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F-2016-1094

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Robert Lawrence Long v The State Of Oklahoma

F-2016-1094

Filed: Mar. 29, 2018

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Robert Lawrence Long appealed his conviction for First Degree Felony Murder and Possession of a Firearm After Conviction of a Felony. His conviction led to a life sentence for the murder and eighteen years for the firearm charge, with the sentences served one after the other. A judge dissented on some points, but the majority upheld the convictions. The court found that there was enough evidence to support the jury's decision that Long had intended to commit robbery, even if he didn't successfully take anything. Long raised many arguments, but the court denied most of them, including claims about biased jury selection and ineffective legal help. They did, however, cancel a small fee related to one of the charges. Ultimately, the court decided to keep Long's convictions intact.

Decision

Appellant's request for an evidentiary hearing on Sixth Amendment claims is DENIED. Costs imposed on Count 2 are VACATED. In all other respects, the Judgment and Sentence of the District Court of Comanche County is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2018), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

  • Was the state's evidence legally insufficient to prove all the elements of attempted robbery with a dangerous weapon, therefore impacting the conviction for first-degree felony murder?
  • Did the trial court err in refusing the jury's not guilty verdict for attempted robbery and in instructing the jury in a way that directed it to find the appellant guilty of felony murder and attempted robbery?
  • Must the conviction and sentence for attempted robbery with a dangerous weapon be vacated due to it serving as the underlying felony for the felony murder conviction, in violation of constitutional protections?
  • Was the appellant denied an impartial jury due to the state's pattern of discrimination in using peremptory challenges against African-American jurors?
  • Did the trial court abuse its discretion by failing to suppress statements made by the appellant during custodial interrogation without proper Miranda warnings?
  • Did the state's failure to disclose exculpatory evidence regarding the initial suspect's physical characteristics violate the appellant's right to due process and a fair trial?
  • Did the introduction of a ballistics report related to another crime violate the appellant's constitutional rights to a fair trial and due process of law?
  • Was the appellant denied a fair trial because the trial court failed to provide mandatory instructions on other crimes evidence?
  • Was there a violation of the appellant's right to effective assistance of counsel?
  • Did the cumulative effect of the errors deprive the appellant of a fair trial?

Findings

  • the evidence supported the jury's conclusion that robbery was intended
  • the trial court erred in asking the jury to reconsider its "Not Guilty" verdict
  • Mr. Long's conviction and sentence for Count 2 is deemed not to have occurred
  • the trial court did not err in the jury selection process and denied the claim of racial bias
  • the trial court erred in admitting Appellant's statements made during custodial interrogation, but the error was harmless
  • the State's failure to preserve evidence did not violate due process rights
  • no error was found in admitting references to firearms and bullets unrelated to the charges
  • trial counsel was not ineffective, and the request for an evidentiary hearing was denied
  • there was no cumulative effect of errors that warranted relief
  • court costs imposed on Count 2 are vacated
  • the judgment and sentence of the District Court of Comanche County is affirmed

F-2016-1094

Mar. 29, 2018

Robert Lawrence Long

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

KUEHN, JUDGE: Appellant, Robert Lawrence Long, was convicted by a jury in Comanche County District Court, Case No. CF-2014-608, of Count 1: First Degree Felony Murder (21 O.S. Supp. 2012, § 701.7) and Count 3: Possession of a Firearm After Conviction of a Felony (21 O.S. Supp. 2012, § 1283(A)), both After Conviction of Two or More Felonies. 1 On November 29, 2016, the Honorable Gerald Neuwirth, District Judge, sentenced him in accordance with the jury’s recommendation to life imprisonment on Count 1, and eighteen years imprisonment on Count 3. The sentences are to be served consecutively, and Appellant must serve 85% of the sentence on Count 1 before parole eligibility. 21 O.S. 2011, § 13.1(1).

