*1
again
served
court admonishes the
approximately
marihuana
[The
I
that
warrant
deputy
occasions in his official
that
do not believe
capacity as
you
sufficient to allow
to cross the
sheriff and
on his observation of
based
threshhold of that house because there
physical
characteristics of aforesaid
go
wasn’t
cause to
to the
probable
plants
20-25
on his
in
experience
house,
you
and if
intend
only
yard,
identifying
opinion
marihuana is of the
any
to use
evidence outside the house
plants
that said
observed in the above
outbuildings
or in
that were not
any
garden
described
are indeed marihuana.
within their clear view when
observation,
affiant,
From his
Steve
then we need to take
plants,
found
Hensley
probable
had
cause to believe that
up
now whether or not.
“green leafy plants
three
approximately
sir,
No,
in-
MR. KNIGHT:
I have no
high having unique
patterns
feet
leaf
asso-
doing
tention of
that.
marijuana plants”
present
ciated with
Nevertheless,
these items were later intro-
appellant’s garden
in the
and constituted
of
possible
duced and constituted
evidence
evidence of the commission of a crime. The
crime,
possession
marijuana.
another
search warrant
obtained on
subsequently
highly prejudi-
Because their admission was
any
basis
this affidavit authorized
cial
the trial
appellant,
court should
policeman, sheriff or law officer in LeFlore
not
these
have allowed
items to be admitted
County to search the house rented
David
State,
into evidence. Oliver v.
Also, the evidence obtained from the illegally authorized search of the appellant’s
house and unauthorized search of the out
building legally relate to the crime convicted, for which he was cultivation of REED, Appellant, Karen L. marijuana. This evidence seven included marijuana baggies of found under some Oklahoma, Appellee. The STATE of leaves in a bucket located in an outbuilding, seeds, baggie marijuana, another para No. F-80-790. phernalia, pipe, rag a corncob a tied in the Appeals Court of Criminal Oklahoma. marijuana window that had some dried it, plastic a jug with a hole in the side and Jan. 1983. top, and a scale top pinned with roach Rehearing Denied March it, appellant’s all found inside house. Hensley
Officer even during admitted cross-examination that none of these items anything to do with cultivation of mari juana. trial,
Early in the the court in the stated overruling course of the appellant’s mo- tion suppress the evidence obtained
during the search of the house: *2 Jr., Thomas Ray, J. Asst. Public Defend-
er, City, Oklahoma for appellant. Gen., Cartwright, Jan Eric Atty. State Okl., Givens, Gen., Jimmy Atty. D. Asst. appellee.
OPINION
BRETT, Judge: Karen L. Reed was convicted the Dis- trict County, Oklahoma Case No. CRF-80-361, of eight Robbery counts Firearms, pursuant With to 21 801, and was sentenced to a total of 471 years’ imprisonment, eight sentences to run she consecutively. On asserts first, three errors: nondisclosure of a co-de- second, plea bargain; fendant’s excessive sentence; third, and the unconstitutionality of a one-stage trial. January approximately On six people eight employees robbed of the Dale who were Distributing Company, preparing day. discovering to leave for the After day’s receipts that most of the had been truck, deposited with a Brink’s the assail- billfolds, ants robbed the employees purs- During es and the course of the jewelry. one of the hit robbery, by victims was a instrument, blunt and at least one shot was physically fired. victims were or Several abused, verbally repeated and there was the threat the victims would be killed if cooperate. Initially, asserts that plea bargain nondisclosure of a between the and one of her co-defendants in ex- State change testimony inherently right unfair and violated her to a fair trial Fifth, Four- rights under the Sixth teenth Amendments of the United States Constitution. The bases her alleged plea bargain claim of an on two sworn affidavits to the end of her attached brief, by one a cell mate of the co-defend- ant, participant the other another in the robbery. Both affiants claim Knox, co-defendant, of the Ronnie came after he made a deal with the district attor- ney. Knox pled guilty to his role in the rob- bery and received a pre-sentence recom- ninety-nine (99) years. mendation of affidavits state that the deal Knox made he would promises included with the never been submitted to the trial court, and not disclose against Reed testify support the claim of the co-defend- (9) year a nine in return for agreement immunity. case, ant’s In present judg- trial that he testified at Knox sentence. ment and sentence was handed down in deal, he subsequently had not made a June of affidavits, 1980. Of the two sworn nine-year sentence. received the first January 21,1981, was obtained