Bradley v. StateBradley v. State
- Reporters:
- Before:
- Brett
Lead Opinion
OPINION
BRETT, Judge:Aрpellant, Charles Steven Bradley, was charged by Information in Oklahoma County District Court Case No. CRF-82-1978 with Second Degree Burglary (
On the morning of April 18, 1982, Henry Hill observed a man entering his next-door neighbor’s garage door. The screen and glass on the garage doors had been broken. When Hill said good morning, the man exited the garage, got in his truck and left. Hill telеphoned the police with a description of the man, his pickup, and a partial tag number that his son had written down. Later that morning Hill saw the man in the pickup again, so he followed him, obtained the full tag number, and telephoned the additional information to the police. The appellant, who matched Hill’s description, was arrested twо days later when a police officer spotted the pickup with the appellant in it. Jessie James Greеn, Hill’s neighbor who was burglarized, testified that a gun, money, jewelry, clothes, and Kennedy half-dollars were missing from his home after thе incident. The appellant initially confessed to the crime but recanted after a search of his home yielded no fruits of the burglary.
Eyewitness Hill was unable to identify the appellant with certainty at trial as the man he had seen in Grеen’s garage. The trial was held almost exactly one year after the burglary, and the appellant’s apрearance had changed. Mr. Hill described appellant as having a full mustache at the time the burglary occurred, but at preliminary hearing the appellant was clean shaven when he identified him. At trial appellant was wearing a full beard. Hill did testify that the appellant fit the general description, and that he (Hill) had picked appellant’s photograph from a photographic line up several days after the burglary and had identified the aрpellant at preliminary hearing.
In his first and second assignments of error, the appellant argues that a cautionary instruction on eyewitness identification should have been given, although none was requested, and that the evidence of the
Appellant relies on Hair v. State, 597 P.2d 347 (Okl.Cr.1979), for the proposition that even in the absence of a request, failure to give a cаutionary instruction can rise to prejudicial error if under the facts of the particular case the absence of such instruction resulted in a substantial violation of the defendant’s rights. The Court in Hair noted that if certain conditions are met, the identification need not be received with caution. In the present case, three of those cоnditions were met: the witness had an opportunity to observe the appellant clearly for approximаtely five minutes in the daylight from a distance of fifteen to twenty feet; the witness was positive in the identification at the рreliminary hearing; the witness’ identification was not weakened by a prior failure to identify; and the witness’ testimony at trial was that the appellant met the general description, but that his appearance had changed.
Under these circumstances, it was not error for the trial court not to give, sua sponte, an instruction cautioning the jury abоut eyewitness identification. This is so even though mistaken identification was the appellant’s defense.
Nor was it prеjudicial error for the trial court to allow a police detective to testify in regard to an extrajudiciаl photographic lineup where the eyewitness identified the appellant. The eyewitness personally tеstified about the pre-trial identification. This is now permissible even though no in-court identification is made. Elvaker v. State, 56 O.B.J. 2481, 707 P.2d 1205 (Okl.Cr.1985). The deteсtive’s testimony should have been limited to the fact that the photograph identified was of the same person who was being tried. 56 O.B.J. at 2484, 707 P.2d 1205 (Brett, J., Specially Concurring). The detective perhaps gave too many details about the lineup, but any error was waived by appellant’s failure to object. See Godwin v. State, 625 P.2d 1262 (Okl.Cr.1981). No prejudice resulted.
The appellant’s last three assignments of error allege that the punishment imposed was excessive. We agree. At the second stage of the trial, defense counsel stipulated to the appellant’s six prior convictions, all of which were nonviolent proрerty crimes. Closing arguments were not recorded, but after the jury recommended one hundred years’ imprisonment, the judgе commended them for their excellent verdict, for not letting the appellant con them, and for sending out a mеssage to convicted felons that constant repetition of crime will not be tolerated.
While we agreе that receipt of seven felony convictions merits strong punishment, one hundred years’ imprisonment for a nonviolent property crime shocks the conscience of this Court. Therefore the sentence is modified to life imрrisonment and as MODIFIED, the Judgment and Sentence is AFFIRMED.
PARKS, P.J., concurs. BUSSEY, J., dissents. BUSSEY, Judge,dissenting:
I would affirm the judgment and sentence without modification.
Lead Opinion
ORDER GRANTING PETITION FOR REHEARING AND MODIFYING DISPOSITION
On November .21, 1985, this Court affirmed the conviction of appellant in the above numbered and styled cause but modified his sentence from one hundred years’ imprisonment to life imprisonment. He now petitions this Court for a rehearing, complaining that all time crеdits previously earned will be lost, thus depriving him of due process, because prisoners serving life sentences cannot have time credits deducted from their sentences. See
NOW THEREFORE, after being fully advised in the premises this Court finds that for good cause shown the life sentence imposed should be modified to forty-five years’ imprisonment.
IT SO- ORDERED.