Charles Clarence Tiger v The State Of Oklahoma

F 2004-1127

Filed: Oct. 26, 2004

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Charles Clarence Tiger appealed his conviction for multiple crimes. Conviction and sentence included several charges: conspiracy to commit a felony, burglary, assault with a deadly weapon, robbery with firearms, and many others, leading to a total of 15 to 350 years in prison. The court found that two of his convictions, for conspiracy to commit burglary and first-degree burglary, were not supported by enough evidence, so those convictions were reversed. The rest of his convictions and sentences were upheld. Judge Lumpkin disagreed with the decision about the conspiracy charge, believing there was enough evidence.

Decision

The Judgments and Sentences imposed for Counts 2, 7, 8, 9, 11, 12, 13, and 14, in Oklahoma County District Court, Case No. CF 2003-69, are hereby AFFIRMED. The Judgments and Sentences imposed for Counts 1 and 10, in Oklahoma County District Court Case No. CF 2003-69, are hereby REVERSED AND REMANDED WITH INSTRUCTIONS TO DISMISS.

Issues

• Was there a violation of Mr. Tiger's fundamental right to a speedy trial under the Federal and State constitution?
• Did a breakdown in communication between trial counsel and the Appellant result in ineffective assistance of counsel?
• Was Mr. Tiger subjected to double punishments that require dismissal of Count 10 - Burglary in the First Degree?
• Did the State present sufficient evidence to support Mr. Tiger's conviction for Conspiracy to Commit Burglary in the Second Degree?
• Do the convictions for both Conspiracy to Commit Second Degree Burglary and Second Degree Burglary violate State and Federal Constitutional Prohibitions against double jeopardy?
• Do errors, when considered cumulatively, warrant a new trial or a modification of Mr. Tiger's sentences?
• Are Mr. Tiger's sentences excessive, disproportionate, and violative of Federal and State constitutional prohibitions against cruel and unusual punishment?

Findings

• the court erred in convicting Mr. Tiger of Conspiracy to Commit a Felony, reversing and remanding with instructions to dismiss Count 1
• the court erred in convicting Mr. Tiger of Burglary in the First Degree, reversing and remanding with instructions to dismiss Count 10
• the evidence was not sufficient to support Mr. Tiger's conviction for Conspiracy to Commit Burglary in the Second Degree
• the simultaneous convictions for Count 10, First Degree Burglary, and Count 11, Robbery with a Firearm violate statutory provisions against double punishment
• Mr. Tiger was not denied his fundamental right to a speedy trial
• Mr. Tiger received effective assistance of trial counsel
• the cumulative errors did not warrant further relief
• Mr. Tiger's sentences were not excessive or disproportionate
• the convictions and sentences for Counts 2, 7, 8, 9, 11, 12, 13, and 14 are affirmed

F 2004-1127

Oct. 26, 2004

Charles Clarence Tiger

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

Charles Clarence Tiger, Appellant, was convicted by a jury in Oklahoma County District Court, Case No. CF 2003-69, of Conspiracy to Commit a Felony, in violation of 21 O.S.2001, § 421 (Count 1); Burglary in the Second Degree, in violation of 21 O.S.2001, § 1435 (Count 2); Assault and Battery with a Deadly Weapon with Intent to Kill, in violation of 21 O.S.2001, § 645 (Count 7); Burglary in the First Degree, in violation of 21 O.S.2001, § 1431 (Count 8); Pointing a Firearm at Another, in violation of 21 O.S.2001, § 1279 (Count 9); Burglary in the First Degree, in violation of 21 O.S.2001, § 1431 (Count 10); Robbery with Firearms, in violation of 21 O.S.2001, § 801 (Count 11); Pointing a Firearm at Another, in violation of 21 O.S.2001, § 1279 (Count 12); Attempted Burglary in the First Degree, in violation of 21 O.S.2001, § 1431 (Count 13); and, Possession of a Firearm After Former Conviction of a Felony, in violation of 21 O.S.2001, § 1272 (Count 14). Jury trial was held on October 18th – 22nd, 2004, before the Honorable Twyla Mason Gray, District Judge.

The jury set punishment at fifteen (15) years on Count 1; ten (10) years on Count 2; three hundred fifty (350) years on Counts 7 and 12; thirty (30) years on Counts 8, 10, and 11; twenty (20) years on Counts 9, 13, and 14. Sentencing was held October 26, 2004, and Judge Gray ordered the sentences to be served concurrently. Thereafter, Appellant filed this appeal.

