*1 necessarily suggestive procedures, instead permits
of a rule which admission of such if, totality under the cir-
evidence
cumstances, reliable. identification is minimum,
At the this Court should
remand this matter the trial court for it findings concerning
to make of fact
suggestiveness, any, hyp- if the recorded procedure findings
nosis and transmit such to this fact Court. Timothy
Jeffrey
LANDRIGAN, Appellant,
STATE Tulsa, Hignight, E. Ronald for Court of Criminal Gen., Atty. Turpén, Michael C. Tomilou 13, 1985. Gentry Liddell, Gen., Atty. Asst. Oklahoma City, appellee.
OPINION PARKS, Presiding Judge: appellant, Jeffrey Timothy Landri- with, for, gan, charged tried and con- Degree of Murder in the First victed Washington County, District Court of Case No. CRF-82-228. He was sentenced to life imprisonment. reverse. Appellant’s conviction stemmed from the friend, stabbing Greg fatal of his best after and some had friends marijuana smoked and drank at a Oklahoma, park Dewey, trailer on Au- gust
According
testimony presented
tri-
al, appellant, accompanied by his wife and
son, arrived at the trailer
home Gordon
evening.
p.m.
Aiken
about 8
that
Soon
they arrived, appellant,
family
after
purchase
whiskey.
Aiken went to
a fifth of
way
park,
On their
back
*2
219
brother-in-law,
group picked up appellant’s
However,
when he hit the victim.
Brown
they
Robert Martinez. When
returned to
did have a knife as
approached
he
appel-
trailer, appellant,
victim,
lant,
the
the
according
David
to
testimony.
Detjan
began
and Donna
drinking
Favier
The trial court
issued instructions on
smoking marijuana cigarettes.
and
both murder in
degree
and the
Appellant and the
lesser
began calling
victim
included offense of manslaughter in
the
“punk,”
began
one another a
first
arguing
and
appellant
whether
could beat the
in
victim
Appellant raises three assignments of er-
leave,
fight.
appellant
a
As
started to
the
ror in his brief-in-chief.
agree
with
pushed
wall,
him against
victim
appellant
assignments
that two of these
appellant,
you
and told
“if
want to settle
merit,
error have
and
accordingly
we
re-
argument,
the
we can take it outside.”
verse and remand this conviction for a new
outside,
The victim went
by
followed
the
trial.
appellant. According
testimony,
to Aiken’s
In one assignment
error,
appellant
the
appellant
holding
was
a knife behind his
asserts the trial court committed
by
error
back. Aiken testified he rushed to a bed-
commenting on the credibility of
key
three
meantime,
room to find
In
his rifle.
the
state witnesses. Each of the three wit-
however, appellant lunged at Brown and
Aiken, Detjan, and Favier—had
nesses—
previously
him in the
stabbed
chest. Aiken returned
gun Detjan
testified the
pointed
living
Detjan
the
room with the rifle.
appellant
was unloaded. Later in the
rifle, pointed
took the
it at
and
trial, they recanted
and ad-
told him
up
going
to “back
or I’m
to blow
gun
mitted the
was loaded.
your
Appellant escaped
head off.”
be-
long
It has
been the rule of this
tween two cars as
collapsed
his victim
on
jurisdiction that a trial court cannot indi
ground.
opinion,
cate its
expressly
impli
either
or
Appellant ran to the
shop
machine
edly,
otherwise,
intentionally, or
as to the
Alvin Burns and told Burns that he had
credibility of a witness. See Winters v.
guy.”
Washington
“wasted a
He later told
State,
(Okl.Cr.1976), citing
that what
as
was
credibility.
opinion
The essence of this
was
making
angry. Appellant
now
the victim
in
embodied
his final remarks when he
that,
leaving,
testified
as he was
the victim said,
hearing you
“... After
young
three
grabbed
by
him the throat and threatened
people testify, I
why you
believe I can see
“whip my
Appellant
ass.”
said the men
truth,
misstated
but the law is to be
went outside. He also testified that he
respected,
your
not feared. The law is on
trailer,
attempted
go
back into the
but
I
you
side.
think
have learned that here
pointed
shotgun
comment,
someone inside
today.”
That
as well as other
remarks,1
Appellant jumped
direction.
just
but
similar
did more than
bolster
not
testimony;
alligned
did
know he had a knife
his hand
their
it
the court on the
B)
granted
immunity
1. The trial court also stated:
... I
him State
[a
witness]
A)
in order to seek out the
prevail
brought
truth in this matter.
In
...
the truth must
and be
so,
granted immunity
doing
just only
myself
prosecution
out.
I
I
from
dedicate
to the fact
course,
perjury.
realizing,
She
prevail
the error of
that I want the truth to
and that these
way.
addressing myself
her
And
to her and the
young people
have learned a
valuable les-
jury,
pray
members of the
I
this will never
son.
I felt that
have.
again
happen
having
this faith in these
young people, I don't believe it will.
side
prosecutor
of the
and these three
not be reversed and remanded because of
State’s witnesses. Brannin v.
375 the unfortunate remarks of the judge and
(Okl.Cr.1962).
P.2d 276
Caffey
unobjected
See also
to comments
prose-
on a collateral the balance of their
testimony proof was the State’s of “exter
nal circumstances” needed to establish the
pivotal aforethought element of malice
murder held have credibility
that the jury witnesses is a determination as fundamental and sacred Rodney Eugene LARSON, Appellant, question guilt as the or innocence. Hol State, supra. comb The whole manner v. perjured which the was han STATE of prejudicial dled rights to the of this Court Criminal equal
Of concern to this Court is the prosecutor’s summation, comments on which we believe also contributed to a deni right to a fair trial. The
prosecutor argued that needs to be “[i]t Landrigan
shown to Mr. people that the county homicide, will not condone even drug
if it’s convicted criminal users.” We language
will not condone plays which
societal alarm. Jones v. 554 P.2d (Okl.Cr.1976). Furthermore, prose appealed jury
cutor to the to remember
appellant’s criminal in considering record
the verdict. These comments also were
improper. See O’Brien v.
Accordingly, based on the above-noted
errors, we REVERSE and REMAND this
case for a new trial.
BRETT, J., concurs.
BUSSEY, J., dissents.
BUSSEY, Judge, dissenting: evidence discloses that the
struck and killed the victim with a knife back,
which he had concealed behind his scene,
fled the admitted to Alvin Burns guy,”
that he had “wasted a and told the
Washington County Undersheriff that he judgment
tried to kill the victim. The
sentence, which is the minimum sentence offense,
authorized law for this should