Robert Wesley Choate v The State Of Oklahoma

F-2001-1488

Filed: Jan. 8, 2003

Not for publication

Prevailing Party: The State of Oklahoma

Summary

Robert Wesley Choate appealed his conviction for manufacturing a controlled substance and possession of a precursor. The court affirmed the conviction and sentence for manufacturing, but reversed the conviction for possession of a precursor. Judge Strubhar dissented.

Decision

The Judgment and Sentence for Count I is AFFIRMED. The Judgment and Sentence for Count II is REVERSED AND REMANDED with instructions to dismiss.

Issues

• Was there reversible error in admitting statements of Mr. Choate in violation of his Fifth Amendment right to remain silent?
• Did the simultaneous convictions for Manufacture of Methamphetamine and Possession of a Precursor violate double jeopardy and the statutory prohibition against multiple punishments?
• Was the evidence presented by the State insufficient to prove beyond a reasonable doubt that Mr. Choate was in possession of the precursor substance?
• Did the trial court's failure to instruct the jury on the proper ranges of punishment violate Mr. Choate's right to due process and a fundamentally fair trial?
• Was Mr. Choate's due process right to a fundamentally fair trial violated by the admission of inadmissible evidence invoking societal alarm and improper opinion testimony?
• Was Mr. Choate's conviction on Count 2 in violation of due process because the jury was instructed on a crime not charged in the information?
• Did cumulative trial errors and prosecutorial misconduct deny Mr. Choate due process and require reversal or modification?
• Is the $50,000 minimum nondiscretionary fine unconstitutional because it does not bear a sufficient relationship to the offense?

Findings

• The trial court did not err in admitting statements of Mr. Choate.
• The violations of double jeopardy and statutory prohibition against multiple punishments were upheld, requiring dismissal of Count I.
• The evidence presented was insufficient to support the conviction for Count II.
• The trial court did not commit reversible error in instructing the jury on the proper ranges of punishment for Counts I and II.
• The evidence invoking societal alarm and improper opinion testimony was properly admitted at trial.
• Count II violation must be dismissed due to an improper jury instruction on a non-charged crime.
• Cumulative trial errors and prosecutorial misconduct did not deny Mr. Choate due process.
• The fine provision under the manufacturing statute is constitutional and bears a direct relationship to the offense.

F-2001-1488

Jan. 8, 2003

Robert Wesley Choate

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

CHAPEL, JUDGE: Robert Wesley Choate was tried by jury and convicted of Count I: Manufacturing a Controlled Dangerous Substance in violation of 63 O.S. Supp.2000, §§ 2-401 and 2-408; Count II: Possession of a Precursor in violation of 63 O.S.Supp.2000, § 2-328(E); and Count III: Possession of a Controlled Dangerous Substance in violation of 63 O.S.Supp.2000, § 2-402, After Former Conviction of Two or More Felonies, in the District Court of Oklahoma County, Case No. CF-99-4877. In accordance with the jury’s recommendation, the Honorable Jerry D. Bass sentenced Choate to thirty (30) years’ imprisonment and a $50,000.00 fine on Count I and twenty (20) years’ imprisonment on Count II. Choate appeals from these convictions and sentences. Choate raises the following propositions of errors:

1 The State dismissed the After Former Conviction of Two or More Felonies charge for Count I. The State’s motion to dismiss Count III was granted at sentencing.

2 Choate also filed a pro se supplemental brief asserting that his speedy trial rights were violated. Choate’s claim fails on the merits. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) (test for a speedy trial violation balances length of delay, reason for delay, defendant’s assertion of the right to a speedy trial during the delay, and prejudice resulting from delay.

I. The trial court committed reversible error in admitting statements of Mr. Choate in violation of his Fifth Amendment right to remain silent and his Fourteenth Amendment right to due process and fundamental fairness.

II. The violations of double jeopardy and the Oklahoma statutory prohibition against multiple punishments resulting from Mr. Choate’s simultaneous convictions for Count I, Manufacture of Methamphetamine, Count II, Possession of a Precursor Substance (Red Phosphorous), and Count III, Possession of a Controlled Dangerous Substance (Methamphetamine), were not cured by the dismissal of Count III at formal sentencing. Count I, or alternatively, Count II, must also be dismissed.

III. The State presented insufficient evidence on Count II to prove beyond a reasonable doubt that Mr. Choate was in possession of the precursor substance of red phosphorous.

IV. The trial court’s failure to instruct the jury on the proper ranges of punishment on Counts I and II was plain reversible error that violated Mr. Choate’s right to due process and a fundamentally fair trial.

V. Mr. Choate’s due process right to a fundamentally fair trial was violated by inadmissible evidence invoking societal alarm and improper opinion testimony.

VI. Mr. Choate’s conviction on Count II violated due process and must be dismissed because the information charged a violation of Okla. Stat. Tit. 63, § 2-328(E)(1) (2001), but the jury was instructed on and convicted Mr. Choate under Okla. Stat. Tit. 63, § 2-328(E)(2) (2001), a crime not charged in the information.

