Sherrick v. State
725 P.2d 1278
Okla. Crim. App.
1986
Check Treatment

*1 Supreme 105 S.Ct. at 681. The Court has and that compliance “substantial recently noted that: physical similarity guidelines will suffice” protect person’s right an accused assessing to due whether a detention is too [i]n Leigh process. 936,

long in justified duration to be as an (Okl.Cr.1985). investigative stop, appro- we consider it priate to police examine whether the dili- participants pre-trial pho pursued gently investigation a means of tographic line-up in the instant case all likely that was to confirm dispel their possessed general the same physical char suspicions quickly, during which time it participants acteristics. The were all of necessary was to detain the defendant. race, they possessed the same all facial Sharpe, United States v. 675, 470 U.S. hair, they general all were of the same -, 1568, 1575, S.Ct. L.Ed.2d 605 complexion, they were of the same build (1985). possessed and all general the same hair We believe the initial detention effected style. appellant complains by Conley proper investiga- Officer awas photographs impermissibly sugges were stop. tive It is clear that Officer had a photographs possessed tive since the writ suspicion justify stop; reasonable ing back, except on the for the is, driving car the was photo. there is no in description matched the of that used in the suggests the record which that the witness Anthony's See United es viewed the backs of the photographs. robbery. store Maybusher, States v. (9th 735 F.2d 366 circumstances, Under these we cannot find Cir.1984). See also Luckett v. pre-trial procedure identification 174, (1972). Ind. 284 N.E.2d 738 Further- suggestive. more, the officer acted diligently pursu- is without merit. ing investigation, and immediately Accordingly, foregoing reasons, for the called Detective Shahan to the scene. This judgment and sentence of the trial case does not unnecessary delay reveal court is AFFIRMED. legitimate investigation conducted Conley. stop by Officer The initial Offi- BUSSEY, JJ., BRETT and concur. Conley arrest, cer did not constitute an appellant’s rights under the Fourth Amendment were not violated this rea- police

sonable action. This

error without merit.

III.

In his final ap- pellant asserts that photographic line- SHERRICK, Appellant, David E. up procedure suggestive so as to taint the in-court eye- identification Oklahoma, Appellee. STATE of again disagree. witnesses. We No. F-84-308. eyewitness

Convictions based only identification will be set aside if the Appeals Court of Criminal of Oklahoma. pre-trial photographic procedure im- was so Sept. 1986. permissibly suggestive as to rise to a very irreparable substantial likelihood of As Corrected Oct. 1986. Bryson misidentification. Rehearing Denied Oct. We also have held “participants pretrial pho [sic] displays possess gener should the same physical

al characteristics as the accused” *3 Smith, Jr.,

Thomas G. Appellate Asst. Defender, Norman, Public appellant. for Turpén, Gen., Michael Atty. C. Mary F. Williams, Gen., Atty. Asst. City, Oklahoma appellee. for OPINION BUSSEY, Judge: appellant, Sherrick, David E. convicted in the District Court of Wash- ington County, CRF-83-39, Case No. two counts of Degree Murder the First for which he received a sentence of life imprisonment count, on each to be served consecutively. appeals He and raises elev- assignments en of error. morning January

