Pamela Dee Colley v The State of Oklahoma

F-2005-1146

Filed: May 18, 2007

Not for publication

Prevailing Party: Pamela Dee Colley

Summary

Pamela Dee Colley appealed her conviction for trafficking in illegal drugs (methamphetamine), failure to obtain a drug tax stamp, unlawful possession of marijuana (second offense), and unlawful possession of paraphernalia. Conviction and sentence included life without parole for the drug trafficking charge, with additional prison time and fines for the other charges. Judge Lumpkin dissented on the reversal of the unlawful possession of marijuana charge.

Decision

The Judgment and Sentence of the District Court of Tulsa County in Counts 1, 2, 4, 5, 6, 7, and 8 is AFFIRMED. Count 3 is REVERSED. 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 a fundamental error in the District Court's instruction on mandatory life without parole due to the State alleging a non-drug conviction alongside drug convictions for enhancement?
• Did Appellant demonstrate ineffective assistance of counsel for failing to file a motion to suppress the drug evidence seized during the traffic stop?
• Was the duration of the traffic stop reasonable under the Fourth Amendment, considering the circumstances of the case?
• Did Appellant's reasonable expectation of privacy get violated when her consent for a search was allegedly obtained under duress?
• Could trial counsel have been ineffective for not arguing that Appellant's prior drug convictions were transactional and should be treated as a single conviction for enhancement purposes?
• Did the trial court err by not merging the convictions for trafficking in drugs and possession of marijuana, resulting in double punishment for the same offense?

Findings

• the court erred in the sentencing instruction related to the habitual offender status, constituting plain error
• the evidence was sufficient to support the conviction for trafficking in illegal drugs
• the evidence was sufficient to support the conviction for failure to obtain a drug tax stamp
• the evidence was sufficient to support the conviction for unlawful possession of marijuana
• the evidence was sufficient to support the conviction for unlawful possession of paraphernalia
• the claim of ineffective assistance of counsel regarding the motion to suppress was not meritorious
• the claim of ineffective assistance of counsel regarding the transactional nature of drug convictions did not demonstrate prejudice
• the claim regarding inadequate preparation of Appellant for her testimony was unsupported
• the trial court committed plain error by convicting Appellant of both trafficking and possession of marijuana
• Count 3 is reversed
• the judgments and sentences of the District Court in Counts 1, 2, 4, 5, 6, 7, and 8 are affirmed

F-2005-1146

May 18, 2007

Pamela Dee Colley

Appellant

v

The State of Oklahoma

Appellee

SUMMARY OPINION

LEWIS, JUDGE: Pamela Dee Colley, Appellant, was tried by jury and found guilty in the District Court of Tulsa County, Case No. CRF-2005-908, of Count 1, trafficking in illegal drugs (methamphetamine), after former conviction of two or more drug felonies, in violation of 63 O.S.Supp.2005, § 2-415(B)(1); Count 2, failure to obtain drug tax stamp, after former conviction of two or more felonies, in violation of 68 O.S.2001, § 450-1; Count 3, unlawful possession of marijuana- second offense, after former conviction of two or more felonies, in violation of 63 O.S.Supp.2005, § 2-402(B)(2); and Count 4, unlawful possession of paraphernalia, in violation of 63 O.S.Supp.2005, § 2-405(B). The jury sentenced Appellant to life without parole and a $25,000.00 fine in Count 1; five (5) years imprisonment and a $5,000.00 fine in each of Counts 2 and 3; and one (1) year in jail and a $1000.00 fine in Count 4. In a non-jury trial, the District Court also convicted Appellant of Counts 5 through 8 and imposed a fine in each count. The District Court, Honorable Thomas C. Gillert, District Judge, pronounced judgment and ordered all the sentences served concurrently, except Count 2. Ms. Colley appeals.

