Black v. State

gave correctly determined that trial court Hence, a trial court to decision of supra. on fraud. erroneous instruction “unless not be reversed new trial will grant a doubt beyond all reasonable be seen it can no mani- of the record shows Our review manifestly and mate- has the trial court that trial court’s error in the fest or material 1043; Fitts, P.2d at Mead rially erred.” new trial was warrant- that a determination (1937). 214, 68 P.2d 771 Snapp, 180 Okla. recognized that the er- trial court ed. The denied rors which occurred trial, new granting the motion for fair and a trial was war- Austin a new on the that an instruction trial court held foregoing rea- For the above and ranted. giv not have been should defense of waiver sons, Appeals is opinion of the Court of presented agree. No evidence was en. We VACATED, court the order of the district voluntarily or intention that Austin to show AFFIRMED, granting a new trial is and in right, and an ally relinquished a known proceed- for further cause is REMANDED under not warranted on waiver was struction ings consistent herewith. the evidence. court agree with the trial further V.C.J., HARGRAVE, LAVENDER, and given on the defense that the instruction WATT, WILSON, ALMA SUMMERS instruction reads: erroneous. The fraud was JJ., concur. in order for the “You are instructed KAUGER, JJ., OPALA, their defense of concur prevail defendants fraud, by clear and convinc- you must find result. plaintiff gained ad- that the HODGES, C.J., dissents. by sug-

vantage the defendants over false of the truth. by suppression or gestions rule can be laid and invariable No definite defining general as a

down trick,

fraud, surprise, all as it includes way unfair

cunning, dissembling, and you If find another is cheated. fraud, then plaintiff committed the defendants.” your verdict shall be for BLACK, Jr., Appellant, Elwood (Emphasis accurately state does not This instruction today. governing fraud Oklahoma

the law Oklahoma, Appellee. STATE containing defined fraud as This Court has No. F-89-1221. following elements: 2) “1) material, representation, false Appeals of Oklahoma. of Criminal knowledge falsity, or of its made with 1, 1994. Feb. knowledge recklessly of its made without 3) ascertion[sic]; truth, positive and as a 30, 1994. Rehearing Denied March upon that it be relied the intention 4) another; thereon another reliance 5) injury; that all elements

party to its degree of a reasonable proven with

certainty.” P.2d Humphries,

McDonald Slusher, (Okla.1990). also Silver v. See (Okla.1988), suggestions” the terms “false Use of resulting easily have mislead

could Therefore, the Austin.

in an unfair trial for by, car a man

robbery). As the drove identi- through out fied as reached window, purse passenger grabbed her AsMns, City, at Oklahoma Jo-Ann pushed required Ms. med- her down. Cotton Entzeroth, Appellate Indigent De- Lyn Asst. asphalt looked ical treatment burns. She fender, Norman, appellant. appeal, face, than 12 to Appellant’s into not more away, by. gave inches as the car drove She Miller, Atty., Asst. Dist. Okla- Emaline description City po- a complete to Oklahoma trial, Loving, City, homa Susan Brimer at officers, prelim- and identified him at the lice Kerr, Gen., Atty. Gen., Atty. S. Asst. Steven inary hearing, picking him out of a three-man appeal, City, on for the State. Oklahoma (Appellant at counsel “lineup” was not seated time). appre- Appellant at that was table OPINION City approximately 5:30- in Del at hended LUMPKIN, Presiding Judge: day robbery, p.m. being the of after 6:00 the Black, Jr., tried Appellant Elwood was robbery. on another unrelated He arrested a in the District Court of Oklahoma offense, charged City not for the Del but was County Rob- Degree convicted of First and City held for Oklahoma authorities. The was (21 797). O.S.1981, §§ The bery subject detention of length of that is the the im- Appellant be sentenced to proposition recommended of first error. (5) years. of prisonment for a term five error, Appellant first of accordingly.1 It is from

