Pickens v. State
| Decision Date | 24 February 1988 |
| Docket Number | No. F-85-658,F-85-658 |
| Citation | 1988 OK CR 35,751 P.2d 742 |
| Parties | Darren Lynn PICKENS, Appellant, v. STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
The appellant, Darren Lynn Pickens, was tried and convicted in the District Court of Creek County of the crime of Robbery With a Firearm in Case No. CRF-84-84 and was sentenced to seven and one-half (7 1/2) years imprisonment, and he appeals.
On April 20, 1984, a Zip Trip store in Creek County was robbed by two masked men. Subsequently, on May 2, 1984, a Creek County Deputy, was dispatched to the same store to check a report that a suspicious car had been circling the block. While driving to the Zip Trip store, he heard a radio dispatch from Tulsa County that a robbery of a convenience store had occurred in Sand Springs. The deputy radioed a Sand Springs officer and offered his assistance in pursuing the robbery suspects since he was near the location of the robbery. On his way to that store, he observed a vehicle matching the one reported at the Zip Trip pass him, and further observed that the person in the back seat ducked down and that the person on the passenger side was peeking over the dash. The deputy stopped the vehicle, and the occupants of the vehicle, Carla Ruff, appellant and Maurice Stewart, were interviewed. After Miranda rights were read to appellant, he waived them, and explained that he participated in the Zip Trip robbery in Creek County. Maurice Stewart also confessed.
For his first assignment of error appellant asserts that he was deprived of his right to a fair trial because the trial court admitted extensive and prejudicial evidence of an unrelated and uncharged offense. We disagree. The two robberies, the one in Tulsa County and the one at Zip Trip, were very similar. The two convenience stores were just across the County line, both were robbed by a man wearing the same mask and carrying the same shotgun. We find that the evidence of the Tulsa County robbery was admissible to prove the identity of the perpetrator or a common scheme or plan which embraces the commission of two or more crimes so related to each other that proof of one tends to establish the other. Bruner v. State, 612 P.2d 1375, 1377 (Okl.Cr.1980). Moreover, the trial court properly instructed the jury concerning the proper application of the other crimes evidence.
The appellant also claims that the State failed to comply with the ten (10) day notice requirement of Burks v. State, 594 P.2d 771 (Okl.Cr.1979) since the State only gave three (3) days formal notice prior to trial that it intended to introduce evidence of other crimes. Normally, the State has a duty to provide notice to a defendant ten (10) days before trial of its intention to introduce evidence of other crimes. Scott v. State, 663 P.2d 17, 19 (Okl.Cr.1983). "The purpose of this duty is to insure against surprise on the part of the defense and to allow time for the defense to be heard prior to the information being placed before the jury." Id. However, in this case, since appellant admitted being involved in the Tulsa County robbery, and knew that the State intended to introduce into evidence the same mask and gun used in both robberies, the element of surprise is not present and the purpose behind the notice requirement is not served. Consequently, this assignment is without merit.
Appellant next alleges that evidentiary harpoons made by Deputy Harrison deprived him of a fair trial. The characteristics of an evidentiary harpoon are: 1) they are generally made by experienced police officers; 2) they are voluntary statements; 3) they are wilfully jabbed rather than inadvertent; 4) they inject information indicating other crimes; 5) they are calculated to prejudice the defendant; and 6) they are prejudicial to the rights of the defendant on trial. Bruner v. State, 612 P.2d 1375, 1378-79 (Okl.Cr.1980).
The statement made by Deputy Harrison was in response to a question asked by the prosecutor. 1 Although the comment was improper, it was not sufficiently prejudicial to require reversal or modification. It was clearly in response to a question posed and not "out of the clear blue sky." Binder v. State, 717 P.2d 1143, 1146 (Okl.Cr.1986). Furthermore, we find that it was not wilfully jabbed nor calculated to prejudice to the appellant. Id. Since there is no evidence that this isolated remark prejudiced appellant, in light of the sentence imposed, this contention is therefore denied.
In his third assignment of error appellant contends that the trial court committed fundamental error in failing to give a cautionary instruction on eyewitness identification. However, since appellant failed to request a cautionary instruction, and since no fundamental error exists, this assignment was waived. Maghe v. State, 620 P.2d 433 (Okl.Cr.1980).
Appellant's fourth assignment of error is that the prosecutor made four comments concerning appellant's failure to testify. In all four comments the prosecutor stated that the evidence presented by the State was "uncontradicted." This Court has held that "when no evidence has been offered by the defense on a particular issue, it may be fairly said that the evidence is 'undisputed,' 'uncontradicted,' or 'unrefuted.' " Hays v. State, 617 P.2d 223, 230 (Okl.Cr.1980). Accordingly, we find no error.
In his final assignment of error appellant maintains that the cumulative effect of the errors occurring at trial mandates that this case be remanded for a new trial or...
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Romano v. State
...(Okl.Cr.1976). When no evidence is offered by the defendant, it is proper to comment on the uncontradicted evidence. Pickens v. State, 751 P.2d 742, 744 (Okl.Cr.1988). In closing argument both the State and the defendant have the right to freely discuss the evidence from their respective vi......
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Powell v. State
...to be heard prior to the evidence being placed before the jury. McClendon v. State, 1989 OK CR 29, ¶ 16, 777 P.2d 948, 952; Pickens v. State, 1988 OK CR 35, ¶ 4, 751 P.2d 742, 743. On the record before us, Appellant cannot claim he was surprised by this testimony. Appellant had the opportun......
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Williams v. State
...point to a common method of operation. ¶ 43 This Court has considered this very issue, in other robbery cases. In Pickens v. State, 1988 OK CR 35, 751 P.2d 742, the defendant was charged, in Creek County, with robbing a Zip Trip convenience store with a firearm. Two weeks later, the defenda......
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Marshall v. Rudek, Case No. 10-CV-436-GKF-TLW
...that case. The admission of this evidence is consistent with the analysis and admission of like evidence this Court set out in Pickens v. State, 1988 OK CR 35, ¶3, 751 P.2d 742, 743, and Williams v. State, 2008 OK CR 19, ¶¶36-39, 188 P.2d 208, 218-219.232 P.3d at 477. Further, the court not......