Carlos Gomez Modesto v The State of Oklahoma

F 2002-1041

Filed: Aug. 7, 2003

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Carlos Gomez Modesto appealed his conviction for Trafficking in Illegal Drugs (Methamphetamine and Cocaine). His conviction and sentence were partially changed: Count 1 for methamphetamine was reversed and dismissed, while Count 2 for cocaine was affirmed. Judge Chapel dissented on the affirmation of Count 2, believing that the whole trial should have been barred due to double jeopardy, which protects against being tried twice for the same crime.

Decision

The Judgment and Sentence imposed on Count 2 in Oklahoma County District Court, Case No. CF 97-7770, is hereby AFFIRMED and the Judgment and Sentence imposed on Count 1 is hereby REVERSED AND REMANDED TO THE DISTRICT COURT WITH INSTRUCTIONS TO DISMISS.

Issues

• Was there error in overruling Mr. Modesto's motion to quash and dismiss the information on grounds of former jeopardy?
• Did the trial court err in overruling Mr. Modesto's motion to dismiss one of the Counts at the sentencing hearing due to double jeopardy?
• Was the evidence presented at trial sufficient to support Mr. Modesto's convictions for trafficking in methamphetamine and cocaine?
• Did the prosecutor's comment during rebuttal closing argument comparing Mr. Modesto to Charles Manson justify reversing the convictions?
• Did evidentiary rulings by the trial court deprive Mr. Modesto of his right to a fundamentally fair trial?

Findings

• the trial court did not err in overruling the motion to quash and dismiss the information on grounds of former jeopardy
• the trial court erred in overruling the motion to dismiss one of the Counts due to double jeopardy
• the evidence was sufficient to support the convictions for trafficking in methamphetamine and cocaine
• the prosecutor's comment during rebuttal closing argument was error but does not warrant relief
• the evidentiary rulings by the trial court, while erroneous, were harmless beyond a reasonable doubt

F 2002-1041

Aug. 7, 2003

Carlos Gomez Modesto

Appellant

v

The State of Oklahoma

Appellee

SUMMARY OPINION

JOHNSON, PRESIDING JUDGE: Appellant, Carlos Gomez Modesto, was convicted in Oklahoma County District Court, Case No. CF 1997-7770, of Trafficking in Illegal Drugs (Methamphetamine), in violation of 63 O.S.Supp. 1995, § 2-415 (Count 1), and Trafficking in Illegal Drugs (Cocaine), in violation of 63 O.S.Supp.1995, § 2-415 (Count 2). Jury trial was held on March 5-7, 2001, before the Honorable Ray Elliott, District Judge. The jury found Appellant guilty on both Counts and set punishment at ten (10) years on each Count and imposed a Fifty Thousand Dollar ($50,000.00) fine on Count 1 and a Twenty-Five Thousand Dollar ($25,000.00) fine on Count 2. Formal sentencing was held on July 31, 2002. Judge Elliott found the jury was misinstructed as to the range of punishment on Count 1 and amended the punishment imposed on Count 1 to four (4) years imprisonment. Judge Elliott then sentenced Appellant to four (4) years on Count 1 and to (10) years on Count 2 and ordered the sentences to run concurrently. Thereafter, Appellant perfected this appeal.

Appellant raises five (5) propositions of error:

1. The trial court erred in overruling Mr. Modesto’s motion to quash and dismiss the information on grounds of former jeopardy;
2. The trial court erred in overruling Mr. Modesto’s motion to dismiss one of the Counts at the sentencing hearing because his conviction on both Counts 1 and 2 constitutes a double jeopardy violation;
3. The State presented insufficient evidence at trial to support Mr. Modesto’s convictions for trafficking in methamphetamine and cocaine;
4. Mr. Modesto’s convictions must be reversed with instructions to dismiss due to the prosecutor’s grossly prejudicial comment during rebuttal closing argument comparing Mr. Modesto to Charles Manson; and,
5. Evidentiary rulings by the trial court deprived Mr. Modesto of his right to a fundamentally fair trial.

After thorough consideration of the propositions raised and the entire record before us on appeal, including the original record, transcripts, briefs and exhibits of the parties, we have determined that Count 1 should be reversed and remanded to the district court with instructions to dismiss and Count 2 should be affirmed for the reasons set forth below. Using the standard set forth in Oregon V. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982), the trial judge determined Appellant’s retrial was not barred as Appellant had not shown the prosecutor intentionally goaded him into requesting a mistrial. See also McCarty v. State, 1995 OK CR 48, 19 59-60, 904 P.2d 110, 126-127. Accordingly, we find the trial court did not abuse its discretion by overruling his motion to quash and dismiss the information, and Proposition One is denied.

