Starr v. State
602 P.2d 1046
Okla. Crim. App.
1979
Check Treatment

*1 ” (Citаtions at 676.’ . . . omitted) opinion that the ra

We are of the and, controlling tionale here in Harris is re accordingly, hold that where the State degree man lies on misdemeanor first slaughter, underlying a conviction for the prosecution subsequent

misdemeanor bars a manslaughter degree. in the first court, dismissing trial order of the 78-261, AFFIRMED. CRF— BRETT, CORNISH, J., ‍‌​​​​‌​‌‌​​​‌‌‌​‌​‌‌‌‌​​‌‌​​‌‌​‌​​‌‌‌‌‌‌​​​‌‌‌​‌‍J., P. concur. STARR, Appellant, Gene Kevin Oklahoma, Appellee. The STATE of No. F-77-696. Court Appeals of Criminal of Oklahoma.

Nov. *2 Muret, appel- City, for

Frank Oklahoma lant. Gen., Atty. Cartwright, David

Jan Eric Lee, Gen., Atty. Heckenkem- Asst. Brad W. Intern, appellee. Legal per,

OPINION

CORNISH, Presiding Judge: his con- Starr, appealed has Gene Kevin Instrument, Forged Uttering a viction of Felony, in the After Conviction Former County, Case District Court Oklahoma punishment His No. CRF-77-326. the State (33) years in thirty-three at fixed penitentiary. an un- trial, proved that

At the State into the Sunshine person known broke and Linen Ser- Laundry Towel and Swan It was then some checks. vice and stole two of the cashed appellant shown that the stores. grocery at different stolen checks testified City detective police An Oklahoma ad- appellant interrogation checks, intrоduced cashing the two mitted No. and Exhibit as State’s into evidence ‍‌​​​​‌​‌‌​​​‌‌‌​‌​‌‌‌‌​​‌‌​​‌‌​‌​​‌‌‌‌‌‌​​​‌‌‌​‌‍raises tate the assign cashing seven of the other. proba- The The ments minimal, of error. The first is that the trial tive value of the second check is admitting court erred in danger prejudice evidence of other and the in a situation crimes: charged great. such as this is forging checks, with one of the stolen but Nevertheless, against case the State’s *3 evidencе of present two stolen checks was appellant was have no doubt that solid. We ed. The trial court allowed introduction of if there improp was a second trial with the the other check under the сommon scheme er guilty evidence omitted a verdict of exception general to the barring rule evi We, therefore, again would be returned. dence of other crimes. will not reverse the conviction. See Schne Concerning Florida, 1056, 31 the common scheme excep- ble v. 405 92 U.S. tion, Atnip State, Olk.Cr., we in However, said v. (1972). 564 340 the L.Ed.2d because (1977): P.2d 660 may irrelevant evidence have contributed to sentence, length the of the the error is “. . .A plan common scheme or con- grounds for modification. templates relationship some or connection between the question. crimes in North v. Secondly, appellant complains the State, Okl.Cr., (1974). 518 P.2d 896 The failing give that the trial court erred in to a word, implies ‘common’ that although requested instruction on intoxication as a may crimes, there be various all said O.S.1971, 153, provides defense. Title 21 § crimes must plаn come under one or voluntary that intoxication is not a defense whereby scheme the facts of one crime However, O.S.1971, to a criminal act. 21 tend to establish the other such as where under which the was сon § the commission of depends one crime victed, requires specific the intent to de upon or facilitates the commission of the appellant argues fraud. The that a suitable crime, other or whеre each crime is mere- given instruction should have been because ly part greater a of plan. a overall In there was evidence that he was intoxicated event, such the crimes become connected and, required thereby, unable to form the transactions, or related proof and of one regard, intent. The evidence in this becomes proving relevant the other. however, was the cаshier’s statement that However, evidence of other offenses appel at the time he cashed the check the should never be admitted under this ex- lant smelled of alcohol and had bloodshot ception when it shows that the accused eyes. This is insufficient evidence of intox committed crimes wholly independent of regarding justify ication to an instruction charged. English State, that Okl.Cr., v. ability intoxication and its affect on thе to (1971).” added) P.2d 279 (Emphasis State, Okl.Cr., form intent. See West v. (1978). jury 581 P.2d 1318 The was in rule, Under plain this it is that the evidence structed that the element of intent must be concerning the second check should not doubt, proved beyond a and that rеasonable have been admitted. was sufficient under the facts of the case. Clearly, the of burglary evidence the of laundry the challenged is not on During closing argument, the de —which appeal fit exceр- the common scheme attorney fense stressed the evidence of in —does apparent tion. It is that the break-in was argued toxication and that there was doubt part of plan an overall money: Thеreafter, to obtain A appellant’s about the intent. plan involving both the theft of the checks prosecutor the stated in the second half of cashing However, and the of them. argument jury the closing his that the could evidence of the other punish check does not fit consider the intoxication “in the exception. within the Proof that appel- stage” proceedings. the ment of the In the lant error, had cashed one check does not appellant’s assignment tend to third he prove that he cashed another. In the lan- was a prosecutor’s claims that the comment guage Atnip State, ‍‌​​​​‌​‌‌​​​‌‌‌​‌​‌‌‌‌​​‌‌​​‌‌​‌​​‌‌‌‌‌‌​​​‌‌‌​‌‍supra, O.S.1971, cashing the That sеc violation of 22 § of one depend check upon being does not or facili- provides person tion that when a offense, attorneys, subsequent no in which the bailiff the tried a second or and explainеd any prior judge on the record what had mention shall be made offenses transpired. Although it would have stage the first of the trial. The been O.S.1971, 894, proper prosecutor’s cannot call the § comment be read as under courtroom, jury back prior into the the trial making any mention of offense. that the judge steps appel- took to insure permits prohibits neither nor statute by way prejudiced lant was the inci- there will in no telling the that be a further requiring dent. We reversal. they will find no error proceeding punish- in which assess ment. that We do not believe the Sixth, appellant complains of the the injured by the comment made. closing argument in thе second prosecutor’s trial, repeated he made stage of because assignment The fourth of error is pardon parole references to the State’s appellant’s that the trial cоurt denied the argues procedures. The State *4 request hearing for an in camera before an present- In error. comments were invited in court was In Bu identification made. stage, the ing his the second case State, Okl.Cr., 483 chanan v. P.2d 1180 who appellant a character witness called (1971),we said that under United v. States helped appellant had the mentioned that he Wade, 87 18 U.S. get paroled. (1967), the trial L.Ed.2d 1149 courts must permit hеarings they in camera when are cannot It an is true that requested extrajudicial to ascertain identifi by he invited first complain of error which hearing is required cation. a Such State, Okl.Cr., v. raising subject. the Luker when to there is some reason believe that However, when the (1972). 504 P.2d 1238 tainted, the may identification be as when it, we have neverthe required situation has violated, right the the to counsel or issues, of even the merits less considered pretrial procedures identification were un by the though were first broached they duly suggestive. We further held in Bu instance, See, Goodrich v. for defendant. any chanan that in the absence of evidence Stаte, Okl.Cr., (1976). A wit P.2d 219 identification, of extrajudicial the denial give not the does passing ness’ comment a an request evidentiary defendant’s to unrestricted license Attorney District an case, hearing harmless error. In no is this cаse, present In the say anything all. at hearing given, reason for the in camera closing prosecutor’s the first half of the and failed to defense counsel raise the sub long. In three argument paragraphs five is jеct appel of how the witness identified the ap to he referred the paragraphs those lant We other than at trial. therefore find paragraph other pellant’s parole, and in one argumеnt this to be without foundation. of the other evidence he talked about the check, already held was im have which we Next, alleges the that he is guilt the the While properly admitted. a because was an entitlеd to reversal there determined, we already been appellant had jury unauthorized communication with the prosecutor’s the it is that probable think after to they had retired deliberate. greater a tо assess jury the comments led the incident cited as error occurred after might otherwise have they punishment than jury a the had retired to consider verdict in modify the we will For reason done. portion Following of the trial. de section sentence. liberations, jury the called the bailiff and inquired informing to do after her what is a of error assignment The final they signed wrong the verdict had first We have argument. cumulative-error form the signed and then correct one. reversal, and, necessitating found no error AF- therefore, conviction is appellant’s the conferring judge, with the

