Grizzle v. State
707 P.2d 1210
Okla. Crim. App.
1985
Check Treatment

*1 improper prosecutorial comments tion on preju- if “their combined effect was so adversely

dicial as to affect the fundamen- impartiality proceed-

tal nature and

ings.” Freeman v.

(Okl.Cr.1984), quoting Cobbs v. (Okl.Cr.1981). Although

P.2d improp-

comments

er, the error was not so fundamental as as-

require reversal or modification. This

signment merit. of error without as-

We have also examined the various appel-

signments of error contained in the brief, pro find them se likewise

to be without merit. judgment and of the Dis- sentence AFFIRMED.

trict Court is JJ., BUSSEY, concur.

BRETT and GRIZZLE, Appellant, Dean Sr. Oklahoma, Appellee.

STATE

No. F-83-338. Appeals

Court of Criminal of Oklahoma.

Oct. *2 Barrett, Sp. Counsel, Appellant

Mark H. Norman, ap- for System, Public Defender pellant. Gen., Atty. Turpén,

Michael William C. Luker, Gen., City, Atty. H. Asst. Oklahoma appellee.

OPINION Judge: PARKS, Presiding Grizzle, Sr., appellant, Dean Hughes tried in District Court CRF-82-18, the of- County, Case No. Firearm, Feloniously Pointing a fenses of 1289.16, Cruelty to 21 O.S. § Animals, § includ- appellant guilty found the lesser Anoth- ed offense of 1981, 1279, guilty er, as as 21 O.S. well Appellant was sen- to Animals. in the year of one imprisonment tenced to offense, jail the terms county for each consecutively. run p.m. the after- approximately At 1:30 Everett Chronister noon March join Lake to went the Holdenville his I.

family picnic. and friends for a He Appellant’s assignments first three of er- brought along his month eleven old Ger- ror deal with a impression of first Shepherd puppy. Though normally man jurisdiction. in our The issue is to what leash, kept on a was allowed to run extent is one entitled to defend oneself or animal, another from the attack of an loose while at the lake. so as *3 liability to avoid criminal to p.m., group Around 5:00 the was unex- 1981, Animals under 21 O.S. 1685. § by appellant pectedly joined and his son. agree appellant We with the the Appellant was at the lake to test a new trial court’s instructions were erroneous. weapon, pistol, a .25 caliber automatic Though portions of the instructions were just purchased. Appellant pulled he had proper, the instructions as a- whole were picnic into the area the was located where confusing deny appellant so as to his fun Merriman, a friend because Robert and rel- right theory damental to instructions on his Chronister, him ative of waved over. After of defense. Neal v. 597 P.2d 334 beer, appellant’s Chronister offered son a (Okl. Cr.1979). latter, reason, apparent the for no hit Oklahoma has no case law defin Chronister on the side of the head. The ing person may lawfully when a kill an began fighting. men As the combat- two liability animal and avoid criminal under 21 ground, ants on the wrestled Chronister’s O.S.1981, today, 1685. We hold there § dog master, came to the aid of its and fore, “privileged destroy that one is to [or began biting leg young the Grizzle. At injure] purpose an animal for the of defend point, dog appellant shot the four ing persons against himself or third harm pistol, killing his .25 it. times with caliber animal, (a) by the if threatened its actions Chronister, According to shot reasonably led him to or know believe that men, wrestling and over the heads of the (b) the animal would inflict such harm and attempted separate dog never to the from injury] the destruction was reasonable [or young Appellant Grizzle. testified that he gravity in view of the of the harm threat ened, (c) repeatedly keep dog away person reasonably tried to the the be only prevented by lieved the harm could be opened only dog fire after the continued to injury] destruction immediate the [or attack him and son. both his Faulkner, v. 174 animal.” Devincenzi Cal. Subsequent shooting, appellant al- (1959). App.2d 344 P.2d 325 See Chronister, his lowed son beat while Wrobel, also State v. Conn.Cir. pointing weapon him. the at Chronister (1964). A.2d 280 The kind of and amount if was threatened he tried to defend him- force, however, reasonably should be self. asserts that he did not proportionate to the kind and amount of intentionally point pistol anyone, the at danger presented by the animal’s attack. only rather he turned around while holster- Wrobel, supra. Appel Accord State v. ing weapon. Appellant also claims that theory upon of defense is based Chronister, any he did not make threats on essence, if rule. In he asserts that one is only but wanted to make sure that reasonably defending himself or another fight. awas fair animal, injury from the attack of an the animal is not so cruel and malicious as Grizzle, dog Jr. stated that the scope of 21 to be within through at the chewed his socks ankle. 1685. contends that the shoot However, sought he neither medical atten- ing of this was not unreasonable under tion, reported to the authori- bites the circumstances. ties until after the arrest of himself and his days father two later. It was then properly The trial court that the office was made appellant’s theory Sheriff’s aware of of defense shooting that there was lawful cause for bites. (Okl. court also Hall dog. The trial defined “lawful See Cr.1957). case, No. 9 In Jury cause” in Instruction to include the instant killing destroying of an animal in presented “the or sufficient evidence warrant person, person, or another theory defense, defense of one’s instructions on his but It property.” was noted or one’s home or right was denied that when the trial court No. Jury further Instruction 10 that the gave confusing instructions. Neal v. at appellant put on evidence that the time State, swpra accordingly We re incident, acting he alleged “cruelty verse the ani lawful of another. mals,” defense remand for new trial. However, the trial court confused regard, appellant In this also has its it rendered instructions when maintained that insufficient evidence was