Mr. Tiger raises seven (7) propositions of error:
1. Mr. Tiger’s fundamental right to a speedy trial under the Federal and State constitution was violated;
2. A breakdown in communication between trial counsel and the Appellant resulted in ineffective assistance of counsel;
3. Appellant has been subjected to double punishments which require dismissal of Count 10 – Burglary in the First Degree;
4. The State presented insufficient evidence to support Mr. Tiger’s conviction for Conspiracy to Commit Burglary in the Second Degree in violation of the Due Process Clause of the Federal and State constitutions.
5. Convictions for both Conspiracy to Commit Second Degree Burglary and Second Degree Burglary violate State and Federal Constitutional Prohibitions against double jeopardy;
6. Errors, when considered in a cumulative fashion, warrant a new trial or a modification of Mr. Tiger’s sentences; and,
7. Mr. Tiger’s sentences are excessive, disproportionate, and violative of Federal and State constitutional prohibitions against cruel and unusual punishment.

After thorough consideration of the propositions raised, the Original Record, Transcripts, briefs and arguments of the parties, we find that Tiger’s convictions and sentences imposed in Counts 1 and 10 must be reversed and remanded with instructions to dismiss for the reasons set forth below. The remaining convictions and sentences are affirmed.

Propositions Three and Four have merit. Mr. Tiger’s simultaneous convictions for both Count 10, First Degree Burglary, and Count 11, Robbery with a Firearm, violate Oklahoma’s statutory provision against double punishment. 21 O.S.2001, § 11A; see Peacock v. State, 2002 OK CR 21, 46 P.3d 713 (Section 11 is not violated where offenses arising from the same transaction are separate and distinct and require dissimilar proof.) Accordingly, we find Count 10, First Degree Burglary, should be reversed and remanded with instructions to dismiss. We also find the evidence presented by the State was insufficient to support Tiger’s conviction for Conspiracy to Commit Burglary in the Second Degree. Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-04; see Powell v. State, 2000 OK CR 5, I 72, 995 P.2d 510, 528 (to prove a conspiracy, the State must prove an agreement between two or more people to commit an unlawful act and an overt act in furtherance of the agreement). Here, the evidence presented did not show any agreement, if there was one, to commit the specific underlying offense alleged in the Information. Accordingly, we find Count 1, Conspiracy to Commit Burglary in the Second Degree, should be reversed and remanded with instructions to dismiss.

Our reversal of the conviction and sentence imposed for Count 1 renders the claim raised in Proposition Five moot. The remaining Propositions of error do not warrant relief. In Proposition One, Mr. Tiger was not denied his fundamental right to a speedy trial. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972); Lott v. State, 2004 OK CR 27, I 7, 98 P.2d 318, 327. In Proposition Two, we find Mr. Tiger received effective assistance of trial counsel and the trial court did not abuse its discretion by refusing to discharge Tiger’s counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (requires a showing of deficient performance and resulting prejudice); Dixon v. Owens, 1993 OK CR 55, 865 P.2d 1250, 1252 (we review a trial court’s decision on a motion to discharge counsel for an abuse of discretion); Boone v. State, 1982 OK CR 34, 642 P.2d 270, 271-272 (absent valid reasons such as demonstrable prejudice against the defendant by counsel, incompetence of counsel, or conflict of interest, a demand for different counsel is viewed as nothing more than an impermissible delaying tactic). Proposition Six does not warrant further relief, because we have granted relief where necessary. Messick v. State, 2004 OK CR 3, I 24, f. 30, 84 P.3d 757, 764. Proposition Seven is also denied. The sentences imposed fall within the statutory ranges of punishment and do not shock the conscience of the Court. See 21 O.S.2001, §§ 645, 801, 1272, 1279, 1431, 1435; Rea v. State, 2001 OK CR 28, 5, 34 P.3d 148, 149 (this Court has rejected proportionate sentencing and continues to review claims of excessive sentence under the shock the conscience standard).

DECISION

The Judgments and Sentences imposed for Counts 2, 7, 8, 9, 11, 12, 13, and 14, in Oklahoma County District Court, Case No. CF 2003-69, are hereby AFFIRMED. The Judgments and Sentences imposed for Counts 1 and 10, in Oklahoma County District Court Case No. CF 2003-69, are hereby REVERSED AND REMANDED WITH INSTRUCTIONS TO DISMISS.

