*1 or, rehearing Supp. state if rehearing, if a counter- time allowed for filed, disposition. date of its claim relates to the same transaction or claims, plaintiff’s
occurrence as then the LAVENDER, power district court does not OPALA, C.J., have KAUGER, order, appealable DOOLIN, enter final when it re- ALMA WILSON only JJ., part solves of the claims between concur. parties. preju- This dismissal shall not right appellant bring dice the subsequent appeal in accordance with the Appellate Rules of Procedure Civil Cases, after a final order entered. OPALA, C.J., HODGES, V.C.J., LAVENDER, KAUGER, HARGRAVE and DeLUCA, Appellant, J. Samuel JJ., concur. v. STATES FINANCIAL MOUNTAIN CORP.,
RESOURCES
Appellee.
No. 79005.
Supreme Court of Oklahoma.
March 1992. SIMPSON, Eugene Appellant,
Melvin Oklahoma, Appellee. STATE of No. F-90-438. Appeals
Court of Criminal of Oklahoma. March 1992. ORDER appeal premature. is dismissed as
This
The order of the district dis- which counterclaim, appellant’s
misses but leaves parties appellee’s in court on claims
against appellant, appeal- not a final Supp.
able order. O.S.1991 1006.
The Bar Committee Comments to 12 O.S.
Appellant contends his as signment of error that the trial court erred instructing crime, punishment for after *3 more felonies. The conviction of two or correctly Appellant points out that State given object as failed to to the instructions any and failed to offer alternative instruc tions. It is well that it is the established Merritt, Asst. Public Defend- Carolyn L. responsibility object to to defense er, appellant. for City, Oklahoma given to instructions and submit written requested instructions to the trial court. Henry, Atty. Gen. of Okla- Robert H. any homa, Slayton, Atty. alleged Asst. The failure to do so waives Diane L. 4, (Okl. Gen., 5 for error. Dixon P.2d City, appellee. Oklahoma Cr.1987). Reviewing only for fundamental jury properly find the was in we OPINION applicable as to the law. structed LUMPKIN, Presiding Judge: Vice attempted was Appellant convicted Eugene Simpson Appellant was Melvin degree, burglary in the after former second De- by jury and convicted of Second tried more of two or felonies. The conviction gree Attempted Burglary, After Former jury pursuant the was instructed to en- Felonies, in or More Conviction Two O.S.Supp.1988, provisions hancement O.S.1981, 1435 and 21 violation of 51(B), punishment committing § that for § 51, O.S.Supp.1988, in Case No. CRF-89- attempted burglary, second the offense 3123 in the District Court of Oklahoma degree, felony, after former conviction of a punish- jury The recommended County. Penitentiary imprisonment was the State (25) twenty-five years imprison- ment (10) years for more ten and that not than ment the trial court sentenced accord- attempted punishment for the offense of ingly. judgment from this and sen- It is degree, former burglary, second after con- Appellant appeals. tence felonies, that imprison- two or more viction of Penitentiary for not ment in the State less 6, 1989, Betty Bondy On arrived June (20) twenty years. jury was also than the Appellant home to find the on front find that it could that the State informed recog- Not porch of the house next door. regards to the proved had its case with not homeowner, him a friend of the nizing as Appellant and that former convictions Campbell, Bondy Ms. her niece Anna though this were his could sentenced as him Appellant. She observed watched so, punish- range first If the offense. push on open front screen door and the the and one-half ment not exceed three was Bondy door with his shoulder. Ms. wooden years imprisonment. find police, returning Ap- phone left to standing instructions, After pellant argues tree. behind that these Appellant away, O.S.1981, minutes Appellant any walked look- to 21 omitting few reference Bondy. 42, attempted ing his shoulder at Ms. Ms. punishment over the for that a Bondy subsequently observed win- of the maximum is to be one-half crimes completed on house had bent and punishment dow screen the been for same of- the jury’s tennis shoes prints, fense, properly shoe similar channel the failed Appellant, determining appropriate had left worn been under- discretion punishment. neath the window. pun- specifically addresses
Appellant was
time later
Section
arrested
short
range
attempted
offenses.
vicinity.
being
at the
ishment
He admitted to
distinguish
not
between
merely
section does
Campbell house but
stated
as
an
crime committed
ground
had found a
screwdriver
attempted crime committed
had
it to
offense and
pry open
used
the window.
subsequent
as second or
offense. Section The trial court must first establish the
generally
punishment
range
addresses the
completed
for the
subsequent
second and
charged
Then,
offenses.
fense under the
statute.
under Section
that sentence is essential-
It is a
statutory
rule of
ly
appropriate
halved. The
pun-
construction that when two statutes ad
ishment is then determined
provi-
under the
matter,
subject
dress the same
provi
both
sions of Section 51.
given effect,
sions are to be
if such effect
present case,
In the
was
Legisla
would not defeat the intent of the
properly instructed under the enhancement
Smith,
ture. State v.
provisions of Section 51. It was not neces
(Okl.Cr.1975), Oklahoma Natural Gas
sary to also inform jury
gener
that the
*4
Vassar,
Company v. State ex rel.