Facts

Tulsa Police Officer David Brice saw a car fail to stop at the intersection of 2nd and Lewis, around 4:15 a.m., on February 22, 2005. The car turned south onto Lewis. Officer Brice followed the car and noticed an improper tag display. He also paced the car and observed the driver exceed the posted speed limit. He initiated a traffic stop near 5th and Lewis. Brice made contact with Appellant and her passenger, Linda Gann. Appellant had no drivers’ license or identification with her and gave two different last names. Officer Brice took personal information from both occupants and returned to his vehicle. After some initial difficulty identifying Appellant, Officer Brice ultimately found her in a records check by her name and date of birth. The records check revealed Appellant’s prior drug and weapons charges.

At the time of the stop, Officer Brice also had information from a confidential informant that methamphetamine dealers were moving their product through this particular area during early morning hours. Brice requested assistance from a K9 officer and a female officer to conduct a search of the women. Corporal Mike Griffin and Officers William McKenzie and Kurt Gardner also assisted. Brice began writing three citations while the women waited in their vehicle. K9 Officer Chris Steele arrived at the scene while Officer Brice was still writing citations. Brice left his cruiser, removed Appellant and Linda Gann from their car, and detained them behind the cruiser during the K9 sniff. Appellant, Gann, Officer Brice, and Corporal Michael Griffin stood behind the car talking. While Brice was explaining the citations he had written Appellant, the K9 alerted three times on the car. Corporal Griffin and Officer McKenzie then searched the car. In the right side of the driver’s seat, up against the console, Officer McKenzie found a black purse containing a set of digital scales, two small baggies of methamphetamine, and Appellant’s social security card.

Meanwhile, Officer Toni Hill had arrived to conduct the personal searches of Appellant and Linda Gann. Officers Brice and Hill both noticed that Appellant became emotionally upset. When they asked Appellant what was wrong, she seemed reluctant to discuss the situation in front of Linda Gann. Officer Hill searched Gann and moved her to a patrol car. Hill then returned to search Appellant. Appellant consented to the search. Now sobbing, Appellant unzipped her jacket and handed Officer Hill a large brown bag stuffed in the front of her clothing. She then reached into her sleeve and pulled out a small green bag. While Corporal Griffin and Officer McKenzie were searching Appellant’s car, Corporal Griffin told Officer Brice that Appellant was 10-15: the search of the car would result in arrest.

Officer Brice unzipped the brown, bank-type bag now sitting on his trunk lid. Some small metal tins with partially transparent lids were inside. Through the opening in one of the lids he saw a quantity of crystalline substance he associated with methamphetamine. Officer Brice also found a smaller green bag inside the brown bag, containing a small set of digital scales, a quantity of marijuana, and additional bags of methamphetamine. The second small green bag—the one Appellant pulled from her sleeve—contained a glass smoking pipe, a spoon with a cotton ball filter, a syringe, and another small amount of methamphetamine. The methamphetamine recovered as a result of the stop totaled 97 grams, almost five times the 20 gram quantity defined as trafficking in methamphetamine. 63 O.S.Supp.2005, § 2-415(C)(4)(a). Appellant was arrested and charged with drug trafficking. Appellant testified to her prior convictions for second degree rape and drug possession in 1983; and convictions for possession of cocaine and amphetamine in 1990. Linda Gann was an acquaintance she had met at a casino. She had seen Gann only three or four times before this morning. The night before, Linda Gann had asked Appellant for a ride to Muskogee to pay money to an attorney who was representing Gann’s boyfriend. Appellant had to work that morning; she offered instead to loan her car to Gann. She picked up Gann early that morning because Gann needed to be in Muskogee by 8 a.m. Gann asked Appellant to hold a bag for her when they stopped at Quick Trip. Appellant placed it on the console, but then thought the bag might contain cash to pay the attorney. She then placed the bag inside her coat.

