Christopher Dwayne McGee v The State of Oklahoma

F-2004-527

Filed: Nov. 23, 2005

Not for publication

Prevailing Party: Christopher Dwayne McGee

Summary

Christopher Dwayne McGee appealed his conviction for conspiracy to distribute a controlled substance. His conviction for this charge was reversed, and the case was sent back to court with instructions to dismiss it. McGee's conviction and sentence for distribution of a controlled substance were affirmed. Judge Lewis dissented.

Decision

The Judgment and Sentence of the District Court on Count III is AFFIRMED. The Judgment and Sentence of the District Court on Count IV is REVERSED and the case is REMANDED with instructions to DISMISS. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeal, Title 22, Ch. 18, App. (2005), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there sufficient evidence to sustain McGee's conviction for conspiracy to distribute a controlled dangerous substance?
• Was McGee denied due process of law by being forced to choose between his constitutional right to a jury trial or his right to present mitigating evidence?
• Was McGee denied his constitutional right to act as his own counsel?
• Was McGee denied effective assistance of counsel?
• Was McGee denied due process of law when forced to defend against his prior convictions?

Findings

• The court erred in concluding that there was sufficient evidence for the conspiracy charge; Count IV is reversed and dismissed.
• Evidence presented regarding mitigating factors was not admissible in non-capital guilt or sentencing proceedings.
• McGee was not denied his constitutional right to act as his own counsel as he withdrew that request.
• McGee was not denied effective assistance of counsel, as prior counsel's actions were appropriate.
• McGee was not improperly forced to defend against prior convictions; the procedural posture remained unaltered after the plea withdrawal.
• The Judgment and Sentence of the District Court on Count III is affirmed.
• The Judgment and Sentence of the District Court on Count IV is reversed and the case is remanded with instructions to dismiss.

F-2004-527

Nov. 23, 2005

Christopher Dwayne McGee

Appellant

v

The State of Oklahoma

Appellee

SUMMARY OPINION

CHAPEL, PRESIDING JUDGE: Christopher Dwayne McGee was tried by jury and convicted of Count III, Distribution of a Controlled Substance in violation of 63 O.S.Supp. 2000, § 2-401(A); and Count IV, Conspiracy to Distribute a Controlled Dangerous Drug in violation of 63 O.S.Supp.2000, § 2-408, in the District Court of Stephens County, Case No. CF-01-20. In accordance with the jury’s recommendation the Honorable Joe H. Enos sentenced McGee to twenty (20) years imprisonment and a $10,000 fine in each of Counts III and IV. McGee appeals from these convictions and sentences.

McGee raises five propositions of error in support of his appeal:

I. There is insufficient evidence to sustain McGee’s conviction for conspiracy to distribute a controlled dangerous substance; therefore, this conviction must be reversed and remanded with instructions to dismiss;

II. McGee was denied due process of law, as he was forced to choose between his constitutional right to a jury trial or his right to present mitigating evidence to the jury to explain his actions;

III. McGee was denied his constitutional right to act as his own counsel;

IV. McGee was denied effective assistance of counsel; and

V. McGee was denied due process of law when he was forced to defend his prior convictions.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, exhibits and briefs, we find that Count IV must be reversed with instructions to dismiss. No other relief is required.

In Proposition I, McGee correctly claims there was insufficient evidence to convict him of conspiracy to distribute a controlled dangerous substance. The elements of a conspiracy are (1) an agreement to commit the crime(s) charged, and (2) an overt act by one or more of the parties in furtherance of the conspiracy, or to effect its purpose. A conspiracy may be proved by circumstantial evidence from which its existence may be fairly inferred. To have a conspiracy, there must be at least two parties who have agreed to commit a crime. No State or defense witness ever saw Larry Hopson, the second party charged in the Information. The State cites State v. Davis for its claim that the circumstantial evidence here supports an inference that Larry Hopson and McGee agreed to distribute cocaine. In Davis, witnesses saw both the defendant and the co-conspirator. The same is true of the State’s other cited cases involving conspiracy charges.

Reviewing the Court’s cases involving conspiracy charges or convictions back to statehood and earlier, we find no case in which a conviction for conspiracy was upheld where no witness saw or spoke to the alleged co-conspirator, he or his statements were not produced at trial, and the only evidence came from a third party’s testimony about a defendant’s assertion that another person helped him commit the crime. There simply is not enough evidence for a rational trier of fact to find beyond a reasonable doubt that a second person was involved in an agreement with McGee to sell crack cocaine. This proposition is granted, and Count IV is dismissed for lack of evidence.

