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F-2008-1016

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Robert C. Ferrell v The State Of Oklahoma

F-2008-1016

Filed: Oct. 22, 2009

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

# Robert C. Ferrell appealed his conviction for trafficking in controlled substances and possession of an offensive weapon. Conviction and sentence were affirmed but remanded for correction of the Judgment and Sentence. C. Johnson dissented.

Decision

The Judgment and Sentence of the district court is AFFIRMED, but the case is REMANDED for correction of the Judgment and Sentence nunc pro tunc. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2009), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

  • Was the evidence sufficient to support Appellant's convictions?
  • Was Appellant prejudiced by ineffective assistance of counsel?
  • Is Appellant's punishment excessive and should it be favorably modified?
  • Did the trial court err in assessing fines and costs in relation to two counts for which Appellant was neither tried nor convicted?
  • Did prosecutorial misconduct deny Appellant a fair trial?
  • Did the cumulative effect of all errors deprive Appellant of a fair trial?
  • Should Appellant's case be remanded for correction of the Judgment and Sentence nunc pro tunc?

Findings

  • Evidence was sufficient to support Appellant's convictions.
  • Appellant was not prejudiced by ineffective assistance of counsel.
  • Appellant's punishment is not excessive and should not be modified.
  • The trial court erred in assessing fines and costs associated with counts for which Appellant was neither tried nor convicted.
  • Prosecutorial misconduct did not deny Appellant a fair trial.
  • The cumulative effect of errors did not deprive Appellant of a fair trial.
  • The case is remanded for correction of the Judgment and Sentence nunc pro tunc.

F-2008-1016

Oct. 22, 2009

Robert C. Ferrell

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

C. JOHNSON, PRESIDING JUDGE:

Appellant, Robert C. Ferrell, was convicted by a jury in McIntosh County District Court, Case No. CF-2006-197, of Count 1: Trafficking in Controlled Substances (methylenedioxymethamphetamine, also known as MDMA, or Ecstasy) (63 O.S.Supp.2004, § 2-415(C)(8)), and Count 2: Possession of an Offensive Weapon in the Commission of a Felony (21 O.S.Supp.2006, § 1287), both After Conviction of a Felony. On October 22, 2008, the Honorable James R. Pratt, Associate District Judge, sentenced Appellant in accordance with the jury’s recommendation to twenty years imprisonment and a $500,000 fine on Count 1, and to thirty-five years imprisonment on Count 2. The trial court ordered that the sentences be served consecutively. This appeal followed.

Appellant raises the following propositions of error:
1. The evidence was insufficient to support Appellant’s convictions.
2. Appellant was prejudiced by ineffective assistance of counsel.
3. Appellant’s punishment is excessive and should be favorably modified.
4. The trial court erred in assessing fines and costs in relation to two counts for which Appellant was neither tried nor convicted.
5. Prosecutorial misconduct denied Appellant a fair trial.
6. The cumulative effect of all errors deprived Appellant of a fair trial.
7. Appellant’s case should be remanded for correction of the Judgment and Sentence nunc pro tunc.

After thorough consideration of the propositions, and the entire record before us on appeal, including the original record, transcripts, and briefs of the parties, we affirm, but remand for correction of the Judgment and Sentence.

As to Proposition 1, considering the totality of evidence presented at trial in a light most favorable to the State, a rational juror could conclude, beyond a reasonable doubt, that Appellant enjoyed joint dominion and control with his co-defendant, Marcus Hooks, over both the drugs and the firearms seized, and that the firearms were being used in conjunction with drug trafficking. Watts v. State, 2008 OK CR 27, 12, 194 P.3d 133, 137-38; Pebworth v. State, 1993 OK CR 28, 12, 855 P.2d 605, 607. Proposition 1 is denied.

The evidence showed that the drugs and guns were discarded along the highway during a high-speed attempt to elude police; Appellant was the front-seat passenger in the vehicle, and co-defendant Hooks was the driver. Two other men were in the back seat. The officer who stopped the vehicle at a safety checkpoint (before Hooks decided to speed away) saw a revolver on the front seat; he also noticed that Appellant was sitting with his back against the passenger seat, with one leg folded on the seat, and a coat draped over his lap. The firearms recovered after the chase included the revolver observed at the checkpoint, as well as a 9mm automatic weapon. Incriminating conversations between the two men, after their arrest, were captured on the patrol car’s recording equipment. Those conversations showed that the two men were involved in a drug transaction, and reasonably suggested that the firearms were directly related to that activity. We reject Appellant’s additional claim that a prior ruling from the Tenth Circuit Court of Appeals dictates the result here. Both Hooks and Appellant were convicted in federal court for firearm possession arising from this same episode. On appeal, the Tenth Circuit found that the trial evidence left reasonable doubt as to whether Appellant had dominion and control over a firearm. United States v. Hooks, 551 F.3d 1205 (10th Cir. 2009). (Hooks’s conviction was affirmed.) However, two important pieces of evidence in the state-court trial were not presented in the federal trial.

In Proposition 2, Appellant claims his trial counsel was ineffective for failing to impeach a witness with his prior inconsistent statement, and failing to seek redaction of certain information regarding Appellant’s criminal history. We find the inconsistency about what Appellant told police was not material, given the clearly incriminating statements he made to his confederate, in the officer’s absence, which were recorded by equipment in the patrol car. The fact that the jurors could use simple math to deduce that a defendant was granted early release on a prior sentence does not result in error. Boyd v. State, 1987 OK CR 197, 743 P.2d 658, 662. Neither omission could reasonably have affected the outcome of the trial. Grant v. State, 2009 OK CR 11, 55, 205 P.3d 1, 22-23. Proposition 2 is denied.