Appellant disputed Officer Brice’s testimony, stating she had produced her driver’s license at his request. After Officer Brice returned to his car, Appellant removed Linda Gann’s bag and put it on the console. Gann then attempted to throw the bag out Appellant’s window. Appellant caught the brown bag and threw it back at Gann. The brown bag and the green bag both became involved as Appellant and Gann tossed them back and forth, arguing. The brown bag hit Appellant in the chest just as Officer Brice asked her to exit the vehicle. Appellant did not realize the green bag was on her person when she got out of the car. She also testified that Officer Brice removed her from the car while Gann remained in the car alone. Appellant testified at trial that she did not know the contents of the bags when she turned them over to Officers Brice and Hill. She also denied using, selling, or transporting any drugs, even the drugs recovered from her purse. Appellant testified that she told police these bags belonged to Linda Gann; that she did not use drugs and wanted an immediate drug test; that police should fingerprint the baggies to see who handled the drugs; and that she would consent to a search of her house, which she did.

Assignments of Error

In her first proposition of error, Appellant claims that the District Court’s instruction on the mandatory sentence of life without parole resulted in fundamental error. She contends that when the State alleged a prior non-drug conviction—the 1983 second degree rape conviction—along with her three prior drug convictions, the State elected to enhance Appellant’s drug trafficking crime under the Habitual Offender Statute, 21 O.S.Supp.2002, § 51.1, rather than the mandatory life without parole enhancement in 63 S.Supp.2005, § 2-415(D)(3). Defense counsel stated no objection to the instructions at trial. We will review for plain error.

The record before us discloses no conscious election by the State to proceed under the general enhancement statute at 21 O.S.Supp.2002, § 51.1. The State clearly intended to pursue a mandatory life without parole sentence based on Appellant’s three prior drug convictions. In a motion to strengthen Appellant’s bond filed April 28, 2005, the State specifically alleged that Appellant was facing a mandatory life without parole sentence for drug trafficking. Appellant really asks this Court to imply a more lenient election when the State pleads and proves a prior non-drug conviction(s) alongside two or more prior drug convictions that would otherwise trigger the mandatory life without parole enhancement.

Appellant cites Novey U. State, 1985 OK CR 142, 709 P.2d 696, where the State’s second page in a controlled drug prosecution alleged both prior drug and non-drug convictions as a basis for enhancement. The jury convicted Novey of distribution of a controlled drug, after former conviction of two or more felonies, and set punishment at twenty-five (25) years imprisonment and a fine of $10,000. Novey argued that the District Court’s instruction had improperly combined the provisions from two different enhancement statutes by including a prison term from the Habitual Offender Act and fine from the Uniform Controlled Dangerous Substance Act.

This Court agreed. The Court found that if enhancement were possible under both statutes, the State must elect which enhancement statute it intended to apply. Because the District Court’s instruction had actually combined punishments from two statutes, this Court modified the sentence to ten (10) years imprisonment, the minimum under either statute. Appellant’s reliance on Novey for an implied rule that the State elects the more lenient statute is undermined by the majority’s statement that since the appellant was charged with both drug and non-drug predicate [prior] offenses, it would have been permissible to provide for enhancement under either statute.

Appellant’s election argument places weight on the statement in Judge Brett’s specially concurring opinion in Novey: …I am of the opinion that when the district attorney alleges both drug and non-drug former offenses as his predicate to enhance punishment, the election has been made to place the punishment under 21 O.S.1981, § 51(B). Judge Brett went on to say that such a rule of election will then simplify the court’s instructions and avoid the problem presented by the imposition of a fine in this case when the trial court utilized both statutes when drafting the instructions.

We read Judge Brett’s statement in Novey only as offering a rule of decision for trial courts to use in selecting proper instructions based on the prior convictions pleaded and proved by the State. Appellant also cites Blunt v. State, 1987 OK CR 201, 743 P.2d 145, where the appellant was convicted of delivery of a controlled substance, second offense, after two or more prior convictions. He argued, for the first time on appeal, that his sentence was subject to enhancement under the controlled drug statute, 63 O.S.1981, § 2-401(C), rather than the general enhancement provisions of 21 O.S.1981, § 51. The State in Blunt alleged a prior felony larceny and a drug possession conviction. The Court found the enhancement under section 51 was proper and no fundamental error occurred.

