Marion Whitmore v The State Of Oklahoma

F-2004-1283

Filed: Jul. 7, 2006

Not for publication

Prevailing Party: Marion Whitmore

Summary

Marion Whitmore appealed his conviction for Possession of Controlled Substance (Methamphetamine) and Unlawful Possession of Drug Paraphernalia. Conviction and sentence were affirmed for the drug paraphernalia charge, but his sentence for possession of methamphetamine was reduced from 65 years to 35 years. Judge Lumpkin dissented, believing that the original sentence should stand since any error was harmless.

Decision

Whitmore's convictions for Possession of Methamphetamine and Possession of Drug Paraphernalia are AFFIRMED. His sentence for Possession of Drug Paraphernalia is also AFFIRMED. His sentence for Possession of Methamphetamine, however, is MODIFIED from imprisonment for sixty-five (65) years to imprisonment for thirty-five (35) years. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2006), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there an unlawful seizure and search due to a pretextual traffic stop without reasonable articulable suspicion, constituting a violation of the Fourth Amendment?
• Did the evidence presented at trial suffice to support the convictions for possession of a controlled substance and possession of drug paraphernalia?
• Did the admission of evidence regarding other crimes deprive Mr. Whitmore of a fair trial?
• Was the sentence of 65 years for possession of methamphetamine excessive, warranting a claim of ineffective assistance of counsel for failing to challenge the number of prior offenses?
• Did improper remarks made by the prosecutor during the closing arguments lead to an excessive sentence for Mr. Whitmore?

Findings

• the trial court did not err in denying the motion to suppress evidence from the traffic stop
• the evidence was sufficient to support the convictions
• there was no error in admitting evidence of other crimes related to outstanding warrants
• the claim of ineffective assistance of counsel regarding prior offenses was not established
• the prosecutor's improper remarks resulted in an excessive sentence, which was modified

F-2004-1283

Jul. 7, 2006

Marion Whitmore

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

CHAPEL, PRESIDING JUDGE: Marion Whitmore was tried by jury and convicted of Possession of Controlled Substance (Methamphetamine) After Two or More Prior Convictions, under 63 O.S.2001, § 2-402, (Count I); and Unlawful Possession of Drug Paraphernalia, under 63 O.S.2001, § 2-405 (Count II), in LeFlore County, Case No. CF-2004-59. In accordance with the jury’s recommendation, the Honorable Ted A. Knight sentenced Whitmore to imprisonment for sixty-five (65) years on Count I and imprisonment for one year in the county jail and a fine of $1,000 on Count II. ¹ Whitmore appeals his convictions and his sentences.

I. THE TRIAL COURT ERRONEOUSLY DENIED MR. WHITMORE’S MOTION TO SUPPRESS EVIDENCE GAINED THROUGH A PRETEXTUAL TRAFFIC STOP WITHOUT A REASONABLE ARTICULABLE SUSPICION, RESULTING IN AN ILLEGAL SEIZURE AND SEARCH IN VIOLATION OF THE FOURTH AMENDMENT.

II. THE EVIDENCE WAS INSUFFICIENT TO SUPPORT MR. WHITMORE’S CONVICTIONS.

III. MR. WHITMORE DID NOT RECEIVE A FAIR TRIAL BECAUSE EVIDENCE OF OTHER CRIMES WAS ADMITTED IN THE TRIAL WHEN THE POLICE OFFICER TESTIFIED TO OUTSTANDING WARRANTS.

IV. THE JURY SENTENCED MR. WHITMORE TO AN EXCESSIVE SENTENCE OF 65 YEARS FOR POSSESSION OF .06 GRAMS OF METHAMPHETAMINE UNDER THE HABITUAL CRIMINAL ACT BASED ON THE INEFFECTIVE ASSISTANCE OF COUNSEL FOR FAILING TO CHALLENGE THE NUMBER OF PRIOR OFFENSES.

