Michael Anton Armstrong v The State Of Oklahoma

F-2004-1106

Filed: Feb. 28, 2006

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Michael Anton Armstrong appealed his conviction for unlawful trafficking in cocaine base and other offenses. His convictions and sentence included thirty-seven years in prison for trafficking, fines, and jail time for resisting an officer and possession of marijuana. Judge Chapel presided over the case. The appeal brought forward several issues, like whether a jury instruction on resisting arrest was incorrect, if a videotape showing the arrest scene could have been admitted as evidence, and if previous felony convictions were used correctly. The court decided that some of Armstrong's claims did not hold, such as the jury could have convicted him on two counts of resisting an officer because he resisted two different officers. However, they modified his fine for the trafficking offense from $25,000.00 to $10,000.00. The court ultimately affirmed his convictions, meaning Armstrong's original sentences mostly stood, but they adjusted his fine. Justice Lewis agreed with the opinion.

Decision

The Judgments and Sentences are AFFIRMED and the fine in Count I is MODIFIED to $10,000.00. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch18, App.2004, the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was it error to instruct the jury on two counts of resisting arrest when the evidence only supported a single conviction?
• Did the trial court err by sustaining the state's objection to the videotape offered by Appellant?
• Was defense counsel's failure to offer the videotape in support of Appellant's motion to suppress ineffective assistance of counsel?
• Was it error to combine the sentencing provisions of title 63 and title 21 in Count I?
• Do Appellant's convictions for Possession of Controlled Drug in Count I and Count IV constitute multiple punishment for a single crime?
• Was it error to permit the jury to use the same prior felony conviction twice for two different purposes?
• Was there insufficient evidence of possession of cocaine base due to failure to properly establish chain of custody?
• Should Appellant's sentence for Trafficking be modified to the minimum permitted by law?

Findings

• One conviction for resisting arrest must be reversed and dismissed.
• The trial court did not abuse its discretion in excluding Armstrong's videotape from evidence.
• Trial counsel was not ineffective.
• Armstrong's fine of $25,000.00 in Count I must be modified to $10,000.00.
• Armstrong's convictions for Trafficking in Cocaine Base in Count I and Felony Possession of Marijuana in Count IV do not violate double jeopardy.
• Armstrong's prior conviction for Possession of a Controlled Substance with Intent to Distribute was properly used to enhance his sentences in Counts I and IV.
• The evidence was sufficient to support a finding of probable cause at preliminary hearing.
• Armstrong's sentence for Trafficking in Cocaine Base was not excessive.

F-2004-1106

Feb. 28, 2006

Michael Anton Armstrong

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

CHAPEL, PRESIDING JUDGE: Michael Armstrong was tried by jury and convicted of Count I: Unlawful Trafficking in Cocaine Base in violation of 63 O.S. Supp.2002, $2-415, After Former Conviction of two or more Felonies; Counts II and III: Resisting an Officer in violation of 21 O.S.2001, § 268; Count IV: Felony Possession of Marijuana, Second Offense in violation of 63 O.S.2001, § 2-402; and Count V: Driving under Suspension in violation of 47 O.S. 2001, § 7-606 in Tulsa County District Court Case No. CF-03-5171. In accordance with the jury’s recommendation, the trial court sentenced Armstrong to serve the following sentences consecutively: Count I: thirty-seven (37) years’ imprisonment and a $25,000.00 fine; Counts II and III: one (1) year in the county jail; Count IV: three and a half (3 1/2) years’ imprisonment; and Count V: ninety (90) days in the county jail. Armstrong has perfected his appeal to this Court.

Armstrong raises the following propositions of error:

I. It was error to instruct the jury on two counts of resisting arrest; the evidence only supported a single conviction. One conviction for resisting arrest must be reversed and dismissed.

II. It was error for the trial court to sustain the state’s objection to the videotape offered by Appellant to show the lighting and visibility on the night of Appellant’s arrest.

III. Defense counsel’s failure to offer the videotape referenced in the preceding proposition of error in support of Appellant’s motion to suppress constituted ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution.

IV. It was error to combine the sentencing provisions of title 63 and title 21 in Count I. The $25,000.00 fine imposed for Trafficking must be vacated.

V. Appellant’s convictions for Possession of Controlled Drug in Count I and Count IV constitute multiple punishment for a single crime. Count IV, Felony Possession of Marijuana, must be reversed with instructions to dismiss.

VI. Appellant’s prior conviction for Possession of Controlled Drug with Intent to Distribute could be used as enhancement in Count I or as an element of the offense in Count IV. It was error to permit the jury to use the same prior felony conviction twice for two different purposes.

VII. By failing to properly establish the chain of custody, the State presented insufficient evidence of possession of cocaine base at preliminary hearing. It was error for Appellant to be bound over for Trafficking in cocaine base and the trial court should have sustained his motion to quash.

