Darius Darrell Payne v The State Of Oklahoma

F-2010-131

Filed: Oct. 21, 2011

Not for publication

Prevailing Party: Darius Darrell Payne

Summary

Darius Darrell Payne appealed his conviction for multiple crimes, including drug trafficking and unlawful possession of drugs. His conviction and sentence included life imprisonment without the possibility of parole for drug trafficking, along with several other sentences totaling years in prison and fines. Judge Scott C. Johnson dissented.

Decision

The Judgment and Sentence of the District Court on Counts III and V is AFFIRMED. Payne's convictions on Counts I and IV are AFFIRMED. The sentences on Counts I and IV are VACATED and the matter is REMANDED for a new sentencing proceeding on those counts. Payne's conviction for Count VI is AFFIRMED, the sentence is MODIFIED from one year in the county jail to three months in the county jail. We REMAND to the district court to correct the Judgment and Sentence documents on Counts III, V and VI by an order nunc pro tunc to reflect that Payne was convicted in a jury trial rather than pled guilty. 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 the statutory prohibition against multiple punishment regarding convictions for trafficking in cocaine base and failing to obtain a tax stamp?
• Did the district court fail to correctly instruct the jury on the legal findings necessary to support a sentence of life imprisonment without the possibility of parole for trafficking in illegal drugs?
• Did the trial court direct a verdict of guilty on the charge of felony possession of marijuana without requiring the jury to find that Payne had a prior drug-related conviction?
• Was the trial court's bifurcation of the trial on the charge of misdemeanor possession of paraphernalia improper?
• Were there errors related to the Judgment and Sentence documents regarding the violation section numbers and the nature of Payne's plea?

Findings

• the court erred in denying Payne's claim of multiple punishment under 21 O.S.2001, § 11
• the court erred in denying Payne's claim of double jeopardy
• the court erred in providing incorrect jury instructions regarding mandatory life imprisonment without parole
• the court erred in directing a verdict of guilty on the felony possession of marijuana without proper jury findings
• the court erred in bifurcating the trial on the misdemeanor possession of paraphernalia
• the court committed scrivener's error in the Judgment and Sentence documents

F-2010-131

Oct. 21, 2011

Darius Darrell Payne

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

Appellant Darius Darrell Payne was tried by jury in a trifurcated proceeding in the District Court of Tulsa County, Case No. CF-2007-3606. The jury convicted Payne of the following felony offenses: Trafficking in Illegal Drugs (Count I), in violation of 63 O.S.Supp.2004, § 2-415, Possession of Firearm, After Former Conviction of a Felony (Count III), in violation of 21 O.S.Supp.2007, § 1283, Unlawful Possession of Marijuana, Second Offense (Count IV), in violation of 63 O.S.Supp.2004, § 2-402, and Failure to Obtain Drug Tax Stamp (Count V), in violation of 68 O.S.2001, § 450.8. The jury found that Payne was an habitual offender – that he had been convicted of two or more felonies in the past – and enhanced his punishment. The jury also convicted Payne of misdemeanor Unlawful Possession of Paraphernalia (Count VI), in violation of 63 O.S.Supp.2004, § 2-405.

The jury set punishment at life imprisonment without the possibility of parole and a $25,000 fine on Count I, five years imprisonment on Count III, two years imprisonment on Count IV, four years imprisonment on Count V, and one year in the county jail on Count VI. The Honorable Kurt G. Glassco, who presided at trial, sentenced Payne accordingly and ordered the sentences to be served concurrently. From this Judgment and Sentence Payne appeals, raising six claims of error. For the reasons set out below, we affirm Payne’s convictions on all counts, but remand the matter for a new sentencing proceeding on Counts I and IV because of instructional error. We also modify Payne’s sentence for misdemeanor possession of drug paraphernalia because Payne’s trial was erroneously bifurcated on that charge.

