Marco Lamonte Carroll v The State Of Oklahoma

F-2010-495

Filed: Apr. 4, 2012

Not for publication

Prevailing Party: The State of Oklahoma

Summary

Marco Lamonte Carroll appealed his conviction for Second Degree Felony Murder and two counts of Using a Vehicle to Facilitate the Discharge of a Firearm. His conviction and sentence included twenty years for murder, five years for one firearm charge, and six years for the other, all to be served one after the other. Judge Kurt G. Glassco sentenced him. Judge C. Johnson wrote the opinion, with one judge dissenting. The court agreed with some of Carroll's arguments but reversed the conviction for one count because it violated double jeopardy rules, meaning you can't be punished twice for the same crime. They kept the other convictions since there was enough proof of his involvement in the crimes.

Decision

Count 2 is REVERSED WITH INSTRUCTIONS TO DISMISS. In all other respects, the Judgment and Sentence of the district court is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2012), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there insufficient evidence to support Appellant's conviction for "Drive-by Shooting" in Count 2, and therefore also insufficient to support Appellant's Second-Degree Murder conviction based on that felony?
• Did the merger doctrine prohibit using the act that caused the death as the predicate felony in a felony-murder prosecution for Appellant's conviction for Second-Degree Felony Murder?
• Do convictions for both Second-Degree Felony Murder and Use of a Vehicle in the Discharge of a Weapon constitute double jeopardy under these facts?
• Did the trial court abuse its discretion in refusing to give Appellant credit for time served in the county jail awaiting trial?

Findings

• Evidence was sufficient to support Appellant's conviction for Using a Vehicle to Facilitate the Discharge of a Firearm (Count 2).
• The "merger doctrine" does not require reversal of Appellant's Second Degree Murder conviction (Count 1).
• Appellant's conviction for Using a Vehicle to Facilitate the Discharge of a Firearm (Count 2) was reversed on double-jeopardy grounds.
• The trial court did not abuse its discretion in refusing to give Appellant credit for time served pending trial.

F-2010-495

Apr. 4, 2012

Marco Lamonte Carroll

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

C. JOHNSON, JUDGE:

Appellant, Marco Lamonte Carroll, was convicted by a jury in Tulsa County District Court, Case No. CF-2008-3616, of one count of Second Degree Felony Murder (21 O.S.2001, § 701.8) (Count 1) and two counts of Using a Vehicle to Facilitate the Discharge of a Firearm (21 O.S.Supp.2007, § 652(B)) (Counts 2 and 3). On May 14, 2010, the Honorable Kurt G. Glassco, District Judge, sentenced Carroll in accordance with the jury’s recommendation to twenty years imprisonment on Count 1, five years imprisonment on Count 2, and six years imprisonment on Count 3, with the sentences to be served consecutively. This appeal followed.

Appellant raises the following propositions of error:
1. The evidence is insufficient to support Appellant’s conviction for Drive-by Shooting in Count 2, and therefore also insufficient to support Appellant’s Second-Degree Murder conviction based on that felony.
2. Appellant’s conviction for Second-Degree Felony Murder must be vacated, because the merger doctrine prohibits using the act that caused the death as the predicate felony in a felony-murder prosecution.
3. Convictions for both Second-Degree Felony Murder, and Use of a Vehicle in the Discharge of a Weapon, constitute double jeopardy under these facts.
4. The trial court abused its discretion in refusing to give Appellant credit for time served in the county jail awaiting trial.

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 Appellant’s convictions on Counts 1 and 3, but reverse Count 2 on double-jeopardy grounds.

Appellant accompanied three other men in a drive-by shooting incident, which resulted in the death of one person and injury to another. The evidence showed that three firearms were in the vehicle, and shots were fired from more than one gun. As to Proposition 1, Appellant’s acts of accompanying his associates to the neighborhood of a rival gang member, and bringing a loaded firearm of his own, were sufficient for a rational juror to conclude, beyond a reasonable doubt, that he participated in using a vehicle to facilitate the intentional discharge of a firearm, which was the proximate cause of one victim’s death. Douglas v. State, 1997 OK CR 79, §§ 65-67, 951 P.2d 651, 672. Proposition 1 is denied.

As to Proposition 2, we recently abrogated the judicially-created merger doctrine, and concluded that the crime of Using a Vehicle to Facilitate the Intentional Discharge of a Firearm could, in fact, serve as a predicate for Second Degree Felony Murder, consistent with the plain language of statute. Barnett v. State, 2011 OK CR 28, 263 P.3d 959, rehearing granted, 2012 OK CR 2, – P.3d – For the reasons given in Barnett, we find that the merger doctrine does not require reversal of Appellant’s Second Degree Murder conviction. Proposition 2 is denied.