August, the second in on the merits argument appellant’s *3 the Without persuasive. the issue are relief, basis of the first To seek on the Knox, only the the testimony of State affidavit, have filed a appellant the should witness, who, the despite of one newly trial based on dis- motion for new mask, she could testified that robber’s ski O.S.1981, 22 pursuant evidence covered mouth, eyes, her the robber identify 953, Rule 2.1 of the Rules of this and teeth and voice. O.S.1981, 18, Court, App., 22 Rule 2.1. Ch. U.S., 150, 92 S.Ct. Giglio In 405 U.S. 953, Thus, appellant had under the Section (1972), 763, 104 the defendant 31 L.Ed.2d 21, 1981, to seek a new trial until March forged money or- passing was convicted newly evidence at- based on the discovered de- pending, an was ders. While affidavit. Had tested to in the first sworn govern- the discovered that fense counsel newly a motion for new trial on she filed alleged prom- disclose an ment had failed to evidence, and had there been a discovered he would key its witness that ise made to validity of the of that factual determination for the prosecuted if he testified not be motion, this issue could be addressed The defense filed a motion government. However, deter- appeal. there is no factual evidence, newly for new trial on discovered upon appeal. mination which to base an affidavit of a attor- which included the U.S. Relief on the basis of the second affida- claim that ney confirming petitioner’s the vit, August must first be raised immuni- promised the witness had been key at the request trial court level under a for testimony. ty exchange in post-conviction relief. 22 See court deception 1080, State, The of a seq., deliberate et and Boone v. 640 P.2d § 1377 presentation (Okl.Cr.1982). of known jurors by appellant pre- and the The is the “ru incompatible it, too, false evidence is with raising cluded from this issue until Mooney v. dimentary justice.” demands of has been resolved in the district court. 112; 340, 103, Holohan, 55 294 U.S. S.Ct. (1935). 79 791 When the reliabil L.Ed. Next, appellant the claims that the may witness be determinative ity of a trial court abused its giving discretion in defendant, of the guilt the or innocence her a sentence which is excessive and unfair when compared with the ones the other affecting his cred nondisclosure of evidence new general within this rule. A ibility falls participants received. Specifically, she ar testimony could required trial is if the false gues that her eight sentences imposed were jury. judgment affected the of the to run consecutively and not concurrently Illinois, 360 79 S.Ct. Napue v. U.S. like those of her co-defendants. (1959). Giglio, 1217 In 3 L.Ed.2d appellant State, cites Manns v. 513 depended entirely almost government’s case P.2d 882 (Okl.Cr.1973) and Morrow v. in There key question. its witness upon fore, (Okl.Cr.1973), P.2d 880 where this Court issue and the credibility his was at modified sentences in which the following whether there was entitled to know jury circumstances appellants existed: understanding regard agreement an or young and committed the robberies in the testi prosecution linked to his ing a future evening; same appellants both pled guilty mony. and cited as motivation their prob- financial bar, Knox In the case at co-defendant lems. While one of appellants had no agreement that no adamantly maintained prior record, the other had a traffic offense him and the State. had been made between and a trespassing conviction. This Court testimony, the case con- Without his State’s emphasized that it did not condone crime to of the of an identification sisted debts, assist in paying and it held that the teeth, upon mouth, her voice based consecutive sentences were excessive and and, testimony was vital eyes. Knox’s modified the terms to run concurrently. In therefore, crucial issue. credibility his was a present case, the appellant, who had no prior record, was 27 However, years does not sustain old and recently the record affidavits, which divorced. allegation. Only However, However, created. significant differences distin- her cited authority is opinions inapplicable, While the and this Court is guish unpersuaded the case at bar. of its validity. and Morrow do not reflect the actual See Sandefur v. Manns used, may (Okl.Cr.1969). the facts before us merit P.2d 954 violence Reed was the most vio- punishment. such urges this Court the robbers. Victims testified that lent of adopt system used in the State of Tex threatened to repeatedly the female robber as, where bifurcated trials required are cooperate; kill all of them if failed to all felonies. See Vernon’s Ann.C.C.P. art. pointed gun her at them while that she (Tex.1973). And, 37.07 the federal constitu them; threatening to kill that she forced authority tional upon relied expressly ap strip and crawl on two of victims plies to cases involving a choice between their hands and knees while she kicked and sentences of death or life imprisonment. them; ripped that she verbally abused Georgia, See Furman v. Gregg v. Geor from one of the victims while blouse gia, supra. This requires bifurcated be- demanding jewelry personal her only trials in capital cases and cases in The evidence indicates that longings. which defendants prosecuted are for subse *4 being victims had a real fear of killed very quent O.S.1981, 701.10, offenses. 