Johnny Freddy Locust v The State Of Oklahoma

F-2004-997

Filed: Apr. 3, 2006

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Johnny Freddy Locust appealed his conviction for burglary in the first degree. Conviction and sentence were modified to fifteen years imprisonment and a fine of $5,000.00. Judge Lumpkin dissented.

Decision

The Judgment of the District Court of Tulsa County is AFFIRMED. The Sentence is MODIFIED to fifteen years imprisonment and a $5,000.00 fine. Pursuant to Rule 3.15, Rules of the 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 an error in the trial court's jury instructions in violation of constitutional rights?
• Did the evidence presented by the State prove Appellant's guilt beyond a reasonable doubt?
• Did Appellant receive ineffective assistance of counsel during the trial?
• Did cumulative error deprive Appellant of due process of law?

Findings

• the trial court erred, but the failure to give the jury instruction was harmless beyond a reasonable doubt
• the evidence was sufficient to prove guilt beyond a reasonable doubt
• Mr. Locust did not establish ineffective assistance of counsel warranting reversal
• cumulative error relief was denied
• the sentence was modified to fifteen years imprisonment and a $5,000.00 fine

F-2004-997

Apr. 3, 2006

Johnny Freddy Locust

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LEWIS, JUDGE: Johnny Freddy Locust, Appellant, was tried by jury and found guilty of burglary in the first degree, a violation of 21 O.S. 2001 § 1431, after former conviction of a felony, in the District Court of Tulsa County, Case No. CF-2004-1441. The jury sentenced Appellant to twenty (20) years imprisonment and a fine of $5,000.00. The District Court, Honorable Thomas Gillert, imposed judgment and sentence accordingly. Mr. Locust appeals, raising the following propositions of error:

1. The Trial Court Erred In Not Properly Instructing The Jury In Violation of the Sixth And Fourteenth Amendments To The United States Constitution And Article Two, Section Twenty of the Oklahoma Constitution.

2. Mr. Locust’s Convictions Must Be Reversed Because The Evidence Presented By The State Was Insufficient To Prove His Guilt Beyond A Reasonable Doubt In Violation Of The Fifth And Fourteenth Amendments To the United States Constitution And Article Two, Section Seven of the Oklahoma Constitution.

3. Mr. Locust Received Ineffective Assistance of Counsel In Violation of The Sixth And Fourteenth Amendments To The United States Constitution And Article Two, Section Twenty Of The Oklahoma Constitution.

4. The Accumulation Of Error In This Case Deprived Mr. Locust of Due Process of Law In Violation Of The Fifth and Fourteenth Amendments To The United States Constitution And Article Two, Section Seven of the Oklahoma Constitution.

After thorough consideration of the arguments presented in the appellate briefs and the entire record before us, we affirm the judgment of conviction and modify Appellant’s sentence.

In Proposition 1, the Court finds Appellant presented sufficient evidence of consent to enter the premises to warrant a jury instruction in the language promulgated by this Court in Roberts v. State, 2001 OK CR 14 19, 29 P.3d 583, 589. Trial counsel’s deficient performance in not requesting this instruction did not relieve the trial court of its responsibility to give it, and plain error occurred. Roberts, 2001 OK CR 14 I 18, 29 P.3 3d at 589. However, the failure to give the instruction in this case was harmless beyond a reasonable doubt, and we will not reverse due to the error. 20 O.S. 2001 § 3001.1; Simpson v. State, 1994 OK CR 40 I 13, 876 P.2d 690, 695. We further find the trial court properly refused Appellant’s requested instruction on voluntary intoxication. Jackson U. State, 1998 OK CR 39 9791 36-38, 964 P.2d 875, 892.

In Proposition 2, we find the direct and circumstantial evidence, and the permissible inferences drawn from that evidence, provide sufficient evidence from which a reasonable trier of fact could find the essential elements of the charged crime were proved beyond a reasonable doubt. Spuehler V. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-204; Easlick v. State, 2004 OK CR 21 IT 5, 90 P.3d 556. This proposition is denied.

