APPEAL FROM THE DISTRICT COURT OF POTTAWATOMIE COUNTY THE
HONORABLE JOHN CANAVAN, JR., DISTRICT JUDGE
MONARD ATTORNEY AT LAW COUNSEL FOR DEFENDANT.
LISBETH L. MCCARTY APPELLATE DEFENSE COUNSEL COUNSEL FOR
PANTER ABBY NATHAN ASSISTANT DISTRICT ATTORNEYS COUNSEL FOR
HUNTER OKLAHOMA ATTORNEY GENERAL KEELEY L. MILLER ASSISTANT
ATTORNEY GENERAL COUNSEL FOR THE STATE.
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.  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.
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
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
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.
We find reversal is not required and affirm the Judgment and
Sentence of the district court.
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.
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.
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.
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 ...