Hale v. State, F-92-162

Decision Date20 January 1995
Docket NumberNo. F-92-162,F-92-162
Citation888 P.2d 1027,1995 OK CR 7
PartiesJames DeWayne HALE, Jr., Appellant, v. STATE of Oklahoma, Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Loretta F. Jackson, Asst. Public Defender, Tulsa, for appellant.

Sarah Day Smith, Asst. Dist. Atty., Tulsa, for appellee.

Barry Derryberry, Asst. Public Defender, Tulsa, for appellant.

Susan B. Loving, Atty. Gen., Jennifer B. Miller, Asst. Atty. Gen., Oklahoma City, for appellee.

SUMMARY OPINION

CHAPEL, Vice Chief Judge:

James DeWayne Hale, Jr., was tried by jury in the District Court of Tulsa County, Case No. CF-90-1316. He was convicted of Count I--Rape in the First Degree in violation of 21 O.S.Supp.1986, § 1114, Count II--Incest in violation of 21 O.S.1981, § 885, and Count III--Rape by Instrumentation in violation of 21 O.S.1981, § 1111.1. In accordance with the jury's recommendation, the Honorable B.R. Beasley sentenced Hale to two terms of imprisonment for 199 years for Counts I and III, and one 75-year prison term for Count II. Hale has perfected his appeal of these convictions.

Hale raises the following propositions of error on appeal:

I. Statistical evidence that the perpetrator's DNA came from Hale was prejudicial and unduly admitted.

II. State's exhibits which bolstered the testimony and conclusions of the DNA expert were improperly admitted as evidence.

III. The conviction for incest is unsustainable as a matter of law because it is not supported by sufficient evidence.

IV. Hale could not lawfully be convicted of rape and incest on the basis of a single act.

V. Hale was prejudiced in the sentencing proceedings by admission of a booking photograph.

VI. The State failed to meet its burden of proving prima facie that Hale's conviction was constitutionally valid.

After thorough consideration of the entire record before us on appeal including the original record, exhibits, transcripts, and briefs of the parties, we find that Proposition IV has merit.

Hale argues in Proposition IV that he could not lawfully be convicted of rape and incest on the basis of a single act. Title 21 O.S.Supp.1987, § 11 A, provides that "an act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, ... but in no case can it be punished under more than one[.]" This Court has called § 11 "the statutory prohibition on multiple punishment" and held that § 11 is not violated where offenses arising from the same transaction are separate and distinct and require dissimilar proof; the statute is violated where an offense arose from an act which is (1) a mere means to some other ultimate objective, (2) a lesser offense included in some other offense, or (3) merely a different incident or facet of some primary offense. Clay v. State, 593 P.2d 509, 510 (Okl.Cr.1979). Section 11 was promulgated in 1970. In the early seventies this Court decided several cases based on § 11 statutory grounds separate from a double jeopardy analysis.1 In successive opinions On the contrary, § 11 provides a clear legislative statement of intent to be used where a defendant has received multiple punishments in a single trial for offenses arising from the same conduct.4 If a single criminal act gives rise to offenses which are not separate and distinct, are a means to another ultimate objective, are lesser included offenses, or are incidents or facets of some other offense, that conduct may not be punished under more than one statute. The elements of the offenses may be dissimilar if they fall into one of these categories. The point of the analysis is neither whether the offenses arise from the same conduct nor whether they must be proved by the same evidence, but whether, taken as a whole, a defendant has been punished twice for one criminal course of conduct where his offenses were incident to one objective.

the Court appeared to abandon the use of § 11 or discussed it only peripherally in cases decided under traditional double jeopardy analysis.2 More recently the Court seems to have conflated the two, treating § 11 as if it were merely a codification or legislative restatement of the constitutional prohibitions against double jeopardy.3