In Proposition Three, we find the evidence was sufficient to sustain Appellant’s convictions for both trafficking in methamphetamine and trafficking 2 in cocaine. Spuehler U. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-204. However, Proposition Two has merit and we find Appellant’s two convictions for trafficking violate the double punishment provision of the Oklahoma Constitution. Therefore, Count 1 should be, and hereby is, reversed and remanded with instructions to dismiss. Watkins v. State, 1991 OK CR 119, 829 P.2d 42, reh’g denied, 1992 OK CR 34, 855 P.2d 141.

The prosecutor’s comment invoking the name of Charles Manson was error, but we find it does not warrant relief in this case. See e.g., Black v. State, 2001 OK CR 5, 11 96-97, 21 P.3d 1047, 1078; Alverson v. State, 1999 OK CR 21, I 43, 983 P.2d 498, 514, cert. denied, 528 U.S. 1089, 120 S.Ct. 820, 145 L.Ed.2d 690 (2000). Lastly, while we find the trial court committed some error in its evidentiary rulings, particularly with regard to drug dealer profile type evidence, we find admission of this evidence was harmless beyond a reasonable doubt. See Wilson v. State, 1994 OK CR 5, 91 5-6, 871 P.2d 46, 48-49.

DECISION

The Judgment and Sentence imposed on Count 2 in Oklahoma County District Court, Case No. CF 97-7770, is hereby AFFIRMED and the Judgment and Sentence imposed on Count 1 is hereby REVERSED AND REMANDED TO THE DISTRICT COURT WITH INSTRUCTIONS TO DISMISS.

APPEARANCES AT TRIAL

JOSH T. WELCH
GEORGE SCOTT ADAMS
FIRST NAT’L CENTER, 29TH FLOOR
120 N. ROBINSON
OKLAHOMA CITY, OK 73102
ATTORNEY FOR APPELLANT

NATHAN DILLS
ASST. DISTRICT ATTORNEY
320 ROBERT S. KERR,
OKLAHOMA CITY, OK 73102
ATTORNEY FOR THE STATE

OPINION BY: JOHNSON, P.J.
LILE, V.P.J.: SPECIALLY CONCURS
LUMPKIN, J.: CONCUR
CHAPEL, J.: CONCURS IN PART/DISSENTS IN PART
STRUBHAR, J.: CONCUR

CHAPEL, JUDGE, CONCURS IN PART/DISSENTS IN PART: I concur in the decision to reverse Count I. I dissent to the decision to affirm Count II. I am of the opinion that this entire trial was barred by the double jeopardy provisions of our state and federal constitutions. This was a retrial of a case which had previously been mistried due to prosecutorial error. In my judgment when a mistrial is granted due to error, which the prosecutor knows, or should know that the error may result in a mistrial then retrial is prohibited by double jeopardy provisions.

Click Here To Download PDF

Footnotes:

1. Okla. Stat. tit. 63 § 2-415
2. Oregon V. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982)
3. McCarty v. State, 1995 OK CR 48, 19 59-60, 904 P.2d 110, 126-127
4. Spuehler U. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-204
5. Watkins v. State, 1991 OK CR 119, 829 P.2d 42, reh'g denied, 1992 OK CR 34, 855 P.2d 141
6. Black v. State, 2001 OK CR 5, 11 96-97, 21 P.3d 1047, 1078
7. Alverson v. State, 1999 OK CR 21, I 43, 983 P.2d 498, 514, cert. denied, 528 U.S. 1089, 120 S.Ct. 820, 145 L.Ed.2d 690 (2000)
8. Wilson v. State, 1994 OK CR 5, 91 5-6, 871 P.2d 46, 48-49

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-415 (1995) - Trafficking in Illegal Drugs
• Okla. Stat. tit. 21 § 701.8 (2011) - Double Jeopardy

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
• Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982)
• McCarty v. State, 1995 OK CR 48, 19 59-60, 904 P.2d 110, 126-127
• Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-204
• Watkins v. State, 1991 OK CR 119, 829 P.2d 42, reh'g denied, 1992 OK CR 34, 855 P.2d 141
• Black v. State, 2001 OK CR 5, 11 96-97, 21 P.3d 1047, 1078
• Alverson v. State, 1999 OK CR 21, I 43, 983 P.2d 498, 514, cert. denied, 528 U.S. 1089, 120 S.Ct. 820, 145 L.Ed.2d 690 (2000)
• Wilson v. State, 1994 OK CR 5, 91 5-6, 871 P.2d 46, 48-49