Appellant raises ten propositions of error in support of his appeal:

PROPOSITION I. THE STATE’S EVIDENCE WAS LEGALLY INSUFFICIENT TO PROVE ALL THE ELEMENTS OF ATTEMPTED ROBBERY WITH A DANGEROUS WEAPON AND, THEREFORE, ALSO INSUFFICIENT TO SUPPORT MR. LONG’S CONVICTION FOR FIRST DEGREE FELONY MURDER BASED ON THAT UNDERLYING FELONY. ACCORDINGLY, MR. LONG’S CONVICTIONS AND SENTENCES SHOULD BE VACATED.

PROPOSITION II. THE TRIAL COURT ERRED IN REFUSING THE JURY’S NOT GUILTY VERDICT FOR ATTEMPTED ROBBERY AND INSTRUCTING THE JURY IN A WAY THAT DIRECTED THE JURY TO FIND MR. LONG GUILTY OF FELONY MURDER AND ATTEMPTED ROBBERY.

PROPOSITION III. MR. LONG’S CONVICTION AND SENTENCE FOR COUNT II, ATTEMPTED ROBBERY WITH A DANGEROUS WEAPON, MUST BE VACATED BECAUSE THE SAME CHARGE SERVED AS THE UNDERLYING FELONY FOR HIS CONVICTION OF FELONY MURDER, IN VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE II, § 21 OF THE OKLAHOMA CONSTITUTION.

PROPOSITION IV. MR. LONG WAS DENIED AN IMPARTIAL JURY COMPOSED OF A FAIR CROSS SECTION OF THE COMMUNITY AND EQUAL PROTECTION OF THE LAW IN VIOLATION OF THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE II, §§ 7, 19, AND 20 OF THE OKLAHOMA CONSTITUTION BECAUSE THE STATE ENGAGED IN A PATTERN OF DISCRIMINATION AND EXERCISED PEREMPTORY CHALLENGES AGAINST FOUR AFRICAN-AMERICAN JURORS WITHOUT SETTING FORTH SUFFICIENTLY RACE-NEUTRAL REASONS FOR THE CHALLENGES.

PROPOSITION V. THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO SUPPRESS STATEMENTS MADE BY MR. LONG DURING A CUSTODIAL INTERROGATION, AS HE HAD NOT BEEN ADVISED OF HIS RIGHTS UNDER MIRANDA, WHICH VIOLATED HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL UNDER THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND ARTICLE II, §§ 7 & 20 OF THE OKLAHOMA CONSTITUTION.

PROPOSITION VI. THE STATE’S FAILURE TO DISCLOSE EXCULPATORY EVIDENCE REGARDING PHYSICAL CHARACTERISTICS OF ITS INITIAL SUSPECT IN MR. ALLEN’S MURDER VIOLATED MR. LONG’S RIGHT TO DUE PROCESS AND A FAIR TRIAL.

PROPOSITION VII. THE INTRODUCTION OF STATE’S EXHIBIT 82, AN OSBI BALLISTICS REPORT REFERENCING EVIDENCE COLLECTED FROM ANOTHER CRIME NOT PRESENTED DURING MR. LONG’S TRIAL, VIOLATED MR. LONG’S CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND DUE PROCESS OF LAW.

PROPOSITION VIII. MR. LONG WAS DENIED HIS RIGHT TO A FAIR TRIAL BECAUSE THE TRIAL COURT FAILED TO PROVIDE HIS JURY THE MANDATORY INSTRUCTION ON OTHER CRIMES EVIDENCE.

PROPOSITION IX. MR. LONG WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE II, §§ 7 AND 20 OF THE OKLAHOMA CONSTITUTION.

PROPOSITION X. THE CUMULATIVE EFFECT OF ALL THE ERRORS ADDRESSED ABOVE DEPRIVED MR. LONG OF A FAIR TRIAL.

