Calvert v. State

517 P.3d 977

Joe Gilbert CALVERT, Appellant

v.STATE of Oklahoma, Appellee

No. F-2020-470

Court of Criminal Appeals of Oklahoma.

Filed August 25, 2022

APPEARANCES AT TRIAL

CORBIN BREWSTER, CHIEF PUBLIC DEFENDER, TEDDY COOPER, ASST. PUBLIC DEFENDER, TULSA COUNTY, 423 S. BOULDER, SUITE 300, TULSA, OK 74103, COUNSEL FOR DEFENDANT

KENNETH ELMORE, KEVIN KELLER, ASST. DISTRICT ATTORNEYS, TULSA COUNTY, 500 S. DENVER, SUITE 900, TULSA, OK 74103, COUNSEL FOR THE STATE

APPEARANCES ON APPEAL

STUART SOUTHERLAND, ASST. PUBLIC DEFENDER, TULSA COUNTY, 423 S. BOULDER, SUITE 300, TULSA, OK 74103, COUNSEL FOR APPELLANT

MIKE HUNTER, OKLA. ATTORNEY GENERAL, RANDALL YOUNG, ASST. ATTORNEY GENERAL, 313 N.E. 21^ST STREET, OKLAHOMA CITY, OK 73105, COUNSEL FOR APPELLEE

OPINION

HUDSON, VICE PRESIDING JUDGE:

¶1 Appellant, Joe Gilbert Calvert, was tried and convicted by a jury in the District Court of Tulsa County, Case No. CF-2018-444, of First Degree Felony Murder, in violation of 21 O.S.2001, § 701.7(B). The jury sentenced Appellant to life imprisonment. The Honorable Clifford Smith, District Judge, pronounced judgment and sentence in accordance with the jury's verdict.¹

¶2 The evidence in this case shows that Appellant kidnapped Latricia Fipps on the afternoon of November 20, 2002, near Catoosa, Oklahoma, by handcuffing her and forcing her into an army duffel bag. Fipps had recently ended a turbulent seven-year relationship with Appellant and was heard the night before her abduction arguing with Appellant on the phone and saying: "Joe, don't threaten me because I know too much on you."

¶3 Appellant initially drove Fipps to Tulsa where he made her consume sleeping pills and told her they were "going on a little trip." True to his word, Appellant and his new girlfriend, Shanna Ramsey, then headed for New Mexico in Appellant's SUV with the duffel bag containing Fipps in the backseat. On the way, Appellant stopped at a motel somewhere in the Texas Panhandle where the trio spent the night. Appellant let Fipps out of the duffel bag and carried her—while still handcuffed—inside the motel room. Appellant kept Fipps handcuffed to him while inside the motel room. Sometime during the night, Ramsey awoke to the pair having sex while still handcuffed to each other. At this point, Ramsey went to the bathroom, got high on methamphetamine and took a shower. When she returned, Appellant and Fipps were dressed and ready to leave. Fipps was still handcuffed but not directly attached to Appellant.

¶4 It was before dawn when Appellant, Ramsey and Fipps left for New Mexico. Along the way, they stopped in Tucumcari, New Mexico, at the Circle K. Appellant then drove to his hometown of San Ysidro, New Mexico, to visit an uncle who, it turned out, was not home. Appellant next drove to a national historical park where he, Ramsey and Fipps got out and walked around. Ramsey testified that Appellant showed off the park to the women. At this point, Fipps was no longer handcuffed and everyone was smoking a joint. Fipps and Appellant were also kissing, hugging and acting like a normal couple as they toured the park. Ramsey eventually broke away and found a secluded spot where she used meth. When Appellant decided to leave, all three loaded up in the SUV and headed back for Oklahoma.

¶5 Nightfall soon came and Appellant stopped on the side of the road in a secluded area of New Mexico so the women could enjoy the rising moon. As the trio walked into an adjacent field, Appellant put his arm around Fipps and asked: "Just think you could get away with it? What were you thinking, bitch?" Appellant then threw Fipps to the ground and started strangling her. Fipps fought back and clawed Appellant who promptly ordered Ramsey to grab Fipps's feet. Ramsey complied and Fipps kicked her in the face and bit her. Appellant continued to struggle with Fipps as she kept getting up. In the end, Appellant pinned Fipps to the ground and fatally strangled her using his hands. Fipps's last words of "mommy loves you" were for her young daughter. With the killing complete, Appellant put Fipps's body in the backseat of the SUV, drove thirty minutes to another location in the New Mexico desert and buried the body. Authorities never found Fipps's remains.