As to Proposition 3, considering all the facts and circumstances, including Appellant’s violent criminal history, the fact that the instant offenses were committed just months after his release from prison, and the large amount of drugs involved, we cannot say that the punishments imposed are shocking to the conscience. Rea v. State, 2001 OK CR 28, 5, 34 P.3d 148, 149. Proposition 3 is denied.

In Propositions 4 and 7, Appellant contends his case should be remanded for correction of the Judgment and Sentence. The State concedes that the officer at the safety checkpoint had seen Appellant sitting in an awkward position with a coat draped over his lap. Hooks, 551 F.3d at 1208 & n.1. Furthermore, in the federal trial, the government apparently presented no evidence about the large cache of drugs found with the firearms. Hooks, 551 F.3d at 1211. We believe both of these important facts – coupled with the incriminating conversations between the two men – were sufficient for a reasonable juror to conclude that Appellant was attempting to hide the 9mm weapon at the checkpoint, and that he discarded both firearms, and the drugs, on the passenger side of the highway during the chase.

The State concedes, and we agree, that fees and costs assessed for Count 3 and Count 4 should be vacated, because Appellant was not convicted of those charges. 28 O.S.2001, § 101. The State also concedes, and we agree, that the statutory reference for Count 1 found in the Judgment and Sentence is incorrect. We therefore REMAND the case to the district court for correction of the Judgment and Sentence nunc pro tunc. Demry v. State, 1999 OK CR 31, 22, 986 P.2d 1145, 1148-49.

As to Proposition 5, the prosecutor’s misstatement of the evidence in closing argument was minor (and not objected to), and cannot reasonably be said to have affected the outcome of the trial. Bland v. State, 2000 OK CR 11, 101, 4 P.3d 702, 728. Nor did the prosecutor improperly vouch for a police witness by referring (without objection) to facts in evidence which bore on his credibility. Warner v. State, 2006 OK CR 40, 184, 144 P.3d 838, 889. There was no plain error in the comments Appellant complains of. Proposition 5 is denied.

As to Proposition 6, because the only errors we have identified are remedied by our remand for correction of the Judgment and Sentence, there is no cumulative error. Bell v. State, 2007 OK CR 43, 14, 172 P.3d 622, 627. Proposition 6 is denied.

DECISION

The Judgment and Sentence of the district court is AFFIRMED, but the case is REMANDED for correction of the Judgment and Sentence nunc pro tunc. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2009), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

OPINION BY C. JOHNSON, P.J.
A. JOHNSON, V.P.J.: CONCUR
LUMPKIN, J.: CONCUR
CHAPEL, J.: CONCUR
LEWIS, J.: CONCUR

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Footnotes:

  1. 63 O.S.Supp.2004, § 2-415(C)(8)
  2. 21 O.S.Supp.2006, § 1287
  3. Boyd v. State, 1987 OK CR 197, 743 P.2d 658, 662
  4. Grant v. State, 2009 OK CR 11, 55, 205 P.3d 1, 22-23
  5. Rea v. State, 2001 OK CR 28, "I 5, 34 P.3d 148, 149
  6. Demry v. State, 1999 OK CR 31, I 22, 986 P.2d 1145, 1148-49
  7. Bland v. State, 2000 OK CR 11, I 101, 4 P.3d 702, 728
  8. Warner v. State, 2006 OK CR 40, T 184, 144 P.3d 838, 889
  9. Bell v. State, 2007 OK CR 43, I 14, 172 P.3d 622, 627
  10. 28 O.S.2001, § 101
  11. 63 O.S.Supp.2004, § 2-415(C)(8)

Oklahoma Statutes citations:

  • Okla. Stat. tit. 63 § 2-415(C)(8) (Supp. 2004) - Trafficking in Controlled Substances
  • Okla. Stat. tit. 21 § 1287 (Supp. 2006) - Possession of an Offensive Weapon in the Commission of a Felony
  • Okla. Stat. tit. 28 § 101 (2001) - Fees and Costs
  • Okla. Stat. tit. 21 § 701.8 (2011) - Sentencing and Punishment

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:

  • Watts v. State, 2008 OK CR 27, T 12, 194 P.3d 133, 137-38
  • Pebworth v. State, 1993 OK CR 28, I 12, 855 P.2d 605, 607
  • United States v. Hooks, 551 F.3d 1205 (10th Cir. 2009)
  • Boyd v. State, 1987 OK CR 197, 743 P.2d 658, 662
  • Grant v. State, 2009 OK CR 11, 55, 205 P.3d 1, 22-23
  • Rea v. State, 2001 OK CR 28, "I 5, 34 P.3d 148, 149
  • Demry v. State, 1999 OK CR 31, I 22, 986 P.2d 1145, 1148-49
  • Bland v. State, 2000 OK CR 11, I 101, 4 P.3d 702, 728
  • Warner v. State, 2006 OK CR 40, T 184, 144 P.3d 838, 889
  • Bell v. State, 2007 OK CR 43, I 14, 172 P.3d 622, 627

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