F-2018-975

  • Post author:
  • Post category:F

**IN THE COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA** **MICKEY JOE EDWARD RICHARDSON,** **Appellant,** **VS.** **THE STATE OF OKLAHOMA,** **Appellee.** **No. F-2018-975** **FILED IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA JAN 30 2020** --- **SUMMARY OPINION** **JOHN D. HADDEN CLERK** **KUEHN, VICE PRESIDING JUDGE:** Appellant, Mickey Joe Edward Richardson, was convicted by a jury in Haskell County District Court, Case No. CF-2016-91, of several crimes, receiving the following sentences: - **Assault and Battery on a Police Officer**, After Conviction of a Felony (Count 1) - **5 years** - **Larceny of an Automobile**, After Conviction of a Felony (Count 2) - **20 years** - **Feloniously Pointing a Firearm**, After Conviction of a Felony (Count 4) - **30 years** - **Felon in Possession of a Firearm**, After Conviction of a Felony (Count 5) - **Life** - **Escape from Detention** (Count 8) - **1 year** On September 11, 2018, the trial court, presided by the Honorable Brian C. Henderson, Associate District Judge, imposed the jury-recommended sentences to be served consecutively. This appeal followed. Appellant raises six propositions of error: 1. **Misinstruction on Sentencing Range** for Possession of a Firearm After Conviction of a Felony. 2. **Violation of Fourteenth Amendment Due Process** regarding jury instructions. 3. **Improper Victim Impact Statements** affecting the fairness of the sentencing hearing. 4. **Abuse of Discretion** with respect to the policy of consecutive sentencing. 5. **Ineffective Assistance of Trial Counsel** violating constitutional rights. 6. **Cumulative Errors** affecting the fairness of the proceedings. After thorough consideration of the propositions, briefs, and the entire record, we affirm. Appellant was convicted after attacking a sheriff’s deputy, stealing a patrol car, and attempting to evade other officers. ### Analysis of Propositions: **Proposition I: Misinstruction on Sentencing Range** Appellant claims misinstruction regarding the sentencing range for Count 5, asserting it should be one to ten years under 21 O.S. 2011, § 1284. However, the jury was properly instructed on the sentencing range pursuant to 21 O.S.2011, §§ 51.1(A)(2) and 1284. **Proposition II: Jury Instruction on Statement Voluntariness** Appellant argues the trial court erred by not instructing the jury on the voluntariness of his statement to police. As Appellant testified and did not claim the statements were involuntary, this contention lacks merit. **Proposition III: Victim Impact Statements** Appellant objected to victim impact statements, claiming they were inadmissible since the crimes were not violent. However, one conviction (Pointing a Firearm) was classified as a violent crime, making the inclusion of the statements appropriate. **Proposition IV: Consecutive Sentencing Policy** Appellant alleges the trial court enforced a policy of consecutive sentencing for defendants who exercise their right to a jury trial. The record indicates the trial court exercised discretion properly, adhering to the statutory default for consecutive sentences. **Proposition V: Ineffective Assistance of Counsel** Appellant contends his trial counsel was ineffective for not objecting to previous claims. As we found those claims meritless, trial counsel cannot be faulted for failing to raise meritless objections. **Proposition VI: Cumulative Errors** No errors were identified in prior propositions, thus, there are no cumulative errors to evaluate. ### Decision The Judgment and Sentence of the District Court of Haskell County is **AFFIRMED**. Pursuant to Rule 3.15, the MANDATE is ordered issued upon the delivery and filing of this decision. --- **Appeal from the District Court of Haskell County** **The Honorable BRIAN C. HENDERSON, Associate District Judge** **Attorneys for Appellant: ROGER HILFIGER, SARAH MACNIVEN** **Attorneys for Appellee: CHRISTINA BURNS, MIKE HUNTER, ASHLEY L. WILLIS** **OPINION BY KUEHN, V.P.J.** **LEWIS, P.J.: CONCUR** **LUMPKIN, J.: CONCUR** **HUDSON, J.: CONCUR** **ROWLAND, J.: CONCUR** --- [**Click Here To Download PDF**](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-975_1734872271.pdf)

Continue ReadingF-2018-975

F-2018-136

  • Post author:
  • Post category:F

In OCCA case No. F-2018-136, Michael Emmanuel Ishman appealed his conviction for Murder in the First Degree, Robbery with a Dangerous Weapon, and Possession of a Firearm After Former Felony Conviction. In an unpublished decision, the court decided to affirm Ishman's conviction and sentencing. One judge dissented. The case involved Ishman who was trialed and convicted by a jury. He was sentenced to life imprisonment with the possibility of parole for each count, with all sentences running consecutively. Ishman raised several arguments in his appeal regarding the evidence presented, jury instructions, and the conduct of his trial. The court found that the evidence was sufficient to support the conviction for robbery and determined that the witness's corroboration was not required as she was not considered an accomplice. The court also addressed claims of instructional errors regarding the punishment range for firearm possession, finding that the errors were harmless because the jury recommended the maximum sentence. Moreover, the court dismissed claims about the introduction of evidence of other bad acts and the failure to instruct the jury on lesser offenses. The court determined that defense counsel performed adequately, stating that there was no evidence that any of the claimed errors affected the trial's outcome. The court summarized that the jury's recommendation of life sentences was appropriate given the circumstances of the case, and affirmed all judgments made by the trial court. Overall, the court did not find sufficient grounds for relief based on Ishman's claims and decided to uphold the conviction and sentencing.