trial court sentenced illegally in violation contends he was detained Appellant and sentence that judgment provi- statutes and constitutional state affirm, publish appeals. and because Appellant detained in sions. We hold was appeal impression presents two issues first of the Fourth Amendment to the violation before this Court. also United States Constitution. We hold beyond illegal harmless a detention was returning to Georganna Cotton was Victim doubt. reasonable job Shepherd department her a Mall store August a after late lunch on 1988. She argues Due Process both purse un- carrying a small white clutch grounds urging Fourth Amendment and lot, felt parking der her left arm. she cites of state constitu He violation reversal. object against leg. an her left She brush statutory3 provisions and as a basis tional turned, object and saw the small process allegation of error. This of his due (Alan Wallace, apparently brown car who held that when a violation Court has pled guilty charge directing prompt appearance to the before this before statutes party com- magistrate4 alleged, owned brown car the time a small O.S.1981, § Specifically, Although Appellant separately for the 3. cites 1. was tried must, cases, robbery, crime the facts indicate he accom- in all reads: "The defendant plished help person, with the the deed of another magistrate without unneces- be taken before purse. who the car while took a drove sary delay.” state, apparently not record does punish- appropriate trial determined court below, be- 4. a difference As discussed there is O.S.1981, § dictat- ment from 21 stemmed hearing having probable and sim- tween cause punishment not five nor to be less than magistrate ply appearing before a to be advised fifty years two more in circumstances where than rights, appoint attorney, and otherwise Here, people however, together to commit the crime. act Thus, begin process. the formal criminal the instructions to the related violation, statutory clearly caselaw states bur- years punishment less than no as not five —with appellant; prejudice while den to show is on 50-year punishment cap of the normal —instead violation, must show the State a constitutional any years, § of not event, under 798. In less than ten did beyond error not a reasonable doubt the Appellant does not raise error in instruc- Here, fundamental, tions; here, as to the conviction. contribute error was not violation, alleges we will punishment. a Fourth Amendment as he the minimum received analysis higher standard our to deter- use the II, 7, guaranteeing § Specifically, individu- Art. if error occurred. mine Process; II, § right Art. als the guaranteeing to Due right every person has the arrested to be himself counsel. heard plaining prejudice. must show See Nor do we retreat from the Johnson established (Okl.Cr.1987), illegal rule that arrest or detention does denied, Thus, subsequent cert. void conviction. as (1987) (Burden below, on the Appeals L.Ed.2d defendant noted al- prejudiced that he was failure to suspect show though presently who is detained immediately. magistrate before be take may challenge probable cause for that gave fact confinement, The mere that he a statement will not be conviction vacat- being magistrate taken before before does ground ed on the defendant that the se); per not warrant reversal Dutton pending detained a determi- without 1134, 1138(Okl.Cr.1984), probable nation of cause. 119, Pugh, 420 U.S. at 95 at 865. S.Ct. (1984) (Mere 850 fact that a L.Ed.2d state language argue appel- State uses an he ment was taken from a defendant before remedy lant has if no a criminal case a magistrate was taken before a does not war prompt hearing disagree. is not held. reversal; rant has the defendant burden Pugh, As noted in the rationale behind the delay proof of to show that him caused prompt hearing pre- for a is to prejudice). oppression, vent an onerous a situation of support his claim Fourth Amendment unduly where an inmate is influenced a rights guaranteed by U.S. Constitution atmosphere. pretrial coercive Faced with a violated, Appellant cites were Gerstein may that “imperil suspect’s confinement 103, 854, Pugh, 420 U.S. 43 S.Ct. L.Ed.2d job, income, interrupt his source of and im- County Riverside of pair family 114, relationships,” his Id. at 1661, 114 McLaughlin, 500 863, may pliable S.Ct. at more be (1991). Pugh L.Ed.2d states the Consti this, easily more coerced. of Because an requires probable hearing tution a cause unlawful detention would be cured not a within a reasonable time after a warrantless Illinois, warning. Miranda See Brown v. However, the does arrest. case not set forth hearing if remedies is not held. McLaughlin held “prompt” require time Pugh ment in to be Supreme McLaughlin 48 hours. Both are civil Court in arbi- dealing trarily of any delay longer cases violations constitutional determined than 48 McLaughlin rights.5 Pugh, As with not in getting probable does hours a defendant to a remedy proce hearing indicate a defendant’s if the cause is unreasonable.6 However, Pugh not Appellant dure is followed. does we find is incorrect when he claims prompt proba make it clear a violation all suppressed of evidence must be because he hearing requirement arraigned ble cause does not auto was not within hours of arrest. matically clear, Pugh necessitate reversal of a criminal As a itself makes conviction will simply conviction: not be vacated because a defendant complaint made, Pugh, was framed as a class such one determination is cannot know § action suit under 42 U.S.C. illegal. section whether the detention is Under such Rights the Civil private Act which allows reasoning, if it were determined detention rights. action for violation federal Id. reasonable, argue one could the determina- Likewise, at 107 n. 95 S.Ct. at n. 5. tion would have a effect on retroactive McLaughlin brought aas class action suit gathered hearing. before As discussion else- at-, provision. under the same Id. 500 U.S. indicates, where we do not believe is the Ap- 111 S.Ct. 1661 at 114 L.Ed.2d at 57. proper rationale. We want to make it clear there context, pellant citing in a civil cases not Appellant are two different issues whether here: authority but for Fourth his Amendment probable hearing, afforded cause that, rights implicitly argues were violated. He brought magistrate whether he was before on rights because his Fourth Amendment were vio- rights. appearance an initial and advised of his lated, Exclusionary applicable Rule as language Pugh There is some states com- remedy. analyze It is in this we context procedures, Supreme bine the two complaint. equate purposes seems to the two as one Therefore, purpose probable hearing aspects discussion. both 6. The of a cause discuss is to legal. together. determine whether a detention is Until in this presumption of unreasonableness more than hours without was held for hand, McLaughlin other case. hearing. On the being longer held than 48

