Ralph T. Smith, Jr. v The State of Oklahoma

F-2012-08

Filed: Jul. 2, 2013

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Ralph T. Smith, Jr. appealed his conviction for multiple serious crimes, including Kidnapping and First Degree Rape. His conviction and sentence included twenty years for Kidnapping, life in prison without possibility of parole for Rape, and other sentences totaling up to a lengthy imprisonment. Judge Johnson wrote the opinion, while judges Lewis and Smith concurred.

Decision

The Judgment of the district court is AFFIRMED. Smith's Sentence on Count I is MODIFIED to ten years imprisonment and his Sentences on Counts III, IV and V are MODIFIED to remove the imposition of post-imprisonment supervision. The Clerk shall return all copies of Smith's pro se briefs to him as not accepted for filing.

Issues

• Was there a violation of the speedy trial provisions of the Interstate Agreement on Detainers Act (IADA)?
• Did the trial court err in instructing the jury on the punishment range for kidnapping?
• Was there plain error in jury instructions allowing for post-imprisonment supervision for certain counts?
• Was there ineffective assistance of trial counsel due to failure to object to instructional errors?
• Did prosecutorial misconduct deprive the defendant of a fair trial?
• Was there jurisdiction to prosecute Counts III (Attempted Rape) and IV (Forcible Sodomy) in Tulsa County?
• Was the pro se supplemental brief properly considered and accepted?

Findings

• the court did not err in denying the motion to dismiss based on the Interstate Agreement on Detainers Act
• the court erred in instructing the jury on the punishment range for kidnapping, and sentence on Count I is modified to ten years imprisonment
• the court erred in allowing post-imprisonment supervision on Counts III, IV, and V; sentences on those counts are modified to exclude post-imprisonment supervision
• Smith was not denied effective assistance of counsel as the ineffective counsel claims were remedied by the modifications of sentences
• the prosecutorial misconduct did not deprive Smith of a fair trial and did not affect the jury's finding of guilt or assessment of punishment
• the court did not err in jurisdiction regarding Counts III and IV as the acts in question were part of a series of crimes committed in multiple counties
• Smith's pro se supplemental brief was not accepted for filing due to non-compliance with court rules

F-2012-08

Jul. 2, 2013

Ralph T. Smith, Jr.

Appellant

v

The State of Oklahoma

Appellee

SUMMARY OPINION

C. JOHNSON, JUDGE: Appellant, Ralph T. Smith, Jr., was convicted by a jury in the District Court of Tulsa County, Case No. CF-2007-1722, of Kidnapping (Count I), First Degree Robbery (Count II), Attempted Rape – First Degree (Count III), Forcible Sodomy (Count IV), First Degree Rape (Count V) and Unlawful Possession of a Controlled Drug (Count VI). The jury assessed punishment at twenty years imprisonment on each of Counts I, II and IV, thirty-five years imprisonment on Count III, life in prison without the possibility of parole on Count V and five years imprisonment on Count VI. The trial court sentenced Smith in accordance with the jury’s recommendation and ordered that the sentences be served consecutively. From this Judgment and Sentence Smith has filed a timely appeal to this Court.

