*1 992
not properly
See Giles
indigency
before
Court.
this
Edwards v.
State,
(Okl.Cr.1984). State,
v.
441,
442
1233,
675 P.2d
(Okl.Cr.1983);
663 P.2d
1235
State,
Furthermore,
Ferguson v.
entrapment
1021,
the defense of
645 P.2d
1023
State,
Avey
(Okl.Cr.1982);
Hickman v.
not available to Mr.
because
626 P.2d
selling
State,
marijuana
873,
(Okl.Cr.1981);
denied
Bruton v.
to the officers.
876
1382,
(Okl.Cr.1974).
“The simultaneous
improper
assertion of
521 P.2d
1384
to
inducement
commit a crime and denial of
last
Mr.
having
negates
committed the act
en
Avey contends that his sentence must be
State,
trapment
Neilson v.
defense.”
639
ground
modified on
unreported
that the
denied,
(Okl.Cr.1981),
615,
cert.
P.2d
617
closing arguments
presumed
should be
1117, 102
961,
S.Ct.
sess several elements of a Bruner. See Watkins v. as defined Accordingly, this of error without merit. STEWART, Appellant, assignments The fourth and fifth im allege and fine Oklahoma, Appellee. STATE of posed Avey Mr. No. F-84-62. strong the facts of Avey’s guilt evidence of because Appeals Court Criminal of Oklahoma. the sentence fine are within Aug. 1986. O.S.1981, 2- statutory limits of 63 § conscientiously say that we cannot con such sentence and fine shocks the notwithstanding
science of this Court *2 Schay, Appellate
E. Alvin Public Defend- er, Norman, for Gen., Turpén, Atty. Hugh
Michael C. A. Gen., Manning, Atty. City, Asst. Oklahoma appellee. for
OPINION
BUSSEY, Judge: Stewart, appellant here- in, Robbery was convicted with Firearms After Former Conviction of Felonies Two Muskogee County, in the District Court of Appellant Case No. CRF-82-451. was sen- fifty years imprisonment tenced to appeals. affirm. approximately
On October at a.m., 3:00 Dveron Jackson and Bud Hardin drinking together outside a cafe car, Impa- Jackson’s white Chevrolet la, appellant approached the car and give him a asked Mr. Jackson to ride to Minit-Stop buy beer. The three men bought the store and beer and left. drove to appellant home after he Jackson then drove going told Jackson that he was to rob the Appellant Minit-Mart. went the house minutes and returned to the car. for a few a.m., re- approximately 4:30 the trio convenience turned appellant, who was armed and Hardin revolver, entered the store. When with a asked the men if he could the clerk them, pointed gun at help appellant replied, him “You know what we opened The clerk the cash register want.” appellant lay him to ordered down appellant while walked to on the floor floor, laying on register. While he was store and a customer entered the get up ordered the clerk to and act happening. cigarettes purchased some customer left, lay the clerk to ordered money, again and demanded more down head off. threatening to blow the clerk’s operated the time release safe The clerk gave dollar bills failed to appellant. Appellant more issue, demanded mon- instruction on this failed to object ey clerk, again threatened the but the instructions, the trial court's and raises it told that the safe was on a appeal. Therefore, for the first time on time release and he could not obtain error in that this is money more point, at that time. At that sue was not *3 van, inside, persons with two parked out- late review. Jetton v.
side the store occupants and one of the assignment er of entered again, appel- the store. Once the ror is without merit.
lant though ordered the clerk to act as Meanwhile, was happening. appel- II lant and his confederate walked around the In his assignment error, second of appel- time, store for a short amount of and then alleges lant that the in-court identification they later, left the store. Moments the by of him made State’s witnesses Smith store, back in walked front of the have should been excluded looked in and left. The clerk activated an 1) pretrial because: the confrontation was alarm police. and called the impermissibly suggestive and vi- therefore Muskogee police officer, A who was 2) process; due olated it and lacked inde- parked (7) about seven blocks from the pendent reliability. store, received the radio dis- the instant even the one patch robbery that an armed had occurred person showup procedure may have been at that As approached location. he the suggestive, we must focus whether the robbery, scene of the he a observed in-court identification was reliable under colored, Impala model mid-70’s Chevrolet totality the of the circumstances. Neil approximately one block from the store Biggers, (3) (4) with three four black males inside. L.Ed.2d He radioed the description vehicle to other Brathwaite, In Manson v. police proceeded robbery units and (1977), 97 S.Ct. the talking location. After with the Supreme United States Court set forth occupants and the van he the radioed de- determining factors be considered when (2) scription of the two to other robbers whether in-court identification was taint- police units. officer the Another heard dis- pretrial ed confrontation. These patch and the observed vehicle described 1) include: of opportunity factors the suspects, stopped he the vehicle. the the witness observe defendant dur- (3) occupants The three were arrested act; 2) alleged the degree criminal the $94.04 was recovered witness; 3) of accuracy of attention the the among (10) which five was dollar prior identification; 4) witness’ the the bills. The automobile was inventoried 5) certainty; level of witness’ the time a .22 caliber revolver was found under- between crime and the confrontation. neath passenger the front seat. Applying the factors to the testimo
I
ny of State’s witness
we find the
error,
assignment
1)
In his
following:
first
Mr. Smith testified that he
any problem seeing
contends that
trial court
did
have
committed
the rob
by issuing jury
fundamental
instruc-
in
they
bers and that
store for
minutes;
2)
tions and verdict forms which failed to
to ten
he
testified
jury
submit to
issue of whether
that he watched the
of the
man who
gun; 3)
single previous
pre-showup
had sustained a
had the
the witness’
accurate; 4)
punishment
conviction for enhancement of
description
positively
he
purposes,
showup
violation
consti-
identified
at the
and nev
right
jury
disagree.
certainty; 5)
tutional
to a
trial.
positively
er
his
wavered
that this
error is like-
showup
a few find
appellant at
identified
robbery.
Mr. wise without
minutes after the
in-court
at trial
his
testified
appellant as one
identification of
V
upon his observations
robbers
In his final
during
robbery.
pellant contends that
sentence
circumstances,
courtroom identifi-
find that Mr. Smith’s
repeatedly
We have
held that
upon
observations
cation was based
punishment
question of excessiveness
robbery.
during the commission of
study
all the
must be determined
trial,
Mr. Northfleet identified
in each
facts
circumstances
robbers, appellant
one
power
does
this Court
not have
therefore,
object;
failed
modify a
unless we can consci
*4
say
entiously
that under all facts and cir
Love
appellate review.
so
cumstances the sentence is
excessive
find
we
to shock
conscience
the Court.
in-court identification
Mr. Northfleet’s
(Okl.Cr.
offense convictions, felony one for Rob III bery Firearms After Former Convic with error, appel- In his third Burglary Degree and one for Second argues testimony of State’s Felony, we Former Conviction Northfleet, Jackson and punishment imposed find that the should have been excluded. Hardin of this Court. shocks the conscience wholly sup- fails to according- sentence is argu- port this contention with relevant AFFIRMED. ly Therefore, authority. ment citation argu- patently find that this frivolous PARKS, P.J., specially concurs. ment without BRETT, J., concurs.
IV PARKS, Presiding Judge, specially con- curring: In his fourth that without the corroborat-
lant maintains only in the result I concur Smith testimony of State’s witnesses concurring my specially opinion Northfleet, appellant’s can- conviction (Okl.Cr. Hanson supported by testimony of not be concurring). 1986)(Parks, P.J., specially alleged accomplices. However, having determined
testimony of pre-trial showup and that tainted independently reliable testimony their circumstances, we under