John Calvin Winrow, Jr. v The State of Oklahoma

F-2009-774

Filed: Dec. 17, 2010

Not for Publication

Prevailing Party: John Calvin Winrow, Jr.

Summary

John Calvin Winrow, Jr. appealed his conviction for Unlawful Possession of Controlled Drug With Intent to Distribute (Cocaine) and Possession of Controlled Substance (Marijuana). His conviction resulted in a sentence of 20 years for cocaine and 5 years for marijuana. Judge Lumpkin dissented.

Decision

Winrow's convictions for Unlawful Possession of Controlled Drug With Intent to Distribute (Cocaine) AFCF and Possession of Controlled Substance (Marijuana) AFCF, as well as the individual sentences on each of these two counts, are hereby AFFIRMED. This case is REMANDED to the district court, however, for a ruling by the district court on whether the terms of imprisonment on these two counts are to be served consecutively or concurrently.

Issues

• Was the stop of the vehicle, in which Appellant was the driver, an unreasonable seizure in violation of Appellant's Fourth Amendment rights?
• Was the evidence insufficient to convict Mr. Winrow of possession of cocaine with intent to distribute?
• Did prosecutorial misconduct deprive Mr. Winrow of a fair trial and cause the jury to render an excessive sentence?
• Was Mr. Winrow denied effective assistance of trial counsel in violation of the Sixth Amendment and the Oklahoma Constitution?
• Are Mr. Winrow's sentences excessive?
• Did the cumulative effect of all the errors addressed deprive Mr. Winrow of a fair trial?

Findings

• the court did not err in rejecting Winrow's motion to suppress the vehicle stop
• the evidence was sufficient to support Winrow's conviction for possession of cocaine with intent to distribute
• prosecutorial misconduct claims were rejected
• Winrow was not denied effective assistance of counsel, except for the failure to pursue concurrent sentencing
• the issue of whether Winrow's sentences should be served concurrently or consecutively is remanded to the district court
• Winrow's sentences are not deemed excessive; the claim is moot due to the remand
• the cumulative error claim was not necessary to address as only one error was found

F-2009-774

Dec. 17, 2010

John Calvin Winrow, Jr.

Appellant

v

The State of Oklahoma

Appellee

SUMMARY OPINION

SMITH, JUDGE:

John Calvin Winrow, Jr., Appellant, was tried by jury and convicted of Unlawful Possession of Controlled Drug With Intent to Distribute (Cocaine) AFCF, under 63 O.S.Supp.2005, § 2-401(B)(1) (Count I), and Possession of Controlled Substance (Marijuana) AFCF, under 63 O.S.Supp.2004, 2-402 (Count II), in the District Court of Pottawatomie County, Case No. CF-2008-526. In accord with the jury verdict, the Honorable Douglas L. Combs, District Judge, sentenced Winrow to imprisonment for twenty (20) years and a fine of $25,000.00 on Count I and imprisonment for five (5) years on Count II. Winrow is properly before this Court on direct appeal.

Winrow raises the following propositions of error:

I. THE STOP OF THE VEHICLE, IN WHICH APPELLANT WAS THE DRIVER, WAS AN UNREASONABLE SEIZURE IN VIOLATION OF MR. WINROW’S FOURTH AMENDMENT RIGHTS OF THE UNITED STATES CONSTITUTION AND OF THE OKLAHOMA CONSTITUTION.¹

The district court ordered that Winrow be given credit for time served (from Nov. 29, 2008 to Feb. 6, 2009, and from the July 13, 2009 jury verdict forward) and that he pay costs and fees. However, the record contains no ruling regarding whether Counts I and II are to be served concurrently or consecutively. This issue is addressed infra in Proposition IV.

II. THE EVIDENCE WAS INSUFFICIENT TO CONVICT MR. WINROW OF POSSESSION OF COCAINE WITH INTENT TO DISTRIBUTE.

III. PROSECUTORIAL MISCONDUCT DEPRIVED MR. WINROW OF A FAIR TRIAL AND CAUSED THE JURY TO RENDER AN EXCESSIVE SENTENCE.

IV. MR. WINROW WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE II, SECTIONS 6, 7, AND 20 OF THE OKLAHOMA CONSTITUTION.

