Kevin Maurice Brown v The State Of Oklahoma

F-2011-407

Filed: Apr. 29, 2013

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Kevin Maurice Brown appealed his conviction for robbery and firearm possession. The court affirmed his convictions for robbery but reversed one count of firearm possession. Conviction and sentence of life imprisonment for several robberies and fines totaling $72,000 were upheld. Judge Lumpkin dissented.

Decision

The Judgment and Sentence of the district court is AFFIRMED on Counts 1, 2, 3, 4, 6, 7, 8, and 10. The Judgment and Sentence on Count 9 is REVERSED. This Court's Order of January 18, 2012, granting Brown's Request to File Pro Se Supplemental Brief is VACATED as improvidently granted, and the request is now DENIED. The Clerk shall return all copies of Brown's pro se briefs, tendered on January 5, 2012, to him as not accepted for filing. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2013), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Issues

• was there error in imposing punishment on both Counts 3 and 9 for possessing the same firearm as a prior convicted felon?
• did the appellant receive ineffective assistance of counsel?
• is the sentence excessive and does it violate constitutional prohibitions against cruel and unusual punishment?

Findings

• the court erred in imposing punishment on both Counts 3 and 9 for possessing the same firearm as a prior convicted felon
• this issue regarding ineffective assistance of counsel is moot
• the sentence is not excessive
• the pro se supplemental brief is not accepted for filing

F-2011-407

Apr. 29, 2013

Kevin Maurice Brown

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

KEVIN MAURICE BROWN, ) ) Appellant, ) V. ) CASE NO. F-2011-407 ) ) THE STATE OF OKLAHOMA, ) Appellee. )

Appellant Kevin Maurice Brown was tried by jury and convicted of five counts of Robbery with a Firearm (Counts 1, 2, 6, 7, and 8), in violation of 21 O.S.2001, § 801; two counts of Possession of a Firearm, after former conviction of a felony (Counts 3 and 9), in violation of 21 O.S.Supp.2009, § 1283; one count of First Degree Robbery (Count 4), in violation of 21 O.S.2001, § 798; and one count of Attempting to Elude a Police Officer (Count 10), in violation of 21 O.S.2001, § 540A, all after former conviction of two or more felonies, in the District Court of Tulsa County, Case No. CF-2010-1191. The jury fixed punishment at life imprisonment and payment of a $10,000.00 fine on Counts 1, 2, 4, 6, 7, and 8, and life imprisonment and payment of a $5,000.00 fine in Counts 3 and 9. In Count 10, the jury set punishment as one year imprisonment and payment of a $2,000.00 fine. The Honorable Bill Musseman, who presided at trial, sentenced Brown according to the jury’s verdict and directed that all sentences run consecutively. From this Judgment and Sentence, Brown appeals, raising the following issues: (1) whether it was error for the trial court to impose punishment on both Counts 3 and 9 for possessing the same firearm as a prior convicted felon; (2) whether he was deprived of the effective assistance of counsel; and (3) whether his sentence is excessive. In addition to these issues raised by his appellate attorney, Brown has tendered a pro se brief in which he attempts to present additional issues. For the reasons set out below, we do not consider the issues presented in the proffered supplemental brief. Otherwise, we affirm the Judgment and Sentence of the District Court on all counts except Count 9, which we reverse.

FACTS

Six businesses were robbed in Tulsa between February 13 and March 17 of 2010. The businesses included a Kum N Go convenience store, a Wal-Mart, a Bank of Oklahoma branch located in a Food Pyramid grocery store, a La Quinta Inn, and two Check N Go payday loan offices. Employees of these different businesses identified Brown in pre-trial photo lineups and at trial. On March 12th, during one of the Check N Go robberies, Brown presented a note demanding money. The note was written on the front of a loan application that was dated and signed Kevin Brown on the back. Employees from each of the different businesses, except the Bank of Oklahoma, testified that Brown had a silver or chrome handgun. One Check N Go employee described the handgun as silver or chrome, possibly with a wood grained butt. On March 31, Detective Eric Spradlin had an arrest warrant for Brown. At approximately 5:00 p.m., Spradlin saw Brown driving on a highway near Brown’s mother’s home. Spradlin pursued Brown and was joined in the pursuit by Sergeant Luke Sherman. Both officers activated their vehicles’ emergency lights and sirens. Brown eventually stopped his car and was taken into custody around 5:46 p.m. During the chase, Sergeant Sherman saw Brown throw a chrome object out of the driver’s side window of his car. Sherman continued the pursuit without stopping but reported the object’s location on the police radio. Corporal Darin Filak responded to the location and found a silver gun on the sidewalk. Detective Demeta Kinard joined Filak and recovered the gun.