After thorough consideration of these propositions, and the record before us on appeal, we affirm Appellant’s convictions but vacate the court costs imposed on Count 2. Appellant was convicted of fatally shooting Jimmy Allen during an attempted robbery at a Lawton motel. When he was apprehended, Appellant had gunshot residue on his clothing, as well as blood stains consistent by DNA comparison with the victim’s blood. The victim’s blood was also found on a pair of tennis shoes found in Appellant’s bedroom, and those shoes matched a description of the assailant’s shoes given by an eyewitness. Furthermore, bullets found in Appellant’s bedroom were the same caliber and brand as shell casings found at the crime scene.

As to Proposition I, the evidence supported the jury’s conclusion that the masked gunman who killed the victim had robbery in mind, even though he never got to the point of demanding or taking property. Considering the totality of evidence, no rational juror could have found any other reasonable inference. Jackson v. Virginia, 443 U.S. 307, 316, 99 S.Ct. 2781, 2787, 61 L.Ed.2d 560, 571 (1979); Weimar v. State, 1976 OK CR 285, 17, 556 P.2d 1020, 1024; Rodgers v. State, 1973 OK CR 260, 8, 510 P.2d 992, 993. The evidence supports Appellant’s conviction on Count 1, and Proposition I is denied.

In Propositions II and III, Appellant claims he was subjected to double jeopardy or double punishment when the trial court had the jury reconsider its verdicts in the first stage of trial. While it was error to ask the jury to reconsider its Not Guilty verdict on Count 2, see 22 O.S. 2011, § 918, the jury’s verdict of Guilty on Count 1 never changed, and is not affected by the trial court’s error. Because the trial court recognized the double-jeopardy implications of separate convictions for Felony Murder (Count 1) and the underlying felony (Count 2) (see Whalen v. United States, 445 U.S. 684, 693-94, 100 S.Ct. 1432, 1438-39, 63 L.Ed.2d 715 (1980) and Perry v. State, 1993 OK CR 5, 7, 853 P.2d 198, 200-01), it never asked the jury to impose sentence on Count 2. Thus, Appellant has never been convicted of Count 2. Gilmore v. State, 1910 OK CR 78, 108 P. 416, 417. Appellant concedes that the only punishment he has suffered in relation to Count 2 is the imposition of court costs in the amount of $291.00. To remedy any double-punishment error here, we VACATE the court costs imposed on Count 2.

In Proposition IV, Appellant claims the prosecutor’s removal of four African-American panelists during voir dire indicated racial bias, violating Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Defense counsel challenged each strike, so this claim is preserved for review. The trial court’s rulings are reviewed for an abuse of discretion. Day v. State, 2013 OK CR 8, 16, 303 P.3d 291, 300. We give particular deference to the court’s rulings in these matters because they involve a number of factors (facial expression, tone of voice, etc.) which do not translate to the appellate record. Grant v. State, 2009 OK CR 11, 26, 205 P.3d 1, 14. We have reviewed the record and find facially race-neutral reasons for each of the strikes at issue here. Proposition IV is denied.

As to Proposition V, while in custody on other matters, Appellant made statements related to the investigation of this case without first being advised of his right to silence under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We agree with Appellant that it was error to admit these statements at his trial. The fact that he was being detained on matters unrelated to this case when he made the statements is immaterial, as Miranda applies to any custodial interrogation and is not offense-specific. See Mathis v. United States, 391 U.S. 1, 4, 88 S.Ct. 1503, 1505, 20 L.Ed.2d 381 (1968). Nevertheless, considering the totality of evidence of Appellant’s guilt, we find admission of these statements was harmless beyond a reasonable doubt.2 Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Arizona v. Fulminante, 499 U.S. 279, 295, 111 S.Ct. 1246, 1257, 113 L.Ed.2d 302 (1991); Harmon v. State, 2011 OK CR 6, 32, 248 P.3d 918, 933. Proposition V is denied.

