Fink v. State
| Decision Date | 25 February 1970 |
| Docket Number | No. A--14278,A--14278 |
| Citation | 480 P.2d 938 |
| Parties | 1970 OK CR 27 Larry Richard FINK, 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 |
Syllabus by the Court
1. Errors to which no objections are interposed with exceptions taken to the ruling of the court, preserved in the Motion for New Trial, will not be considered on appeal.
2. Identification of the defendant at a police lineup prior to trial and subsequent to the alleged crime is not an identification of the defendant as the one who committed the crime, but testimony of an extra-judicial identification and is inadmissible as original testimony.
3. Failure of the defendant to object to the introduction of testimony and lengthy cross-examination relative to an extra-judicial identification may take the same out of the category of reversible error but if it appears that defendant was prejudiced thereby, will constitute grounds for modification.
4. Where there is competent evidence in the record from which the jury could reasonably conclude that defendant was guilty as charged, this Court will not interfere with the verdict even if there is a sharp conflict in the evidence and different inferences may be drawn therefrom since it is the exclusive province of the jury to weigh the evidence and determine the facts.
5. When counsel for defendant, on cross-examination, makes inquiry as to conversations which are inadmissible and inquires if a certain conversation did not occur, then the State is permitted on redirect examination of the witness to have him give the entire conversation.
Appeal from the District Court of Garfield County; Tom R. Blaine, Judge.
Larry Richard Fink was charged, tried and convicted of the crime of Rape, sentenced to life imprisonment, and appeals. Modified to 45 years imprisonment, and as so modified, affirmed.
Dennis L. Pope, Enid, for plaintiff in error.
G. T. Blankenship, Atty. Gen., Hugh Collum, Asst. Atty. Gen., for defendant in error.
Larry Richard Fink, hereinafter referred to as defendant, was charged, tried and convicted in the District Court of Garfield County for the crime of Rape, was sentenced to life imprisonment, and from said judgment and sentence a timely appeal has been perfected to this Court.
On the trial the prosecutrix testified that she was 11 years old on February 28, 1966, and lived at home in Enid with her mother, step-father and brother. During the day she had attended school and after school had returned home and completed her household duties. She then called her mother at work and secured from her permission to go to Mrs. Gordon's, her Camp Fire leader, to secure additional Camp Fire candy to sell. She secured nine boxes of candy from Mrs. Gordon and enroute home with the nine boxes in a larger container, was stopped by the defendant on Davis Street. She testified that he was driving a light green Buick, and advised her that he knew her parents, offered to help her sell the candy and give her a ride in his car, ostensibly to take her to the homes of three ladies whom he said would buy her candy. She further testified that he was wearing a white shirt, slacks and loafer shoes. She traced the routes that he took, and although he took her by three houses, he never stopped, but would say, 'Well, they are not home.' She further testified that he went on a dirt road, came to a wooden bridge, stopped the car, and asked her if she would like to play a little game and advised her that if she would play the game he would buy all nine boxes of candy from her. Her testimony essentially was that the defendant raped her, and that penetration was accomplished. He then zipped his pants, told her to put her panties back on (she testified they were on her foot), got in the car and she described the route on Upon arriving at home the prosecutrix advised her mother as to what had happened, her mother called her step-father. Her step-father and a detective came to her home, she talked to the detective, and her mother then took her to the doctor.
return. He stopped the car at the corner of Central Street, approximately a block and a half from her home, gave her the candy and turned around and drove off. She testified that when he stopped the car the first time, he removed the larger carton containing the candy to the back seat, handled one of the boxes of candy and then put it back in the larger carton.
The prosecutrix described the car as being light green, the front seat was torn with some tape on it, she described the dash of the car, a decoration hanging in the car with a picture of a girl in a bathing suit on it, and on the signal light handle, there was a ring. She testified that she drew a picture of the dashboard for the detective that same night. In describing the defendant, she stated that he had 'kind of curley hair' and a cleft chin, and she pointed him out in court.
