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Tokman v. State

February 13, 1998

GEORGE DAVID TOKMAN
v.
STATE OF MISSISSIPPI



THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-A DATE OF JUDGMENT: 05/09/95 TRIAL JUDGE: HON. L. BRELAND HILBURN, JR. COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT

NATURE OF THE CASE: CIVIL - POST CONVICTION RELIEF DISPOSITION AFFIRMED - 2/12/98 MOTION FOR REHEARING FILED: MANDATE ISSUED:

Before Sullivan, P.j., Banks And Mills, JJ.

The opinion of the court was delivered by: Banks, Justice, For The Court:

The appellant, George David Tokman, was originally convicted of capital murder and sentenced to death. That death sentence was reversed and remanded for resentencing. While awaiting resentencing, Tokman entered a plea agreement with the State, avoiding the possibility of death. He now assigns as error a double jeopardy violation, involuntary plea bargain agreement, insufficiency of the evidence, ineffective assistance of counsel, an improper waiver of a statute of limitation violation, and cumulative error. Because we find that none of these arguments have merit, we affirm the lower court proceedings.

I.

This Court first became involved with Tokman during the appeal of his original conviction and sentence for capital murder. See Tokman v. State, 435 So. 2d 664 (Miss. 1983). The instant case stems primarily from those facts, and we therefore briefly recite them.

On or about August 22, 1980, Tokman and two cohorts, Jerry Fuson and Michael Leatherwood, were members of the United States Army and were stationed in Fort Polk, Louisiana. The threesome visited Jackson to obtain Fuson's car that had previously been left in Jackson. After being in Jackson for about three and a half days, they decided to rob a cab driver as they had no money. According to Fuson, who testified for the State, Tokman and Leatherwood also decided to kill the cab driver.

Sixty-five-year-old Albert Taylor was dispatched to pick up the three men. They instructed him to take them to a deserted location where Leatherwood placed a rope around the cab driver's neck and pulled him into the back seat. Fuson stopped the cab while Tokman got into the driver's seat and drove the cab to the rear of Meadowbrook Cinema. Fuson then left the group and retrieved his car. He returned to the scene of the crime shortly after that where he picked up Tokman and Leatherwood. As they drove away, Leatherwood commented that Tokman stabbed Taylor. Tokman did not deny the statement. According to Fuson, Tokman later stated that he cut his hand while stabbing the cab driver. They stole about $11.50, a pistol, wallet, two money bags, and a set of keys from Taylor.

On August 24, 1980, a Jackson Police Department sergeant found Taylor's body. An autopsy revealed that he died from blows to the head with a dull blunt object. A fingerprint taken from a window of the cab matched Tokman's. A nurse from a hospital in Vicksburg testified that at 1:30 a.m. on August 24, three white males came into the emergency room of the Regional Medical Center. One man identified himself as George David Tokman. He had blood on his clothes and a cut on his hand. He received five stitches in his right hand. Another witness, who knew Tokman, Fuson, and Leatherwood from the Army, testified that Tokman told him they killed a cab driver in Jackson, Mississippi and that Tokman bragged about the murder as he showed him a newspaper article about the crime.

A jury found Tokman guilty of capital murder, and we affirmed his conviction and sentence of death. Tokman v. State, 435 So. 2d 664. On October 01, 1984, however, Tokman filed a petition for post-conviction relief that contained nineteen claims for relief, including ineffective assistance of counsel. The State responded that an evidentiary hearing was necessary as the record was insufficient to determine whether Tokman did, in fact, receive effective assistance of counsel. Therefore, in Tokman v. State, 482 So. 2d 241 (Miss. 1986), this Court granted his application for leave to proceed in the trial court on the issue of ineffective assistance of counsel.

Following the evidentiary hearing, the trial court concluded that Tokman received constitutionally effective assistance of counsel during the guilt phase of his trial but not during the sentencing phase. Thus, his petition was granted in part. Both the State and Tokman appealed the lower court's decision, and this Court affirmed and remanded for a new sentencing hearing. State v. Tokman, 564 So. 2d 1339 (Miss. 1990).

While awaiting the sentencing hearing, Tokman was moved to the Hinds County Detention Center so that he could have sufficient opportunity to consult with counsel. On May 21, 1991, he attempted to escape from the facility. As a result, he was indicted for attempted jail escape, a felony. He initially pled not guilty, but later he changed his plea to guilty pursuant to a plea bargain agreement and was sentenced to one year imprisonment for attempted escape.

Also under the agreement, Tokman pled guilty to a charge of kidnapping, which occurred during the slaying of the cab driver. He waived an indictment on the kidnapping charge and the statute of limitation bar. In exchange for this plea, Tokman was sentenced to life for the capital murder of Albert Taylor and a consecutive sentence of thirty years for the kidnapping charge.

After the agreement, Tokman filed a petition for post-conviction relief which was summarily denied by the trial court. Aggrieved, he appealed to this Court for relief.

II.

At the outset, Tokman argues that his right to be free from double jeopardy was violated when the trial court allowed him to plead guilty to kidnapping after he had previously been found guilty of capital murder. In short, Tokman asserts that he pled guilty to kidnapping the same victim whom he was charged and convicted of robbing and killing. He further argues that under the capital murder statute all of the underlying felonies merge with the offense of capital murder, thereby prohibiting him from being convicted of both capital murder and one of the underlying felonies. See Miss. Code Ann. § 97-3-19 (1994).

The State counters that the underlying felony which elevated the murder in this case to capital murder was robbery, not kidnapping. The State's argument is well taken.

In Fuselier v. State, 654 So. 2d 519 (Miss. 1995), the defendant was charged with capital murder. Burglary was the underlying offense. Pursuant to a plea bargain agreement, the defendant pled guilty to both capital murder and a separate count of burglary. We vacated the convictions and plea bargain as violative of double jeopardy because ...


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