Ashinsky v. State, F-85-601

• Citation: 780 P.2d 201,1989 OK CR 59
• Decision Date: 15 September 1989
• Docket Number: No. F-85-601,F-85-601
• Parties: Seymour ASHINSKY, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 201

780 P.2d 201

Seymour ASHINSKY, Appellant, v. STATE of Oklahoma, Appellee.

No. F-85-601.

Court of Criminal Appeals of Oklahoma.

Sept. 15, 1989.

Rehearing Denied Oct. 16, 1989.

An appeal from the District Court of Beckham County; Gary P. McGinn, District Judge.

Seymour Ashinsky, Appellant, was tried by jury and convicted of Robbery With Firearm (21 O.S.Supp.1982, § 801) and Shooting with Intent to Kill (21 O.S.1981, § 652) in Case No. CRF-84-58 in the District Court of Beckham County, the Honorable Gary P. McGinn, District Judge, presiding. The jury returned a verdict of guilty on both counts and set punishment at fifty (50) years imprisonment for Robbery with Firearm and five (5) years imprisonment for Assault and Battery with a Dangerous Weapon. Judgment and sentence was imposed in accordance with the jury's verdict. We AFFIRM.

David Autry, Asst. Appellate Public Defender, Norman, for appellant.

Robert H. Henry, Atty. Gen., M. Caroline Emerson, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

LUMPKIN, Judge:

Appellant, Seymour Ashinsky, was tried by jury and convicted of Robbery with Firearm (21 O.S.Supp.1982, § 801) and Shooting with Intent to Kill (22 O.S.1981, § 652) in Case No. CRF-84-58 in the District Court of Beckham County, the Honorable Gary P. McGinn, District Judge, presiding. The jury returned a verdict of guilty on both counts and set punishment at fifty (50) years imprisonment for Robbery with Firearm and five (5) years imprisonment for Assault and Battery with a Dangerous Weapon. Judgment and sentence was imposed in accordance with the jury's verdict. We affirm.

On February 25, 1984, at approximately 8:20 a.m., the Appellant stopped Sharon Burham, frozen food manager of Puckett's IGA in Elk City, Oklahoma, near her department in the store. Appellant asked Mrs. Burham where he could find O.V. Kelly, the store manager, and he was directed to the lounge area at the back of the store. Upon entering the lounge, Appellant asked for "O.V." When Kelly identified himself, Appellant produced a blue .44 caliber revolver from his pocket. Appellant told Kelly they were going to the store's office and put the money in the sack Appellant was holding. As they walked toward the office, Appellant told Kelly they would leave in Kelly's car and cautioned him to not do anything funny.

Upon entering the office, Appellant told store bookkeeper, Carolyn McHenry, to fill his green garbage bag with folding money only. As McHenry put money in the sack from the vault, her drawer, and the cash register trays, the trays fell to the floor. Appellant then demanded the money on the desk which McHenry had been counting. Appellant mumbled a curse and pointed his gun at McHenry. Kelly, realizing his derringer was in his back pocket, drew and pointed it at Appellant. A struggle followed, resulting in Kelly's gun discharging in the ceiling and Appellant's gun discharging into Kelly. Appellant took the bag of money and fled from the store. Kelly, McHenry, Burnam and another store clerk all identified Appellant at trial as the robber.

Appellant testified that he was a four-time convicted felon, was in Tulsa the day after the robbery, and denied committing the robbery. Sean Harper, Appellant's companion, testified that he and Appellant left Elk City between 7:30 and 8:00 A.M. on February 25, returned about one-half hour later to turn in a motel key, then left again, stopping in Tulsa that afternoon.

Appellant first contends that the trial court erred in refusing to allow witness Monty Still to testify to a conversation concerning the hearsay statements of a man identified only as "Monk" in which "Monk" allegedly claimed he had been casing Puckett's IGA as a possible source of money with which to buy drugs. Defense counsel stated that "Monk" could not be found to testify, and "Monk's" full name was never disclosed.

The admissibility of evidence is within the discretion of the trial judge, and unless a clear abuse of discretion is shown reversal will not be warranted. Palmer v. State, 719 P.2d 1285 (Okl.Cr.1986). Hearsay testimony is admissible if the declarant is unavailable, the statement made was adverse to the declarant's penal interest, and the statement tends to expose the declarant to criminal liability and is offered to exculpate the accused, and corroborating circumstances clearly indicate the trustworthiness of the statement. Title 12 O.S.1981, § 2804(B)(3). We find that Appellant has failed to establish any of the criteria required for admissibility under this rule or that "Monk" was a real person. The record discloses that no testimony was given regarding who "Monk" was, why he was unavailable, or the efforts made to locate him. Nor can these statements be adverse to "Monk's" penal interest, since there is nothing in the record to indicate that he intended to commit a crime, he was only identified by this nickname, and no description, age, habitat or acquaintances were given which might lead to his identity.

