*1 disposition of speed up order appeal, the pending cases many disposed properly be should by the opinion, memorandum as authorized 47, supra.
Legislature, 20 O.S. § carefully examined record
We have are of the counsel and briefs findings of is free Judge, are
fundamental error. appealed and sentence judgment hereby be, same is
from should and the
Affirmed. BRETT, JJ., concur.
BUSSEY Plaintiff-in-Error, RAMOS, Town
David Oklahoma, Defend
The STATE ant-in-Error.
No. A-14545. Appeals Oklahoma. Criminal
Court of
Oct. 1968.
BUSSEY, Judge. Ramos, hereinafter refer-
David Town defendant, charged, as was tried and red to Okla- convicted in District Court of County Rape crime in the homa for the judgment and First and from the Degree punishment at im- fixing his Penitentiary prisonment for in the State years, he appeals. term 99of stated, prose- Briefly evidence of the evening Decem- cutrix was on of 8:30 ber hours defendant, m., p. Mexican and 9:00 male, apart- of her knocked door posing investigator as an advised ment and armed investigating he an her that robbery apart- her and desired examine apartment ment. The door to latched, enough that she open but could placed his hands defendant who gained pocket gun his if he had a as apartment held to the where he admission captive twenty-six approximately her for prior gag- her leaving hours hound criminally ged assaulting after her. She during testified that several times period raped by time she was the de- fendant. arresting
The admitted defendant officer that he had sexual relations with her, but asserted was with her consent. investigating The who her officer took incident, day statement the next after this testified on cross-examination that prosecutrix told several although him attempts her, had made been ravish only accomplished defendant one successful act of sexual evidence intercourse. No offered on the defendant but behalf of the direction cross-examination substantially defense counsel raised the issue of consent.
The assignment defendant’s first prose of error is “the demeanor City, Valdhe F. for Oklahoma cuting attorney substantially prejudi plaintiff in error. materially cial to the defendant’s cause and Blankenship, Gen., G. Atty. T. Charles L. affected his right defense to a fair Owens, Gen., Atty. regard trial.” In this Asst. defendant defend ant cites prosecuting several in the error. insances Finding assignment of error he con- closing argument which attorney’s merit, defend we will consider not allow without case and did damaged his tends “the brief, assignment of error that ant’s second impartial trial. a fair and in its admission evi trial erred into following cites certain evidence of dence demonstrative page 579: casemade objected state and de fered an you, if saw say this I’ll “And referred to fense counsel.” *3 you could and mad was rabid animal that a towel which was Exhibit No. which was would, you, you it, wouldn’t you kill and clean himself defendant had used it, you?” get wouldn’t rid of would prosecu- having sexually assaulted the after Okl.Cr. v. gag In Williams her. trix and then towel used the follow- prosecutor made P.2d In his brief the defendant states: closing jury in his ing statements to “The defendant states the introduc- argument: impassioned tion of this so any the record the jurors “Defendant was under that under cir- minds of the hu- type known to character have vilest the defendant could not cumstances brain, warped a manity.” psychological “a a fair trial. The received has] [He “should be degenerate holding mind.” prosecutor effect of a a semen- [He] person towel, kill rattle- just waving eyes killed as a would a crusted it before the recoiling jury backdropped by a snake.” while diminuative, a inarticulate Mexican ac- State, supra, In Williams raping virginal previously girl cused of said: Day apartment on Christmas her own allowing at- very liberal in “Courts are by any is insurmountable means of de- torneys present their views in their unfairness, preju- It fense. is calculated ” * * * only arguments jury and it is dicial, repugnant. they go purposely outside when argument, We observe that in his closing exciting the purpose record for the casemade, appearing page 543 of the passion prejudice jury of the so as say: counsel for defense had this to in a biased manner cause them to act “Apparently Exhibit, as to set aside you the courts interfere so here will stated the As hereinabove an opportunity the verdict. have not had see. very prosecutor little, language by the anything, you used There is if can forceful, might that it was but we cannot see. You be able to see a little appears bit more than I can. There wholly unsupported by the record. be kind sup- of stains on three dif- completely fact we think the record some spots right ferent here. There are two ports the references made to the accused. right They correspond here. don’t agree guilt completely shown. We His this one. prosecutor that adult who with the an by the de-
would commit the acts done Apparently you can right. see that all ‘low-down, is, shows that he de- fendant you I don’t know whether can not. filthy.’ richly generate, and He deserves try up I lift it will a little higher where punishment which he received.” you can see it. It’s here front Right in side. here it is. the record are of the clearly guilt defines the Then, testimony this defendant by made and that none of the statements here towel, cleaned himself with prosecutor closing argument as in his Now, it was this towel. let’s look rather set out in defendant’s brief denied closely, let’s see if any type we can see right fair and trial. ato of stain whatsoever that would The Bailiff back to the court room came traces of were that there