We find in Proposition II that character evidence, such as mitigating evidence, is not admissible in non-capital guilt or sentencing proceedings. We find in Proposition III that McGee withdrew his request to represent himself at trial, and was not denied his constitutional right to act as his own counsel. We find in Proposition IV that counsel, who succeeded in getting two counts dismissed and preserved McGee’s requests for witnesses to testify regarding entrapment and in mitigation, was not ineffective.

We find in Proposition V that McGee was not improperly forced to defend against the second page alleging prior offenses. In November 2001, the record indicates that the State agreed to dismiss the second page as part of a plea agreement, and McGee pled guilty to the charges. However, he was then sentenced based in part on his prior convictions, and moved to withdraw his plea. This Court granted that motion because the priors were used in sentencing, and remanded the case to allow McGee to withdraw his guilty plea in August, 2003. When the Court remanded the case to allow McGee to withdraw his guilty plea, it put everyone in the same posture as if the plea had not been entered. That is, McGee was once again facing the prospect of trial on four felony charges with a properly filed second page alleging three prior offenses.

Out of an excess of caution, the State chose to have an extra preliminary hearing on the second page after the case was remanded. However, this had no effect on the procedural posture of the case.

Decision

The Judgment and Sentence of the District Court on Count III is AFFIRMED. The Judgment and Sentence of the District Court on Count IV is REVERSED and the case is REMANDED with instructions to DISMISS. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeal, Title 22, Ch. 18, App. (2005), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

ATTORNEYS AT TRIAL

JAMES W. BERRY
100 N. BROADWAY, SUITE 2850
OKLAHOMA CITY, OKLAHOMA 73102

ATTORNEYS ON APPEAL

GLOYD L. MCCOY
MCCOY LAW FIRM
119 N. ROBINSON, SUITE 1000
OKLAHOMA CITY, OKLAHOMA 73102

ATTORNEY FOR DEFENDANT

JERRY HERBERGER
ASSISTANT DISTRICT ATTORNEY
101 S. 11TH, ROOM 303
DUNCAN, OKLAHOMA 73533

W.A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA
DIANE L. SLAYTON
ASSISTANT ATTORNEY GENERAL
2300 N. LINCOLN BOULEVARD
STATE CAPITOL BUILDING
OKLAHOMA CITY, OKLAHOMA 73105
ATTORNEYS FOR RESPONDENT

OPINION BY: CHAPEL, P. J.
LUMPKIN, V.P.J.: CONCUR IN RESULTS
C. JOHNSON, J.: CONCUR
A. JOHNSON, J.: CONCUR
LEWIS, J.: CONCUR

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Footnotes:

