Watkins v. State
717 P.2d 1159
Okla. Crim. App.
1986
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*1 could, however, reading verdict, further stated that from the individual slight weight jurors. drink amount for stimu- State, (Okl. Green v. 281 P.2d 200 purposes Cr.1955). lation since he lost almost 100 The testimony of the offending pounds surgery. due Based on the individual alone is enough to satisfy the appellant’s testimony on direct examina- State’s burden to demonstrate the lack of tion, prosecutor the had reasonable cause prejudice. alternative, In the the State truthful, appellant to believe the was not may meet appeal by its burden on showing since, at the time of his arrest on the on the record that there prejudice. was no charge, instant the li- driver’s State, (Oki.Cr. Wilson v. 534 P.2d 1325 suspension cense was under for failure to 1975). If, upon examination of the record Therefore, submit to a chemical test. Court, before this this lack prejudice of assignment is without merit. evident, then the State’s disprove burden to prejudice against the accused is satisfied. Appellant alleges also reversible error Having reviewed the record and tran- assignment his second of error based on script before this are of the the trial court’s refusal to declare a mis- opinion that there existed sufficient evi- bailiff, during the jury when delibera- jury guilty dence to sustain a verdict of tions, jury entered and remained the Driving the offense of Under the Influence room two or three minutes con- and of Alcohol. This of error is jurors versed with the behind closed doors. therefore without merit. Immediately upon being notified of the incident, Accordingly, foregoing for the the trial court conducted an above hearing. judgment evidentiary Joyce Hooper, the tri- and sentence of the trial bailiff, court is AFFIRMED. al court’s testified that she returned jury pass to the room to a note from the judge. Hooper Ms. stated that she went to room, it, BUSSEY, J., jury opened

the door of the concurs results. “Knock, knock, in”; coming said I’m

whereupon gave she went in and judge

the answer from the and told them to paper. Hooper save the Ms. testified fur- ther that she closed the door and asked the Roger WATKINS, jurors if wanted Cokes. After v. discussion, she took their orders and The STATE left. Counsel for the State and for the appellant stipulated Hooper’s who corroborated Ms. of Oklahoma. testimony as to the amount time she had April remained in the room behind closed doors. long

This Court has held that sanctity under circumstances where the bailiff, room is violated State will bear the burden to demonstrate prejudiced. was not State, (Okl.Cr.1968). v. 448 P.2d 272 Scott (Oki.Cr. State, 644 P.2d 560 See Sheker 1982); State, (Okl. Farrell v. Cr.1973); P.2d 894 Keahbone v. level, At the trial this bur proper testimony

den must be met individual, offending both the and after the *2 Schay, Appellate

E. Alvin Public Defend- er, Norman, appellant. for Gen., Turpén, Atty. Hugh

Michael C. A. Atty. Gen., Manning, City, Asst. Oklahoma appellee.

OPINION

BUSSEY, Judge: appellant, Watkins, The Roger Calvin a/k/a, Watkins, Rodger Rog- a/k/a Hilbert, er Norman was two Delivery counts Unlawful of Controlled Drugs, Former After Conviction Felo- ny, in Texas District Case CRF-83-79, No. and was sentenced to years’ imprisonment to run con- secutively each of two on counts. From ap- he peals. error,

As his sole argues that the excessive sentence because were so inflamed by a reference to hav ing been in involved other criminal activit y1 that the trial court’s admonishment2 did not the prejudice. erase We cannot agree. The trial court’s admonishment to following Honor, may 1. A state made the MR. ap- witness reference BORING: Your appellant's proach to been involved in other the bench? activity: criminal you THE COURT: think should. you Q. ap- On went given court, those occasions to [that The admonishment in pellant's pertinent house] there criminal part, [sic] was as follows: activity you you felt should record relation THE gentlemen COURT: Ladies and to this defendant? jury, question or two has made Yes, A. there was. sug- witness Mr. Wood with those answers Q. you gested might Did make notes of those? there have been im- A. propriety. Yes. you At this time it is Q. In relation to At this consider it. this time defendant? the defendant is being charges. A. In relation to tried on the two You are defendant there was just another. consider the said about consider the remarks of not to PARKS, Judge, concurring dis- counsel, usually cures an er or a senting is of such a nature after ror unless it I concur in the results of this except case considering ap that the error the evidence for the treatment of the comments made by determined the verdict. pears to have Attorney District Don Wood set forth in (Okl.Cr. State, 513 P.2d 1300 Kitchens v. opinion by Judge Bussey in footnote 1. *3 1973). appel The record reveals that the It is clear that this line of questioning admitted that he manufactured a con lant attempt was an to reveal evi- dangerous by mixing substance trolled dence of other acts or other Molly,” as a “Black amphetamine, known crimes allegedly committed appel- inhalers; hydrocloric with acid and Vicks lant, clearly in an effort to prej- inflame or separate occasions he admitted that on two jury. They udice the way are in no “fleet- substance, determined he sold this ing” comments, but were calculated to cir- methamphetamine, to chemical tests to be cumvent the rules of proper evidence and deputy Bradley, an undercover sher Owen type conduct. This of questioning is Office, iff the Texas Sheriffs patently improper, and could have caused testimony corroborated the fact that whose reversal had the trial properly court not sales; drug such and he there were two disregard admonished the it. having previously admitted Considering prejudicial So felony. this overwhelm the District Attor- ney’s appellant’s guilt, remarks that I ing evidence of the to would find the sen- fleeting tence gether with reviewed the excessive because of the of, prejudicial impact of complained questioning. comment this Court finds would prejudiced (15) nor reduce the sentence that it neither af to fifteen years imposed; and we find for each count to run concurrently. fected the sentence thorough that the trial court’s admonish may

ment cured error which have oc Moreover, this Court does not curred. power modify have the a sentence unless conscientiously say we can that under all the facts and circumstances the sentence is DURANT, Kabin so excessive as to shock the conscience of the Court. Faites v. STATE light In of the overwhelm

ing guilt, say cannot evidence of year to run con committed after for

secutively, for felonies Oklahoma. felony so mer conviction of a excessive April 25, 1986. as to shock the conscience of this Court Rehearing May Denied provided by since it is within limits See, O.S.1981, 51(A)(1), 21 statute. § O.S.1981, 2-401. §

For the above AF- appealed from are and sentences FIRMED.

PARKS, P.J., concurs in dissents in improprieties. mind, You are not your to consider can’t erase that from raise your Wood,

that at all in any pur- deliberations your you may hand. Mr. continue. pose. purpose. No You have to juror erase that The record will reflect no raised her or your anyone minds. Is there who feels his hand.