V. MR. WINROW’S SENTENCES ARE EXCESSIVE.

VI. THE CUMULATIVE EFFECT OF ALL THE ERRORS ADDRESSED ABOVE DEPRIVED MR. WINROW OF A FAIR TRIAL.

In Proposition I, Winrow argues that the trial court should have sustained his motion to suppress, because the stop of the car he was driving was an unconstitutional seizure.² In reviewing a district court’s rejection of a motion to suppress based upon an illegal search or seizure, this Court defers to the lower court’s factual findings, unless they are clearly erroneous, and then reviews the legality of the search/seizure de novo.³ A traffic stop is a seizure under the Fourth Amendment, which requires that the officer making the stop have probable cause to believe that a traffic violation has occurred.⁴ Yet when an officer has objective probable cause to make a stop, it does not matter what the officer’s subjective motivation is for actually stopping the vehicle at issue.⁵ In the current case, the trial court had adequate information to conclude that Officer Sciortino had probable cause to stop Winrow. Sciortino’s observation that Winrow’s car (i.e., the car he was driving) was getting further and further ahead of Sciortino’s own car, at a time when Sciortino was driving at the speed limit or higher, was enough to justify Sciortino’s conclusion that Winrow was speeding, which justified the stop.⁶ Thus the trial court did not err in rejecting Winrow’s motion to suppress.

In Proposition II, Winrow asserts that the evidence presented at trial was insufficient to convict him of possession of cocaine with intent to distribute.⁷ In particular, Winrow asserts that the State failed to prove that he knowingly and intentionally possessed the cocaine that was found in Sciortino’s car. We note that knowing and intentional possession can be proven by circumstantial evidence,⁸ and find that the evidence was more than adequate to establish that Winrow had all of the cocaine in his actual possession when he was arrested, and that he tried to get rid of it during his ride to the jail-by attempting to put it down behind the seat cushion in Sciortino’s patrol car-in order to dissociate himself from the cocaine (and the additional marijuana) before he arrived. Hence the evidence was sufficient to support Winrow’s conviction on Count I.

In Proposition III, Winrow raises a prosecutorial misconduct claim. In particular, he asserts that one of the two prosecutors committed misconduct when he elicited other crimes evidence during his questioning of Officer Hinker and that the other prosecutor appealed to societal alarm during her second-stage closing argument. We evaluate such claims to determine whether the challenged actions so infected the trial that it was rendered fundamentally unfair, such that the jury’s verdicts cannot be relied upon.¹⁰ During his direct questioning of Hinker, the prosecutor asked Hinker what happened after he pulled up behind Officer Sciortino on the night of the stop. Within his answer Hinker testified: Officer Sciortino informed me that the driver of the vehicle, the defendant, had a $20,000 warrant out of Seminole County and his license was suspended. Winrow now argues that the prosecutor improperly elicited the information that his driver’s license was suspended.¹¹ This fact was never mentioned again at trial, and it is hard to see why it would be particularly prejudicial in this case.¹² Winrow fails to show that it could possibly have rendered his trial unconstitutionally unfair. Winrow’s second misconduct claim challenges the other prosecutor’s second-stage closing argument that the defendant should be sent a message, asserting that this was an improper appeal to societal alarm. This Court has recognized that appeals to societal alarm, i.e., arguments that the jury should make an example out of the defendant, are substantially more prejudicial than probative and are therefore prohibited. The prosecutor’s argument in this case, however, was based entirely on the fact that Winrow had a prior drug conviction.¹⁴ This is not an improper appeal to societal alarm. Winrow’s prosecutorial misconduct claims are rejected accordingly.

