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F-2010-651

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Frank Leroy Gibson v The State Of Oklahoma

F-2010-651

Filed: Dec. 13, 2011

Not for publication

Prevailing Party: Frank Leroy Gibson

Summary

Frank Leroy Gibson appealed his conviction for Manufacture of Controlled Dangerous Substance (Methamphetamine) and Unlawful Possession of Drug Paraphernalia. Conviction and sentence was upheld, but his life sentence for the manufacturing charge was reduced to 25 years. Judge Lumpkin dissented regarding the sentence modification.

Decision

Frank Leroy Gibson's CONVICTIONS for Manufacture of Controlled Dangerous Substance (Methamphetamine), AFCF (Count I) and Unlawful Possession of Drug Paraphernalia (Count II) are hereby AFFIRMED. His SENTENCE ON COUNT I, however, is hereby MODIFIED TO IMPRISONMENT FOR 25 YEARS. His SENTENCE ON COUNT II is AFFIRMED, and the sentences will remain concurrent. 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 sufficient evidence to convict Gibson of Manufacturing Methamphetamine?
  • Did the trial court handle the jury's sentencing question in compliance with legal requirements?
  • Was the use of guilty plea documents to establish prior felony convictions permissible?
  • Did the reference to Gibson's post-arrest silence violate his Fifth Amendment rights?
  • Did prosecutorial misconduct during trial deprive Gibson of a fair trial?
  • Was the voir dire regarding defense counsel's criminal charges adequate to maintain an impartial jury?
  • Was Gibson's life sentence excessive given the circumstances of his case?
  • Did the cumulative effect of the errors during the trial require a review or modification of Gibson's sentence?

Findings

  • the court rejected the claim that the evidence was insufficient to support the conviction for Manufacture of Methamphetamine
  • the court found that any error in the trial court's handling of a jury question was overcome by the correctness of the response given
  • the court rejected the claim that the use of guilty plea summary forms for prior convictions constituted plain error
  • the court found that the reference to the defendant's post-arrest silence did not amount to plain error
  • the court rejected the prosecutorial misconduct claims, finding they did not deprive the defendant of a fair trial
  • the court found that while jury voir dire was inadequate due to the trial court's comments on defense counsel's charges, it constituted plain error
  • the court modified the sentence on Count I from Life imprisonment to 25 years

F-2010-651

Dec. 13, 2011

Frank Leroy Gibson

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

SMITH, JUDGE: Frank Leroy Gibson, Appellant, was tried by jury and convicted of Manufacture of Controlled Dangerous Substance (Methamphetamine), After Former Conviction of Two or More Felonies, under 63 O.S.Supp.2005, § 2-401(G) (Count I); and Unlawful Possession of Drug Paraphernalia, a misdemeanor, under 63 O.S.Supp.2004, § 2-405 (Count III), in the District Court of Kay County, Case No. CF-2009-206. In accord with the jury verdict, the Honorable Leslie D. Page, Associate District Judge, sentenced Gibson to imprisonment for Life and a fine of $25,000.00 on Count I, and imprisonment for one (1) year and a fine of $1,000 on Count III, to run concurrently. Gibson is properly before this Court on direct appeal.

In Proposition I, Gibson asserts that the evidence presented at trial was insufficient to convict him of Manufacture of Methamphetamine (Count I). Gibson emphasizes the following facts: (1) no one was manufacturing methamphetamine at 218 S. Palm St. at the time his home was searched; (2) no usable pseudoephedrine was found in the home; and (3) the State could not establish who specifically had manufactured in the home or when it had occurred. This Court evaluates such sufficiency claims by determining whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt. Gibson was charged with manufacturing methamphetamine, and his jury was instructed, in accord with OUJI-CR(2d) 6-3, that the elements of this crime are: First, knowingly/intentionally; Second, manufacturing; Third, the controlled dangerous substance of methamphetamine. Gibson’s jury was further instructed, in accord with OUJI-CR(2d) 6-16, that manufacturing includes: Production, preparation, propagation, compounding, or processing a controlled dangerous substance, either directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis; or a combination of extraction and chemical synthesis. See 63 O.S.Supp.2006, § 2-101(22). Gibson’s jury was also properly instructed on the law of possession, including constructive possession and joint possession, and aiding and abetting.

