Gillioms v. State

• Decision Date: 27 January 2022
• Docket Number: F-2020-469
• Citation: 2022 OK CR 3
• Parties: MARTAVEOUS DWAYNE GILLIOMS, Appellant v. THE STATE OF OKLAHOMA, Appellee
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

2022 OK CR 3

MARTAVEOUS DWAYNE GILLIOMS, Appellant v. THE STATE OF OKLAHOMA, Appellee

No. F-2020-469

Court of Criminal Appeals of Oklahoma

January 27, 2022

AN APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY THE HONORABLE BILL GRAVES, DISTRICT JUDGE

APPEARANCES AT TRIAL

KIMBERLY MILLER

ASST PUBLIC DEFENDER

COUNSEL FOR THE DEFENSE

DAVID PRATER

DISTRICT ATTORNEY

SUZANNE LAVENUE

JESSICA FOSTER

ASST. DISTRICT ATTORNEYS

COUNSEL FOR THE STATE

APPEARANCES ON APPEAL

AMANDA N. HOLDEN

ASST. PUBLIC DEFENDER

COUNSEL FOR APPELLANT

DAWN CASH

ACTING ATTORNEY GENERAL OF OKLAHOMA

THEODORE M. PEEPER

ASST. ATTORNEY GENERAL

COUNSEL FOR THE STATE

SUMMARY OPINION

LUMPKIN, JUDGE

¶1 Appellant Martaveous Dwayne Gillioms was tried by jury and convicted of Second Degree Felony Murder, After Former Conviction of Two or More Felonies (Count I) (21 O.S.2011, § 701.8 (2)) and Gang Association While in the Commission of a Gang Related Offense (Count II) (21 O.S.2011, § 856.3), in the District Court of Oklahoma County, Case No. CF-2017-5008. The jury recommended as punishment imprisonment for twenty (20) years in Count I. Appellant's conviction in Count II carried an automatic sentence of five (5) years in prison. The trial court sentenced accordingly, ordering the sentences to be served consecutively. ^[1] It is from this judgment and sentence that Appellant appeals. ^[2]

¶2 Appellant raises the following propositions of error in support of his appeal:

I. Because the evidence was insufficient to support [Appellant's] conviction for committing a gang related offense, due process requires that conviction to be reversed and remanded with instructions to dismiss.

II. Because the crime of commission of a gang related offense is a violation of the First Amendment of the United States Constitution, this charge must be reversed and remanded with instructions to dismiss.

III. The other bad acts evidence in this case was improperly admitted in violation of Okla. Stat. Tit. 12, § 2404(B) and the due process clauses of the state and federal constitutions as the probative value did not outweigh its unfair prejudice.

IV. The prosecutor made highly prejudicial and inflammatory statements during closing argument depriving [Appellant] of a fair trial.

V. Trial errors, when considered in cumulative fashion, warrant a new trial.

¶3 After thorough consideration of these propositions and the entire record before us on appeal including the original record, transcripts, and briefs of the parties, we have determined that under the law and the evidence no relief is warranted.

¶4 In Proposition I, Appellant challenges the sufficiency of the evidence supporting his conviction in Count II, Gang Association While in the Commission of a Gang Related Offense, and asks this Court to reverse and remand his conviction with instructions to dismiss. Appellant argues the evidence in his case was insufficient to prove that his actions during the assault on the victim, Maurice Pendleton, which ultimately led to the victim's death, were done while in association with any criminal street gang.

¶5 Challenges to the sufficiency of the evidence are reviewed in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt. Mitchell v. State, 2018 OK CR 24, ¶ 11, 424 P.3d 677, 682. In reviewing sufficiency of the evidence claims, this Court does not reweigh conflicting evidence or second-guess the decision of the fact-finder; we accept all reasonable inferences and credibility choices that tend to support the verdict. Id.

¶6 Appellant was convicted under 21 O.S.2011, § 856.3, which provides in pertinent part:

Any person who attempts or commits a gang-related offense as a condition of membership in a criminal street gang or while in association with any criminal street gang or gang member shall be guilty of a felony offense.... For purposes of this section, "criminal street gang" is defined by subsection F of Section 856 of Title 21 of the Oklahoma Statutes and "gang-related offense" means those offenses enumerated in paragraphs 1 through 16 of subsection F of Section 856 of Title 21 of the Oklahoma Statutes.

