Jackson v. State

548 P.3d 473

2024 OK CR 11

Marcus Larod JACKSON, Appellant

v.The STATE of Oklahoma, Appellee

Case No. F-2021-485

Court of Criminal Appeals of Oklahoma.

Filed: April 18, 2024

APPEAL FROM THE DISTRICT COURT OF CLEVELAND COUNTY; THE HONORABLE MICHAEL D. TUPPER, DISTRICT JUDGE

APPEARANCES AT TRIAL

MICHAEL AMEND, ALEXANDER WILKINSON, 2845 BROCE DR., BLDG. A, NORMAN, OK 73072, ATTORNEYS FOR DEFENDANT

JACOBI WHATLEY, PATRICK CROWE, ASST. DISTRICT ATTORNEYS, 201 S. JONES, NORMAN, OK 73069, ATTORNEYS FOR STATE

APPEARANCES ON APPEAL

REGINALD ARMOR, INDIGENT DEFENSE SYSTEM, 111 N. PETERS, SUITE 100, NORMAN, OK 73069, ATTORNEY FOR APPELLANT

JOHN M. O’CONNOR, ATTORNEY GENERAL, KEELEY L. MILLER, JOSHUA FANELLI, ASST. ATTORNEYS GENERAL, 313 N.E. 21ST ST., OKLAHOMA CITY, OK 73105, ATTORNEYS FOR APPELLEE

OPINION

LEWIS, JUDGE:

¶1 Marcus Larod Jackson, Appellant, was tried by jury with co-defendant Juwan Square and found guilty of Count 1, racketeering, in violation of 22 O.S.2011, § 1103(A); Count 2, conspiracy to commit racketeering, in violation of 22 O.S.2011, § 1403(D); Counts 3 and 4, discharging a firearm into a dwelling, in violation of 21 O.S.2011, § 1289.17A; Count 5, assault and battery with a deadly weapon, in violation of 21 O.S.2011, § 652(C); Count 6, shooting with intent to kill, in violation of 21 O.S.2011, § 652(A); and Counts 7 and 8, possession of a firearm after former conviction of a felony, in violation of 21 O.S.Supp.2014, § 1283(A), in the District Court of Cleveland County, Case No. CF-2019-417. The jury found Counts 1 through 6 were committed after former conviction of two or more felonies, and Counts 7 and 8 were committed after former conviction of a felony; and assessed punishment of sixty years in each count. The Honorable Michael D. Tupper, District Judge, pronounced judgment and ordered the sentences to be served concurrently.¹ Mr. Jackson appeals in the following propositions of error:

1. The State’s evidence was insufficient to prove the violation of the Oklahoma Corrupt Organization Prevention Act;

2. The district court erred when it gave the incorrect instruction pertaining to the range of punishment for all of the counts in violation of the Fourteenth Amendment to the United States Constitution;

3. The district court abused its discretion when it sentenced Mr. Jackson to Counts 5 and 6 in addition to Count 7 because the allegations arose out of the same transaction in violation of Title 21, section 11 of the Oklahoma Statutes;

4. The district court committed error when it erroneously admitted multiple pieces of evidence that were substantially more prejudicial than probative; 5. Multiple instances of hearsay were admitted in violation of the Oklahoma Evidence Code and the Confrontation Clause of the Sixth Amendment to the United States Constitution;

6. The State’s evidence was insufficient to prove conspiracy to commit racketeering;

7. The district court abused its discretion when it denied defense counsel’s request for the lesser related offense instruction of gang-related activity;

8. Mr. Jackson was denied effective assistance of counsel in violation of the Sixth Amendment of the United States Constitution and Article II, §§ 7 and 20 of the Oklahoma Constitution;

9. Mr. Jackson’s sentence is excessive;

10. The accumulation of error in this case deprived Mr. Jackson of due process of law and a reliable sentencing proceeding in violation of the Eighth and Fourteenth Amendments to the United States Constitution and Article II, § 7 and 9 of the Oklahoma Constitution; and

11. This Court should remand Mr. Jackson’s case to the district court with instructions to correct his judgment and sentence to reflect the appropriate conviction in Count 2 by an order nunc pro tunc.

¶2 In Proposition One, Appellant challenges the sufficiency of the evidence to convict him of racketeering. We review this challenge by viewing the evidence in the light most favorable to the prosecution, asking whether any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt. Spuehler v. State, 1985 OK CR 132 ¶ 7, 709 P.2d 202, 203-04.

[1] ¶3 The court correctly instructed the jury on the elements of the offense of racketeering. See 22 O.S.2011, § 1403. Viewed in the light most favorable to the State, the evidence, and reasonable inferences from the evidence, established that Appellant participated in the affairs of an unincorporated criminal enterprise known as the Murder Money Gang by committing or attempting two or more felonies over a roughly six month period in 2018. The evidence provides sufficient rational support for the jury’s verdict finding Appellant guilty of racketeering. Proposition One is denied.