Appellant directs our attention to the specially concurring opinion of Judge Parks: [I]f the State wishes to seek enhancement under the Controlled Substance Act, it may elect to do so by citing only the prior drug offenses for enhancement purposes. Of course, the State may also elect to proceed under the Habitual Offender Act by citing both the drug and non-drug prior offenses.

Again, Judge Parks spoke in terms of the State’s discretion to choose among alternative enhancement statutes by pleading and proving particular convictions and suggested a rule by which the trial court could then draft a proper instruction on punishment. Jones v. State, 1990 OK CR 17, 789 P.2d 245, is more pertinent to the issue. In Jones, we held that to determine on appeal the enhancement regime under which the State elected to proceed at trial, it is unnecessary to look beyond the enhancement instruction submitted to the jury. We follow the same approach here, as the State voiced no objection to the jury instruction on punishment and clearly intended to proceed with the drug trafficking enhancement in section 2-415(D)(3).

This argument is without merit. Appellant also complains that the District Court’s punishment instruction did not limit the jury’s consideration to prior drug convictions… Even so, Appellant can show no prejudice from the instruction, as she admitted two or more prior controlled drug convictions in her testimony. She is therefore subject to the mandatory life without parole sentence regardless of other prior convictions.

Proposition I is denied.

In Proposition II, Appellant argues several issues never raised in the District Court under the rubric of ineffective assistance of counsel. She also files a Motion to Supplement the Record and Application for Evidentiary Hearing on Sixth Amendment Claims pursuant to Rule 3.11(B), Rules of the Oklahoma Court of Criminal Appeals, 22 O.S., Ch. 18, App. (2006), alleging certain facts outside the appellate record in support of her claims. The record on appeal consists only of those matters admitted during proceedings in the trial court.

When the appellant seeks to supplement the record with additional information by filing a motion under Rule 3.11(B), this Court will review the affidavits and evidentiary materials submitted to determine whether the application sets forth sufficient information to show this Court by clear and convincing evidence there is a strong possibility trial counsel was ineffective for failing to utilize or identify the complained-of evidence.

If the Court determines from the application that a strong possibility of ineffectiveness is shown, we will remand the matter for a hearing to permit the presentation of evidence, findings of facts, and conclusions of law. The record thus created in the District Court may then be admitted as part of the record on appeal and considered in connection with Appellant’s claims of ineffective counsel.

Ineffective counsel claims must always overcome a strong initial presumption that counsel rendered reasonable professional assistance by showing: (1) that trial counsel’s performance was deficient; and (2) that appellant was prejudiced by the deficient performance.

Appellant must show that counsel’s challenged act or omission was objectively unreasonable under prevailing professional norms, meaning the lawyer was not functioning as the counsel guaranteed by the Constitution. The Court’s overriding concern in judging counsel’s representation is to determine whether counsel fulfilled the function of making the adversarial testing process work.

Appellant must further show she suffered prejudice from counsel’s errors. Prejudice is defined as a reasonable probability that, but for counsel’s unprofessional errors, the outcome of the trial or sentencing would have been different. We will reverse a conviction or sentence where the record shows unprofessional errors so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

If the record permits resolution of an ineffectiveness claim on the ground that prejudice has not been shown, we ordinarily follow this course. According to the foregoing principles, we turn to Appellant’s claims. We first address Appellant’s claim that trial counsel was ineffective in failing to argue a motion to suppress the drug evidence seized during the traffic stop. A traffic stop initiated by law enforcement is a seizure governed by the Fourth Amendment’s requirement of reasonableness.

Appellant concedes here that the observed traffic violations provided probable cause for the initial stop. She then argues that Officer Brice unreasonably extended the stop because, once he learned of Appellant’s criminal record, he intended to search Appellant for weapons or drugs and conduct the K9 sniff. Appellant argues this additional restraint exceeded the reasonable scope and duration to resolve the initial justification for the stop, and thus violated the Fourth Amendment and Article 2, Section 30 of the Oklahoma Constitution.