VIII. Appellant’s sentence for Trafficking should be modified to the minimum permitted by law.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, briefs and exhibits of the parties, we find that reversal is not required under the law and evidence but that modification of the $25,000.00 fine is due. We find in Proposition I that neither 21 O.S.2001, § 11 nor the Double Jeopardy Clause of the United States or Oklahoma Constitutions was violated by Armstrong’s two convictions for violating 21 O.S.2001, § 268. We find in Proposition II that the trial court did not abuse its discretion in excluding Armstrong’s videotape from evidence. We find in Proposition III that trial counsel was not ineffective. We find in Proposition IV that Armstrong’s fine of $25,000.00 in Count I must be modified to $10,000.00. We find in Proposition V that Armstrong’s convictions for Trafficking in Cocaine Base in Count I and Felony Possession of Marijuana in Count IV do not violate double jeopardy or 21 O.S.2001, § 11. We find in Proposition VI that Armstrong’s prior conviction for Possession of a Controlled Substance with Intent to Distribute was properly used to enhance his sentences in Counts I and IV. We find in Proposition VII that the evidence was sufficient to support a finding of probable cause at the preliminary hearing. We find in Proposition VIII that Armstrong’s sentence for Trafficking in Cocaine Base was not excessive.

Decision

The Judgments and Sentences are AFFIRMED and the fine in Count I is MODIFIED to $10,000.00. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch 18, App.2004, the MANDATE is ORDERED issued upon the delivery and filing of this decision.

ATTORNEYS AT TRIAL
SHENA BURGESS
TULSA COUNTY PUBLIC DEFENDER’S OFFICE
423 SOUTH BOULDER, SUITE 300
TULSA, OKLAHOMA 74103
ATTORNEY FOR THE DEFENDANT

ATTORNEYS ON APPEAL
STUART SOUTHERLAND
TULSA COUNTY PUBLIC DEFENDER’S OFFICE
423 SOUTH BOULDER, SUITE 300
TULSA, OKLAHOMA 74103
ATTORNEY FOR APPELLANT

MR. ERIC JOHNSTON
ASSISTANT DISTRICT ATTORNEY
500 S. DENVER, ROOM 406
TULSA, OKLAHOMA 741013
ATTORNEY FOR THE STATE

W.A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA
DONALD D. SELF
ASSISTANT ATTORNEY GENERAL
112 STATE CAPITOL
OKLAHOMA CITY, OKLAHOMA 73105
ATTORNEYS FOR APPELLEE

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Footnotes:

1. 63 O.S. Supp.2002, § 2-415
2. 21 O.S.2001, § 268
3. 63 O.S.2001, § 2-402
4. 47 O.S. 2001, § 7-606
5. 21 O.S.2001, § 11
6. 21 O.S.Supp.2002, § 51.1
7. 21 O.S.2001, § 64(B)
8. W.A. Drew Edmondson
9. 63 O.S.2001, § 2-402
10. Chapple v. State, 866 P.2d 1213 (Okl.Cr.1993)
11. Perry v. State, 764 P.2d 892, 896 (Okl.Cr.1988)
12. Jones v. State, 965 P.2d 385 (Okl.Cr.1998)
13. Rea v. State, 34 P.3d 148 (Okl.Cr.2001)
14. Burleson v. Saffle, 46 P.3rd 150, 152-53 (Okl.Cr.2002)
15. Behrens v. State, 699 P.2d 156, 159 (Okl.Cr.1985)
16. Hooks v. State, 19 P.3d 294, 317 (Okl.Cr.2001), cert. denied, 534 U.S. 963, 122 S.Ct. 371, 151 L.Ed.2d 282 (2001)
17. Fischer v. State, 483 P.2d 1162 (1971)
18. Watkins v. State, 855 P.2d 141 (Okl.Cr.1992)
19. Watkins v. State, 829 P.2d 42 (Okl.Cr.1991)

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-415 (Supp. 2002) - Unlawful Trafficking in Cocaine Base
• Okla. Stat. tit. 21 § 268 (2001) - Resisting an Officer
• Okla. Stat. tit. 63 § 2-402 (2001) - Felony Possession of Marijuana, Second Offense
• Okla. Stat. tit. 47 § 7-606 (2001) - Driving under Suspension
• Okla. Stat. tit. 21 § 11 (2001) - Violation of Double Jeopardy
• Okla. Stat. tit. 21 § 51.1 (Supp. 2002) - Sentencing provisions
• Okla. Stat. tit. 21 § 64(B) (2001) - Fine for Felonies
• Okla. Stat. tit. 22 Ch. 18, Rule 3.11 - Court of Criminal Appeals Rules
• Okla. Stat. tit. 22 Ch. 18, App. 2004 - Rules of the Oklahoma Court of Criminal Appeals

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
• Burleson v. Saffle, 46 P.3d 150, 152-53 (Okl.Cr.2002)
• Behrens v. State, 699 P.2d 156, 159 (Okl.Cr.1985)
• Hooks v. State, 19 P.3d 294, 317 (Okl.Cr.2001), cert. denied, 534 U.S. 963, 122 S.Ct. 371, 151 L.Ed.2d 282 (2001)
• Watkins v. State, 855 P.2d 141 (Okl.Cr.1992)
• Watkins v. State, 829 P.2d 42 (Okl.Cr.1991)
• Fischer v. State, 483 P.2d 1162 (1971)
• Chapple v. State, 866 P.2d 1213 (Okl.Cr.1993)
• Perry v. State, 764 P.2d 892, 896 (Okl.Cr.1988)
• Jones v. State, 965 P.2d 385 (Okl.Cr.1998)
• Rea v. State, 34 P.3d 148 (Okl.Cr.2001)