Andre Keith Reed v State Of Oklahoma

F-2003-1252

Filed: Oct. 22, 2004

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Andre Keith Reed appealed his conviction for possession of a firearm after a felony. His conviction and sentence were modified to twenty years in prison. Judge Lumpkin dissented.

Decision

The Judgment of the trial court is AFFIRMED. The Sentence imposed is MODIFIED to twenty (20) years imprisonment.

Issues

• Was there a trial court error in failing to order a mistrial on each of the charged offenses after the jury was unable to reach a verdict on the first degree murder charge?
• Did the trial court's decision result in an excessive, disproportionate, cruel and/or unusual punishment for felonious possession of a firearm?
• Was the tri-stage trial proper under the circumstances of this case?
• Should the life sentence imposed for the crime be modified based on the court's findings?

Findings

• The trial court did not abuse its discretion in denying Appellant's request for a mistrial.
• The tri-stage trial was proper.
• The life sentence imposed for the crime committed shocks the court's conscience.
• The sentence is modified to twenty (20) years imprisonment.

F-2003-1252

Oct. 22, 2004

Andre Keith Reed

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

STRUBHAR, J.: Andre Keith Reed, Appellant, was tried by jury in Oklahoma County District Court, Case No. CF-2002-310, for the crimes of Count 1 – First Degree Murder, Count 2 – Possession of a Firearm After Former Conviction of a Felony, AFCF and Count 3 – Possession of a Firearm After Former Conviction of a Felony, AFCF. The Honorable Virgil C. Black, who presided at trial, declared a mistrial as to Count 1 after the jury could not reach a verdict. Following the mistrial, the State dismissed Count 2, the felon in possession charge related to the homicide. The jury convicted Appellant on Count 3 and recommended a life sentence. The trial court sentenced Appellant accordingly. From this judgment and sentence, he appeals.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, exhibits and briefs of the parties, we affirm Appellant’s conviction, but find modification of his sentence is warranted. The following proposition of error was considered:

I. The trial court’s error in failing to order a mistrial on each of the charged offenses in this case after the jury was unable to reach a verdict on the first degree murder charge resulted in a life sentence for felonious possession of a firearm, a sentence that is excessive, disproportionate, cruel and/or unusual punishment driven by passion and prejudice, in violation of the United States Constitution and Constitution of the State of Oklahoma.

As to sole proposition, we find the trial court did not abuse its discretion in denying Appellant’s request for a mistrial and that the tri-stage trial was proper. Knighton v. State, 912 P.2d 878, 894 (Okl.Cr.1996), cert. denied, 519 U.S. 841, 117 S.Ct. 120, 136 L.Ed.2d 71 (1996); Chapple v. State, 866 P.2d 1213, 1216-17 (Okl.Cr.1993); 22 O.S.2001, § 860.1. We do find under the circumstances of this case that the life sentence imposed for the crime committed shocks our conscience and that modification is the appropriate remedy. Rea v. State, 34 P.3d 148, 149 (Okl.Cr.2001). Accordingly, we find Appellant’s life sentence should be modified to twenty (20) years imprisonment. 22 O.S.2001, § 1066.

DECISION

The Judgment of the trial court is AFFIRMED. The Sentence imposed is MODIFIED to twenty (20) years imprisonment.

APPEARANCES AT TRIAL

ANTHONY MCKESSON
ASST. PUBLIC DEFENDER
611 COUNTY OFFICE BLDG.
OKLAHOMA CITY, OK 73102
ATTORNEY FOR APPELLANT

ROBERT SWARTZ
DAN GRIDLEY
ATTORNEY GENERAL
320 ROBERT S. KERR; STE. 505
OKLAHOMA CITY, OK 73102
ATTORNEYS FOR THE STATE

APPEARANCES ON APPEAL

CAROLYN L. MERRITT
ASST. PUBLIC DEFENDER
611 COUNTY OFFICE BLDG.
OKLAHOMA CITY, OK 73102
ATTORNEY FOR APPELLANT

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

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

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Footnotes:

1. Okla. Stat. tit. 22 § 860.1
2. Okla. Stat. tit. 22 § 1066
3. Knighton v. State, 912 P.2d 878, 894 (Okl.Cr.1996), cert. denied, 519 U.S. 841, 117 S.Ct. 120, 136 L.Ed.2d 71 (1996)
4. Chapple v. State, 866 P.2d 1213, 1216-17 (Okl.Cr.1993)
5. Rea v. State, 34 P.3d 148, 149 (Okl.Cr.2001)

Oklahoma Statutes citations:

• Okla. Stat. tit. 22 § 860.1 - Mistrial
• Okla. Stat. tit. 22 § 1066 - Modification of sentences

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:

• Knighton v. State, 912 P.2d 878, 894 (Okl.Cr.1996), cert. denied, 519 U.S. 841, 117 S.Ct. 120, 136 L.Ed.2d 71 (1996)
• Chapple v. State, 866 P.2d 1213, 1216-17 (Okl.Cr.1993)
• Rea v. State, 34 P.3d 148, 149 (Okl.Cr.2001)