FACTS

On June 29, 2007, three Tulsa police officers went to a house occupied by Payne and Sheila Royal, his girlfriend and co-defendant, to execute an arrest warrant for Felix Oliver. Several of Oliver’s warrants listed the home’s address and a car registered to Oliver was parked in front of the house. Royal answered the door and told the officers that she did not know Oliver and he did not live there. Payne came to the door within minutes, produced identification, and reiterated to the officers that he did not know Oliver and that he was not inside. Both Payne and Royal gave consent for the officers to look around the house to confirm the absence of Oliver. Payne led two of the officers into the master bedroom. One of the officers looked underneath the bed and saw a set of scales and baggies. He looked around and saw rocks of cocaine base (known as crack cocaine) in plain view on the dresser and floor below it. A baggie containing marijuana was also on the dresser. The officer immediately arrested Payne and handcuffed him. Before placing Payne on the bed to wait for the evidence to be recovered, one of the officers patted the bedcovers for safety reasons and felt a gun. Underneath the blankets was a .380 Lorcin pistol, $5,154.00 in cash, and more crack cocaine. The officers collected the evidence from the bed and dresser. No tax stamp was affixed to the crack cocaine. The combined weight of the crack cocaine collected was in excess of five grams.

DISCUSSION

1. MULTIPLE PUNISHMENT AND DOUBLE JEOPARDY

Payne argues that his convictions on Counts I and V for trafficking in cocaine base and failing to obtain a tax stamp for the drugs violate the statutory prohibition against multiple punishment found in 21 O.S.2001, § 11 and the federal and state constitutional prohibition against double jeopardy. Payne did not raise these claims in the district court. Under Logsdon v. State, 2010 OK CR 7, I 15, 231 P.3d 1156, 1164, the claims are waived and review is for plain error only. In Count I Payne was convicted of trafficking cocaine base, and in Count V he was convicted of failing to obtain a tax stamp for the same cocaine base he was convicted of trafficking. We consider Payne’s Section 11 claim first.

Payne asserts that his convictions and sentences on Counts I and V arose out of a single act of possessing a certain quantity of cocaine base. According to Payne, these two convictions violate Section 11 because Section 11 prohibits prosecution of more than one crime if the crimes arise out of a single act. Our analysis of a Section 11 claim focuses on the relationship between the crimes. Logsdon, 2010 OK CR 7, I 17, 231 P.3d at 1165. Where the crimes truly arise out of one act, Section 11 prohibits prosecution for more than one crime, absent specific legislative intent (emphasis added). Watts v. State, 2008 OK CR 27, I 16, 194 P.3d 133, 139; Davis v. State, 1999 OK CR 48, TI 12-13, 993 P.2d 124, 126-127. If the legislature intended cumulative punishments or if the criminal acts are separate and distinct, there is no multiple punishment violation under Section 11.

2. MANDATORY LIFE IMPRISONMENT WITHOUT PAROLE INSTRUCTION

Payne argues that his sentence for trafficking in illegal drugs should be modified because the district court failed to correctly instruct Payne’s jury on the legal findings necessary to support a sentence of life imprisonment without the possibility of parole. The State concedes that the court’s instruction was incorrect and erroneously provided that the punishment for drug trafficking after two or more previous convictions was life imprisonment without the possibility of parole. Life imprisonment without the possibility of parole is the mandatory sentence only if the jury finds that the defendant has two or more previous drug-related felony convictions.

3. UNLAWFUL POSSESSION OF MARIJUANA – SECOND OFFENSE

Payne argues the trial court directed a verdict of guilty on his conviction for felony possession of marijuana without requiring the jury to find that he had a prior drug-related conviction. We will review this claim for plain error because Payne did not object at trial to the bifurcation procedure and jury instructions he now challenges.

4. BIFURCATION

Payne correctly argues that the trial court improperly bifurcated his trial on the charge of misdemeanor Possession of Paraphernalia. Payne’s jury considered guilt or innocence of the charge in Stage 1 and fixed punishment in Stage 3. The bifurcation of this charge allowed the jury to hear evidence of Payne’s purported seven prior convictions – not relevant to punishment for a misdemeanor – before imposing sentence.

5. ERRORS RELATED TO THE JUDGMENT AND SENTENCE DOCUMENTS

The parties agree that Payne’s Judgment and Sentence for failure to obtain a tax stamp lists a violation of the wrong section number of Title 68. The parties also agree that Payne’s Judgment and Sentence documents on all of his other convictions incorrectly state that he pled guilty. This is the type of scrivener’s error subject to correction through an order nunc pro tunc.

