Desean Terrell Poore v The State Of Oklahoma

F-2003-22

Filed: Dec. 12, 2002

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Desean Terrell Poore appealed his conviction for Accessory After the Fact to First-Degree Murder and Accessory After the Fact to First-Degree Manslaughter. Conviction and sentence were partially reversed; the second conviction was dismissed. Judge Lile dissented.

Decision

The Judgment and Sentence as to Count 2 is REVERSED WITH INSTRUCTIONS TO DISMISS, and the cause is REMANDED to the District Court for an Order Nunc Pro Tunc regarding Count 1.

Issues

• was there only sufficient evidence to support a single conviction for Accessory After the Fact?
• did the trial court properly instruct the maximum sentence for Accessory After the Fact to Manslaughter?
• was the decision to impose consecutive sentences excessive and warrant modification?
• should the Judgments and Sentences be modified to accurately reflect the sentences imposed?

Findings

• The court erred in allowing multiple convictions for Accessory After the Fact, resulting in the reversal and dismissal of Count 2.
• Propositions 2 and 3 are moot due to the resolution of Proposition 1.
• The case is remanded for a clerical correction regarding Count 1 to remove the reference to a prior felony conviction.

F-2003-22

Dec. 12, 2002

Desean Terrell Poore

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

JOHNSON, PRESIDING JUDGE:

Appellant, Desean Terrell Poore, was tried jointly with his brother, Delvone Scoggins Poore, in Tulsa County District Court Case No. CF-2002-2259 for two counts of First Degree (Malice) Murder (21 O.S.2001, § 701.7). The jury found Appellant guilty of Accessory After the Fact to First-Degree Murder in Count 1, and Accessory After the Fact to First-Degree Manslaughter in Count 2.1 In accordance with the jury’s recommendation, on December 12, 2002, the Honorable Thomas C. Gillert, District Judge, sentenced Appellant to fifteen years imprisonment on Count 1, and to ten years imprisonment on Count 2. The sentences were ordered to be served consecutively. Appellant then timely filed this appeal.

Appellant raises the following propositions of error:

1. Appellant’s conduct supports only a single conviction for Accessory After the Fact; therefore one of his two convictions for this offense must be vacated.
2. Although the maximum sentence for Accessory After the Fact to Manslaughter was not more than two years, the trial court instructed that the sentence was not more than 37.5 years; therefore the Court should modify the ten-year sentence imposed on Appellant.
3. The decision to run Appellant’s sentences consecutively resulted in an excessive sentence and should be modified.
4. The Judgments and Sentences should be modified to accurately state the sentences imposed.

After thorough consideration of the propositions, and the entire record before us on appeal, including the original record, transcripts, and briefs of the parties, we reverse in part and remand. As to Proposition 1, the jury rejected evidence suggesting that Appellant was complicit in the homicides, but found him guilty of aiding the killer after the homicides were committed. The crime of Accessory After the Fact focuses on the defendant’s conduct after the commission of any felony by another person. 21 O.S.2001, § 173. The evidence supporting the jury’s conclusion that Appellant was nothing more than an accessory to the killings was the same relative to both victims: the act of driving the killer away from the scene. Under these facts, Appellant’s multiple convictions for Accessory After the Fact constitute double punishment for a single course of action. 21 O.S.2001, § 11; cf. Jones v. State, 1998 OK CR 36, I 5, 965 P.2d 385, 386 (multiple convictions for Conspiracy to Commit Murder constituted double punishment, where evidence showed a single agreement to kill two victims). Accordingly, Count 2 (Accessory After the Fact to First Degree Manslaughter) is hereby REVERSED WITH INSTRUCTIONS TO DISMISS.

Our decision with respect to Proposition 1 renders Propositions 2 and 3 moot. As to Proposition 4, the State concedes a clerical error in the Judgment and Sentence, as Appellant was not convicted After Former Conviction of a Felony. Therefore, the case is REMANDED to the District Court of Tulsa County for an Order Nunc Pro Tunc to remove the reference in the Judgment and Sentence to any prior felony conviction. Mathues v. State, 1996 2 OK CR 29, 1 4, 925 P.2d 64, 65.

DECISION

The Judgment and Sentence as to Count 2 is REVERSED WITH INSTRUCTIONS TO DISMISS, and the cause is REMANDED to the District Court for an Order Nunc Pro Tunc regarding Count 1.

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Footnotes:

1. 21 O.S.2001, § 701.7
2. 21 O.S.2001, § 173
3. 21 O.S.2001, § 11
4. Jones v. State, 1998 OK CR 36, I 5, 965 P.2d 385, 386
5. Mathues v. State, 1996 2 OK CR 29, 1 4, 925 P.2d 64, 65

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.7 - First Degree (Malice) Murder
• Okla. Stat. tit. 21 § 173 - Accessory After the Fact
• Okla. Stat. tit. 21 § 11 - Double 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
• Jones v. State, 1998 OK CR 36, I 5, 965 P.2d 385, 386
• Mathues v. State, 1996 OK CR 29, I 4, 925 P.2d 64, 65