Continue ReadingF-2018-136

F-2019-16

  • Post author:
  • Post category:F

**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **JOHNNY W. WARD,** Appellant, v. **STATE OF OKLAHOMA,** Appellee. **Case No. F-2019-16** **FILED DEC 12 2019** **IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA** **JOHN D. HADDEN, CLERK** --- **SUMMARY OPINION** LUMPKIN, JUDGE: Appellant Johnny W. Ward was tried by jury and found guilty of Assault and Battery with a Deadly Weapon (Count I) (21 O.S.2011, § 652) and Possession of a Firearm (Count II) (21 O.S.Supp.2014, § 1283), both counts After Former Conviction of A Felony, in the District Court of Muskogee County, Case No. CF-2017-1155. The jury recommended as punishment imprisonment for thirty (30) years in Count I and ten (10) years in Count II. The trial court sentenced accordingly, ordering the sentences to be served concurrently. It is from this judgment and sentence that Appellant appeals. Appellant must serve 85% of his sentence in Count I before becoming eligible for consideration for parole. 21 O.S.2011, § 13.1. **Appellant raises the following propositions of error in support of his appeal:** 1. The eyewitness identification of Appellant was based upon an overly suggestive, one-man show-up that violated Appellant's rights to due process and a fair trial. 2. The State's evidence presented at trial was insufficient to establish beyond a reasonable doubt that Appellant committed the crimes of Assault and Battery with a Deadly Weapon and Possession of a Firearm After Former Conviction of a Felony Conviction and his convictions must therefore be reversed with instructions to dismiss. 3. Appellant's sentence is excessive and should be modified. After thorough consideration of these propositions and the entire record, we have determined that under the law and the evidence no relief is warranted. **Proposition I:** Appellant contends the trial court abused its discretion in denying his motion to suppress the in-court identification made by Ms. Davidson after an on-the-scene one person show-up. Appellant argues the pre-trial identification was unnecessarily suggestive and tainted the subsequent identification of Appellant at trial. A one man show-up is not necessarily unduly suggestive or improper. Young v. State, 2000 OK CR 17, ¶ 30, 12 P.3d 20, 34. Absent special elements of unfairness, prompt on-the-scene confrontations [between a victim and a suspect] do not entail due process violations.... Harrolle v. State, 1988 OK CR 223, ¶ 7, 763 P.2d 126, 128, quoting Russell v. United States, 408 F.2d 1280, 1284 (D.C.Cir.1969). The one person show-up in this case was not unduly suggestive or so improper as to create a substantial likelihood of irreparable misidentification. The trial court did not abuse its discretion in denying the motion to suppress the identification. However, even if the show-up was unduly suggestive, the same would not automatically invalidate the subsequent in-court identification if that identification can be established as independently reliable under the totality of the circumstances. Young, 2000 OK CR 17, ¶ 31, 12 P.3d at 34. Under the circumstances of this case, we find the in-court identification reliable. As the trial court did not abuse its discretion by allowing into evidence the in-court identification of Appellant, this proposition of error is denied. **Proposition II:** Appellant challenges the sufficiency of the evidence supporting his convictions for Assault and Battery with a Deadly Weapon and Possession of a Firearm After Former Conviction of a Felony. He argues the State failed to show he had anything to do with the alleged crimes. Appellant asserts that the State's evidence showed only that he was in the wrong place at the wrong time. However, evidence showed that Appellant shot his victim in the knee and buttock as the victim begged for his life. Appellant then ran away from the scene, discarding the gun he used and a hoodie he was wearing. Reviewing Appellant's challenge to the sufficiency of the evidence in the light most favorable to the prosecution, we find any rational trier of fact could have found the essential elements of the charged crimes beyond a reasonable doubt. Mitchell v. State, 2018 OK CR 24, ¶ 11, 424 P.3d 677, 682. Appellant's challenge to the sufficiency of the evidence is denied. **Proposition III:** Appellant argues that his sentence is excessive and should be modified. He asserts that while his sentence is technically within the range provided by law, it does not bear a direct relationship to the nature and circumstances of the offenses. However, Appellant's sentences were within the applicable statutory range (21 O.S.2011, §§ 652(A), 1284 and 51.1(C)). This Court will not modify a sentence within the statutory range unless, considering all the facts and circumstances, it shocks the conscience. Pullen v. State, 2016 OK CR 18, ¶ 16, 387 P.3d 922, 928. The evidence showed that despite having a prior robbery conviction, Appellant was in possession of a gun, which he used to shoot the victim multiple times as the victim begged for his life. Under these circumstances, the 30 year and 10 year sentences are not excessive. Therefore, modification of the sentences is not warranted and this proposition is denied. Accordingly, this appeal is denied. **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. **AN APPEAL FROM THE DISTRICT COURT OF MUSKOGEE COUNTY** **THE HONORABLE THOMAS H. ALFORD, DISTRICT JUDGE** **APPEARANCES AT TRIAL** BRIAN WATTS 222 N. 4TH ST. MUSKOGEE, OK 74401 COUNSEL FOR THE DEFENSE **APPEARANCES ON APPEAL** NICOLLETTE BRANDT OKLA. INDIGENT DEFENSE SYSTEM P.O. BOX 926 NORMAN, OK 73070 COUNSEL FOR APPELLANT **ORVIL LOGE** DISTRICT ATTORNEY TIM KING ASST. DISTRICT ATTORNEY MUSKOGEE CO. COURTHOUSE MUSKOGEE, OK 74401 COUNSEL FOR THE STATE **MIKE HUNTER** ATTORNEY GENERAL OF OKLAHOMA CAROLINE E.J. HUNT ASST. ATTORNEY GENERAL 313 N.E. 21ST ST. OKLAHOMA CITY, OK 73105 COUNSEL FOR THE STATE **OPINION BY: LUMPKIN, J.** LEWIS, P.J.: Concur KUEHN, V.P.J.: Concur HUDSON, J.: Concur ROWLAND, J.: Concur --- [**Click Here To Download PDF**](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2019-16_1734781599.pdf)