concerning of others. The trial presented appellant guilty to show of Cru 12-14, No.’s in Jury court in Instructions elty agree. Appel to Animals. We do not jury that the defense of anoth structed the shot dog, lant Chronister’s and the evi er to the defendant was not available *4 killing dence showed the was not acciden whose behalf the de person “when the on A prima tal. ease was established facie aggressor, the fendant intervened was no by prosecution. the Stockbridge See v. danger great personal matter the to how 167, Territory, (1905). 15 Okl. 79 P. 753 security during the un becomes altercation reasonably the appellant Whether acted in of right less the of defense another is rees killing dog the a of fact will be explained The trial court then tablished.” jury to the resolve on retrial. See Renfro might when of another be rees the defense State, 703, (Okl.Cr.1980). 607 P.2d 705 v. tablished. (Okl.Cr.1979) State, P.2d 464 See also Hunt v. 601 deliberations, jury 969, In the could con- its t. 446 U.S. 100 denied cer 2951, (1980). though to mean strue the instructions that 64 L.Ed.2d 830 S.Ct. shooting there cause for the was lawful dog, is not if the still available II. to the of defendant could not come aid assignments raises three (person). another This construction is not on concerning error his conviction Count of incorrect, only confusing also but it is Pointing Weapon at Another. In a I— proposition deprive

such manner to the of his brief, appellant alleg IV his of theory of instructions on his defense. improperly that the court es trial Even if assumed that there was no it were jury concerning requisite the intent re the attacking right repel dog more a to an than proof. and its Review of quired method repel attacking person, the instruc- an this Court dis the entire record before preju- tions on defense of another were appellant requested no closes evidence dicially it be im- erroneous because would instructions, objected to those uti possible for the determine whether by find that in lized the trial court. We “aggressor” the were to be determined as fundamentally were not errone structions Grizzle, Jr. Chronister or as between ous, error is assignment and this with Jr. dog the and Grizzle It is well between State, 433, 620 P.2d Maghe merit. v. out Law under Oklahoma that the established State, (Okl.Cr.1980); Kelsey v. 569 436 give duty a instruc- trial court is under (Okl.Cr.1977). 1028 P.2d theory defendant’s concerning tions error, assignment In in the his fifth there is evidence defense when it, prosecutor’s con appellant asserts that the support and that such instruc- record to during closing argument improp right. duct v. tion a fundamental Smith 773-74, (Okl.Cr.1971). This State, 771, reversal.1 Court er and warrants 485 P.2d grounds, ap- we reach proposition to Animals on other of error makes I, as it relates Count plicable II of this issue insofar counts I and his convic- to both at Another. we have reversed tion. Since 1214 objections any prior fights