In Proposition IV, Winrow argues that his trial counsel was constitutionally ineffective based on various things he failed to do during trial.¹⁶ Winrow first challenges counsel’s waiver of stenographic reporting of voir dire. While it is hard to see how waiving a transcript of voir dire could possibly have benefitted his client, Winrow fails to present any specific evidence or argument that this waiver prejudiced him. Hence he fails to show ineffective assistance in this regard. Winrow also challenges defense counsel’s failure to ensure that his oral motion to suppress (based on the traffic stop of Winrow) was transcribed. While it would be preferable to have a more complete transcript in this regard,³³ this Court has fully addressed the legality of Officer Sciortino’s stop of Winrow and concluded, in Proposition I, that the trial court did not err in its rejection of Winrow’s motion to suppress. Consequently, Winrow was not prejudiced by the lack of a transcript in this regard. Winrow also challenges his counsel’s failure to object to the prosecutorial misconduct alleged in Proposition III. This Court has already concluded that the challenged testimony/argument did not constitute prosecutorial misconduct, nor did it improperly prejudice Winrow. Hence defense counsel’s failure to object to this same testimony/argument could not have prejudiced Winrow. Finally, Winrow challenges the fact that during the second stage of his trial, his counsel gave virtually no opening statement, presented no evidence, and then did not give a closing argument.¹⁷ The second stage of Winrow’s trial was very short, since the only evidence presented was that he had a prior felony conviction for possession of marijuana with intent to distribute. After the State presented this evidence, Winrow’s jury was instructed on the sentencing range for each of the two counts.¹⁸ The prosecutor then presented her second-stage closing argument and concluded by asking the jury to sentence Winrow to 20 years to do in the Department of Corrections on Count I and 10 years on Count II. When the trial court turned to defense counsel for his closing argument, counsel responded, Nothing on behalf of the defendant, Your Honor. Winrow comments in his brief, [i]t was as if he had given up.¹⁹ This Court finds that it was objectively unreasonable for defense counsel not to give any second-stage closing argument and, in particular, not to make some kind of sentencing request of the jury. The Court recognizes, however, that it is extremely difficult to determine what, if any, prejudice resulted from this failure. We note that Winrow’s jury gave the 20 years requested by the prosecutor on Count I, but gave Winrow 5 years (rather than the 10 requested) on Count II, which suggests that (despite counsel’s failure) Winrow’s jury made a thoughtful, independent sentencing determination. This Court finds that Winrow cannot establish prejudice regarding the number of years given by the jury, and hence rejects this aspect of his ineffective assistance claim. Nevertheless, this Court finds that counsel was ineffective in failing to more diligently pursue concurrent sentences for Winrow. Although counsel filed a motion seeking concurrent sentencing on August 25, 2009, he failed to pursue this issue one day later, at the time of Winrow’s actual sentencing. This Court notes that the record fails to record any determination on this issue.²º The record does contain an 8/26/09 Order for Detention, signed by the trial court,²¹ which contains the handwritten phrase 20 years after the phrase Special Instructions.²² This Court finds that the record suggests more than a reasonable probability that Winrow would have been granted concurrent sentences if this issue had been pursued and resolved. This Court finds that Winrow has adequately established ineffective assistance in the failure of his counsel to diligently pursue concurrent sentencing and that the appropriate remedy is to remand the case to the district court for a ruling on whether Winrow’s sentences shall be run concurrently or consecutively.²³

In Proposition V, Winrow asserts that his total sentence, i.e., imprisonment for twenty-five (25) years, is excessive.²⁴ Winrow also argues that the trial court abused its discretion by ordering that his sentences be served consecutively.²⁵ This Court notes that the trial court did not order that Winrow’s sentences be served consecutively and finds that this claim is rendered moot by the Court’s resolution of Proposition IV.

In Proposition VI, Winrow raises a cumulative error claim.²⁶ Because the only error found in this case is addressed and resolved in Proposition IV, however, this Court need not further address this claim.

After thoroughly considering the entire record before us on appeal, including the original record, transcripts, briefs, and exhibits of the parties, we find that Winrow’s convictions should be affirmed, but that the case should be remanded to the district court for a ruling on whether Winrow’s sentences shall be served consecutively or concurrently.

