*1 295 need be in- whose decision will not alleged tional be on disturbed facts against appeal dictment given, where instructions taken information accessory required than are in an whole, fairly an accurately as a and state the against State, indictment or his law. Allison v. applicable 675 P.2d information (Okl.Cr.1983). principal. [Emphasis 142 added.] Accordingly, sufficiently bar, In the case at the evidence charges him apprised against of the before presented at trial did not tend to show trial, especially fact considering the that he degree commission a lesser of the originally charged “acting in con say crimes. We cannot that the trial court Therefore, his cert” with codefendant. instruct, by failing abused its discretion charge may indictment ac “[s]ince sponta, sua on the lesser of included principal specifical as a cused and need not Moreover, fenses. since the instructions allege ly that he in the aided and abetted accurately appli and fairly stated the crime, commission of the find this as we law, According cable will not we reverse. signment of error to be merit.” without ly, assignment this or error is also without State, v. (Okl.Cr Bowen 606 P.2d merit. .1980). Finding merit appellant’s no to the as- error, signments judgement sen- IV. be, tences of the District Court should appel In his last hereby are, AFFIRMED. lant contends the trial court committed re by failing versible error to instruct the P.J., BRETT, BUSSEY, J., sponte sua on the lesser included offenses concur. 5, 6, 7, to counts and 8. We note that the failed to to the instructions requested submit instructions general, trial court. In consti such failure assignement
tues waiver of the of error. v.
Maghe however, support of proposition,
In Brown v. cites Brown, P.2d 46 this COULTER, Appellant, L. Robert presented Court held that the evidence tended trial to show the commission of a Oklahoma, Appellee. STATE degree charged, lesser the crime and the sponte trial court to sua of the failure No. F-84-646. on the offense was instruct lesser included Appeals of Court of Criminal Oklahoma. clearly reversible error. This case is distin- guishable from the case at bar. March 1987. long “This court has held an instruc Rehearing Denied March 1987. only on a lesser need
tion included offense given when there is that tends evidence prove the lesser offense was included Campbell committed.”
1364, 1366(Okl.Cr.1982). Moreover, “[i]t the trial and re
within court’s discretion
sponsibility to consider the evidence and to
determine whether other such evidence ex
ists to warrant instructions of a lesser de
gree.” Sanders v. P.2d 611
(Okl.Cr.1976). Finally, jury instructions court, within
are the discretion of *3 McNaughton, Counsel, Sp. Appel-
Susan Defender, Norman, late appel- Public for lant. Gen., Turpén, Atty.
Michael C. William Luker, Gen., H. Atty. City, Asst. Oklahoma appellee. for OPINION PARKS, Judge: Coulter, appellant, The Robert L. Firearms, Robbery convicted of After er and Mr. Lerch. Felony, Former Conviction of a and Kid- Each witness identified napping Purpose Extortion, gunman. as the for the Af- Felony, ter Former Conviction of a in the eventually The arrested in County, District Court of Oklahoma Case year October of one and four months No. CRF-82-3518. The was sen- robbery. after the He was advised of his ninty-nine (99) (1) years tenced to and one rights and having admitted jew- robbed two day imprisonment robbery for the and to elry City. stores northwest Oklahoma (250) fifty years imprisonment two hundred could not remember kidnapping, to be served consecu- store, name of either but stated that he had modified, tively. judgment As and sen- hostage during taken a woman one of the tence affirmed. robberies. morning At 10:00 a.m. on the of June man, subsequently an armed identi- I. appellant,
fied
as the
committed a
ap-
his first
*4
of the
jewelry
Gold-N-Ideas
store Okla- pellant contends that the trial court com-
City,
homa
The
Oklahoma.
three co-own-
by allowing
mitted
error
reversible
the offi-
store,
Hooker,
Lerch,
ers of the
Jim
Darold
cer,
pre-trial photo-
who conducted the
wife,
Lerch,
and his
present
Connie
were
at
graphic
line-up,
testify
identification
to
as
robbery.
perpetrator
the time of the
The
to the circumstances and results.
entered the store and asked to look at some
Appellant is correct in his conten
diamonds. When Mr. Hooker went to the
testimony
tion that
the officer’s
was im
stones,
get
back of the store to
proper.
pre-trial
Third party
identification
grabbed
robber
Mrs. Lerch around the
testimony
only
is admissible
for rebuttal or
pulled
gun.
neck and
out a
He stated that
evidentiary hearing purposes. Hill v.
