Timmy Eugene Owen v The State Of Oklahoma

F-2006-598

Filed: Apr. 13, 2007

Not for publication

Prevailing Party: The State of Oklahoma

Summary

Timmy Eugene Owen appealed his conviction for escaping from Grady County Jail and for assaulting a police officer. His conviction and sentence were a life sentence for escaping and ten years for assault, to be served one after the other. Judge Lumpkin dissented.

Decision

The Judgments of the District Court are hereby AFFIRMED. The Sentences of the District Court are REVERSED and REMANDED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2007), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there an error in not granting a mistrial due to the State's improper cross-examination of Appellant?
• Did prosecutorial misconduct deprive Appellant of a fair trial?
• Are Appellant's sentences, including the life imprisonment for escaping from county jail, grossly excessive?
• Do Appellant's convictions for escaping from Grady County Jail and for assault and battery upon a police officer violate prohibitions against double punishment and double jeopardy?
• Did the cumulative effect of all these errors deprive Mr. Owen of a fair trial?
• Should the Court remand Mr. Owen's case to correct the Judgment and Sentence by an order nunc pro tunc?

Findings

• The trial court did not err in overruling Owen's motion for a mistrial.
• Prosecutorial misconduct did not affect the jury's verdict but contributed to the maximum sentence.
• Owen's claim of excessive sentence is mooted by the relief recommended due to prosecutorial misconduct.
• There is no violation of double jeopardy or double punishment.
• There is no cumulative error.
• Owen's Judgment and Sentence should be corrected to reflect the proper conviction.

F-2006-598

Apr. 13, 2007

Timmy Eugene Owen

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

Timmy Eugene Owen was tried by jury and convicted of Count I: Escaping from Grady County Jail After Former Conviction of a Felony, in violation of 21 O.S.2001 § 443; and Count II: Assault and Battery Upon a Police Officer After Former Conviction of a Felony, in violation of 21 O.S.2001 § 649 in the District Court of Grady County, Case No. CF-05-413. In accordance with the jury’s recommendation, the Honorable Richard Van Dyck sentenced Owen to serve the following sentences: Count I: imprisonment for life; and Count II: imprisonment for ten (10) years, to run consecutively. Owen appeals from this conviction and sentence and raises six propositions of error in support of his appeal.

I. The trial court erred in not granting a mistrial because the State’s improper cross-examination of Appellant deprived Mr. Owen of a fair trial.
II. Prosecutorial misconduct deprived Appellant of a fair trial.
III. Appellant’s sentences, including the maximum sentence of life imprisonment for escaping from county jail, are grossly excessive, should shock the conscience of this Court and should be favorably modified.
IV. Appellant’s convictions for escaping from Grady County Jail and for assault and battery upon a police officer violate the prohibitions against double punishment and double jeopardy.
1 V. The cumulative effect of all these errors deprived Mr. Owen of a fair trial.
VI. The Court should remand Mr. Owen’s case to the District Court of Grady County with instructions to correct the Judgment and Sentence by an order nunc pro tunc.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, exhibits and briefs, we find that reversal of Owen’s sentences is required by the law and evidence. In Proposition I, we find that the court did not abuse its discretion in overruling Owen’s motion for a mistrial. In Proposition II, we find that the State improperly questioned Owen about specific allegations regarding the offenses for which he was imprisoned. We find that this prosecutorial misconduct did not affect the jury’s verdict in this case, but it did contribute to the jury sentencing Owen to the maximum possible sentence.

3 Thus, Owen’s sentences are reversed and remanded. In Proposition III, we find that Owen’s claim of excessive sentence is mooted by the relief recommended in Proposition II. In Proposition IV, we find that prohibitions against double jeopardy or double punishment are not violated. Escape from a Penal Institution and Assault and Battery upon a Police Officer are separate offenses, requiring dissimilar proof. In Proposition V, we find that there is no cumulative error.

5 In Proposition VI, we find that Owen’s Judgment and Sentence should be corrected, through an order nunc pro tunc to reflect that Owen was convicted of Escape from a Penal Institution. 6 remedied by the resentencing that is ordered. Owen also claims that defense counsel was ineffective for failing to object to instances of misconduct. Defense counsel objected numerous times to alleged prosecutorial misconduct. Owen cannot show ineffective assistance or prejudice from a failure to object to a few more allegedly improper questions. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).