Section 11 complements double jeopardy, and only where § 11 does not apply need this Court engage in traditional double jeopardy analysis. Oklahoma will apply the "same transaction" test (did the offenses arise from the same criminal conduct?) for cases of multiple trials, and the "same evidence" test5 (does each offense require proof of an additional fact the other does not?) in cases of multiple punishment in a single trial.6 The Blockburger "same evidence" test provides a rule of statutory construction Hale committed an act of forcible rape against his sister. The elements of rape include nonconsensual intercourse by force or fear against a woman not Hale's wife. The elements of incest include sexual intercourse with a person related to Hale within prohibited degrees of consanguinity. Thus the elements of rape and incest require dissimilar proof--one requires lack of consent and use of force or threats, while the other is silent as to consent but requires that the parties be related. However, only one act of intercourse was completed. On the facts of this case, the offense of incest is only a different incident or facet of the offense of rape, both of which had the single objective of sexual intercourse. These facts fall squarely within the prohibition of § 11. Thus, on the facts of this case, Hale's conviction for incest cannot stand.

a guide to determining whether a legislature intended multiple punishments in order to prevent a sentencing court from prescribing greater punishment than a legislature intended.7 In promulgating § 11 our legislature expressed its clear intention that, where an act or omission is punishable under different statutes, a defendant may only be punished once for the single act.

DECISION

The Judgment and Sentence of the trial court as to Counts I and III are AFFIRMED. The Judgment and Sentence of the trial court as to Count II is REMANDED with instructions to DISMISS.

JOHNSON, P.J., and LUMPKIN, J., concur in result.

LANE and STRUBHAR, JJ., concur.

LUMPKIN, Judge, concur in result.

Justice William Rehnquist once wrote:

While the [Double Jeopardy] Clause itself simply states that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb," the decisional law in the area is a veritable Sargasso Sea which could not fail to challenge the most intrepid judicial navigator.

Albernaz v. United States, 450 U.S. 333, 343, 101 S.Ct. 1137, 1144, 67 L.Ed.2d 275 (1981). This Court itself has more than once floundered on the constitutional hazards hidden beneath that same sea's surface, seemingly veering from reef to reef guided not by any fixed judicial principles, but by the whim of whichever judge was in control of the helm. In trying to reconcile our earlier cases, I empathize with what was undoubtedly a frustrating moment for our now Chief Justice. This frustration prompts me to write separately.

I.

I agree with the result in this case, and generally agree with the principles expressed in the well-reasoned opinion by my colleague. However, I cannot agree that certain dicta in this opinion is necessary for determination of the issue before this Court.

My primary complaint lies in language outlining what this Court will do in an instance where multiple trials are involved. When the opinion states "Oklahoma will apply the 'same transaction' test (did the offense arise from the same criminal conduct?) for cases of multiple trials, and the 'same evidence' test (does each offense require proof of an additional fact the other does not?) in cases of multiple punishment in a single trial," ante, at page 1029, it is addressing an issue not before this Court. Nowhere is there an allegation by any party concerning multiple trials; accordingly, this Court has no business addressing the issue, even in dicta.

II.

Second, in the interest of historical accuracy, I must take issue with the statement "[s]ection 11 was promulgated in 1970." Ante at page 1028. To the contrary, while this statutory provision has changed somewhat over the years, it has been on the books of this state and preceding territory since before the turn of the century. See St.1890, Sec. 1861; St.1893, Sec. 1850; St.1903, Sec. 1935; Comp.Laws 1909, Sec. 2032; R.L.1910, Sec. 20921; Comp.St.1921, Sec. 1509; Laws 1970, c. 199, Sec. 1.2 And despite additions over the years, the statute has always been interpreted as prohibiting multiple punishments. See e.g., Richmond v. State, 492 P.2d 349, 350 (Okl.Cr.1971) ("These provisions are not new law, but have been on the statute books for more than half a century."), and cases and discussion therein.

I mention this only to show this Court is not writing on a clean slate, but is (or should be) taking this opportunity to reconcile what could easily be interpreted as conflicting opinions coming from this Court based on very clear principles.

III.

That these principles are in themselves very clear (although their interpretations are obviously not) can be seen in language by the United States Supreme Court interpreting the Fifth Amendment prohibitions against double jeopardy. Based on language by the Supreme Court, I concur in what is the heart of the holding promulgated by this opinion, that 21 O.S.1991, § 11 "provides a clear legislative statement of intent to be used where a defendant has received multiple punishments in a single trial for offenses arising from the same conduct." Ante at 1029. Specifically, "[t]he point of the analysis is neither whether the offenses arise from the same conduct nor whether they must be proved by the same evidence, but whether, taken as a whole, a defendant has been punished twice for one criminal course of conduct where his offenses were incident to one objective." Ante at...

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