Dustin Loy Wells v State Of Oklahoma

F-2000-805

Filed: Oct. 18, 2001

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Dustin Loy Wells appealed his conviction for several crimes including Shooting with Intent to Kill and Possession of a Stolen Vehicle. His convictions resulted in a total sentence of forty-five years in prison, along with fines. Judge Lumpkin disagreed with reversing one of the charges, while the other judges mostly agreed with the decisions made in the case.

Decision

The Judgment and Sentence of the trial court on Counts 1, 2, 5, 6, 7 and 9 is AFFIRMED. Count 8 is REVERSED with instruction to DISMISS.

Issues

• Was there an abuse of discretion by the trial court in denying the motion for severance?
• Did the admission of evidence regarding out-of-court identification require reversal?
• Did the trial court err in overruling the motion for directed verdict on assault with a dangerous weapon or in violating double jeopardy with convictions for counts 5 and 8?
• Did the admission of prejudicial evidence require reversal or modification?
• Was there sufficient evidence for the jury to find an intent to kill?
• Did prosecutorial misconduct deprive the Appellant of a fair trial and render the conviction unreliable?
• Did cumulative errors warrant reversal of conviction and/or sentence?

Findings

• The trial court did not abuse its discretion in joining the separately punishable offenses for trial.
• The admission of out-of-court identifications was error, but the error was harmless beyond a reasonable doubt.
• The evidence was insufficient for Count 8, requiring it to be reversed with instructions to dismiss.
• The trial court did not abuse its discretion in admitting State's Exhibits 55 and 56.
• The evidence was sufficient for the jury to find Appellant intended to kill Tunnell when he shot him.
• Other than the error in Proposition III, no cumulative errors deprived Appellant of a fair trial.

F-2000-805

Oct. 18, 2001

Dustin Loy Wells

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

STRUBHAR, J.: Dustin Loy Wells, Appellant, was tried by jury in the District Court of Tulsa County, Case No. CF-99-4069, District Judge Thomas C. Gillert presiding and convicted of Shooting with Intent to Kill (Count 1), Possession of a Stolen Vehicle (Count 2), three counts of Assault with a Dangerous Weapon (Counts 5, 6, & 8), Use of a Vehicle to Facilitate Discharge of a Weapon (Count 7) and Assault and Battery (Count 9).1 Following the jury’s recommendation, the trial court sentenced Appellant to forty-five years imprisonment and a $10,000.00 fine on Count 1, three years imprisonment and a $3,500.00 fine on Count 2, six years imprisonment on Count 5, ten years imprisonment and a $10,000.00 fine on Count 6, twenty years imprisonment and a $10,000.00 fine on Count 7, five years imprisonment on Count 8 and ninety days on Count 9. The trial court 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 abused its discretion by denying Appellant’s motion for severance;
II. Evidence that the alleged victims identified the defendant in an out-of-court setting requires reversal;
III. The trial court erred in overruling Appellant’s motion for directed verdict on assault with a dangerous weapon against a crowd or, in the alternative, the convictions in counts 5 and 8 are in violation of double jeopardy;
IV. Admission of prejudicial evidence requires reversal or modification;
V. No evidence existed from which the jury could find an intent to kill;
VI. Prosecutorial misconduct deprived the Appellant of a fair trial and rendered his conviction unreliable; and
VII. Cumulative errors warrant reversal of conviction and/or sentence.

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 did not abuse its discretion in joining these separately punishable offenses for trial. Brewer v. City of Tulsa, 811 P.2d 604, 607 (Okl.Cr.1 1991). As to Proposition II, we find the admission of Colburn’s testimony regarding the out-of-court identification of Appellant by Maxey, Tunnell, Robl and Delaloye as well as State’s Exhibits 66, 67 and 68 was error. J.A.M. U. State, 749 P.2d 116, 118 (Okl.Cr.1988). However, we find the error harmless beyond a reasonable doubt in light of the in-court 1 Appellant was acquitted of Counts 3 and 4. identifications of Appellant and the strength of the case overall. Ochoa U. State, 963 P.2d 583, 596-97 (Okl.Cr.1998), cert. denied, 526 U.S. 1023, 119 S.Ct. 1263, 143 L.Ed.2d 358 (1999). As to Proposition III, we find the evidence adduced at trial was insufficient and that Count 8 – assault with a dangerous weapon on a crowd must be reversed with instructions to dismiss. Spuehler v. State, 709 P.2d 202, 203-04 (Okl.Cr.1985). As to Proposition IV, we find the trial court did not abuse its discretion in admitting State’s Exhibits 55 and 56. Welch v. State, 2 P.3d 356, 367 & 370 (Okl.Cr.), cert. denied, U.S. 121, S.Ct. 665, 148 L.Ed.2d 567 (2000). As to Proposition V, we find the evidence adduced at trial was sufficient for the jury to find Appellant intended to kill Tunnell when he shot him. Miller v. State, 977 P.2d 1099, 1107 (Okl.Cr. 1998), cert. denied, 528 U.S. 897, 120 S.Ct. 228, 145 L.Ed.2d 192 (1999). As to Proposition VI, although the prosecutor committed misconduct by repeatedly calling Appellant a coward and a predator, commenting on Appellant’s in-court conduct and demeanor and sponsoring erroneous identification evidence, we find relief is not warranted as the improprieties did not deprive Appellant of a fair trial or result in a miscarriage of justice. Spears v. State, 900 P.2d 431, 445 (Okl.Cr.), cert. denied, 516 U.S. 1031, 116 S.Ct. 678, 133 L.Ed.2d 527 (1995). We do, however, caution the prosecutor to refrain from such conduct in the future. As to Proposition VII, we find no error except that identified in Proposition III, which by itself or in combination with other errors, deprived Appellant of a fair trial and requires relief.

