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Alexander v. State

Court of Criminal Appeals of Oklahoma

September 5, 2019








          ROWLAND, JUDGE

         ¶1 Appellant Reshaun Antonio Alexander appeals his Judgment and Sentence from the District Court of Muskogee County, Case No. CF-2015-603, for Unlawful Possession of a Controlled Drug (Methamphetamine) with Intent to Distribute (Count 1), in violation of 63 O.S.Supp.2012, § 2-401 (B)(2); Unlawful Possession of a Controlled Drug (Cocaine) with Intent to Distribute (Count 2), in violation of 63 O.S.Supp.2012, § 2-401 (B)(2); Unlawful Possession of a Firearm by a Convicted Felon (Count 3), in violation of 21 O.S.Supp.2014, § 1283 (A); Burglary in the First Degree (Count 4) in violation of 21 O.S.2011, § 1431; Burglary in the Second Degree (Count 5) in violation of 21 O.S.2011, § 1435; Knowingly Concealing Stolen Property (Count 6) in violation of 21 O.S.2011, § 1713; Eluding/Attempting to Elude Police Officer (Count 8) in violation of 21 O.S.2011, § 540A; Leaving the Scene of an Accident Involving Damage (Count 9) in violation of 47 O.S.2011, § 10-103; Intersection Violation-Stop or Yield (Count 10)(misdemeanor) in violation of 47 O.S.2011, § 11-403; and Possession of a Controlled Dangerous Substance (Oxycodone), Second and Subsequent (Count 11) in violation of 63 O.S.Supp.2012, § 2-402. [1] The jury found Alexander committed each of the felony counts after former conviction of two or more prior felonies. The Honorable Michael Norman, District Judge, presided over Alexander's jury trial and sentenced him, in accordance with the jury's verdict, to fifteen years imprisonment on each of Counts 1, 2, 6, and 11, twenty years imprisonment on Count 3, thirty-five years imprisonment on Count 4, ten years imprisonment on Count 5, five years imprisonment on Count 8, one year in the county jail on Count 9, and ten days in the county jail on Count 10. [2] Judge Norman ordered all counts to run concurrently with the exception of Count 4 which he ordered to run consecutively to sentences running concurrently. [3] Alexander raises the following issues on appeal:

(1) whether the district court erred by denying his motion for continuance;
(2) whether the district court compelled him to be tried in prison clothing;
(3) whether his waiver of the right to counsel was voluntary;
(4) whether his convictions and sentences for Count 3 -- Possession of a Firearm After Former Conviction of a Felony and Count 4 -- Knowingly Concealing Stolen Property violate the state prohibition against multiple punishments;
(5) whether his convictions for two counts of Unlawful Possession of a Controlled Drug With Intent to Distribute (Counts 1 and 2) violate the prohibitions against double punishment and double jeopardy;
(6) whether there was sufficient evidence to support his conviction for Knowingly Concealing Stolen Property;
(7) whether he was denied a fair trial from the admission of victim impact evidence during the guilt-innocence phase of trial; and
(8) whether he was denied a fair trial by the presentation of cumulative and prejudicial exhibits offered for sentence enhancement.

         ¶2 We find relief is not required and affirm the Judgment and Sentence of the district court on Counts 1, 3, 4, 5, 8, 9, 10, and 11. We do find, however, that relief is required on Counts 2 and 6 for the reasons discussed below.


         ¶3 Officers Danny Dupont and Matt Burleson of the Muskogee Police Department were on patrol together on June 30, 2015. Around 11:00 a.m., they saw a brown, four-door Buick speeding down a residential street. They pursued the car and watched it fail to stop at posted stop signs. The officers endeavored to make a traffic stop, but the driver of the Buick led them on a high speed chase around the east side of Muskogee. The chase ended when the Buick sideswiped a parked car causing the parked car to collide with a house. Alexander, the driver, abandoned the Buick and ran away on foot. The two officers followed on foot after him, but both officers were no match for the speed of Alexander. Officer Dupont described Alexander as extremely tall, wearing blue jeans, a blue shirt and a ball cap. Alexander ran through several residential backyards and the officers ran parallel with him in an attempt to block his path. Officer Dupont realized the need for more manpower and radioed for assistance. Officer Dupont lost sight of Alexander behind an abandoned house; he then guarded the perimeter because other officers were pursuing Alexander by that time. A short time later, Officer Dupont saw Alexander running through a field carrying a knife. He watched as other officers gave Alexander verbal commands. When Alexander refused to comply, an officer close to Alexander deployed his taser and was able to take Alexander into custody. Officer Dupont returned to the abandoned Buick and called for a wrecker to impound it. He inventoried its contents and found a loaded, stolen semiautomatic pistol in the floorboard and baggies containing pills, a crystal-like substance and an off-white, rock-like substance in the ashtray. A criminalist with the Oklahoma State Bureau of Investigation tested the contents of the baggies and concluded the substances were oxycodone, methamphetamine and cocaine.

         ¶4 One of Alexander's burglary victims testified that she was on her way home from Tulsa when she received a call from a neighbor telling her there was a man running through their neighborhood being chased by police and that the man had gone through her house. She returned home and found her front door kicked in. Police showed her a photograph of the knife taken from Alexander upon his arrest and she identified it as one of hers from her kitchen.

