Callins v. State, A--16771

• Citation: 500 P.2d 1333
• Decision Date: 06 September 1972
• Docket Number: No. A--16771,A--16771
• Parties: Charles CALLINS, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1333

500 P.2d 1333

Charles CALLINS, Appellant, v. The STATE of Oklahoma, Appellee.

No. A--16771.

Court of Criminal Appeals of Oklahoma.

Sept. 6, 1972.

Don Anderson, Public Defender, Oklahoma County, for appellant.

Larry Derryberry, Atty. Gen., Yvonne Sparger, Asst. Atty. Gen., for appellee.

OPINION

SIMMS, Judge:

Appellant was convicted in the District Court of Oklahoma County, Oklahoma, of the crime of Rape in the First Degree, After Former Conviction of a Felony, in a two-stage proceeding, and sentenced to the term of One Thousand Five Hundred (1500) Years in the state penitentiary, in accordance with the jury verdict. From the judgment and sentence in the case, appellant has perfected a timely appeal to this Court.

At trial, the alleged victim of the rape testified she was 19 years of age. On September 19, 1970, she left home for work about 6:15 A.M., driving a 1969 model light blue Mustang with a dark blue vinyl top. She parked at Third and Broadway in Oklahoma City about 7:45 A.M., and as she was getting out of her automobile, was approached by a man whom she identified in court as the defendant. The man produced a knife with a five or six inch blade and ordered her back into the car, threatening to cut her head off if she did not obey. He told her to give him her car keys, that two persons were chasing him, that he wanted to get to his side of town and would then let her out. Appellant drove east on Third Street, passing Washington Park, finally reaching Coltrane Road, which the victim recognized by a road sign. Appellant drove on Coltrane a short distance, then turned off into something like an oil lease, 'just kind of woody,' crossing a cattle guard. Appellant pulled victim out of her automobile, and told her take off all her clothes. She refused, whereupon appellant removed her clothes. With the knife at her throat, appellant then laid her on the hood of the car, covered her face with his shirt, and committed an act of sexual intercourse upon her. He then drove off in the victim's car saying: 'Well, if you tell the cops . . . I'll come and I'll kill you' (Tr. 62). She dressed, started walking down the highway when she was picked up by a male passer-by, who took her to a filling station and called the police. When the officers arrived, she directed them to the scene of the assault, then they took her to the hospital. She attended a police line-up and pointed out defendant as the one who had raped her. When she later got her car back, it had been painted yellow.

Officer Lippe, of the Oklahoma City Police Department, testified that on September 19th he answered the call from the filling station and talked to the victim, who took him to the scene of the assault. He then took her to the hospital. He obtained the tag number of her automobile, YB--3264, and a stolen car report was issued.

William Robert Prescott, III, testified that he was an insurance adjustor and in October, 1970, learned that the victim's automobile was impounded at Northwest Wrecker Service. He inspected the automobile for damage and found State's Exhibit's numbered 1, 2, 3, and 4, on the floorboard of the automobile. State's Exhibit Number 1 was an Oklahoma Highway Patrol citation issued to a Melvin R. Cizek, for improper stopping on a roadway of a 1969 Ford 2-dr. bearing Oklahoma license YB--3264. State's Exhibit Number 2 is a photograph. State's Exhibit Number 3 was a receipt issued by a dry cleaning establishment to a Charles Callins. State's Exhibit Number 4 is a wrecker service invoice, reflecting that a 1969 Mustang bearing tag number YB--3264 was pulled in from a location on Interstate--35. I--35 is the location where the Oklahoma Highway Patrolman issued the citation. Witness Prescott testified the exhibits were delivered to the police. That when he observed the automobile, the body was painted yellow. The tag number and automobile serial number checked to the victim.

Trooper Johnson of the Oklahoma Highway Patrol, testified that on October 3, 1970, he was patroling Interstate--35, North, and had occasion to issue a citation, State's Exhibit 1, for improper stopping on the roadway to one who had a driver's license bearing the name of Melvin Cizek. He identified defendant in court as the one who produced the Cizek driver's license. The car license was YB--3264 and the car a 1969 Mustang, with dark vinyl top over a yellow body.

Officer Hooten, of the Oklahoma City Police Department, testified that he investigated the case and caused charges of rape and robbery to be filed against defendant, after which, on October 14, 1970, defendant's mother brought defendant to Hooten's office 'to get it straightened out.' (Tr. 96)

Appellant did not testify or offer evidence in his behalf.

Appellant's assertion of error I, that the sentence of 1500 years constitutes cruel and unusual punishment; III, the sentence deprives defendant of equal protection of the law; and IV, the 1500 year sentence is an encroachment upon the executive branch, were each discussed in depth in Fields & Phillips v. State, Okl.Cr., 501 P.2d 1390, 43 O.B.J. 2109, where we held a 1000 year sentence for the crime of rape in the first degree, after former conviction of a felony, was not cruel and unusual, in its constitutional sense. Also, that such a sentence does not deprive a defendant of equal protection of the law, and was not an encroachment upon the executive authority of the state.

Appellant's fifth assertion of error complains of prejudicial inflammatory argument to the jury on the part of the prosecuting attorney. An examination of the final arguments of prosecuting attorney, as contained in the trial transcript, reflects that no objection was made by defense counsel to any portion of the closing argument made by the district attorney. The rule of law is well settled in Oklahoma that the accused's counsel must not only object to improper statements of the district attorney in his closing argument, but he must move the trial court to exclude such remarks from the jury and instruct them not to consider them for any purpose, unless remarks are of such character that error would not be cured by withdrawal thereof. Daves v. State, 77 Okl.Cr. 343, 141 P.2d 603. An objectionable statement made by the prosecution was not called to the attention of the court, is not a matter that could be presented for the first time in a motion for new trial and in petition in error and briefs upon appeal. Robison v. State, Okl.Cr., 430 P.2d 814.

Appellant's assertion of error II is that the 1500 year verdict is excessive. The subject of excessive sentence was thoroughly discussed in Fields, supra, wherein we pointed out that sentences beyond the normal span of an appellant's life expectancy were not so excessive as to shock the sense of mankind. Recognizing, as well, that the sentence imposed by the jury in the instant case is, for all practical purposes, a life sentence, and in view of the Pardon and Parole Board's policy, is the same as set forth in their Rules filed with the Secretary of State, we find the jury's verdict was proper and should stand.

The judgment and sentence is, and the same is hereby, affirmed.

BRETT, J., specially concurring in part, dissenting in part.

BUSSEY, P.J., specially concurring.

BRETT, Judge (concurs in part, and dissents in part):

I concur that the judgment in this case should be affirmed, but I cannot agree that the 1500 year sentence should be left undisturbed. I believe the sentence is patently excessive.

While...