Decision

Winrow’s convictions for Unlawful Possession of Controlled Drug With Intent to Distribute (Cocaine) AFCF and Possession of Controlled Substance (Marijuana) AFCF, as well as the individual sentences on each of these two counts, are hereby AFFIRMED. This case is REMANDED to the district court, however, for a ruling by the district court on whether the terms of imprisonment on these two counts are to be served consecutively or concurrently.

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Footnotes:

1. Okla. Stat. tit. 63 § 2-401(B)(1)
2. Okla. Stat. tit. 63 § 2-402
3. Seabolt v. State, 2006 OK CR 50, ¶ 5, 152 P.3d 235, 237.
4. Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89 (1996); McGaughey v. State, 2001 OK CR 33, ¶ 25, 37 P.3d 130, 136.
5. Whren, 517 U.S. at 811-13, 116 S.Ct. at 1773-74; McGaughey, 2001 OK CR 33, ¶ 25, 37 P.3d at 137.
6. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Spuehler v. State, 1985 OK CR 132, ¶ 7, 709 P.2d 202, 203-04.
7. Carolina v. State, 1992 OK CR 65, ¶ 5, 839 P.2d 663, 664-65.
8. Donnelly v. DeChristoforo, 416 U.S. 637, 645, 94 S.Ct. 1868, 1872, 40 L.Ed.2d 431 (1974); Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (quoting DeChristoforo).
9. Neill v. State, 1994 OK CR 69, ¶ 36, 896 P.2d 537, 550-51.
10. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Williams v. Taylor, 529 U.S. 362, 390-91, 120 S.Ct. 1495, 1511-12, 146 L.Ed.2d 389 (2000).
11. Riley v. State, 1997 OK CR 51, ¶ 21, 947 P.2d 530, 535.
12. Bland v. State, 2000 OK CR 11, ¶ 112-13, 4 P.3d 702, 730-31.
13. 22 O.S.2001, § 976.
14. Warner v. State, 2006 OK CR 40, ¶ 223, 144 P.3d 838, 896.

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-401(B)(1) - Unlawful Possession of Controlled Drug With Intent to Distribute
• Okla. Stat. tit. 63 § 2-402 - Possession of Controlled Substance
• Okla. Stat. tit. 21 § 61.1 - Presumption of Consecutive Sentences
• Okla. Stat. tit. 21 § 976 - Concurrent/Consecutive Sentences
• Okla. Stat. tit. 21 § 701.8 - Sentencing

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
• Seabolt v. State, 2006 OK CR 50, I 5, 152 P.3d 235, 237
• Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89 (1996)
• McGaughey v. State, 2001 OK CR 33, I 25, 37 P.3d 130, 136
• Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)
• Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-04
• Carolina v. State, 1992 OK CR 65, I 5, 839 P.2d 663, 664-65
• Donnelly v. DeChristoforo, 416 U.S. 637, 645, 94 S.Ct. 1868, 1872, 40 L.Ed.2d 431 (1974)
• Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986)
• Neill v. State, 1994 OK CR 69, II 36, 896 P.2d 537, 550-51
• Young v. State, 2008 OK CR 25, A 37, 191 P.3d 601, 611
• Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)
• Williams v. Taylor, 529 U.S. 362, 390-91, 120 S.Ct. 1495, 1511-12, 146 L.Ed.2d 389 (2000)
• Rea v. State, 2001 OK CR 28, Il 5, 34 P.3d 148, 149
• Warner v. State, 2006 OK CR 40, 1 223, 144 P.3d 838, 896
• Bland v. State, 2000 OK CR 11, I 112-13, 4 P.3d 702, 730-31
• Beck v. State, 1970 OK CR 207, TT 7-9, 478 P.2d 1011, 1012
• Riley v. State, 1997 OK CR 51, 9 21, 947 P.2d 530, 535
• Doyle v. State, 1989 OK CR 85, 785 P.2d 317, 326
• Eberhart v. State, 1986 OK CR 160, I 26, 727 P.2d 1374, 1380
• Lott v. State, 2004 OK CR 27, I 126, 98 P.3d 318, 349-50