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F-2003-278

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Carrol Gene Hightower v The State Of Oklahoma

F-2003-278

Filed: Oct. 7, 2004

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Carrol Gene Hightower appealed his conviction for cultivating marijuana and other related crimes. His convictions and sentence included a total of 34 years in prison and fines of $34,700 for multiple counts. Judge Chapel dissented on certain aspects of the case. The Oklahoma Court of Criminal Appeals reviewed Hightower's case, focusing on several issues he raised. Hightower argued that the evidence against him was collected after an illegal entry onto his property without a warrant. However, the court decided that the marijuana plants were spotted from a helicopter, and this was lawful since it was in an open field. The evidence could be used, allowing the court to confirm many of Hightower's convictions. However, they found a problem with Hightower being punished for two crimes that were based on the same act regarding marijuana possession and maintaining a dwelling for it, which led to one of his convictions being dismissed. In summary, the court upheld most of Hightower's convictions but reversed and dismissed one charge because of double punishment.

Decision

The judgments and sentences are hereby AFFIRMED with respect to Counts 1, 4, and 5. The judgment and sentence with respect to Count 2, Possession of Marijuana with Intent to Distribute is REVERSED and DISMISSED on double punishment grounds.

Issues

  • was there an unlawful warrantless entry onto Appellant's property that warranted suppression of evidence?
  • did the trial court err in denying Appellant's motion to dismiss based on double jeopardy claims?
  • was the jury misled by the State regarding the conviction for maintaining a dwelling house for personal marijuana consumption?
  • was Appellant prejudiced by the introduction of evidence regarding prior arrests during the trial?
  • did the State fail to comply with discovery obligations during the trial?
  • did the State intentionally mislead the jury with unsupported statements?
  • was there sufficient evidence to support the jury's verdict beyond a reasonable doubt?
  • was Appellant denied a fair trial due to an accumulation of irregularities in the case?

Findings

  • the court did not err regarding the warrantless entry as the evidence was properly admitted under the open fields doctrine
  • the court erred in allowing both convictions for possession with intent to distribute and maintaining a dwelling house as it constituted double punishment
  • the court found no error regarding the jury's understanding of the law concerning maintaining a dwelling
  • the court found no prejudicial error in admitting evidence of prior arrests during the trial
  • the court found no violation of discovery rules that would warrant relief
  • the court found no plain error in allegations of misleading the jury with unsupported statements
  • the court found sufficient evidence to support the jury's verdict beyond a reasonable doubt
  • the court found no cumulative error that entitled the appellant to relief

F-2003-278

Oct. 7, 2004

Carrol Gene Hightower

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, JUDGE: Appellant Carrol Gene Hightower was tried by jury in the District Court of Cleveland County, Case No. CF-1997-1543, and convicted of Cultivation of Marijuana (Count 1), in violation of 63 O.S.Supp.1997, § 2-509, Possession of Marijuana with Intent to Distribute (Count 2), in violation of 63 O.S.Supp. 1997, § 2-401(B)(2), Maintaining a Dwelling House Used for the Keeping of CDS (Count 4), in violation of 63 O.S. 1991, § 2-404, and Failure to Display a Stamp on Controlled Drug (Count 5), in violation of 63 O.S.1991, § 450.8. The jury set punishment at twelve (12) years imprisonment and a $17,000.00 fine on Count 1, fourteen (14) years imprisonment and a $10,500.00 fine of Count 2, four (4) years imprisonment and a $5,200.00 fine on Count 4, and a $2,000 fine on Count 5. The trial judge sentenced Appellant accordingly, running the sentences consecutively and suspending the sentence on Count 2. Appellant now appeals his convictions and sentences. He was found not guilty on Count III, Possession of a Firearm in the Commission of a Felony.

