*1 Eugene Ray LANCASTER, Appellant,
The STATE of Oklahoma, Appellee. F-75-264.
No. Appeals of Criminal
Court Oklahoma. 22, 1975.
Oct. Chickasha, Taylor,
B. аppellant. Jack Gen., Larry Derryberry, Atty. L. James Swartz, Gen., Lisle, Atty. Kenneth Asst. Legal Intern, appellee.
1344 Stump, Bus- The next called Mike State
OPINION by’s seven-year-old grandson. His testimo- BLISS, Judge: ny essentially grandfa- same as his the ther’s, and he identified the defendant as Lancaster, Ray Eugene appellаnt, The his gun the man held the on who had defendant, was referred to as hereinafter grandfather and hit the hired hand. two-stage a in a before charged, tried of the crime proceeding, and convicted Reed, Deputy The next called Carl State Dis- by а Felon in the Carrying a Firearm County, who testified Grady Sheriff County, No. Grady Case trict Court 24, 1974, Busby July he went to the that on a assessed at Punishment was CRF-74-79. property regarding of- some trouble. The custody and years in the term three (3) proceeded to the defendant’s res- fiсer then Department of Corrections control of the he advised defendant of his idence where judg- a From of Oklahoma. the'State rights. then he had The defendant stated with in conformance ent and sentence weapon and and went to his аutomobile a verdict, perfected has said the defendant Ruger pistol a and hand- brought back .22- timely appeal. his then ed it to Reed. The defendant Officer he had stated that the his and that car was at Briefly the evidence adduced stated Rеed returned to the no other firearms. Mickey Busby testified trial is as follows: day with following Lancaster residence the 1974, he, morning July that on the a and found a caliber search warrant .38 arrived grandson two hired hands his and pistol. The bullets found semi-automatic prоperty Chickasha Busby’s at lease near clip in found the were identical to the one field spotted two men they where by Busby. The then State rested. near where some marihuana oc- growing. that on numerous He' stated defendant, testifying in his be- own difficulty with exрerienced casions he had 24, 1974, half, and July that on he stated property. trespassers armed on cutting a field Moomey across Pete were drove let his hired hands and then out men to the defendant’s home when two got he the other end of the field. When shotguns. shooting at them with started carrying shotgun, a pickup out of his Moomey started to run The defendant and pistol. a defendant aim at him with took pulled up in front of them. pickup and a not until the two hired hands came It was shotgun, and Mickey Busby got out with up behind the that the defendant defendant BB an grabbed defendant air-operated said, “I and would pistol lowered it Moomey held pistol belonged that and boy hadn’t of seen the little shot if I After things quieted down. on until pickup you.” being in After ad- with posted, the property being told they trespassing, vised the defendant were Shortly Moomey and left. defendant companion and his left. his thereafter, discovered looking back missing and went wallet was Busby’s next encounter with the defend- ap- Busby. As the defendant property later in thе ant was on the same Busby’s hired Busby, proaching one of companion his day when the defendant and shotgun for a hands made a move approached guns The defend- drawn. then fight. was a The defendant there hired hands and ant fired at one of the Shortly Dеputy thereafter went home. then struck him several times about patrolman out to highway came Reed and a his com- head. After defendant and if he had and asked left, the defendant’s home panion Busby found a bullet on did, stated that weapon. The defendant ground near defendant had been where the car, brought back went to wife’s standing. Busby then identified State’s then The defendant was advised pistol. weapon defendant .22 Exhibit 1 as No. The defendant rights and arrested. the second incident. gun stated his wife had at his obtained the corner boys of it and the home and he had mother’s never been was riding they with us said seen of it. Defendant further ad- boys two out there. I looked previous felony mitted he had a around boys up saw two degree forgery for a second victiоn edge of the timber there on the On 1973. cross-examination the defendant my corner of lease. *3 Moomey stated that with him Q. (Mr. Kramer) Why were con- Moomey second altercation and that cerned about that ? pistol had the BB and a .38 automatiс. marijuana A. There was that had been Mrs. Moomey Pete then testified that growing up there. she rode with her husband and the defend- Honor, Your ob- TAYLOR: we they ant when Busby’s proper- returned to ject. ty to look As wallet. the defend- ant and her up husband Busby, walked Approach THE COURT: the bench. one of the hired hands amade move to- hearing (Out jury) of of Busby’s
wards pickup, and the defendant ask for MR. TAYLOR: would We struck him with his fist. and the being of an- mistrial as this evidence other hand started to move towards de- perpetrated by this man other сrime fendant, and Moomey fired a shot in the marijuana grow on permitting air. At no time did she see the defendant a crime property. He committed with weapon. by grow. allowing it to The defendant’s mother then testified that her gun son’s excep- collection had been Overruled THE COURT: moved to her house felony after the tions allowed. viction and that given she had pis- the .22 jury) (In tol to the defendant’s wife. The defense all, extent, if at have Q. To what then rested. on trespassers difficulty with After testimony of several rebuttal property?”
witnesses, the stage first of the proceeding down fence Well, they my torn A. ended and returned a verdict of my gates leave they would guilty. During the stage second of the it. up around put signs open. I had proceeding, the State introduced a certified copy of judgment say signs arising your Q. sentence doWhat out of the defendant’s degree second for- trespassing. No A. gery. conviction in County. Oklahoma Aft- diffi- encountered you ever Q. Have er deliberating, punish- assessed prop- upon that subjects culty with ment as set out above. erty? The defendant’s assignment first Yes, sir. A. error asserts that the voluntary statements of difficulties? Q. kind What made Busby concerning parties other they was different times There was A. harvesting marihuana in his field were field. in that marijuana prеjudicial to the rights of the defendant were ever asking if there No, I am Q. and that the trial court erred in not order out anything or any firearms ing a mistrial. The record reflects that there Busby made statements in answer to the
questions of the prosecuting attornеy as A. follows, to-wit: Honor, I ob- MR. TAYLOR: Your ject.