¶6 Calvert now appeals from his judgment and sentence, alleging the following propositions of error:

I. THE STATE OF OKLAHOMA LACKED SUBJECT MATTER JURISDICTION TO PROSECUTE APPELLANT FOR A NEW MEXICO MURDER;

II. THE EVIDENCE WAS INSUFFICIENT TO SUPPORT A CONVICTION FOR FIRST DEGREE FELONY MURDER. OKLAHOMA'S KIDNAPPING STATUTE LIMITS ITS APPLICATION TO ACTS COMMITTED IN THIS STATE;

III. THE EVIDENCE WAS INSUFFICIENT TO SUPPORT A CONVICTION FOR FIRST DEGREE FELONY MURDER. THERE WAS A SIGNIFICANT BREAK IN THE CHAIN OF EVENTS AFTER THE ALLEGED OKLAHOMA KIDNAPPING, WHICH NEGATED THE NEXUS REQUIRED FOR FELONY MURDER;

IV. THE JURY WAS NOT PROPERLY INSTRUCTED ON CONSENT

AS A DEFENSE TO THE UNDERLYING CHARGE OF KIDNAPPING;

V. THE JURY WAS IMPROPERLY INSTRUCTED ON "DELIBERATE INTENT" AS DESCRIBED IN OUJI-CR 4-63;

VI. THERE WAS INADEQUATE ACCOMPLICE CORROBORATION OF THE KIDNAPPING CHARGE;

VII. EVIDENCE OF A TELEPHONE CONVERSATION BETWEEN APPELLANT AND THE ALLEGED VICTIM CONSTITUTED HEARSAY AND WAS IMPROPERLY ADMITTED OVER DEFENSE COUNSEL'S OBJECTION;

VIII. THE EXCESSIVE DELAY IN THE PROSECUTION OF THIS CASE ULTIMATELY VIOLATED APPELLANT'S RIGHT TO DUE PROCESS UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION;

IX. PROSECUTORIAL MISCONDUCT SO INFECTED THE STATE'S CLOSING ARGUMENT THAT A NEW TRIAL IS REQUIRED; and

X. APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.

¶7 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 AFFIRMED.

¶8 Proposition I. Appellant claims that Oklahoma law does not provide a statutory basis for Appellant's prosecution in Oklahoma because the injury that caused the death and the death itself occurred in New Mexico. Prior to the commencement of preliminary hearing, Appellant filed an application for writ of prohibition with this Court concerning the jurisdictional issue raised in this proposition of error. We denied extraordinary relief in an unpublished order filed on August 29, 2018. See Order Denying Petition for Writ of Prohibition, Calvert, et al. v. State ex rel. Hon. James Keeley, Special Judge , No. PR-2018-619. This order resolved the jurisdictional issue presented therein, namely, whether Appellant could be prosecuted in Oklahoma for Latricia Fipps's murder when the injury that caused the victim's death and the death itself occurred in New Mexico. We found that the felony murder statute authorized such a prosecution based on the State's theory of the case.

¶9 The State correctly argues on appeal that collateral estoppel now precludes re-litigation of this claim. See Smith v. State, 2013 OK CR 14, ¶ 14, 306 P.3d 557, 564 ; Alverson v. State , 1999 OK CR 21, ¶ 6, 983 P.2d 498, 506. However, because we have not addressed in a published decision the precise question presented here, namely, whether Oklahoma courts may try a felony murder which occurred in another state when the predicate felony of kidnapping arose in Oklahoma, we reiterate herein our holding in Appellant's extraordinary writ action. The felony murder statute provides the statutory basis for Appellant's prosecution in Oklahoma. Section 701.7(B) specifically provides that a person commits the crime of murder in the first degree, regardless of malice, when that person takes the life of a human being during the commission or attempted commission of kidnapping. 21 O.S.2011, § 701.7(B). Section 701.7(B) alternatively provides that a person commits the crime of murder in the first degree, regardless of malice, if the death of a human being results from the commission or attempted commission of kidnapping. Id.

¶10 The State's theory of the case was that Appellant kidnapped Fipps in Tulsa County then drove her to New Mexico where he killed her. The facts here clearly showed both that the victim died during Appellant's commission of kidnapping and that the death of the victim resulted from Appellant's commission of kidnapping, thus providing a statutory basis for Appellant's prosecution for felony murder under Section 701.7(B) in Tulsa County. It was for the jury to resolve any disputed factual questions concerning the continuing vitality, and existence, of the kidnapping at the time of Fipps's death and the nexus between the death of the victim and the underlying felony. Because the trial court had jurisdiction, Proposition I is denied.

¶11 Propositions II and III. The plain language of Oklahoma's kidnapping statute contemplates a kidnapping that involves causing another person to be sent out of the state against his or her will. See 21 O.S.2001, § 741. Nothing in Section 741 prohibits the prosecution of felony-murder based on a kidnapping that commences in Oklahoma and ends in another state. Our cases require a nexus between the death of the victim and the underlying felony for the felony-murder doctrine to apply. Malaske v. State , 2004 OK CR 18, ¶ 5, 89 P.3d 1116, 1118. The homicide charged must have been committed during the perpetration of the underlying crime. Lampkin v. State , 1991 OK CR 33, ¶ 4, 808 P.2d 694, 695. We have held that "if the homicide is committed during the one, continuous transaction, the acts are so closely connected as to be inseparable in terms of time, place and causal relation, and the actions tend to be explanatory and incidental to each other, the homicide has been committed during the felony in our statutory sense." Id. , 1991 OK CR 33, ¶ 4, 808 P.2d at 695 (internal quotation omitted).

¶12 Taken in the light most favorable to the State, sufficient evidence was...