4 21 O.S.2001, § 11A (an act or omission which is made punishable in different ways by different provisions of the code may be punished under either of such provisions, but cannot be punished under more than one section of law); Jones U. State, 2006 OK CR 5, 1 63, 128 P.3d 521, 542-43, reh’g granted, 132 P.3d 1 (Okla. Crim. App. 2006), cert. denied, 127 S.Ct. 404 (2006) (the proper analysis of a Section 11 claim focuses on the relationship between the crimes; § 11 is not violated where offenses arising from the same transaction are separate and distinct and require dissimilar proof). The beating of Bearden is what led to Owen’s conviction for Assault and Battery upon a Police Officer. The act of breaking out of jail is what led to his conviction for Escape. Two separate acts were committed. Punishment for both is not prohibited under § 11. Likewise, there is no double jeopardy violation. Both Escape and Assault and Battery upon a Police Officer require proof of an element that the other does not. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed.2d 306 (1932) (where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not).

5 We found in Proposition II that the prosecutor’s improper statements influenced the jury in sentencing Owen, and the case must be remanded for resentencing. We found no other error requiring relief. Where there is no error, there is no accumulation of error. Alverson v. State, 1999 OK CR 21, 983 P.2d 498, 520.

6 Owen claims that the information filed alleged that he committed Escape from Grady County Jail and that this was the charge for which he was convicted. The section under which Owen was convicted is entitled Escape from a Penal Institution. 21 O.S.2001 § 443. The Judgment and Sentence incorrectly reflects that he was convicted of Escaping from Department of Corrections.

Decision

The Judgments of the District Court are hereby AFFIRMED. The Sentences of the District Court are REVERSED and REMANDED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2007), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

ATTORNEYS AT TRIAL
ATTORNEYS ON APPEAL

BILL SMITH
925 NW 6TH STREET
OKLAHOMA CITY, OKLAHOMA 73106
ATTORNEY FOR DEFENDANT

ANDREAS T. PITSIRI
P.O. BOX 926
NORMAN, OKLAHOMA 73070
ATTORNEY FOR APPELLANT

BRET T. BURNS
217 N. THIRD STREET
CHICKASHA, OKLAHOMA 73018
ATTORNEY FOR STATE

W.A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA
JAY SCHNIEDERJAN
ASSIST

Footnotes:

1. Okla. Stat. tit. 21 § 443
2. Okla. Stat. tit. 21 § 649
3. Knighton v. State, 1996 OK CR 2, 1 64, 912 P.2d 878, 894
4. McBrain v. State, 1988 OK CR 261, 1 7, 764 P.2d 905, 907
5. Myers v. State, 2006 OK CR 12, 1 62, 133 P.3d 312, 329-30 cert. denied, 127 S.Ct. 939 (2007)
6. Le v. State, 1997 OK CR 55, 1 38, 947 P.2d 535, 551
7. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)
8. Okla. Stat. tit. 21, § 11A
9. Jones v. State, 2006 OK CR 5, 1 63, 128 P.3d 521, 542-43, reh'g granted, 132 P.3d 1 (Okla. Crim. App. 2006), cert. denied, 127 S.Ct. 404 (2006)
10. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed.2d 306 (1932)
11. Alverson v. State, 1999 OK CR 21, 983 P.2d 498, 520
12. Okla. Stat. tit. 21 § 443

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 443 - Escape from Penal Institution
• Okla. Stat. tit. 21 § 649 - Assault and Battery Upon a Police Officer
• Okla. Stat. tit. 21 § 11A - Multiple Punishment for Same Act
• Okla. Stat. tit. 22 § 3.15 - Rules of the Oklahoma Court of Criminal Appeals

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:

• Knighton v. State, 1996 OK CR 2, I 64, 912 P.2d 878, 894
• McBrain v. State, 1988 OK CR 261, I 7, 764 P.2d 905, 907
• Myers v. State, 2006 OK CR 12, I 62, 133 P.3d 312, 329-30 cert. denied, 127 S.Ct. 939 (2007)
• Le v. State, 1997 OK CR 55, I 38, 947 P.2d 535, 551
• Jones v. State, 2006 OK CR 5, I 63, 128 P.3d 521, 542-43, reh'g granted, 132 P.3d 1 (Okla. Crim. App. 2006), cert. denied, 127 S.Ct. 404 (2006)
• Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed.2d 306 (1932)
• Alverson v. State, 1999 OK CR 21, 983 P.2d 498, 520
• Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)