Dewayne Cedric Lee Shirley v The State Of Oklahoma

F 2003-442

Filed: Jun. 24, 2004

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Dewayne Cedric Lee Shirley appealed his conviction for conspiracy to commit robbery, first-degree murder, robbery with a dangerous weapon, and possession of a firearm by a convicted felon. His conviction and sentence included fifty years for conspiracy and robbery, life with parole for murder, and ten years for firearm possession, with the sentences to be served one after the other. Judge Chapel dissented, wanting one conspiracy and the robbery count to be affirmed while reversing the other counts.

Decision

The Judgment and Sentences imposed in Counts Six and Eight are REVERSED AND REMANDED WITH INSTRUCTIONS TO DISMISS. The Judgment and Sentences on all remaining counts are AFFIRMED.

Issues

• Was there an improper directed verdict by the trial court?
• Did a Batson violation prevent Appellant from having a fair trial?
• Does felony murder arise from the shooting death of a co-felon by a robbery victim during a convenience store robbery?
• Was the evidence sufficient to prove the conspiracy allegations beyond a reasonable doubt?
• Do two counts of conspiracy violate the constitutional prohibition against double jeopardy?
• Was there evidence that Appellant possessed a firearm at either robbery?
• Did prosecutorial misconduct deprive Appellant of a fair trial?
• Did evidentiary harpoons and other crime evidence deprive Appellant of a fair trial?
• Did the trial court err by failing to sever the counts on two separate robberies?
• Was there ineffective assistance of counsel that denied Appellant a fair trial?
• Did cumulative error deprive Appellant of a fair trial?

Findings

• the trial court did not improperly direct a verdict
• the Batson violation did not prevent Appellant from having a fair trial
• the statutory offense of felony murder applies to the facts of this case
• the evidence was sufficient to prove the conspiracy allegations beyond a reasonable doubt
• two counts of conspiracy do not violate the constitutional prohibition against double jeopardy
• there was no evidence that Appellant possessed a firearm at either robbery
• the complained of instances of prosecutorial misconduct did not deprive Appellant of a fair trial
• evidentiary harpoons and other crime evidence did not deprive Appellant of a fair trial
• the trial court did not err by failing to sever the counts on two separate robberies
• Appellant's trial counsel was not ineffective
• cumulative error did not deprive Appellant of a fair trial
• the joinder of the offenses was proper
• Appellant's convictions for two counts of Possession of a Firearm by a Convicted Felon are reversed and remanded with instructions to dismiss
• the Judgment and Sentences on all remaining counts are affirmed

F 2003-442

Jun. 24, 2004

Dewayne Cedric Lee Shirley

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

JOHNSON, PRESIDING JUDGE: Appellant, Dewayne Cedric Lee Shirley, was convicted by a jury in Oklahoma County District Court, Case No. CF 2000-6468, for the crimes of Conspiracy to Commit Robbery (Counts 1 and 3), in violation of 21 O.S.1991, § 421, First Degree Murder (Count 2), in violation of 21 O.S.1991, § 701.7(B), Robbery with a Dangerous Weapon (Count 4), in violation of 21 O.S.1991, § 801, and Possession of a Firearm by Convicted Felon (Counts 6 and 8), in violation of 21 O.S.1991, § 1283, all after former conviction of a felony. The Honorable Susan Caswell, District Judge, presided at trial. The jury set punishment at fifty (50) years on Counts 1, 3, and 4; life imprisonment with parole on Count 2; and, ten (10) years on Counts 6 and 8. Judgment and Sentence was imposed in accordance with the jury’s verdicts on April 25, 2003. Judge Caswell ordered the sentences to be served consecutively. From the Judgment and Sentences imposed, Appellant filed this appeal.

Appellant raises eleven (11) propositions of error:
1. The trial court improperly directed a verdict in this case;
2. A Batson violation prevented Appellant from having a fair trial;
3. Felony murder does not arise from the shooting death of a co-felon by a robbery victim during a convenience store robbery;
4. The evidence was insufficient to prove the conspiracy allegations beyond a reasonable doubt;
5. Two counts of conspiracy violate the constitutional prohibition against double jeopardy;
6. There was no evidence that Appellant possessed a firearm at either robbery;
7. Prosecutorial misconduct deprived Appellant of a fair trial;
8. Evidentiary harpoons and other crime evidence deprived Appellant of a fair trial;
9. The trial court erred by failing to sever the counts on two separate robberies;
10. Ineffective assistance of counsel denied Appellant a fair trial; and,
11. Cumulative error deprived Appellant of a fair trial.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, briefs and exhibits of the parties, we have determined that neither reversal nor modification is required for the reasons set forth below. The trial court did not improperly direct a verdict. Cohee v. State, 1997 OK CR 30, 942 P.2d 211, 215; Gatlin v. State, 1976 OK CR 180, 110, 553 P.2d 204, 206. Proposition One is denied. The record reflects the prosecutor stated a sufficiently race neutral reason for the excusal of the potential juror. Bland v. State, 2000 OK CR 11, 2 11, 4 P.3d 702, 711, cert. denied, 531 U.S. 1099, 121 S.Ct. 832, 148 L.Ed.2d 714 (2001). Proposition Two is denied. The statutory offense of felony murder applies to the facts of this case, and Appellant was properly charged with and convicted of First Degree Murder. Kinchion v. State, 2003 OK CR 28, 9, 81 P.3d 681. Proposition Three is denied. In Proposition Four, we find the existence of two conspiracies to commit robbery was clearly supported by evidence that two separate agreements were reached between Appellant and his co-conspirators to rob the convenience stores. Spuehler v. State, 1985 OK CR 32, 1 7, 709 P.2d 202, 203-204; Kinchion, 2003 OK CR 28, 10, 81 P.3d 681. Appellant’s convictions for two counts of conspiracy do not violate the constitutional prohibition against double jeopardy. Kinchion, 2003 OK CR 28, 81 P.3d 681. We also find Propositions Seven, Eight, Ten and Eleven do not warrant relief. The complained of instances of prosecutorial misconduct were not objected to and our review is for plain error. Simpson v. State, 1994 OK CR 40, 11, 876 P.2d 690, 693. We find no plain error. Further, we find Appellant’s complaints of evidentiary harpoons are not supported by the record and the references to threats by the prosecutor were relevant to show Appellant’s involvement in the crimes. Melvin v. State, 1985 OK CR 111, 5, 706 P.2d 163, 164; Powell v. State, 2000 OK CR 5, 103, 995 P.2d 510, 533, cert. denied, 531 U.S. 935, 121 S.Ct. 321, 148 L.Ed.2d 258 (2000).