187 Okl.
al
sentencing
rule for
defendants convicted
(1940).
Upon thought he a juror’s Mr. Graham stated that bias cannot counsel determination be juror perform duty his civic as a he question could to a reduced and answer session. fairly, the evidence listen and listen Despite clarity the lack the written accept given as law judge record, the Court that there will realized reservation. judge without judge situations where trial is left with impression prospective definite that a juror based then excused The court faithfully juror would be “totality of the circumstances.” unable upon the Therefore, (Tr. 5-9) apply impartially the law. def- paid judge must be trial erence to the who is settled that defendant It well jurors. sees and hears the right particular has have no vested juror panel. right of a His out has a trial court serious If objection rather than that of selection. duty question to determine the of actual any opinion court is trial bias, rulings and a in its broad discretion juror unqualified, may excuse the States, challenges. Dennis v. United challenge parties juror upon one 162, 168, 519, 521, U.S. S.Ct. 94 L.Ed. challenge. upon or his own motion without *5 (1950). The 734 determination of whether juror a excused Whether or not should be impartial juror will a venireman be an is trial in the sound discretion of the rests agree abused, by many influenced We factors. such is and unless discretion State, Supreme 446 Court that situations will no error. with there is Bickerstaff v. (Okl.Cr.1968). 73, judge 77 arise where the receives a definite P.2d potential is impression juror of a which not jury impartiali All doubts about reflected the record. ty case resolved in a criminal must be State, v. Hawkins the accused. favor of present just such case a 1156, (Okl.Cr.1986). 717 P.2d 1158 How Despite Mr. case. Graham’s statement ever, decide juror impartially a who cannot perform duty as that he could his civic a guilt proper oath is a violates his and this juror, judge the trial was left with the State, Dutton v. challenge for cause. 674 impression that Mr. not Graham would be 1134, (Okl.Cr.1984). P.2d 1138 impartial juror. support is found in As ability The evidence as Mr. Graham’s decision, record for the court’s we find impartial juror conflicting in the be an trial court in by no abuse of discretion hand, present Mr. case. On the one Gra- excusing Mr. Graham for cause. he ham indicated that would not be an impartial experiences that due juror, to his Further, in order for this Court to justice system, might criminal with the modify a conviction a sentence reverse or sympathetic toward the defendant. On preju Appellant must that he was show hand, Mr. stated that he other Graham Banks v. by diced the court’s decision. perform thought duty he could his as a State, 497, (Okl.Cr.1986); 728 P.2d 502 fairly. juror listen to the evidence State, (Okl.Cr. Brown v. P.2d 1182 563 State, 81, (Okl. In Lewis v. 82 586 P.2d 1977). wholly Appellant has failed show Cr.1978), trial findings the detailed prejudiced exclusion he was how potential excusing juror court jury. Accordingly, from Mr. Graham aided our resolution of the issue. cause assignment of error is denied. this present findings in the case are neither helpful. so detailed nor so alleged by After review the errors are to conclude that Appellant, we unable Witt, 412, 105 Wainwright v. In 469 U.S. requires has ei- any error occurred which (1985), L.Ed.2d 841 S.Ct. 83 the United Appellant’s or reversal modification ther Supreme Court addressed the States excu- judgment and Accordingly, the prospective jurors sal sentence. for cause in a capital is AFFIRMED. capital case because views on sentence JOHNSON, P.J.,
LANE, BRETT and
JJ., concur.
PARKS, J., specially concurs.
PARKS, specially concurring: Judge, appel-
I separately comment write This assignment error.
lant’s first substantially similar ar-
Court addressed
gument in Wooten
(Okl.Cr.1985), we stated: wherein assignment appel-
In his second O.S.1981, pre-
lant contends § AFCF enhancement of this
cludes [Bringing Beverages Alcoholic Into
fense Institution, After Former Convic- Penal Felony]. provides That statute
tion of made a an act or omission is when under one of the
crime and statutory sections under the section, i.e. criminal Title But, general.
specific shall control O.S.1981,
the second sentence
specifically permits AFCF enhancement 51; therefore, O.S.1981, this
under
assignment of error without merit. original). (emphasis Although
Id. at 61 concerns an instant case
crime, applicable. I find that Wooten permits
Pursuant to Section Section 51 notwithstanding that
AFCF enhancement statute, O.S.1981, 42, attempt con- sentencing guidelines.
tains HODGES, Appellee,
Mansell Gene ex rel.
STATE Oklahoma
DEPARTMENT OF PUBLIC
SAFETY, Appellant. 76191.
No. Jr., Easley, Dept, Safety,
Blair of Public City, appellant. Oklahoma Oklahoma, Appeals Court Gonzalez, Purcell, appellee. Jose No. 1. Division Sept. 1991.
BAILEY, Judge: Oklahoma, Appellant ex rel. State De- (DPS) partment Safety of Public seeks re-