Ray R. STOKES, Appellant, v. The STATE of Oklahoma, Appellee.
No. A-16286.
Court of Criminal Appeals of Oklahoma.
April 19, 1972.
On Rehearing Sept. 28, 1972.
Rehearing Denied Oct. 16, 1972.
“A. No, huhhu, I never used narcotics.
“Q. And you are most certainly not under the influence of any narcotic drug today?
“A. No.” (Tr. 36-37)
I am somewhat dismayed with my learned colleague‘s final portion of his dissent wherein he stаtes:
“The single question presented in this case was: ‘Did the defendant have a legal prescription for the drugs?’ * * *
“With little effort the prosecutor could have verified the validity of the two prescriptions; and, I believe hе should have done so. * * *”
Judge Brett apparently has overlooked the then existing law,
“In any complaint, information, or indictment, and in any action or proceeding brought for the enforcement of any provisions оf this Act, [footnote omitted] it shall not be necessary to negative any exception, excuse, proviso, or exemption, contained in this Act, and the burden of proof of any such exception, excuse, рroviso, or exemption, shall be upon the defendant. * * *”
The trial court in the instant case gave the defendant an opportunity to establish the defense that the prescriptions were legally obtained by continuing thе case and giving the defendant an opportunity to obtain the needed testimony through the use of depositions. The defendant did not offer to introduce depositions of the pharmacist or doctors in the State оf Texas nor was a further continuance requested. It appears quite ludicrous to this writer that Judge Brett would attempt to place the burden on our already over-worked police officers and proseсuting attorneys to establish an affirmative defense for a defendant when by statute the burden is placed specifically on the defendant.
For the reasons set forth by Judge Simms, I am of the opinion that the judgment and sentence should be affirmed.
John L. Clifton, Dist. Atty., and James Sill, Asst. Dist. Atty., Pottawatomie County, for appellee.
OPINION
BRETT, Judge:
Appellant, Ray R. Stokes, (a/k/a Robert R. Stоkes, Bob Stokes, Bob R. Stokes, Roy Stone), hereinafter referred to as defendant, was convicted in the District Court of Pottawatomie County, case number CRF-69-12, with the offense of obtaining merchandise by means of a false аnd bogus check, after former conviction of a felony, and sentenced to ten (10) years imprisonment. Judgment and sentence was imposed on September 21, 1970, and this appeal perfected therefrom.
It was сharged that the defendant obtained some merchandise from the Newton Wall Company in Shawnee, Pottawatomie County, Oklahoma, on November 4, 1967, by means of a false and bogus check in the amount of Seventy Eight Dollаrs and twenty-five cents, ($78.25), knowing that said check was false and worthless and with the intent to defraud the Newton Wall Company of said merchandise. The evidence established that the defendant obtained merchandise in the valuе of Seventy Eight Dollars and twenty-five cents, ($78.25), by means of a check drawn for that amount on the Penn Square National Bank of Oklahoma City, presented to an employee of the Newton Wall Company in Shawnee. Testimony shows the defendant
In the second stage of the trial the State charged that the defendant had a former felony conviction. It was stipulаted that the defendant was convicted on July 11, 1960, of the offense of obtaining money by false pretense in Seminole County, case number 6837. After hearing the court‘s instructions and argument of counsel, the jury retired and returned a vеrdict fixing punishment at ten years imprisonment.
Defendant‘s first two assignments of error concerns a purported meeting and agreement between the defendant and the district attorney several months before the case came to trial. Defendant argues that at this meeting the district attorney agreed that if defendant made full restitution the State would dismiss the criminal prosecution. It is defendant‘s position that since defendant made full restitution аnd the prosecution was not dismissed by the district attorney, the court was obligated to fulfill the prosecutor‘s unkept promise and dismiss the case. Furthermore, defendant argues that such a meeting was a critical stage of the proceedings entitling him to representation by counsel.
