*1 Although appellant objected oped might be. Arnold herself stated 176.13. as it (Tr. only grounds, at trial that she was not coerced. constitutional we federal 463-464). Cary Officer Thurman of compliance find that with the Act a fun- Investigation State Bureau proper question damental use of following gave the account his conversa- power police appropriate which is to be her to agreement tion with Arnold to sponte. passing raised We note in sua cross-ex- during the electronic surveillance any not to appellant does direct us by counsel. amination defense support argument cases that con- which his Q. (Betty sensual electronic surveillance is unconsti- you talk to them Did ever argument, fed- daughter Mu- tutional. His based on the and her Debbie
Arnold constitution, soundly refuted nyon) charges eral has been possibility about the Supreme against them case? United States Court. See being filed in this White, Lopez, supra. and We find pos- A. I did talk with them about their Hoffa denied investigation in the involvement sible appellant’s suppress. Finding to no motion crime, and it was discussed and requires which reversal or modifica- error by them if questions were asked and tion, judgment we AFFIRM the and sen- attorney, reason an and I they had tence of the trial court. entirely up them that to them. told with decision make That PARKS, P.J., and JOHNSON and them, any charges as and far as BRETT, JJ., concur. against particu- them at that brought time, that I point lar I did know LUMPKIN, J., specially concurs. inves- have to continue with the would LUMPKIN, concurring: Judge, specially tigation to it with the District discuss (Tr. 493). Attorney. I concur in the Court’s decision in this matter write commend the trial Although agrees in its brief State professional manner in which judge on the allowing into that Arnold was coerced proceedings ac- were conducted. His room, “bug” not find living in her do during tions the course of trial ensured Ar- position supported in the record. as protection witnesses entirely police originally nold went to the defendant, provided an well as her volition. She herself did not own impartial the trier of fact forum which Details of the believe she was coerced. proper could reach a verdict based on Thurman’s conversation substance of law facts. arrange- to the agreed Arnold in which she living room “bug” ment her to install before us. Coer-
are not within record someone which pressure
cion is exerted on person rational
deprives the free and Skipworth, choice. United States Reginald Eugene TURNER Cir.1983). (10th Certainly the F.2d Cole, Ray Appellants, Kenneth raised the fact specter of coercion is sufficiently concerned Arnold was in the murder that involvement about her Oklahoma, Appellee. STATE of needed to Thurman whether she she asked F-87-743, F-87-744. Nos. attorney. there is retain an Appeals Court of Oklahoma. Criminal any suggest in the record nothing threat, proposed to Arnold or condition was Dec. 1990. deprive her of which be construed could Rehearing Denied Feb. a free and rational choice. introduc
Standing object to the Security tape is granted
tion of this Act.
of Communications
H53 *3 Burnett, County M. Oklahoma Pub- John Office, City, lic Defender’s Oklahoma for appellants. Gen., Henry, Atty. Wellon B.
Robert H. Gen., Poe, City, Atty. Asst. Oklahoma appellee.
