Larry Eugene Wright v The State Of Oklahoma

F-2005-557

Filed: Dec. 5, 2006

Not for Publication

Prevailing Party: Larry Eugene Wright

Summary

Larry Eugene Wright appealed his conviction for robbery with a firearm (Count II), possession of a firearm after a felony conviction (Count IV), possession of a firearm with an altered serial number while committing a felony (Count V), and obstructing an officer (Count VI). His convictions and sentences were affirmed for robbery with a firearm (25 years and a $5,000 fine), possession of a firearm with an altered serial number (5 years and a $1,000 fine), and obstructing an officer (1 year and a $500 fine). However, his conviction for possession of a firearm after a felony conviction (10 years and a $5,000 fine) was reversed due to prosecutorial misconduct. Judge Lumpkin dissented regarding Count IV, believing that a simple sentence modification would have sufficed.

Decision

Wright's CONVICTIONS and SENTENCES for Robbery with Firearm (Count II), Possession of Firearm with Altered Serial Number While in Commission of a Felony (Count V), and Obstructing an Officer (Count VI) are hereby AFFIRMED. Wright's conviction for Possession of Firearm After Former Conviction of a Felony (Count IV), however, is REVERSED AND REMANDED. This case is also REMANDED to the district court for correction of the Judgment and Sentence document, through an order nunc pro tunc, to reflect that in Count V Wright was charged and convicted under 21 O.S.2001, § 1550(A). Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2006), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there a violation of constitutional and statutory prohibitions against double punishment regarding the conviction for possession of a firearm with an altered serial number while in commission of a felony?
• Did the convictions for robbery with firearm and possession of a firearm after former conviction of a felony violate statutory provisions?
• Was it reversible error to present prior felony conviction evidence in support of the charge of possession of a firearm after former conviction of a felony during the first stage of the trial?
• Did various instances of prosecutorial misconduct occur during the trial that denied the appellant his right to a fair trial?
• Did the appellant receive ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution?
• Was it an error to deny the appellant's request to instruct the jury about the parole restrictions imposed by statute?
• Did the accumulation of errors in the trial deprive the appellant of due process of law and a reliable sentencing proceeding?

Findings

• the court erred in affirming Wright's conviction for Possession of Firearm with Altered Serial Number While in Commission of a Felony as it violated constitutional and statutory prohibitions against double punishment.
• the court did not err as the convictions for Robbery with Firearm and Possession of a Firearm After Former Conviction of a Felony did not violate 21 O.S.2001, § 11.
• the court did not err in allowing the introduction of prior felony conviction evidence during the trial, as Wright waived the objection by not raising it timely.
• prosecutorial misconduct occurred, leading to the reversal of Wright's Count IV conviction for Possession of Firearm After Former Conviction of a Felony.
• Wright did not receive ineffective assistance of counsel as the alleged errors did not impact the outcome of the trial.
• the court did not err in denying Wright's request for jury instruction on parole restrictions, but found he was not prejudiced by this omission.
• the cumulative effect of errors did not deprive Wright of due process, and no further relief is necessary aside from the reversal of Count IV.

F-2005-557

Dec. 5, 2006

Larry Eugene Wright

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

Larry Eugene Wright was tried by jury and convicted of Robbery with Firearm, under 21 O.S.2001, § 801 (Count II); Possession of Firearm After Former Conviction of a Felony, under 21 O.S.Supp.2004, § 1283 (Count IV); Possession of Firearm with Altered Serial Number While in Commission of a Felony, under 21 O.S.2001, § 1550(A) (Count V), and Obstructing an Officer, under 21 O.S.2001, § 540 (Count VI), in the District Court of Tulsa County, Case No. CF-2004-2898. In accordance with the jury’s recommendation, the Honorable Caroline Wall sentenced Wright to imprisonment for twenty-five (25) years and a fine of $5,000 on Count II, imprisonment for ten (10) years and a fine of $5,000 on Count IV, imprisonment for five (5) years and a fine of $1,000 on Count V, and imprisonment for one (1) year in the county jail and a fine of $500 on Count VI. The Honorable Caroline Wall ordered that all four counts be served concurrently. Wright raises seven propositions of error in support of his appeal:

I. UNDER THE FACTS OF THIS CASE, APPELLANT’S CONVICTION FOR POSSESSION OF A FIREARM WITH AN ALTERED SERIAL NUMBER WHILE IN COMMISSION OF A FELONY VIOLATES CONSTITUTIONAL AND STATUTORY PROHIBITIONS AGAINST DOUBLE PUNISHMENT. APPELLANT’S CONVICTION IN COUNT V MUST BE REVERSED WITH INSTRUCTIONS TO DISMISS.

II. APPELLANT’S CONVICTIONS IN COUNT II, ROBBERY WITH FIREARM, AND COUNT IV, POSSESSION OF A FIREARM AFTER FORMER CONVICTION OF A FELONY, VIOLATE 21 O.S.2001, § 11.

