Davis v. State

• Citation: 419 P.3d 271
• Decision Date: 22 March 2018
• Docket Number: Case Number: F-2016-171
• Parties: Terron A. DAVIS, Appellant v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

419 P.3d 271

Terron A. DAVIS, Appellant

v.The STATE of Oklahoma, Appellee.

Case Number: F-2016-171

Court of Criminal Appeals of Oklahoma.

Decided: March 22, 2018

JAMES RADFORD, RAVEN SEALY, P. O. BOX 926, NORMAN, OK 73070, COUNSEL FOR DEFENDANT.

JENNIFER AUSTIN, CHRISTY MILLER, ASSISTANT DISTRICT ATTORNEYS, 201 SOUTH JONES, NORMAN, OK 73069, COUNSEL FOR THE STATE.

JAMIE D. PYBAS, P.O. BOX 926, NORMAN, OK 73070, COUNSEL FOR APPELLANT.

E. SCOTT PRUITT, OKLAHOMA ATTORNEY GENERAL, ROBERT WHITTAKER, ASSISTANT ATTORNEY GENERAL, 313 N.E. 21ST STREET, OKLAHOMA CITY, OK 73105, COUNSEL FOR APPELLEE.

SUMMARY OPINION

HUDSON, JUDGE:

¶ 1 Appellant, Terron A. Davis, was tried by a jury and convicted in Cleveland County District Court, Case No. CF–2013–1293, of Count 1: Attempted Robbery with a Weapon, After Two Prior Felony Convictions, in violation of 21 O.S.2011, § 801 ; Count 2: Assault and Battery with a Deadly Weapon, After Two Prior Felony Convictions, in violation of 21 O.S.2011, § 652 ; and Count 3: Burglary in the First Degree, After Two Prior Felony Convictions, in violation of 21 O.S.2011, § 1431.¹ The jury recommended as punishment twenty-five (25) years imprisonment on each of Counts 1 and 3, and life imprisonment on Count 2. On March 9, 2016, the Honorable Tracy Schumacher, District Judge, sentenced Davis in accordance with the jury's verdicts.² Judge Schumacher further ordered the sentences for all three counts to run concurrently and ordered credit for time served.

¶ 2 Davis now appeals, raising ten (10) propositions of error before this Court:

I. CONVICTIONS AND SENTENCES FOR ATTEMPTED ROBBERY WITH A WEAPON, ASSAULT AND BATTERY WITH A DEADLY WEAPON, AND BURGLARY IN THE FIRST DEGREE, VIOLATED APPELLANT'S RIGHT TO BE FREE FROM MULTIPLE PUNISHMENT UNDER 21 O.S.2011, § 11 ;

II. BECAUSE THE TRIAL COURT'S INSTRUCTIONS IMPROPERLY ALLOWED A CONVICTION FOR ASSAULT AND BATTERY WITH A DEADLY WEAPON WITHOUT REQUIRING PROOF OF AN INTENT TO KILL, THE JUDGMENT AGAINST APPELLANT MUST BE MODIFIED;

III. THE TRIAL COURT ERRED IN REFUSING TO INSTRUCT THE JURY ON ASSAULT AND BATTERY WITH A DANGEROUS WEAPON AS A LESSER RELATED OFFENSE TO THE CHARGED COUNT OF ASSAULT AND BATTERY WITH A DEADLY WEAPON, IN VIOLATION OF APPELLANT'S FUNDAMENTAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE II, §§ 7 AND 20 OF THE OKLAHOMA CONSTITUTION ;

IV. THE TRIAL COURT ERRED BY DENYING APPELLANT'S REQUEST TO SEVER THE TRIAL IN VIOLATION OF THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, ARTICLE II, §§ 7 AND 20 OF THE OKLAHOMA CONSTITUTION AND 22 O.S.2011, § 439 ;

V. APPELLANT WAS DENIED HIS RIGHT TO FIVE SEPARATE PEREMPTORY CHALLENGES EVEN THOUGH HE AND HIS CODEFENDANTS HAD INCONSISTENT DEFENSES, IN VIOLATION OF HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL UNDER THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, 22 O.S.2011, § 655, AND ARTICLE II, §§ 7, 19, AND 20 OF THE OKLAHOMA CONSTITUTION;

VI. THE ADMISSION OF THE EXTRAJUDICIAL IDENTIFICATIONS OF APPELLANT VIOLATED HIS DUE PROCESS RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE II, §§ 7 AND 20 OF THE OKLAHOMA CONSTITUTION ;

VII. THE TRIAL COURT ERRED BY FAILING TO GIVE A CAUTIONARY JURY INSTRUCTION ON EYEWITNESS IDENTIFICATION IN VIOLATION OF APPELLANT'S DUE PROCESS RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE II, §§ 7 AND 20 OF THE OKLAHOMA CONSTITUTION ;

VIII. APPELLANT 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 ;

IX. UNDER ALL OF THE FACTS AND CIRCUMSTANCES OF THIS CASE, A LIFE SENTENCE FOR ASSAULT AND BATTERY WITH A DEADLY WEAPON IS SHOCKINGLY EXCESSIVE;

X. THE ACCUMULATION OF ERRORS DEPRIVED APPELLANT OF A FAIR TRIAL AND RELIABLE VERDICT.

¶ 3 After thorough consideration of the entire record before us on appeal, including the original record, transcripts, exhibits and the parties' briefs, we find that no relief is required under the law and evidence. Appellant's Judgment and Sentence is therefore AFFIRMED.