makes it clear complains of several instances can be a hours a determination without will address illegally seized evidence. We It would be Fourth Amendment violation. in turn. each one say the Amendment inconsistent to Fourth City by Del Police was arrested applies, yet hold this the one also to be August suspect in an Officer Rennie 6 as a Ex- where the situation constitutional law time, robbery. police unrelated At not Fourth clusionary apply Rule does cap wearing. he was He was not seized a Amendment violations. Nor do we believe (an robbery eyewit- charged in the unrelated untimely probable hearing cause retroac- identify him, and Alan ness could Wallace tively spent the time such a “cures” without robbery). August 9 or confessed to the On can hearing, any more than bad search City police put a hold on Oklahoma justified proves if later fruitful. See City him. He was transferred to Oklahoma States, Wong Sun United point, August 10. At this he had not been (1963) (That heroin magistrate. photograph before a A taken arrest). wrongful found does not cure was trans- was taken after he City. August the ferred to Oklahoma On Rather, Pugh and interpret photo line-up. him victim identified from a mean that if McLaughlin to authorities morning, he He That same was interviewed. probable a some fashion afford defendant a Mall, robbing Shepherd the victim at denied hours, hearing cause within this short day being all but admitted with Alan Wallace delay not presumptively is reasonable —but (Wallace admitting a he wrote out statement automatically McLaughlin, so. See Appellant purse while took the drove the car at-, at 114 L.Ed.2d at 63. lot). parking August the in the mall On hand, delay a On the other of more than 48 prosecutor charges relating the mall filed presumptively hours Id. is unreasonable. Appellant robbery and taken before was longer the sits We find the time a defendant magistrate. jail probable some form of cause without facts, legally cap these was Based on likely hearing, will the more the detention seized, seized of arrest. as it was at the time him like oppressive to and the more become presump- photograph The and statement are ly giving into he will be coerced evidence they tively inadmissible: were not obtained give, would not for the reasons otherwise period, prosecu- the 48-hour within Therefore, presume stated we must above.7 gave why they no reason were not. tion any gathered expiration after the evidence inadmissible, constitu period as the It is well settled that even the 48-hour reversal at violations need not necessitate proof point burden shifts and tional be proved they if harmless no effort to “the it can be were State has made demonstrate yond Chapman doubt. v. Cali emergency a bona fide or other a reasonable existence of Id., circumstance,” fornia, extraordinary to rebut procedure argues appeal requirement used for a inverse and to be State a sort of The hearing. prose- discovery" proposition, saying probable cause We note several "inevitable they virtually prepare within the could have obtained state a document cutors in the hours, arrest, admis- and therefore the evidence was affidavit warrant of identical to an for a saying police have ob- sible. That is like could magistrate, uses it to is submitted to who which warrant, they did and therefore the fact By tained a probable cause. make a determination of any an error. We not deem this cures do utilizing procedure, re- districts have this these argument acceptable under circumstances of 48-hour mandated solved the this case. McLaughlin. Supreme has ob- As served, adversary hearing an need not be spe- necessary prescribe not deem it We do Pugh, 420 U.S. S.Ct. at 866. at one. probable hearing governing cific this cause rules Therefore, procedure, with the time; combined at nor do we need to address how O.S.1991, O.S.1991, hearing, §§ afford a criminal 251-276 Pugh McLaughlin and affect statutes, higher degree protection an even §§ defendant of which have 251-276. These most statehood, essentially codify Amendment. that mandated the Fourth since than been in effect Therefore, analysis illegally appeal. An ob- witness identification on necessary. introducing photograph

