Fitchen v. State, F-84-486
| Decision Date | 03 June 1987 |
| Docket Number | No. F-84-486,F-84-486 |
| Citation | 738 P.2d 177 |
| Parties | Leonard Pete FITCHEN, a/k/a Leonard Pete Fitchew, Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Appellant, Leonard Pete Fitchen, a/k/a Leonard Pete Fitchew, was convicted in Stephens County District Court Case No. CRF-83-127, for the offense of Attempting to Obtain Controlled Drug by Forged Prescription, After Former Conviction of Two or More Felonies. He was tried by a jury before the Honorable Joe H. Enos, and his punishment was set at life imprisonment. From that conviction, he appeals.
About 4:30 p.m. on May 13, 1983, appellant attempted to obtain a controlled drug, Preludin, from Pharmacist Danny C. Akers, on a forged prescription at the Graves Drug and Pharmacy in Marlow, Oklahoma. The prescription was written on a white prescription form for one, Emma Harris of Lawton, Oklahoma, who appellant asserted was his aunt. The prescription was allegedly signed by Dr. Tien Sheng Tu. Pharmacist Akers had been informed that Dr. Tu's office had earlier been burglarized and that prescription forms had been stolen. The pharmacist called the Marlow Police and Dr. Tu's office and was informed by Dr. Tu that since the burglary he has used green prescription forms, and that he did not issue the prescription. During his testimony, Dr. Tu also testified that he had never prescribed preludin for Emma Harris, that he had treated appellant, but did not prescribe preludin for him. Preludin, a stimulant, is listed as a Schedule II drug. When the Marlow Police arrived, appellant was still in the drugstore and asserted to the police that the prescription was for back-pains of his aunt.
Among the things appellant asserts in his first assignment of error is that the prosecutor made improper comments during the punishment stage of the trial, thereby denying appellant a fair trial. Appellant first asserts that comments were made by the prosecutor concerning pardons and paroles. The record reflects that the prosecutor commented on the former convictions of appellant and the sentences he received for former convictions. Certainly the prosecutor is entitled to discuss the evidence, i.e., the judgments and sentences of former convictions, offered during the second stage of trial. It has long been the rule that both counsel are entitled to make reasonable arguments relative to the evidence offered. They are entitled to argue the evidence and make reasonable inferences therefrom. King v. State, 640 P.2d 983 (Okl.Cr.1982). The record also reflects that appellant failed to make any objections during the prosecutor's closing argument. Consequently, this assertion of error is not properly preserved for appeal. Vigil v. State, 666 P.2d 1293, 1294 (Okl.Cr.1983).
Appellant asserts that the prosecutor made repeated references to prior crimes. He offers no supporting authority to sustain his contentions. This Court will not search the books for authority to support appellant's assertions. Kennedy v. State, 640 P.2d 971 (Okl.Cr.1982). Also, this assertion of error fails for the reason appellant failed to enter any objections, so this contention is not properly preserved for appeal. The crimes to which the prosecutor made reference were those which had been properly admitted into evidence by certified copies of the judgment and sentences, during the punishment stage of the trial. Suitor v. State, 629 P.2d 1266 (Okl.Cr.1981). Appellant fails to show how he was prejudiced from the alleged errors.
Appellant also asserts that the prosector made reference to appellant's being a career criminal, which he asserts constituted error. Again, appellant failed to enter any objections and to call for an admonishment of the jury. The assertion of error is waived.
Lastly under this assignment, appellant asserts that the prosecutor appealed to societal alarm by stating that the appellant would commit other crimes. No objections were made to this cited error. It is, therefore, waived for appeal. We have reviewed all the arguments complained of by appellant and find that they are not of such nature as to cause a reversal of this conviction. His first assignment of error is denied.
Appellant also asserts that evidence of other crimes was admitted without a showing of the limited exceptions outlined in 12 O.S.1981, § 2404(B). That section of the statute provides, in part:
... Evidence of other crimes or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent preparation, plan, knowledge, identity or absence of mistake or accident.
Appellant complains that the pharmacist testified that he had talked earlier with Dr. Tu relative to other prescriptions that had been forged and attempts that had been made to pass them at his drugstore. Appellant objected, but the objection was overruled. As we view the testimony, the prosecutor never asserted or implied that appellant had earlier attempted to pass a forged prescription. He was merely offering relevant circumstantial information that went to show why the pharmacist was alerted and so readily recognized the forged prescription. Any reference to appellant having committed other crimes, at this point, exists only in appellant's own eyes and view.
Appellant also contends that the pharmacist made an evidentiary harpoon in his testimony when he related that appellant stated he had an injured finger and needed some attention to it. The pharmacist merely related how he asked the lady who worked for him to render such assistance and to delay appellant. He also related that appellant was not the least nervous, probably because another prescription had earlier been passed through the same...
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Moore v. State
...the summaries improperly overemphasized Ms. Davis' testimony, and thus this is the only objection we will consider. See Fitchen v. State, 738 P.2d 177, 180 (Okl.Cr.1987). During the period of time that Ms. Davis testified concerning her evaluation of the fiber evidence, each juror was given......
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...sustained. Questions concerning the relevancy of particular evidence are within the discretion of the trial court. Fitchen v. State, 738 P.2d 177, 180 (Okl.Cr.1987). A determination that the evidence should be excluded as irrelevant should be affirmed unless there is a clear showing of abus......
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