Howard Leonard Jones, II v The State Of Oklahoma
F-2017-1127
Filed: Jul. 18, 2019
Not for publication
Prevailing Party: The State Of Oklahoma
Summary
# Howard Leonard Jones, II appealed his conviction for robbery, kidnaping, and possession of a firearm. Conviction and sentence were 40 years for robbery, 30 years for kidnaping, and 10 years for possession of a firearm. Judge Lumpkin dissented.
Decision
The judgment and sentence is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019), the MANDATE is ORDERED issued upon the delivery and filing of this decision.
Issues
- was there error in allowing Appellant to stand trial on Count 3 after the magistrate's dismissal of the supplemental information?
- did the trial court err in admitting Appellant's unwarned statements made at gunpoint while surrounded by police?
- did the trial court's denial of Appellant's requested flight instruction render the trial unfair?
- was there prosecutorial misconduct that prevented a fair trial?
Findings
- the court erred
- evidence was not sufficient
- the court erred
- the court erred
F-2017-1127
Jul. 18, 2019
Howard Leonard Jones, II
Appellant
v
The State Of Oklahoma
Appellee
SUMMARY OPINION
LEWIS, PRESIDING JUDGE: Howard Leonard Jones, II, Appellant, was tried by jury and found guilty of Count 1, robbery with a dangerous weapon, in violation of 21 O.S.2011, § 801; Count 2, kidnapping, in violation of 21 O.S.2011, § 741; and Count 3, possession of a firearm after former conviction of a felony, in violation of 21 O.S.2011, § 1283, in the District Court of Tulsa County, Case No. CF-2016-6385. The jury found Appellant guilty in Counts 1 and 2 after former conviction of a felony and sentenced him to forty (40) years imprisonment in Count 1, thirty (30) years imprisonment for Count 2, and ten (10) years imprisonment in Count 3. The Honorable Kelly Greenough, District Judge, pronounced judgment and sentence according to the jury verdict and ordered the sentences served concurrently.
Mr. Jones appeals in the following propositions of error:
1. It was error for Appellant to stand trial on Count 3 and on Counts 1 and 2 after a former conviction because the magistrate’s dismissal of the supplemental information was a final order;
2. Appellant’s unwarned statements – made at gunpoint while surrounded by police in response to aggressive officer questioning – were involuntary as a matter of law and should not have been admitted at trial;
3. Denial of Appellant’s requested flight instruction rendered the trial unfair;
4. Prosecutorial misconduct prevented a fair trial.
In Proposition One, Appellant argues that the trial court erred in remanding the case for further preliminary examination to allow proof of Appellant’s prior Texas felony conviction in support of Count 3 and the second page allegation of a prior felony conviction. The preliminary hearing magistrate had sustained a demurrer to Count 3 and the second page allegation when the State was unable to obtain proof of the prior conviction after two continuances of preliminary examination. The State was able to obtain proof of the former conviction prior to arraignment and moved to remand the case for further preliminary hearing. We found this remand procedure appropriate under similar circumstances in Louder U. State, 1977 OK CR 252, I 10, 568 P.2d 344, 348, and find no reversible error. Proposition One is denied.
In Proposition Two, Appellant argues that incriminating statements at the time of his arrest were involuntary and should not have been admitted at trial. Appellant failed to raise this objection at trial; therefore, we review only for plain error. Barnard U. State, 2012 OK CR 15, I 13, 290 P.3d 759, 764. We will correct plain error only when it seriously affects the fairness, integrity or public reputation of the judicial proceedings. Simpson U. State, 1994 OK CR 40, I 30, 876 P.2d 696, 701. We find no plain or obvious error in the admission of the Appellant’s statements. Even if error occurred, it was harmless beyond a reasonable doubt in light of overwhelming evidence of guilt. Arizona U. Fulminate, 499 U.S. 279, 289, 11 S.Ct. 1246, 113 L.ED.2d 302 (1991). Such error could not seriously affect the fairness, integrity, or public reputation of the proceedings. Proposition Two is denied.