21 See § cooperate. if by their assailants O.S.1981, and 22 860. Nor are § bifurcated case, In view of the facts of this the required trials by the Constitution of this appeal. sentences will not be on modified 2, State. Okla. Const. Art. 20. Further § more, argues the tri- it is Finally, appellant clearly the that not within power the to permitting jury al court erred in this Court to create a new system. That set the guilt by determine or innocence and to must be done the legislature. standards, sentence, in a meaningful absent In accordance with opinion, the judg- single-stage proceeding. This allows the ments and sentences are affirmed. discretion, jury according ap- undue to the pellant. BUSSEY, P.J., CORNISH, J., concur. First it is asserted that 21 ORDER DENYING PETITION 801, is “unconstitutional on its face and FOR REHEARING applied as in that gives juries it wide discre- appellant eight was convicted of tion in sentencing without providing mean- Firearms, counts of Robbery With Case No. ingful standards guide to that discretion.” CFR-80-361, in the District Court Okla The trial court instructed jury in ac- homa, and sentenced to consecutive sen cordance with the statutory provisions, totaling years’ tences 471 imprisonment. which provide for a sentence from five Her appeal conviction was affirmed on years to life imprisonment punishment as published opinion. v. 657 Reed P.2d for robbery with a firearm. (Okl.Cr. 1983). 662 rehearing, On filed Feb ruary raises two The cases cited requiring the estab questions; first, sel; appellate ineffective coun lishment of punishment standards for are second, capital process a denial of due cases, in which the jury was re equal quired protection in this Court’s refusal to choose between a sentence of order eight sentences to be con death served and life imprisonment. See Furman currently. v. Georgia, 238, 408 2726, U.S. 92 S.Ct. 33 L.Ed.2d 346 (1972); Woodson v. North Car appeal, On direct the appellant claimed olina, 280,96 428 2978, 49 U.S. S.Ct. L.Ed.2d that plea bargain nondisclosure of a be- (1976); 944 and Gregg Georgia, v. 428 U.S. tween the State and one of her co-defend- 153, 96 2909, S.Ct. 49 L.Ed.2d (1976). 859 ants in exchange was This rule is inapplicable to the case now unconstitutional. She attached affidavits Court, before this and it will not be extend support her brief in of this argument and ed to non-capital cases. U.S., Giglio 150, cited v. 405 92 U.S. S.Ct. (1972); 31 104 Secondly, Mooney L.Ed.2d v. appellant urges this Holohan, to hold the 294 U.S. 55 79 L.Ed. single S.Ct. stage trial in which she (1935). This convicted an Court found that the affi- unconstitutional violation davits support her due were not sufficient process rights. suggests She allegation that the and that there should have been system bifurcated guard would hearing, level, at the trial interests of both court to resolve the State and the defend- raising appeal. ant. the issue before ever, it on How- She draws upon her previous argu- ments and at the time of the time for requests appeal, that such a system be have been based hearing, which would said newly trial on discov a motion for new Therefore, ap evidence, had run. ered one it would requested counsel pellate Furthermore, the fact been denied. not raise this issue counsel did appellate newly trial on discover in a motion for new constitute ineffective dose not ed evidence the test of for counsel under assistance competence,” as established “reasonable (Okl.Cr. 620 P.2d Johnson applicable is to coun 1981). That standard counsel. as well as trial
sel on
peti-
raised on
proposition
In her second
alleges
rehearing,
tion for
equal protection
her
that this Court denied
refusing to order that
process by
and due
concur-
reimposed to run
the sentences be
of this
published opinion
In the
rently.
case,
(Okl.Cr.1983), this Court
the Court of Jan. wreck. injured she was in an automobile and reverse We hold were not correct benefits to denying the court en banc order claimant.
I claimant, facts were that operative Osborne, as a nurse’s A. worked Madaliour Kona- Nursing Home in aide at the Tucker wa, given employees Oklahoma. period minute lunch and had paid