I

¶ 4 Appellant concedes that his multiple punishment claim was not raised at trial and thus may be reviewed on appeal only for plain error. Rousch v. State , 2017 OK CR 7, ¶ 3, 394 P.3d 1281, 1282. To be entitled to relief under the plain error doctrine, Appellant must show an actual error, that is plain or obvious, and that affects his substantial rights. Baird v. State , 2017 OK CR 16, ¶ 25, 400 P.3d 875, 883 ; Ashton v. State , 2017 OK CR 15, ¶ 34, 400 P.3d 887, 896-97 ; Levering v. State , 2013 OK CR 19, ¶ 6, 315 P.3d 392, 395 ; 20 O.S.2011, § 3001.1. This Court will only correct plain error if the error seriously affects the fairness, integrity or public reputation of the judicial proceedings or otherwise represents a miscarriage of justice. Baird , 2017 OK CR 16, ¶ 25, 400 P.3d at 883 ; Ashton , 2017 OK CR 15, ¶ 34, 400 P.3d at 896-97 ; Hogan v. State , 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923 (quoting Simpson v. State , 1994 OK CR 40, ¶ 30, 876 P.2d 690, 701 ). Appellant fails to show an actual or obvious error.

¶ 5 Here, the charged burglary was completed when Appellant and his accomplices opened the front door and entered the occupied duplex with intent to commit assault and battery of the victim inside. The commission of the assault and battery with a deadly weapon was completed when Appellant stabbed the victim in the chest during the fight. It was only after David Morgan was stabbed and the fighting had stopped that the attempted robbery commenced. The record shows a clear separation or break between the stabbing of the victim in the chest, the completion of the fighting and the subsequent robbery attempt. The record thus shows separate and distinct offenses committed in rapid succession and requiring different proof. There is no actual or obvious double punishment error from Appellant's convictions on Counts 1—3. State v. Kistler , 2017 OK CR 24, ¶¶ 2-8, ––– P.3d –––– ; Davis v. State , 1999 OK CR 48, ¶¶ 10-13, 993 P.2d 124, 126-27 ; Gregg v. State , 1992 OK CR 82, ¶ 27, 844 P.2d 867, 878 ; Ziegler v. State , 1980 OK CR 23, ¶¶ 9-10, 610 P.2d 251, 253-54. Proposition I is denied.

II

¶ 6 The trial court appropriately used the uniform Oklahoma jury instructions defining the crime of assault and battery with a deadly weapon in the written charge. We recently reaffirmed that "[i]ntent to kill is not an element of assault and battery with a deadly weapon. It would be error to instruct jurors otherwise." Tucker v. State , 2016 OK CR 29, ¶ 25, 395 P.3d 1, 8-9 (citing Goree v. State , 2007 OK CR 21, ¶¶ 3, 5, 163 P.3d 583, 584-85 ) (internal citations omitted). We also unanimously declined in Tucker to reconsider our previous holding from Goree on this issue. Tucker , 2016 OK CR 29, ¶ 25, 395 P.3d at 9. Thus, there is no plain error from the instructions. Id . Proposition II is denied.

III

¶ 7 This Court reviews a trial court's decision on which instructions are given to a jury, including lesser related instructions, for an abuse of discretion. Simpson v. State , 2010 OK CR 6, ¶ 16, 230 P.3d 888, 897. We require prima facie evidence of the lesser offense to support giving a lesser included instruction. Davis v. State , 2011 OK CR 29, ¶ 101, 268 P.3d 86, 116. "Prima facie evidence of a lesser included offense is that evidence which would allow a jury rationally to find the accused guilty of the lesser offense and acquit him of the greater." Id . Here, prima facie evidence of the lesser related offense of assault and battery with a dangerous weapon was not presented at trial.

¶ 8 After reviewing the evidence, we do not believe that a rational jury could find that the manner in which Appellant stabbed the victim was with the intent merely to harm or injure. 21 O.S.2011, § 645 ; Eizember v. State , 2007 OK CR 29, ¶ 118, 164 P.3d 208, 238. The nature and severity of the victim's injury alone shows Appellant wielded the knife in a life-threatening manner. Notably, Appellant did not defend the case by arguing that he stabbed the victim but merely with an intent to injure. There is no affirmative evidence of mere intent to injure from the potentially lethal stab wound

Appellant inflicted to the victim's chest. Under these circumstances, the evidence did not support instruction on the lesser related offense of assault and battery with a dangerous weapon. A rational jury could not convict Appellant of assault and battery with a dangerous weapon, and acquit on assault and battery with a deadly weapon, based on this evidence. Proposition III is denied.

IV

¶ 9 The record shows that the defenses presented by Appellant and his codefendants were not mutually antagonistic. Ochoa v. State , 1998 OK CR 41, ¶ 29, 963 P.2d 583, 595-96 ("Where two defendants have 'mutually antagonistic defenses,' separate trials ought to be held and compelling joinder of trials may result in reversible error."). All three defendants argued they were not guilty of the charged offenses and focused their attack on undermining the credibility of the State's witnesses. The defendants did not engage in any sort of finger-pointing or blame. "The issue is neither whether defendants disagree about facts nor whether one defendant claims the other should bear greater responsibility. Conflicting defenses or cases in which both defendants admit to presence and some participation in the crimes do not require severance [.]" Fowler v. State , 1994 OK CR 27, ¶ 4 n.2, 873 P.2d 1053, 1055 n.2.

¶ 10 The jury's sentencing recommendation for Quantez Cotton during the first stage of trial also did not warrant severance. Appellant's jury was instructed that the issue of punishment was not before them when guilt was determined either for Appellant or Draquan Cotton. Further, the jury was...