V. MR. WHITMORE RECEIVED AN EXCESSIVE SENTENCE BECAUSE THE PROSECUTOR MADE IMPROPER REMARKS IN THE CLOSING OF THE SENTENCING PHASE WHICH INFERRED THAT MR. WHITMORE WILL SERVE LESS THAN HIS SENTENCE BECAUSE HE WILL BE RELEASED ON PAROLE.

Regarding Proposition I, Whitmore confuses the standard of a reasonable and articulable suspicion of illegal activity, with a standard of his own creation, i.e., whether the officer was able to reasonably articulate his suspicion in court.² Yet being a reasonably articulate officer is not the test.³ This Court finds that the correct standard is whether the officer had a reasonable and articulable suspicion of illegal activity.⁴ And Officer Fairless’s testimony certainly supported the trial court’s conclusion that he did have such a suspicion and that this suspicion justified his detention of Whitmore and his car.

Regarding Whitmore’s assertion that Fairless’s stop of his car was an unconstitutional pretext stop, the Supreme Court has made clear that absent very unusual circumstances (not alleged here), an officer’s actual motivation for stopping a vehicle is irrelevant to the question of the legality of the stop.⁵ The record in this case supports the validity of the stop of Whitmore’s vehicle and the trial court’s rejection of Whitmore’s motion to suppress.

Regarding Proposition II, the evidence presented during Whitmore’s trial was more than sufficient to support his convictions for possession of methamphetamine and possession of paraphernalia.

Regarding Proposition III, Whitmore raised no objection to the arrest warrant references in the trial court, nor did he request a limiting instruction. Officer Fairless’s references to Whitmore having outstanding arrest warrants was part of his recounting of how he came to search Whitmore’s car and person. Hence the references were part of the res gestae or entire transaction.⁶ Officer Fairless did not emphasize this testimony, nor did he specify what kind of crimes the arrest warrants involved. Thus there was no plain error in the admission of this testimony or in the trial court’s failure to give a limiting instruction.⁷

In Proposition IV, Whitmore alleges ineffective assistance of counsel because his attorney failed to establish that only three of the five prior offenses offered to enhance his sentence were actually separate transactions, under 21 O.S.2001, § 51.1C.⁸ The defendant bears the burden to establish that offenses relied upon as prior felony convictions were actually part of the same transaction or occurrence.⁹ Beyond the dates of disposition and overlapping sentences, however, Whitmore has presented no substantial evidence that any of the separate offenses relied upon by the State, which apparently all occurred on separate days, were transactional.¹⁰ Since he fails to establish that the offenses were, in fact, transactional, Whitmore certainly cannot establish that he was prejudiced by his attorney’s failure to assert that they were transactional.¹¹

In Proposition V, Whitmore alleges that due to improper argument by the prosecutor, he was given an excessive sentence.¹² In *Stringfellow v. State,* we held that a prosecutor’s comment was improper to the extent that it advised the jury that the appellant had not actually served his full term of imprisonment for his prior conviction.¹³ Hence we modified the defendant’s sentence based upon the prosecutor’s comment.¹⁴ This Court has recognized that even indirect prosecutorial references to the fact that sentences given by a jury are not necessarily served as the jury might expect are improper and can be highly prejudicial.¹⁵ Whitmore challenges the prosecutor’s closing arguments and the resulting impact upon his sentence. He does not challenge the State’s right to enter his prior conviction records into evidence.¹⁶ We conclude that the prosecutor’s direct references to the fact that Whitmore did not serve the full sentences on his prior convictions and his implied references to parole were improper and resulted in an excessive sentence on Whitmore’s conviction for possession of .06 grams of methamphetamine.¹⁷ The fact that the jury specifically asked about the impact of parole on the serving of Whitmore’s sentence illustrates that his jury did not miss the significance of these references. We conclude that Whitmore’s sentence on his conviction for possession of methamphetamine should be modified to imprisonment for thirty-five years.