FACTS

Around 1:00 or 2:00 p.m. on March 28, 2007, seventy-six year old R.C. took her ninety-eight year old friend to the Creek Casino in Tulsa where they both played the slot machines. While there, R.C. sat down to play a slot machine that was next to one Smith was playing. After a while, Smith told R.C. he needed to use the restroom and he asked her to watch his machine while he was gone. R.C. did this for Smith who left to go play another slot machine shortly after he returned from the restroom. R.C. and her friend changed slot machines a while later and when they moved, R.C. sat near Smith again. After R.C. lost most of her money, Smith reached over and put a hundred dollars in her machine. She told him that she had money and that he didn’t need to put money in her machine but Smith told her to go ahead and play it. When R.C. had played about fifty dollars, she won a thousand dollars. She cashed the ticket and gave Smith half of the winnings. As they visited, Smith told R.C. that he needed to go to Catoosa but his friends had taken his truck so he was going to have to get a taxi to take him. R.C. told him that she drove through Catoosa on her way to her home in Inola and she offered to give him a ride to Catoosa so he wouldn’t have to pay a taxi. R.C. said that she needed to take her friend home first and fix her some supper but she agreed to drive back to the casino when she was finished to pick up Smith and give him a ride to Catoosa. After R.C. picked up Smith at the casino they drove toward Catoosa. As R.C. started to pull over at Catoosa, Smith grabbed her arm and twisted it. He told her that she couldn’t stop and he couldn’t get out because they were after him. She became frightened and offered to let Smith take her car but he wouldn’t let her get out. Smith took out a pipe and began to smoke some white stuff. R.C. drove on toward Inola where Smith told her to take him to her house. She drove around until she couldn’t think of anything else to do and then she finally drove to her house. When they got to her house, Smith walked around making sure that no one else was there. He then took R.C. upstairs, smoked some more of the white stuff and forced her to undress. Smith tried to rape her vaginally but was unable to penetrate her so he forced her to orally sodomize him and he ejaculated in her mouth. After this sexual assault, Smith forced R.C. back into her car and he drove her to Tulsa. He took the money out of her purse and used her cell phone to make a call. He then drove around the north side of Tulsa until he stopped by the side of a gas station. As they sat in the car, a man drove up beside them, stopped and got into the back seat of their car. Smith gave the man some money and the man gave him a pouch containing a white substance that looked like the white stuff R.C. had seen Smith smoke earlier. When the man left, Smith drove the car into an alley across from the gas station and smoked the substance he had purchased. He told R.C. that he was going to take her to a motel, get a room and lock her in the bathroom and leave. He drove to a motel in Tulsa and they both went into the office where Smith got them a room. Smith had told her to keep quiet and not cause any trouble so R.C. did not alert the desk clerk that she was not there willingly because she was afraid Smith would hurt her and the clerk as Smith was really drugged up. Once in the room, Smith attempted to rape R.C. again. When he was unsuccessful, he went through her things, found a suppository she carried in her bag with her nursing supplies and inserted it in her vagina. He was then able to penetrate her. When he was finished, Smith allowed R.C. to use the bathroom where she wiped herself with a washrag. When she came back into the room, Smith was agitated because he thought she had called 911 for help. He took R.C.’s credit cards and cell phone and left in her car. When Smith was gone, R.C. called her grandson who was an Oklahoma Highway Patrolman. He was not at home but she spoke with his wife and told her what had happened. R.C. next called the front desk at the motel and told the clerk what had happened. The clerk called the police. R.C.’s grandson was first to arrive at the scene and the ambulance arrived shortly thereafter. R.C. was taken to the rape center at Hillcrest Hospital where she was examined by a nurse. R.C.’s arms were bruised and her genitalia were torn and swollen. After she left the hospital her grandson took her to the police station where they took her statement. A subsequent search of the motel room revealed that the contents of R.C.’s purse and medical bag were strewn about the room. A plastic baggie containing what was later determined to be cocaine base was also found on the floor in the room. The washcloth R.C. used to wipe herself after the assault was found in the bathroom and submitted for DNA testing. The DNA profile obtained from sperm found on the cloth was consistent with Smith’s DNA profile.

PROPOSITIONS

1. Interstate Agreement on Detainers Act

In his first proposition Smith argues that the trial court erred in not dismissing the case with prejudice due to violation of the speedy trial provisions of the Interstate Agreement on Detainers Act (IADA). He specifically asserts that the State failed to bring him to trial within 180 days of his written notice to the Tulsa County prosecutor and the Tulsa County District Court of his request for final disposition of this case pursuant to Article III of the Interstate Agreement on Detainers Act. 22 O.S.2011, § 1347. The record reflects that Smith filed a motion below to dismiss the charges against him for lack of speedy trial under the IADA. A hearing was held on this motion and Smith’s request was denied. Smith asserts on appeal that this ruling was in error. This Court will conduct a de novo review of the trial court’s application of the IADA to the present case.

The IADA is a uniform act adopted to encourage the expeditious and orderly disposition of untried charges pending against prisoners in other states. Ullery v. State, 1999 OK CR 36, I 8, 988 P.2d 332, 340; 22 O.S.2011, § 1347, Art. I. When, as in the present case, a defendant requests a final disposition of retainer the time limit within which to try the defendant is 180 days from the date of receipt of the prisoner’s request. 22 O.S.2011, § 1347, Art. III. The IADA provides two exceptions to this speedy trial requirement. Article III(a) provides that the trial time period is subject to any necessary or reasonable continuance based upon good cause which is shown in open court when the prisoner or his counsel is present and Article VI(a) tolls the time period when the prisoner is unable to stand trial, as determined by the court having jurisdiction over the matter.