tained evidence becomes error beyond harmless doubt. reasonable Officer photograph that was taken was testimony concerning Rennie’s how accurate photo pre-trial line-up. used in a photograph portrayed appellant photo line-up only during mention of the beyond of arrest time is also harmless Appellant’s invitation came on from reasonable doubt. such, clearly counsel.8 As invited error in the trial. See Penn v. Likewise harmless admission of the (Okl.Cr.1984). Furthermore, Appellant City gave statement to Oklahoma despite appeal, Appellant’s assertions on officers. The statement reflects preliminary of him victim’s identification participating robbery. denied Although solid. she and trial was viewed only potentially incriminating portion of the robbery him time short saying statement was his he was with Alan (three seconds), she between 12 five at the the crime. Wallace time of This ad and from his and looked 18 inches face duplicated by mission is Wallace’s statement encounter, straight at him. Based on that purse, while took he drove give very complete descrip she was able to testimony firmly victim’s placed Furthermore, police. despite tion to the at him there. her, tempts by defense counsel to confuse This merit re- is without picked group she out from is not versal warranted. preliminary hearing three men at who were sitting not even at counsel Her proposition, Appellant, table. identi In his second waiver; signifi African-American, did not fication at trial urges as error another cantly, Appellant does not improperly raise issue of African-American was removed great citing spends a person preju- deal of time to on casts someone other than the preliminary hearing suppression hearing or by diced it a show burden to that it was harm- transcripts. question here does not deal original It less. is for that reason that the suppression hearing, with a whether evi- put common-law harmless-error rule the bur- gained Appellant’s pre- dence from seizure beneficiaiy den of the error either jury Chap- sented harmless error. prove injury that there was no or a to suffer 18, 824, California, man v. 386 S.Ct. U.S. 87 17 erroneously judgment. reversal of his obtained (1967), Supreme L.Ed.2d 705 Court ad- 23-24, (em- 386 Id. U.S. at 87 S.Ct. at 827-28 question dressed the when a constitutional error added). Connecticut, phasis Fahy See v. also 375 can be harmless: 85, 229, (1963); U.S. 84 S.Ct. 11 L.Ed.2d 171 prefer approach We of this Court in decid- Turner, (10th Cir.1972); v. 261 461 F.2d Martinez ing what was harmless error in our recent case Turner, (10th Cir.1968). Little v. 402 495 F.2d As Connecticut, Fahy of v. 85 [84 375 U.S. S.Ct. result, Supreme has held that 229, 171]. 11 L.Ed.2d There we said: 'The departure procedures from constitutional need question possi- whether there is a reasonable result in automatic reversal. Where the bility complained might that the evidence weight of the rest of the evidence is overwhelm- Id., have contributed to the at 86- conviction.' ing prejudicial effect inadmissible Although prior [84 230]. S.Ct. our cases insignificant, may evidence error be have indicated that there are some constitu- Harrington California, as viewed harmless. rights tional so basic to a fair trial that their 250, 1726, 395 U.S. (1969). 89 S.Ct. L.Ed.2d 284 infraction can never be error, as treated harmless gauging prejudicial effect of the Fahy this statement in itself belies evidence, improper Supreme admission belief that all trial errors violate the which reviewing judgment Court has held that a court’s automatically Constitution call reversal. At for reading must based on its own of the record time, however, the same like the federal harm- probable on what seems to have been the statute, emphasizes less-error an intention impact of the inadmissible evidence "on the not to as treat harmless those constitutional average jury.” of an minds Id. at 89 S.Ct. rights’ party. errors that 'affect of a substantial (emphasis light at 1728 It is in this admitting plainly An error in evidence relevant illegally examine obtained evidence. possibly adversely influenced the cannot, Connecticut, photograph insert the discussion of the litigant Fahy in [v. under opinion attempt in to illustrate the use of U.S. 11 L.Ed.2d (1963)], express opinion a 48-hour limitation. We no be conceived of as Certain- harmless. error, error, ly