*1 prior By city, though CLIC.3 Red Rock was the substituted CLIC service in $4,538 assigned loss, but Marland was may each convenient, instance be less and $2,236.36 profit. accorded a By eliminating initially efficient, service, less than agent expenses, the Red Rock/Marland Santa Fe provides CLIC reasonably adequate service reported $60,298.98 it would have saved conformity in with Santa duty Fe’s to main- period. During periods the same cover- public service, tain such facilities and con- evidence, by ed the combined number may veniences as be just. reasonable and of carloads to the attributable Red Rock The order of the Commission is reversed. agency and Marland declined from 422 in applications by The Santa Fe authority 1977 to 183 in 1980. to discontinue agents local Our consideration of the evidence in each Burlington, Marland and Red Rock is above, requires balancing instance of the granted. expense to Fe Santa to maintain local agents necessity and the relative and bene- BARNES, C.J., HODGES, and LAVEN- See, Atchison, T & SF DER, public. fit to the OPALA, JJ., DOOLIN and concur. 485,
Ry. Co. v.
189 Okl.
ping public proffered than the substitute
services was found insufficient justify substitution,
the Commission’s denial of
where the substitute services were other- just
wise and inquiry, reasonable. Our
then, simply is not whether the continuance agents local in Burlington pa-
Marland/Red Rock would afford the
CURLISS, Appellant,
Ben Faron
trons a more convenient method of trans-
business,
acting
but rather whether
Oklahoma, Appellee.
The STATE of
will
public
substitution
furnish the
facilities and conveniences
reasonable
No. F-83-485.
just.
In accordance with St. Louis-San
Court of
Appeals
Criminal
of Oklahoma.
Ry.
Francisco
Co. v.
quacy and in- reasonableness facilities demand, size, furnishing
clude cost of addi-
tional accommodations and all other facts bearing upon ques-
which would have a cost, Kurn, supra,
tion convenience and
including the cost of the service as com-
pared to the revenue derived from that
portion public thereby, of the benefited 76,
Lowden v.
189 Okl.
(1941).
Applying principles to these the enumer- evidence,
ated we are convinced that al- $2,561,602 ap- generated 3. Revenue in the amount of an exclusion where the revenue is 1,994 proximately utilizing agent railcars attributed to the from activities the station not plant procedure OG&E because OG&E were excluded did deemed the correct in Kurn v. agent. (1937). not utilize the of the local Such services 179 Okl. *2 Donaldson, City, for
Earl R. Oklahoma appellant. Gen., Turpén, Atty. Susan
Michael C.
Gen.,
Agosta,
Atty.
Oklahoma
Brimer
Asst.
appellee.
City, for
agree
OPINION
While we
right
counsel
prisonment and on
was
the
(Okl.Cr.
that the
strong circumstantial evidence established
signments of error. For a full recital of
469
CRF-81-4649, wherein,
Oklahoma
BUSSEY, Presiding Judge:
Ben Faron Curliss was
facts,
convicted for First
(Okl.Cr.1984).
sought. He
1984)
appellant participated
see
County
Kelley
was sentenced to
Vining
District
It suffices
appeal
v.
State,
Degree
the death
v.
*3
Court,
raises five
charged,
he in his Oklahoma home sir, Yes, A. he did. morning early in the hours of October Q. you, me any specific Let ask had by comment been made anyone, as far as public calling a defender for him? I Yes, A. sir. initially argues Defendant that his waiv- Q. made that Who comment? right involuntary of his to counsel er was did, A. You sir. it police because was coerced the Q. was the What comment? Attorney. Assistant District His conten- A. asked Mr. if You he had an Curliss speak tion that he was offered a chance to attorney. He said no. then You asked only his wife after giving with but a state- him, produce public we can a defender police square ment to to the fails with right you you now if need one. He testimony The facts. established that the no, I just said don’t need one. I want to appellant see he asked to his wife after get up. this cleared gave a statement and that he initiated the Q. proceed did he then to And make a wife, meeting police through with his statement? prior making he a whom had visited to (Tr. 129-130). A. Yes. statement. accept to appellant’s underlying We decline held, appro As this Court has the premise that counsel should have automati- priate admissibility test for the of a state present cally questioning been at the even ment is not whether the was defendant appellant if the had the declined State’s made, at but distressed the time was him. produce offer to counsel for Accord- of capable whether he is nevertheless assignment ingly, of is this error without understanding meaning the and effect merit. v. 452 Seth his statement. (Okl.Cr.1982). opinion are of the that We II trial the court had sufficient evidence at error, In his second hearing in-camera from which to conclude appellant the contends that statements ob appellant’s the statement made that him following tained from warrantless voluntarily. illegal suppressed. arrest should have been argues he that appellant
