Coats v. State

• Decision Date: 28 November 1978
• Docket Number: No. F-77-752.,F-77-752.
• Citation: 1978 OK CR 130,589 P.2d 693
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
• Parties: Dillas Ray COATS, Appellant, v. The STATE of Oklahoma, Appellee.

589 P.2d 693

1978 OK CR 130

Dillas Ray COATS, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-77-752.

Court of Criminal Appeals of Oklahoma.

November 28, 1978.

An appeal from the district court, Oklahoma County, Carmon C. Harris, Judge.

Dillas Ray Coats, appellant, was convicted of the offense of Robbery With Firearms, After Former Conviction of a Felony; was sentenced to nine hundred ninety-nine (999) years' imprisonment, and appeals. Sentence MODIFIED to fifty (50) years' imprisonment and otherwise AFFIRMED.

T. Hurley Jordan, Public Defender, Stephen J. Korotash, Asst. Public Defender, Oklahoma County, for appellant.

Larry Derryberry, Atty. Gen., Bill J. Bruce, Asst. Atty. Gen., Evan A. Douthit, Legal Intern, for appellee.

OPINION

BUSSEY, Presiding Judge:

Dillas Ray Coats, hereinafter referred to as the defendant, was charged by information with the offense of Robbery With Firearms, After Former Conviction of a Felony, in violation of 21 O.S.Supp. 1977, § 801. The defendant was tried before a jury in the District Court, Oklahoma County, Case No. CRF-76-3485, and convicted of the alleged crime. Punishment was fixed at nine hundred ninety-nine (999) years' imprisonment. From this judgment and sentence the defendant has perfected this timely appeal.

The State opened its case at trial with the complaining witness, Ronald Catlege, who testified that on September 10, 1976, he was employed at the Knob Liquor Store in Oklahoma City. Just prior to closing, two men entered the store carrying handguns, which the witness recognized as .38 automatic revolvers. One of the men, later identified as the defendant, placed his gun to the back of Catlege's head and ordered him to open the cash register. Catlege opened the register and placed the money on the counter. Defendant then placed the money in a paper sack and instructed the witness to open a second cash register. This register was empty. The defendant then instructed the witness to put his head down and the two men left the liquor store with the money. After the pair had left Catlege ran to the back office and instructed a co-worker to call the police. When the police arrived, the witness gave them a description of the two men.

On the following Monday, Detectives Rinehart and Lovett showed the witness a set of photographs from which he was able to identify the defendant but not the defendant's companion. That evening Catlege went to the Police Department and picked the defendant out of a lineup. The detective showed the witness two more sets of photographs in the following week and he was able to identify the second man, Kenneth Ray Johnson, from the second set. He also identified Johnson in a subsequent lineup.

At the trial, Catlege was also able to identify the two steel revolvers used in the robbery. He stated on cross-examination that the two men had not worn masks or gloves. The witness also testified that he did not wear, and that he did not need to wear, glasses.

Detective Leroy Rinehart, with the Oklahoma City Police Department, testified that he was assigned to the robbery detail of the Robbery-Homicide Division and had been for almost ten years. He stated that he had made the followup investigation of the liquor store robbery and that he conducted the identification procedures wherein Catlege identified the defendant. He also related that when the defendant's accomplice, Kenneth Johnson, was arrested a bag of money and some weapons were recovered.

Sergeant Joe LeMaster testified he was a patrol officer with the Oklahoma City Police Department and that he assisted in the arrest of the co-defendant Kenneth Johnson. He stated that subsequent to the arrest he inventoried and impounded the codefendant's automobile. A search of the automobile revealed two pistols and the ammunition for them.

Michael Casey, a police officer with the Oklahoma City Police Department, also testified that he assisted in Johnson's arrest. He stated that he later received two .38 caliber revolvers from Sergeant LeMaster which had been confiscated in the search of Johnson's automobile. He tagged them, initialed them and placed them in the police property room.

On recall to the stand, Detective Rinehart testified that he had investigated an average of three robberies a day for the past ten years.

