Tashiro Rudy Tillman v The State Of Oklahoma

F 2001-465

Filed: Jun. 4, 2002

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Tashiro Rudy Tillman appealed his conviction for Unlawful Possession of a Controlled Drug with Intent to Distribute and Obstructing an Officer. He was convicted and sentenced to ten years in prison for the drug charge and fined $1,000, while the obstruction charge included a $500 fine. The court found that there was enough evidence for the drug conviction, and his statements during booking were allowed. The issues raised about the prosecutor’s comments did not change the trial's fairness. However, the court agreed that he should have been sentenced differently under a law for young adults, so they changed his sentence and sent the case back for resentencing. Judge Lumpkin and the others agreed with this decision, but there was no dissent.

Decision

The conviction for Count 1 in Tulsa County District Court, Case No. CF 2000-1842, is hereby AFFIRMED, but the sentence is VACATED and REMANDED TO THE DISTRICT COURT FOR RESENTENCING; the Judgment and Sentence imposed for Count 2 is hereby AFFIRMED.

Issues

• Was the evidence sufficient to support a conviction for Possession of Cocaine with Intent to Distribute?
• Should Appellant's statement made during booking that he was "unemployed" have been suppressed?
• Did the prosecutor's statements deny appellant's right to a fair trial under the Sixth and Fourteenth Amendments?
• Was Appellant improperly sentenced in violation of 22 O.S. § 996.3?

Findings

• The evidence was sufficient to support a conviction for Possession of Cocaine with Intent to Distribute.
• The booking statement of appellant about being "unemployed" was not subject to suppression.
• The allegations of prosecutorial misconduct did not deprive appellant of a fair trial.
• The sentence imposed for Count 1 was vacated and remanded for resentencing.
• The Judgment and Sentence for Count 2 was affirmed.

F 2001-465

Jun. 4, 2002

Tashiro Rudy Tillman

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

JOHNSON, VICE-PRESIDING JUDGE:

Appellant, Tashiro Rudy Tillman, was convicted by a jury in Tulsa County District Court, Case No. CF 2000-1842, of Unlawful Possession of a Controlled Drug with Intent to Distribute, in violation of 63 .S.Supp. 1999, § 2-401, after former conviction of a felony (Count 1) and of Obstructing an Officer, in violation of 21 O.S.1991, § 540 (Count 2). Jury trial was held on April 2nd – 4th, 2001, before the Honorable Thomas Gillert, District Judge. The jury set punishment at ten (10) years imprisonment on Count 1 and imposed a One Thousand Dollar ($1,000.00) fine; on Count 2, the jury assessed a Five Hundred Dollar ($500.00) fine. Judge Gillert sentenced Appellant on April 9, 2001, in accordance with the jury’s verdicts. From the Judgment and Sentence imposed, Appellant filed this appeal.

Appellant raises four propositions of error:

1. The evidence was insufficient to support a conviction for Possession of Cocaine with Intent to Distribute;
2. Appellant’s statement made during booking that he was unemployed should have been suppressed;
3. The statements of the prosecutor served to deny appellant’s right to a fair trial pursuant to the Sixth and Fourteenth Amendments to the United States Constitution; and
4. Appellant was improperly sentenced in violation of 22 O.S. § 996.3.

After thorough review of the propositions raised, the entire record before us, including the original record, transcripts and briefs of the parties, we have determined that the convictions should be affirmed. However, we find the issue raised in Proposition 4 has merit and the sentence imposed for Count 1 is hereby VACATED and REMANDED TO THE DISTRICT COURT FOR RESENTENCING for the reasons set forth below.

Proposition 1 does not warrant relief, as sufficient evidence was presented from which the jury could reasonably find Appellant possessed crack cocaine with intent to distribute. Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-204. No plain error occurred when the trial court allowed officer Franklin to testify that Appellant stated he was unemployed during the booking process. Gilbert U. State, 1997 OK CR 71, 951 P.2d 98, cert. denied, 525 U.S. 890, 119 S.Ct. 207, 142 L.Ed.2d 170 (1998); Pennsylvania v. Muniz, 496 U.S. 582, 601, 110 S.Ct. 2638, 2650, 110 L.Ed.2d 528 (1990). Proposition 2 is therefore denied.

The allegations of prosecutorial misconduct do not require reversal or modification of sentence. Only two of the complained of comments were objectionable and the cumulative effect of those comments did not deprive Appellant of a fair trial. Spears v. State, 1995 OK CR 36, 1 60, 900 P.2d 431, 2 445, cert. denied, 516 U.S. 1031, 116 S.Ct. 678, 133 L.Ed.2d 527 (1995). Proposition 3 is denied.

Lastly, we find merit to the claim raised in Proposition 4. The record does not reflect Appellant effected a knowing waiver of his statutory right to be sentenced under the Delayed Sentencing Program for Young Adults. 22 O.S.2001, § 996.3. Accordingly, the sentence imposed by the trial court on Count 1 is hereby VACATED and REMANDED TO THE DISTRICT COURT FOR RESENTENCING pursuant to 22 O.S.2001, § 996.3.

DECISION

The conviction for Count 1 in Tulsa County District Court, Case No. CF 2000-1842, is hereby AFFIRMED, but the sentence is VACATED and REMANDED TO THE DISTRICT COURT FOR RESENTENCING; the Judgment and Sentence imposed for Count 2 is hereby AFFIRMED.

**APPEARANCES AT TRIAL**

**APPEARANCES ON APPEAL**

MARNA S. FRANKLIN
STUART SOUTHERLAND
ATTORNEY AT LAW
ASST. PUBLIC DEFENDER
403 SOUTH BOULDER
PYTHIAN BUILDING, SUITE 300
TULSA, OKLAHOMA 74103

ATTORNEY FOR THE DEFENDANT
W.A. DREW EDMONDSON
DAVID C. YOULL
ATTORNEY GENERAL OF OKLAHOMA
ASST. DISTRICT ATTORNEY
KEELEY L. HARRIS
406 COURTHOUSE
ASSISTANT ATTORNEY GENERAL
500 SOUTH DENVER
112 STATE CAPITOL BUILDING
TULSA, OKLAHOMA 74103
OKLAHOMA CITY, OK 73105

ATTORNEY FOR THE STATE
ATTORNEYS FOR STATE

OPINION BY: JOHNSON, V.P.J.
LUMPKIN, P.J: CONCURS
CHAPEL, J.: CONCURS
STRUBHAR, J.: CONCURS
LILE, J.: CONCURS

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Footnotes:

1. 63 S.Supp. 1999, § 2-401
2. 21 O.S.1991, § 540
3. 22 O.S. § 996.3
4. 22 O.S.2001, § 996.3

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-401 (1999) - Unlawful Possession of a Controlled Drug with Intent to Distribute
• Okla. Stat. tit. 21 § 540 (1991) - Obstructing an Officer
• Okla. Stat. tit. 22 § 996.3 (2001) - Delayed Sentencing Program for Young Adults

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:

• Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-204.
• Gilbert U. State, 1997 OK CR 71, 951 P.2d 98, cert. denied, 525 U.S. 890, 119 S.Ct. 207, 142 L.Ed.2d 170 (1998).
• Pennsylvania v. Muniz, 496 U.S. 582, 601, 110 S.Ct. 2638, 2650, 110 L.Ed.2d 528 (1990).
• Spears v. State, 1995 OK CR 36, 1 60, 900 P.2d 431, 2 445, cert. denied, 516 U.S. 1031, 116 S.Ct. 678, 133 L.Ed.2d 527 (1995).