OPINION LUMPKIN, Judge: Reginald Eugene Turner and by jury tried Ray Cole were Kenneth Firearms, Robbery with After convicted of Two or More Felo- Conviction of Former nies, in violation of 801, in the District Court of Oklahoma County, No. CRF-87-236. Case punishment of five hundred recommended (500) years imprisonment for each defen- according- court sentenced dant. sentences, ly. judgments From these appeal perfected. has been 22, 1986, November On the McDonald’sRestaurant robbed A City. Prospect South bus had of school children entered the load were served when the restaurant and co-defendant, a John- Appellants and third Crook,1 ny stepped Lee inside. Crook serving counter and de- walked behind opened. safe The man- manded that the Bell, for time us- ager, Charles stalled dummy on the combinations ing several pace safe. Dissatisfied with robbery, walked behind Appellant Turner pulled gun from counter and Opening the safe on waistband. Crook’s attempt, Bell informed the third Mr. thirty-three guilty Johnny pled and was sentenced Lee Crook 1. Co-defendant 3, 1987, Robbery charge prison. April Firearms, Felony of a Former Conviction After Appellants that compartment the inside the result of promises threats and made police. had a ten minute time it lock on and the opened could not be immediately. Turner In the assignment error, first grabbed quarters then rolls of which were Appellants contend that the trial court kept change in a rack inside the door failing erred in sustain motion in li- safe and Turner go told out to in admitting mine and into evidence their the front of the restaurant open previous felony convictions. We disagree. registers. cash grabbed Turner had prior felony Evidence conviction is money registers from two of the five impeach admissible a defendant’s credi young boy attempt when saw a to run bility Campbell once testifies. *4 Raising gun out of the restaurant. the 636 P.2d Title 12 head, yelled boy above his Turner for the O.S.1981, 2609, provides proof that get to back told into the restaurant and former may convictions be admitted into everyone floor; get to down the shout- evidence when the crime involves dishon ing robbery. Refusing that it was a to esty a felony. or is If felony, the crime is a comply, going Mr. Bell Turner “you’re told the statute further requires that the evi put
to have to down”. pointed me Turner probative dence have a value outweighing gun pulled the at him trigger and the but any prejudice appellant might suffer. The gun the did Mr. not fire. Bell then at- trial judge has wide in determining latitude tempted to tackle when he noticed probative the prior value of the convictions. standing at (Okl. Cole the front the Henegar jacket Cr.1985). counter with hand his left inside his is by discretion limited the guidelines pocket. by When set forth gun Turner lowered the and this Court in Robin (Okl.Cr. dropped side, son v. his his gun hand to the dis- 1987). charged also into See Hardiman the floor. Pieces of the floor P.2d 222 employees. Appel- struck two of the
lants then ran of the out restaurant. The record reflects that the second page against each Appellant information filed The Appellants were arrested on Decem- (2) prior two reflected convictions for arm- 16, 1986, taken ber and to the Edmond robbery. prior ed Additional convictions Department. Police After being advised of degree burglary, for second unauthorized rights City their Miranda Oklahoma larceny use of a motor vehicle and mer- Shahan, Detective Appellants Robert both alleged chandise from a were retailer their and waived confessed to com- against Appellant Cole. Prior to overrul- mitting robbery. Appellants the were limine, ing motion in trial court subsequently to the transferred Appellants heard both indicate their desire City Department, again Police where after privileges to waive their Fifth Amendment rights, their advised of Miranda testify and to take the witness to in stand they confessed a second time. This second behalf, against their own advise of videotaped played confession was for attorney. argued their counsel Defense Appellants at trial. Both waived Appellants prior that as both had armed privileges Fifth testi- their Amendment convictions, great robbery the risk was that fied at trial. that Turner stated against prejudiced would be participate did not in the robbery, he but similarity because of the of the babysitting. at home He testified past current offense and the offense. making any did not remember incrimina- ting concerning robbery, recognized statements In Robinson we that a if special previous he had it due to inducements and problem but exists when police. substantially coercion sim- same Cole or ilarly any denied in rob- participation same as that which the defendant is on situations, bery, stating that he was home with his trial. “In these there exists a girlfriend. any pressure jurors He testified that incrimina- on the to think that if the ting may once, again.” statements he have made were did it do it defendant could hearing. in a nary entering P.2d at This author noted Prior to the court-