In Proposition Three, Appellant argues that the trial court’s refusal of his requested flight instruction was reversible error. The trial court did not include a flight instruction based on counsel’s refusal to accept the uniform flight instruction as written. Counsel therefore preserved an objection only to whether the uniform flight instruction was required by the evidence. Flight instructions are inappropriate if they presume, as a matter of law, that a defendant’s unexplained departure from the crime scene demonstrates consciousness of guilt or assume that the person leaving the scene was the defendant, when that fact is in dispute. Williamson v. State, 2018 OK CR 15, I 45, 422 P.3d 752, 761. Because Appellant denied being present at the scene of the crime, an instruction on his flight was not required. Proposition Three is denied.
In Proposition Four, Appellant claims that prosecutorial misconduct in closing argument was reversible error. Most of the challenged comments drew no objection at trial. We review for plain error and fundamental unfairness. The Court evaluates alleged prosecutorial misconduct within the context of the entire trial, considering the propriety of the prosecutor’s actions, the strength of the evidence, and corresponding arguments of defense counsel. Sanders U. State, 2015 OK CR 11, I 21, 358 P.3d 280, 286. Counsel may use a wide range of discussion and illustration in closing argument. We will grant relief only where grossly improper and unwarranted argument affects a defendant’s rights. Id. We find the prosecutor’s conduct here was not so improper as to render the trial fundamentally unfair, and no relief is required. Proposition Four is without merit.
DECISION
The judgment and sentence is AFFIRMED.
Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019), the MANDATE is ORDERED issued upon the delivery and filing of this decision.
Footnotes:
- 21 O.S.2011, § 801
- 21 O.S.2011, § 741
- 21 O.S.2011, § 1283
- 21 O.S.Supp.2015, § 13.5(8)
- Louder U. State, 1977 OK CR 252, I 10, 568 P.2d 344, 348
- Barnard U. State, 2012 OK CR 15, I 13, 290 P.3d 759, 764
- Simpson U. State, 1994 OK CR 40, I 30, 876 P.2d 696, 701
- Arizona U. Fulminate, 499 U.S. 279, 289, 11 S.Ct. 1246, 113 L.ED.2d 302 (1991)
- Williamson v. State, 2018 OK CR 15, I 45, 422 P.3d 752, 761
- Sanders U. State, 2015 OK CR 11, I 21, 358 P.3d 280, 286
- Hambrick U. State, 1975 OK CR 86, IT 11, 535 P.2d 703, 705
- Thompson U. State, 2018 OK CR 5, I 4, 419 P.3d 261, 262
- Primeaux v. State, 2004 OK CR 16, II 17-18, 88 P.3d 893, 900
- Cuesta-Rodriguez U. State, 2010 OK CR 23, I 73, 241 P.3d 214, 237
Oklahoma Statutes citations:
- Okla. Stat. tit. 21 § 801 (2011) - Robbery with a dangerous weapon
- Okla. Stat. tit. 21 § 741 (2011) - Kidnapping
- Okla. Stat. tit. 21 § 1283 (2011) - Possession of a firearm after former conviction of a felony
- Okla. Stat. tit. 21 § 13.5 (Supp. 2015) - Parole eligibility
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:
- Bramlett v. State, 2018 OK CR 19, I 36, 422 P.3d 788, 799-800
- Louder v. State, 1977 OK CR 252, I 10, 568 P.2d 344, 348
- Barnard v. State, 2012 OK CR 15, I 13, 290 P.3d 759, 764
- Simpson v. State, 1994 OK CR 40, I 30, 876 P.2d 696, 701
- Williamson v. State, 2018 OK CR 15, I 45, 422 P.3d 752, 761
- Sanders v. State, 2015 OK CR 11, I 21, 358 P.3d 280, 286
- Hambrick v. State, 1975 OK CR 86, IT 11, 535 P.2d 703, 705
- Thompson v. State, 2018 OK CR 5, I 4, 419 P.3d 261, 262
- Primeaux v. State, 2004 OK CR 16, II 17-18, 88 P.3d 893, 900
- Cuesta-Rodriguez v. State, 2010 OK CR 23, I 73, 241 P.3d 214, 237