The evidence at the trial does not establish that there was a meeting between the district attorney and the defendant, which resulted in an agreement tо dismiss the prosecution. Furthermore, the defendant did not raise the issue of lack of counsel at such a meeting at any time prior to trial, during trial, or on motion for new trial. The only indication that there was a meeting between the district attorney and defendant concerning restitution is found in the defendant‘s statement to the trial court at the time of sentencing. We therefore conclude that the evidence does not establish that there was a pretrial agreement by the prosecutor and the defendant to dismiss the prosecution upon restitution. Even if there had been such a meeting, the defendant has not shown by clear and convincing evidence that he was prejudiced or denied a fair trial by virtue of such an alleged agreement. The evidence which went to the jury and established defendant‘s guilt was not obtained or the result of the alleged meeting and agreement. We therefore conclude that there was no error in this regard and further that such an issue should have been raised in the trial court and not for the first time on appeal.
Defendant‘s second two assignments of error concern prejudicial remarks made by the prosecutor during his closing arguments. During his argument the prosecutor remarked in part: “. . . the fact that he does now stand convicted after a prior conviction of аnother felony in the same area—that of larceny, burglary and some other situation— . . . .” Defendant‘s point is well taken that this may have indicated to the jury that the defendant had been convicted of larceny and/or burglаry, although in fact the only evidence of a prior conviction was for obtaining money under a false pretense. Although the prosecutor may not have intended to indicate defendant had prior convictions of burglary and larceny, the jury may have very well so interpreted his remarks. Furthermore, the prosecutor in his closing arguments remarked that “there is parole for good time and Christmas parole and things like that.” The prosеcutor also remarked: “Under the system of parole in the State of Oklahoma; whatever sentence you give
It is obvious that these remarks were improper, prejudicial, stated matters not in evidence, and were wholly unjustified. It is a familiar and well established rule in this jurisdiction that the jury may not be advised of parole policies or other possible reductions in the sentence, after it has been imposed. As stated by this Court in Cox v. State, Okl. Cr., 491 P.2d 357: “It is error for the trial court to instruct the jury regarding possible reduction or commutation of a term of imprisonment after imposition through pardon and parole policies or dеductions for good behavior and other statutory allowances.” Clearly if a trial court may not so instruct, certainly the prosecutor may not so advise the jury. We therefore conclude that the prosecutor‘s remarks were clearly error. However, the prosecutor‘s improper and prejudicial remarks were made in the second stage of the proceeding, after the jury had determined guilt. Had the remarks beеn made in a one-stage trial, where there was conflicting evidence, there might very well be cause for reversal. However, such prejudicial remarks by the prosecutor made in the second stage of the trial would require modification of the sentence. But in the instant case, since the jury imposed the minimum time of imprisonment allowable under the law, we are prevented from modifying the sentence. It is however within the trial court‘s disсretion to suspend a part of the sentence imposed.
Judgment and sentence is hereby affirmed.
BUSSEY, P. J., and SIMMS, J., concur.
OPINION ON REHEARING
BUSSEY, Presiding Judge:
Appellant, Ray R. Stokes, a/k/a Robert R. Stokes, Bob Stokes, Bob R. Stokes, and Roy Stone, hereinafter referred to as defendant, was convicted in the Distriсt Court of Pottawatomie County, Oklahoma for the offense of Obtaining Merchandise by Means of a False and Bogus Check, After Former Conviction of a Felony, and sentenced to ten (10) years imprisonment. This cause was reviewed by this Court and affirmed on April 19, 1972. A timely motion for rehearing was filed by the defendant.
We have carefully examined the defendant‘s excellent brief in support of his motion for rehearing, and after examining such, are of the opinion that the cause must be MODIFIED. We observe that the trial court in the second stage of the trial instructed the jury that the minimum punishment for Obtaining Merchandise by Means of a False and Bogus Check, After Former Conviction of a Felony was not less than ten (10) years. The offense was alleged to have occurred on November 4, 1967; hence, under the then-existing statute,
In the original opinion, we discussed improper argument by the District Attorney in the second portion of his closing argument. Although we felt that such remarks were prejudicial, we stated that we were without authority to modify the sentence, inasmuch as the minimum sentence of ten (10) years was imposed. We are of the opinion that because both of the errors occurred in the second stage of the prоceedings after the jury had determined the defendant‘s guilt that the same does not constitute reversible error. It is therefore the order of this Court that the judgment and sentence is modified to a term of one (1) year imprisonment, and as so modified, the judgment and sentence is
Affirmed.
Modified and affirmed.
BRETT, J., concurs.