Jimmy Lee Mullins v The State of Oklahoma

F-2001-281

Filed: Apr. 22, 2002

Not for publication

Prevailing Party: Jimmy Lee Mullins

Summary

Jimmy Lee Mullins appealed his conviction for Second Degree Murder and Leaving the Scene of an Accident. Conviction and sentence included fifteen years for murder, ten years for leaving the scene of an accident involving death, and two years for leaving the scene of an accident involving non-fatal injuries. The sentences were ordered to be served one after the other. Judge Lile disagreed with the decision regarding the non-fatal injury charge.

Decision

The Judgment and Sentence of the trial court for Count I Second Degree Murder, and for Count II Leaving the Scene of an Accident involving Death, is AFFIRMED. The Judgment and Sentence for Count III: Leaving the Scene of an Accident involving Non-Fatal Personal Injuries is REVERSED and REMANDED with instruction to DISMISS.

Issues

• Was there a violation of the prohibition against multiple punishment and double jeopardy in Jimmy Mullins's convictions for leaving the scene of an accident involving serious injury and death for the same incident?
• Did prosecutorial misconduct deny Jimmy Mullins a fair trial?
• Did the trial court err by admitting a toxicology report showing methamphetamine in Mr. Mullins's system as improper other crimes evidence?
• Was Mr. Mullins's maximum ten year consecutive sentence for Count II excessive?
• Did the cumulative effect of all these errors deprive Mr. Mullins of a fair trial?

Findings

• Count III (Leaving the Scene of an Accident involving Non-Fatal Personal Injuries) is reversed and remanded with instructions to dismiss.
• Convictions for Count II (Leaving the Scene of an Accident involving Death) and Count III violate statutory protection against multiple punishment.
• Prosecutor's comments did not constitute plain error.
• The trial court did not abuse its discretion in admitting the toxicology report.
• The ten-year sentence for Count II (Leaving the Scene of an Accident involving Death) is not excessive.
• No cumulative error was found.
• The Judgment and Sentence for Count I (Second Degree Murder) and Count II (Leaving the Scene of an Accident involving Death) is affirmed.

F-2001-281

Apr. 22, 2002

Jimmy Lee Mullins

Appellant

v

The State of Oklahoma

Appellee

SUMMARY OPINION

CHAPEL, JUDGE: Jimmy Lee Mullins was tried by jury and convicted in Latimer County District Court Case No. CF-2000-66 of Count I: Second Degree Murder in violation of 21 O.S. 1991, § 701.8; Count II: Leaving the Scene of an Accident involving Death in violation of 47 O.S.Supp. 1999, § 10-102.1; and Count III: Leaving the Scene of an Accident involving Non-Fatal Personal Injuries in violation of 47 O.S.Supp. 1999, § 10-102. In accordance with the jury’s recommendation, the Honorable Bill Welch sentenced Mullins to fifteen (15) years imprisonment on Count I, ten (10) years imprisonment on Count II, and two years imprisonment on Count III. Judge Welch ordered the sentences to be served consecutively. Mullins perfected his appeal to this Court.

Mullins raises the following propositions of error:

I. Jimmy Mullins’s convictions for leaving the scene of an accident involving serious injury and leaving the scene of an accident involving death, both for the same accident, violate the prohibition against multiple punishment and double jeopardy.

II. Prosecutorial misconduct denied Jimmy Mullins a fair trial.

III. The trial court erred by admitting a toxicology report showing methamphetamine in Mr. Mullins'[s] system because it was improper other crimes evidence and because its probative value, if any, was substantially outweighed by its prejudicial effect.

IV. Mr. Mullins’s maximum ten year consecutive sentence for Count 2, leaving the scene of an accident involving death, was excessive.

