*1
against
taking
video
have been initiated
Prior to
invalid
proceedings
cial
8, 1984,
applied
police
The standard to be
person.
taped
Id.
confession on June
question of
determining the
waiver
investigators
separate
in
val-
had secured two
right is “that it was
4,
this
Amendment
Appel-
Sixth
confessions on June 3 and
and
id
prove
in-
upon the State to
‘an
incumbent
took the officers to the location of the
lant
or abandonment
relinquishment
tentional
Rogers County.
body
va-
right
privilege.’
or
Johnson v.
of a known
lidity
justify
confessions cannot
of the
464,
Zerbst,
at
sel be to consult with сoun- opportunity had the sel, having suppressed as been should be right to coun- in violation of their obtained Amendment of the Fed- sel under the Sixth any of that and waiver eral Constitution police interrogation was inval- right for the DOUGLAS, Dewayne Kenneth at 1411. 106 S.Ct. id. Id. 475 U.S. Appellant, Thus, a confes- question of whether knоwingly voluntarily is sion made Oklahoma, Appellee. STATE of present facts of a under the relevant interrogation Ap- after the police initiated No. F-88-282. initially arraigned and exer- pellant was ap- Appeals The right Court of Criminal Oklahoma. cised his to counsel. [initial initiation of adver- pearance] signals “the July 1990. and thus the at- sary judicial proceedings” Aug. As Corrected 1990. Amendment. U.S. v. tachment of the Sixth 180, 187-188, Gouveia, 104 S.Ct. 467 U.S. (1984).
2292, 2296-2298, L.Ed.2d 146 rights, coupled the advice of issue of waiver, voluntary knowing controlling application in the Sixth only right Amendment to counsel when exercised his defendant has not Illinois, 487 counsel. Sеe Patterson v. L.Ed.2d 261 U.S. 108 S.Ct. (1988). *2 Henry, Gen., Atty.
Robert H. A. Diane Hammons, Atty. Gen., Asst. Oklahoma City, appellee.
OPINION
JOHNSON, Judge: DOUGLAS, KENNETH ap- DEWAYNE pellant, by jury was tried for the crimes of Degree (Count I), Burglary Second Assault Dangerous (Count II), Weapon With a and (Count III), from Lawful all After Former Conviction of Two or Felonies, More violation of respectivеly, 645 and 444 in Case §§ No. CRF-87-2134 in the District Court of County. Tulsa represented by counsel. The jury returned a verdict guilty punishment and set twenty-five (25)years imprisonment I, as to Count for- (40) ty years imprisonment as to Count II twenty-five (25) years and as to Count III. The trial court sentenced accord- ingly and ordered the sentences to run consecutively. Judgment From this and Sentence, appellant appeals. Approximately p.m. evening 11:00 27, 1987, July Kelly Barbara and Bob leaving Maras were Chile’s restaurant Tulsa, Oklahoma, conducting after a busi- ness dinner. While in parking the Chile’s lot, coming both heard unusual noises Clinic, B.J.’s Auto located across the street Maras, from Chile’s. off-duty Bob an Tul- officer, police sa* noticed a store window shaking vibrating. and Officer Maras con- cluded that the store being robbed and Kelly directed go back into Chile’s police. and call the Maras, drawn, gun with his clinic, walked over to the auto looked inside аnd observed black male rummaging through the store’s register. cash When finally outside, the man came Officer Mar- him, as confronted informed him that he was under arrest lay and ordered him to ground and freeze. Officer Maras slid his handcuffs over to the man and instruct- himed to handcuff himself. put
The man the handcuffs on his left Jаckson, Defender, Loretta Asst. Public up, wrist and then putting stood his hands Tulsa, appellant. behind his back. began walking The man claimed that his was not based on what she observed Officer Maras and toward gun. of the crime. The commission partner was inside and had Maras’ looked over Officer shoulder man thаt the iden State contends shouted, “run, they’ve got me.” Offi- and case is to the identi tification similar frightened yelled and cer Maras became procedure in fication Plunkett got man freeze. the man When Plunkett, P.2d 834 In after length, Maras reached arm’s within thirty arresting the min defendant within chest. put and his hand on the man’s out crime, police brought him to utes of The man to raise his hand started for identification. This the victim’s house something Maras wood- when Officer saw circumstances, found in some hand, he hit en and metallic the man’s