Stiner v. StateStiner v. State
- Reporters:
- ,
- Before:
- Bussey
OPINION
BUSSEY, Judge:
The appellants, Ronnie Ken Stiner and Larry Griffet, hereinafter referred to as defendants, were charged, tried and convicted in the District Court, LeFlore County, Case No. CRF-74 — 110, for the offense of Escape from Penitentiary, in violation of
The second witness to testify was Kenneth Ramsay, an employee at the Ouachi-ta Vocational Technical Training Camp located in Hodgens. He identified each defendant as former inmates at that facility, аnd testified that at about 11:00 a. m. on the above date, they borrowed a state-owned 1965 or 1966 Dodge pickup for the sole purpose of performing some maintenance work for which they had volunteered, and were to return the pickup within thirty minutes. The work was to have been performed upon the compound since an officer was required to accompany inmates working off the compound When the defendants failed to return, he attempted to locate them but was unsuccessful and notified Lt. Cranfield. A head count was then conducted and at about 1:30 p. m. the defendants were discovered missing.
Chester John Cranfield, Sr., Lieutenant of the guards at the correctional facility located in Hodgens, then testified and confirmed the testimony of the above witness regarding the head count and discovery that the defendants were missing. The witness then explained that under the rules and regulations of the facility no inmate is allowed outside the compound unless escorted by an officer. He acknowledged that the defendants had been assigned to the maintenance crew, and further testified that he had never directеd an inmate to work outside the compound without being accompanied by an officer.
Warren C. Nuzum, a police officer with the El Reno Police Department, then testified that he and other officers proceeded to a certain residence in El Reno in the aftеrnoon of August 11, 1974, upon information that two escaped convicts were at that location. After other officers approached the front door of the residence, the two defendants proceeded rather rapidly out the back door, but from the back porch then dropped face-down into a prone position when advised of the officers’ presence.
The final witness in chief for the State was Hugh Gardenhire, Chief of Security at the Ouachita Vocational Technical Training Center, who testified that when an inmate leaves that compound the officer in charge will always accompany him, especially when an automobile is used. Further, the officer would first proceed to the office, where he would leave such information as the inmate’s number, the location to which they were proceeding, their purpose, and the approximate time of return. He also testified that to his knowledge these defendants did not have permission to leave the compound on August 7, 1974, and although he admitted that one of his subordinates could have given such permission, he further assеrted that they had no authority to do so.
David Eugene Evans was then called as the first defense witness and testified that he was presently incarcerated at the State Penitentiary at McAlester, and became acquainted with the defendants while incarcerated there. Beforе defendant Stiner was transferred to Hodgens, he observed
The second defense witness was Dale Thomas Taylor, who testified that he was presently incarcerated at McAlester, but had previously become acquainted with the defendants when incarcerated at Hodgens. He also testified that defendant Stiner had been threatened with sexual assault by black males at the Hodgens facility, and fearing for their lives both defendants had sought his advice as to what to do. In cross-examination he admitted two prior felony convictions.
Defendant Griffet then took the stand as the final defense witness, and testified that while incarcerated at the Hodgens facility five black males, one of whom had a knife, attempted to sexually assault his co-defendant at the water plant, and when he endeavored to assist defеndant Stiner they threatened both of their lives. He further testified that the guards were not notified of the situation since to do so would be futile and cause futher reprisal from other inmates. As an alternative the defendants decided to go to El Reno where defendant Stiner had an uncle whо worked at the Federal Penitentiary. Their intention was to turn themselves in there in the hope of being imprisoned elsewhere. In cross-examination he testified that they had hitchhiked from Hodgens to El Reno and did not leave in the missing pickup that was later found in Tulsa, and he did not know how defendant Stiner came into possession of the billfold of a Mr. Morris from Sap-ulpa.
In rebuttal, the State recalled Hugh Ger-denhire, who testified that if an inmate so desired he could at any time walk away from the Hodgens facility, and that he had received no reports of sexual molestatiоn among the inmates there.
In surrebuttal the defense recalled Dale Thomas Taylor, who then testified that defendant Stiner had asked Mr. Gardenhire that he be separated from black inmates in his cell so that he would not be sexually assaulted.
In the first of the four assignments of error, the defеndants contend that the trial court erred in overruling their Motion for Severance, which was timely filed and presented. As set forth in Curcie v. State, Okl.Cr., 496 P.2d 387, 388 (1972), we have repeatedly held:
“. . . It is the general rule that the granting of a severance is discretionary with the trial court, and that the Court of Criminal Appeals will not disturb the trial court’s ruling, absent a showing thаt prejudice resulted therein. Ferguson and Alley v. State, Okl.Cr., 489 P.2d 523. ...”
