*1 timely BRETT, request as it is a Conditioned Presiding Judge, specially con- Carter accused, by the we do not believe curring: delivery of a required
decision сaution- Although opinion ap- states that here, where, as no such re- ary instruction pellant argue does not that the evidence of Therefore, oc- quest no error made. admitted, other crimes improperly in the trial court’s failure to deliver curred is the exact issue raises in his third сautionary a instruction. And, proposition. opinion states that an argument such would be fu- request if even a object, tile because he did not thаt is a made, properly reversal of instant statement with which I can concur. Rath- required appel case would not be since the er, I unobjected would say to evidence trial in prior lant’s occurred to the decision of other crimes needs to be by examined In Mack Cartеr. and that we must balance the the Car (Okl.Cr.1982) this Court held capacity preju- erroneous evidence to ter decision would be accorded only prospec against weight dice of the properly ad- tive to depart effect. We decline from this guilt. Furthermore, mitted evidencе determination. opinion declares that the evidence of other Accordingly, no in error occurred the trial only apparent by сrimes is a reading careful judge’s jury failure to instruct not to of the remarks. I agree cannot appellant’s testify. consider evidence of the alleged past,
present, and quite future crimes is slight, agree but I can I result. Ill carefully unobjected examined this Finally, that 21 and agree evidence with the opinion that 51(B), O.S.Supp.1979, imposes § which the error was harmless. twenty year minimum sentence for second offenders, and subsequent is violative of V,
article 57 of the Oklahoma Constitu §
tion. it was in a Since enacted bill which
also establishes bond schedule for traffic
offenses, urges that re
quirеment single purpose legislation Joseph ADAMS, Appellant, was breached.
§ King 983, (Okl.Cr. In 1982) we held that penalty enhanced
statute and the traffic violаtions statute general both related to the subject of punishments. Therefore, crimes and article of Criminal V, 57, of the Oklahoma § Constitution was by violated inclusion of two these sections in the same bill.
Accordingly, since errors oc- which at preserved
curred trial were not for re-
view and we perceive since fail to a viola-
tion substantial and sentence is AF-
FIRMED.
BUSSEY, J., concurs. J., specially P. concurs.
stance, which was plainly jars; visible in the material proved later to be marijuana. Deputy Dоnald Breshears testified that he recited the Miranda warnings to the de- fendant, responded who affirmatively to a query as to whether or not he undеrstood rights. those deputy The also stated that a later, short time as the search was continu- ing, said, the defendant “I might as well go ahead and show you. it to going You’re anyway.” find it The defendant then presented the pipe, officers with a a box of baggies, a marijuana. scale and more Dep- uty Henry Cotton further testified that the defendant said that four tea cans that were personal confiscated were his stash. Dallas Griggs testified dеfendant, her brother, was living garage in the apartment and that he paying was not rent basis, regular on a making repairs he was bills; helped fur- ther, he wоuld come inside regular house to bathe and take his meals. She stated that she inwas control of all the property given and had her consent to search it.
Donald Roberts testified that he was a
very good
defendant,
friend of the
that he
was currently residing at the Ouchita Cor-
McConnel,
City,
aрpel-
Ed
Oklahoma
for
Facility
rectional
and that all the
lant.
paraphernalia
personal proper-
was his
Gen.,
Jan Eric Cartwright, Atty.
Susan
ty.
Gеn., Chief,
Talbot,
Atty.
Ap-
Asst.
Crim.
assignments
In his first and second
Div.,
pellate
City,
appellee.
Oklahoma
error,
argues
improp
the defendant
er rebuttal and сross-examination occurred
OPINION
prosecutor
when the
noted the defendant’s
BUSSEY, Judge:
proclaim
silence and his failure to
his inno
Adams,
apрellant, Joseph
The
here-
cence at the time of his arrest. The com
defendant,
plained-of questioning
place
took
after the
inafter referred to as the
witness,
produced
defense had
Don Rob
convicted of Unlawful Possession of Mari-
erts, who claimed that
Distribute,
all
сontraband
Logan
juana With Intent to
his. Since
record is void of
County District
Case No. CRF-79-
objection
interrogatories
to the
or of a mo
(2) years’ imрris-
was sentenced to two
tion for a new
the errors have not
$2,000.00,
onment and a fine of
preserved,
thus been
waived.
appeals.
(Okl.
Boomеrshine v.
nоt been (Okl.Cr.1977). Furthermore, 254 case, in the State’s own there was evidence reasons, foregoing For the above and possible of subterfuge. Sears, Witness appealed from sentence gun missing, whose was testified that AFFIRMED. presence marijuana may of have been men- tioned in first meeting his with Officer CORNISH, J., concurs. Breshears, testified, then he “I believe he J.,P. dissents. mentioned it.” The search warrant was BRETT, Presiding Judge, dissenting: pistol, yet issued the witness’s con- leading uр versations to issuance of compelled I am to dissent for two rea- first, warrant included appellant’s post- discussion of contra- sons: usе band not but actually mentioned seized. impeachment arrest silence as ammunition right was a violation of constitutional to I would reverse. silеnt; second, remain authority sister did to consent garage apartment.
to search of defense,
During presentation asked, on cross-examina-
tion, whether he told the officers had belong the contraband either didn’t BUTLER, Jr., Aрpellant, Lemuel belonged or it him that to Donald Roberts after been advised Later, rebuttal, remain silent. the State permitted Deputy ask Breshears whether had stated that he Court Criminal innocent or that be-
longed to someone else. This evidence falls
squarely
Ohio,
Doyle
within the rule of
U.S.
(1976). In opinion, Supreme silence,
held that wake of the Miran-