specially concurring opinion preliminary hearing, for the Hardiman room balancing test amplification Ap- into courtroom saw the looked provided the neces- in pellants, presence set forth Robinson handcuffs and sary safeguards ensure that if a defen- deputies, orange jail two cov- dressed convicted, through it will be dant on trial is they eralls. note were him guilty the evidence which shows only people orange courtroom in in the Prior charged. 798 at 225. offense they were the black coveralls are the or similar convictions which same prelimi- males in the Prior to the room. will to the offense on trial be reviewed hearing, nary Mr. Bell had not been shown scrutiny. presumption preju- There is a line-ups exposed any photographic or been this nature dice as convictions of line-up. a formal prosecu- must overcome which Merely seeing accused testifies, However, if the defendant tion. witness arrives for the courtroom when the subject impeach- testimony his will be preliminary hearing does not constitute jury with an provide ment which suggestive prejudicial unduly pretrial *5 picture past. of his criminal accurate State, v. Grigsby confrontation. case, present the value probative In the 1188, (Okl.Cr.1972). seeing 1194 any prej- prior outweighs of the convictions clothes, jail accused in hand the dressed Both upon Appellants. udicial effect the accompanied by deputies and makes cuffed they not com- Appellants testified that did particular viewing unnecessar pre-trial prior robbery. mit the The convictions so, this re ily suggestive. Even does not credibility of this de- were relevant to the in- of the sult automatic exclusion Therefore, our fense. in accordance with by Mr. eourt identification Bell. Cole v. Hardiman, in the court did decision trial State, 358, 766 P.2d 359 overruling in the not abuse its discretion invali courtroom identification not be admitting prior the motion in limine and if it can that it was dated be established convictions. independently totality under of reliable the Further, argues that re Appellant inquiry be the circumstances. Id. Our trial when the versible error occurred under all the circum comes “whether stances, whether he considered judge procedure gave failed to state the rise suggestive of dishon prior irreparable the conviction as crime to a substantial likelihood of balancing Brathwaite, the test. esty or he used whether misidentification.” Manson v. noting 98, 2249, Although 107, 2243, is correct Appellant 97 S.Ct. 53 432 U.S. com (1977); was without Bryson that the motion overruled 140 711 L.Ed.2d v. ment, Appellant’s argument 932, of reject (Okl.Cr.1986), P.2d 934 rt. denied ce Appellant 1121, 1986, and remind reversible error 106 S.Ct. 90 L.Ed.2d 476 U.S. (1986). reliability error from a silent presume determining we will not In the 107, record. See Ellis an in-court we must consid of identification (Okl.Cr.1990); (1) Claunch the witness to opportunity er: the Moreover, 850, crime, as time view the criminal at the of the felony, attention, (3) clearly was degree the the the witness’ further under which accuracy prior description we need not debate of the witness’ judge. category placed criminal, (4) certainty it the the the level of assignment confrontation, upon foregoing, this Based and demonstrated at of error is denied. crime the con the time between the and frontation. Id.
Appellants as contend in the second case, Mr. erred In the Bell observed signment of that the trial court instant error approximately five Appellants for failing suppress the in-eourt identifica both good lighting ar minutes conditions. Appellants made Bell. under tion Charles throughout the rob- tainted Mr. Bell was attentive gue that identification was descrip- bery provided police Appellants prelimi- his view the at
