Frazier v. StateFrazier v. State
- Reporters:
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- Before:
- Lane
OPINION
This сase arises from the sale of stolen aluminum scaffolding walkboards. Bill Ralph Frazier, Appellant, was tried by jury and convicted of Cоncealing Stolen Property, After Former Conviction of Two Felonies (
In this perfected appeal, the appellant argues the trial court erred by denying him a continuance of the preliminary hearing; the evidence was insufficient; and testimony regarding a “pen pack” was inadmissible hearsay. We find denial of the continuance proper and the evidence sufficient. For the first time we apply
Appellant regularly sold small quantities of aluminum scaffolding walkboards to the Reynolds Aluminum recycling center in Oklahoma City. On Saturday July 30, 1988, he
The following Monday morning, H & H Masonry superintendent Jerry Ray Poe discovered the H & H equipment lot had been broken into. A total of 237 aluminum walk-boards were missing; approximately 100— 130 walkboards had disappeared sinсe the close of business the preceding Friday. Poe found many of the H & H walkboards at Reynolds. Poe identified the H & H property by the dimensions, and by green paint markings and spattered mortar on them. The Reynolds foreman identified appellant as the seller of the aluminum.
At the preliminary hearing, defensе counsel moved for a continuance on the grounds she had been retained the previous day and was unprepared. Thе magistrate noted the appellant had twenty-six days’ notice of the hearing and overruled the motion. The appellant made no showing of diligence to obtain counsel. On appeal appellant argues the magistrate thereby denied him his constitutional right to counsel.
Appellant recognizes he must show some diligence in his attempt to obtain counsel in order to warrant a continuance for failure to do so. See Lamascus v. State,
Appellant next argues the evidence was insufficient to convict him. To support this position he claims the identification of the aluminum walkways by Mr. Poe, the H & H superintendent, was not believable. On appeal this Court has no authority to invade the province of the jury where competent evidence exists in the record from which the jury could reasonably conclude the defendant is guilty as charged. Truelove v. State,
Continuing this argument, the appellant claims the testimony of the Reynolds foreman required сorroboration prior to admission, for he was an accomplice to the appellant’s crime. The only suppоrt appellant proposes for this bold accusation is that although he was not charged with a crime, the foreman “did not likely come into the courtroom with clean hands” and “probably had ample incentive to testify against (the appellant)”. Aрpellant cites no case which extends the definition of “accomplice” this far, and we decline to do so now.
In his final proposition of error, the appellant attacks the admission of portions of his “pen pack” in the second stage of trial to prove his former conviction. A pen pack consists of a judgment and sentence, photograph and fingerрrints of the convicted person. It is created and maintained by the Department of Corrections.
The admitted evidence was certified by the Manager of Offender Records in the Oklahoma Department of Corrections, and her signature was verified by the Sеcretary of State for the State of Oklahoma. Appellant argues it is inadmissible hearsay because the witness who testified аbout it, and through whom it was introduced did not receive it directly from the Department of Corrections.
Police Lieutenant Rupe testified he compared the photo and fingerprints in the pen pack to a photo and fingerprints of the defendant and found them to be of the same person. This testimony was used to prove one of the former convictions, and the evidence was admitted into trial. Lieutenant
The State urges the testimony is admissible because it falls within the “catch-all” exception to the hearsay rule codified in
Title
To the extent not otherwise provided in this paragraph, records, reports, statements or data compilations in any form of a public office or agency sеtting forth its regularly conducted and regularly recorded activities or matters observed pursuant to duty imposed by law and as to which thеre was a duty to report ...
Pen packs are regularly created by the Department of Corrections as permanent records of incarcerated persons. As such they fit squarely within
We note that the relevance of the material in the pen paсk was not at issue in this ease, for only that information which pertained to former conviction was admitted. The fact that the pеn pack is admissible does not relieve the trial court of its duty to make a determination of relevance prior to admitting any evidence.
Finding no error which requires reversal or modification of sentence, the judgment and sentence is AFFIRMED.