In Proposition 3, the Court finds trial counsel performed deficiently in not requesting the uniform instruction on consent to enter promulgated in Roberts, supra. However, Appellant has not shown a reasonable probability that but for trial counsel’s omission, the outcome of the trial would have been different. Appellant’s showing similarly fails to warrant reversal with respect to counsel’s alleged failure to investigate possible witnesses or present the testimony of Officer Staats. 1 Lockett U. State, 2002 OK CR 30, I 15, 53 P.3d 418, 424; Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984). Appellant has also failed to rebut the strong presumption that counsel exercised reasonable professional judgment in not raising Appellant’s competency during the trial. Ochoa v. State, 1998 OK CR 41 11, 963 P.2d 583; Marshall v. Territory, 1909 OK CR 43, 2 Okl.Cr. 136, 101 P. 139, 145.

Appellant’s Proposition 4, arguing relief is required due to cumulative error, is denied. Reviewing the case for plain error, we note that Appellant’s offense is a qualifying offense for the parole eligibility limitations of 21 1 Appellant’s Application For Evidentiary Hearing and Supplementation of Record, attaching Officer Staats’s affidavit and report, is granted in part. Remand for an evidentiary hearing is denied. 3 O.S.Supp. 2003 § 13.1 (12) (the 85% Rule). Appellant did not request an instruction on his ineligibility for parole and the trial court had no opportunity to consider whether an instruction should be given. This case was tried before our decision in Anderson v. State, 2006 OK CR 6, P.3d , but was pending on direct review when Anderson was decided. The principle of equal treatment among similarly situated Appellants whose cases are pending on direct review supports sentencing relief based on Anderson. Cf. Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). Rather than remand this case for further proceedings, Appellant’s sentence will be modified to fifteen years imprisonment. The District Court’s assessment of a fine and costs is affirmed.

DECISION

The Judgment of the District Court of Tulsa County is AFFIRMED. The Sentence is MODIFIED to fifteen years imprisonment and a $5,000.00 fine. Pursuant to Rule 3.15, Rules of the Court of Criminal Appeals, Title 22, Ch. 18, App. (2005), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Click Here To Download PDF

Footnotes:

1. 21 O.S. 2001 § 1431
2. Roberts v. State, 2001 OK CR 14 19, 29 P.3d 583, 589
3. 20 O.S. 2001 § 3001.1
4. Simpson v. State, 1994 OK CR 40 I 13, 876 P.2d 690, 695
5. Jackson v. State, 1998 OK CR 39 9791 36-38, 964 P.2d 875, 892
6. Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-204
7. Easlick v. State, 2004 OK CR 21 IT 5, 90 P.3d 556
8. Lockett v. State, 2002 OK CR 30, I 15, 53 P.3d 418, 424
9. Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984)
10. Ochoa v. State, 1998 OK CR 41 11, 963 P.2d 583
11. Marshall v. Territory, 1909 OK CR 43, 2 Okl.Cr. 136, 101 P. 139, 145
12. 21 O.S.Supp. 2003 § 13.1 (12)
13. Anderson v. State, 2006 OK CR 6, P.3d
14. Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987)

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1431 - Burglary in the first degree
• Okla. Stat. tit. 20 § 3001.1 - Jury instructions and consent
• Okla. Stat. tit. 21 § 13.1 - Parole eligibility limitations

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:

• Roberts v. State, 2001 OK CR 14, I 18, 29 P.3d 583, 589
• Simpson v. State, 1994 OK CR 40, I 13, 876 P.2d 690, 695
• Jackson v. State, 1998 OK CR 39, I 36-38, 964 P.2d 875, 892
• Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-204
• Easlick v. State, 2004 OK CR 21, I 5, 90 P.3d 556
• Lockett v. State, 2002 OK CR 30, I 15, 53 P.3d 418, 424
• Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984)
• Ochoa v. State, 1998 OK CR 41, I 1, 963 P.2d 583
• Marshall v. Territory, 1909 OK CR 43, 2 Okl.Cr. 136, 101 P. 139, 145
• Anderson v. State, 2006 OK CR 6, P.3d
• Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987)