AN APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY

THE HONORABLE TWYLA MASON GRAY, DISTRICT JUDGE

APPEARANCES AT TRIAL

HEIDI BAIER
ASST. PUBLIC DEFENDER
OKLA. CO. PUBLIC DEFENDER
P. O. BOX 926
NORMAN, OK, 73070
ATTORNEY FOR DEFENDANT

ANGELA WRIGHT
DEREK CHANCE
W.A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA
ASST. DISTRICT ATTORNEYS
JENNIFER L. STRICKLAND
OKLAHOMA COUNTY COURTHOUSE
320 ROBERT S. KERR, SUITE 505
OKLAHOMA CITY, OK 73105
ATTORNEYS FOR THE STATE

OPINION BY: C. JOHNSON, J.
CHAPEL, P.J. : CONCURS IN RESULTS
LUMPKIN, V.P.J. : CONCURS IN PART/DISSENTS IN PART
A. JOHNSON, J.: CONCURS
LEWIS, J.: SPECIALLY CONCURS

LUMPKIN, V.P.J.: CONCUR IN PART, DISSENT IN PART

I concur with the Court’s resolution of this case, as reflected in the Summary Opinion, except with respect to the issue raised in proposition four. That is, I believe the State presented sufficient evidence under Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-04, to support Appellant’s conviction for Conspiracy to Commit Burglary under Count 1. The evidence, though largely circumstantial, clearly shows the existence of an agreement between two or more persons to commit an unlawful act and an overt act in furtherance thereof. The acts certainly did not just appear out of a vapor or as the result of an Immaculate Conception. They were organized and the parties were acting in conformity with a plan that was revealed by their actions. I therefore dissent to the reversal of Count 1.

LEWIS, JUDGE, SPECIALLY CONCURS: I am concerned about the practice of delaying a criminal trial for almost two (2) years. In this particular case, I agree that due to the defendant’s other pending cases that he was not prejudiced, however I find the extraordinary delay of the defendant’s trial unacceptable.

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Footnotes:

1. 21 O.S.2001, § 421
2. 21 O.S.2001, § 1435
3. 21 O.S.2001, § 645
4. 21 O.S.2001, § 1431
5. 21 O.S.2001, § 1279
6. 21 O.S.2001, § 801
7. 21 O.S.2001, § 1272
8. 21 O.S.2001, § 11A
9. Peacock v. State, 2002 OK CR 21, 46 P.3d 713
10. Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202
11. Powell v. State, 2000 OK CR 5, I 72, 995 P.2d 510
12. Barker v. Wingo, 407 U.S. 514, 530 (1972)
13. Lott v. State, 2004 OK CR 27, I 7, 98 P.2d 318
14. Strickland v. Washington, 466 U.S. 668 (1984)
15. Dixon v. Owens, 1993 OK CR 55, 865 P.2d 1250
16. Boone v. State, 1982 OK CR 34, 642 P.2d 270
17. Messick v. State, 2004 OK CR 3, I 24, f. 30, 84 P.3d 757
18. Rea v. State, 2001 OK CR 28, 5, 34 P.3d 148

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 421 (2011) - Conspiracy to Commit a Felony
• Okla. Stat. tit. 21 § 1435 (2011) - Burglary in the Second Degree
• Okla. Stat. tit. 21 § 645 (2011) - Assault and Battery with a Deadly Weapon with Intent to Kill
• Okla. Stat. tit. 21 § 1431 (2011) - Burglary in the First Degree
• Okla. Stat. tit. 21 § 1279 (2011) - Pointing a Firearm at Another
• Okla. Stat. tit. 21 § 1272 (2011) - Possession of a Firearm After Former Conviction of a Felony
• Okla. Stat. tit. 21 § 801 (2011) - Robbery with Firearms
• Okla. Stat. tit. 21 § 11A (2011) - Statutory Provision Against Double Punishment
• Okla. Stat. tit. 21 § 645 (2011) - Assault and Battery with a Deadly Weapon
• Okla. Stat. tit. 21 § 801 (2011) - Robbery with Firearms
• Okla. Stat. tit. 21 § 1272 (2011) - Possession of a Firearm After Former Conviction of a Felony
• Okla. Stat. tit. 21 § 1279 (2011) - Pointing a Firearm at Another
• Okla. Stat. tit. 21 § 1431 (2011) - Burglary in the First Degree
• Okla. Stat. tit. 21 § 1435 (2011) - Burglary in the Second Degree

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
• Peacock v. State, 2002 OK CR 21, 46 P.3d 713
• Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-04
• Powell v. State, 2000 OK CR 5, I 72, 995 P.2d 510, 528
• Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972)
• Lott v. State, 2004 OK CR 27, I 7, 98 P.2d 318, 327
• Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)
• Dixon v. Owens, 1993 OK CR 55, 865 P.2d 1250, 1252
• Boone v. State, 1982 OK CR 34, 642 P.2d 270, 271-272
• Messick v. State, 2004 OK CR 3, I 24, f. 30, 84 P.3d 757, 764
• Rea v. State, 2001 OK CR 28, 5, 34 P.3d 148, 149