Title 21 O.S.2011, § 856 (F) provides in pertinent part:

F. "Criminal street gang" means any ongoing organization, association, or group of five or more persons that specifically either promotes, sponsors, or assists in, or participates in, and requires as a condition of membership or continued membership, the commission of one or more of the following criminal acts... [list of eighteen (18) criminal acts].

¶7 This Court has not previously defined the phrase "while in association with any criminal street gang or gang member" as used in Section 856.3. Under the well-established rules of statutory construction, a statute should be given a construction according to the fair import of its words taken in their usual sense, in connection with the context, and with reference to the purpose of the provision. See Luna-Gonzales v. State, 2019 OK CR 11, ¶ 4, 442 P.3d 171, 173; State v. Anderson, 1998 OK CR 67, ¶ 3, 972 P.2d 32, 33.

¶8 The plain language of the statute shows the crime can be committed either by an individual as a part of criminal street gang initiation or "while in association with" a "criminal street gang or gang member." While other sub-parts of the statute provide definitions relating to this offense, Section 856.3 is the operative criminal statute setting out the elements of the crime.

¶9 If the plain language of the statute were not enough, we note that Merriam-Webster Dictionary defines the term "in association with" as "in connection with or together with". Merriam-Webster.com Dictionary (2021) . Applying this definition to the terms used in Section 856.3, the Legislature intended for the offense of Gang Association While in the Commission of a Gang Related Offense to apply to enumerated crimes committed by a member of a criminal street gang as a condition of membership, or by a person seeking membership as part of their initiation, or in association with other gang members.

¶10 This statute was drafted by the Legislature to provide a separate crime which can be punished in addition to any underlying crime without conflict under the principles of double jeopardy or double punishment (21 O.S.2011, § 11).

¶11 In this case, the evidence shows Appellant was a member of the Neighborhood Crips criminal street gang and murdered the victim while in association with two other gang members.

¶12 On July 18, 2017, the victim, Appellant, co-defendants Miller and Ligons and three other inmates were taken to an area in the county jail to await disciplinary hearings. The victim was the last person taken to the waiting area.

¶13 Appellant and co-defendants Miller and Ligons were members of the Neighborhood Crips. The victim was a member of the Hoover Crips. Officers with the Oklahoma City Police Department Gang Intelligence Unit testified that Neighborhood Crips and Hoover Crips did not get along. The evidence showed that Appellant, Miller, and Ligons knew each other to be Neighborhood Crips and were all housed in the same pod in the county jail.

¶14 As soon as the victim arrived in the waiting area, a conversation arose between the victim, Appellant, and Miller that included terms insulting to Hoover Crips. Appellant, Miller, and Ligons proceeded to assault the victim, kicking and punching him as he tried to escape from them. Appellant, Miller, and Ligons attempted to strip off the victim's clothes. After less than five minutes, a passing detention officer heard banging sounds coming from the door to the waiting area. He opened the door to the waiting area and the beaten and injured victim quickly exited the area. The victim was taken to the medical clinic in the jail. His worsening condition necessitated transportation to a nearby hospital emergency room. The victim died from his injuries approximately five (5) hours later.

¶15 After the assault, the inmates in the waiting area were offered medical assistance. Appellant was the only inmate who accepted medical treatment. The other inmates were taken back to their cells. After being evaluated at the clinic, Appellant was returned to his cell - in the same pod with Miller and Ligons and other Neighborhood Crips. Appellant was seen repeatedly raising his arms and making hand signs. Capt. Henley, Oklahoma County Sheriff's Department, the criminal investigator on the case, testified, "he [Appellant] keeps throwing up gang signs. And that's his place. He's up on the top rung." When asked the significance of Appellant's conduct, Capt. Henley replied, "after altercations, especially gang related altercations, they want to celebrate and they want to make it known inside the pod that something just took place. And I find that significant just considering that the victim was a Hoover and him being a Neighborhood." Appellant's movements were seen by other inmates until he was locked down in his cell.

¶16 The testimony of law enforcement officers well versed and experienced in gang culture and the conduct of jail inmates showed that Appellant, together with co-defendants and fellow gang members Miller and Ligons, murdered the victim because he belonged to a rival gang. As we stated in Thompson v State, 2007 OK CR 38, ¶ 19, 169 P.3d 1198, 1204, "this Court will not ignore the actual circumstances of this gang case. This murder appears to have been motivated solely by gang rivalry." Under the evidence in this case, we find the jury's verdict is supported by proof beyond a reasonable doubt that Appellant committed the crime of Gang Association While in the Commission of...