[way] indicate question. replied that the had it. there on blood kept The in the room until can none, maybe see I can defendant, counsel for Valdhe I looking at it. I can than better At this time the Court in- arrived. ” * * * at all. find stains can't the Bailiff back to the go structed only towel thusly appears that jurors room have one of by counsel was done 581-582). waving question before (CM write the down prosecutor; by agreement defense for the This was of both done however, since are of we (CM 582). counsel consent, interposed one defense many ‘How The asked was: show competent for the State to it years will defendant have to serve prosecu- gag used to that the towel was parole eligible before he will be aon bound tied and having been trix after ninety-nine years.’ sentence of *4 which, be- if a circumstance reply Court’s was: would be inconsistent by jury, lieved the ‘That written instructions which More- consent. claim of with defendant’s have, you all now the law in and prose- have over, gagging the binding and of the permitted the information which I am to the closely offense related to cutrix was so you.’ Aubrey, give signed by It was Bob gestae. the res charged part a as to be (CM Judge. 583). sen that the It next contended is casemade, page On 583 of the the Bailiff as to shock imposed excessive tence was so question advised the court what the re We have of the court. the conscience get before the Court instructed to peatedly held that: question writing. the in At this time the statutory power granted to “The there a big the discussion between a modify Appeals to of Criminal Court attempting Court and in counsel to de- crime of one convicted sentence termine how Bailiff ques- the knew the exercised appealed will be not has who it tion before written down sent conscientiously court can unless the to Court. the that and circumstances all facts the The record is silent and the state has ab- as to indicate excessive is so solutely finding no method of out how partiality or acted from jury the that the question bailiff found out what the Okl.Cr.App., Kelly v. prejudice.” was. page placed On Mr. Cooper in P.2d 187. 415 the a record verdict had that been 376 State, Okl.Cr.App., Cody reached and the See also affected the punishmént. P.2d 625. court the trial that lastly contended is There nothing is says in the record that de- refusing counsel erred in to allow the jury, bailiff talked with the the but testify in jurors to the fense summons a jury, the member indication is that or Trial a New his Motion for a jury merely of the told the bailiff that been there had whether or not relative to but decision had been reached communication any unauthorized question needed to be answered. believe that bailiff.
them and the O.S.1961, 857, says: propo- sufficiently § answered State has it stated: brief wherein is sition in its hearing charge, jury ‘After may court, may re- either decide in or jury retired to deliberate “After minutes, they tire for deliberation. do not twenty If fifteen for some agree retiring, without one or more sent rang and Court the buzzer keep officers must be sworn them jury wanted. up what the Bailiff to see job when as set in above private and conveni- out statutes together in by they any person is have he informed permit and not to place, ent them, reached a verdict. with communicate speak or themselves, it be unless do nor so page of the casemade On court, them to ask or order attorneys each to file instructed ver- upon a they agreed have (cid:127)whether stating him a memorandum brief dict, them into return and to method that law would determine or when agreed, have so they when if in attempting would be used ad- (Emphasis the court.’ ordered came about unauthorized communication ded) between the the bailiff. very this court section familiar This 12, 1967, proceeding On another June be em- procedure it sets out since law, points came to discuss about delibera- ployed after retires for proceeding the Court said: portion 22 O.S. The italicized tion. ‘ * * * is the Court’s persons 1961, 857, person or allows § imagination than something more mere they charge them to ask supposition something might upon a verdict. The agreed have happened necessary have before this be- refer conversation does done, Mr. jurors] be can [recall Bailiff, reiter- but to tween every otherwise lawsuit tried said record was when the ate what go through would have this same page made, might refer back to we process.’ Cooper said Mr. the casemade where *5 the had been and verdict reached that a fundamental to this Court that the is punishment. the question affected burden is the that defendant to show that did not contends the bailiff state communication, there was unauthorized relayed the his oath when he to breach then the burden the State and shifts to that reached but that a verdict was was, show what the to communication the verdict. jury had a about the prejudicial that and the same not to the defendant. State, In the case Foreman v. Okl.Cr. of 34, referred [App.] 370 P.2d the court The state because the fore- contends State, 313, Lowrey Okl.Cr. testimony the going in that there 637, 656, said: P.2d and question what was no the communication was, party put the the it in Court is that ‘Moreover, we feel constrained (CM 583). the record feel that this We at that the bailiff the must case is different than cases where other only protect the all not times the Court did not the know what com- that intrusion but also from his own munication was.” necessary at It is not outsiders. opinion, are there We and pass beyond time that bailiff hold, fore that before trial court is All post room door. outside justified authorizing in issuance be handed papers and exhibits should jurors all appear summons for and testi is at therefrom to him. He no time fy relative unau issue whether communicating in justified thorized communications have been made to case ex- in manner about them, making necessary party is messenger between cept act as a request the issuance said sum court, inquire of and and them specific alleging allegations mons make room, them from outside the unauthorized communication some arrived they have verdict.’ tending made and offer done, supra, allegation. The state cites Foreman v. this When this is not only doing his duty require that the bailiff is trial court has no issu- show NIX, J.,P. concurs. jurors in order for said summons anee of may be expedition conducted fishing that a concurs): BRETT, Judge (specially not, might disclose might, which Judge concur in BUSSEY’S I irregularity. my bailiff did view and add that that the defendant are provision O.S.1961 violate trial, the is- fair and had a readily 857, case can be find that this § and the in- properly submitted sues were A- State, No distinguished from Scott v. the law fairly correctly state structions 1968. September handed down on case, the evidence applicable uncertainty con- this case there was no verdict, all constitu- supports the transpired cerning what statutory rights of tional punishment Likewise, the bailiff. reasons, these protected. were For the maxi- less than imposed of- appealed from provided in the statutes for judgment and mum fense. affirmed.