The record indicates that at the time Smith requested transfer to the State of Oklahoma to dispose of his Tulsa cases he was incarcerated at Missouri Department of Corrections Western Regional Diagnostic Center but he only remained there for about a month before he was writted back to Jasper County for resentencing on a Missouri robbery conviction he had appealed. On November 10, 2010, Tulsa County received notice that the pending action involving Smith was resolved and he was turned over to Tulsa County officials on November 16, 2010. This Court finds that the time Smith spent at Fulton State Hospital for mental health evaluation and time that he spent at Jasper County awaiting resentencing as a result of his appeal of his robbery conviction tolled the 180 day time limit for his return to Oklahoma to stand trial on his Tulsa County charges. There was no violation of the speedy trial provisions of the Interstate Agreement on Detainers Act and Smith’s argument requires no relief.

2. Sentencing Instructions

In his second proposition Smith asserts that the trial court erred in instructing the jury that the punishment range for the offense of kidnapping without a previous conviction was up to twenty years imprisonment because the actual punishment range provided for by statute at the time Smith committed this crime was for a term of imprisonment not exceeding ten years. As Smith did not object to the instruction given by the trial court we review only for plain error. Under plain error review, we grant relief only if we conclude that the error was not harmless or that the error constitutes a miscarriage of justice or a substantial violation of a constitutional or statutory right.

In this instance, the erroneous instruction allowed the jury to sentence Smith to a term of imprisonment ten years above the maximum sentence allowed by statute. The State concedes that Appellant’s sentence was beyond the statutorily prescribed range of punishment, and suggests this Court modify the sentence to the maximum allowed by statute. We agree and modify Appellant’s sentence in Count I to ten years imprisonment.

Smith argues in his third proposition that the trial court erred in giving the jury an instruction allowing them to impose post-imprisonment supervision on Count III (Attempted Rape, First Degree), Count IV (Forcible Sodomy) and Count V (First Degree Rape) because post-imprisonment supervision was not part of the punishment scheme allowed by statute at the time that the crimes were committed. Although this instruction was not objected to at trial, we find that it was plain error and not harmless as it led to the imposition of an unlawful punishment. Again, the State concedes this error. Accordingly, Smith’s sentences on Counts III, IV and V must be modified to exclude the imposition of post-imprisonment supervision.

3. Ineffective Assistance of Trial Counsel

In his fourth proposition Smith argues that he was denied his constitutional right to the effective assistance of counsel. This Court reviews claims of ineffective assistance of counsel under the two-part Strickland test that requires an appellant to show: (1) that counsel’s performance was constitutionally deficient; and (2) that counsel’s performance prejudiced the defense, depriving the appellant of a fair trial with a reliable result. Smith specifically argues that he was denied his constitutional right to the effective assistance of counsel by trial counsel’s failure to object to the instructional errors raised in Propositions II and III. As noted above, the instructional errors require modification of Smith’s sentences and accordingly, although counsel was ineffective for failing to object to the instructions given or request proper instructions, this error has been remedied.

4. Prosecutorial Misconduct

In Proposition V, Smith argues that prosecutorial misconduct deprived him of a fair trial. In second stage closing argument the prosecutor told the jury that they should seek justice and impose a very lengthy sentence upon Smith. He said, You can tell him how long your sentence should be. Start at 28 trillion. Instead of objecting to this argument at this point, defense counsel addressed it directly in his closing argument stating: I would suggest to you that that’s nothing but vengeance. Let’s get back to where we are… It’s about what the law allows in this case and what is proper. The prosecutor pursued the same line of argument again in his final closing. When defense counsel objected arguing that the requested sentence was not only bizarre and improper, the prosecutor interrupted saying that he was finished and the objection was not ruled upon.

Given the magnitude of the State’s evidence against Smith and the severity of the crimes committed, we find that the inappropriate argument did not deprive Smith of a fair trial or affect the jury’s finding of guilt or assessment of punishment.