DECISION

The Judgment and Sentence of the District Court on Counts III and V is AFFIRMED. Payne’s convictions on Counts I and IV are AFFIRMED. The sentences on Counts I and IV are VACATED and the matter is REMANDED for a new sentencing proceeding on those counts. Payne’s conviction for Count VI is AFFIRMED, the sentence is MODIFIED from one year in the county jail to three months in the county jail. We REMAND to the district court to correct the Judgment and Sentence documents on Counts III, V and VI by an order nunc pro tunc to reflect that Payne was convicted in a jury trial rather than pled guilty.

AN APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY

THE HONORABLE KURT G. GLASSCO, DISTRICT JUDGE

APPEARANCES AT TRIAL

NANCY COPPOLA
2642 EAST 21ST ST., STE 190
TULSA, OK 74114
ATTORNEY FOR DEFENDANT

APPEARANCES ON APPEAL

TERRY J. HULL
P. O. BOX 926
NORMAN, OK 73070
ATTORNEY FOR APPELLANT

STEPHANIE MILBURN
ASSISTANT DISTRICT ATTORNEY
500 S. DENVER
TULSA, OK 74103
ATTORNEY FOR STATE

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Footnotes:

1. 63 O.S.Supp.2004, § 2-415
2. 21 O.S.Supp.2007, § 1283
3. 63 O.S.Supp.2004, § 2-402
4. 68 O.S.2001, § 450.8
5. 21 O.S.2001, § 11
6. 68 O.S.2001, §§ 450.1-450.9
7. 68 O.S.2001, § 450.8(C)
8. 20 O.S.2001 § 3001.1
9. 63 O.S.Supp.2004, § 2-402(B)(2)
10. 63 O.S.Supp.2004, § 2-402(B)(2)
11. 68 O.S.2001, § 450.8

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-415 - Trafficking in Illegal Drugs
• Okla. Stat. tit. 21 § 1283 - Possession of Firearm After Former Conviction of a Felony
• Okla. Stat. tit. 63 § 2-402 - Unlawful Possession of Marijuana, Second Offense
• Okla. Stat. tit. 68 § 450.8 - Failure to Obtain Drug Tax Stamp
• Okla. Stat. tit. 21 § 11 - Prohibition Against Multiple Punishments
• Okla. Stat. tit. 68 § 450.1 - Oklahoma Drug Tax Stamp Act Definitions
• Okla. Stat. tit. 68 § 450.2 - Tax Increase on Controlled Dangerous Substances
• Okla. Stat. tit. 68 § 450.3 - Duty to Pay Tax and Affix Stamp; Enforcement
• Okla. Stat. tit. 20 § 3001.1 - Setting Aside Judgment for Misdirection of Jury
• Okla. Stat. tit. 63 § 2-402(B)(2) - Penalties for Unlawful Possession of Marijuana
• Okla. Stat. tit. 22 § 1066 - Enhancements for Repeated Offenses
• Okla. Stat. tit. 22 § 3001.1 - Setting Aside Judgment for Errors in Procedure

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:

• Logsdon v. State, 2010 OK CR 7, ¶ 15, 231 P.3d 1156, 1164
• Mooney v. State, 1999 OK CR 34, ¶ 14, 990 P.2d 875, 882-83
• Watts v. State, 2008 OK CR 27, ¶ 16, 194 P.3d 133, 139
• Davis v. State, 1999 OK CR 48, ¶¶ 12-13, 993 P.2d 124, 126-127
• White v. State, 1995 OK CR 15, ¶¶ 3-4, 900 P.2d 982, 995-96
• Dennis v. Poppel, 222 F.3d 1245, 1255-1258 (10th Cir. 2000)
• Harmon v. State, 2011 OK CR 6, ¶ 12, 248 P.3d 918, 928
• Gamble v. State, 1988 OK CR 41, ¶¶ 5-6, 751 P.2d 751, 753
• Perryman v. State, 1999 OK CR 39, ¶ 13, 990 P.2d 900, 905
• Demry v. State, 1999 OK CR 31, ¶ 22, 986 P.2d 1145, 1148-49
• Bell v. State, 2007 OK CR 43, ¶ 10, 172 P.3d 622, 626
• Hogan v. State, 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923