Edward D. Cox, Jr. v The State Of Oklahoma

F 2004-269

Filed: Mar. 15, 2004

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Edward Lee Cox, Jr. appealed his conviction for Shooting with Intent to Kill, Robbery with Firearms, and Larceny of an Automobile. The court affirmed his conviction and sentence of 51 years for Shooting with Intent to Kill and 7 years for Larceny of an Automobile, but reversed the conviction and sentence of 50 years for Robbery with Firearms, allowing it to be dismissed. Judge Lumpkin dissented.

Decision

The Judgments and Sentences imposed by the trial court on Counts 1 and 5, in Tulsa County District Court, Case No. CF 2003-1748, are hereby AFFIRMED; the Judgment and Sentence imposed on Count 3 is REVERSED AND REMANDED WITH INSTRUCTIONS TO DISMISS.

Issues

• was there a violation of double jeopardy and double punishment due to multiple convictions stemming from the same act?
• did the trial court abuse its discretion by limiting the defense's cross-examination of a witness?

Findings

• Conviction for Robbery with Firearms (Count 3) is reversed and remanded with instructions to dismiss.
• Convictions and sentences for Shooting with Intent to Kill (Count 1) and Larceny of an Automobile (Count 5) are affirmed.
• The claim regarding double jeopardy is rendered moot due to the reversal of Count 3.
• No relief is warranted for the claim regarding the denial of the right to cross-examine a witness.

F 2004-269

Mar. 15, 2004

Edward D. Cox, Jr.

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

JOHNSON, JUDGE: Appellant, Edward Lee Cox, Jr., was convicted by a jury in Tulsa County District Court, Case No. CF 2003-1748, of Shooting with Intent to Kill, in violation of 21 O.S.2001, § 652 (Count 1), Robbery with Firearms, in violation of 21 O.S.2001, § 801 (Count 3), and Larceny of an Automobile, in violation of 21 O.S.2001, § 1720 (Count 5). Jury trial was held before the Honorable Thomas Gillert, District Judge, from March 8th – 10th, 2004. The jury set punishment at fifty-one (51) years imprisonment on Count 1, fifty (50) years imprisonment on Count 3, and seven (7) years imprisonment on Count 5. Formal sentencing was held on March 15, 2004, and Judge Gillert ordered Appellant to serve the sentences consecutively. Appellant thereafter filed this appeal.

Appellant raises two (2) propositions of error:
1. Because Mr. Cox was convicted of Robbery, his convictions for Shooting with Intent to Kill and Larceny of an Automobile must be vacated, as they violate the prohibitions against double jeopardy and double punishment.
2. Mr. Cox was denied the right to cross-examine a witness regarding the defense theory of the case.

After thorough consideration of the propositions raised, the Original Record, transcripts, briefs and arguments of the parties, we have determined Appellant’s conviction and sentence for Count 3 should be reversed with instructions to dismiss for the reasons set forth below; Appellant’s convictions and sentences for Counts 1 and 5 are affirmed. Under the facts presented here, we find merit to Appellant’s claim that his convictions for both Shooting with Intent to Kill (Count 1) and Robbery with Firearms (Count 3) violate Oklahoma’s statutory prohibition against double punishment. 21 O.S.2001, § 11; Hale v. State, 1995 OK CR 7, I 4, 888 P.2d 1027, 1028 (Section 11 is violated when (1) an offense arises from an act which is a mere means to some other ultimate objective, (2) a lesser offense included in some other offense, or (3) merely a different incident or facet of some primary offense). Accordingly, only one of Appellant’s convictions on Counts 1 and 3 can stand. Therefore, we find Appellant’s conviction for Robbery with Firearms must be reversed and remanded with instructions to dismiss. Because we reverse and remand Count 3 with instructions to dismiss, Appellant’s claim that his convictions on both Counts 3 and 5 violate principles of double jeopardy is rendered moot. No relief is warranted on the claim raised in Proposition Two. The trial court did not abuse its discretion by limiting trial counsel’s questions on cross-examination. McCarty v. State, 1998 OK CR 61, I 15, 977 P.2d 1116, 1122, cert. denied, 528 U.S. 1009, 120 S.Ct. 509, 145 L.Ed.2d 394 (1999) (the manner and scope of cross-examination rests within the discretion of the trial court and this Court will not interfere with the trial court’s decision unless there is an obvious and prejudicial abuse of discretion).

DECISION

The Judgments and Sentences imposed by the trial court on Counts 1 and 5, in Tulsa County District Court, Case No. CF 2003-1748, are hereby AFFIRMED; the Judgment and Sentence imposed on Count 3 is REVERSED AND REMANDED WITH INSTRUCTIONS TO DISMISS.

APPEARANCES AT TRIAL

JOSEPH W. HARRIS
FOUNTAIN PLAZA
4867 S. SHERIDAN, SUITE 701
TULSA, OK 74145
ATTORNEY FOR DEFENDANT

WILLIAM J. MUSSEMAN
ASST. DISTRICT ATTORNEY
TULSA CO. COURTHOUSE
500 SOUTH DENVER, SUITE 900
TULSA, OK 74103
ATTORNEY FOR THE STATE

APPEARANCES ON APPEAL

THOMAS PURCELL
O.I.D.S.
P.O. BOX 926
NORMAN, OK 73070
ATTORNEY FOR APPELLANT

W.A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA
KATHRYN L. WALKER
ASSISTANT ATTORNEY GENERAL
112 STATE CAPITOL BUILDING
OKLAHOMA CITY, OK 73105
ATTORNEYS FOR STATE

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

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Footnotes:

1. 21 O.S.2001, § 11;
2. Hale v. State, 1995 OK CR 7, I 4, 888 P.2d 1027, 1028;
3. McCarty v. State, 1998 OK CR 61, I 15, 977 P.2d 1116, 1122, cert. denied, 528 U.S. 1009, 120 S.Ct. 509, 145 L.Ed.2d 394 (1999);

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 652 (2011) - Shooting with Intent to Kill
• Okla. Stat. tit. 21 § 801 (2011) - Robbery with Firearms
• Okla. Stat. tit. 21 § 1720 (2011) - Larceny of an Automobile
• Okla. Stat. tit. 21 § 11 (2011) - Prohibition against Double Punishment

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:

• Hale v. State, 1995 OK CR 7, I 4, 888 P.2d 1027, 1028
• McCarty v. State, 1998 OK CR 61, I 15, 977 P.2d 1116, 1122