Continue ReadingF-2019-16

F-2016-562

  • Post author:
  • Post category:F

In OCCA case No. F-2016-562, Kadrian Daniels appealed his conviction for Robbery with a Firearm and Possession of a Firearm After Former Conviction of a Felony. In an unpublished decision, the court decided to affirm the judgment and sentence of the district court, except that the fine imposed on the Possession count was vacated. One judge dissented. Daniels was found guilty by a jury and received a thirty-year sentence for the robbery and an additional eight years and a $10,000 fine for the illegal firearm possession. Daniels raised several concerns on appeal. He argued that the trial court made mistakes that affected his right to a fair trial. First, Daniels objected to a question asked by the prosecutor to a detective about the number of robberies that happened in Tulsa during the past year. He felt that this question could alarm the jury. However, the court decided that the question was allowed because it was relevant to the case and didn’t unfairly sway the jury. Next, Daniels claimed that the prosecutor behaved improperly during the closing arguments, which made his trial unfair. Some of the comments made by the prosecutor were challenged, but the court ruled that those comments were acceptable and did not harm the fairness of the trial. Additionally, Daniels complained about the jury being instructed that a $10,000 fine was mandatory if they convicted him of the firearm charge. Since Daniels’ lawyer did not object to this instruction during the trial, the court reviewed this issue only for plain error. The court found that the instruction was incorrect because the law does not require such a fine. This error was significant enough that the court decided to remove the fine. Moreover, Daniels argued that his attorney did not provide effective help during the trial, especially for not calling out the errors made by the prosecution or the judge. The court considered this but concluded that the issues raised by Daniels were not serious enough to have changed the outcome of the trial. The final decision affirmed the conviction but removed the unnecessary fine, ensuring that the legal process remained fair despite the mistakes noted during the trial.

Continue ReadingF-2016-562

F-2003-44

  • Post author:
  • Post category:F

In OCCA case No. F-2003-44, Johnny L. Perry appealed his conviction for possession of a controlled substance (cocaine) and possession of a firearm in the commission of a felony. In an unpublished decision, the court decided to reverse the conviction for possession of cocaine and modify the conviction for possession of a firearm to reflect a different charge and a lighter sentence. One judge dissented.

Continue ReadingF-2003-44

F 2000-292

  • Post author:
  • Post category:F

In OCCA case No. F 2000-292, Joe Stratmoen appealed his conviction for Unlawful Possession of a Controlled Dangerous Drug (Methamphetamine) and Possession of a Weapon While Committing a Felony. In an unpublished decision, the court decided to affirm his conviction but modified the sentence for the weapon charge. One judge dissented regarding the modification of the sentence. Stratmoen was found guilty of having methamphetamine and a weapon during a felony. At his trial, he was sentenced to 30 years for the drug charge and 20 years for the weapon charge. He raised three main issues on appeal. First, he argued that the court did not correctly explain the state’s need to prove his past convictions. Second, he claimed the jury was misinformed about the punishment ranges for the second charge. Third, he said the jury was not correctly told about the punishments for the drug offense. The court looked carefully at all the evidence and arguments presented. They decided that the way the jury was instructed about the drug charges was correct. However, they agreed that the sentence for the weapon charge should be less severe based on their interpretations of the law, setting it to the minimum of two years instead of the original twenty. One judge disagreed with the decision to lessen the sentence for the weapon charge, feeling that the jury’s sentence should be upheld. The final conclusion was that while the main conviction was upheld, the penalty for possession of a weapon was reduced.

Continue ReadingF 2000-292