Robert Glenn Davis v The State Of Oklahoma

F-2005-901

Filed: Dec. 8, 2006

Not for publication

Prevailing Party: The State of Oklahoma

Summary

Robert Glenn Davis appealed his convictions for Robbery with a Firearm and Possession of a Firearm. His conviction led to a sentence of thirty years for robbery and ten years for possession, with both sentences running one after the other. Judge Chapel disagreed with the length of the robbery sentence, suggesting it should be reduced to twenty years, while Judge Lewis also agreed with the outcome but expressed concern about the improper questioning regarding Davis's silence after his arrest.

Decision

The judgments and sentence on Count I are hereby AFFIRMED. The sentence on Count 2 is MODIFIED to five years. The sentences shall run consecutively. 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 improper questioning by the prosecutor about Appellant's post-arrest silence?
• Did the State improperly use Officer Porter's testimony to bolster the in-Court identification?
• Does Section 11 preclude a conviction for both robbery with a firearm and felony possession of a firearm?
• Was there improper instruction on circumstantial evidence that deprived Appellant of a fair trial?
• Did the trial court err by not instructing on the 85% rule in response to questions submitted by the jury?
• Did accumulated error deprive Appellant of a fundamentally fair trial?

Findings

• Harmless error occurred regarding the prosecutor's improper questioning about Appellant's post-arrest silence.
• No denial of a fundamentally fair trial concerning Officer Porter's testimony on in-court identification.
• Appellant's convictions for both Robbery With a Firearm and Felony Possession of a Firearm do not violate Section 11.
• Instructions on circumstantial evidence were fair and accurately stated the applicable law.
• Trial court's failure to instruct on the 85% rule requires relief by modification.
• Trial irregularities did not cumulatively deny Appellant a fair trial, except for the modification granted on proposition five.

F-2005-901

Dec. 8, 2006

Robert Glenn Davis

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, VICE-PRESIDING JUDGE:

Appellant, Robert Glenn Davis, was tried by jury in the District Court of Oklahoma County, Case No. CF-04-6346, and convicted of Robbery with a Firearm (Count I), in violation of 21 O.S.2001, § 801, and Possession of a Firearm (Count II), after former felony conviction, in violation of 21 O.S.Supp.2002, § 1283. The jury set punishment at thirty years and ten years imprisonment respectively. The trial judge sentenced accordingly, ordering the sentences to run consecutively. Appellant now appeals these judgments and sentences, raising the following errors:

I. The prosecutor improperly questioned Appellant about his post-arrest silence;
II. The State improperly used Officer Porter’s testimony to bolster the in-Court identification, requiring reversal;
III. Section 11 precludes a conviction for both robbery with a firearm and felony possession of a firearm;
IV. Improper instruction on circumstantial evidence deprived Appellant of a fair trial;
1 V. The trial court erred by not instructing on the 85% rule in response to questions submitted by the jury; and
VI. Accumulated error deprived Appellant of a fundamentally fair trial.

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 modification is required.

Regarding proposition one, Appellant’s failure to object to all but one of the prosecutor’s questions that seemingly violated his right to remain silent waived all but plain error review for those questions. Simpson U. State, 1994 OK CR 40, I 34, 876 P.2d 690, 701. Nevertheless, we find error occurred with respect to one question upon which error was preserved and that plain error occurred with the others. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed. 2d 91 (1976); Wood U. State, 1987 OK CR 281, 748 P.2d 523. Violation of the statutory notice requirement in 22 O.S.2001, § 585 by a defendant with a weak alibi does not mean he suddenly forgoes important constitutional rights. But, he should not get a free pass when his actions invite the inquiry. In light of the overwhelming evidence presented, however, we find the error was harmless beyond a reasonable doubt.

Regarding proposition two, no objection was lodged to the officer’s testimony concerning extra-judicial identifications; thus Appellant waived all but plain error. Here the testimony came after the witnesses 2 testified. Appellant was not denied a fundamentally fair trial. Kamees v. State, 1991 OK CR 91, I 16, 815 P.2d 1204, 1208.

With respect to proposition three, we find Appellant’s convictions for both Robbery With a Firearm and Felony Possession of a Firearm do not violate 21 O.S. 2001 § 11. These were separate and distinct acts, as there was direct and circumstantial evidence that Appellant possessed the prohibited gun both before and after the robbery. Davis U. State, 1999 OK CR 48, 993 P.2d 124.

With respect to proposition four, we find the instructions on circumstantial evidence, taken as a whole, fairly and accurately state the applicable law. Easlick U. State, 2004 OK CR 21, I 15, 90 P.3d 556.

Regarding proposition five, we find the trial court’s failure to instruct on the 85% rule requires relief by modification, as set forth below. Anderson v. State, 2006 OK CR 6, 130 P.3d 273.

1 As to Proposition six, we find this case does not present a situation where the trial irregularities, taken together, were SO great as to have denied Appellant a fair trial, beyond the relief granted on proposition five.

DECISION

The judgments and sentence on Count I are hereby AFFIRMED. The sentence on Count 2 is MODIFIED to five years. The sentences shall run consecutively. Pursuant to Rule 3.15, Rules of the Oklahoma Court of 1 I concur in the relief granted by modification as a matter of stare decisis only. In spite of the jury’s concern about early release, the sentences assessed were reasonable and do not reflect inflation due to any arbitrary factor. I continue to interpret the plain language of Anderson, supra, as having prospective effect only but recognize the majority of the Court has not followed that limiting language.

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Footnotes:

1. 21 O.S.2001, § 801
2. 21 O.S.Supp.2002, § 1283
3. Simpson v. State, 1994 OK CR 40, ¶ 34, 876 P.2d 690, 701.
4. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed. 2d 91 (1976); Wood v. State, 1987 OK CR 281, 748 P.2d 523.
5. 22 O.S.2001, § 585
6. Kamees v. State, 1991 OK CR 91, ¶ 16, 815 P.2d 1204, 1208.
7. 21 O.S. 2001 § 11
8. Davis v. State, 1999 OK CR 48, 993 P.2d 124.
9. Easlick v. State, 2004 OK CR 21, ¶ 15, 90 P.3d 556.
10. Anderson v. State, 2006 OK CR 6, 130 P.3d 273.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 801 - Robbery with a Firearm (Count I)
• Okla. Stat. tit. 21 § 1283 - Possession of a Firearm after Former Felony Conviction (Count II)
• Okla. Stat. tit. 22 § 585 - Statutory Notice Requirement
• Okla. Stat. tit. 21 § 11 - Prohibition against dual convictions for robbery with a firearm and felony possession of a firearm
• Okla. Stat. tit. 22, Ch.18, App. (2006) - Rules of the Oklahoma Court of Criminal Appeals

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

• 22 U.S.C. § 585 - Notice Requirements
• Fifth Amendment - Right to Remain Silent

Other citations:

No other rule citations found.

Case citations:

• Simpson v. State, 1994 OK CR 40, 1 34, 876 P.2d 690, 701
• Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed. 2d 91 (1976)
• Wood v. State, 1987 OK CR 281, 748 P.2d 523
• Kamees v. State, 1991 OK CR 91, 1 16, 815 P.2d 1204, 1208
• Davis v. State, 1999 OK CR 48, 993 P.2d 124
• Easlick v. State, 2004 OK CR 21, 1 15, 90 P.3d 556
• Anderson v. State, 2006 OK CR 6, 130 P.3d 273