The defendants recognize this rule, but, without otherwise suggesting how they were prejudiced, the defendants assert that the defense of one was necessarily antagonistic and inconsistent with the defense of the other since only defendant Griffet chose to testify. At the hearing upon the Motion for New Trial, defendant Stiner testified that he considered the witnesses Evans and Taylor to be his defense witnesses. Clearly, the purported defense thus offered by each defendant was then that they departed custody involuntarily under duress, due to threats uрon their lives from other inmates resulting when defendant Stiner resisted sexual molestation and defendant Griffet endeavored to assist his co-defendant. The testimony of Evans and Taylor therefore bolstered the testimony of defendant Griffet, and the testimony of the latter advanced the dеfense of defendant Stiner without subjecting him to cross-examination. Rather than being antagonistic and inconsistent to one another, the defense adopted by each defendant was perfectly compatible, and in fact advanced the
The second assignment of error is applicable to defendant Stiner only, who here urges that the trial court erred in rejecting his oral motion made just before trial to act as co-counsel to his appointed attorney. This defendant did not attempt to waive representation by his appointed attorney, and does not now establish how he was prejudiced. The only case cited in support of this proposition is not in point. This Court recently again addressed this proposition in Smith v. State, Okl.Cr., 521 P.2d 832, 836 (1974), wherein we stated:
“The defendаnt next contends that the trial court committed error in refusing to allow the defendant to act as his own co-counsel. This issue was raised in Fowler v. State, Okl.Cr., 512 P.2d 238, wherein this Court, citing People v. Mims, 160 Cal.App.2d 589, 325 P.2d 234 (1958), held that an order of the trial court to compel the defendant to elect to proceed either in person or by counsel is not еrroneous. The Court further held that where the defendant is represented by counsel, one or the other must be in charge of the defense in order to preserve orderly procedure.”
We recognize that in
Faretta v. State of California,
- U.S. -, 95 S.Ct. 2525, 45 L.Ed.2d 562 (June 30, 1975), also reported in 43 U.S.L.Week 5004, the United States Supreme Court quite recently held the Sixth Amendment to the United States Constitution as made applicable to the States by the Fourteenth guarantees that a defendant in a state criminal trial has an independent constitutional right of self-representation and that he may proceed to defend himself without counsel when he voluntarily and intelligently elects to do so. However, the right of self-representation has by statute been granted in Federal proceedings since 1789. See, Section 35 of the Judiciary Act of 1789, 1 Stat. 73, 92, enacted by the first Congress and now codified in
In passing we are constrained to observe that in the application of Faretta, supra, the trial courts of this State should proceed with caution. Since the right to proceed without an attorney or by counsel necessarily involves conflicting interests, the trial court should clearly ascertain that a defendant knowingly, voluntarily and intelligently elects to proceed pro se, and in an appropriate case attention should be given to the following passage from that decision:
“. . . [A] State may — even over objection by the accused — appoint a ‘standby counsel’ to aid the accused if and when the accused requests help, and to be available to represent the accused in the event that terminatiоn of the defendant’s self-representation is necessary. . . . ” (Footnote 45)
Considering the third and fourth assignments of error together, the defendants complain of alleged improper gestures and conduct by a State witness and the prosecutor during direct examination of defense witnesses, improper closing argument in behalf of the State, and the sufficiency of the evidence to support the verdict. However, no authority is cited in
“ . . . We have consistently held that where there is competent evidence in the record from which the jury could reasonably conclude that the defendant was guilty as charged, this Court will not interfere with the verdict, even though there is a sharp conflict in the evidence and different inferences may be .drawn therefrom, since it is the exclusive province of the jury to weigh the evidence and determine the facts. In the instant case the defendant testified that he left because of a threat to his life. It then becomes a question of fact for jury determination. ...”
The record doеs not reveal that any improper conduct or comment in behalf of the State was of fundamental stature, and as stated in Neal v. State, Okl.Cr., 506 P.2d 936, 941 (1973):
“ . . . It is a well established rule that when an objectionable statement is made by the prosecution, it should be called to the attention of the court by timely оbjection, together with a request that the jury be instructed to disregard the improper statement and in the event that the objection is overruled, an exception should be taken to the ruling of the court, preserved and argued in the Motion for New Trial. When this is not done, the defendant is dеemed to have waived any objection unless the remarks are so fundamentally prejudicial that the court cannot, by instructions to the jury, correct such error. ...”
Finally, m Sandefur v. State, Okl.Cr., 461 P.2d 954, 956 (1969), this Court again held:
“ ‘It is necessary for counsel for plaintiff in error not only to assert error, but to support his contentions by both argument аnd the citations of authorities. Where this is not done, and it is apparent that the defendant has been deprived of no fundamental rights, this court will not search the books for authorities to support the mere assertion that the trial court has erred.’ See: Collins v. State, Okl.Cr., 407 P.2d 609.”
In conclusion, we observe that the record is free of any error which would justify modification or reversal. The judgment and sentence is, accordingly,
Affirmed.
BRETT, P. J., and BLISS, J., concur.