Day v. State, F-79-232
| Decision Date | 07 November 1980 |
| Docket Number | No. F-79-232,F-79-232 |
| Parties | Cordell Lee DAY, Jr., Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Cordell Lee Day, Jr., has appealed from a conviction in the District Court, Oklahoma County. In Oklahoma County Case No. CRF-78-1171, he was convicted of Attempted Rape in the First Degree, After Former Conviction of a Felony. He was sentenced to fifteen (15) years in prison. Since all the assignments of error deal with various aspects of the trial, rather than with the events of the crime, no discussion of the facts is warranted.
First, the appellant argues that the trial court should have granted his motion for a mistrial after the foreman of the jury indicated that the jury was unable to reach a verdict. Instead of declaring a mistrial, the judge gave an Allen instruction, to which the appellant objected. His argument is that, by giving the Allen instruction, the judge put undue pressure on the jury not to come out until a verdict had been reached.
Allen instructions have previously been upheld by this Court under circumstances of an apparent deadlocked jury. However, the trial court must carefully avoid any coercion. See Wilson v. State, Okl.Cr., 556 P.2d 1311 (1976), and Miles v. State, Okl.Cr., 602 P.2d 227 (1979).
In the present case, the instruction was neither coercive nor designed to intimidate the jurors into coming to a decision. They were simply asked to return to the jury room and diligently and earnestly resume their deliberations. Thus, the assignment of error is without merit.
Next, the appellant complains of the prosecutor's closing argument in the second stage of the proceeding. But since he failed to object to the argument during the trial, the alleged error has not been properly preserved for review. Compare Shelton v. State, Okl.Cr., 583 P.2d 1107 (1978). In any event, the alleged error could not have affected the finding of guilt, since it came during the second stage.
The third assignment of error pertains to the appellant's right to represent himself. At the beginning of the second stage of the trial, the appellant charged that his court-appointed attorney was incompetent and ineffective, and specifically that he had failed to bring witnesses on the appellant's behalf. The trial judge refused to dismiss counsel in the middle of the trial. The right to self-representation has been well established since Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). The issue presented in the case at bar, however, is whether that right can be asserted once the trial has begun.
This issue has recently been heard by this Court in Coleman v. State, Okl.Cr., 617 P.2d 243 (1980). The Tenth Circuit Court also spoke to that issue in United States v. Bennett, 539 F.2d 45 (10th Cir. 1976). This Court held in Coleman, as did the Circuit Court in Bennett, that the constitutional right to self-representation must be clearly and unequivocally asserted before the trial so that, in compliance with Faretta standards, the trial court can ascertain whether there has been an intelligent and voluntary waiver of the right to counsel. Other circuit courts also retain a distinction between the right of self-representation asserted before a trial and during a trial. See for example, United States v. Lawrence, 605 F.2d 1321 (4th Cir. 1979); United States v. Dunlap, 577 F.2d 867 (4th Cir. 1978); Sapienza v. Vincent, 534 F.2d 1007 (2d Cir. 1976).
When an accused wishes to dismiss his court-appointed counsel and secure new counsel after the trial has begun, relief...
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