In light of the record we conclude that the trial court did not abuse its discretion in excluding the alleged "Monk" statements in the absence of complete identity of the declarant.

Appellant's second proposition of error is that the trial court erred in giving Instruction No. 16 relating to the law on alibi. There was no objection to this instruction by Appellant at the time it was given. In fact, defense counsel stated, "We're satisfied with the instructions." Ordinarily this Court would consider this allegation no further. Since an alibi instruction is not provided in the Oklahoma Uniform Jury Instructions--Criminal, however, we will discuss it in the instant case. This does not necessarily mean the instruction given was prejudicial to the Appellant or that it constituted reversible error. The instruction complained of reads as follows:

Testimony has been presented to show that at the very times of the commission of the crimes charged, the defendant was at another place so far away or under such circumstances that he could not, with ordinary exertion, have reached the place where the crimes were committed so as to have participated in the commission thereof.

If you find from your consideration of all the evidence presented that the defendant was at this other place at the time the crimes were committed your verdict in both cases must be Not Guilty.

The second paragraph of this instruction, Appellant contends, is error. The State argues that this instruction does not shift the burden of proof; however, neither Appellant nor the State cite the controlling authority on this point.

This Court has firmly stated in numerous instances that the burden of proof is not shifted to the defendant in the defense of alibi. Cortez v. State, 415 P.2d 196 (Okl.Cr.1966); Stuart v. State, 35 Okl.Cr. 103, 249 P. 159 (1926); Shoemaker v. Territory, 4 Okl. 118, 43 P. 1059 (1896); Wright v. Territory, 5 Okl. 78, 47 P. 1069 (1897); Thompson v. State, 6 Okl.Cr. 50, 117 P. 216 (1911). All that is demanded of a defendant who presents an alibi defense is that he show a state of facts which creates reasonable doubt of his presence at the time and place where the crime was committed. Newbury v. State, 695 P.2d 531, 537 (Okl.Cr.1985).

Under this instruction the jury was directed to find the Appellant not guilty only if the evidence showed he was at a place other than where the crimes were committed, and this, standing alone, impermissibly shifted the burden of proof from the State's obligation to prove the Appellant was at the scene of the crime when it took place. We cannot give this instruction our approval. We find that this instruction should be discontinued in favor of the accepted instruction set forth in Stuart v. State, 35 Okl.Cr. 103, 249 P. 159 (1926). Accord Cortez v. State, 415 P.2d 196 (Okl.Cr.1966). The alibi instruction approved in Stuart is as follows:

The defendant has interposed in this case as one of his defenses what is known in law as an alibi. That is, that the defendant was at another and different place at the time of the commission of the crime charged. The law is that such a defense is proper and legitimate and the jury should consider all of the evidence bearing upon this point whether introduced by the state or the defendant, and if after a careful consideration of all of the evidence in the case the jury entertain a reasonable doubt as to whether the defendant was present at the time and place where the crime was committed, if it was committed, then and in that event the jury should give the defendant the benefit of the doubt and acquit him.

35 Okl.Cr. at 112, 249 P. 159.

While the instruction given was not complete, we must consider the jury instructions as a whole to determine if the totality of the instructions fairly and accurately state the applicable law. Nunley v. State, 660 P.2d 1052 (Okl.Cr.1983). The jury was informed in Instruction No. 1 that the instructions must be considered as a whole. The jury was instructed in Instructions Nos. 2, 11 and 13 that it must be convinced of the Appellant's guilt beyond a reasonable doubt, each instruction emphasizing the State's burden of proof several times. Instruction Nos. 11 and 13 specifically state that if the jury found that the Appellant's defense caused the jury to have a reasonable doubt that the Appellant was guilty, then the verdict had to be not guilty. We find that while the incomplete instruction did not address the burden of proof, its language was not as strong as that in cases reversed by this Court. Shoemaker v. Territory, 4 Okl. 118, 43 P. 1059 (1896); Wright v. Territory, 5 Okl. 78, 47 P. 1069 (1897); Thompson v. State, 6 Okl.Cr. 50, 117 P. 216 (1911). We therefore do not deem this instruction to be reversible error in the instant case where it is evident, on consideration of all instructions given, undisputed facts, and verdict of jury, that such instruction did not work to the prejudice of the Appellant or...