In Brumfield v. State, 2007 OK CR 10, 155 P.3d 826, this Court affirmed the defendant’s conviction for aggravated manufacture of methamphetamine even though the search of the defendant’s home and property did not reveal any actual pseudoephedrine or any usable methamphetamine. The Court noted that Brumfield’s home and property were littered with the essential ingredients for methamphetamine manufacture—or evidence that essential ingredients had recently been present, e.g., the blister packs. In both Brumfield and the current case, the search revealed burned pseudoephedrine blister packs. The Brumfield Court rejected the defendant’s evidence insufficiency claim, noting that the record contained compelling evidence that [the] manufacturing process had been recently undertaken by someone in [the defendant’s] home. We reject the current claim as well. Although this case did not involve manufacturing that was still in process at the time of the search, the electric coffee grinder found in the kitchen sink (where it would not be expected to remain for long), with detectable pseudoephedrine still on it, the burnt blister packs and lithium battery package in the fireplace (when there was twice-weekly trash pickup), the pseudoephedrine receipts in the trash (for purchases made by other people), along with the finished product methamphetamine found in Gibson’s bedroom, all support the jury’s conclusion that methamphetamine had been quite recently manufactured in the home. Furthermore, the fact that ingredients and items associated with manufacturing were spread throughout his home likewise supported the jury’s conclusion that Gibson was guilty of this manufacturing.

The Information charged Gibson with manufacturing methamphetamine on or about April 3, 2009. Although the evidence suggests that no actual drug production occurred on this day, the State was not required to prove manufacturing occurred on this date. Time is not a material element of this offense, and there was no issue of alibi or fair notice with respect to this date, which was simply the date of the search of Gibson’s home. See Robedeaux v. State, 1995 OK CR 73, ¶ 7-12, 908 P.2d 804, 806-07. The evidence established that methamphetamine was manufactured in Gibson’s home not long before April 3, 2009, and Gibson was properly convicted of this manufacturing. Proposition I is rejected accordingly.

In Proposition II, Gibson asserts that the trial court’s handling of a sentencing question from his jury was illegal, improper, and prejudicial to his sentence. The handling of such questions is governed by 22 O.S.2001, § 894, which requires that the trial court inform the parties regarding the question from the jury and that the answer to the jury be provided in open court, in the presence of the parties, unless the parties agree that the question be answered in another way. The record establishes only that the jury was provided the following answer, which was typed on the same paper as the jury’s question: Jurors: It is not proper for you to consider these matters. Resume deliberations. JUDGE PAGE. Hence the record does not establish that § 894 was properly followed.

This Court has repeatedly recognized that a presumption of prejudice exists in this situation, but also that this presumption can be overcome if this Court is convinced that the defendant was not prejudiced by the trial court’s failure to follow § 894. This Court finds that because the court’s answer was entirely correct, limited in scope, and essentially the same as would have been given had [§ 894] been strictly followed, the presumption of prejudice is overcome in this case. Gibson argues that his jury was looking for reassurance that if it sentenced him to imprisonment for 21 years, he would actually serve 21 years. But any legally correct response to Gibson’s jury could not possibly have provided such reassurance. Hence Gibson was not prejudiced by any failure of the court to comply with § 894. Proposition II is rejected accordingly.

In Proposition III, Gibson challenges the State’s use of two guilty plea summary of facts forms, rather than judgment and sentence documents, to establish his two prior felony convictions on Count I. Gibson had two prior convictions for Unlawful Possession of Marijuana with Intent to Distribute, one in 1994 in Canadian County and one in 1998 in Cotton County. He notes that the plea documents for these convictions list the sentencing ranges at issue (each had a maximum sentence of life) and that the second conviction included a summary of the facts at issue, none of which would have been contained in a simple judgment and sentence document. Gibson also asserts that the plea documents do not establish that his convictions were final. Nevertheless, Gibson raised no objection to the use of these documents to establish his prior convictions, and it was his responsibility to do so.

Nor does Gibson present any evidence (or even argue) that his convictions in these cases were not final; and the time for an appeal is long past. This Court finds that the use of the guilty plea documents to establish Gibson’s prior convictions was not plain error and that he was not prejudiced by the use of these documents in this case. Proposition III is rejected accordingly.