Traffic stops must be reasonably related in scope and duration to the justification for their initiation. An officer making a valid traffic stop can (1) require a driver to exit his car and produce his license; (2) check the validity of the inspection sticker on the vehicle and other required documentation; and (3) detain the driver for a reasonable time to issue citations.

The officer may also lawfully extend the duration of the stop to conduct additional investigation based on a reasonable suspicion that the person stopped has committed, is committing or is about to commit a crime. A traffic stop becomes an unreasonable seizure at the point where its initial justification has ceased and no new justification has arisen.

We determine whether the officer’s justification for prolonging the traffic stop was reasonable under the totality of the circumstances. In this case, Officer Brice made a routine traffic stop. He summoned the K9 officer and a female officer before he began writing his citations to Appellant. He was still writing citations when K9 Officer Chris Steele arrived within several minutes.

This traffic stop was not unreasonable in scope or duration. We need not decide whether the officer had reasonable suspicion to extend the duration of the stop. The K9 alert and vehicle search yielded probable cause to arrest the Appellant for drug possession, and thus provided the officer with clear reasons for expanding the scope of his inquiry and eventually making an arrest.

This leads to the real search and seizure question in this case: the search of Appellant’s person and discovery of bags containing methamphetamine, marijuana, and paraphernalia. Appellant’s argument focuses on the unreasonable duration of the stop and the fact that she was not free to leave when police requested consent to search her person.

The validity of the search that produced the most harmful evidence against Appellant does not depend on the reasonableness of Officer Brice’s initial decision to search Appellant or the validity of Appellant’s subsequent consent to search. Appellant’s arrest—and a complete physical search incident to that arrest—were inevitable once the K9 alerted, the car was searched, and drugs were found in her purse.

The evidence stashed in Appellant’s clothing would have been inevitably discovered by a search incident to arrest—regardless of the reasonableness of Officer Brice’s initial suspicions about drugs or weapons or the voluntariness of Appellant’s eventual consent. Suppression of this evidence is not required. While trial counsel should always carefully assess whether evidence is admissible and timely seek the exclusion of illegally seized evidence from trial, a motion to suppress the evidence in this case ultimately would have failed.

Appellant cannot show the required Strickland prejudice from counsel’s failure to challenge the search and seizure. Appellant next argues that counsel rendered ineffective assistance by failing to argue that her 1990 drug convictions were transactional and thus could only be used as a single conviction for enhancement purposes.

Appellant also requests supplementation of the record with additional evidence trial counsel could have utilized in making this argument. In her testimony Appellant admitted to a felony drug conviction in 1982 and two more felony drug convictions in 1990. This conclusively qualified her for the mandatory life without parole sentence, even if the 1990 convictions were transactional.

The request to supplement the record with additional evidence on this issue is denied. No relief is warranted.

Appellant also complains that trial counsel gave her inadequate advice and failed to prepare her to testify. A portion of this argument is premised on the claim in Proposition I, that the District Court erred by instructing the jury on the mandatory sentence of life without parole. We rejected that claim and must reject this related argument for the same reasons.

Appellant also states that she felt confused, rattled, and ill-prepared for the onslaught of cross-examination questions which rendered what testimony she offered substantially undermined.

Reviewing the materials submitted in Appellant’s Motion to Supplement the Record and Application for Evidentiary Hearing in light of the entire record before us, Appellant has not presented sufficient information to show this Court by clear and convincing evidence there is a strong possibility trial counsel was ineffective for failing to utilize or identify the complained-of evidence.

The record does not support Appellant’s complaint that she was ill-prepared to testify in her own defense. Moreover, the record refutes Appellant’s claim that she was unaware she would not be allowed to explain to the jury the circumstances of her prior convictions. The State’s evidence also showed that Appellant simply got caught while knowingly trafficking a large quantity of crystal methamphetamine.

Appellant has not shown a reasonable probability that better preparation or counsel’s utilization of additional evidence would have altered this bleak evidentiary picture or the outcome of the trial.

