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Davis v. State

Court of Criminal Appeals of Oklahoma

March 22, 2018

TERRON A. DAVIS, Appellant
v.
THE STATE OF OKLAHOMA, Appellee.

          AN APPEAL FROM THE DISTRICT COURT OF CLEVELAND COUNTY THE HONORABLE TRACY SCHUMACHER, DISTRICT JUDGE

         APPEARANCES AT TRIAL

          JAMES RADFORD RAVEN SEALY, COUNSEL FOR DEFENDANT

          JENNIFER AUSTIN, CHRISTY MILLER, SSISTANT DISTRICT ATTORNEY, SCOUNSEL FOR THE STATE

         APPEARANCES ON APPEAL

          JAMIE D. PYBAS COUNSEL FOR APPELLANT

          E. SCOTT PRUITT, OKLAHOMA ATTORNEY GENERAL, ROBERT WHITTAKER, ASSISTANT ATTORNEY GENERAL, COUNSEL FOR APPELLEE

          SUMMARY OPINION

          HUDSON, JUDGE

         ¶1 Appellant, Terron A. Davis, was tried by a jury and convicted in Cleveland County District Court, Case No. CF-2013-1293, of Count 1: Attempted Robbery with a Weapon, After Two Prior Felony Convictions, in violation of 21 O.S.2011, § 801; Count 2: Assault and Battery with a Deadly Weapon, After Two Prior Felony Convictions, in violation of 21 O.S.2011, § 652; and Count 3: Burglary in the First Degree, After Two Prior Felony Convictions, in violation of 21 O.S.2011, § 1431. [1] The jury recommended as punishment twenty-five (25) years imprisonment on each of Counts 1 and 3, and life imprisonment on Count 2. On March 9, 2016, the Honorable Tracy Schumacher, District Judge, sentenced Davis in accordance with the jury's verdicts. [2] Judge Schumacher further ordered the sentences for all three counts to run concurrently and ordered credit for time served.

         ¶2 Davis now appeals, raising ten (10) propositions of error before this Court:

I. CONVICTIONS AND SENTENCES FOR ATTEMPTED ROBBERY WITH A WEAPON, ASSAULT AND BATTERY WITH A DEADLY WEAPON, AND BURGLARY IN THE FIRST DEGREE, VIOLATED APPELLANT'S RIGHT TO BE FREE FROM MULTIPLE PUNISHMENT UNDER 21 O.S.2011, § 11;
II. BECAUSE THE TRIAL COURT'S INSTRUCTIONS IMPROPERLY ALLOWED A CONVICTION FOR ASSAULT AND BATTERY WITH A DEADLY WEAPON WITHOUT REQUIRING PROOF OF AN INTENT TO KILL, THE JUDGMENT AGAINST APPELLANT MUST BE MODIFIED;
III. THE TRIAL COURT ERRED IN REFUSING TO INSTRUCT THE JURY ON ASSAULT AND BATTERY WITH A DANGEROUS WEAPON AS A LESSER RELATED OFFENSE TO THE CHARGED COUNT OF ASSAULT AND BATTERY WITH A DEADLY WEAPON, IN VIOLATION OF APPELLANT'S FUNDAMENTAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE II, §§ 7 AND 20 OF THE OKLAHOMA CONSTITUTION;
IV. THE TRIAL COURT ERRED BY DENYING APPELLANT'S REQUEST TO SEVER THE TRIAL IN VIOLATION OF THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, ARTICLE II, §§ 7 AND 20 OF THE OKLAHOMA CONSTITUTION AND 22 O.S.2011, § 439;
V. APPELLANT WAS DENIED HIS RIGHT TO FIVE SEPARATE PEREMPTORY CHALLENGES EVEN THOUGH HE AND HIS CODEFENDANTS HAD INCONSISTENT DEFENSES, IN VIOLATION OF HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL UNDER THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, 22 O.S.2011, § 655, AND ARTICLE II, §§ 7, 19, AND 20 OF THE OKLAHOMA CONSTITUTION;
VI. THE ADMISSION OF THE EXTRAJUDICIAL IDENTIFICATIONS OF APPELLANT VIOLATED HIS DUE PROCESS RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE II, §§ 7 AND 20 OF THE OKLAHOMA CONSTITUTION;
VII. THE TRIAL COURT ERRED BY FAILING TO GIVE A CAUTIONARY JURY INSTRUCTION ON EYEWITNESS IDENTIFICATION IN VIOLATION OF APPELLANT'S DUE PROCESS RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE II, §§ 7 AND 20 OF THE OKLAHOMA CONSTITUTION;
VIII. APPELLANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE II, §§ 7 AND 20 OF THE OKLAHOMA CONSTITUTION;
IX. UNDER ALL OF THE FACTS AND CIRCUMSTANCES OF THIS CASE, A LIFE SENTENCE FOR ASSAULT AND BATTERY WITH A DEADLY WEAPON IS SHOCKINGLY EXCESSIVE;
X. THE ACCUMULATION OF ERRORS DEPRIVED APPELLANT OF A FAIR TRIAL AND RELIABLE VERDICT.

         ¶3 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 ...


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