VII. Trial errors and prosecutorial misconduct, cumulatively, denied Mr. Choate due process and require reversal or modification.

VIII. Under the facts of this case, the $50,000 minimum nondiscretionary fine mandated under the manufacturing statute is unconstitutional because it does not bear a sufficient, if any, quantitative relationship to the offense.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, briefs and exhibits of the parties, we find that Choate’s conviction under Count II must be reversed and remanded with instructions to dismiss. Choate’s trial delay of twenty-six (26) months was partly due to his requested continuance.

Additionally, Choate asserts but never establishes that he was prejudiced by the delay.

We find in Proposition I that Choate never unequivocally invoked his right to silence. We find in Proposition II that Choate’s convictions for manufacturing a controlled dangerous substance and possession of a precursor violate 21 O.S.2001. Proposition III is moot due to the relief granted in Proposition II. We find in Proposition IV that the jury was properly instructed on the range of punishment for manufacturing a controlled dangerous substance. We find in Proposition V that the evidence about which Choate complains was properly admitted at trial. Proposition VI is moot based upon the relief granted in Proposition II. We find in Proposition VII that there was no cumulative error. The relief recommended in Proposition II adequately resolved Propositions II, III, and VI; there was no other individual error. We find in Proposition VIII that the fine provision in 63 O.S.Supp.2000, § 2-401 bears a direct relationship to the offense and was not excessive.

Decision

The Judgment and Sentence for Count I is AFFIRMED. The Judgment and Sentence for Count II is REVERSED AND REMANDED with instructions to dismiss.

ATTORNEYS AT TRIAL

ANTHONY MCKESSON
ASSISTANT PUBLIC DEFENDER
611 COUNTY OFFICE BUILDING
320 ROBERT S. KERR
OKLAHOMA CITY, OKLAHOMA 73102
ATTORNEY FOR DEFENDANT

ASHLEY ALTSHULER
ASSISTANT DISTRICT ATTORNEY
505 COUNTY OFFICE BUILDING
320 ROBERT S. KERR
OKLAHOMA CITY, OKLAHOMA 73102
ATTORNEY FOR THE STATE

ATTORNEYS ON APPEAL

WENDELL B. SUTTON
ASSISTANT PUBLIC DEFENDER
611 COUNTY OFFICE BUILDING
320 ROBERT S. KERR
OKLAHOMA CITY, OKLAHOMA 73102
ATTORNEY FOR APPELLANT

W.A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA
PATRICK T. CRAWLEY
ASSISTANT ATTORNEY GENERAL
112 STATE CAPITOL BUILDING
OKLAHOMA CITY, OKLAHOMA 73105
ATTORNEYS FOR APPELLEE

OPINION BY: CHAPEL, J.

JOHNSON, P.J.: CONCUR IN RESULTS
LILE, V.P.J.: CONCUR
LUMPKIN, J.: CONCUR IN RESULTS
STRUBHAR, J.: CONCUR

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Footnotes:

1. Okla. Stat. tit. 63, § 2-328(E)(1) (2001)
2. Okla. Stat. tit. 63, § 2-328(E)(2) (2001)
3. 21 O.S.2001, § 11
4. William v. State, 2002 OK CR 39, 59 P.3d 518.
5. Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 2355, 129 L.Ed.2d 362 (1994)
6. Long v. State, 883 P.2d 167, 171-72 (Okl.Cr.1994)
7. Humphreys U. State, 947 P.2d 565, 578 (Okl.Cr.1997), cert. denied, 524 U.S. 930, 118 S.Ct. 2329, 141 L.Ed.2d 702 (1998)
8. Littlejohn U. State, 989 P.2d 901, 907-08 (Okl.Cr.1998)
9. See unpublished opinion Smith v. State, F-2001-213 (Okl.Cr. June 12, 2002)

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-401 (2000) - Manufacturing a Controlled Dangerous Substance
• Okla. Stat. tit. 63 § 2-408 (2000) - Manufacturing a Controlled Dangerous Substance
• Okla. Stat. tit. 63 § 2-328(E) (2000) - Possession of a Precursor
• Okla. Stat. tit. 63 § 2-402 (2000) - Possession of a Controlled Dangerous Substance
• Okla. Stat. tit. 21 § 11 (2001) - Double Jeopardy and Multiple Punishments
• Okla. Stat. tit. 63 § 2-328(E)(1) (2001) - Possession of a Precursor
• Okla. Stat. tit. 63 § 2-328(E)(2) (2001) - Possession of a Precursor
• Okla. Stat. tit. 63 § 2-401 (2000) - Minimum Nondiscretionary Fine

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:

• Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)
• Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 2355, 129 L.Ed.2d 362 (1994)
• Long v. State, 883 P.2d 167, 171-72 (Okl.Cr.1994)
• Smith v. State, F-2001-213 (Okl.Cr. June 12, 2002)
• William v. State, 2002 OK CR 39, 59 P.3d 518
• Littlejohn v. State, 989 P.2d 901, 907-08 (Okl.Cr.1998)
• Humphreys v. State, 947 P.2d 565, 578 (Okl.Cr.1997)