Ferrell v. State, A--15459

• Decision Date: 07 October 1970
• Docket Number: No. A--15459,A--15459
• Citation: 475 P.2d 825
• Parties: Norman N. FERRELL, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 825

475 P.2d 825

Norman N. FERRELL, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A--15459.

Court of Criminal Appeals of Oklahoma.

Oct. 7, 1970.

Rehearing Denied Oct. 30, 1970.

Syllabus by the Court

1. Giving of instruction informing jury of time credits prisoner would receive for good conduct was error even though statute governing such credits required instructions thereon, but where instruction was given after determination of guilt, it did not require reversal.

2. Where the trial court erroneously instructs the jury in the second stage of a two-stage proceeding relative to 'good time credits' under the provisions of 57 O.S.Supp. § 138, after a determination of defendant's guilt has been made by the jury in the first stage of the two-stage proceeding, and the jury imposes the minimum punishment prescribed by law, such error does not require modification or reversal.

3. Where, as a matter of trial tactics, counsel elects to proceed under the theory that the homicide was either murder or nothing, and specifically objects to the court instructing on manslaughter, he has waived his right to such an instruction and cannot raise the issue on appeal.

An appeal from the District Court of Garfield County; J. Russell Swanson, Judge.

Norman N. Ferrell was convicted of the crime of Murder, was sentenced to serve life in prison, and appeals. Affirmed.

Valdhe F. Pitman, Oklahoma City, for plaintiff in error.

G. T. Blankenship, Atty. Gen., Hugh H. Collum, Asst. Atty. Gen., Robert D. Nelson, Legal Intern, for defendant in error.

BUSSEY, Judge:

Norman N. Ferrell, hereinafter referred to as defendant, was charged, tried and convicted in the District Court of Garfield County for the crime of Murder; his punishment was fixed at life imprisonment, and a timely appeal has been perfected to this Court.

Briefly stated, the evidence at the trial indicated that a neighbor, Albert Ball, observed the victim, Burr Cline, and the defendant at approximately 11:20 a.m. on November 5, 1968, outside the defendant's two-room residence at 1312 South Second Street in Enid, Oklahoma. He observed them enter the residence and a short time later heard a sound resembling a gunshot, and a man's voice say, 'oh.' Ball called the police and prior to their arrival observed the defendant seated on a bed in the front room.

The police arrived and upon entering the house observed the defendant, who was intoxicated, sitting near a desk with a .22 caliber rifle laying thereon. They discovered Burr Cline lying on the floor in the back room of the shack. The physical evidence, including the rifle, two spent cartridges, and the bullet removed from the body, were taken to the Oklahoma Bureau of Investigation. Ray Lambert, firearms expert, testified that he was unable to ascertain with any degree of certainty that the cartridges and bullet had been fired from the submitted weapon.

The pathologist, Dr. Baker, performed an autopsy and indicated that the cause of death, in his opinion, was a gunshot wound. He did admit that he did not perform an autopsy of the skull and the cause of death could have been in the brain area, although this was not the case in his opinion. The defendant did not testify, nor was any evidence introduced in his behalf.

The jury returned a verdict of guilty in the first stage of a two-stage proceeding. Thereafter, the court instructed the jury relative to the punishment and further gave the instruction on time credits as provided in 57 O.S.Supp. § 138, over the objection of the defendant.

It is first contended that the trial court erred in instructing the jury concerning the schedule of credits allowed as a deduction from a term of imprisonment and further that conducting the trial proceedings in two stages was done without authority of law and was inherently prejudicial to the defendant.

In Williams v. State, Okl.Cr., 461 P.2d 997, we stated:

'Giving of instruction informing jury of time credits prisoner would receive for good donduct was error even though statute governing such credits required instructions thereon, but where instruction was given after determination of guilt, it did not require reversal.'

In the instant case the jury could return one of two verdicts, life imprisonment or death, of which they imposed the lesser sentence of life imprisonment. Clearly, giving the instruction of 'good time credits' was error and such instruction should not be given. We are of the opinion, however, that since the instruction arose during the second stage of the two-stage trial, after the defendant had been found guilty, that this error does not require reversal. We cannot hold that the jury was prejudiced in that it imposed the lesser sentence.

It is further contended that the trial court erred in conducting the trial proceedings in two stages. There is no question that such proceedings are not proper since the decision of this Court in the case of Moore v. State, Okl.Cr., 462 P.2d 286, decided on October 29, 1969. The instant case, however, was tried prior to that date, in May of 1969. The two-stage proceeding was the authorized procedure by direction of the Attorney General of the State of Oklahoma at the date of trial. 1 Okl.Op.A.G. 288. In the case of Pickens v. State, Okl.Cr., 391 P.2d 288, this Court upheld an earlier opinion of Harris v. State, Okl.Cr., 369 P.2d 187, quoting from the Harris case, we stated:

'Where a new procedure is...