5. Jurisdiction

Smith argues in Proposition VI that the district court erred in failing to dismiss Counts III (Attempted Rape) and IV (Forcible Sodomy) for lack of jurisdiction because the acts which formed the basis for these counts occurred in Rogers County at R.C.’s home rather than in Tulsa County where the charges were tried. The record reflects that Smith kidnapped R.C. in Tulsa County, forced her to drive to her home in Rogers County where he forced her to sodomize him and attempted to rape her before he forced her to go with him back to a motel in Tulsa County where he robbed and raped her. The decision to try Smith in Tulsa County for each of the crimes committed upon R.C. was not in error.

6. Pro Se Supplemental Brief

In addition to the brief submitted by his appellate counsel, Smith also tendered a pro se brief in which he raised eight issues and, in a request to exceed the page limitation on his pro se supplemental brief, one additional proposition. Having reviewed the proffered pro se brief, we find that our permission for Smith to file the supplemental pro se brief was improvidently granted.

Having found that appellate counsel’s request to file pro se supplemental brief was not made in adequate compliance with this Court’s rules and that in numerous regards the pro se supplemental brief itself falls short of what is required, Smith’s tendered pro se supplemental brief is not accepted for filing.

DECISION

The Judgment of the district court is AFFIRMED. Smith’s Sentence on Count I is MODIFIED to ten years imprisonment and his Sentences on Counts III, IV and V are MODIFIED to remove the imposition of post-imprisonment supervision. The Clerk shall return all copies of Smith’s pro se briefs to him as not accepted for filing.

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Footnotes:

1. R.C.'s vagina had been sewn partially closed after a vaginal hysterectomy.
2. R.C. was a registered nurse and carried some supplies with her in a bag.
3. 22 O.S.2011, § 1347.
4. 21 O.S.Supp.2006 § 741.
5. 21 O.S.Supp.2007, § 888 (imposing post-imprisonment supervision for forcible sodomy with November 1, 2007, effective date); 21 O.S.Supp.2007, § 1115 (imposing post-imprisonment supervision for rape with November 1, 2007, effective date).
6. Cummings v. State, 1998 OK CR 45, ¶ 26, 968 P.2d 821, 831-832, quoting Parker v. State, 1996 OK CR 19, ¶ 21, 917 P.2d 980, 985.
7. Richie v. State, 1995 OK CR 67, ¶ 14, 908 P.2d 268, 274.
8. Sheldon v. State, 1990 OK CR 34, ¶ 9, 793 P.2d 866, 871.
9. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Davis v. State, 2005 OK CR 21, ¶ 7, 123 P.3d 243, 246.
10. Head v. State, 2006 OK CR 44, ¶ 23, 146 P.3d 1141, 1148.

Oklahoma Statutes citations:

• Okla. Stat. tit. 22 § 1347 (2011) - Interstate Agreement on Detainers Act
• Okla. Stat. tit. 21 § 741 (Supp. 2006) - Kidnapping
• Okla. Stat. tit. 21 § 888 (Supp. 2007) - Post-imprisonment supervision for forcible sodomy
• Okla. Stat. tit. 21 § 1115 (Supp. 2007) - Post-imprisonment supervision for rape
• Okla. Stat. tit. 22 § 124 (2011) - Jurisdiction in criminal cases

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:

• State v. Davis, 2011 OK CR 22, 260 P.3d 194
• Ullery v. State, 1999 OK CR 36, 988 P.2d 332
• Gallimore v. State, 1997 OK CR 46, 944 P.2d 939
• State v. Pair, 5 A.3d 1090, 416 Md. 157 (2010)
• U.S. v. Ellerbe, 372 F.3d 462 (C.A.D.C. 2004)
• Scott v. State, 1991 OK CR 31, 808 P.2d 73
• Hogan v. State, 2006 OK CR 19, 139 P.3d 907
• Logsdon v. State, 2010 OK CR 7, 231 P.3d 1156
• Andrew v. State, 2007 OK CR 23, 164 P.3d 176
• Cummings v. State, 1998 OK CR 45, 968 P.2d 821
• Parker v. State, 1996 OK CR 19, 917 P.2d 980
• Richie v. State, 1995 OK CR 67, 908 P.2d 268
• Sheldon v. State, 1990 OK CR 34, 793 P.2d 866
• Williams v. State, 2008 OK CR 19, 188 P.3d 208