Stohler v. State ex rel. Lamm

Decision Date12 March 1985
Docket NumberNo. O-84-670,O-84-670
Citation1985 OK CR 30,696 P.2d 1038
PartiesJimmie Dean STOHLER, Petitioner, v. The STATE of Oklahoma, ex rel., the Honorable Margaret LAMM, Judge of the District Court within and for Tulsa County, State of Oklahoma, Respondent.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
OPINION

BRETT, Judge:

On March 23, 1982, a preliminary information was filed in Tulsa County District Court, Case No. CRF-82-1067, charging the petitioner and Jack Ensminger, Jr. with First Degree Murder, 21 O.S.1981, § 701.7. The information alleged that the two men, while acting in concert, killed Michelle Rae Powers by shooting her with a bolt from a crossbow. The petitioner was arraigned on September 7, 1982. On May 4, 1983, after a grand jury indictment was returned, the Attorney General filed another information, Tulsa County District Court Case No. CRF-83-1588, additionally charging the petitioner with Conspiracy to Commit Murder, 21 O.S.1981, § 421.

Upon his February 9, 1984, plea of nolo contendere to the conspiracy charge, the petitioner was found guilty and sentenced to ten years in prison. The petitioner now asks this Court to prohibit the Honorable Margaret Lamm, District Judge, Tulsa County, and the State of Oklahoma, from proceeding to trial on the murder charge and to require her to dismiss the charge pursuant to 21 O.S.1981, § 11 and the Double Jeopardy clause of Okla. Const. art. II, § 21. We decline to do so.

The double jeopardy clauses found in the United States, and Oklahoma Constitutions provide that no person shall be twice put in jeopardy of life or liberty for the same offense. In North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), the United States Supreme Court held that the federal constitutional prohibition against double jeopardy protects against a second prosecution for the same offense after acquittal or conviction, as well as protecting against multiple punishments for the same offense. Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

This Court has long held that a conspiracy to commit an unlawful act constitutes an independent crime, complete in itself and distinct from the unlawful act contemplated. Combs v. State, 94 Okl.Cr. 226, 233 P.2d 314 (1951); McCreary v. Venable, 86 Okl.Cr. 169, 190 P.2d 467 (1948); Burns v. State, 72 Okl.Cr. 432, 117 P.2d 155 (1941). The crimes of Conspiracy to Commit Murder and First Degree Murder each have at least one element that the other lacks. Conspiracy to Commit Murder requires two or more persons planning together; First Degree Murder requires the death of a person. Clearly these are two separate offenses, the prosecution of which is not barred by Double Jeopardy.

Nor is prosecution of both offenses barred by 21 O.S.1981, § 11. As this writer stated in Shackelford v. State, 481 P.2d 163 (Okl.Cr.1971):

If two criminal acts are committed--which are separate and independent acts--punishment for the second act is not proscribed by 21 O.S.Supp.1970 § 11; however, each separate act can be charged under only one statute, whether there is a conviction or acquittal, even though it may violate several statutes.

Id. at...

To continue reading

Request your trial
12 cases
  • Pavatt v. State
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • May 8, 2007
    ...of that plan, separately from the completed crime itself. See e.g. Harjo v. State, 1990 OK CR 53, ¶ 17, 797 P.2d 338, 342; Stohler v. State ex rel. Lamm, 1985 OK CR 30, ¶ 4, 696 P.2d 1038, 1040; McCreary v. Venable, 86 Okl.Cr. 169, 190 P.2d 467 (1948). ¶ 21 Appellant relies heavily on Stewa......
  • Harjo v. State
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • August 2, 1990
    ...motion to dismiss Count II on the basis of double jeopardy. This Court was presented with an identical argument in Stohler v. State ex rel. Lamm, 696 P.2d 1038, (Okl.Cr.1985). There, we stated "that a conspiracy to commit an unlawful act constitutes an independent crime, complete in itself ......
  • Johns v. State
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • August 28, 1987
    ...the appellants should not be convicted and punished for both the conspiracy and the murder. See Stohler v. State, 696 P.2d 1038, 1041 (Okl.Cr.1985) (Parks, P.J., dissenting). In my view, the conspiracy merged into the attempted robbery, which served as the predicate for felony-murder, and t......
  • Littlejohn v. State
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • December 31, 1998
    ...act constitutes an independent crime, complete in itself and distinct from the unlawful act contemplated." Stohler v. State ex rel. Lamm, 1985 OK CR 30, 696 P.2d 1038, 1040. See also Huckaby v. State, 1990 OK CR 84, 804 P.2d 447, 450. Title 21, Section 11(A) does not alter this determinatio......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT