Hartness v. State
760 P.2d 193
Okla. Crim. App.
1988
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*1 judgment inappro- of summary award priate. GRANTED;

CERTIORARI

OF THE COURT OF APPEALS VACAT-

ED; REVERSED; TRIAL COURT CAUSE

REMANDED.

DOOLIN, C.J., HODGES,

OPALA, ALMA WILSON and JJ.,

KAUGER,

SIMMS, concurs result.

HARGRAVE, V.C.J., and

LAVENDER, J., dissent. HARTNESS, Lee Oklahoma, Appellee.

STATE of

No. F-85-543.

Court of Appeals Criminal of Oklahoma.

Aug. 4, 1988.

Rehearing Sept. Denied Purcell, Appellate

Thomas Public Defender, Norman, appellant. *2 (Okl.Cr. Gen., 709 P.2d 202 Spuehler H. Henry, Atty. William H. Robert 1985). ap Gen., strongest testimony against Luker, City, Atty. Oklahoma accomplices, and was pellant came from his appellee. for if it was sufficient for conviction more than corroborated. BUSSEY, Judge: accomplice’stestimony An Gary Lee was con by either direct or circumstan corroborated Muskogee in the District Court victed evidence, 651 P.2d 707 Pierce v. tial CRF-83-29, for Bur County, in Case No. (Okl.Cr.1982), that can be suf and evidence Degree, and Case No. glary in the Second the defendant ficient if it tends to connect CRF-83-30, Larceny of a Motor Ve- for simply perpe with its to the crime and (2) years set at two hide. Punishment was State, 651 P.2d 1339 Keller v. trators. (6) respective years imprisonment, and six evidence Circumstantial concurrently. served ly, the terms to be in connecting burglary the appellant with sentence, ap he judgment From the and parents’ found at his motorcycle cludes the peals. home, him in Porum with the places which by record reveal The facts the disclosed accomplice’s statement to accomplices; the motorcycle January was that on arresting that men had the officer two in parking lot of a bar from the stolen truck, places him in the which been with night, Muskogee, Later that Oklahoma. prop the stolen appellant in the truck with Porum, was bro- another bar in Oklahoma burglary; and erty immediately after the ap- burglarized. police ken into and walking sighting appellant down the the in driving out of Porum a prehended a man coat, highway muddy jeans in and no which the officer came pickup truck. When accomplice’s the state is consistent with window, passenger the door the driver’s gone down the ment that told him that “the open was driver .the away police. get tracks to from the railroad got the gentlemen had out of other two only connects This evidence not the railroad tracks.” truck and went down crime, the testi the but corroborates motorcycle plate The license to the stolen accomplices. If an accom mony of the truck, in and the stolen was the bed of the as to one plice’s testimony is corroborated in the cab. property burglary from the fact, jury may infer that material then the later motorcycle itself was recovered testimony is true. Pierce v. his entire appellant’s parents’ backyard the from State, supra. accomplices’ testi Since morning, appellant home in Porum. sufficiently in corrobo mony this case was high- by police walking along seen rated, challenge against his con appellant’s wearing muddy from the way no coat and fail. burglary for must viction as the third knees down. He was identified person pickup by in the truck both assignment of Appellant’s second convicted for these other two who were prosecutorial misconduct de error is that proceedings. separate crimes in his sole prived him of a fair trial. As misconduct, points he out that allegation of for Appellant asserts that conviction that prosecutor stated on one occassion burglary reversed should be appellant’s at motorcycle was found corrob grounds there insufficient that parents’ If, rather than at verdict. home orating evidence objected, home. When defense counsel light in the most viewing the evidence after what the knew court said that any rational prosecution, to the favorable Thereafter, prose testimony had been. the essential have found trier of fact could admitting acknowledged the error beyond a cutor charged of the crime elements in motorcycle had fact doubt, this Court will reasonable then home. It is parents’ found at insufficiency of the disturb the verdict to mislead prosecutor for a Virginia, 443 U.S. evidence. Jackson (1979); will not reverse jury, but we 61 L.Ed.2d S.Ct. prosecutor's where the inadvertent state- timely failure to raise a objection to the ment verdict, could have influenced the verdict form of the we find surrounding of the evidence and court did not abuse discretion re- Aldridge circumstances. See 674 fusing the sentence. (Okl.Cr.1984); Cooper Finding no basis for reversal or modifica- 671 P.2d 1168 tion judgment AF- *3 Finally, appellant asserts that it was FIRMED. error for the trial court to him sentence to years imprisonment six suspending without BRETT, P.J., concurs. assign sentence.1 In of this

ment, State, upon relies Coe v. 86 PARKS, specially concurs. 297, (1948), Okl.Cr. 192 291 P.2d fur ther that the asserts verdict was informal PARKS, Judge, specially concurring: O.S.1981, under 22 919. is There no § I separately only write to comment on doubt that the was informal. verdict the issue of the form the of verdict. Title question is what its effect is in this case. O.S.1981, 22 requires 919 that a “verdict § We reiterate that where a of guilty verdict not in jury form” be sent to back so improperly suspended recommends a sen may that the put verdict be in a form which tence, practice the better is to inform the may clearly present be understood. jury sentence and have case, jury a returned verdict of “six them jury return to the room for further years suspended.” proper It inwas form. State, deliberation. v. 646 P.2d Wofford court, The trial through the of exercise 1300 This case not fall does powers, discretionary suspend refused to rule, however, within the above since the This repeatedly sentence. Court has question verdict returned held jury’s that a of recommendation sentencing stage guilt of trial after suspended as sur- treated already Appellant been determined. did plusage. King 556 P.2d object to the form the at the verdict 1308 (Okla.Crim.App.1976); Prevatte v. returned, time it was did and the court Tulsa, (Okla. City 542 P.2d at a opportunity later time have an for Crim.App.1975); Bowers 542 P.2d Fothergill correction. See (Okla.Crim.App.1975). While it jury’s recom jury would have best send back binding of leniency mendation is not on the deliberations, judge for further the trial Wofford, supra. court. proce not required to follow such a helpful Coe is not dure. 646 P.2d See Wofford case, case. In jury imposed a fine (Okla.Crim.App.1982). judge imprisonment awith recommendation discretionary power within to refuse to suspended. that the time be it Since was suspend sentence. possible suspend part one of the I Accordingly, other, sentence and not the held that we ambiguous verdict was and should not case, have been used. In this

imposed only imprisonment, deter- and the

mination on whether the sen-

tence was for the trial court’s discretion. O.S.1981,

See 22 991a. § non-binding

In character of jury’s recommendation and Vehicle, Larceny previous but no The verdict returned in the second of Motor read, stage larceny years punishment "CRF-83-30. fix his at six convictions and We, oaths, jury, duly empaneled upon our suspended." defendant, guilty find the