In Proposition IV, Gibson asserts that a reference to his post-arrest silence during Officer Dana Wilson’s testimony violated the Fifth Amendment to the United States Constitution and necessitates a reversal of his conviction. No objection was made to the reference at trial, however, waiving all but plain error. The remark at issue came up during the re-direct testimony of Wilson, after his direct and cross-examination testimony that when Gibson arrived home, he immediately asserted that anything illegal found in the home had been planted there by officers.

Despite the reference by Wilson, the prosecutor made no argument or comment whatsoever regarding Gibson’s post-arrest silence; and it was never mentioned again. This Court finds that although Wilson (a State witness) made a reference to Gibson’s post-arrest silence, it was not in the context of suggesting that this silence should be held against him or seen as consciousness of guilt. Rather, the prosecutor’s question was intended (reasonably enough) to establish that although Gibson immediately accused the police of planting evidence, he did not assert that anything illegal in the home belonged to Terrell, which was the crux of his defense at trial. And the testimony at issue was not even a true comment on Gibson’s post-arrest silence. In the context of Gibson’s entire trial, Wilson’s brief reference to Gibson’s post-Miranda silence did not render the trial unfair, nor does it necessitate the reversal of his convictions. Proposition IV is rejected accordingly.

In Proposition V, Gibson asserts that the prosecutor committed misconduct during his trial, which deprived him of a fair trial and contributed to an excessive sentence. Gibson raises the following claims: (1) the prosecutor improperly invoked societal alarm; (2) the prosecutor misstated facts and argued facts not in evidence; (3) the prosecutor made inappropriate and prejudicial arguments during opening statement; (4) the prosecutor asserted her personal opinion regarding the defendant’s guilt and a witness’s credibility; and (5) the prosecutor improperly attacked defense counsel. This Court must determine whether the challenged actions rendered Gibson’s trial fundamentally unfair, such that the jury’s verdict cannot be relied upon. Almost none of the examples now raised were objected to at trial. Thus we review these challenges only for plain error, separately noting and addressing instances that were met with an objection.

Regarding Gibson’s societal alarm claim, this Court finds that the prosecutor’s opening characterization of methamphetamine as one of the worst poisons ever created by mankind, as well as her closing argument references to methamphetamine as a horrible, raging beast that is trolling the streets of our nation, our state, our country and the war in the streets that we’re fighting against methamphetamine, were all within the wide range of effective advocacy and argument that is permitted at trial. In addition, this Court notes that the prosecutor consistently linked her arguments to the specific facts before the jury regarding Gibson, rather than suggesting that the jury should punish him for larger societal problems or that the jury should send a message to the broader public about their outrage regarding methamphetamine.

This Court finds that the prosecutor’s arguments in this context did not constitute plain error or improperly prejudice Gibson. Regarding Gibson’s claim that the prosecutor misstated facts and argued facts not in evidence, this Court finds that the examples cited by Gibson do not amount to assertions of fact about the evidence presented at trial, but rather are examples of arguing that the jury should make certain inferences from the evidence presented. Hence the examples cited herein do not constitute prosecutorial misconduct.

Regarding the claim that the prosecutor made inappropriate, prejudicial arguments during opening statement, the examples cited were not objected to, were not plain error, and did not constitute prejudicial misconduct. Within his claim that the prosecutor asserted her personal opinion regarding his guilt, Gibson challenges two statements made during the prosecutor’s final, first-stage closing argument. Since neither statement was met with an objection, we review only for plain error. The United States Supreme Court and this Court have repeatedly recognized that it is improper for a prosecutor to express a personal opinion regarding either the defendant’s guilt or the credibility of a witness.

The prosecutor’s statements that Gibson is as guilty as anybody I’ve ever seen and that she personally believes that Wilson was 100% honest are clear examples of a prosecutor improperly injecting her own personal opinion into her argument. Hence these two remarks do constitute improper prosecutorial misconduct and also plain error. Nevertheless, this Court finds that these two remarks, even considered cumulatively, were harmless regarding the jury’s determination of Gibson’s guilt.