The State rested its case and the defendant's demurrer was overruled.

For the defense, the testimony of Kenneth Ray Johnson was read from the transcript of a deposition, due to the unavailability of the witness. Johnson stated that he had in fact robbed the liquor store in question and that he was a friend of the defendant, but that his accomplice had been a Dick Delong and not the defendant. On cross-examination, Johnson stated that the pistols recovered from his car at his arrest were the same as those used in the robbery. He also revealed that he had been convicted of several prior felonies.

James Nelson Johnson, who stated he was not related to Kenneth Johnson, testified that Kenneth Johnson had approached him for help in getting the defendant out of jail. He stated that Kenneth Johnson told him the defendant was not guilty and should be released. The witness also related on cross-examination that he had prior felony convictions.

In the second stage of the proceedings, the State presented three prior judgments and sentences from 1954, all from Oklahoma and all sentencing the defendant to prison for robbery with firearms. The defendant stipulated that he was the person named in the judgments and sentences, that each was final on appeal and that he was represented by counsel at the time of the entry of the judgments.

The defendant then took the stand and testified that he was currently serving a term for robbery with firearms. He also stated that he received a full pardon in 1966 for the three 1954 convictions, and a certified copy of the pardon was entered as evidence. Both sides then rested.

The jury found the defendant guilty of robbery with firearms after former conviction of a felony, and the judgment and sentence was entered in accordance with the jury's verdict.

The defendant assigns as error the refusal of the trial court to declare a mistrial upon the injection of an alleged evidentiary harpoon which in turn is alleged to have prejudiced the defendant and denied him a fair trial. The alleged harpoon occurred during Detective Rinehart's testimony. Detective Rinehart used the term "bait money" and the court asked him to explain that term to the jury. The witness used a bank robbery as an example and in response to a question from the court, he stated, "It isn't this case, no. It was a prior case." Taken alone, this statement might tend to indicate that the defendant was involved in a previous bank robbery. However, the court made further inquiry and asked, "In other words, you are just telling us about a bank robbery to show what you mean by bait money?" To this, Detective Rinehart replied, "That's right." Detective Rinehart testified that he had worked the robbery detail for almost ten years, investigating an average of three robberies a day. In light of this testimony, it is the opinion of this Court that the jury would be more likely to assume that the detective's bank example was from one of his many previous investigations and not that the example was in any way related to the defendant or his co-defendant. Therefore, this assignment of error is without merit. See, Dangerfield v. State, Okl.Cr., 548 P.2d 662 (1976); Roberts v. State, Okl.Cr., 550 P.2d 971 (1976).

The defendant's third and fourth assignments of error involve the admission by the trial court of the three judgments and sentences for prior offenses, submitted for the purpose of enhancing punishment. The defendant's argument is in two parts. First, he contends that the convictions are stale under 21 O.S.Supp. 1977, § 51A, and therefore inadmissible. The three judgments and sentences were for conviction of the offense of robbery with firearms, with all three sentences to run concurrently. The judgments and sentences are dated September 9, 1954. However, on September 22, 1966, the defendant received a pardon for these prior offenses. Defendant contends that once a person is unconditionally pardoned for an offense he has satisfied his obligation to the state and his sentence should be deemed served on the date the pardon was issued. The Court agrees with this contention. Thus, the ten year period in which these prior convictions may be used began to run as of the date of the pardon or satisfaction of judgment and sentence, whichever is earlier. The defendant further contends that if a subsequent conviction is not within the ten year period required by Section 51A, then the prior convictions may not be used to enhance punishment. The defendant received his pardon for the prior offenses on September 22, 1966, and the judgment and sentence in the present case was dated April 21, 1977. Thus, the conviction in the present case is not within the ten year period. However, the crime in this case was committed on September 10, 1976, twelve days within the statutory period. We hold today that if a person commits a crime prior to the complete running of the ten year statutory period which results in a conviction which does not fall within the statutory period, the effective date of the conviction will relate back to...