III. IT WAS REVERSIBLE ERROR TO PRESENT THE PRIOR FELONY CONVICTION FOR FELONIOUSLY CARRYING A FIREARM (POSSESSION OF A FIREARM AFCF) IN SUPPORT OF THE CHARGE OF POSSESSION OF A FIREARM AFTER FORMER CONVICTION OF A FELONY IN COUNT IV OF THE INFORMATION DURING THE FIRST STAGE OF APPELLANT’S TRIAL.

IV. VARIOUS INSTANCES OF PROSECUTORIAL MISCONDUCT OCCURRED THROUGHOUT TRIAL, WHICH ULTIMATELY SERVED TO DENY APPELLANT HIS RIGHT TO A FAIR TRIAL GUARANTEED BY THE OKLAHOMA AND UNITED STATES CONSTITUTIONS, INCLUDING VOIR DIRE MISCONDUCT, MISCONDUCT DURING WITNESS TESTIMONY, AND CLOSING ARGUMENT MISCONDUCT.

V. APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.

VI. IT WAS ERROR TO DENY APPELLANT’S REQUEST TO INSTRUCT THE JURY AS TO THE PAROLE RESTRICTIONS IMPOSED BY 21 O.S.2001, §§ 12.1, 13.1.

VII. THE ACCUMULATION OF ERROR IN THIS CASE DEPRIVED APPELLANT OF DUE PROCESS OF LAW AND A RELIABLE SENTENCING PROCEEDING, THEREFORE NECESSITATING REVERSAL PURSUANT TO THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.

In Proposition I, Wright asserts that his Count V conviction for Possession of Firearm with Altered Serial Number While in Commission of a Felony violates 21 O.S.2001, § 11, because it involves the same act as his Count II conviction for Robbery with Firearm and his Count IV conviction for Possession of Firearm AFCF, since they all involve possession of the same gun. Wright’s jury was instructed that in order to convict him on Count V, it had to find that he possessed the firearm with an altered serial number while committing or attempting to commit a felony, to wit: Count 1, 2, 3 and/or Count 4. Although the jury’s verdict on Count V did not state which underlying felony or felonies its Count V conviction was based upon, the fact that the jury acquitted Wright on Counts I and III makes those felonies ineligible as the basis for the conviction on Count V. Yet since the jury did not articulate whether Count II or Count IV was the underlying felony for Wright’s conviction on Count V, this Court can only uphold Wright’s Count V conviction if we can conclude that both of these other counts (II and IV) can be combined with Count V, without violating Section 11. In Davis v. State, this Court articulated the following standard for addressing Section 11 claims such as Wright’s: If the crimes truly arise out of one act, then Section 11 prohibits prosecution for more than one crime. One act that violates two criminal provisions cannot be punished twice, absent specific legislative intent.

Thus, the question of whether Wright’s Count V § 1550(A) conviction is based upon the same act as either his Count II conviction or his Count IV conviction does not answer the question of whether § 11 is violated in the current case. If, as seems likely, Wright’s jury convicted him of Count V based upon its finding that Wright possessed a nontraceable firearm during the commission of the armed robbery (Count II), the possession and the armed robbery are based upon the same act, namely, Wright’s act of using the (nontraceable) gun to rob Donald Nigh.

This Court concludes that § 11 is not violated by either the combination of Count II and Count V or the combination of Count IV and Count V. The language and structure of § 1550(A) reveal that the legislature intended to provide for additional punishment and an additional conviction for the act of committing the underlying felony, when at the time the defendant committed the underlying felony (or felonies), he contemporaneously possessed a nontraceable firearm. Section 11 does not prohibit either this goal or this approach. Hence Proposition I is rejected.

In Proposition II, the evidence presented at trial established that Wright continued to possess the gun even after completing the robbery. This evidence supports the logical inference that Wright possessed the gun separate and apart from the robbery. Therefore, this proposition is rejected as well.

In Proposition III, Wright argues that even if his testimony was subject to impeachment by the fact that he had five former convictions, he was still entitled to a bifurcated trial and that the State should not have been allowed to introduce evidence that he had previously been convicted of feloniously carrying firearm, since the nature of this weapon-carrying conviction was unduly prejudicial to the jury’s consideration of the charges in the current case. Wright failed to object to the trial court’s decision allowing the State to reopen its case and present evidence on Count IV in the first stage. Hence this claim is waived absent plain error, which we do not find. Proposition III is rejected accordingly.

