Waymond George Morrison v The State Of Oklahoma

F-2009-749

Filed: May 12, 2011

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Waymond George Morrison appealed his conviction for several charges. His conviction and sentence were for 50 years imprisonment and a $50,000 fine for Possession with Intent to Distribute, 30 days and a $300 fine for Driving Without a License, 100 years imprisonment and a $100,000 fine for Distribution of CDS, and 20 years imprisonment and a $20,000 fine for Possession of Proceeds from drug sales. The court agreed to dismiss one of the charges but kept the others. Judge Lewis and Judge Lumpkin agreed with the decision, while Judge C. Johnson concurred in the results.

Decision

The Judgment and Sentence of the District Court as to Counts 1, 2, and 3, is AFFIRMED. The Judgment and Sentence of the District Court as to Count 4 is REVERSED and REMANDED with instructions to DISMISS. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2011), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Issues

• was there a violation of his rights to Due Process and Compulsory Process and whether Oklahoma's statutory scheme violates the Equal Protection Clause?
• did the trial court abuse its discretion by bifurcating the trial after he confessed his prior convictions during the first stage?
• did the trial court err by allowing Sgt. McRorie to testify as a rebuttal witness?
• do his convictions for Possession with Intent to Distribute, Distribution of CDS, and Possession of Proceeds violate the prohibition against double punishment or the Double Jeopardy Clause?
• was the evidence sufficient to support his conviction for possession with intent to distribute and possession of proceeds?
• did he receive an excessive sentence?

Findings

• the trial court did not violate Morrison's rights to Due Process or Compulsory Process, and the statutory scheme does not violate the Equal Protection Clause
• the trial court did not abuse its discretion by bifurcating the trial
• Sgt. McRorie's testimony was proper rebuttal evidence
• Morrison's convictions for Possession of a CDS with Intent to Distribute and Distributing a CDS do not violate double jeopardy; Count 4 is reversed and remanded for dismissal
• the evidence was sufficient to support Morrison's conviction for possession with intent to distribute
• Morrison's sentence of 100 years imprisonment does not shock the conscience

F-2009-749

May 12, 2011

Waymond George Morrison

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

Appellant Waymond George Morrison was tried by jury and convicted in the District Court of Oklahoma County, Case No. CF-2008-3682, of Possession of CDS with Intent to Distribute (Count 1), in violation of 63 O.S.Supp.2005, § 2-401, Driving a Motor Vehicle Without a License (Count 2), in violation of 47 O.S.2001, § 6-303(A), Distribution of CDS (Count 3), in violation of 63 O.S.Supp.2005, § 2-401, and Possession of Proceeds Derived from a Violation of the Uniform Controlled Dangerous Substances Act (Count 4), in violation of 63 O.S.2001, § 2-503.1. Counts 1, 3, and 4 were After Former Conviction of Two or More Felonies. The jury set punishment at 50 years imprisonment and a $50,000 fine on Count 1, 30 days and a $300 fine on Count 2, 100 years imprisonment and a $100,000 fine on Count 3, and 20 years imprisonment and a $20,000 fine on Count 4. The Honorable Ray C. Elliott, who presided at trial, sentenced Morrison accordingly and ordered the sentences to be served concurrently.

From this Judgment and Sentence Morrison appeals, raising the following issues:

1. whether the trial court violated his rights to Due Process and Compulsory Process and whether Oklahoma’s statutory scheme violates the Equal Protection Clause;
2. whether it was an abuse of discretion for the trial court to bifurcate his trial after he confessed his prior convictions during the first stage;
3. whether the trial court erred by allowing Sgt. McRorie to testify as a rebuttal witness;
4. whether his convictions for Possession with Intent to Distribute, Distribution of CDS, and Possession of Proceeds violate the prohibition against double punishment or the Double Jeopardy Clause;
5. whether the evidence was sufficient to support his conviction for possession with intent to distribute and possession of proceeds; and
6. whether he received an excessive sentence.

We find relief is not required for Counts 1, 2, and 3 and affirm the Judgment and Sentence of the District Court. We, however, reverse Count 4 and remand it to the District Court with instructions to dismiss.

1. Because his proposed testimony was irrelevant to the question of the existence of prior offenses the trial court did not deny Morrison his right to due process or compulsory process. See Folks v. State, 2008 OK CR 29, I 16, 207 P.3d 379, 383 (affirming the trial court’s exclusion of the defendant’s irrelevant testimony). Additionally, the limitation enacted by the legislature prohibiting the introduction of aggravating and mitigating evidence before the jury is undoubtedly constitutional. Malone v. State, 2002 OK CR 34, I 7, 58 P.3d 208, 209 (opinion on rehearing). Non-capital offenders who elect to have a jury determine punishment are not similarly situated to non-capital offenders who elect to have a judge determine their sentence. Judges generally have broad powers to craft the manner in which an offender serves his or her sentence. See 22 O.S.Supp.2010, § 991a (outlining the sentencing powers of the court); 22 O.S.2001, § 976 (the trial court has the discretion to run multiple sentences consecutively or concurrently); but see e.g. 63 O.S.Supp.2005, § 2-401(B)(1) (prohibiting the use of deferred and suspended sentences on the second or subsequent drug crimes). This is true whether a jury or judge determines the length of an offender’s sentence. Aggravating and mitigating evidence may be used to inform the judge’s discretion when using this power. See 22 O.S.Supp.2002, § 982 (noting a court may order a presentence investigation prior to imposing sentence, outlining the evidence gathered through a presentence investigation, and permitting a hearing in mitigation and aggravation of punishment at the request of the parties). Because judges possess powers not granted to the jury the classes recognized by § 973 are not similarly situated and § 973 does not violate the Equal Protection Clause.