Appellant raises the following propositions of error in this appeal:

I. All evidence flowed from the unlawful warrantless entry onto Appellant’s property and the District Court erred in not granting Appellant’s motion to suppress;

II. The trial court erred in overruling Appellant’s motion to dismiss because of double jeopardy and violations of 21 O.S. § 11;

III. The jury was misled by the State into believing Appellant could be convicted of maintaining a dwelling house for the purpose of keeping marijuana when the possession was for personal consumption;

IV. Appellant was prejudiced and denied a fair trial when evidence of prior arrests was given to the jury in the guilt-innocence phase of trial;

V. Appellant was denied a fair trial in that the State failed to comply with discovery and was allowed to create evidence during the trial without prior notice to Appellant;

VI. The State intentionally misled the jury with unsupported statements;

VII. The evidence in this case does not exclude every reasonable hypothesis except that of guilt; and

VIII. Due to an accumulation of irregularities committed in this case, Appellant was denied a fair trial.

After a thorough consideration of these propositions and the entire record before us, including the original record, transcripts, and briefs of the parties, we find relief is required with respect to Count 2.

With respect to proposition one, we find the marijuana patch located on Appellant’s property was in an open field that was first viewed from an independent source, a helicopter pilot who had spotted more than 2,000 marijuana fields from the air. With his naked eye, the helicopter pilot observed one of the two most professionally grown marijuana fields he had ever seen. Based upon this information, which was itself sufficient for the issuance of a search warrant, officers climbed the fence to the property Appellant controlled and found the patch, which contained some 931 growing plants. The patch was not within the curtilage of the mobile home located on the property, as they were separated by 75 yards.

As such, the warrantless search does not fall within the protections of the Fourth Amendment or Article II, § 30 of Oklahoma’s Constitution. See Oliver v. United States, 466 U.S. 170, 104 S.Ct. 1735, 1741, 80 L.Ed.2d 214 (1984) ([A]n individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home.); United States v. Dunn, 480 U.S. 294, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987) (finding a barn located sixty yards from the property’s home was not within the curtilage); Florida v. Riley, 488 U.S. 445, 109 S.Ct. 693, 102 L.Ed.2d 835 (1989) (finding no Fourth Amendment violation when a helicopter looked into the defendant’s greenhouse with a naked eye from 400 feet in the air); Nix v. Williams, 467 U.S. 431, 443, 104 S.Ct. 2501, 2508, 81 L.Ed.2d 377 (1984) (finding the independent source exception to the exclusionary rule allows admission of evidence that has been discovered by means wholly independent of any constitutional violation.); Grider v. State, 1987 OK 212, 743 P.2d 678 (where the Court applied the open fields doctrine, finding no search and seizure violation); and Fite v. State, 1993 OK 58, 873 P.2d 293 (finding officers acted lawfully when they entered Fite’s property and peered into the well house from an open field).

With respect to proposition two, we find all of Appellant’s double jeopardy and double punishment claims fail, except one. We find Appellant’s convictions for both possessing marijuana with the intent to distribute (Count 2) and maintaining a dwelling house used for the keeping of marijuana (Count 4) do not withstand a double punishment analysis under 21 O.S.1991, § 11. We find under this record that the crimes arise out of a single act or omission and may not be punished under two statutes. Peacock v. State, 2002 OK 21, 46 P.3d 713, 714; Davis v. State, 1999 OK CR 48, 993 P.2d 124, 126.

With respect to proposition three, we find no error. Parties are given a wide latitude in closing arguments to discuss the evidence and reasonable inferences to be drawn therefrom. Selsor v. State, 2000 OK CR 9, I 35, 2 P.3d 344, 354.

With respect to proposition four, we presume there was regularity in the trial court proceedings. State v. Ballard, 1994 OK CR 6, 868 P.2d 738, 742. Assuming, arguendo, that exhibit 85 was given to the jury (which is entirely unclear), we find any error relating thereto harmless, given the overwhelming strength of the evidence. We have no grave doubts regarding its impact on the jury’s decision. Simpson v. State, 1994 OK CR 40, 876 P.2d 690, 702.

With respect to proposition five, we find the admission of relevant evidence from the warrantless search was not fruit of the poisonous tree. The admission of evidence is within the sound discretion of the trial judge and will not be disturbed absent a clear abuse of discretion. Pebeahsy v. State, 1987 OK CR 194, 742 P.2d 1162, 1163. We find no clear abuse of discretion here, nor do we find any discovery violations worthy of relief.