We also find Appellant’s trial counsel was not ineffective under the standards set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). No relief is warranted on Appellant’s claim of cumulative error because we grant relief on the only error identified (see below). We also review Proposition Nine for plain error as Appellant did not object to joinder of Counts One and Three. No relief is warranted as joinder of the offenses was proper. 22 O.S.2001, § 438; Glass v. State, 1985 OK CR 65, 9, 701 P.2d 765, 768; Plunkett v. State, 1986 OK CR 77, 7, 719 P.2d 834, 838. Appellant is entitled to relief on the claim raised in Proposition Six, as there was no evidence that Appellant was in possession of the firearm at either robbery. Kinchion, 2003 OK CR 28, 12, 81 P.3d at 685; 21 O.S. 1991, § 1283. Accordingly, Appellant’s convictions for two counts of Possession of a Firearm by a Convicted Felon must be reversed and remanded with instructions to dismiss.

DECISION
The Judgment and Sentences imposed in Counts Six and Eight are REVERSED AND REMANDED WITH INSTRUCTIONS TO DISMISS. The Judgment and Sentences on all remaining counts are AFFIRMED.

APPEARANCES AT TRIAL
LARRY TEDDER
ATTORNEY AT LAW
200 NORTH HARVEY, SUITE 500
OKLAHOMA CITY, OK 73102
ATTORNEY FOR DEFENDANT

APPEARANCES ON APPEAL
LISBETH L. McCARTY
O.I.D.S.
P.O. BOX 926
NORMAN, OK 73070
ATTORNEY FOR APPELLANT

JAMES SIDERIAS
W.A. DREW EDMONDSON
STEPHEN DEUTSCH
ATTORNEY GENERAL OF OKLAHOMA
ASST. DISTRICT ATTORNEYS
WILLIAM R. HOLMES
OKLAHOMA CO. COURTHOUSE
320 ROBERT S. KERR
OKLAHOMA CITY, OK 73102
ASSISTANT ATTORNEY GENERAL
112 STATE CAPITOL BUILDING
OKLAHOMA CITY, OK 73105
ATTORNEYS FOR THE STATE

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

CHAPEL, JUDGE, CONCURS IN PART/DISSENTS IN PART:
I would affirm one Conspiracy count and the Robbery Count along with the sentences of fifty years each. I would reverse the remaining counts. See my dissent in Kinchion v. State, 81 P.3d 681 (2003).

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Footnotes:

1. 21 O.S.1991, § 421
2. 21 O.S.1991, § 701.7(B)
3. 21 O.S.1991, § 801
4. 21 O.S.1991, § 1283
5. Cohee U. State, 1997 OK CR 30, 942 P.2d 211, 215
6. Bland U. State, 2000 OK CR 11, 4 P.3d 702, 711
7. Kinchion U. State, 2003 OK CR 28, 81 P.3d 681
8. Spuehler v. State, 1985 OK CR 32, 709 P.2d 202, 203-204
9. Simpson v. State, 1994 OK CR 40, 876 P.2d 690, 693
10. Melvin v. State, 1985 OK CR 111, 706 P.2d 163, 164
11. Powell v. State, 2000 OK CR 5, 995 P.2d 510, 533
12. Strickland U. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064
13. 22 O.S.2001, § 438
14. Glass v. State, 1985 OK CR 65, 701 P.2d 765, 768
15. Plunkett v. State, 1986 OK CR 77, 719 P.2d 834, 838
16. Kinchion, 2003 OK CR 28, 81 P.3d at 685
17. 21 O.S. 1991, § 1283
18. Kinchion v. State, 81 P.3d 681 (2003)

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 421 (1991) - Conspiracy to Commit Robbery
• Okla. Stat. tit. 21 § 701.7 (1991) - First Degree Murder
• Okla. Stat. tit. 21 § 801 (1991) - Robbery with a Dangerous Weapon
• Okla. Stat. tit. 21 § 1283 (1991) - Possession of a Firearm by Convicted Felon
• Okla. Stat. tit. 22 § 438 (2001) - Joinder of 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:

• Cohee v. State, 1997 OK CR 30, 942 P.2d 211, 215
• Gatlin v. State, 1976 OK CR 180, 553 P.2d 204, 206
• Bland v. State, 2000 OK CR 11, 4 P.3d 702, 711
• Kinchion v. State, 2003 OK CR 28, 81 P.3d 681
• Spuehler v. State, 1985 OK CR 32, 709 P.2d 202, 203-204
• Simpson v. State, 1994 OK CR 40, 876 P.2d 690, 693
• Melvin v. State, 1985 OK CR 111, 706 P.2d 163, 164
• Powell v. State, 2000 OK CR 5, 995 P.2d 510, 533
• Glass v. State, 1985 OK CR 65, 701 P.2d 765, 768
• Plunkett v. State, 1986 OK CR 77, 719 P.2d 834, 838