illegally taking photograph constitutional whether of a in admit- constitutes comments, ting highly prejudicial illegally evidence or obtained from a "seizure.” (1991), prosecutor’s peremptory challenge Supreme 113 L.Ed.2d 411 where the Kentucky, violation Batson U.S. Court observed: 1712, 1723, 106 S.Ct. develop It remains for the trial courts to (1986). rules, unnecessary disruption without process, permit legiti- selection following transcript reflects the state- objections mate and well-founded to the ment the Court: peremptory challenges use of as a mask The Court finds that there is no need for a prejudice. for race hearing Batson since there have been two Id. at 111 S.Ct. at 1374.9 See also jurors of African descent called. The Georgia, -, -, McCollum v. 505 U.S. one, Smith, challenged State Mrs. but we 2348, 2358, one, remaining juror still had a number (1992) (In discussing prosecution whether the Mitchell Shannon. right challenge also has a to make a Batson objection by There was no defense counsel. selection, during jury the Court held: “Ac- cordingly, prima if the State demonstrates a hearing The trial court’s statement no facie case of racial discrimination the de- necessary juror because one black fendants, defendants, must articulate a left on is incorrect. See Alvarado United racially explanation peremptory neutral States, 543, 544, This, too, challenges.”) objec- indicates an (1990) (when 2996, 111 L.Ed.2d 439 com contemporaneously. tion must be made plaint preserved, appeals otherwise court of holding long erred in petit jury that so as the compelling language But the most indicat- chosen satisfied the Sixth Amendment’s fair- challenge a Batson can be waived is concept, inquire cross-section it need not into Georgia, found dicta Ford v. prosecution jurors the claim the struck on 411, L.Ed.2d 935 purely grounds). jurisdictions racial Other That case dealt with black defendant who seem simply to hold that because some black prohibit prosecu- filed motion limine to jurors pre were left on the does not using peremptory tor from strikes to exclude possibility racially discriminatory clude the petit jury.10 members his race from the Joe, strikes. See United States v. 928 F.2d apparently The defendant did not renew his — (4th Cir.1991), motion trial. On remand for a Batson -, 71, 45; 112 S.Ct. 116 L.Ed.2d State v. determination, Georgia appellate the court 636, 166, Holloway, 209 Conn. 553 A.2d 170 procedurally held the claim was waived on denied, (1989), 1071, cert. 490 U.S. 109 S.Ct. appeal by failing objection. to renew the For 2078, 104 L.Ed.2d 643. It is for this reason discussion, pertinent reasons not to this reject argument by we similar the State on Supreme pre-trial held Court the defendant’s appeal. timely. in discussing motion was rationale, its the Court said: We must therefore address whether The Batson claim the error was for waived consideration on trial, only be raised not before appeal by the failure of defense counsel to period jurors between selection of the object. We hold was. oaths, and the administration of their ais application implied [subject of waiver is sensible rule to review of those Ohio, 400, 1364, v. 499 111 Supreme Powers U.S. S.Ct. standards Court]. Powers, 412, objection lodged 9. See also 499 U.S. at 111 S.Ct. at an must be to afford the court (discussion objections): 1371 "If the defen- opportunity perceived an to address a error. right object prosecutor’s dant has no to to the improper jurors, exclusion of and if the trial 10. The motion was made under Swain v. Ala- duty prompt inquiry court has no to make a bama, 202, 824, 13 L.Ed.2d shows, grounds, by adequate when the defendant a likelihood of (1965). However, 759 the Court made it clear impropriety in the exercise of a predeces- the distinction between Batson and its challenge, legitimate there arise doubts that the significance pur- sor was of no constitutional for jury by proper has been chosen means." The Ford, poses the issue before the Court. See construction of the sentence in the Court’s dis- 420, standing object cussion of Powers’ to indicates 498 U.S. at 111 S.Ct. at 855. 42 time, jury is general sworn. Unit of look- or before appropriateness 1192, governing Dobynes, for the law 905 F.2d 1196-97 rules ed States v. to local is, (8th 877, claim of Cir.1990), of a constitutional