DISCUSSION

1. Double Punishment

Brown claims that his convictions on Counts 3 and 9 for possessing a firearm as a prior convicted felon violate the double jeopardy provisions of the United States and Oklahoma Constitutions. Brown did not raise this claim at trial. The claim is therefore waived and reviewed only for plain error. Brown argues that the two separate firearm possession counts are based on his continuous possession of the same firearm, and therefore, the counts are multiplicitous and, as such, violate double jeopardy principles. The State contends, on the other hand, that because the firearm used in the robberies was never recovered or identified as the gun recovered by police, Brown was properly charged and convicted of two separate counts of being a felon in possession of a firearm.

According to the State, the record demonstrates that only one firearm was specifically recovered and identified, and that firearm formed the basis for the charge in Count 9. The State further asserts that the firearm which formed the basis of the charge in Count 3 was never recovered or identified, but the evidence clearly showed that Brown used a gun to accomplish the robberies. The State’s argument is correct as far as it goes. It is true that only one firearm was recovered and identified, and it is true that the evidence clearly showed that Brown used a gun to commit the robberies. The State ignores, however, the fact that witness descriptions of the firearm possessed by Brown during the robberies also described the firearm that was later recovered and identified by police as the one they saw Brown throw out his car window.

Specifically, one employee who was robbed at Check N Go saw a handgun in Brown’s pocket and described what she saw as the [B]utt end of a pistol. It was chrome. There may have been some wood grain on it. Another Check N Go employee described the gun as chrome or silver. An employee who was robbed at the Kum N Go convenience store described Brown’s gun as a little silver handgun, and an employee who was robbed at the La Quinta Inn described the weapon as a small chrome pistol, a very little handgun. Finally, the employee who was robbed in the Wal-Mart robbery described the gun as kind of chrome, a little like silver. The State introduced as evidence the handgun that Brown threw from his car on March 31st as well as a photograph of the handgun on the sidewalk where it was found. This evidence showed the handgun to be a small chrome-silver pistol with a wood grain grip.

When the descriptions of the handgun used in the February 13th – March 17th robberies are compared to the handgun recovered by police on March 31st, it is obvious that the robbery victims were very likely describing the same handgun that police recovered. In Hancock v. State, this Court held that being a felon in possession of a firearm is a continuing course of conduct, not a discrete act, and as such, double jeopardy principles prohibit charging such an offense as multiple crimes occurring at discrete moments in time. Therefore, the Hancock court reasoned that a felon’s possession and control of a particular firearm over a period of time precludes multiple convictions for felonious possession of that firearm unless the State proves beyond a reasonable doubt that the defendant’s possession was not continuous. Here, the evidence showed that the handgun used in the robberies that formed the basis for the felon-in-possession charge in Count 3, was very likely the same handgun recovered by police that formed the basis for the felon-in-possession charge of Count 9.

Under these circumstances then, according to Hancock, the State carried the burden of producing evidence showing beyond a reasonable doubt that Brown’s possession of that handgun was not continuous. The State produced no such evidence. Indeed, the prosecutor argued just the opposite in closing. That is, the prosecutor argued that the handgun Officer Filak found on March 31, 2010, the handgun alleged in Count 9, was the same gun described by the various robbery victims, the handgun alleged in Count 3. On this record, it is obvious that Brown was convicted and sentenced in Counts 3 and 9 for possession of the same handgun, and the evidence did not show that the possession was discontinuous. Counts 3 and 9 were therefore multiplicitous, and multiplicitous convictions and sentences violate double jeopardy.

Because the double punishment in this instance was obvious error, and because Brown was obviously prejudiced by the error (i.e., punished twice for the same crime), we find that the error constitutes reversible plain error. With jeopardy plainly having attached with the conviction on Count 3, the first charged count, and the second conviction and sentence being plain error as impermissible double punishment, we reverse the second conviction, Count 9.

2. Ineffective Assistance of Counsel

Brown claims that he was denied the effective assistance of counsel for trial counsel’s failure to move that either Count 3 or Count 9 be stricken as multiplicitous. According to Brown, trial counsel’s failure to challenge the multiplicity of Counts 3 and 9 compromised his rights to be free from double jeopardy and allowed him to be punished twice for the same continuing criminal act. Because we find that the convictions and sentences on Counts 3 and 9 are multiplicitous, and reverse the conviction on Count 9, this issue is moot.

3. Excessive Sentence

Brown claims his sentence is excessive and as such violates the Eighth Amendment to the United States Constitution and Article II, Section 9 of the Oklahoma Constitution, both of which prohibit cruel and unusual punishment. The jury returned life sentences on each of the six robbery counts and a $10,000 fine for each. The jury returned life sentences on both firearms counts and imposed a $5,000 fine for each. On the misdemeanor count of eluding a police officer, the jury returned a sentence of one year imprisonment and a $2,000 fine. The trial court judge imposed the sentences set by the jury and directed that all the sentences be served consecutively. Thus, Brown was sentenced to eight consecutive life sentences, a one-year sentence, and a total fine of $72,000.