As to Proposition VI, the State’s failure to preserve a photo array of suspects, shown to an eyewitness shortly after the crime, was not error or misconduct of any sort. The relevant information from the witness’s viewing of this array was fully presented to the jury via testimony. The photos themselves were not relevant to the jury’s task, because (1) Appellant’s photo was not among them, and (2) the eyewitness never identified anyone in that array as the suspect. No material, exculpatory evidence was withheld from the defense. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963); Gilson v. State, 2000 OK CR 14, 57, 8 P.3d 883, 906. Proposition VI is denied.

As to Propositions VII and VIII, references to a firearm and bullet, unconnected to the charges in this case but vaguely referenced in a report on evidence found in Appellant’s bedroom, were not clear suggestions that he had committed other crimes. Put simply, there is nothing per se illegal or improper about owning a firearm or ammunition.³ Hence, no cautionary jury instruction on the limited use of this evidence was necessary. 12 O.S. 2011, § 2404(B); Bear v. State, 1988 OK CR 181, 22, 762 P.2d 950, 956. Propositions VII and VIII are denied.

In Proposition IX, Appellant claims his trial counsel rendered constitutionally deficient performance in several ways. To support those claims which rely on information outside the appeal record, Appellant has filed an Application for Evidentiary Hearing on Sixth Amendment Claims, consistent with Rule 3.11, Rules of the Oklahoma Court of Criminal Appeals, Title 22 O.S., Ch. 18, App. (2018). It is Appellant’s burden to overcome the presumption that counsel was reasonably competent and made informed strategic choices. As to the record-based claims, we will only grant relief if the evidence shows (1) that counsel made professionally unreasonable decisions, and (2) that those decisions caused prejudice, i.e., that they undermine confidence in the outcome of the trial. Strickland v. Washington, 466 U.S. 668, 687, 698-99, 104 S.Ct. 2052, 2064, 2070, 80 L.Ed.2d 674 (1984); Bland v. State, 2000 OK CR 11, 112, 4 P.3d 702, 730-31. As to the claims based on extra-record materials, our task is not to conclusively decide whether trial counsel rendered deficient performance, but only to decide whether the materials show, by clear and convincing evidence, a strong possibility that trial counsel was ineffective for failing to utilize or identify the evidence in question, such that further fact-finding, through an evidentiary hearing, is warranted. Rule 3.11(B)(3), Rules of the Oklahoma Court of Criminal Appeals. Having considered all of Appellant’s claims, we cannot say trial counsel was ineffective. Proposition IX is denied, and Appellant’s request for an evidentiary hearing is also denied. Simpson v. State, 2010 OK CR 6, 11, 53-54, 230 P.3d 888, 905-06.

Finally, as to Proposition X, we have remedied the only error identified; there is no error to accumulate. Bell v. State, 2007 OK CR 43, 14, 172 P.3d 622, 627. Proposition X is denied.

DECISION

Appellant’s request for an evidentiary hearing on Sixth Amendment claims is DENIED. Costs imposed on Count 2 are VACATED. In all other respects, the Judgment and Sentence of the District Court of Comanche County is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2018), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

  1. Okla. Stat. tit. 21 § 701.7
  2. Okla. Stat. tit. 21 § 1283(A)
  3. Okla. Stat. tit. 21 § 13.1(1)
  4. 22 O.S.2011 § 918
  5. Okla. Stat. tit. 12 § 2404(B)
  6. Rule 3.11, Rules of the Oklahoma Court of Criminal Appeals, Title 22 O.S., Ch. 18, App. (2018)
  7. Strickland v. Washington, 466 U.S. 668 (1984)
  8. Brady v. Maryland, 373 U.S. 83 (1963)
  9. Batson v. Kentucky, 476 U.S. 79 (1986)
  10. Miranda v. Arizona, 384 U.S. 436 (1966)
  11. Mathis v. United States, 391 U.S. 1 (1968)
  12. Jackson v. Virginia, 443 U.S. 307 (1979)
  13. Perry v. State, 1993 OK CR 5
  14. Whalen v. United States, 445 U.S. 684 (1980)
  15. Gilmore v. State, 1910 OK CR 78
  16. Harmon v. State, 2011 OK CR 6
  17. Arizona v. Fulminante, 499 U.S. 279 (1991)
  18. Grant v. State, 2009 OK CR 11
  19. Bland v. State, 2000 OK CR 11
  20. Day v. State, 2013 OK CR 8
  21. Simpson v. State, 2010 OK CR 6
  22. Bell v. State, 2007 OK CR 43
  23. Weimar v. State, 1976 OK CR 285
  24. Rodgers v. State, 1973 OK CR 260
  25. Bear v. State, 1988 OK CR 181