H57 tions Appellants. Appellants Arps, of the He identified the and Patricia Cole’s Turner, girlfriend, gun by Appellant explain- during early were arrested carried 16, morning hours December ing investigator been a he had criminal Department. taken to Edmond Police government with the States United pre-trial hearing, At the motion Detective retiring. before police Shahan testified that once at The first time Mr. Bell identified the station he each Appellant, advised individu- Appellants preliminary hearing ally separately, of his constitutional February time, held on 1987. At that rights. Appellant Each indicated that he Mr. Bell identified Turner as the rights understood his and wished to waive first individual into the restaurant. How- speak them and with the Handing officer. ever, at the trial held on April form, each waiver Shahan tes- 1987, he identified Turner as second tified that he had each verbally trial, gun. individual held the At who Mr. read to him signing back before Bell repeatedly testified that his identifica- Appellants signed waiver. Both tion of Appellants was based on his waiver. He further testified that neither memory men at time of the Appellant appeared to be disoriented or robbery, stating he would “never for- any type drugs under the influence of (Tr. 62). get they what look like.” Al- in way alcohol. Shahan stated that no though may have confused the Appellants threatened or coerced the role preliminary at the sign the waivers. hearing, consistently Ap- identified both waivers, signing After Shahan pellants participants robbery. as the proceeded question about *6 light emphatic In trial of Mr. Bell’s identifi- robbery. Appellants the Both confessed to Appellants, cations of month the two time participating robbery. in the Later that lapse the between offense and the first day, Appellants were transferred to the inconsequential. identification is Based on City Department. Police Sha- the we foregoing, find that Mr. Bell’s in- again Appellants han advised the of their court Appellants identification of the was rights and received verbal waivers from product not the of the preliminary earlier Appellant. Appellant again each Each re- identification, hearing the but was result of participation robbery. counted his his of Appellants during observations the videotaped. These second confessions were State, the robbery. See v. 778 The were Tibbetts not informed that 925, they (Okl.Cr.1989); being videotaped. P.2d were McCaulley 928 v. Shahan stat- Appellant State, 1124, appeared ed that neither to 750 P.2d 1128 excessively tired disoriented while Therefore, trial properly court allowed police questioned City at the Oklahoma sta- to make in-court identification trial, tion. At testified that Patri- Shahan Appellants. assignment of of error is Arps cia was arrested the Edmond Po- therefore denied. upon receipt lice but that released her robbery hold from another state on Appellants allege in their third as charges. signment that the of error erred failing suppress their to grant to motion pre-trial Both Appellants testified at the
the confessions. contend that hearing. Appellant Turner stated voluntary, were confessions not but crime reason he confessed to the product were the coercion induce tired and because because Sha- Specifically, Appellants argue ment. promises han’s he would his influ- use that Detective stated that he would Shahan get light Appellant sentence if ence Attorney use his with the influence District cooperated. also that he stated did get light they them a sentence if would signing rights waiver remember cooperate promised and that Shahan to re presented signed form. When cross-examination, during lease Cole’s mother’s car and waiver form girlfriend. signature. Appellant Cole’s Turner denied his 1158 similarly cordingly, assignment
Cole testified he was coerced this third of error is denied. confessing sleep, into a lack would re- promises from Shahan that he error, Appel- assignment In the final lease his mother’s car and that he would let lants contend that the trial court erred in Arps go filing charges without Patricia instructing general as to the en- did against her. also not remember Cole provisions hancement of the Habitual Of- signing the form and denied his waiver O.S.1981, 51, 21 pursuant fender Act § copy of signature presented when with a specific provi- rather than the enhancement considering the conflict- the waiver. After 801, pertain- of 21 sions testimony, judge ing the trial overruled ing robbery with firearms. suppress
motion to
and admitted the con-
objection
concedes that no
to the instruc-
fessions.
tions was
at trial
that no re-
raised
offered,
quested
were
instructions
but ar-
volun-
The ultimate test of the
gues
properly
failure to
instruct
tariness of
is whether it is the
confession
was fundamental error.
essentially
and uncon
product of an
free
by maker.
In determin
It is
when
strained choice
its
well established that
object to
ing
maker’s
was over defendant fails to
instructions and
whether the
borne,
totality
requested
fails to submit written
the court must look
instruc
tions,
circumstances,
given
where
instructions
ade
surrounding
both
quately
subject
inquiry,
cover the
de
matter
characteristics of the accused and the
State,
any error is waived.
v.
732
Battles
interrogation.
v.
tails
Schneckloth
480,
(Okl.Cr.1987);
Bustamonte,
218,
2041,
Maghe
P.2d
v.