With respect to proposition six, we find no plain error pertaining to the allegations of intentionally misleading the jury with unsupported statements.

With respect to proposition seven, we find after viewing the evidence in the light most favorable to the State and accepting all reasonable inferences and credibility choices that tend to support the jury’s verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Spuehler v. State, 1985 OK CR 132, 709 P.2d 202, 203-204. And finally, we find no cumulative error entitled to relief.

DECISION

The judgments and sentences are hereby AFFIRMED with respect to Counts 1, 4, and 5. The judgment and sentence with respect to Count 2, Possession of Marijuana with Intent to Distribute is REVERSED and DISMISSED on double punishment grounds.

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Footnotes:

  1. 63 O.S.Supp.1997, § 2-509
  2. 63 O.S.Supp. 1997, § 2-401(B)(2)
  3. 63 O.S. 1991, § 2-404
  4. 63 O.S.1991, § 450.8
  5. 21 O.S. § 11
  6. Oliver v. United States, 466 U.S. 170, 104 S.Ct. 1735 (1984)
  7. United States v. Dunn, 480 U.S. 294, 107 S.Ct. 1134 (1987)
  8. Florida v. Riley, 488 U.S. 445, 109 S.Ct. 693 (1989)
  9. Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501 (1984)
  10. Grider v. State, 1987 OK 212, 743 P.2d 678
  11. Dale v. State, 2002 OK CR 1, 38 P.3d 910
  12. Fite v. State, 1993 OK CR 58, 873 P.2d 293
  13. Peacock v. State, 2002 OK 21, 46 P.3d 713
  14. Davis v. State, 1999 OK CR 48, 993 P.2d 124
  15. Selsor v. State, 2000 OK CR 9, 2 P.3d 344
  16. State v. Ballard, 1994 OK CR 6, 868 P.2d 738
  17. Simpson v. State, 1994 OK CR 40, 876 P.2d 690
  18. Pebeahsy v. State, 1987 OK CR 194, 742 P.2d 1162
  19. Spuehler v. State, 1985 OK CR 132, 709 P.2d 202
  20. Fite v. State, 1993 OK CR 58, 873 P.2d 293 (Judge Chapel)

Oklahoma Statutes citations:

  • Okla. Stat. tit. 63 § 2-509 - Cultivation of Marijuana
  • Okla. Stat. tit. 63 § 2-401 - Possession of Marijuana with Intent to Distribute
  • Okla. Stat. tit. 63 § 2-404 - Keeping of CDS
  • Okla. Stat. tit. 63 § 450.8 - Failure to Display a Stamp on Controlled Drug
  • Okla. Stat. tit. 21 § 11 - Double Jeopardy
  • Okla. Stat. tit. 21 § 701.8 - Sentencing for Drug Offenses

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:

  • Oliver v. United States, 466 U.S. 170, 104 S.Ct. 1735, 1741, 80 L.Ed.2d 214 (1984)
  • United States v. Dunn, 480 U.S. 294, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987)
  • Florida v. Riley, 488 U.S. 445, 109 S.Ct. 693, 102 L.Ed.2d 835 (1989)
  • Nix v. Williams, 467 U.S. 431, 443, 104 S.Ct. 2501, 2508, 81 L.Ed.2d 377 (1984)
  • Grider v. State, 1987 OK 212, 743 P.2d 678
  • Dale v. State, 2002 OK CR 1, 38 P.3d 910
  • Fite v. State, 1993 OK 58, 873 P.2d 293
  • Peacock v. State, 2002 OK 21, 46 P.3d 713, 714
  • Davis v. State, 1999 OK CR 48, 993 P.2d 124, 126
  • Selsor v. State, 2000 OK CR 9, I 35, 2 P.3d 344, 354
  • State v. Ballard, 1994 OK CR 6, 868 P.2d 738, 742
  • Simpson v. State, 1994 OK CR 40, 876 P.2d 690, 702
  • Pebeahsy v. State, 1987 OK CR 194, 742 P.2d 1162, 1163
  • Spuehler v. State, 1985 OK CR 132, 709 P.2d 202, 203-204

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