DECISION

The Judgment and Sentence of the trial court on Counts 1, 2, 5, 6, 7 and 9 is AFFIRMED. Count 8 is REVERSED with instruction to DISMISS.

APPEARANCES AT TRIAL

MARNA S. FRANKLIN
ASST. PUBLIC DEFENDER
TULSA COUNTY PUBLIC DEFENDER’S OFFICE
423 S. BOULDER, STE. 300
TULSA, OK 74103
ATTORNEY FOR APPELLANT

CHAD GREER
ASSISTANT DISTRICT ATTORNEY
406 COURTHOUSE OF OKLAHOMA
500 S. DENVER AVE.
TULSA, OK 74103
ATTORNEY FOR THE STATE

APPEARANCES ON APPEAL

JULIA O’CONNELL
ASST. PUBLIC DEFENDER
423 S. BOULDER
TULSA, OK 74103
ATTORNEY FOR APPELLANT

W.A. DREW EDMONDSON
ATTORNEY GENERAL
2300 N.LINCOLN BLVD., SUITE112
OKLAHOMA CITY, OK 73105
ATTORNEYS FOR APPELLEE

OPINION BY: STRUBHAR, J.

LUMPKIN, P.J.: CONCUR IN PART/DISSENT IN PART

JOHNSON, V.P.J.: CONCUR

CHAPEL, J.: CONCUR

LILE, J.: CONCUR IN RESULT

LUMPKIN, PRESIDING JUDGE: CONCUR IN PART/DISSENT IN PART

I concur in the Court’s decision to affirm the judgments and sentences in Counts 1, 2, 5, 6, 7 and 9. However, I dissent to the reversal with instructions to dismiss Count 8. See Holdge v. State, 586 P.2d 744, 748 (Okl.Cr.1978)

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Footnotes:

1. Okla. Stat. tit. 22 § 18
2. Brewer v. City of Tulsa, 811 P.2d 604, 607 (Okl.Cr. 1991)
3. J.A.M. U. State, 749 P.2d 116, 118 (Okl.Cr. 1988)
4. Ochoa U. State, 963 P.2d 583, 596-97 (Okl.Cr. 1998), cert. denied, 526 U.S. 1023, 119 S.Ct. 1263, 143 L.Ed.2d 358 (1999)
5. Spuehler v. State, 709 P.2d 202, 203-04 (Okl.Cr. 1985)
6. Welch v. State, 2 P.3d 356, 367 & 370 (Okl.Cr.), cert. denied, U.S. 121, S.Ct. 665, 148 L.Ed.2d 567 (2000)
7. Miller v. State, 977 P.2d 1099, 1107 (Okl.Cr. 1998), cert. denied, 528 U.S. 897, 120 S.Ct. 228, 145 L.Ed.2d 192 (1999)
8. Spears v. State, 900 P.2d 431, 445 (Okl.Cr.), cert. denied, 516 U.S. 1031, 116 S.Ct. 678, 133 L.Ed.2d 527 (1995)
9. Holdge v. State, 586 P.2d 744, 748 (Okl.Cr. 1978)

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.8 - Sentencing for crimes involving death or serious bodily injury
• Okla. Stat. tit. 21 § 663 - Shooting with intent to kill
• Okla. Stat. tit. 21 § 1740 - Possession of stolen vehicles
• Okla. Stat. tit. 21 § 645 - Assault with a dangerous weapon
• Okla. Stat. tit. 21 § 652 - Use of a vehicle to facilitate discharge of a weapon
• Okla. Stat. tit. 21 § 641 - Assault and battery
• Okla. Stat. tit. 22 § 857 - Severance of offenses
• Okla. Stat. tit. 21 § 10 - Double jeopardy
• Okla. Stat. tit. 21 § 9 - Improper admission of evidence
• Okla. Stat. tit. 22 § 1080 - Standard for prosecutorial misconduct
• Okla. Stat. tit. 22 § 1053 - Cumulative error doctrine

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:

• Brewer v. City of Tulsa, 811 P.2d 604, 607 (Okl.Cr. 1991)
• J.A.M. v. State, 749 P.2d 116, 118 (Okl.Cr. 1988)
• Ochoa v. State, 963 P.2d 583, 596-97 (Okl.Cr. 1998), cert. denied, 526 U.S. 1023, 119 S.Ct. 1263, 143 L.Ed.2d 358 (1999)
• Spuehler v. State, 709 P.2d 202, 203-04 (Okl.Cr. 1985)
• Welch v. State, 2 P.3d 356, 367 & 370 (Okl.Cr.), cert. denied, U.S. 121, S.Ct. 665, 148 L.Ed.2d 567 (2000)
• Miller v. State, 977 P.2d 1099, 1107 (Okl.Cr. 1998), cert. denied, 528 U.S. 897, 120 S.Ct. 228, 145 L.Ed.2d 192 (1999)
• Spears v. State, 900 P.2d 431, 445 (Okl.Cr.), cert. denied, 516 U.S. 1031, 116 S.Ct. 678, 133 L.Ed.2d 527 (1995)
• Holdge v. State, 586 P.2d 744, 748 (Okl.Cr. 1978)