she would not
if
cooperat-
be hurt
the men
describe testified fol- was for a crime other than the one lows: charged, provided that the information
I received from continuing investigation party conducted a the third just a case, presented description into the I Pickett at the criminal and not an Miss several later photo- extrajudicial dates with numerous identification of the defend- graphs persons ant suspect- perpetrator arrested and as the of the crime robbery charges. ed with pictures charged. were obtained from the Oklahoma Coun- Id. 311. ty presented Sheriff’s Office Jail and to Here, inas Washington, the infor her and also— mation led to an arrest for the crime response allegation defendant’s charged and was simply general not de evidentiary harpoon, this Court stated scription criminal, of the specifical but was that the remarks dangerously came close ly directed toward as the implying that the defendant had commit- perpetrator. Accordingly, the admission of ted Considering another crime. the total the testimony was error. circumstances, however, we held that the In Meeks v. statements were harmless since (Okl.Cr.1981), this Court reversed the de specifically did not any prior refer to crimi- fendant’s conviction because the arresting activity. nal officer had been allowed testify about case, In this the officer also came incriminating certain third party informa
very close implying prior criminality. reversed, tion. however, We because the Police permitted officers should not be testimony directly linked the defendant to *5 “jail” refer photographs during to trial tes evidence which was critical to his convic Again, however, timony. considering the tion. There is no similar link in this situa totality of the circumstances and the lack tion. specific of prior crime, reference to a we Therefore, as we in Washington: stated hold that the judge’s trial error was not though are convinced that this sufficiently prejudicial was justify [W]e a reversal. jury error and the should have been ad- III. it, disregard monished to an inordinate prejudice amount of did not flow there- assignment error, his fourth of the from. if Even this evidence were to be appellant that contends the trial com- properly excluded there was more than mitted reversible error when he overruled enough justify evidence to defendant’s appellant’s the objections to certain testi- not, therefore, conviction and it will mony by the investigating officer. reversed on this account. officer testified that he had received infor- mation from a deputy sheriff in Kansas Id. 311. suspect
which led him
appellant
that the
IV.
had committed the
question.
crimes in
In his fifth
ap-
of
the
veryA
similar situation was discussed in
pellant contends that the trial court’s first
the case Washington
of
v.
stage instructions
fundamentally
were
de-
In Washington, an offi-
fective because
not properly
did
in-
cer
testify
was allowed to
that a conversa-
form the
of the elements of the crime
boy
tion with a small
had led him to direct
firearm,
robbery
of
with a
and because the
investigation
toward the defendant.
appellant’s plea
pre-
instructions on the
and
This Court
condemned the
and
sumption
of innocence were not
in
stated:
the order
by
recommended
the Oklahoma
permissible
...
it is
for an officer to
Jury
disagree.
Instructions. We
Uniform
testify that he received information from
party
third
which
Appellant
led to defendant’s
alleges that
the instruc
provided, however,
arrest
that the infor-
fundamentally
tions were
defective because
mation received shows that
the arrest
the
judge unnecessarily repeated
trial
the
charges
improp
against
appellant
the
and
15 Okl.
82 P.
Territory,
Blair
erly
robbery
the
(1905):
set forth
elements of
degree
robbery
the
of
fire
by
first
instead
required
A
state
court is not
all of
first
arm. We
note that
the
instruction,
law-of
case in
the
the
one
object
failed to
or to
instructions
given simply
and where an instruction
submit
A
instructions
his own.
a proposition
omits
which
should con-
it
failure to
waives all but fundamental
tain,
proposition
clearly
and that
and
(Okl.
error.
Jetton
instruction,
specifically set out
another
Cr.1981).
together they
appli-
and
embrace the law
conflict,
and
cable
the case
do not
we
An examination
the
re
record
complaint.
can see no cause for
veals that the court’s instructions recited
quot
against
appellant,
the information
Here, the trial court’s instructions listed
charges
upon
ed the statutes
which
degree robbery.
the elements of first
Ex
based, individually
were
stated that
cept
element,
degree
firearm
first
charged
robbing
with
was
robbery
robbery by
and
firearm are identi
jewelry
Gold-N-Ideas
store with a firearm
instance,
missing
In this
cal.
element
kidnapping
and
purpose
Connie Lerch for
clearly
by
supplied
was
the other instruc
extortion,
finally,
set out
ele
tions. The instructions contain no inherent
ments
robbery
with a
and kid
firearm
together fully present
ap
conflicts and
napping for extortion. We find
plicable
law.
Lee v.