         ¶5 Another neighbor testified she heard someone rattling her back door on June 30th shortly after her son left for the gym around 11:15 a.m. She raised the blind on the door and saw a black man trying to get inside. She ran for the front door to escape, but the man was able to burst through the back door and grab her. He said that he was not trying to hurt her and that he was just trying to get away from the police. He guided her to the bedroom, shoved her down, told her to stay there and went to another room. She pushed her Life Alert button and informed the operator there was an intruder in her house. He rushed back to the bedroom and yanked the Life Alert necklace from her neck. As the police got closer to her house, Alexander fled and was apprehended soon thereafter. Her son returned home, checked on his mother and surveyed the damage. He found in the living room a blue shirt, damp with sweat, that did not belong to anyone that lived there. He gave it to the police.

         1. Motion for Continuance

         ¶6 Alexander claims the district court erred by denying his oral request for continuance for time to review discovery, conduct legal research and otherwise prepare for trial. He maintains that the district court's refusal to grant a continuance of any time after granting his Faretta motion forced him to trial unprepared to defend the charges against him. [4] Generally, we review a district court's ruling on a motion for continuance for an abuse of discretion and we will not disturb that ruling absent proof of error and prejudice. Lamar v. State, 2018 OK CR 8, ¶ 34, 419 P.3d 283, 293; Marshall v. State, 2010 OK CR 8, ¶ 44, 232 P.3d 467, 478. An abuse of discretion is any unreasonable or arbitrary ruling made without proper consideration of the facts and law pertaining to the issue. Neloms v. State, 2012 OK CR 7, ¶ 35, 274 P.3d 161, 170.

         ¶7 Prior to jury selection, the district court held a Faretta hearing to consider Alexander's request to represent himself . Alexander made the request the morning of trial because he believed appointed counsel had rendered ineffective assistance. He felt appointed counsel was unprepared for trial because counsel had not been in contact with him until the preceding day, had not issued any subpoenas for witnesses and had not provided him with any discovery materials in his case. [5] During the Faretta colloquy, the district court addressed trial continuances with Alexander and he acknowledged that his case was set for jury trial and that no continuances would be allowed. The district court accepted Alexander's waiver of counsel and granted his motion for self-representation .

         ¶8 Alexander immediately asked for a minimum six-month continuance to prepare for trial. The district court denied Alexander's continuance request, noting the case had been ongoing for two-and-a-half years and one witness had already died. Alexander protested the adverse ruling, and the district court told him that it would get any subpoenas issued once Alexander provided the names and addresses of his anticipated witnesses. The prosecutor supplemented the record with reasons why the case remained unresolved, including delay occasioned by the performance of a competency evaluation finding Alexander competent, Alexander's bar complaint against his first appointed attorney, Alexander's request for time to hire private counsel without private counsel ever being retained, and the prosecution's filing of additional charges against Alexander for possessing contraband in jail. The prosecutor noted that Alexander had been present for preliminary hearing and insisted he had been well aware of the underlying facts of the charges against him for quite some time.

         ¶9 Alexander claims that his request for continuance was governed by 22 O.S.2011, § 584 and that he provided sufficient cause for postponement of his trial. [6] He argues that a defendant who elects to proceed to trial pro se after dismissing his attorney based on concerns of incompetence must be granted time to prepare for trial. See Coleman v. State, 1980 OK CR 75, ¶ 6, 617 P.2d 243, 245. He relies on the reasoning in United States v. King, 664 F.2d 1171 (10th Cir. 1981), to support his claim for relief. The court in King granted relief because of the denial of a continuance request made by an attorney who took over a complex income tax evasion case twenty-seven days before trial. The court in King stressed the importance of competent counsel, noting that deprivation of the Sixth Amendment guarantee of effective representation will "mandate reversal of a conviction even absent a showing that the resulting prejudice affected the outcome of the case." Id. at 1172-73.

         ¶10 The King court explained that inadequate preparation by counsel jeopardizes an accused's right to effective assistance of counsel and that inadequate preparation may result from unreasonable time constraints imposed by the trial court. Id. at 1173. The court identified five factors to consider in deciding whether the given preparation time was sufficient to permit the attorney to effectively assist his client. The court acknowledged the general deference afforded rulings on continuance requests, but refused to ignore constitutional implications associated with such rulings. Id. (stating, "[a]lthough rulings on motions for continuance are traditionally best left to the trial court's discretion, a judge is not imbued with the power to abrogate a criminal defendant's constitutional rights.").

         ¶11 Part of Alexander's request for continuance was predicated on the absence of evidence because appointed counsel had not issued subpoenas for witnesses that Alexander anticipated being called for the defense. [7] His failure to follow the procedures outlined in 12 O.S.2011, § 668 for continuances predicated on missing evidence forfeits this part of his claim for review. Waterdown v. State, 1990 OK CR 65, ¶ 5, 798 P.2d 635, 637.

         ¶12 His claim that the denial of his request prevented him from adequately reviewing the discovery and conducting research in a law library warrants no relief. Contrary to Alexander's claim, his case is not subject to the same constitutional analysis as that in King. He was the one who sought self-representation the morning of trial, his appointed attorney's readiness notwithstanding. Any lack of preparation was self-induced, i.e. the result of his own request. The district court was clear during the Faretta hearing that there would be no continuances, and Alexander persisted in waiving his right to counsel and exercising his right to self-representation. It was not unreasonable to condition the grant of Alexander's Faretta motion on his ability to immediately proceed to trial.

         ¶13 The bigger hurdle for Alexander, however, is his inability to show prejudice. The evidence against him was undeniably strong. He was identified by police officers as the man driving the Buick and running through the residential neighborhood to avoid apprehension by the police. He had a knife from one of the burglarized homes in his possession when apprehended. His shirt, damp with sweat, was found in the other burglarized home. Although he tried valiantly to challenge the officers' identifications, there was little he could offer and he does not, now on appeal, identify witnesses or evidence he could have presented to ...

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