After trial FIRMED; dis- but, of the errors because foreman mark the bailiff told to MODIFIED above, the sentence new cussed void and said verdict forms forms ‍‌​​​​‌​‌‌​​​‌‌‌​‌​‌‌‌‌​​‌‌​​‌‌​‌​​‌‌‌‌‌‌​​​‌‌‌​‌‍imprisonment (33) years’ thirty-three from judge would be issued. The then conducted imprisonment. twenty (20) years’ presence in the of both proceeding formal

BRETT, J., concurs in results.

BUSSEY, part concurs in and dissents in part.

BUSSEY, Judge, part concurring in dissenting part.

I Judgment wоuld affirm the and Sen tence without I modification. believe that the evidence of the second check was admis

sible as an exception general to the rule.

Compare State, Okl.Cr., with Vanderpool (1971) State, P.2d 871 and Lott v. Okl.

Cr., (1971). 491 P.2d 337 *5 BARR, Appellant, Charles B. Hovis, Muskogee, аppellant. Richard ‍‌​​​​‌​‌‌​​​‌‌‌​‌​‌‌‌‌​​‌‌​​‌‌​‌​​‌‌‌‌‌‌​​​‌‌‌​‌‍for Gen., Larry Derryberry, Atty. Bill J. Oklahoma, Appellee.

The STATE of Bruce, Gen., Atty. Haynie, Asst. Brent Le- Intern, gal appellee. No. F-78-324.

Court of Appeals Criminal of Oklahoma. OPINION

Nov. CORNISH, Presiding Judge: appeals

Charles B. Barr from a con- Attempted Shooting viction for With Intent Kill, After Former Cоnviction of a Felo- Court, ny, County, in the District Tulsa Case No. CRF-77-2511. The was (40) forty years sentenced to in the State penitentiary. 19,1977, night September

On the Ruth Moncrief, 63-year-old woman who had institution, previously been in a mental working in the kitchen the nude when an opened partially assailant entered her apartment door. The record reflects she frequently seen in the area of her apartment complex completеly nude or exposing clothed but herself. The man struggle threatened her and a ensued from get which she was able to free herself and then out front door. The assailant dragged her inside into the bed- back room, if pistol and told her he would use his