1. In accordance with the jury's recommendation the Honorable Joe H. Enos sentenced McGee to twenty (20) years imprisonment and a $10,000 fine in each of Counts III and IV.
2. The elements of a conspiracy are (1) an agreement to commit the crime(s) charged, and (2) an overt act by one or more of the parties in furtherance of the conspiracy, or to effect its purpose. 21 O.S.2001, § 421, 423; Hackney U. State, 1994 OK CR 29, 874 P.2d 810, 813; Davis U. State, 1990 OK CR 20, 792 P.2d 76, 81.
3. A conspiracy may be proved by circumstantial evidence from which its existence may be fairly inferred. State U. Davis, 1991 OK CR 123, 823 P.2d 367, 370.
4. A confidential informant testified that she saw Hopson looking out a window in August, but the trial court ordered the jury to disregard her testimony entirely, her testimony had nothing to do with the September transaction which was the subject of Count IV, and was insufficient to support a conspiracy claim even as to the August transaction.
5. Mayes U. State, 1994 OK CR 44, 887 P.2d 1288, cert. denied, 513 U.S. 1194, 115 S.Ct. 1260, 131 L.Ed.2d 140 (1995) (co-conspirator called police to report crime); Moss v. State, 1994 OK CR 80, 888 P.2d 509 (co-conspirator testified against defendant); Plantz U. State, 1994 OK CR 2 involving conspiracy charges or convictions back to statehood and earlier, we find no case in which a conviction for conspiracy was upheld where no witness saw or spoke to the alleged co-conspirator, he or his statements were not produced at trial, and the only evidence came from a third party's testimony about a defendant's assertion that another person helped him commit the crime.
6. This proposition is granted, and Count IV is dismissed for lack of evidence.
7. We find in Proposition II that character evidence, such as mitigating evidence, is not admissible in non-capital guilt or sentencing proceedings. Malone v. State, 2002 OK CR 34, 58 P.3d 208, 209.
8. We find in Proposition III that McGee withdrew his request to represent himself at trial, and was not denied his constitutional right to act as his own counsel. Day v. State, 1989 OK CR 83, 784 P.2d 79, 82 (after equivocal pretrial request, defendant did not object when represented by counsel at trial); Gowler v. State, 1978 OK CR 128, 589 P.2d 682, 688 (defendant requested appointed counsel who represented him at trial). See also Hughes v. State, 1988 OK CR 214, 762 P.2d 977, 980-81 (defendant was unhappy with counsel's failure to subpoena his suggested witnesses but did not wish to represent himself).
9. We find in Proposition IV that counsel, who succeeded in getting two counts dismissed and preserved McGee's requests for witnesses to testify regarding entrapment and in mitigation, was not ineffective. Hooks U. State, 2001 OK CR 1, 19 P.3d 294, 317, cert. denied, 534 U.S. 963, 122 S.Ct. 371, 151 L.Ed.2d 282; Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 2535, 156 L.Ed.2d 471 (2003); Williams U. Taylor, 529 U.S. 362, 393, 120 S.Ct. 1495, 1513, 146 L.Ed.2d 389 (2000); Strickland U. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 2069-70, 80 L.Ed.2d 674 (1984).
10. This Court granted that motion because the priors were used in sentencing, and remanded the case to allow McGee to withdraw his guilty plea in August, 2003. Couch v. State, 1991 OK CR 67, 814 P.2d 1045, 1047 (defendant withdrawing plea is placed in the same position as he was prior to plea negotiations).
11. McGee cites a 1911 case, Brown v. State, 5 Okla. Crim. 567, 115 P. 615, for his claim that the final "Trial Information" must supercede any others and constitute the last pleading.

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-401(A) - Distribution of a Controlled Substance
• Okla. Stat. tit. 63 § 2-408 - Conspiracy to Distribute a Controlled Dangerous Drug
• Okla. Stat. tit. 21 § 421 - Conspiracy
• Okla. Stat. tit. 21 § 423 - Conspiracy
• Okla. Stat. tit. 21 § 701.8 - Sentencing
• Okla. Stat. tit. 22 § 3.15 - Mandate Rules
• Okla. Stat. tit. 22 § 18 - 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:

• State v. Davis, 1991 OK CR 123, 823 P.2d 367, 370
• Hackney v. State, 1994 OK CR 29, 874 P.2d 810, 813
• Davis v. State, 1990 OK CR 20, 792 P.2d 76, 81
• Mayes v. State, 1994 OK CR 44, 887 P.2d 1288, cert. denied, 513 U.S. 1194, 115 S.Ct. 1260, 131 L.Ed.2d 140 (1995)
• Moss v. State, 1994 OK CR 80, 888 P.2d 509
• Plantz v. State, 1994 OK CR 2
• Easlick v. State, 2004 OK CR 21, 90 P.3d 556, 559
• Malone v. State, 2002 OK CR 34, 58 P.3d 208, 209
• Day v. State, 1989 OK CR 83, 784 P.2d 79, 82
• Gowler v. State, 1978 OK CR 128, 589 P.2d 682, 688
• Hughes v. State, 1988 OK CR 214, 762 P.2d 977, 980-81
• Hooks v. State, 2001 OK CR 1, 19 P.3d 294, 317, cert. denied, 534 U.S. 963, 122 S.Ct. 371, 151 L.Ed.2d 282
• Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 2535, 156 L.Ed.2d 471 (2003)
• Williams v. Taylor, 529 U.S. 362, 393, 120 S.Ct. 1495, 1513, 146 L.Ed.2d 389 (2000)
• Strickland v. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 2069-70, 80 L.Ed.2d 674 (1984)
• Couch v. State, 1991 OK CR 67, 814 P.2d 1045, 1047
• Brown v. State, 5 Okla. Crim. 567, 115 P. 615