The next that He reasons information from a citizen stage police prob was denied assistance of counsel at a informant was not sufficient However, clearly the proceedings where he was able cause his arrest. this lawyer. improperly entitled to the of a issue before this Court be- assistance is 562 argue proprie profile We all know hired appellant failed to
cause guess Tracy I that Dick object killer. is more at trial and failed to ty of his arrest stuff, reality. and not this of his statement on such and television the admission profile waiving the I of a hired thereby alleged error. don’t know killer. grounds, (Okl.Cr. profile. gentlement don’t know the These Coleman (Okl.Cr. they’re in a 1983); stamped P.2d not like mold. Hill v. It’s Ferguson v. also, every hired 1977). You can’t tell what killer See (Okl.Cr.1982). you But if across looks like. look P.2d 1021 right you one of
room now can see what (Tr. 491). III like. them looks error, the assignment However, In his third clear counsel it is that defense absent his state argues closing “Dick appellant initially injected Tracy” into *4 evidence insuffi police, argument the was ments and then submitted: facie case. We have prima form a cient to you Does he look like [the defendant] appellant’s that the previously concluded profile of a But that is the killer? ... it would ad were admissible and statements special person kind to kill on takes a of Allen testimony the of ditionally observe probably an There order.... are more him, told “we appellant that Gaddy the be, should we all than there but know him,” Gaddy’s testimony Kim wasted and profile type kind of a that of man what Gaddys the to alibi appellant asked that the has, general. in spent night they the say him and that type that of a man We know that is sum, In him. the evidence question in with (Tr. 484). cold, cruel, person. calculated sufficiently at established presented trial prosecutor’s the remarks are Where State, 607 See, v. prima facie case. Renfro counsel, they initially invited defense (Okl.Cr.1980). P.2d 703 grounds not be generally will reversal. for. State, (Okl.Cr. v. 644 Wacoche P.2d 568 IV Satepeahtaw 1982). also, v. See 595 Next, appellant the cites numer Brown v. (Okl.Cr.1979); P.2d 805 prosecutorial examples alleged mis of ous (Okl.Cr.1977). assign 563 1182 This P.2d in and clos his cross-examination conduct is without merit. ment of error Initially, appel ing argument. we note the contemporaneous failure to voice lant’s V any prosecutor’s the com objection to of argues Appellant ineffective assist one, was. ments save which sustained. assignment ance counsel in his final Therefore, complaints have been his v. P.2d 1311 Johnson (Okl. In 620 error. waived. Ellis v. (Okl.Cr.1980), adopted we the view that Cr.1982). entirety have reviewed the We skill, the counsel must exercise that defense closing arguments and find of the reasonably diligence judgment and of a prosecutor’s some the remarks while re condoned, competent We have defense counsel. not to unnecessary be were alleged examples numerous viewed the on the were reasonable inferences most of counsel and con Ellis, supra at 772. In view of ineffective assistance evidence. preju appellant no clude that the suffered strong of the circumstantial evidence the guilt. strong of the evidence of dice in view guilt, say cannot appellant’s we Johnson, supra at 1314. swayed to have appeared remarks Campbell v. jury's verdict. was far appellant’s defense While alibi denied, (Okl.Cr.1981), cert. 460 U.S. 352 had to raise a perfect, potential from 1250, (1983). 1011, L.Ed.2d 103 S.Ct. minds, par- jurors’ in the doubt reasonable direct evi- the State had no objectiona- ticularly when specifically This Court finds stabbed the deceased. As re- that he ble, following prosecutorial dence though, the Johnson, 1313, appel- supra at stated in mark: not, perfect late court should hind-
sight, attempt guess to second trial strate- KELLY, Appellant, Ronald Daniel gy which was viable. As to defense counsel’s argue failure to Oklahoma, Appellee. STATE of suppression appellant’s of the state- No. F-82-309. ments, it, it should be noted that in appellant consistently denied his involve- Appeals Court of Criminal of Oklahoma. too, ment the murder. This could have strategy as been viable could his decision 30, Nov. 1984. object not to to the admission of the state- As Corrected Dec. may thought ment because he have it was given voluntarily knowingly.
Finally, particularly per- we observe the closing argument
suasive of defense coun- case, stage capital
sel at the second of this appellant spared
wherein the the death
penalty given the minimum sentence Degree
for First Murder.
This of error is without mer-
it.
Having requiring found no errors modifi- reversal, judgment
cation or and sen- hereby
tence is AFFIRMED.
BRETT, J., concurs.
PARKS, J., Specially Concurs.
PARKS, Judge, specially concurring: decision;
I concur in the results of this necessary my
however I feel it also to note
objection prosecutor’s quot- to the comment in Judge Bussey’s Opinion.
ed Even
though the comments were invited de- counsel, prosecutor strayed
fense close prejudicial comments and reversible er-
ror.
It is strong clear that there was circum- defendant, against
stantial evidence apparent any is not that there was
prejudicial swayed jury’s effect
verdict.