Brown v. State, A--17700

• Decision Date: 02 March 1973
• Docket Number: No. A--17700,A--17700
• Citation: 506 P.2d 1396
• Parties: Billy Don BROWN, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1396

506 P.2d 1396

Billy Don BROWN, Appellant, v. The STATE of Oklahoma, Appellee.

No. A--17700.

Court of Criminal Appeals of Oklahoma.

March 2, 1973.

Rehearing Denied March 15, 1973.

Red Ivy, Chickasha, for appellant.

Larry Derryberry, Atty. Gen., and Fred H. Anderson, Asst. Atty. Gen., and Kenneth L. Delashaw, Jr., Legal Intern, for appellee.

OPINION

BLISS, Presiding Judge:

Appellant, Billy Don Brown, hereinafter referred to as defendant, was charged, tried and convicted in the District Court of Grady County, Case No. A--17,700 for the crime of Assault and Battery. He was to serve a term of thirty (30) days in jail and a fine of $100.00 in accordance with the verdict of the jury; twenty (20) days of the jail time was suspended with the remaining ten (10) days in jail to be served on Saturdays and Sundays for four (4) weeks. A timely appeal has been perfected to this court.

Briefly stated, the facts are that on Friday, July 16, 1971, in Chickasha, Grady County, Oklahoma, David Michael Hamberlin, age fourteen, and Bruce Carlton Brown, son of the defendant, became involved in a fight with each other. The defendant was present at the time and became involved in the altercation. The nature of defendant's involvement is the central issue of fact in the case.

Defendant contends that his involvement was limited to removing a knife and a section of steel reinforcement rod from the hands of David Hamberlin. Other than in the removal of these objects, the defendant denies touching David Hamberlin.

The state contends that subsequent to taking the steel rod from David Hamberlin the defendant struck and injured David Hamberlin with the rod.

Both the defendant and the state introduced testimony from several other boys who had been present at the time. In addition, both the defendant and David Hamberlin testified. The testimony given by the various witnesses revealed a direct conflict as to whether the defendant had or had not struck David Hamberlin.

The second major area of conflict to which both the defendant and prosecution produced conflicting evidence concerned whether David Hamberlin showed signs of injury subsequent to July 16.

It is first contended by defendant on appeal that reference by the assistant district attorney to a previous conviction of the defendant constituted fundamental error. The reference appears on page 99 of the trial transcript where the assistant district attorney asked the defendant in cross-examination if he had been convicted of passing a false and bogus check in Stephens County in 1968. No objection was made to the question and defendant answered in the affirmative. During the rest of the trial, no other reference was made by either defendant or the state regarding defendant's past criminal record.

As a general rule, it can be said that a defendant is only tried on the facts of the particular charge being tried. It is, however, a well established rule in this state that for purpose of affecting the credibility of the testimony given by the defendant as a witness, the prosecutor may question the defendant regarding any past conviction. It is important to note that the word 'conviction' is crucial. While a past conviction may be revealed during trial, reference to past arrests or changes may not be made. See Gable v. State, Okl.Cr., 424 P.2d 433 (1967); Byars v. State, 15 Okl.Cr. 308, 176 P. 253 (1918); Corliss v. State, 12 Okl.Cr. 526, 159 P. 1015 (1916); Watts v. State, 76 Okl.Cr. 362, 137 P.2d 268 (1943). In Byars v. State, supra, this court stated:

'The object of said question was, of course, to affect the credibility of the defendant as a witness, which might legally be done by his cross-examination, showing that he had been convicted of any crime; * * *'

In Brown v. State, Okl.Cr., 487 P.2d 963 (1971), this court said:

'The only guise for the questioning about other offenses was impeachment of the witness's credibility. As an exception to the general rule that a witness cannot be impeached by evidence of particular wrongful acts, conviction of a crime may be shown to affect credibility.'

Concerning this point raised as error by the defendant, it is further noted that the defendant failed to request that the trial judge instruct the jury that information concerning defendant's prior conviction could only be used in considering his credibility as a witness. While such a request would have been proper, this court held in French v. State, Okl.Cr., 501 P.2d 853 (1972), that failure to so instruct in the absence of a request to do so does not constitute reversible error.

Defendant's second proposition is a contention that the trial court's allowance of rebuttal testimony by the assistant district attorney constituted reversible error. Defendant produced a witness who testified that she had examined the victim on the day following the alleged assault and battery. Her testimony was to the effect that upon examining the boy purporting to be injured, she was unable to discern any injuries upon his back. In rebuttal, the assistant district attorney prosecuting the case requested and was granted permission by the court to take the stand. The prosecutor's sworn testimony was essentially limited to a statement that he had examined David Hamberlin's back two days after the defense witness's examination and had observed clearly visible injuries. The trial judge was quite careful in limiting the assistant district attorney's testimony to that specific area of rebuttal.

Defendant's opposition to this testimony centers not on the subject of the testimony, but rather on by whom the testimony was given. It is recognized by this court that the practice of the prosecuting attorney also acting as a witness, while not being prohibited in all instances is not to be encouraged. Evidence given by a prosecutor could easily carry more weight with a jury than the evidence of other witnesses. This is not to say, however, that a prosecutor will never be allowed to act as a witness. In Clark v. State, Okl.Cr., 370 P.2d 46 (1962), we stated:

'On the question of whether the county attorney may be a witness in a case he is prosecuting, the weight of authority is to the effect that he may.'

and;

'It appears there is no question that in a proper situation the county prosecutor is a competent witness.'

The question to be determined in the instant case is, then, whether the assistant district attorney's testimony was presented in a proper situation and whether such testimony denied the defendant a fair trial.

Clark v. State, supra, in which no reversible error was found because of the county attorney's testimony, cites the rule laid down in Robinson v. United States, 32 F.2d 505 (8th Cir. 1928), as being correct. The court in Robinson v. United States, supra, believed the the prosecutor had testified on an important and essential matter in that case and went on to say that the functions of prosecutor and witness should be disassociated. That court did say, though, as another part of the dicta, that if such a situation were the only question involved in the case, it might not warrant reversal.

The acceptability of such evidence is a matter that depends upon the particular facts, circumstances and effect of the prosecutor's testimony and requires...