notes that at no time were nation on the issues of prosecutor’s during pistol. prosecu made comments the .25 caliber Where closing arguments. the course of questions It is well tor’s remarks or on matters are by initially defense, settled that erroneous made by they remarks raised will they generally are if are grounds waived not not be for reversal. made, State, 568, (Okl. objected they to at the time are Wacoche v. 644 P.2d 573 Cr.1982). 1981, 2611(C). and do not constitute fundamental error. 12 See O.S. State, Tahdooahnippah may generally 610 P.2d Counsel See v. cross-examine a wit (Okl.Cr.1980). Appellant during 810 contends ness on all matters covered direct photographs appellant, further that of the dead examination. Where the as in case, prejudicial voluntarily admitted into evidence were be- takes witness they defense, prosecuting cause was no issue for which stand his own original attorney right relevant. Review has the to cross-examine him transcripts any record and the discloses that with the same latitude as other wit photographs supplied applies these have not been ness. This rule also when the sub appeal ject to this Court with the rest of the matter of cross-examination involves record. Counsel for the has a ap the commission of other crimes duty pellant. State, to ensure that sufficient record is Fite v.

supplied (Okl.Cr.1974). State, to the Court to determine the is- Maynard See (Okl.Cr.1981). sues raised. Failure to do so results in P.2d waiver of the error. Ferguson v. prosecution also made com (Okl.Cr.1982); 645 P.2d 1021 Martinez v. concerning ments cross-examination (Okl.Cr.1977). P.2d 497 Since younger previous Grizzle’s conviction for *5 photographs question in have not been public properly drunk. Defense counsel Court, supplied assignment to this of objected, objection and the sustained. was is error waived. judge The trial admonished the to dis further asserts that the regard question Though and answer. prosecutor’s questioning line of on cross- may proper, such comment not have been examination of both himself and his son apparent prejudice appel no is improper prejudicial. was On cross-ex Therefore, assignment lant. is without amination, prosecutor inquired into merit. carrying or not a whether error, assignment In his of seventh truck, loaded firearm in his and whether he court commit contends trial felony. knew that such action was a instruct, by failing ted reversible error objected defense counsel to the line I, as to Count on the lesser included of questioning, objection and the was sus fense of Reckless Conduct with a Pistol. inquired tained. The also into scrutiny Close of the trial record and tran appellant’s propensity “getting for into script did not reveal defense counsel fights.” objection An was made and over timely requested offer a instruction on judge. by ruled the trial issues, object these to the offer State’s subject prior fights of the and the ings. Any objections judge’s trial carrying pistol of the in the truck had been any requested instructions instructions brought up on direct examination prior should made to the trial court be appellant. Appellant’s son that he testified they jury. Wyatt the time are read to the first, Chronister in order settle an struck (Okl.Cr.1971) testified, did his old score. as (modified grounds). other In the instant son, they went to the lake to test fire case, however, the defense of counsel for pistol, appellant’s .25 caliber which he ac- requested following fered the instruction days quired previously. a few reading jury, of the instructions to prosecu closing arguments and the of the We therefore hold that Consequently, appellant’s request for opened the door to the State’s cross-exami- tion. timely, in was not the instruction assignment has

and therefore this of error

been waived.

Accordingly, the conviction for the of- to Animals is REVERSED

fense for a

and REMANDED new trial consistent opinion. The for the

with this hereby a

offense of

AFFIRMED. J.,

BRETT, concurs.

BUSSEY, J., concurs in in part, dissents

part. dis- concurring part,

BUSSEY, Judge, part.

senting judgment and agree that I

While Feloniously the offense

sentence for affirmed, I Firearm should be

Pointing a giv- instructions opinion that the

am of the Cruelty to concerning the offense

en and confus- not so erroneous

Animals convic- require reversal

ing as to crime.

tion of that Smith, Jr., Appellate

Thomas G. Asst. Defender, Norman, appellant. Public Turpén, Gen., Atty. Michael Thomas J. C. Gen., Atty. City, Spencer, Asst. Oklahoma appellee. *6 ROWLAND, Appellant, Wilson Cleatius OPINION BRETT, Judge: Oklahoma, Appellee. STATE Rowland, appellant, Cleatius Wilson No. F-82-749. Knowingly Felo- charged with was Cultivation, Permitting the Produc- niously Appeals of Criminal of Oklahoma. Court Growing Marijuana in viola- of Wild tion Oct. 1985. 2-509, Mayes tion of 63 Court, No. County District Case CRF-81- guilty a verdict of returned imprison- years’ pünishment set two $1,000 The trial court plus a fine. ment appel- fine suspended the because sentence indigency and set the From jury’s with the verdict. accordance sentence, judgment appeals. jury by submitted to the the case was

As court, not the trial must “You quotient at a verdict: to arrive