On the Holden, bodies of Russell and Neva hus- wife, band and were discovered in their home east of Bartlesville. Each had more ninety puncture than and stab wounds pathologist which the forensic testified were inflicted at least two different weapons. Furthermore, Mr. Holden’s ring finger had been severed. Police ar- daughter, rested Mrs. Holden’s Neva Chris- Graham, tine boyfriend, and Graham’s appellant. incarcerated, appel- While lant wrote letters to a friend. one let- ter, presence admitted his during murders, robbery but stated murders, that Ms. Graham committed the unplanned. During which were his testi- mony trial, at the presence admitted his during but stated that he was under the influence drugs and was too frightened stop the murders. detailed, very including description precautions he took to applicable in a civil or a criminal presence of his at case leaving evidence avoid case, giving due consideration crime. law, prevailing and the facts and the assignment of Por his first should court determines be alleges subject, the in- instructed on the OUJI removing two during voir dire structions shall be used unless the for cause who stated prospective jurors accurately determines that it does opinions con they preconceived state the law.... Both, guilt. cerning concerning opin He that because OUJI-CR contains being those questioned instructions, ions, they could such instructions they stated that believed dire as opinions given and reach a verdict must at the time voir aside those be set presented only upon the evidence instructions are mandated for use based disagree. court re Al- applicable. the trial. After whenever prospective jurors required dif- though to dismiss the two be at fused cause, perempto counsel used to correct ferent times *4 or challenges arise, to dismiss them. Whether ry they may as or at the dis- problems objective, to serve in an juror not a is able clarify of the trial court be used to cretion law, manner, required by as unbiased to issues which would tend confuse discretion inquiry within the necessarily O.S.1981, prescribes jury, which § court, dis will not be the trial which of proceedings, trial mandates the order of unless an abuse is evident. Grizzle turbed instructions after the evidence is the use of (Okl.Cr.1977). Hav The record reveals that both concluded. pro dire of the two ing examined the voir included the State and defense counsel of that jurors find no abuse spective we concerning questions the State’s burden assignment of error is discretion. presumption of proof and the defendant’s merit. without innocence, in- and the trial court included these matters at the close structions on his As next find no error. evidence. We court complains that the trial jury on matters to voir dire the refused asserts, as his third The proof, and burden of such as the State's error, that assignment of innocence, and presumption of defendant’s from counsel preventing to refused to for the State cross-examining witnesses Appellant cites no voir dire. jury surrounding concerning the circumstances the trial authority require that which would obtaining written a letter State’s on these matters. judge voir dire de trial court ruled that appellant. The appel repeatedly held that an We have precluded question from fense counsel was support allegations his lant must concerning or not whether ing any witness argument citations of au by both legally, as the court obtained the letter was done, and it is thority; when this is not that it was obtained previously ruled de that has not been apparent per held that while legally. We have rights, prived of fundamental scope of cross-examination missible au not the books for court will search broad, limits. Unless an it has support mere assertions thorities to its trial court abused that the can show omitted). (Citations the trial court erred. restricting unduly the extent discretion cross-examination, of error will no claim Perez v. (Okl.Cr. trial P.2d 45 argument Bishop authority As lie. instructions, 1978). testimony dur give introductory examining the must After court O.S.1981, de hearing 577.2 which in which ing preliminary cites concerning provides: cross-examined counsel fense re acquired, and after letter was In- how the Jury Oklahoma Uniform Whenever record, we do viewing of the the balance (OUJI) an instruction contains structions find any not abuse of discretion in appellant urges the trial The as his as fifth order, court’s as the would have signment of that the trial al court strictly legal covered matter which would present lowed the improper State to rebut not be relevant to guilt determine the tal evidence. asked appellant. appellant questions during cross-examina tion concerning prior statements he made As his fourth of er police to investigators which were incon ror, appellant argues the trial sistent previous with his testimony. refusing erred in allow him to call appellant replied that he did not remember Neva Christine Graham stand or to statements, explain making the why they she but if available as a he did During witness. The record reveals that the were false. rebuttal the State judge hearing in conducted a camera in investigators called three who con testified order confirm the notification of Ms. cerning the content of their conversations attorney Graham’s that she intended to in with the appellant por which contradicted the Fifth if voke Amendment called to the tions testimony. of his The trial court confirmation, stand. After she made ruled that the rebuttal was admissible be refused allow her to be cause it the credibility ap attacked before the jury, called ordered that her pellant’s testimony relating to whether absence not to be mentioned. He rea killings premeditated. were improper soned could make agree. inferences. The before issue us is whether consistently We have held that rebuttal codefendant previously who has stated at contradict, be offered to hearing that she camera intends to repel, disapprove, or destroy given facts *5 right her against invoke self-incrimination in by evidence an party adverse in that may compelled be her codefendant to the such admission of evidence is mat- take the stand this and invoke constitution ter the addressed to discretion the of right jury. appellant al before the The ruling trial court whose will re- not be authority point. Although cites no on an showing versed absent a of a manifest right compulsory accused has a process to of abuse discretion. obtaining (Okla. in for his witnesses behalf Const, 2, 20), art. he does not have the State, Burney v. 1226, (Okl. right compel to testify that witness to Cr.1979). assignment This of error mer- is testimony when that could violate the itless. rights against of the witness self-incrimina assignment As his next of State, Bryant v. (Okl. tion. P.2d 498 appellant the contends that the trial court Cr.1967). cites Washington appellant The by refusing request to that the