holding defendant who used a firearm during a robbery cannot be punished for both felony murder and use of a firearm in commission of felony because both crimes punish the use of the firearm
How later courts described this case
- holding defendant who used a firearm during a robbery cannot be punished for both felony murder and use of a firearm in commission of felony because both crimes punish the use of the firearm
- holding the element of carrying away merchandise was established even in absence of the challenged jury instruction, thereby, making the instruction superfluous
- providing that where inconsistency goes to the level of each defendant’s culpability, co-defendants may be required to share peremptory challenges
- prosecutor jeopardized case by arguing defendant was a thief, robber, possessor of stolen property, and murderer
Written by the judges who cited it.
The opinion
LUMPKIN, Judge,
concurring in part, dissenting in part.
I concur in the Court’s decision affirming the conviction for Murder in the First Degree and remanding for resentencing, and reversing to dismiss the conviction for Using a Weapon in the Commission of a Crime. However, I find the application of 21 O.S.Supp.1987, § 11 to the convictions of possession of a Stolen Vehicle and Concealing Stolen Property inconsistent with the analysis of the other crimes evidence pursuant to 12 O.S.1981, §§ 2403, 2404, and the facts in this case. If the acts are separate and independent for one purpose, they are separate and independent for both. Under the analysis in the opinion, a person who steals property could never be convicted of concealing that same property, regardless of how far it was transported or what actions were taken to conceal it. I believe this analysis goes far afield of the intent of Section 11. I would affirm both the Possession of Stolen Vehicle and Concealing Stolen Property convictions due to the evidence establishing these offenses were separate offenses based on the acts of the defendant.
I also disagree with the Court’s analysis of the report by A. Eugene Reynolds. This *1311 report is not a part of the record on appeal and this Court should not discuss what might have been if, in fact, it was a part of the records. The Motion to Supplement should be denied, period.