*1 the de- further reflects objected comment and for a mistrial which immediately moved The remark denied court. obviously improper prosecutor record of the defendant was
since before the
properly we are the reasons set out above
For this cause accordingly re- be and
should for a trial con- and remanded new
versed
sistent herewith. PETERS,
Windsom Winsom Appellant, Oklahoma, Appellee.
The STATE of
No. F-73-233.
Nov. Anderson,
Don Defender, Public Okla- County, homa appellant.
Larry Derryberry, Gen., Atty. Kenneth Delashaw, Jr., Gen., L. Atty. Asst. ap- pellee. *2 shop in the run- someone tire area served
OPINION the section and ning toward merchandise BUSSEY, Judge: he and Williams were so advised. Officer Peters, Win- Appellant, Windsom block, a large observed concrete He also som rock, through thrown door been the had hereinafter thereupon all entered and officers charged, to as was referred breakage. through the White also Officer Court, tried, in the District and convicted gun pulled that the observed had been rack CRF-72-2720, County, Case No. Oklahoma upon checking down and one of the aisles Burglary of Second for the offense store, in he on person lying observed a a Fel- of Degree, After Former Conviction Riggs He and arrested the floor. Officer at a term punishment fixed ony; was person identified the individual as years imprisonment, thirty-five (35) of being the defendant. Officer White timely a judgment and sentence from said proceeded pat down perfected appeal has been to this Court. weapons of large and found a amount pockets. change in his He found also trial, Bobby testified At the H. Simonds 1, key that Exhibit which a State’s Manager of the Assistant that he was taken from cash had been the OTASCO Broad- at 4th and located Store OTASCO register. change He further identified the way City, in on November Oklahoma bag being at the store as Exhibit 2. State’s store this date he locked the 1972. On approximately at evening Williams, hours during the Riggs and Officer Officer Shortly m. on p. before 6:00 a. 6:00 m. Depart- City both of the Oklahoma Police November he was summoned ment, substantially the facts related Company. Security the Alarm store Riggs fur- did White. Officer Officer upon ar- directly to the store and He went ther related that he advised store, he the front door riving at the found rights. of police broken glass had been in The defendant testified his own be- custody. with the defendant Si- inside 10, 1972, half that on he had November approximately further testified that monds on 6th been bar and Harrison Street a change had been removed $21.65 he the Fan Club. He stated that called register; guns on the cash friend at a. approximately left with a 5:00 pulled down in the store had been rack 11, 1972, hungry onm. November and was Exhibit a identified State’s onto shelf. Eddy’s Broadway to on so went Cafe large riding a mower. key a 1 as eating, After to 4th eat. walked key, along with added that the The witness police Broadway, at offi- which time two had been change, retrieved pulled up de- cers across the The street. an way that only that the fendant went around the corner and the gotten could have in the store individual police picked him and advised him through breakage front burglary. he had committed a Defendant door. ques- taken said that he was to the store em- Dave testified that he was policeman White tion and one him “half offered a De- ployed by City Police Oklahoma manager block to run.” store partment on November put jail. and the defendant came m., approximately 5:40 a. one-half block Defendant stated that at 4th located called to OTASCO Store shoot offer was to allow the officers to Broadway. He offi- and three other previous him. The admitted approximately felony cers arrived scene at estab- conviction which was further time and all observed copy Judgment the same lished a certified glass testimony door was broken. Officer White and Sentence Officer Riggs ob- Harvey. further testified one Officer assignments three of er- The trial
Defendant
court then asked
cites
the defendant if
ror,
we deem merito-
behave
only two of which
would
himself. The defendant’s
reply
enough
rious
to warrant discussion.
scream “Alah” and other
unintelligible yells.
sheriff
proposition asserts it
Defendant’s first
forcibly
thereafter
removed the defendant
try
him in
was error to
from the
proceeded
courtroom. The trial
*3
through the State’s evidence
defendant,
without the
The record reveals that
defendant.
defendant
trial,
beginning
dressed
brought
to the
back
courtroom
recess,
clothing. After the first
allowed
in street
to remain
the remainder of the
placed in the
the defendant was
“dressout
O.S.1971,
22
trial. Title
IS states:
in this
§
room.” While
clothing
piece
his
placed
tore
off and
one
person
“No
can be
in a crimi-
clothing in the
of the
urinal and the other
nal
against himself;
action to be witness
in the commode. He
dressed
person
nor can a
charged
public
with a
clothing
another set of street
which he at
subjected
offense be
before
conviction
Thereafter,
tempted to remove and tear.
any more restraint than
necessary
is
placed
jail
overalls. Under
his detention to answer
charge,
facts,
opinion
it is
these
our
that defendant
in no event shall he be tried before a
any right
object
waived
tried
j ury
while
chains or shackles.”
State, Okl.Cr.,
French v.
See
O.S.1971,
22
Title
583states:
§
1375 disrespectful disruptive and so Al Illinois v. See
trial cannot continue. Wayne PADGETT, Petitioner, 25 L.Ed.2d len, 90 S.Ct. U.S. re otherwise would To hold (1970). Raymond GRAHAM, Judge, District Tulsa accused, such in an sult County, Oklahoma, Respondent. and we case, being tried never No. P-73-427. passing the legislature do believe this end result. intended above statute Dec. hold, opinion, so and we It our judge is with dis a trial faced when contemptuous
ruptive, disrespectful, and case, as in the instant such for con cite the defendant
should first *4 later
tempt, disposed at a keeping the de him, thereby gag
bind and take present
fendant until out of the courtroom properly. promises conduct to himself must com we
In case the man Harris for Judge Carmon
mend difficult he handled most
ner in which de gave Harris
proceeding. Judge be every opportunity to and to be without every effort further made
handcuffs. rights dur safeguard all the defendant’s
to
ing the trial. the course of We entirely
hold Harris’ measures Judge
appropriate under the circumstances. sentence
Judgment and affirmed.
BLISS, J., concurs. P.
BRETT, Judge (specially concurring): decision,
I but I believe concur be
the defendant should removed from nearby
courtroom to another under herein, rather described circumstances binding gagging
than him. It is de- to con- be
fendant’s
fronted his accusers that person. the accused Conse- OF ORDER DENYING ISSUANCE appears quently, proper it be more PROHIBITION, MAN- WRIT OF place in nearby the accused room than to HABEAS COR- DAMUS AND/OR gag presence bind him the PUS however, state, feel I December, 1973, day this 11th nearby sufficiently room must be comes on styled and numbered case close for defense counsel to consult with hearing pursuant order entered De- him, appearing need arises. petitioner cember