Appellant finally notes that trial counsel filed, but never presented, a motion to merge Count 1, trafficking in illegal drugs, and Count 3, possession of marijuana, second offense. Appellant argues her convictions in both counts illegally inflict two punishments for the same offense under our decision in Watkins v. State, 1991 OK CR 119, 829 P.2d 42.

Since the filing of Appellant’s brief, we reaffirmed Watkins in Lewis U. State, 2006 OK CR 48, 150 P.3d 1060, holding that two convictions for trafficking in quantities of cocaine and heroin contained in a single travel bag punished the appellant twice for the same offense.

The facts here are not materially distinguishable from Lewis. Appellant unlawfully possessed two controlled drugs in a single, bank bag-sized container hidden on her person. This is but one offense against the statutes prohibiting controlled drug possession under Watkins and Lewis.

Reviewing the objection for the first time on direct appeal, we find the double punishment inflicted here is plain error in violation of Appellant’s substantial constitutional and statutory rights.

DECISION

The Judgment and Sentence of the District Court of Tulsa County in Counts 1, 2, 4, 5, 6, 7, and 8 is AFFIRMED. Count 3 is REVERSED.

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.

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Footnotes:

1. 63 O.S.Supp.2005, § 2-415(B)(1)
2. 68 O.S.2001, § 450-1
3. 63 O.S.Supp.2005, § 2-402(B)(2)
4. 63 O.S.Supp.2005, § 2-405(B)
5. 63 O.S.Supp.2005, § 2-415(C)(4)(a)
6. 21 O.S.Supp.2002, § 51.1
7. 21 O.S.2001, § 11
8. 22 O.S., Ch. 18, App. (2006)
9. Delaware U. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed. 2d 660 (1979)
10. Skelly U. State, 1994 OK CR 55, 19, 880 P.2d 401, 404
11. United States U. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975)
12. McGaughey v. State, 2001 OK CR 33, I 35, 37 P.3d 130, 140
13. Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984)
14. McGregor U. State, 1994 OK CR 71, IT 26, 885 P.2d 1366, 1381
15. Colley v. State, F-1991-415 (Okl.Cr., June 20, 1994)
16. Watkins v. State, 1991 OK CR 119, 829 P.2d 42
17. Lewis U. State, 2006 OK CR 48, 150 P.3d 1060
18. Evans U. State, 2007 OK CR 13

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-415(B)(1) - Trafficking in illegal drugs
• Okla. Stat. tit. 68 § 450-1 - Failure to obtain drug tax stamp
• Okla. Stat. tit. 63 § 2-402(B)(2) - Unlawful possession of marijuana
• Okla. Stat. tit. 63 § 2-405(B) - Unlawful possession of paraphernalia
• Okla. Stat. tit. 63 § 2-415(C)(4)(a) - Trafficking defined
• Okla. Stat. tit. 21 § 51.1 - Habitual Offender Statute
• Okla. Stat. tit. 63 § 2-415(D)(3) - Mandatory life without parole enhancement
• Okla. Stat. tit. 22 § 18 - Rules of the Court of Criminal Appeals
• Okla. Stat. art. II, § 21 - Double jeopardy

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, 876 P.2d 690
• Novey v. State, 1985 OK CR 142, 709 P.2d 696
• Blunt v. State, 1987 OK CR 201, 743 P.2d 145
• Jones v. State, 1990 OK CR 17, 789 P.2d 245
• Ott v. State, 1998 OK CR 51, 967 P.2d 472
• Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377
• McGregor v. State, 1994 OK CR 71, 885 P.2d 1366
• Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660
• Seabolt v. State, 2006 OK CR 50, 152 P.3d 235
• McGaughey v. State, 2001 OK CR 33, 37 P.3d 130
• Dufries v. State, 2006 OK CR 13, 133 P.3d 887
• Watkins v. State, 1991 OK CR 119, 829 P.2d 42
• Lewis v. State, 2006 OK CR 48, 150 P.3d 1060
• Evans v. State, 2007 OK CR 13