[2–4] ¶4 In Proposition Two, Appellant argues that instructions on the range of punishment were incorrect, and his resulting sentences are erroneous. Trial counsel did not object to the instructions given, and our review is for plain error only. Appellant must now show that plain or obvious error affected the outcome of the proceeding. Hogan v State, 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923. This Court will correct plain error only if it seriously affects the fairness, integrity, or public reputation of the judicial proceedings, or otherwise results in a miscarriage of justice. Id.

[5] ¶5 The gist of Appellant’s complaint is that he never confessed, admitted, or stipulated to the alleged prior convictions, and that the trial court erred in so instructing the jury. In response to this allegation, the State obtained affidavits from two prosecutors and the trial judge stating that Appellant appeared in court with counsel and stipulated to his prior convictions; the State accepted the stipulation; and the trial judge on that basis instructed the jury at sentencing that Appellant had admitted or confessed two prior convictions. The State moved to supplement the record with these affidavits or in the alternative, remand for evidentiary hearing.

¶6 We later remanded for an evidentiary hearing to determine whether Appellant admitted, confessed, or stipulated to his prior convictions as stated in the court’s instructions. The trial court conducted an evidentiary hearing and concluded from the testimony that Appellant had admitted, confessed, or stipulated to the alleged prior convictions, and that the court’s instruction to that effect at sentencing was not in error.

¶7 We find the record on appeal should be supplemented with the record of the evidentiary hearing, as the trial court’s findings and conclusions and the testimony offered at the evidentiary hearing have obvious relevance to our disposition of this proposition. Rule 2.2(C), 3.11(A), Rules of the Oklahoma, Court of Criminal Appeals, Title 22, Ch. 18, App. (2024).

¶8 Affording the trial court’s findings and conclusions on remand the proper deference, we find the trial court properly instructed the jury in the sentencing stage of trial that Appellant had admitted his two prior convictions. No plain or obvious error occurred. Proposition Two is denied.

[6] ¶9 In Proposition Three, Appellant argues that his convictions in Counts 5 and 6 for assault and battery with a deadly weapon and shooting with intent to kill while using the same weapon in the same incident preclude his conviction in Count 7 under the statutory prohibition against multiple punishments for a single criminal act. 21 O.S.2011, § 11. Trial counsel did not object on this ground below, waiving all but plain or obvious error, as defined above. Brink v. State, 2021 OK CR 1, ¶ 4, 481 P.3d 1267, 1269.

[7–9] ¶10 Analysis of a section 11 claim focuses on the relationship between the crimes. Davis v. State, 1999 OK CR 48, ¶ 13, 993 P.2d 124, 126. If the crimes truly arise out of one act, section 11 prohibits prosecution for more than one crime, absent express legislative intent. Id. A convicted felon is guilty of criminal possession the moment he arms himself with a prohibited weapon. Once possessed, the use of a weapon in another crime is generally punishable as criminal separate act. Sanders v. State, 2015 OK CR 11, ¶ 7, 358 P.3d 280, 283-84. As Appellant was feloniously armed prior to the shootings, separate punishments do not plainly or obviously violate section 11. Proposition Three is denied.

¶11 In Proposition Four, Appellant challenges the admission of various items in evidence at trial. He objected to some items (State’s Exhibits 522, 522A), but not others (State’s Exhibits 486, 495M, 495N). We review alleged evidentiary errors preserved by timely objection for abuse of discretion, Gillioms v. State, 2022 OK CR 3, ¶ 34, 504 P.3d 613, 621, defined as a clearly erroneous conclusion and judgment, contrary to the logic and effect of the facts presented. Neloms v. State, 2012 OK CR 7, ¶ 35, 274 P.3d 161, 170. When evidence is not met with a timely objection, our review is limited to plain error, as defined above.

¶12 Reviewing the evidence that met no objection, we find the challenged items met the general test of relevance to the issues on trial and were not plainly or obviously admitted in error. Considering these items in the context of the remaining evidence at trial, we further find that any error in admitting these items did not seriously affect the fairness, integrity, or public reputation of the proceedings, and no relief is warranted.

[10] ¶13 Reviewing State’s Exhibits 522 and 522A, which were photographs depicting a female associate of the gang (and prosecution witness at trial) in possession of a particular firearm, we find this evidence satisfied the broad test of relevance, and was not substantially more prejudicial than probative. No abuse of discretion is shown in the admission of this evidence. Further, considering these two items in the context of the other properly admitted evidence at trial, we conclude that any error did not result in a miscarriage of justice or substantial violation of a constitutional or statutory right. No relief is...