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Mitchell v. State

Court of Criminal Appeals of Oklahoma

June 28, 2018

IMMANUEL GERALD DEAN MITCHELL, Appellant
v.
THE STATE OF OKLAHOMA, Appellee.

          AN APPEAL FROM THE DISTRICT COURT OF POTTAWATOMIE COUNTY THE HONORABLE JOHN CANAVAN, JR., DISTRICT JUDGE

          LARRY MONARD ATTORNEY AT LAW COUNSEL FOR DEFENDANT.

          LISBETH L. MCCARTY APPELLATE DEFENSE COUNSEL COUNSEL FOR APPELLANT.

          ADAM PANTER ABBY NATHAN ASSISTANT DISTRICT ATTORNEYS COUNSEL FOR THE STATE.

          MIKE HUNTER OKLAHOMA ATTORNEY GENERAL KEELEY L. MILLER ASSISTANT ATTORNEY GENERAL COUNSEL FOR THE STATE.

          OPINION

          ROWLAND, JUDGE.

         ¶1 Appellant Immanuel Gerald Dean Mitchell appeals his Judgment and Sentence from the District Court of Pottawatomie County, Case No. CF-2015-435, for Murder in the First Degree -- Felony Murder (Count 1) in violation of 21 O.S.Supp.2012, § 701.7 (B) and Conspiracy to Commit Robbery with a Dangerous Weapon (Count 2) in violation of 21 O.S.2011, § 421. [1] The Honorable John Canavan, Jr. presided over Mitchell's jury trial and sentenced him in accordance with the jury's verdict to life imprisonment on Count 1 and eight years imprisonment on Count 2. [2] Judge Canavan ordered Mitchell's sentences to run consecutively. Mitchell raises the following issues:

I. whether the district court's failure to hold a hearing on the admissibility of the alleged co-conspirators' statements violated his rights to a fair trial and due process of law;
II. whether the State presented sufficient evidence to corroborate the testimony of his accomplices;
III. whether the evidence was sufficient to sustain his convictions;
IV. whether Instruction Number 1-8A, OUJI-CR(2d) improperly shifted the burden of proof;
V. whether the prosecutor's statement during jury selection concerning parole eligibility was error;
VI. whether the district court erred by not removing sua sponte two prospective jurors for cause;
VII. whether his jury panel was tainted;
VIII. whether prosecutorial misconduct deprived him of a fair trial;
IX. whether the district court erred in admitting text messages between the members of the conspiracy;
X. whether he was denied a fair trial because of ineffective assistance of counsel; and
XI. whether cumulative error deprived him of a fair trial.

         ¶2 We find reversal is not required and affirm the Judgment and Sentence of the district court.

         Background

         ¶3 Early on the morning of May 4, 2015, officers with the Shawnee Police Department responded to a 911 call from a citizen stating that a red car had crashed through her fence and into a tree in her backyard. Inside this car, the officers found John Columbus unresponsive and slumped over in the driver's seat with a fatal bullet wound to his back.

         ¶4 The evidence showed that Columbus had driven to that neighborhood to sell marijuana to Ramie Brown, who had arranged to meet him at Mitchell's house. Little did Columbus know that Brown and Austin Olinger had devised a scheme to rob him of his marijuana, or that they would soon involve Mitchell, Cody Taylor, and Kiwane Hobia in their criminal conspiracy. The plan was for Brown to get into the car with Columbus to make the purchase and, when Columbus produced the marijuana, to grab it and flee. Needing a ride to Mitchell's house, Olinger called Taylor who arrived in his white Chevrolet Trailblazer and he drove Brown and Olinger to Mitchell's, the designated meeting place.

         ¶5 When Columbus arrived at Mitchell's house, Brown got into Columbus' car as planned and the two drove away. When Brown asked where they were going, Columbus explained that he did not have the marijuana with him and that they were heading to his house to get it. Brown then informed Columbus that he did not have the purchase money with him and the two of them returned to Mitchell's house. Brown got out and told Olinger, Mitchell, and Hobia that Columbus wanted his money up front, prompting a change of plan. Brown rejoined Columbus and Olinger, Mitchell and Hobia also got into Columbus' car. Columbus followed Olinger's directions, believing he was going to where the money was. Columbus parked in a nearby parking lot as directed and guns were pointed at his and Brown's heads. Brown testified that Mitchell was the one pointing a gun at Columbus and that he instructed Columbus not to move. Brown exited the car and ran, but before he was out of the parking lot, he heard a gunshot. He turned in time to see Mitchell standing outside the car behind the driver's side door with a pistol in his hand. The conspirators all scattered on foot.

         ¶6 Taylor, who had stayed behind at Mitchell's house, picked up a somewhat excited Olinger and Hobia, who were out of breath and barely talking. Olinger directed Taylor to the crime scene parking lot where he got out and grabbed a gun holster lying by the curb before the three returned to Mitchell's house. Mitchell was at his house and out of breath like he had been running. Mitchell asked Taylor to go for cigarettes. Olinger went with Taylor, but the two were pulled over by police on their way back from the store. The officers noted a strong odor of marijuana coming from inside Taylor's Trailblazer. A ...


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