Regarding Proposition IV, this Court must determine whether the challenged prosecutorial actions were indeed improper and, if so, whether they so infected Wright’s trial that it was rendered fundamentally unfair, such that the jury’s verdicts-or some portion of those verdicts-cannot be relied upon. This Court finds nothing improper in the challenged comment made during voir dire. Regarding the State’s cross-examination of Wright, this Court notes that the trial court was consistent, and even generous, in sustaining defense counsel’s objections to the prosecutor’s questions. However, we reach a different conclusion regarding the State’s closing arguments. The State’s propensity argument regarding Count IV—that Wright has already been convicted of this exact same thing, that he hasn’t changed, and that he is still walking around with pistols—is particularly troubling, since there had been substantial prior discussion in this case of the limited purpose for which the prior conviction was being admitted and of the possible prejudice arising from the similarity of this prior conviction with the charged offenses. Thus, the State’s prosecutorial misconduct during closing arguments merits the reversal of Wright’s Count IV conviction for possession of a firearm AFCF.

In Proposition V, Wright asserts that he received ineffective assistance of counsel because four of the five prior convictions, about which his own counsel elicited his testimony, were not actually admissible as impeachment evidence, since they were stale under § 2609(B). This proposition is rejected accordingly.

Regarding Proposition VI, this Court recently held, in Anderson v. State, that juries should be instructed, in cases under 21 O.S.2001, §§ 12.1 and 13.1, that a defendant would be required, by statute, to serve 85% of any sentence imposed, before becoming eligible to be considered for parole. However, under the specific facts and circumstances of this case, we find that Wright was not prejudiced by the trial court’s failure to instruct regarding the 85% Rule. Consequently, Wright is not entitled to any relief regarding his sentence.

Regarding Proposition VII, this Court has fully evaluated Wright’s claims and reversed his Count IV conviction based on prosecutorial misconduct, after concluding that this conviction was otherwise valid and did not violate Section 11. Therefore, even considering the combined effect of the particular misconduct and errors committed during his trial, Wright is not entitled to either a new trial or a modification of his sentence.

After thoroughly considering the entire record before us on appeal, including the original record, transcripts, briefs, and exhibits of the parties, we find that Wright’s Count IV conviction for possession of firearm after former conviction of a felony must be reversed, but that his other convictions and sentences should be affirmed.

Wright’s CONVICTIONS and SENTENCES for Robbery with Firearm (Count II), Possession of Firearm with Altered Serial Number While in Commission of a Felony (Count V), and Obstructing an Officer (Count VI) are hereby AFFIRMED. Wright’s conviction for Possession of Firearm After Former Conviction of a Felony (Count IV), however, is REVERSED AND REMANDED. This case is also REMANDED to the district court for correction of the Judgment and Sentence document, through an order nunc pro tunc, to reflect that in Count V Wright was charged and convicted under 21 O.S.2001, § 1550(A). Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2006), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

1. Okla. Stat. tit. 21 § 801
2. Okla. Stat. tit. 21 § 1283
3. Okla. Stat. tit. 21 § 1550(A)
4. Okla. Stat. tit. 21 § 540
5. Okla. Stat. tit. 21 § 11
6. Okla. Stat. tit. 21 § 1550(C)(2)
7. Okla. Stat. tit. 21 § 1284
8. Okla. Stat. tit. 12 § 2609(B)
9. Okla. Stat. tit. 21 § 12.1
10. Okla. Stat. tit. 21 § 13.1
11. Okla. Stat. tit. 21 § 1550
12. Okla. Stat. tit. 21 § 1550(A)

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 801 (2011) - Robbery with Firearm
• Okla. Stat. tit. 21 § 1283 (2011) - Possession of Firearm After Former Conviction of a Felony
• Okla. Stat. tit. 21 § 1550(A) (2011) - Possession of Firearm with Altered Serial Number While in Commission of a Felony
• Okla. Stat. tit. 21 § 540 (2011) - Obstructing an Officer
• Okla. Stat. tit. 21 § 11 (2011) - Prohibition Against Double Punishment
• Okla. Stat. tit. 21 § 12.1 (2011) - Parole Eligibility
• Okla. Stat. tit. 21 § 13.1 (2011) - Parole Restrictions
• Okla. Stat. tit. 21 § 2609(B) (2011) - Time-Based Limitation on Impeachment by Prior Offenses

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:

• Bramlett v. State, 2018 OK CR 19, I 36, 422 P.3d 788, 799-800
• Davis v. State, 1999 OK CR 48, 993 P.2d 124
• Hale v. State, 1995 OK CR 7, 888 P.2d 1027
• Ocampo v. State, 1989 OK CR 38, 778 P.2d 920
• Peacock v. State, 2002 OK CR 21, 46 P.3d 713
• Smith v. State, 1971 OK CR 245, 486 P.2d 770
• Chapple v. State, 1993 OK CR 38, 866 P.2d 1213
• Dodd v. State, 1999 OK CR 20, 982 P.2d 1086
• Anderson v. State, 2006 OK CR 6, 130 P.3d 273
• Gooden v. State, 1980 OK CR 76, 617 P.2d 248
• Ray v. State, 1990 OK CR 15, 788 P.2d 1384
• Griffin v. Kentucky, 479 U.S. 314, 107 S.Ct. 708
• Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868
• Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464