David Wayne Robbins v The State Of Oklahoma

F-2004-907

Filed: Aug. 5, 2005

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

David Wayne Robbins appealed his conviction for manufacturing drugs and other related offenses. His original conviction and sentences were for 200 years in prison for drug manufacturing, 100 years for possessing a firearm after a felony, and a $1000 fine for drug paraphernalia. He challenged the way the trial was conducted, claiming that the prosecutor made comments that unfairly shifted the burden of proof onto him and that mistakes in the trial meant his sentences should be changed. The court decided that while Robbins' convictions were upheld, his sentences were modified to 50 years each for the drug manufacturing and firearm possession charges, to be served one after the other. Judge C. Johnson agreed with the outcome of the decision, and Judge A. Johnson also supported the conclusion.

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.

Issues

• Was there improper comments by the prosecutor during first stage closing argument that shifted the burden of proof to the Appellant?
• Did cumulative trial errors warrant a modification of Mr. Robbins' consecutive sentences of 200 years and 100 years?

Findings

• the court did not err regarding improper comments by the prosecutor during first stage closing argument
• the cumulative trial errors warrant sentence modification
• the sentences on Counts I and II are modified to fifty years each, to be served consecutively

F-2004-907

Aug. 5, 2005

David Wayne Robbins

Appellant

v

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
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 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
ANTHONY McKESSON
PUBLIC DEFENDER’S OFFICE
320 ROBERT S. KERR, SUITE 611
OKLAHOMA CITY, OK 73102
COUNSEL FOR APPELLANT

APPEARANCES ON APPEAL
EMMA V. ROLLS
PUBLIC DEFENDER’S OFFICE
611 COUNTY OFFICE BUILDING
OKLAHOMA CITY, OK 73102
COUNSEL FOR APPELLANT

STEPHEN DEUTSCH
ATTORNEY GENERAL OF OKLAHOMA
112 STATE CAPITOL BUILDING
OKLAHOMA CITY, OK 73105
COUNSEL FOR THE STATE

W.A. DREW EDMONDSON
ASSISTANT DISTRICT ATTORNEY
320 ROBERT S. KERR, SUITE 505
OKLAHOMA CITY, OK 73102
COUNSEL FOR THE STATE

KATHRYN SCHMIDT
ASSISTANT ATTORNEY GENERAL
OKLAHOMA COUNTY DISTRICT ATTORNEY’S OFFICE

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

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Footnotes:

1. 63 O.S. Supp.2003, § 2-401
2. 21 O.S.2001, § 1283
3. 63 O.S.2001, § 2-405
4. Simpson v. State, 1994 OK CR 40, "I 2, 876 P.2d 690, 693.
5. Camp U. State, 664 P.2d 1052, 1054 (Okl.Cr.1983)
6. Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2005)

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-401 (2003) - Manufacture of a Controlled Dangerous Substance
• Okla. Stat. tit. 21 § 1283 (2001) - Possession of a Firearm After Former Felony Conviction
• Okla. Stat. tit. 63 § 2-405 (2001) - Possession of Drug Paraphernalia

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:

• Simpson v. State, 1994 OK CR 40, I 2, 876 P.2d 690, 693
• Camp U. State, 664 P.2d 1052, 1054 (Okl.Cr.1983)