“A. (Mickey Busby) Well, we were just almost up there. come Approach on the bench. felony. It neces- of a is not er conviction jury) hearing of
(Out
prove that
defend-
the State
sary that
is evidence
This
spe-
gun
ant had
mis-
for a
and I move
crime
another
The State
intent to do a harmful act.
cific
time, your Honor.
this
trial at
only prove
must
only trying
are
KRAMER: We
previous felony
conviction and
for the actions
the reason
show
pistol
person.
carried a
on his
Sessions
being
concerned about
man
this
Okl.Cr.,
State,
defend-
talk to Mr. you Ask what? No, sir, MR. McCARTHY: I don’t even going I wаs How know him.
MR. SPLAWN: he was just deputy asked the if vote. I you go Did the Dis- asked Mr. Kra- supposed do He that. Attorney’s trict office since this trial had no said he mer Mr. Kramer started comment about it. McCARTHY: I went there and anyone THE Does else COURT: telephone used the to call is home. That any questions? only time I was in there. sir, I think MR. KRAMER: you MR. TAYLOR: Did talk to Mr. party juror record reflect should while were in there? is a designated relation to No, MR. McCARTHY: party and not a of the State’s case. Splawn, TAYLOR: Mr. did right. THE All will ask COURT: talk to Mr. up
man
the headband on to stand
*5
MR. SPLAWN: No.
name,
give
please.
and
us
you
MR. TAYLOR: Have
not
to
talked
Stephen Eugene Lee.
GENTLEMAN:
at
began
him all since the
trial
to
you
THE
Are
related
COURT:
No,
MR.
spoke
sir. He
McCARTHY:
defendant in this case ?
spoke
to me and I
I
back.
said: ‘How
you?’
only
are
That
thing
was the
Yes,
GENTLEMAN:
sir.
was said.”
Anything
further ?
above,
aрparent
From the
it is
MR. TAYLOR:
we ask some
Could
nothing
any way
occurred which would in
questions ?
prejudice
right
a fundamental
de
fendant,
and
trial
THE
court did not
COURT:
abuse
its discretion in determining no
error
Burk,
say-
you
MR.
are
TAYLOR: Mr.
It
pointed
committed.
should also be
ing you
go
not
did
District Attor-
оut that the defendant
no
authority
cites
ney’s
yes-
office and talk to Mr.
support
argument.
of his
This Court has
terday ?
held on numerous occasions that it is nec
No, sir, I
MR.
just
BURK:
didn’t.
I
essary for
only
defense counsel not
to as
greeted
met him out in
and
the hall
him.
error,
suppоrt
sert
to
but
his contentions
argument
both
and the citation of au
any
MR. TAYLOR: Have
con-
done,
thorities.
this is
is
Where
not
and it
versations ?
apparent that the
has
defendant
been de
No, sir,
just
BURK:
said ‘hello’ prived of no
rights,
fundamental
this Court
and I
shook
hand.
not
will
search
books for authorities
support the mere assertion of error. San
any
Did
State, Okl.Cr.,
v.
out on the street. error that the court trial commit- contends
1348 allowing Mike error
ted reversible minor, seven-year-old testify. Stump, MANGUM, Appellant, Coyt Louis court the trial reflects record v. hearing evidentiary to determine an held Oklahoma, Appellee. The STATE of seven-year-old minor whether No. F-75-153. testify witness. After as a competent to Appeals Criminal of Oklahoma. Court of found that the hearing trial court 22, 1975. Oct. impres- accurately to relate boy was able 18, Rehearing 1975. Dec. Denied just im- capable receiving sions truly. relating them pressions of fact and testify is within
Permitting a child dis- and unless such court’s discretion
trial abused, ruling trial court’s is
cretion State, v. not be set aside. will Woodruff After an ex- 16, P.2d 215. 194 Okl.Cr. testimony, both the child’s
amination trial, it evidentiary during the did not opinion trial that the court
is our the com- permitting its discretion
abuse testimony.
plained-of also Barker See The de-
State,
fendant’s last
out merit. above, it is reasons set out all the
For defend- opinion of this Court that'the trial, impartial a fair and
ant received prejudiced right substantial
no appealed and sentence judgment
that the *6 hereby be and the same is af-
from should
firmed.
BRETT, J., dissents (attached). P.
BUSSEY, J., concurs.
BRETT, Presiding Judge : (dissents) compelled
I am to dissent to this decision
because I believe this defendant did not re- contemplated by
ceive a fair trial as
law. From the moment the prosecuting was allowed assert
witness that defend- field,
ant marihuana in his must have commenced to disbe- might anything defendant
lieve Likewise, became believe
offer. motion that defendant’s
so contaminated allowed. should have been a new trial