The fingerprint lifted from one of the candy boxes handled by the prosecutrix's assailant was identified by a fingerprint expert on the trial as being identical to the fingerprint of the defendant. The Enid Police Department, after having received the description of the assailant's car and his physical description, observed the defendant's car on the afternoon of March 11th, eleven days after the assault. They stopped defendant's automobile and noting the similarity of the car to the description given them by the prosecutrix and similarity in physical description, placed the defendant under arrest, took him to the police station together with his automobile, where they notified the prosecutrix's father who accompanied her to the police station. The prosecutrix viewed the defendant in a lineup with six others, who were all of the same general height, age and build; however, the defendant was the only member of the lineup wearing a coat and members of the fire department and police department were dressed without coats. Officers Hollen and Bowen, who were in the lineup, had been in the prosecutrix's home on the evening of the rape. The prosecutrix identified the defendant as her assailant at the lineup and during the trial. Testimony of the medical expert corroborated that the prosecutrix had been criminally assaulted.
The State's evidence established that the automobile driven by the defendant on the day of his arrest matched the description given by the prosecutrix down to the ring on the signal light handle and the deodorant pad hanging in the car with a picture of a girl in a bathing suit on it, and tape on the seat of the car.
After the State rested, the defendant admitted his presence in Enid on the day in question and by his testimony and that of his sister and other defense witnesses, attempted to establish that he could not have been present at the scene of the assault during the period of time the prosecutrix testified it occurred.
At the outset we observe that although considerable time during the defendant's oral argument was devoted to the pre-trial identification of the defendant in the lineup conducted at the police department, no objection was interposed when the prosecutrix testified on direct examination that she had seen the defendant at the lineup. Moreover, during the lengthy cross-examination of the prosecutrix which consumed 138 pages of the case made (direct and redirect examination consumed 53 pages), counsel for defense extensively and minutely questioned the prosecutrix concerning the circumstances surrounding the lineup identification. In addition to the cross-examination of the prosecutrix concerning the circumstances surrounding the lineup, counsel for defense cross-examined other witnesses extensively concerning the conduct of the lineup which we will set forth in the Appendix.
It would appear from the foregoing that the defendant has not properly preserved any objection to the lineup identification of the accused for review on appeal '3. Identification of the defendant at a police lineup prior to trial and subsequent to the alleged crime is not an identification of the defendant as the one who committed the robbery, but testimony of an extra-judicial identification and is inadmissible as original testimony.
nor has he preserved any objection to the admission of the prosecutrix's testimony relating to the pre-trial identification of the defendant on direct examination by the State, for failure to object to the same; nevertheless, to prevent trial courts from committing error in future trials, we wish to reiterate the rule applicable in the instant case HAD TIMELY OBJECTION BEEN MADE to the direct testimony of the prosecutrix concerning the lineup identification. This well established rule is set forth in Syllabus 3 and 4 of Gillespie v. State, Okl.Cr., 355 P.2d 451, as follows:
4. Failure of the defendant to object to the introduction of testimony and lengthy cross-examination relative to an extra-judicial identification may take the same out of the category of reversible error but if it appears that defendant was prejudiced thereby, will constitute grounds for modification.'
We wish to further observe that since the lineup identification of the defendant, and his trial, occurred prior to the Supreme Court decision in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), the rule there enunciated would have no application in the instant case, nor indeed would the decision of Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969), be controlling in the instant case. In Foster v. California, supra, the facts surrounding the lineup and the pre-trial identification of the defendant were as follows:
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Kamees v. State
...testify. With refreshing candor the appellant concedes no contemporaneous objection was lodged, and then argues that under Fink v. State, 480 P.2d 938 (Okl.Cr.1970) these errors are not waived. Fink is consistent with Maxwell and Aycox in its expression that this Court will review testimony......