Texas, 14, v. 388 U.S. S.Ct. appellant’s be theory instructed on de of (1967) L.Ed.2d 1019 which holds that a requested fense. He states that he instruc arbitrarily deny state not an accused fact, accessory knowing tions on after the put the to a witness the stand who ly concealing property, robbery stolen with physically mentally capable is and of testi dangerous weapon, and of dissection fying to personally events that he has ob being human after death. The trial court served, “and whose would have correctly ruled that con instructions been relevant and material defense.” separate offenses, cern are substantive and 388 U.S. at at 87 S.Ct. not lesser included offenses within First proper no inference could have been made Degree Murder. To separate instruct on testify, from Ms. Graham’s refusal to nor offenses which substantive have not been properly can such a refusal be called evi dence, charged error. See Williams is as testimony. there is no Under (Okl.Cr.1980), circumstances, 620 P.2d 421 Wilson such the order of and proper. This of 552 P.2d 1404 Nor er ror lacks merit. requested can the be properly The appellant’s theory eighth assignment of As theories defense. an of the part in defense was that had no the claims of that the court failed planning executing. complete in to either or submit a set of verdict forms or he committed other of- at the of stage Whether conclusion the first trial. of subsequent during complete fenses to the mur- Because a set was included in the charge. original to penalty stage, ders is a defense the record at the but the be not at guilt stage, note that claimed to intoxi- states crimes, suggests possibility cated the commission of that this upon provided and that the trial court instructed was not all the materials inability specific to intent necessary proper form criminal for them to reach a ver- intoxication, and further dict. guilty” reason instruct- He claims that the “not ver- on the included dict missing. ed lesser offense Man- forms were comments Degree. slaughter assign- closing First argument defense counsel of error is meritless. ment contradict the conclusion. The record shows that the instructions were Next, as seventh length, discussed at that defense counsel error that trial court only objection made an one instruction. properly upon instruct circumstan- failed closing, Later in he remarked: “The verdict In tial evidence. Grimmett you going forms are to take back (Okl.Cr.1977) analysis in an P.d Jury you Room with have the words involving prior this issue all the decisions guilty not guilty and written on them.” we stated: (Tr. 583), assign- find We therefore one, analysis it is error reflects that: utterly ment to be of error meritless. not to instruct trial court made, jury, though request even no is In his ninth alleges upon all the evidence cir- when relied two, cumstantial; speculated closing argument when the evidence is in his about circumstantial, in it is not matters not in evidence. the first both direct and stance, first give error to an after the trial court sustained fail to instruction when counsel, three, objection requested; prose none is the failure portion cutor from an instruction all of the read a State’s exhibit where request and no in that context the court overruled circumstantial *6 made, instance, is objection. is not reversible error unless the the the second again to exhib against the defendant is inher- the referred evidence objected that the ently improbable. weak or it defense counsel appellant remarks had the prosecutor’s A of the reveals review record that (the co- “fixing up a defense for Christine gave the trial court a definition of circum defendant) burning in one and her breath (OUJI-CR 802), evidence and did stantial Appellant the also contends other....” not include the instruction on the use of an indi that the second remark constituted excluding evidence in rea circumstantial find no rect attack on defense counsel. We See, sonable theories of innocence. OUJI- allegations. merit in “Counsel for objection CR 804. No was made the the state and the defendant have both given. The facts of the instruction was standpoint from their fully to discuss is case before us show that the evidence inferences deduc the evidence and the circumstantial, appellant wholly as the State, arising tions from it.” McDonald v. present the testified that he was (Okl.Cr.1976). The re participated the and that prosecutor were marks of the deductions of the Because the robbery armed victims. part of the from an exhibit which was circumstantial, direct and both evidence, proper. and therefore were request and no for the instruction was im- made, appellant alleges Although Therefore two other no error was committed. comments, proper properly neither were of error is meritless. preserved by objection. mitigating Nevertheless, Therefore we circumstances. State, Meyers will not address them. the court concluded that the evidence war- (Okl.Cr.1981). 623 P.2d 1035 ranted that the sentences be served consec- utively. We find no abuse of discretion in error, As his tenth that decision. the claims Finally, improperly jury’s request refused cumulative all of effect of the errors ad- portion appellant’s testimony have a of the dressed him mandates reversal. Where deliberations. admits there is no individual there can be no jury that refusal to allow rehear a State, accumulation. Woods v. error portion lies within the trial (Okl.Cr.1984). 674 P.2d 1150 Kovash v. E.g., court’s discretion. cert. denied (Okl.Cr.1974), 519 P.2d 517 Accordingly, judgments and sen- (1974). U.S. 95 S.Ct. L.Ed.2d 55 tences are AFFIRMED. Having portions examined the tran script cites, which the we find BRETT, J., concurs. that the trial did not abuse its discre PARKS, P.J., specially concurs. tion the refusal. complains further PARKS, Judge, Presiding specially con- was not returned to the court curring: O.S.1981, required by room as § Although agree my I what brother jurors judge After the a note sent Judge herein, Bussey has I stated hasten to requesting part testimony, forbidding add that we are not utilization judge sent reply. a note back to the instruction listed in the made, objection As no error is Jury Instructions —Criminal. Uniform waived. Hines (Okl. 557 P.2d 1981, 577.2, giv- As noted in 12 O.S. Cr.1976). ing of gen- instructions of this nature rests As his eleventh erally within the discretion of the trial appellant urges however, judge; once the trial dis- court abused in refusing its discretion necessary, covers that an instruction concurrently. run his sentences Whether Jury Instructions —Criminal Uniform or not run consecutively sentences are is a should be used. resting decision in the sound discretion of Lloyd trial court. The record reveals that pre-sentence trial court reviewed

report, petitions letters and from friends acquaintances, ap and considered the

pellant’s lack of a criminal record and other