occurring showup one-man near time of the man in the head with revolver *4 alleged аccuracy act of the criminal insures As man kicked him in the midsection. the than misidentification. identification rather dropped sledge ground, fell to the he a However, Plunkett, in had the victim stood holding. he had been hammer which for to face with the defendant several face of of during minutes the commission the any- to if Maras then turned see Officer description and he fit the she had fense else inside store. Satisfied one was the case, given police. present the In the Ms. alone, the Officer Maras that man was got a full Kelly admitted that she never the man run- turned around and observed of claimed appellant facial view the and she Kel- ning responding off. Ms. Officers appellant wearing that was a white T-shirt for man call and a search the ly’s arrived incident, during the Maras while Officer later, began. hour the Approximately one appellant wearing a testified that was man, wearing on his left still the handcuff Thus, short shirt. we find black sleeve hand, nearby captured apartment in a was by appellant of Ms. that the identification trial, complex. Maras identified At However, on Kelly error. based the was man the appellant as the he encountered at appellant by of strong identification auto clinic. connecting other evidence Maras and the crime, we find the errors to appellant to the error, assignment In his first beyond a reasonable doubt. be harmless appellant contends that the trial court find that 3001.1. We also 20 § allowing an in-court identification erred give appel not to the trial court’s decision Kelly. During by him direct exami Ms. eyewitness in requested cautionary lant’s nation, Kelly appellant identified as the Ms. due Maras’ proper to Officer struction was saw outside the auto clinic man that she v. positive identification. Johnson Sеe However, during Officer Maras. State, (Okl.Cr.1986). 727 970 P.2d Kelly admitted that cross-examination Ms. actually appellant her identification Appellant next contends that being person she witnessed support based evidence to there was insufficient custody apartment com Dangerous taken into charge of With a the Assault suggestive pretrial unnecessarily An plex. appellant claims Weapon. Specifically, show-up in contravention a defen in his hand object is held that since the v. process. swung, jury to due Goudeau could not have rea dant’s never the State, (Okl.Cr.1981). The oc sonаbly 637 P.2d inferred that an assault had the sufficiency con evi pretrial process must be When the identification curred. any way challenged appeal, a as to avoid is sidered in such dence whether, viewing that after prejudice and insure must determine possibility of light most favorable to is based on what evidence any in-court identification State, any trier of fact could have rational witness saw the commission of the crime lineup. found the essential elements rather than Id. See crime State, (Okl. perform To an beyond P.2d a reasonable doubt. also Frick Cr.1981). battery a Clearly, prеsent Ms. towards the commission of act State, Joplin an Kelly’s identification of to commit assault. in-court P.2d gument Officer Maras as it relates to 444 is that a he testified that reacted when he observed conviction is not an Escape element of from appellant raise his arm. Assault is a сrime Custody. Therefore, Lawful we find no proved that by showing general can be a error in the enhancement of his conviction perform intent to the act. Id. We find from Lawful by his sufficient evidence which a rational felony former convictions. trier of fact could have found the essential Appellant complains that charged beyond the crime elements of trial court erred in refusing give doubt.
reasonable
requested Instructions on the lesser includ
argues
further
that
Illegal Entry
ed offenses of
and Assault
giving
flight
trial court erred
instruc Upon a Police
Initially,
Officer.
we note
improperly stressing
tion because it was
Illegal Entry
is not a lesser included
particular
jury.
to the
evidence
Burglary Attempted
offense of
Burgla
appel
review of the record reveals that
ry.
State,
Smith v.
695 P.2d
object
lant failed to
to the instruction at
(Okl.Cr.1985). Moreover, the evidence de
trial, thereby waiving all but fundamental
veloped
at trial did not
the crime of
error. Ballou v.