96 Okl.Cr.
Cf.
unduly repetitious.
instructions were not
(1952).
hand,
On the other
it
improper
Finally,
contends
for the trial court to
ele
instruct on the
judge’s
de-empha-
prejudicially
instructions
robbery
degree
ments of
in the first
when
plea
presumption
sized his
of inno-
charged
Jury
cence. The Oklahoma Uniform
In-
However,
with a firearm.
we hold that the
plea
pre-
structions list a defendant’s
instructions,
trial court’s
when read as a
sumption
innocence as the third and
whole, clearly
unambiguously
indicate
Here,
fourth recommended instructions.
that the use of a firearm was an essential
*6
they
Appellant
and
were
18th
19th.
State,
element of the
Vigil
offense.
v.
Cf.
argues
judge’s
that the trial
failure to fol-
(Okl.Cr.1983).
This has Court held that the omis- (1953); v. Okl.Cr. P.2d 690 sion of an element in one instruction can be Lee, by supra. assignment and This of error cured its inclusion in the another. As Supreme is, therefore, Court of in Oklahoma stated without merit.
3Q1 senger, V. money thing demands or of other value, guilty shall be of felony, a and Appellant next that contends upon conviction shall or im- suffer death attorney authority district acted without of prisonment in the penitentiary, less not he subpoena law when issued a duces te- (10) years. than ten Telephone cum Southwestern Bell on February subpoena 1983. The was Appellant argues it was that signed by judge a of the district court and judge error for the trial to instruct that an indicates on its was face that it issued “safely intent to extort and escape” was O.S.1981, pursuant provisions 22of under sufficient the statute. Without cit part: 258. Section 258 in pertinent reads § ing any authority, argues case he that safe approval ty “thing However, The district is attorney may, on not a of value.” county judge judge, proscribes extorting of or the district statute “money, prop subpoenas erty thing in of felony issue cases and call or value or advantage....” added). (Emphasis witnesses before him have them At appel and the time the lant testimony hostage sworn and their reduced to took Connie Lerch and made writing signed his by escape, and the witnesses he told the two male follow, the cost of the if county. examina- victims that tried Such he Clearly, tion must kill felony be confined to some would her. against demanding advantage
committed the statutes of the in for exchange county, 745(A) her state triable and the release. reach of section so taken not to those evidence shall not be receivable limited situations in a which proceeding. civil A ransom is demanded. Gregory refusal Cf. obey subpoena (Okl.Cr.1981); such P.2d 384 or to sworn or to Nor be testify may punished contempt ris 68 Okl.Cr. as a on (1939). complaint assignment showing county This of error is without court, court, judges district or the merit. proper
thereof that cause exists therefor. VIL Here, felony a pri- case in existence Finally, in assignment his third subpoena, or to issuance of the it was error, preju contends that signed by a district and the crimes testimony closing inflammatory dicial occurred and were triable in Oklahoma argument deprived him right of his to a County. Accordingly, the district attor- Initially, fair complains trial. ney’s actions were lawful. opening remarks and trial re lating feelings. Ordinarily, to the victim’s VI. questions prejudicial are and serve seventh jury. only purpose inflaming appellant contends that the does evidence Cowles v. support charge kidnapping not *7 However, robbery, in a case of is an fear O.S.1981, purpose of extortion. Title 21 the element and victim’s state of mind is a 745(A), statue, provides the applicable § highly proof. form of relevant Hill v. follows: State, (1921). 19 200 P. It Okl.Cr. 253 who, Every person without lawful au- therefore, not, improper for the thority, forcibly seizes and confines an- appellant’s objections to overrule the other, another, inveigles kidnaps or or testimony. to such purpose the extorting any money, for property thing advantage or objects testimony Appellant value or also person seized, confined, the argument from so in- change appear about his in veigled kidnapped, any crime, or other the or from ance from time of the to the person, hearing, in preliminary manner threatens ei- to trial. Most of the instrument, by argument, however, ther written word of related testimony and mouth, message, telegraph, telephone, by explanations for Mr. Lerch’s failure placing an newspaper, by preliminary ad in a or mes- hear- identify the 302 such,
ing. As
clearly
we hold that
(parts I,
III),
it was
discussed
II and
impossi
it is
relevant and admissible.
Bradley
say
v. ble to
their combination had no effect
Cf.
State,
(Okl.Cr.1985).
fairness of proceedings. case, In this
however, since the majority vast of preju
dicial comment during occurred second
stage proceedings, appropri reversal is not hand,
ate. On the other when considered
in conjunction with the previously errors