As to Proposition 3, Appellant’s conviction in Count 1 (Second Degree Murder, in the commission of Using a Vehicle to Facilitate the Intentional Discharge of a Firearm) necessarily depended on the same facts used to support the conviction in Count 2 (Using a Vehicle to Facilitate the Intentional Discharge of a Firearm). Multiple convictions based on the same set of facts violate constitutional protections from double jeopardy. Perry v. State, 1993 OK CR 5, § 7, 853 P.2d 198, 200-01. Therefore, Appellant’s conviction in Count 2 is REVERSED WITH INSTRUCTIONS TO DISMISS.

As to Proposition 4, whether a trial court grants a convicted defendant credit for time served in the county jail is a matter within the court’s discretion, and this Court will presume that the trial court exercised its discretion properly in the absence of contrary evidence. Holloway v. State, 2008 OK CR 14, § 8, 182 P.3d 845, 847; Riley v. State, 1997 OK CR 51, § 21, 947 P.2d 530, 534-35. We find no constitutional or statutory authority for a trial court to give a defendant credit for time served in the county jail pending trial, and therefore question whether a court’s refusal to give such credit is even reviewable on appeal. See Shepard v. State, 1988 OK CR 97, § 21, 756 P.2d 597, 602. In any event, the record shows that the trial court did not have a blanket policy of denying credit for time served pending trial. No relief is warranted, and Proposition 4 is denied.

DECISION

Count 2 is REVERSED WITH INSTRUCTIONS TO DISMISS. In all other respects, the Judgment and Sentence of the district court is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2012), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

APPEARANCES AT TRIAL
ZACH SMITH
ATTORNEY AT LAW
1521 S. DENVER
TULSA, OK 74119
ATTORNEY FOR DEFENDANT

APPEARANCES ON APPEAL
LEE ANN JONES PETERS
INDIGENT DEFENSE SYSTEM
P.O. BOX 926
NORMAN, OK 73070
ATTORNEY FOR APPELLANT

ANTHONY EVANS
E. SCOTT PRUITT
ATTORNEY GENERAL OF OKLAHOMA
STEPHANIE MILBURN
ASSISTANT DISTRICT ATTORNEYS
JENNIFER B. WELCH
ASSISTANT ATTORNEY GENERAL
500 S. DENVER, ROOM 406
TULSA, OK 74013
ATTORNEYS FOR THE STATE

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

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Footnotes:

1. 21 O.S. § 13.1(2), (5)
2. Douglas U. State, 1997 OK CR 79, III 65-67, 951 P.2d 651, 672
3. Barnett U. State, 2011 OK CR 28, 263 P.3d 959, rehearing granted, 2012 OK CR 2, - P.3d -
4. Perry U. State, 1993 OK CR 5, II 7, 853 P.2d 198, 200-01
5. Holloway U. State, 2008 OK CR 14, II 8, 182 P.3d 845, 847
6. Riley U. State, 1997 OK CR 51, I 21, 947 P.2d 530, 534-35
7. Shepard U. State, 1988 OK CR 97, II 21, 756 P.2d 597, 602

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.8 (2001) - Second Degree Felony Murder
• Okla. Stat. tit. 21 § 652(B) (Supp. 2007) - Using a Vehicle to Facilitate the Discharge of a Firearm
• Okla. Stat. tit. 21 § 13.1(2) (2011) - Credit for Time Served
• Okla. Stat. tit. 22 § 50 (2011) - Rules of the Oklahoma Court of Criminal Appeals
• Okla. Stat. tit. 22 § 21 (2011) - Appellate 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:

• Douglas U. State, 1997 OK CR 79, III 65-67, 951 P.2d 651, 672.
• Barnett U. State, 2011 OK CR 28, 263 P.3d 959, rehearing granted, 2012 OK CR 2, - P.3d -
• Perry U. State, 1993 OK CR 5, II 7, 853 P.2d 198, 200-01.
• Holloway U. State, 2008 OK CR 14, II 8, 182 P.3d 845, 847.
• Riley U. State, 1997 OK CR 51, I 21, 947 P.2d 530, 534-35.
• Shepard U. State, 1988 OK CR 97, II 21, 756 P.2d 597, 602.