timeliness 498 111 itself, course, In Batson for exam- 206, (1991); clear. parte 167 S.Ct. 112 L.Ed.2d Ex procedural no new rules ple, imposed State, 495, (Ala.1991), we 581 496 v. So.2d State particu- “to either formulate Robbins, declined 465, 279, 319 N.C. 356 S.E.2d 293 upon to be followed a defen- procedures lar objection prosecutor’s to timely dant’s Accordingly, hold here we objection when challenges,” or to decide an challenge failing waived his Batson to U.S., 99-100, timely. 90 476 at must be timely objection make a at and review 1724-1725], [at L.Ed.2d Dobynes, for fundamental error. Instead, recognized practices that local at F.2d proper deadlines would indicate procedures the various used to contexts of past gener- This Court has in the held it is cases, try and we left it to the criminal ally preserve to duty of courts, “variety their wide a meaningful record for this to make practices,” implement selection review, except in instances where the death Id., first instance. n. Batson in the penalty imposed. See discussions in Van 106 S.Ct. 1712 [at 90 L.Ed.2d State, (Okl.Cr.1988); P.2d 814 White then, Undoubtedly, n. a state court 24]. (Okl.Cr.1984). State, Kelly v. 692 P.2d 563 rule may adopt general that a Batson Likewise, Supreme Court indicates that untimely it is raised claim is if. for appellant produc- an still bears the burden of appeal, or on time after first purposeful tion show discrimination. Bat- sworn, its members are selected. or before son, U.S. at 1721. Bat- 422-23, (emphasis Id. at 111 S.Ct. at 856-57 merely for an appellant son made it easier meet this burden. has failed to context, specific obviously not While record; existing meet his on the burden objections long held Court has therefore, proposi- is no merit to there composition appellate re can be waived tion. preserved view at trial. See properly if not State, (Okl.Cr.1983), Batson, n. Ake appellant prove Under an must 68, 105 grounds rev’d on other prima showing: things three to make a facie (defendant (1985) could cognizable he is of a racial a member juror complain bias if he appeal on group, prosecutor per- has exercised below); peremptory challenges waived emptory challenges to remove members (Okl.Cr. Phelps race; (2) rely appellant is entitled to 1965); Boyd v. 97 Okl.Cr. peremptory challenges con- fact that State, (1953); Henderson v. 204-05 allow practice stitute a that could discrimina- (1952); Okl.Cr. tion; appellant must show facts these State, 165, 242 P. Pitman v. 33 Okl.Cr. any “and other relevant circumstances raise State, (1926); Johnson Okl.Cr. prosecutor an inference that the used 1059, 1067 97 P. do not think the We practice the veniremen from the to exclude ability challenge should to a Batson advance at petit on account of their race.” Id. treatment. accorded different (emphasis The 106 S.Ct. at 1722 dispute.11 in It third jurisdictions first two are not is the also the Bat- Other consider objection lodged at factor that is at issue. son if no issue waived challenged recognize language in that the defendant 11. there is in Powers Batson: We merely venireperson the same race. We holding to a stand- be of race is irrelevant defendant’s discriminatory peremp- appears has modified the first object observe it Powers to to the use of showing require tory requirement prima facie to challenges. for a Id. 499 U.S. However, peremptory showing party light presented has exercised in of the facts in jury solely case, challenge a member not discuss effect this to remove this we need race. language enunciated basis of has on the first error, viewing the gave guidance The in the record for fundamental some deter- light mining pertinent most favorable third factor: facts rulings. the trial court’s deciding whether the defendant has requisite showing, made the the trial court wom- transcript The shows there were two should consider all relevant circumstances. “Miss Smith.” en on the venire named example, “pattern” against For of strikes black; no indication which one was There is jurors particular black included in the ve- challenges off the peremptory were might give nire rise an inference of record, way if a so there is no to ascertain Similarly, prosecutor’s discrimination. A check of given reason or what it was. questions and statements voir dire “Rita Diane re- list reveals Smith” exercising examination and in his chal- therefore, petit jury; the ex- mained on the lenges may support or refute an inference venireperson must be Melanie cluded black discriminatory purpose. These exam- Smith. ples merely are illustrative. con- We have The trial court noted there were two judges, experienced fidence that very difficult to blacks on the venire. It’s dire, supervising voir will be able to decide “pattern” on one of a establish a based strike concerning if prose- the circumstances prosecutor’s black venire member. peremptory challenges cutor’s use of cre- nearly questions were iden to Melanie Smith prima ates facie case of discrimination mem questions posed tical to to other venire against jurors. black prosecutor’s standpoint, her bers. From a 96-97, Id. at at 1722-1723. It encouraging. particularly answers were plain language pas- from obvious prosecutor might noted the evidence sage quoted above the trial court can use show the victim looked at the robber for determining these and other factors seconds, couple if and asked Ms. Smith factor has been met. whether third thought someone could remember the she power has the believe this Court same “possible.” face. She said it was existing record to make that de- review response questions, to defense counsel’s termination. See Chambers v. expected she said she the victim to be emo (court (Tex.Crim.App.1988) S.W.2d tional, “probably possible and it was not” proof not bound defense counsel’s offer recognize person such a victim to later. issue); concerning Rijo v. 721 S.W.2d prior jury She had no service. Under these 1986) (court (Tex.App. Amarillo did circumstances, combined with the total lack state reason for strike prosecutor not make objection by defense counsel who was member; appeals court found against venire privy to the off-the-record bench conference reason, court failed to order a since the struck, at which Ms. Smith was we hold showing impliedly found that of the first two Appellant successfully in has not raised an factors, cir- in concert with other relevant prosecutor peremptory ference the used cumstances, failed to raise an inference of petit exclude the Ms. Smith from the strikes); Holloway, discriminatory 553 A.2d because of her race. We therefore find no incomplete (“Despite the trial court’s at 170 error, fundamental as we are not left with “a circumstances, con- consideration definite and firm conviction that a mistake determining clude that it was correct has been committed.” Hernandez v. New prima to establish a the defendant had failed York, 352,---, Robbins, ease.”); at 294 and 356 S.E.2d facie 1859, 1871-72, 412-13 review record of (appellate court will (1991) (plurality opinion). empaneling). the time of Appellant propositions also raises other n authority, and persuasive on this Based error, impression, not of first in support of analysis in finding the Wilson appeal. require only cursory his These 1989) (Tex.App. Beaumont S.W.2d analysis. (enunciating of review to be used a standard surrounding proposition, argues In his third reviewing the relevant facts he issue) reasoned, in allowing Georganna we now review the trial court erred well Batson victim,

