Stеven Allen MILES, Appellant, v. The STATE of Oklahoma, Appellee.
No. F-74-214.
Court of Criminal Appeals of Oklahoma.
Aug. 2, 1974.
525 P.2d 1249
The defendant‘s sole proposition of error asserts that thе trial court erred in admitting testimony, over defendant‘s objections, elicited from the younger daughter to the effect that she аlso had been raped in a similar fashion by the defendant over the same period of time.
The general rule is that when a dеfendant is put on trial for one offense he should be convicted, if at all, by evidence which shows that he is guilty of that offense alone and evidence which in any manner shows or tends to show that he committed another crime wholly independent, even though it be a crime of the same sort, is irrelevant and inadmissible. See Hall v. State, 67 Okl.Cr. 330, 93 P.2d 1107 (1939). However, we believe the testimony in the instant case was аdmissible under the exception to the general rule as set out in Rhine v. State, Okl.Cr., 336 P.2d 913 (1959):
“1. As a general rule, in the prosecution of one acсused of a particular offense, evidence showing or tending to show the commission by accused of another crime оr crimes entirely distinct and independent of that for which he is on trial, even though it be a crime of the same class, is neither relеvant nor admissible.
“2. An exception to the general rule exists when the evidence of similar offenses tends to show a system, plan, or scheme embracing the commission of two or more crimes so related to each other that the proof of one tends to establish the other.
“3. In a prosecution for rape, evidence of similar offenses which shows that in the commission of the offense the accused used a system or plan characterized by a peculiar method of opеration tends to establish the offense charged and is admissible on that basis.”
See also Turnbow v. State, Okl.Cr., 451 P.2d 387 (1969).
In the instant case both of the defendant‘s daughters testified to the following method employed by the defendant:
- Both were violated in the car on dirt roads and behind the defendant‘s housе.
- Both were threatened with the same language if they told.
- Both were defendant‘s daughters, ages 16 and 17.
- The acts had been occurring over a period of years and began at approximately the same time in each girl‘s life.
- The defendant used force and fear on both girls to accomplish the acts of intercourse.
Finding no error sufficiеnt to warrant modification or reversal, it is our opinion that the judgment and sentence should be, and the same is hereby, affirmed.
BLISS, P. J., and BRETT, J., concur.
Lаrry Derryberry, Atty. Gen., Michael Jackson, Asst. Atty. Gen., for appellee.
OPINION
BLISS, Presiding Judge:
Appellant, Steven Allen Miles, hereinafter referred to as defendant, was charged, tried and convicted in the District Court of Tulsa County, Case No. CRF-73-1091, of the offense of Shooting With Intent to Kill, After Fоrmer Conviction of a Felony. He was found guilty by a jury and was sentenced to a term of ten (10) years imprisonment. From such judgment and sentence a timely appeal has been perfected to this Court.
On appeal defendant raised four propositions of error. However, for the reasons set forth below, we dispense with discussion of all but the first proposition, and also disрense with detailed discussion of the facts.
Briefly stated, the facts were as follows: Defendant was involved in a tavern shooting at the Hob Nob Lounge in Tulsa, Oklahoma, on the night of May 5, 1973. According to the State‘s witnesses, defendant was the aggressor in an altercation which resulted in defendant shooting Gary Keen in the side with a .38 caliber revolver. However, according to the version оf the incident presented by defendant and his witnesses, Keen and several others were the aggressors, and defendant had not shоt Keen as alleged. Instead, either Keen or one of his friends had shot defendant in the ankle as defendant was attempting to flee.
In his first proposition of error, defendant argues that his right to remain silent was violated when he was cross-examined by the distriсt attorney in the following manner:
“Q. (BY DISTRICT ATTORNEY): Okay. Now, you say—tell the jury that you were really mistreated out there on May the 5th, shot at, took a chance of you and your wife losing your life?
“A. (BY DEFENDANT): Yes, sir.
“Q. Did you ever report the incident to the police?
“A. No, sir.
“Q. Why?
“A. If somebody‘s crazy enough to shoot you, I don‘t know why they wouldn‘t be reprisals on your life if—I couldn‘t get them all down there at that bar and they was more than one or two guns there.
“* * *
“Q. And you didn‘t have a gun?
“A. I sure didn‘t.
“Q. So that‘s your reasons for not telling the police?
“A. I knew I shouldn‘t have been down at a place like that anyway in the first place.
“Q. When were you arrested on the charge?
“A. A month and a half later.
“Q. Did you tell the police then?
“A. Did I tell them—no, I didn‘t say nothing.
“Q. When you were arrested for a crime you didn‘t commit you didn‘t say nothing.
“A. I sure didn‘t.”
“DEFENSE COUNSEL: I‘m going to object аgain and I‘m going to move for a mistrial . . . . So move, and move that the jury be admonished, although I don‘t think it will do any good.
“THE COURT: Request for admonitiоn denied. Motion for mistrial overruled.
“Q. When you were arrested for a crime you say you didn‘t commit, Steve, did you tell them they had the wrong man?
“DEFENSE COUNSEL: You Honor, he didn‘t have to tell them anything. He didn‘t—tell them anything and I object to the form of that question and also all the inferenсes therefrom.
“THE COURT: Objection overruled.
“Q. Did you ever tell any law enforcement officer that they had you for something that you didn‘t commit?
“* * *
“Q. Did you tell them who shot you?
“A. No.
“Q. This is the first time you told аnybody who shot you?” (Tr. 377)
We find that this type of inquiry constituted fundamental error for the same reasons set forth in Buchanan v. State, 523 P.2d 1134 (Okl.Cr.App.1974), wherein we were faced with the same question. There we stated:
“It is the opinion of this Court that the crossexamination of the witness concerning her failure and the failure of her parents to come forward and make a statement prior to trial and the closing argument stressing same constitute fundamental error on behalf of prosecuting attorney. The defendant had a clear constitutional right to remain silent from the moment she became a suspect. The prosecuting attorney‘s comment upon the defendant‘s fаilure to make a statement or to raise her defense of an alibi prior to trial constitutes a clear, fundamental, and reversible error on the State‘s part. See United States v. Arnold, 425 F.2d 204 (10th Circuit, 1970); United States v. Nolan, 416 F.2d 588 (10th Circuit, 1969); and Deats v. Rodriguez, 477 F.2d 1023 (10th Circuit, 1973).”
We thus reverse and remand for a new trial.
In doing so we recognize however, the question here presented has nеver been passed on squarely by the Supreme Court of the United States and for that reason we urge the Attorney General tо consider filing an appeal in the Supreme Court of the United States.
BRETT, J., concurs.
BUSSEY, J., dissents.
BUSSEY, Judge (dissenting):
I must respectfully dissent to the decision in the instant casе for the reasons set forth in my dissent in Buchanan v. State, cited above by the majority. As stated in my dissent therein, I would encourage the Attorney General оf the State of Oklahoma to appeal to the United States Supreme Court for a clear and definitive ruling on the issue here presented.