Oklahoma Statutes citations:

  • Okla. Stat. tit. 21 § 701.7 - First Degree Felony Murder
  • Okla. Stat. tit. 21 § 1283 - Possession of a Firearm After Conviction of a Felony
  • Okla. Stat. tit. 21 § 13.1 - Sentencing
  • Okla. Stat. tit. 22 § 918 - Jury Reconsideration of Verdicts
  • Okla. Stat. tit. 12 § 2404 - Other Crimes Evidence

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

  • 21 U.S.C. § 701 - First Degree Felony Murder
  • 21 U.S.C. § 1283(A) - Possession of a Firearm After Conviction of a Felony
  • 21 U.S.C. § 13.1(1) - Serving 85% of sentence before parole eligibility
  • 22 U.S.C. § 918 - Jury reconsideration issue
  • 18 U.S.C. § 79 - Batson v. Kentucky
  • 22 U.S.C. § 2404(B) - Other crimes evidence limitation
  • 22 U.S.C. § 3.11 - Sixth Amendment Claims
  • 22 U.S.C. § 118 - Miranda v. Arizona
  • 18 U.S.C. § 83 - Brady v. Maryland
  • 18 U.S.C. § 668 - Strickland v. Washington

Other citations:

No other rule citations found.

Case citations:

  • Jackson v. Virginia, 443 U.S. 307, 316, 99 S.Ct. 2781, 2787, 61 L.Ed.2d 560, 571 (1979)
  • Weimar v. State, 1976 OK CR 285, 17, 556 P.2d 1020, 1024
  • Rodgers v. State, 1973 OK CR 260, 8, 510 P.2d 992, 993
  • Whalen v. United States, 445 U.S. 684, 693-94, 100 S.Ct. 1432, 1438-39, 63 L.Ed.2d 715 (1980)
  • Perry v. State, 1993 OK CR 5, 7, 853 P.2d 198, 200-01
  • Gilmore v. State, 1910 OK CR 78, 108 P. 416, 417
  • Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)
  • Day v. State, 2013 OK CR 8, 16, 303 P.3d 291, 300
  • Grant v. State, 2009 OK CR 11, 26, 205 P.3d 1, 14
  • Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)
  • Mathis v. United States, 391 U.S. 1, 4, 88 S.Ct. 1503, 1505, 20 L.Ed.2d 381 (1968)
  • Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)
  • Arizona v. Fulminante, 499 U.S. 279, 295, 111 S.Ct. 1246, 1257, 113 L.Ed.2d 302 (1991)
  • Harmon v. State, 2011 OK CR 6, 32, 248 P.3d 918, 933
  • Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963)
  • Gilson v. State, 2000 OK CR 14, 57, 8 P.3d 883, 906
  • Bear v. State, 1988 OK CR 181, 22, 762 P.2d 950, 956
  • Strickland v. Washington, 466 U.S. 668, 687, 698-99, 104 S.Ct. 2052, 2064, 2070, 80 L.Ed.2d 674 (1984)
  • Bland v. State, 2000 OK CR 11, 112, 4 P.3d 702, 730-31
  • Simpson v. State, 2010 OK CR 6, 53-54, 230 P.3d 888, 905-06
  • Bell v. State, 2007 OK CR 43, 14, 172 P.3d 622, 627

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