Cotton, testily Appellant ruling about irrelevant did not test the court’s jury. Specif- during evidence that could inflame the the motion in limine cross-examina tion, ically, complains testimony Appel- restricting question he of her his to whether the intense, “very stare, employed police lant had a cold looked officer was still de therefore, just partment; preserved like he would as soon run me over with he has not appeal Ap the issue for before this Court. that ear.” While we find no merit pellant’s attorney attempted to response supported State’s the evidence rob- use the evi dire, during bery by Appellant charged dence voir before the court had was with fear — event, robbery by admissibility. force —we find it ruled on the is relevant to there is no fundamental Appellant pre- show the amount of force error. Officer Ren- was (cid:127) pared accomplish goal. Appel- Appellant, Ap nie testified he arrested to use to his pellant wearing cap. was argue probative lant does not value of the blue baseball substantially outweighed by evidence The victim testified her assailant was was its wear effect; ing prejudicial merely argues cap. a blue baseball circum it was Under these stances, light not relevant. find in the we hold there was no error in refus most prosecution, Appellant to allow the favorable to the the evidence is desired. O.S.1981, Alaska, §§ relevant. 12 See Davis v. 1105, 1112, proposition.

There is no merit to this 39 L.Ed.2d 347 (Stewart, J., concurring); United States v. contention, merit Also without is his fourth Gambler, (D.C.Cir. 662 F.2d 840-41 in allowing the trial court erred the State to 1981); Haro, United States v. 573 F.2d indirectly robbery to his refer arrest for the (10th Cir.1978), 667-68 (cid:127) City Payless of the Del store. Shoe Witness- es had been instructed not to mention the proposition This is without merit. previous robbery, they did not do so. “Pay- And while one exhibit had the words error, Ap his sixth it, less Shoes” on that exhibit was not admit- pellant argues State’s Exhibit 3 was not ted. The hint of another crime is on properly authenticated and should not have 1A, form, City property a Del Exhibit Police been admitted into evidence. The exhibit picked up which shows was Wallace, was a statement Alan who had However, robbery.” “armed since participated Payless robbery in Del force, charged robbery by we find it City and Appel who had driven the car while highly unlikely would have done purse. lant took the Wallace wrote short anything equate but the two as one offense. saying statement he had driven the car while strengthened by This observation is a note purse. took the deliberations, asking sent out why he did not remember he was in the why Appellant picked up. they Had penitentiary; he denied or did not remember apprised now-eomplained-of been oth- knowing Appellant; writing did not recall evidence, they er crime would not have asked statement; outright got and stated “I ain’t question. prop- There is no merit to this nothing say in this whole court deal.” In osition. short, Wallace could be considered a hostile appeal, Appellant argues witness. On alleges He next the trial court erred authenticated, properly document n restricting ability impeach Officer and should not have been admitted. Rennie, officer, City police by asking a Del portion The relevant of the evidence code why longer employed him he was no there. reads: specific; ap The record we have is not fired, parently may the officer was have A. The of authentication or facing criminal.charges unspeci been precedent for an identification as a condition prosecution lodged admissibility fied offense. The an oral is satisfied evidence suffi- seeking ques support finding motion limine to restrict the cient to that the matter tioning concerning employment of question proponent Rennie his is what its claims it police department. with the to be. inadmissible, following the statement this com-

B. The are illustrative exam- plaint ples or identification con- is moot. of authentication forming requirements of this with Accordingly, Appellant’s conviction is AF- point examples are [at Code: which FIRMED. listed]. O.S.1981, (emphasis § A JOHNSON, V.P.J., STRUBHAR, J., reading provision the ten plain of the shows concur. merely in subsection B enumerated items are examples showing a document is what its CHAPEL, J., dissents. proponent purports it to be. J., participating. LANE Wallace,

During direct examination of following transpired: CHAPEL, Judge, dissenting: Q (By [prosecutor]) Ms. Miller Mr. Wal- opinion in this ease takes the theories lace, going you I am to hand what’s been error” and “harmless “waiver” to new purposes marked for identification as heights, piling concept one on another your Exhibit Number 3. Is that State’s uphold a strained effort to defective convic- signature on there? concepts tion. Either or both of these can be it. A It looks like tools, useful neither should be used to Q you And did write that? deny any citizen his or her basic constitution- A I don’t know. litigant perfection rights. al No is entitled to Q your writing, That isn’t it? legal proceedings, litigants but all are

A It like it. looks protection entitled to a trial affords State, rights.