694 P.2d
951 Illegal Entry.
Peggy Gaycan,
(Okl.Cr.1985). Furthermore,
it is well-set manager
Clinic,
of B.J.’s Auto
testified that
*5
approved
tled that
this Court has
of a
entry into the store had
through
been made
flight
justified by
instruction when
the evi
Furthermore,
a broken out window.
the
State,
(Okl.
dence. Scоtt v.
both argument. during evidence to be introduced the sec State, Capps (Okl.Cr. 674 P.2d stage ond of trial. The court had sustained 1984). during a motion in limine stagе the first proposition,
In his next
appellant
allowed,
the trial
objection,
but
over
the
claims that his conviction
Escape
from improper character
during
evidence
the sec
Lawful
should not have
stage.
been en
Through
ond
the testimony of Offi
by
prior felony
hanced
Ap
Malonе,
convictions.
cer Steve
the State introduced evi
pellant
charge
reasons that the
of Escape dence of statements
by appellant
made
af
Custody, O.S.1981, 444,
Lawful
placed
ter he was
under arrest.
§
analogous
charge
is
to the
from Malone
appellant
testified that
“very
was
O.S.1981,
loud,
Penal Institution under 21
profane,
very
abusive and
violent
person’s
that
escape
convic- his
continued,
§
nature.” Officer
ap
Malone
tion
by
cannot be enhanced
pellant
the conviction
“had to be restrained several times
serving
for which he was
keep
time he
to
attempted
open
he
the car
—and
escaped.
appellant
While
argues the
get
cor- door to
out.” Officer Malone further
application
rect
it
law as
relates to
appellant
testified that
“made mention to
State,
see Moore v.
736 P.2d
care,
§
the faсt that he didn’t
just
that he had
(Okl.Cr.1987),
the fatal
flaw his ar- been arrested and
years hanging
he had 30
(Okl.Cr.1986). However,
years
he was
on 10
P.2d 965
Johnson
over him and that
still
distinguishable
present
probation
a little more time wouldn’t
from the
case
Johnson,
Finally,
person
only
matter.”
Officer Malone stated
because in
one
identi
dеfendant,
person’s
“made the
to us
appellant
that
statement
fied the
and that
identi
positive.
if he
caught
present
that we
would have
was
In the
case
never
fication
[sic]
appellant,
in the
sewer.”
stayed
persons
would have
storm
identified the
Offi
two
Kelly.
Ms.
cer Maras and
While Officer
record,
a review of the
we
After
appellant
Maras’ identification of the
was
the
find
to be irrelevant as to
this evidence
positive,
Kelly’s
not.
Insofar
as
During
en
stage proceedings.
second
the
questions concerning
serious
there were
proceed
stage
hancement
bifurсated
identification,
reliability
Kelly’s
of Ms.
ing,
of a
only
issue is
existence
eye
I
find that an instruction on
would
prior
can
conviction on which enhancement
identification was warranted. See
witness
State,
P.2d
be based. Pickens v.
(Okl.Cr.
we I, (30) twenty (20) thirty years for Count (20) years twenty years II and for Count *6 III. This is the minimum on Count III, but, facts, Counts I and due to thе so is set Count II should not be reduced but SPENCER, Appellant, Benny Junior slightly above the minimum. on Finally, appellant contends that based circumstances of this' facts and Oklahoma, Appellee. STATE his sentence is excessive. Based on No. F-88-464. previous assignment modification error, proposition moоt. we find this Appeals of Criminal of Oklahoma. MODIFIED, judgment As and sen- July 20, 1990.
tence is AFFIRMED.
PARKS, P.J., LANE, Y.P.J., concur.
BRETT, LUMPKIN, JJ., concur result.
BRETT, Judge: concurring in results. agree I that this case should be While affirmed, disagree I with the conclusion cautionary that a instruction majority testimony eyewitness was not warrant- majority that such an
ed. The reasons necessary Offi- instruction was because cer Maras’ identification of the positive. In of this conclusion majority cites Johnson v.