In this case, the police were serving an arrest warrant for the Defendant (a known felon), and upon entering the house and arresting the Defendant, they saw a gun on the table. The gun was later determined to be stolen. Defendant was convicted of Possession of a Firearm After Conviction of a Felony and Knowingly Concealing Stolen Property After Former Conviction of a Felony. The jury recommended 10 years in Count 1 and 2 years in Count 2.
The Defendant appealed, based on several claims. The first proposition, “The State violated the prohibition against double jeopardy by carving two crimes from one presence of a gun,” was the most important one discussed in this opinion.
21 O.S. 11(A) says:
“If there be in any other provision of the laws of this state a provision making any specific act or omission criminal and providing the punishment therefor, and there be in this title any provision or section making the same act or omission a criminal offense or prescribing the punishment therefor, that offense and the punishment thereof, shall be governed by the special provisions made in relation thereto, and not by the provisions of this title. But an act or omission which is made punishable in different ways by different provisions of this title may be punished under any of such provisions, except that in cases specified in Section 434 of this act or Section 54 of this title, the punishments therein prescribed are substituted for those prescribed for a first offense, but in no case can a criminal act or omission be punished under more than one section of law; and an acquittal or conviction and sentence under one section of law bars the prosecution for the same act or omission under any other section of law.”
In contrast to a typical Blockburger double jeopardy claim, this statute deals with the state prohibition of “double punishment.” Many practitioners, and judges, are unaware of a Section 11 claim, and so it is rarely brought up at the trial level. Fundamentally, this statute deals with whether the two crimes arise out of the same act.
Unlike the facts in this case, the Court of Criminal Appeals found there was “no temporal break in time between Appellant’s possession of the gun and his concealing it” and as such found “Appellant’s act of having the gun improperly resulted in two charges and resulting convictions.” The Court further found the trial court abused its discretion and ordered Count II dismissed.
Here’s the problem: why was Count II the one ordered dismissed? How could the Court of Criminal Appeals know which case the DA would have chosen to pursue if the trial court had made the right decision in the first place?
For the second proposition of error (“The trial court erred in failing to hold a three stage trial”), the Court determined that failing to hold a three stage trial was harmless error. Essentially, the jury was instructed that the Defendant had been charged with knowingly concealing stolen property after former conviction of a felony. They were then told he was presumed not to have been previously convicted and it was the State’s burden to prove the prior conviction beyond a reasonable doubt. Somehow these limiting instructions are enough to purge any taint of knowing the Defendant might have had a prior felony conviction. This is, of course, bullshit, but the Court has been consistent in ruling this way.
Propositions III, IV, V and VII were found to be moot by reason of the dismissal of Count II. In proposition VI, the Court found the officers could conduct a “protective sweep” of the residence, even after arresting the Defendant, and in any event the gun was in “plain view.” They further found that calling in the serial number to see if it was stolen was moot because the KCSP was dismissed in Proposition I.
In Proposition VII, the Court found that there was enough evidence of “constructive possession” at trial, but does not go into much detail about what evidence was actually presented.
In Proposition IX, the Court reiterates their standard for overturning a case based on prosecutorial misconduct and improper argument, namely that the prosecutor committed misconduct that so infected the trial it was rendered fundamentally unfair. Further, that no matter how bad the misconduct is, that it must be evaluated within the context of the whole trial, including the strength of the evidence against the Defendant and the corresponding arguments of defense counsel. In other words, the Court of Criminal Appeals will put themselves in the minds of the jury and will determine if the misconduct affected their judgment of guilt. Further, the Court inexplicably held that the prosecutor’s argument that because the Defendant didn’t present a video interview of himself, that should be considered evidence of guilt, did not improperly shift the burden of proof. It is findings like this that I struggle to reconcile with true fairness in the system.
In Proposition X, the Court found that the trial court saying presumed “not guilty” during voir dire was cured by the written instruction on the presumption of innocence and was not plain error.
In Proposition XI, it was not more prejudicial than probative that the trial court allowed evidence of other stolen guns because Count II was dismissed. This again ignores that the jury still heard this evidence and could have used it for either the guilt on count I, or at the very least their sentencing recommendation. Same thing with evidence that police were at the house on several prior occasions and that the people investigating the crimes were narcotics officers.
In Proposition XII, the Court reiterates the standard for ineffective assistance of counsel: deficient performance AND prejudice. There is a strong presumption that counsel’s conduct falls within the range of reasonable professional conduct and that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. So basically almost never.
Last, in Proposition XIII the Court denies the assertion of cumulative error because most of the items were not error in their view, and, hey, we already dismissed one count.
The bottom line is this: in Oklahoma the prosecution is given every benefit of the doubt and the Defendant is required to make nearly impossible showings to prove that a trial was unfair. The Court pretends to know what factors juries consider when making guilt and sentencing determinations, which is completely absurd.