Blog

FILED IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA AUG – 5 2005 IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA MICHAEL S. RICHIE CLERK DAVID WAYNE ROBBINS, ) ) Appellant, ) NOT FOR PUBLICATION ) V. ) Case No. F-2004-907 ) THE STATE OF OKLAHOMA, ) ) Appellee. ) SUMMARY OPINION LUMPKIN, VICE PRESIDING JUDGE: Appellant, David Wayne Robbins, was tried by jury in the District Court of Oklahoma County, Case Number CF-2003-5061, and convicted of Manufacture of a Controlled Dangerous Substance, in violation of 63 O.S. Supp.2003, § 2- 401 (Count I); Possession of a Firearm After Former Felony Conviction, in violation of 21 O.S.2001, § 1283 (Count II); and Possession of Drug Paraphernalia, in violation of 63 O.S.2001, § 2-405 (Count III). The jury set punishment at two hundred (200) years imprisonment on count I, one hundred (100) years on count II, and a $1000 fine on count III. The trial judge sentenced Appellant accordingly and ordered the sentences to run consecutively. Appellant now appeals his convictions and sentences. Appellant raises the following propositions of error in this appeal: I. Improper comments by the prosecutor during first stage closing argument shifted the burden of proof to the Appellant thereby violating the Fifth and Fourteenth Amendment of the United States Constitution and corresponding provisions of the Oklahoma Constitution; and 1 II. Trial errors, when considered in a cumulative fashion, warrant a modification of Mr. Robbins’ consecutive sentences of 200 years and 100 years. After a thorough consideration of these propositions and the entire record before us, including the original record, transcripts, and briefs of the parties, we find reversal or modification is not required. With respect to proposition one, we review for plain error, as no objection was raised at trial. Simpson v. State, 1994 OK CR 40, “I 2, 876 P.2d 690, 693. Finding no plain error or ineffective assistance, proposition one is denied. In proposition two, Appellant claims four errors at trial cumulatively warrant modification of his sentence. We agree. While the trial judge’s refusal to redact the sentence terms from the certified copies of his judgments and sentences was not an abuse of discretion under the facts of this case, the prosecutor’s sentencing stage closing arguments made unmistakable references to the pardon and parole system to Appellant’s prejudice. Any lawyer who has read our prior cases would realize any argument or instructions regarding pardon or parole are error which can lead to reversal of the case or modification of the sentence. Disregarding our caselaw is highly unprofessional and, as here, puts the jury verdict in jeopardy. While the jury could have justifiably given the same sentence based solely on the fact Appellant had twelve prior felony convictions and had that verdict sustained on appeal, the argument of the State created error that must be corrected by sentence modification. Camp U. State, 664 P.2d 1052, 1054 (Okl.Cr.1983) Also, the trial judge compounded the problem by overruling defense counsel’s 2 objection and telling jurors they could not ensure Appellant would serve the amount of time given. DECISION Appellant’s convictions are hereby AFFIRMED, but his sentences on Counts I and II are MODIFIED to fifty years each, to be served consecutively. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2005), the MANDATE is ORDERED issued upon the delivery and filing of this decision. AN APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY THE HONORABLE TAMMY BASS-JONES, DISTRICT JUDGE APPEARANCES AT TRIAL APPEARANCES ON APPEAL ANTHONY McKESSON EMMA V. ROLLS PUBLIC DEFENDER’S OFFICE PUBLIC DEFENDER’S OFFICE 320 ROBERT S. KERR, SUITE 611 611 COUNTY OFFICE BUILDING OKLAHOMA CITY, OK 73102 OKLAHOMA CITY, OK 73102 COUNSEL FOR APPELLANT COUNSEL FOR APPELLANT STEPHEN DEUTSCH W.A. DREW EDMONDSON KATHRYN SCMIDT ATTORNEY GENERAL OF OKLAHOMA ASSISTANT DISTRICT ATTORNEY SANDRA RINEHART OKLAHOMA COUNTY ASSISTANT ATTORNEY GENERAL DISTRICT ATTORNEY’S OFFICE 112 STATE CAPITOL BUILDING 320 ROBERT S. KERR, SUITE 505 OKLAHOMA CITY, OK 73105 OKLAHOMA CITY, OK 73102 COUNSEL FOR THE STATE COUNSEL FOR THE STATE OPINION BY: LUMPKIN, V.P.J. CHAPEL, P.J.: CONCUR C. JOHNSON, J.: CONCUR IN RESULT A. JOHNSON, J.: CONCUR IN RESULT RB 3

Click Here To Download PDF