2. The trial court did not abuse its discretion by bifurcating the trial. See Edwards v. State, 1976 OK CR 199, 99 23-24, 554 P.2d 46, 50-51; Wilmeth v. State, 1974 OK CR 52, I 5, 520 P.2d 699, 700; Whitehead U. State, 1974 OK 3 CR 2, I 11, 518 P.2d 53, 54-55; Carney v. State, 1965 OK CR 120, 99 11, 406 P.2d 1003, 1006.

3. Sgt. McRorie’s testimony was proper rebuttal evidence. See Carter v. State, 1994 OK CR 49, I 32, 879 P.2d 1234, 1247 ([r]ebuttal evidence may be offered to explain, repel, disprove, or contradict facts given in evidence by the adverse party). His testimony contradicted testimony given by Morrison and clarified occurrences about which Morrison testified.

4. Morrison’s convictions for Possession of a CDS with Intent to Distribute and Distributing a CDS do not violate the statutory prohibition against double punishment or double jeopardy because the Possession charge arises from the cocaine Morrison possessed when he was pulled over and the Distributing charge arises from the cocaine he sold to the confidential informant. See Ferguson v. State, 1982 OK CR 50, I 6, 644 P.2d 121, 122; Warthen v. State, 1977 OK CR 23, I 9, 559 P.2d 483, 485-486. Morrison’s convictions for Distributing a CDS and Possession of Proceeds, however, arose from the same act of selling cocaine. See Matheus v. State, 1996 OK CR 29, I 3, 925 P.2d 64, 65. We, therefore, reverse and remand Morrison’s conviction for Possession of Proceeds (Count 4) to the District Court with instructions to dismiss.

5. Evidence was presented at trial that cocaine similar to the cocaine Morrison had sold the confidential informant moments earlier was found in the front seat of Morrison’s car. Viewed in a light most favorable to the State we find that sufficient evidence was presented at trial to convict Morrison of Possession with Intent to Distribute. See Logsdon v. State, 2010 OK CR 7, I 5, 231 P.3d 1156, 1161; Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-204. Because we dismiss Count 4 above we need not address Morrison’s remaining sufficiency claim.

6. In light of his long criminal record, Morrison’s sentence of 100 years imprisonment does not shock our conscience. See Head v. State, 2006 OK CR 44, I 27, 146 P.3d 1141, 1148.

DECISION

The Judgment and Sentence of the District Court as to Counts 1, 2, and 3, is AFFIRMED. The Judgment and Sentence of the District Court as to Count 4 is REVERSED and REMANDED with instructions to DISMISS. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2011), the MANDATE is ORDERED issued upon delivery and filing of this decision.

RE

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Footnotes:

1. Okla. Stat. tit. 63 § 2-401
2. Okla. Stat. tit. 47 § 6-303(A)
3. Okla. Stat. tit. 63 § 2-401
4. Okla. Stat. tit. 63 § 2-503.1
5. Okla. Stat. tit. 22 § 991a
6. Okla. Stat. tit. 22 § 976
7. Okla. Stat. tit. 63 § 2-401(B)(1)
8. Okla. Stat. tit. 22 § 982
9. Okla. Stat. tit. 22 § 973
10. Okla. Stat. tit. 22 § 976
11. Okla. Stat. tit. 63 § 2-401
12. Okla. Stat. tit. 22 § 982
13. Okla. Stat. tit. 22 § 976
14. Okla. Stat. tit. 63 § 2-401
15. Okla. Stat. tit. 22 § 982
16. Okla. Stat. tit. 22 § 976

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-401 (2005) - Possession and Distribution of Controlled Dangerous Substances
• Okla. Stat. tit. 47 § 6-303 (2001) - Driving a Motor Vehicle Without a License
• Okla. Stat. tit. 63 § 2-503.1 (2001) - Possession of Proceeds Derived from a Violation of the Uniform Controlled Dangerous Substances Act
• Okla. Stat. tit. 22 § 991a (2010) - Sentencing Powers of the Court
• Okla. Stat. tit. 22 § 976 (2001) - Discretion to Run Multiple Sentences Consecutively or Concurrently
• Okla. Stat. tit. 63 § 2-401 (B)(1) (2005) - Prohibition of Deferred and Suspended Sentences on Subsequent Drug Crimes
• Okla. Stat. tit. 22 § 982 (2002) - Presentence Investigation and Mitigation and Aggravation of 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:

• Folks v. State, 2008 OK CR 29, I 16, 207 P.3d 379, 383
• Malone v. State, 2002 OK CR 34, I 7, 58 P.3d 208, 209
• Edwards v. State, 1976 OK CR 199, I 23-24, 554 P.2d 46, 50-51
• Wilmeth v. State, 1974 OK CR 52, I 5, 520 P.2d 699, 700
• Whitehead v. State, 1974 OK CR 2, I 11, 518 P.2d 53, 54-55
• Carney v. State, 1965 OK CR 120, I 11, 406 P.2d 1003, 1006
• Carter v. State, 1994 OK CR 49, I 32, 879 P.2d 1234, 1247
• Ferguson v. State, 1982 OK CR 50, I 6, 644 P.2d 121, 122
• Warthen v. State, 1977 OK CR 23, I 9, 559 P.2d 483, 485-486
• Matheus v. State, 1996 OK CR 29, I 3, 925 P.2d 64, 65
• Logsdon v. State, 2010 OK CR 7, I 5, 231 P.3d 1156, 1161
• Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-204
• Head v. State, 2006 OK CR 44, I 27, 146 P.3d 1141, 1148