In his final assertion of prosecutorial misconduct, Gibson challenges various remarks within the prosecutor’s final closing argument as improper attacks on defense counsel. None of these remarks were challenged at trial, and we review only for plain error. This Court finds that the challenged remarks—criticizing defense counsel’s closing argument as not based upon evidence presented at trial, calling a defense argument ridiculous, warning the jury against getting distracted by the Darren Terrell path, etc.—do not constitute plain error, nor do they constitute prejudicial misconduct. Gibson’s Proposition V prosecutorial misconduct claim is rejected accordingly.

In Proposition VI, Gibson challenges the fact that the trial court informed the jury, during voir dire, that Gibson’s attorney was himself facing criminal charges. Gibson also argues that the voir dire conducted was inadequate to identify jurors who could not be impartial due to this fact. This Court notes that despite Gibson’s summary of this claim, the trial court did not inform the jury that defense counsel had pending charges for embezzlement. This Court also notes that no objection was made to the court’s remarks at trial and that defense counsel’s pending criminal charges were never referenced again. Hence we review only for plain error.

This Court will not find that the voir dire on this issue was inadequate when nothing in the record suggests that the trial court did anything to limit or restrict voir dire in this regard. The transcript records that there was [n]o verbal response by the jury panel. Nevertheless, this Court finds that the remarks of the trial court, standing alone, were ill-advised and created the potential for unfair prejudice. The trial court could (and should) have addressed this issue by questioning the panel regarding exposure to any recent publicity or information regarding defense counsel, and then individually questioning any potential juror who indicated such exposure.

This Court also notes that the trial court’s ultimate question to the panel, whether any potential juror would feel uncomfortable sitting as a juror in this case, knowing of Mr. Clark’s situation was not well-suited to determining the real issue at stake: whether any potential juror could potentially be biased against Gibson, or whether any potential juror might view his case or counsel’s advocacy differently, based upon the fact that defense counsel was also facing criminal charges. This Court finds plain error in this regard.

In Proposition VII, Gibson asserts that in light of all the facts and circumstances of his case, his sentence of imprisonment for Life on Count I is excessive. In Proposition VIII, Gibson asserts that the cumulative effect of the errors made during the trial of his case cannot be considered harmless beyond a reasonable doubt. This Court does not find that a life sentence, in general, is excessive for a conviction of manufacturing methamphetamine after two prior felony convictions.

However, this Court finds that the cumulative effect of the misconduct and error noted herein likely impacted the jury’s determination of his sentence on Count I. Consequently, this Court concludes that Gibson’s sentence on Count I should be modified to imprisonment for 25 years.

DECISION

Frank Leroy Gibson’s CONVICTIONS for Manufacture of Controlled Dangerous Substance (Methamphetamine), AFCF (Count I) and Unlawful Possession of Drug Paraphernalia (Count II) are hereby AFFIRMED. His SENTENCE ON COUNT I, however, is hereby MODIFIED TO IMPRISONMENT FOR 25 YEARS. His SENTENCE ON COUNT II is AFFIRMED, and the sentences will remain concurrent. 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.

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Footnotes:

  1. Gibson was found "not guilty" by the jury at trial of Possession of Controlled Substance (Methamphetamine), which was Count II.
  2. Gibson was ordered to pay costs, fees, and a victim compensation assessment of $250 on both Count I and Count III. Gibson was given credit for time served, and neither of his convictions is subject to the "85% Rule," under 21 O.S. Supp.2007, § 13.1.
  3. Jackson v. Virginia, 443 U.S. 307, 319-20, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original); Spuehler v. State, 1985 OK CR 132, 1 7, 709 P.2d 202, 203-04 (quoting Jackson); see also Easlick v. State, 2004 OK CR 21, I 5, I 15, 90 P.3d 556, 558, 559.
  4. The statute under which Gibson was convicted of manufacturing states: Except as authorized by the Uniform Controlled Dangerous Substances Act, it shall be unlawful for any person to manufacture or attempt to manufacture any controlled dangerous substance or possess any substance listed in Section 2-322 of this title or any substance containing any detectable amount of pseudoephedrine with the intent to use that substance to manufacture a controlled dangerous substance. 63 O.S.Supp.2005, § 2-401(G) (emphasis added).
  5. 2007 OK CR 10, I 6, 155 P.3d at 830.
  6. The Brumfield search did reveal a glass jar of a two-layer liquid solution, which tested positive for methamphetamine. Id. at I 5, 155 P.3d at 829.
  7. Robedeaux U. State, 1995 OK CR 73, 11 7-12, 908 P.2d 804, 806-07.
  8. Grayson v. State, 1984 OK CR 87, 11, 687 P.2d 747, 749.
  9. Smith v. State, 2007 OK CR 16, "I 52, 157 P.3d 1155, 1172.
  10. Donnelly U. 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, 2471, 91 L.Ed.2d 144 (1986); see also Brewer U. State, 2006 OK CR 16, I 13, 133 P.3d 892, 895.
  11. United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985).
  12. Lewis U. State, 1977 OK CR 287, 1 20, 569 P.2d 486, 490.
  13. Stewart v. State, 1988 OK CR 108, 1 21, 757 P.2d 388, 396.
  14. Ahhaitty v. State, 1986 OK CR 28, 1 4, 715 P.2d 82, 84.
  15. Cooper v. State, 1991 OK CR 26, I 16, 806 P.2d 1136, 1139.
  16. Sanchez v. State, 2009 OK CR 31, "I 44, 223 P.3d 980, 997.
  17. Young v. State, 2000 OK CR 17, 11 19-20, 12 P.3d 20, 31-32.
  18. Warner U. State, 2006 OK CR 40, "I 197, 144 P.3d 838, 891.
  19. Ashinsky V. State, 1989 OK CR 59, I 31, 780 P.2d 201, 209.
  20. Bechtel U. State, 1987 OK CR 126, I 12, 738 P.2d 559, 561.

Oklahoma Statutes citations:

  • Okla. Stat. tit. 63 § 2-401(G) (2011) - Manufacture of Controlled Dangerous Substance
  • Okla. Stat. tit. 63 § 2-405 (2011) - Unlawful Possession of Drug Paraphernalia
  • Okla. Stat. tit. 21 § 13.1 (2011) - "85% Rule"
  • Okla. Stat. tit. 22 § 894 (2001) - Jury Handling of Questions
  • Okla. Stat. tit. 22 § 1066 (2001) - Modification of Sentences

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:

  • Brumfield v. State, 2007 OK CR 10, 155 P.3d 826
  • Jackson v. Virginia, 443 U.S. 307, 319-20, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)
  • Spuehler v. State, 1985 OK CR 132, 709 P.2d 202
  • Easlick v. State, 2004 OK CR 21, 90 P.3d 556
  • Robedeaux v. State, 1995 OK CR 73, 908 P.2d 804
  • Grayson v. State, 1984 OK CR 87, 687 P.2d 747
  • Smith v. State, 2007 OK CR 16, 157 P.3d 1155
  • Cooper v. State, 1991 OK CR 26, 806 P.2d 1136
  • Ahhaitty v. State, 1986 OK CR 28, 715 P.2d 82
  • Romano v. State, 1995 OK CR 74, 909 P.2d 92
  • Luna v. State, 1992 OK CR 26, 829 P.2d 69
  • Dodd v. State, 2004 OK CR 31, 100 P.3d 1017
  • Matthews v. State, 2002 OK CR 16, 45 P.3d 907
  • McElmurry v. State, 2002 OK CR 40, 60 P.3d 4
  • Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431
  • Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144
  • Brewer v. State, 2006 OK CR 16, 133 P.3d 892
  • Lewis v. State, 1977 OK CR 287, 569 P.2d 486
  • Stewart v. State, 1988 OK CR 108, 757 P.2d 388
    • >
  • Hogan v. State, 2006 OK CR 19, 139 P.3d 907
  • Sanchez v. State, 2009 OK CR 31, 223 P.3d 980
  • Grant v. State, 2009 OK CR 11, 205 P.3d 1
  • Rojem v. State, 2006 OK CR 7, 130 P.3d 287
  • Harris v. State, 2004 OK CR 1, 84 P.3d 731
  • Ross v. State, 1986 OK CR 49, 717 P.2d 117
  • Bechtel v. State, 1987 OK CR 126, 738 P.2d 559
  • Young v. State, 2000 OK CR 17, 12 P.3d 20

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