constitutional Plotner v. (Okl.Cr.1988) (defendant P.2d 936 is entitled Q Okay. signature right And there’s a one). perfect opin- to a fair not a there, right? goes affirming ion in this case too far in A Yeah. conviction which was obtained after two Wallace, Q says Alan And it doesn’t it? (2) violations occurred. constitutional A That’s me. The authorities arrested and held the de 21st, Q And the date is December the (10) days for ten before he was taken fendant 1988. magistrate probable cause before a for a says. A That’s what it hearing. agree opinion’s I with the fine anal (Tr. 204-06). admitted the state- Wallace ysis Pugh1 McLaughlin2 deci writing appeared ment was in his to be gath and its conclusion that evidence sions such, signature. ques- “matter in his As (48) forty-eight ered after hours of detention proponent tion is what its claims it to be”: a disagree is inadmissible. I implicating Appellant statement Wallace analysis application of harmless error robbery. See New v. Instead, under the circumstances. where (Okl.Cr.1988); Fixico v. (10) days defendant is held for ten without a (Okl.Cr.1987). There was no here, hearing, in as I would reverse with admission, proposition and this error its Moreover, even if structions to dismiss. error is without merit. analysis appropriate, I harmless error were proposition agree final could not the admission of evi his seventh and error, gathered forty-eight hours of Appellant claims his statement to Offi- dence after “beyond detention was harmless a reasonable cer Shahan was not admissible because required by Chapman v. properly officer did not advise Mr. Black of doubt” as Califor nia, 824, 17 L.Ed.2d 705 rights under Miranda v. Arizona. 386 U.S. (1967). light holding in the first of our County McLaughlin, Pugh, Riverside

1. Gerstein (1991). L.Ed.2d 49 L.Ed.2d 54 46 fore, compounding problem

Further regardless this reversible error of whether objected case is a clear Accordingly, Batson3 violation which the counsel at trial or not. can, opinion disposes by should, I concluding the error do believe we or infer a by object. rights was waived waiver of constitutional fall defendant’s failure to into category. agree. I this I would rights cannot Most constitutional reverse the conviction However, on the Batson violation. can be waived. waivers of some protections constitutional can be waived informed,

by a defendant who makes an

knowing cases, knowing waiver. In some requirement may imputed informed be attorney, may

to a defendant’s who waive rights by

certain failing constitutional to ob-

ject strategical when there is a reason for doing so. Confrontation be one would exam- Gary WILSON, Appellant, Allen

ple of right may a constitutional be by object waived counsel’s failure to at trial. Oklahoma, Appellee. rights some constitutional are so STATE of absolutely

“fundamental” that there is no No. F-89-985. strategical to reason “waive” them may by trial and which never be waived Appeals Criminal of Oklahoma. object counsel’s failure to unless the defen 7, Feb. 1994. knowingly voluntarily dant decides rights waive these him or her self.4 Exam Rehearing 30, Denied March ples of these “fundamental” constitutional

rights counsel, right include: Chap California, 18, 8,

man v. U.S. n. 824, 8, (1967), n. 17 L.Ed.2d 705

citing 335, Wainright, Gideon v. 372 U.S. 799; right to an

impartial judge, Chapman, supra, citing Tu Ohio,

rney v. State 47 S.Ct. 749; protection against 71 L.Ed. York, jeopardy,

double Menna v. New (1975).

U.S. 96 S.Ct. 46 L.Ed.2d 195 right Sixth Amendment to a trial

jury composed of a fair cross-section of the

community5 right is another which I would

deem category “fundamental” under this Therefore,

cases. absent an affirmative defendant,

waiver a violation of these

protections and, is fundamental error there- 79, 98, Kentucky, type

3. Batson v. of error would not be fundamental had 1712, 1723, (1986). 90 L.Ed.2d 69 knowingly voluntarily the defendant waived rights words, him or her self. In other object 4. This Court has held that failure to waived, type of error can be but waiver will not waives review of all but fundamental error. Gar record, presumed from a silent i.e. a failure State, (Okl.Cr.1987). cia v. 734 P.2d object. This Court has defined fundamental error as error "which denies the accused a constitutional State, (Okl.Cr. 5.Litteer statutory 783 P.2d right, goes or and which to the founda 1989), grounds, tion of the overruled on other 862 P.2d 1271 case.” Miller v. 827 P.2d (Okl.Cr.1992), (Okl.Cr.1993), Louisiana, citing citing Taylor West v. (Okl.Cr.1988). interpret I this mean

Case Details

Case Name: Black v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Feb 1, 1994

Citation: 871 P.2d 35

Docket Number: F-89-1221

Court Abbreviation: Okla. Crim. App.