According to Brown, these sentences are cruel and unusual punishment as disproportionate to the crimes because they are the functional equivalent of life without parole. Brown argues specifically that because no one was physically injured during the six robberies he committed, the maximum statutory sentence he received on each count was not proportional to the offense. In Rea v. State, this Court expressly rejected proportionality review as the standard for evaluating excessive sentence claims and retained the shocks-the-conscience standard. Under this standard, we will not modify a sentence within the statutory range unless, considering all the circumstances, it shocks the conscience of this Court. Here, there is no dispute that each of Brown’s individual sentences are within their applicable statutory ranges.

Furthermore, five of the six robberies Brown was convicted of in this case were very serious offenses: i.e., robberies with a firearm. And Brown has eight prior felony convictions, one of which was for injuring a child and another was for robbery with a firearm. Given Brown’s extensive criminal history as well as the seriousness of the crimes of conviction in the instant case, we do not find Brown’s individual sentences, nor his total sentence, shocking to the conscience of this Court.

4. Pro Se Supplemental Brief

In addition to the brief submitted by his appellate attorney, Brown has also tendered a pro se brief in which he raises the following issues: (1) the State failed to disclose exculpatory evidence that the Tulsa police investigators involved in his case were the subject of a corruption investigation; and (2) the trial court erred by sealing the record of the discovery hearing and that trial counsel’s failure to object to the sealing constituted ineffective assistance of counsel.

Having reviewed the proffered pro se brief and having again reviewed Appellate Counsel’s request to file that brief, we find that our permission for Brown to file the supplemental pro se brief was improvidently granted. Brown’s tendered pro se supplemental brief is not accepted for filing. The Clerk will return all copies of the tendered brief to Brown.

DECISION

The Judgment and Sentence of the district court is AFFIRMED on Counts 1, 2, 3, 4, 6, 7, 8, and 10. The Judgment and Sentence on Count 9 is REVERSED.

This Court’s Order of January 18, 2012, granting Brown’s Request to File Pro Se Supplemental Brief is VACATED as improvidently granted, and the request is now DENIED. The Clerk shall return all copies of Brown’s pro se briefs, tendered on January 5, 2012, to him as not accepted for filing. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2013), the MANDATE is ORDERED issued upon delivery and filing of this decision.

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Footnotes:

1. Okla. Stat. tit. 21 § 801
2. Okla. Stat. tit. 21 § 1283
3. Okla. Stat. tit. 21 § 798
4. Okla. Stat. tit. 21 § 540A
5. Okla. Stat. tit. 21 § 13.1
6. Hancock v. State, 2007 OK CR 9, 155 P.3d 796
7. Wimberly v. State, 1985 OK CR 37, 698 P.2d 27
8. Johnson v. State, 1980 OK CR 45, 611 P.2d 1137
9. Rea v. State, 2001 OK CR 28, 34 P.3d 148
10. Simmons v. State, 899 P.2d 931 (Alaska Ct.App. 1995)
11. Rutledge v. United States, 517 U.S. 292 (1996)

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 801 (2001) - Robbery with a Firearm
• Okla. Stat. tit. 21 § 1283 (Supp. 2009) - Possession of a Firearm after Former Conviction of a Felony
• Okla. Stat. tit. 21 § 798 (2001) - First Degree Robbery
• Okla. Stat. tit. 21 § 540A (2001) - Attempting to Elude a Police Officer
• Okla. Stat. tit. 21 § 13.1 (Supp. 2011) - Parole Eligibility
• Okla. Stat. tit. 21 § 701.8 (2011) - 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:

• Barnard v. State, 2012 OK CR 15, 1 25, 290 P.3d 759, 767
• Head v. State, 2006 OK CR 44, I 9, 146 P.3d 1141, 1144
• Hancock v. State, 2007 OK CR 9, 11 115-117, 155 P.3d 796, 823
• Simmons v. State, 899 P.2d 931, 936 (Alaska Ct.App. 1995)
• Wimberly v. State, 1985 OK CR 37, q10, 698 P.2d 27, 31
• Johnson v. State, 1980 OK CR 45, q15, 611 P.2d 1137, 1141
• Rutledge v. United States, 517 U.S. 292, 301-302, 307, 116 S.Ct. 1241, 1247-1248, 1250-1251, 134 L.Ed.2d 419 (1996)
• Hogan v. State, 2006 OK CR 27, I 38, 139 P.3d 907, 923
• Rea v. State, 2001 OK CR 28, 1 5, 34 P.3d 148, 149
• Maxwell v. State, 1989 OK CR 22, I 12, 775 P.2d 818, 820
• Lott v. State, 2004 OK CR 27, I 169, 98 P.3d 318, 58
• Armstrong v. State, 1991 OK CR 34, 9 24, 811 P.2d 593, 599
• United States v. Johnson, 130 F.3d 1420, 1424 (10th Cir. 1997)
• United States v. Morris, 247 F.3d 1080, 1083 n.2 (10th Cir. 2001)