V. The cumulative effect of all these errors deprived Mr. Mullins of a fair trial.

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 Mullins’s conviction for Count III (Leaving the Scene of an Accident involving Non-Fatal Personal Injuries) must be reversed and remanded with instructions to dismiss. We find in Proposition I that Mullins’s convictions for both Count II (Leaving the Scene of an Accident involving Death) and Count III (Leaving the Scene of an Accident involving Non-Fatal Personal Injuries) violate his statutory protection against multiple punishment under 21 O.S.1991, § 11.1

We find in Proposition II that the prosecutor’s comments were not plain error.² We find in Proposition III that the trial judge did not abuse his discretion in admitting a toxicology report showing methamphetamine in Mullins’s system because the report was relevant to the lesser included offense of First Degree Manslaughter. We find in Proposition IV that Mullins’s ten (10) year sentence for Count II (Leaving the Scene of an Accident involving Death) is not excessive.

In Proposition V we find no cumulative error.

Decision

The Judgment and Sentence of the trial court for Count I Second Degree Murder, and for Count II Leaving the Scene of an Accident involving Death, is AFFIRMED. The Judgment and Sentence for Count III: Leaving the Scene of an Accident involving Non-Fatal Personal Injuries is REVERSED and REMANDED with instruction to DISMISS.

failed to object to any of the alleged instances of prosecutorial misconduct. Although some comments border on error, they did not affect a substantial right or deny Mullins a fair trial.³

ATTORNEYS AT TRIAL

JAMES I. ENGLISH, III
C/O DAUBE BUILDING
#5 SOUTH COMMERCE STREET
NORMAN, OKLAHOMA 73019
ATTORNEY FOR APPELLANT

ROB WALLACE
W.A. DREW EDMONDSON
JIM VOLZ
ATTORNEY GENERAL OF OKLAHOMA
ASSISTANT DISTRICT ATTORNEYS
LORI S. CARTER
ASSISTANT ATTORNEY GENERAL
109 NORTH CENTRAL
WILBURTON, OKLAHOMA 74578
ATTORNEYS FOR THE STATE

OPINION BY: CHAPEL, J.

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

LILE, JUDGE: CONCURS IN RESULTS
I concur that Count III must be reversed and dismissed based upon Hale v. State, 1995 OK CR 7, 888 P.2d 1027, and Davis V. State, 1999 OK CR 48, 993 P.2d 124.

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Footnotes:

1. 21 O.S. 1991, § 701.8
2. 47 O.S.Supp. 1999, § 10-102.1
3. 47 O.S.Supp. 1999, § 10-102
4. 21 O.S.1991, § 11.
5. Selsor v. State, 2 P.3d 344, 354 (Okl.Cr.2000), cert. denied, 532 U.S. 1039, 121 S.Ct. 2002, 149 L.Ed.2d 1004 (2001)
6. McGregor v. State, 885 P.2d 1366, 1381 (Okl.Cr.1994), cert. denied, 516 U.S. 827, 116 S.Ct. 95, 133 L.Ed.2d 50 (1995)
7. Jones v. State, 965 P.2d 385 (Okl.Cr.1998)
8. Selsor v. State, 2 P.3d at 355
9. Hale v. State, 1995 OK CR 7, 888 P.2d 1027
10. Davis v. State, 1999 OK CR 48, 993 P.2d 124.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.8 (1991) - Second Degree Murder
• Okla. Stat. tit. 47 § 10-102.1 (Supp. 1999) - Leaving the Scene of an Accident involving Death
• Okla. Stat. tit. 47 § 10-102 (Supp. 1999) - Leaving the Scene of an Accident involving Non-Fatal Personal Injuries
• Okla. Stat. tit. 21 § 11 (1991) - Protection Against Multiple Punishment

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:

• Bramlett v. State, 2018 OK CR 19, I 36, 422 P.3d 788, 799-800
• Burleson v. Saffle, 2002 OK CR 15
• Selsor v. State, 2 P.3d 344 (Okl.Cr.2000), cert. denied, 532 U.S. 1039, 121 S.Ct. 2002, 149 L.Ed.2d 1004 (2001)
• McGregor v. State, 885 P.2d 1366, 1381 (Okl.Cr.1994), cert. denied, 516 U.S. 827, 116 S.Ct. 95, 133 L.Ed.2d 50 (1995)
• Jones v. State, 965 P.2d 385 (Okl.Cr.1998)
• Hale v. State, 1995 OK CR 7, 888 P.2d 1027
• Davis v. State, 1999 OK CR 48, 993 P.2d 124