412 U.S.
93 S.Ct.
State,
433,
(Okl.Cr.1980);
(1973);
Kel
Young
H59 gered. pun- If State seeks to enhance based on the decision in Ellis ishment, in compliance it must be done with type that this of is of a error fundamental provisions specific of Section 801 rather modify nature must the sentence to general provisions than the enhancement correct the error. Based Id. on the fore- Therefore, Section 51. was not going, Turner’s sentence is mod- applied instructed on the law as it (400)years ified to four hundred under the Turner. terms set forth in 21 § Accordingly, judgment and sentence is must We now determine if the er AFFIRMED as MODIFIED. ror requires was harmless or if the error pre modification of the We sentence. have LANE, V.P.J., BRETT, J„ concur. viously determined that modification is a proper remedy if through error occurs in JOHNSON, J., specially concurring. structions the court which utilize improper punishment provi PARKS, enhancement P.J., part/dissents in concurs sions, and that type error of this is of a part. in Novey fundamental nature. JOHNSON, Judge: special concurrence. (Okl.Cr.1985). Therefore, I majority concur the result of the due to the trial failure court’s to instruct opinion herein as it relates to this case but punishment provisions as point I, need to to Proposition out as I 21 O.S.Supp.1982, this Court re is § upon concur based stare decisis. So that quired modify punishment. clear, my position again I my refer to The amount of the be modification is to concurring in opinion the result in Hardi Ap- determined facts case. (Okl.Cr.1990) man v. pellant Turner has previously been convict- and I would limit admissibility of evi (2) separate ed of Robbery two offenses of prior dence to the as with Firearms. The provi- enhancement prior number convictions where there is sions 21 O.S.Supp.1982, become similarity past between the crime and applicable upon sep- conviction of the third charged crime. As to other crimes arate and distinct of Robbery offense impeachment purposes, no limitation dangerous weapon Firearms or other under placed upon Again, my should be same. provisions Section 801. The Section position is clearly written Hardiman. require a minimum sentence of ten years, offender serve a minimum PARKS, Judge, Presiding concurring in ten calendar part/dissenting part: probation, pa- subject sentence *8 role, statutory by or I other reductions. The concur the decision reached O.S.1981, However, provisions of 21 majority appellant enhancement as to Cole. I 51(B), disagree forth deci- strongly majority set that the minimum § (20) twenty years modify appellant is sion sentence when the Turner’s sentence (500) is for a five subsequent conviction third of- from hundred four hundred (400) addition, O.S.Supp.1986, years. fense. In 991a(B),provides persons being sen- § majority properly concludes the subsequent felony tenced for third or an gave erroneous enhancement of eligible shall proba- not punishment appellant as to instruction tion. was this error of a funda- case, error, jury pun-
In Despite recommended mental nature. the ma- (500) five years jority ishment of hundred when reasons the “recommended sentence possible speaks jury instructed minimum sentence for itself was twenty (20) (10) years by instead of ten influenced the minimum sentence autho- years. (Maj. 1159). speaks analysis The recommended sentence rized.” sim- reading jury ply for itself that the was not influenced does not a close survive minimum sentence authorized. Ellis v. Ellis, improperly was likewise In that the defendant’s maximum
instructed (20) twenty years in ac-
punishment was O.S.1981, 51(B). We
cordance with §
concluded, however, applicable
statute was 21 which (10) year minimum sen-
provides for a ten Accordingly, modified de-
tence. this Court (60) sixty
fendant sentence from Ellis’ (10) years imprisonment. The
years to ten majority in
analysis proposed equally
instant available Ellis. case was reasoning I conclude that such rejected when we implicitly therein
stated: impossible
“Since it to determine what proper have under would done
instruction, are to affirm ... unable Novey v.
appellant’s sentence.” (Okl.Cr.1985). Thus, the trial court to
the failure of punishment jury regarding
instruct
pursuant requires this to Section 801 modify punishment imposed
Court al-
upon appellant to the minimum
lowed under Section 801. added).
Ellis,
(emphasis
It is unreasonable that fundamental na-
conclude that error of a occurred, controlling in
ture that Ellis is case, yet pretend that
the instant modi- appellant
fying Turner’s sentence to four an years
hundred “correct” such error. appellant Turner’s sentence modify
I would
from five hundred ten
years, as mandated Ellis. *9 Application Lu
In the Matter of ANDERSON,
ther of Habeas Writ Mandamus,
Corpus Petitioner.
No. H-90-765. of Oklahoma. Appeals
Court Criminal
Dec.