After thoroughly considering the entire record before us on appeal, including the original record, transcripts, briefs, and exhibits of the parties, we find that reversal of Whitmore’s convictions is not required under the law and evidence. We do find, however, that a modification of his sentence for possession of methamphetamine is appropriate.

DECISION

Whitmore’s convictions for Possession of Methamphetamine and Possession of Drug Paraphernalia are AFFIRMED. His sentence for Possession of Drug Paraphernalia is also AFFIRMED. His sentence for Possession of Methamphetamine, however, is MODIFIED from imprisonment for sixty-five (65) years to imprisonment for thirty-five (35) years. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2006), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

1. Okla. Stat. tit. 63 § 2-402
2. Okla. Stat. tit. 63 § 2-405
3. Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979)
4. United States v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir. 1995)
5. McGaughey v. State, 2001 OK CR 33, ¶ 24, 37 P.3d 130, 136
6. Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996)
7. United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985)
8. Jackson v. Virginia, 443 U.S. 307, 319-20, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)
9. Spuehler v. State, 1985 OK CR 132, 709 P.2d 202, 203-04
10. Okla. Stat. tit. 47 § 12-204(c)
11. Lowery v. State, 1977 OK CR 167, ¶ 8, 563 P.2d 1189, 1191-92
12. Rogers v. State, 1995 OK CR 8, ¶ 21, 890 P.2d 959, 971
13. Okla. Stat. tit. 21 § 51.1C
14. Bickerstaff v. State, 1983 OK CR 116, ¶ 10, 669 P.2d 778, 780
15. Hammer v. State, 1988 OK CR 149, ¶ 10, 760 P.2d 200, 203
16. Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)
17. Stringfellow v. State, 1987 OK CR 233, 744 P.2d 1277
18. Bell v. State, 1962 OK CR 160, ¶ 6-7, 381 P.2d 167, 173
19. Taylor v. State, 1983 OK CR 24, ¶ 7, 659 P.2d 362, 365
20. Williams v. State, 1988 OK CR 75, ¶ 7, 754 P.2d 555, 556
21. Massingale v. State, 1986 OK CR 6, ¶ 9, 713 P.2d 15, 16
22. Boyd v. State, 1987 OK CR 197, ¶ 17, 743 P.2d 658, 662

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-402 - Possession of Controlled Dangerous Substance
• Okla. Stat. tit. 63 § 2-405 - Unlawful Possession of Drug Paraphernalia
• Okla. Stat. tit. 47 § 12-204(c) - Traffic Violations
• Okla. Stat. tit. 21 § 51.1C - Habitual Criminal

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:

• Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979)
• United States v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir. 1995)
• McGaughey v. State, 2001 OK CR 33, II 24, 37 P.3d 130, 136
• Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996)
• United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985)
• Jackson v. Virginia, 443 U.S. 307, 319-20, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)
• Spuehler v. State, 1985 OK CR 132, 709 P.2d 202, 203-04
• Lowery v. State, 1977 OK CR 167, 1 8, 563 P.2d 1189, 1191-92
• Rogers v. State, 1995 OK CR 8, IT 21, 890 P.2d 959, 971
• Bickerstaff v. State, 1983 OK CR 116, IT 10, 669 P.2d 778, 780
• Hammer v. State, 1988 OK CR 149, II 10, 760 P.2d 200, 203
• Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)
• Stringfellow v. State, 1987 OK CR 233, 744 P.2d 1277
• Jones v. State, 1976 OK CR 207, 554 P.2d 830, 836
• Bell v. State, 1962 OK CR 160, 11 6-7, 381 P.2d 167, 173
• Taylor v. State, 1983 OK CR 24, 7, 659 P.2d 362, 365
• Williams v. State, 1988 OK CR 75, I 7, 754 P.2d 555, 556
• Massingale v. State, 1986 OK CR 6, I 9, 713 P.2d 15, 16
• Boyd v. State, 1987 OK CR 197, II 17, 743 P.2d 658, 662