*1 (1928), crimi- “It is desirable that detected, and to that end should be nals should used. evidence
that all available the Government
It is also desirable pay for other not itself foster
should
crimes, they are the means which According-
the evidence is to be obtained.” by the
ly, I in the result reached
majority. COLE,
Jeffery Appellant,
The STATE of Oklahoma.
Court Criminal
359
p.m.
At
9:53
that same
evening,
in
Carol
appellant
Wynn’s
lot of the
IGA when
responded,
her
asked
for the time. She
informing
appellant
9:53,
that
it was
both
the store. The ap-
entered
pellant
presence
denied his
at and the rob-
bery
store,
stating
that he was at
p.m.
work until
11:00
appel-
As his
first
argues
that the in-court identification
by
suppressed
Ms.
should have been
irreparably
because
identification was
by
showup during
hallway
tainted
a
a re-
Schay, Appellate
E. Alvin
Public Defend-
cess at trial.
a
He also
cau-
er, Norman,
appellant.
for
tionary
eyewitness
instruction on
identifica-
given.
tion should
been
Turpén, Atty. Gen.,
Michael C.
Tomilou
Gen.,
Liddell,
Atty.
Gentry
Asst.
Oklahoma
During a recess at trial and before Ms.
City,
appellee.
for
Bailey testified,
attorney
the district
told
appellant
in
hall that
restroom,
in the
and asked her to
see
OPINION
recognize
if she could
him
exited.
BRETT,
Judge:
Presiding
of the
Another black man came out
rest-
Cole,
appellant, Jeffery
first,
followed,
appellant
room
then the
charged by information with
crime of
by
escorted
uniformed man. At
a
Firearms,
Robbery
in
21
violation of
identified the
as
He was
tried
man that
into the IGA with
walked
in the District Court
Oklahoma
night
robbery.
on the
County
in
No. CRF-85-66. The
Case
Initially, we note
Robbery
found the
object
Bailey’s
failed to
to Ms.
in-court
Firearms After Former Conviction of Two
such,
identification
trial. As
at
punishment
Felonies and assessed
at twen-
properly pre
ment of
not
error has
been
ty years’
in
imprisonment
the State Peni-
v.
served for our review. Chatman
tentiary.
judg-
The trial court entered its
258,
Johnson v.
(Okl.Cr.1986);
and sentence
accordance with the
(Okl.Cr.1976). Thus
our
P.2d 51
jury’s
judgment
From this
verdict.
for
review is limited to a review
fundamen
sentence, appellant appeals.
only.
tal error
At
10:00
on Novem-
suggestive pretrial
11, 1984, appellant
Wynn’s
Unnecessarily
entered
ber
a
may deny a
City.
procedures
identification
de
IGA
store
Oklahoma
He
Green
approached
manager’s
process.
office
fendant due
and asked
(Okl.Cr.1979). The two-man
if he
check.
P.2d 767
could cash a
The assistant
showup
held
of the court
informed him
manager of the store
was,
unnecessarily
opinion,
a
house
in our
could not cash the check unless he had
so,
not
suggestive.
this does
result
cashing
check
card.
then threw
Even
manager, pointed
gun
exclusion of
in-court
paper
the automatic
sack to
Bailey. Leigh
office,
identification
employees
and de-
both
1379,
money.
employees
manded all the
will not
complied.
ordering
lay
them
The courtroom identification
After
floor,
if
established that
it
exited
store.
invalidated
it can be
trial,
manager’s
independently
reliable under
totali
employees
At
Weatherly
ty of the
positively
appellant.
office
circumstances.
(Okl.Cr.1987);
jury.
structions to
Specifically,
he ar-
Chatman,
supra.
gues
and were
improper
sepa-
because each contained a
There are several factors to consid
rate, distinct list of elements which differed
determining
er in
whether the courtroom
from the elements in the other
two
by pre-trial
tainted
con
identification was
tions.
*3
(1)
Among
prior
these are:
the
frontation.
The
appel
record reveals that the
opportunity of the witness to observe the
objected
lant neither
to the
nor
alleged
act;
during
defendant
the
criminal
his
operates
submitted
own. Such a failure
(2)
witness;
degree
the
of attention
the
as a waiver of all but fundamental error
(3)
accuracy
prior
iden-
the witness’s
given adequately
where the instructions
tification; (4) the
level of certain-
witness’s
subject
cover
inquiry.
matter of
(5)
ty; and
the time
the crime and
between
State,
Maghe
(Okl.Cr.1980).
pellant’s rights, his first of er tion; he does not contest the content of the ror is denied. instruction itself. The record reveals that assign- jurors contends his second deliberated for forty-five ment of error that the trial court erred one hour and minutes before indi- delivering confusing contradictory cating in- could not reach a verdict. quote lies with direct giving an Allen instruction fact, only Han In the last sentence varies from of the trial court. the discretion (Okl.Cr. language State, 664 P.2d used Section 801. addition cock v. instruction, given in- 1983). adopt a minimum to this decline We period necessary the trial court as to the elements of which structions time before charged and adminis These instructions con- not exercise its discretion crime. may Finding presented no abuse at trial. formed to the evidence ter an Allen instruction. discretion, finding the instruc After a of the instructions for fun- review substantively proper error, I the affirmance damental non-coercive, see Pickens v. conviction. (Okl.Cr.1979), find this final we merit. be without reversal, warranting Finding no error *4 is AFFIRMED.
judgment and sentence J.,
BUSSEY, concurs.
PARKS, J., specially concurs. GILBERT, Appellant, Larry Louis PARKS, concurring: Judge, specially agree Although in the affirmance of I conviction, separately I write STATE comment second conflicting claims that error. jury. Partic- given to the Oklahoma. Court of Criminal ularly, urges the instructions 8, 1988. him to convicted allowed be claim, charged. support
crime not read as points out that one instruction
follows: laws
You are further instructed provide, with of Oklahoma State charge
specific involved case, as follows: who, person persons with the use
Any or any dangerous any or other firearms
weapons, the firearm is loaded whether not, or imitation who uses blank
or or raising in the mind capable of
firearm with such one device threatened attempts firearm, it is a real
fear that persons, or person or any or
rob robs attempts any place rob
who robs or banking
business, institu- or residence place or at- any or other unhabited any any persons or person
tended day night, shall either or (Emphasis Firearms. Robbery with
Added) highlighted lan- attempt-
guage him to be convicted allowed robbery a residence.
However, was a the instruction I note that