamine) (63 O.S. 1991, § 2-401), in Case No. CF-99-179; and Possession of Marijuana with Intent to Distribute (63 O.S. 1991, § 2-401) in Case No. CF-99-180, both offenses After Former Conviction of Two or More Felonies, in the District Court of Murray County. The jury found Appellant guilty of Unlawful Delivery of a Controlled Dangerous Substance, After One Prior Conviction and recommended as punishment twelve (12) years imprisonment and a fine of ten thousand dollars ($10,000). The trial court sentenced accordingly. The jury found Appellant not guilty of Possession of Marijuana with Intent to Distribute. It is from this judgment and sentence that Appellant appeals.

Appellant raises the following propositions of error in support of his appeal:

I. Appellant’s Fourteenth Amendment rights were violated when his jury was permitted to sentence him under both the drug offense enhancement statute and the habitual offender statute.

II. The State failed to present sufficient evidence to prove that Appellant was a habitual offender, thus violating his Sixth and Fourteenth Amendment rights.

III. The trial court committed reversible error by permitting the State to introduce evidence of other bad acts that were not part of the transaction for which Appellant was being tried. The introduction of such evidence violated Appellant’s rights under the Fourteenth Amendment of the United States Constitution and Article II, § 9 of the Oklahoma Constitution.

IV. The State failed to prove beyond a reasonable doubt that Appellant committed the crime of unlawful delivery of a controlled and dangerous substance as alleged in count I of the information because the proof at trial did not conform to the allegations in the information.

V. Appellant was denied the effective assistance of counsel, in violation of the Sixth Amendment to the United States Constitution and corresponding provisions of the Oklahoma Constitution.

VI. Appellant’s Fourteenth Amendment rights to the United States Constitution were violated when the prosecutor engaged in prosecutorial misconduct.

VII. The accumulation of error in this case so infected the trial with unfairness that Appellant was denied due process of law.

After a thorough consideration of these propositions and the entire record before us on appeal including the original record, transcripts, and briefs of the parties, we have determined that reversal is not warranted under the law and the evidence.

In Proposition I, we find error in the sentencing instruction combining punishment provisions from the Habitual Offender Act and the drug enhancement statutes. This error warrants modification of the fine only as the twelve (12) year prison sentence is within the permissible range of imprisonment for conviction after one prior conviction under the Habitual Offender Act. The $10,000 fine recommended by the jury was one-fourth of the $40,000 maximum incorrectly set forth in the jury instructions. The fine is therefore modified to $2,500 which is one-fourth of the correct maximum fine of $10,000.

In Proposition II, we find the State met its burden of proving a prior conviction by offering evidence of Appellant’s birthdate and social security number.

In Proposition III, we find evidence of Appellant’s prior drug usage the day of the crime, and the existence of outstanding arrest warrants, was properly admitted as part of the res gestae of the offense. The evidence was closely connected to the charged offense as to form part of the entire transaction, and its admission was necessary to give the jury a complete understanding of the crime.

In Proposition IV, there was not a variance between the felony information and the evidence presented at trial. That a defense witness testified contrary to the felony information does not create a variance.

In Proposition V, we find Appellant was not denied the effective assistance of counsel. While counsel should have raised an objection to the sentencing instructions, his failure does not warrant a finding of ineffectiveness under the standards set forth in Strickland v. Washington. As we have modified the fine, Appellant has failed to establish any prejudice resulting from counsel’s conduct.

In Proposition VI, we find Appellant was not denied a fair trial by prosecutorial misconduct. Any error in the comment from the opening statement, which resulted in the sustaining of Appellant’s objection and an admonishment to the jury to disregard the statement, was cured. The remaining comments challenged on appeal were within the wide range of permissible argument.

In Proposition VII, we find Appellant was not denied a fair trial by the accumulation of error. The error in the sentencing instruction was the only error warranting action by this Court, and the sentence has been duly modified.

DECISION

The Judgment is AFFIRMED, the twelve year prison sentence is AFFIRMED and the $10,000 Fine is MODIFIED TO $2,500.

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Footnotes:

1. 21 O.S.1991, § 51.1(B)
2. 63 O.S.Supp.2000, § 2-401
3. Cooper v. State, 810 P.2d 1303, 1306 (Okl.Cr.1991)
4. Rogers v. State, 890 P.2d 959, 971 (Okl.Cr.1995)
5. Smith v. State, 573 P.2d 713, 716 (Okl.Cr.1978)
6. 22 O.S.1991, § 410
7. 21 O.S.Supp.2000, § 64
8. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)
9. Bland v. State, 4 P.3d 702, 730-731 (Okl.Cr.2000)
10. Romano v. State, 909 P.2d 92, 116 (Okl.Cr.1995)
11. Carol v. State, 756 P.2d 614, 617 (Okl.Cr.1988)
12. Croan v. State, 682 P.2d 236, 238 (Okl.Cr.1984)
13. Bechtel v. State, 738 P.2d 559, 561 (Okl.Cr.1987)

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-401 (1991) - Unlawful Delivery of Controlled Dangerous Substance
• Okla. Stat. tit. 21 § 51.1(B) (1991) - Habitual Offender Act
• Okla. Stat. tit. 63 § 2-401 (2000) - Drug Enhancement Statute
• Okla. Stat. tit. 22 § 410 (1991) - Variance Between Felony Information and Evidence
• Okla. Stat. tit. 21 § 64 (2000) - Sentencing Instructions

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:

• Novey v. State, 709 P.2d 696, 699 (Okl.Cr.1985)
• Cooper v. State, 810 P.2d 1303, 1306 (Okl.Cr.1991)
• Rogers v. State, 890 P.2d 959, 971 (Okl.Cr.1995)
• Smith v. State, 573 P.2d 713, 716 (Okl.Cr.1978)
• Bland v. State, 4 P.3d 702, 730-731 (Okl.Cr.2000)
• Romano v. State, 909 P.2d 92, 116 (Okl.Cr.1995)
• Carol v. State, 756 P.2d 614, 617 (Okl.Cr.1988)
• Croan v. State, 682 P.2d 236, 238 (Okl.Cr.1984)
• Bechtel v. State, 738 P.2d 559, 561 (Okl.Cr.1987)