Gary Don Thompson II v The State Of Oklahoma

F-2010-288

Filed: Apr. 7, 2011

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Gary Don Thompson II appealed his conviction for Possession of Marijuana, After Conviction of Two or More Felonies. His conviction and sentence were for ten years in prison and a $5000 fine. The court agreed that the police officer had no reasonable suspicion to stop Thompson, which led to him disposing of the marijuana. The court reversed Thompson's conviction and instructed to dismiss the case. Judge Lewis dissented.

Decision

The Judgment and Sentence of the district court 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 the delivery and filing of this decision.

Issues

• Was there an unlawful detention that warranted reversal of the conviction?
• Did the trial court abuse its discretion in denying the motion to suppress evidence?
• Was the seizure of Appellant without reasonable suspicion of criminal activity?
• Did the inconsistency in the officer's testimony affect the admissibility of evidence?

Findings

• the trial court abused its discretion in denying the renewed motion to suppress
• the judgment and sentence of the district court is reversed and remanded with instructions to dismiss

F-2010-288

Apr. 7, 2011

Gary Don Thompson II

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

Appellant, Gary Don Thompson II, was convicted by a jury in Okmulgee County District Court, Case No. CF-2009-129, of Possession of Marijuana, After Conviction of Two or More Felonies (63 O.S.Supp.2004, § 2-402). On March 29, 2010, the Honorable John Maley, District Judge, sentenced Appellant to ten years imprisonment and a $5000 fine, in accordance with the jury’s recommendation. This appeal followed.

In his sole proposition of error, Appellant claims his conviction should be reversed because the evidence supporting it was the product of an unlawful detention. Prior to trial, Appellant filed a motion to suppress; the motion was denied by the district court, based on the arresting officer’s testimony at preliminary hearing. At trial, the officer gave a more detailed account of his encounter with Appellant, an account which was materially inconsistent with the one given at preliminary hearing. Defense counsel renewed her motion to suppress, but it was again denied. Appellant’s claim has been preserved for review. Williams v. State, 2008 OK CR 19, ¶ 50, 188 P.3d 208, 220-21. We review the district court’s ruling on the motion to suppress for an abuse of discretion. Gomez v. State, 2007 OK CR 33, ¶ 5, 168 P.3d 1139, 1141-42. A trial court has the authority to revisit pretrial rulings on the admissibility of evidence, including motions to suppress based on alleged Fourth Amendment violations. Wing v. State, 1978 OK CR 53, ¶ 6, 579 P.2d 196, 198; State v. Greenwood, 1977 OK CR 202, ¶ 7, 565 P.2d 701, 703.

There is no dispute that Appellant, a pedestrian, disposed of a small baggie of marijuana when the police officer approached him. The officer conceded he had no particularized suspicion of criminal activity, only the fact that Appellant and his companion were walking down the street in what he called a high crime area late at night. While the officer’s testimony at preliminary hearing did not indicate that Appellant had been seized before he disposed of the drugs, his testimony at trial clearly did. At trial, the officer stated that Appellant did not dispose of the baggie until he complied with the officer’s second command to stop, given as the officer exited his car and began to approach the two men. We find, based on this version of the events, that Appellant was seized without reasonable suspicion of criminal activity, that his disposal of the marijuana after submitting to the officer was the direct product of an unreasonable seizure, and that the trial court abused its discretion in denying the renewed motion to suppress after this marked change in the officer’s account. Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968); Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963); California v. Hodari D., 499 U.S. 621, 628, 111 S.Ct. 1547, 1552, 113 L.Ed.2d 2 690 (1991); Revels v. State, 1983 OK CR 105, ¶ 7, 666 P.2d 1298, 1300.

DECISION

The Judgment and Sentence of the district court 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 the delivery and filing of this decision.

APPEARANCES AT TRIAL

CORY R. GRAYSON
ATTORNEY AT LAW
P.O. BOX 998
OKMULGEE, OK 74447
ATTORNEY FOR DEFENDANT

THOMAS C. GUILIOLI
DISTRICT ATTORNEY
314 W. 7th ST.
OKMULGEE, OK 74447
ATTORNEY FOR THE STATE

APPEARANCES ON APPEAL

ROBERT W. JACKSON
INDIGENT DEFENSE SYSTEM
P.O. BOX 926
NORMAN, OK 73070
ATTORNEY FOR APPELLANT

W. A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA
JENNIFER B. MILLER
ASSISTANT ATTORNEY GENERAL
313 N.E. 21st ST.
OKLAHOMA CITY, OK 73105
ATTORNEYS FOR THE STATE

OPINION BY C. JOHNSON, J.
A. JOHNSON, P.J.: CONCUR IN RESULTS
LEWIS, V.P.J.: CONCUR
LUMPKIN, J.: CONCUR IN RESULTS
SMITH, J.: CONCUR

RB 3

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Footnotes:

1. 63 O.S.Supp.2004 § 2-402
2. Williams v. State, 2008 OK CR 19, ¶ 50, 188 P.3d 208, 220-21.
3. Gomez v. State, 2007 OK CR 33, ¶ 5, 168 P.3d 1139, 1141-42.
4. Wing v. State, 1978 OK CR 53, ¶ 6, 579 P.2d 196, 198.
5. State v. Greenwood, 1977 OK CR 202, ¶ 7, 565 P.2d 701, 703.
6. Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968).
7. Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963).
8. California v. Hodari D., 499 U.S. 621, 628, 111 S.Ct. 1547, 1552, 113 L.Ed.2d 690 (1991).
9. Revels v. State, 1983 OK CR 105, ¶ 7, 666 P.2d 1298, 1300.

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-402 - Possession of Marijuana After Conviction of Two or More Felonies
• Okla. Stat. tit. 22 § 3.15 - Rules of the Oklahoma Court of Criminal Appeals
• Okla. Stat. tit. 21 § 701.8 - Definition of “Habitual Criminal”

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

• 17 U.S.C. § 107 - Limitations on exclusive rights: Fair use

Other citations:

No other rule citations found.

Case citations:

• Williams v. State, 2008 OK CR 19, ¶ 50, 188 P.3d 208, 220-21.
• Gomez v. State, 2007 OK CR 33, ¶ 5, 168 P.3d 1139, 1141-42.
• Wing v. State, 1978 OK CR 53, ¶ 6, 579 P.2d 196, 198.
• State v. Greenwood, 1977 OK CR 202, ¶ 7, 565 P.2d 701, 703.
• Revels v. State, 1983 OK CR 105, ¶ 7, 666 P.2d 1298, 1300.
• Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968).
• Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963).
• California v. Hodari D., 499 U.S. 621, 628, 111 S.Ct. 1547, 1552, 113 L.Ed.2d 690 (1991).