Gowler v. State, F-77-636

• Decision Date: 22 November 1978
• Docket Number: No. F-77-636,F-77-636
• Citation: 1978 OK CR 128,589 P.2d 682
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
• Parties: Wayne Ray GOWLER, Appellant, v. The STATE of Oklahoma, Appellee.

Page 682

589 P.2d 682

Wayne Ray GOWLER, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-77-636.

Court of Criminal Appeals of Oklahoma.

Nov. 22, 1978.

Rehearing Denied Jan. 31, 1979.

An Appeal from the District Court, Oklahoma County; David M. Cook, judge.

Wayne Ray Gowler, appellant, was convicted of the offense of Obtaining Merchandise by Means and Use of a False and Bogus Check; was sentenced to three (3) years' imprisonment, and appeals. AFFIRMED.

John T. Elliott, Public Defender, John M. Stuart, Jim Pearson, Asst. Public Defenders, Oklahoma County, for appellant.

Larry Derryberry, Atty. Gen., Bill J. Bruce, Asst. Atty. Gen., for appellee.

OPINION

CORNISH, Judge:

Wayne Ray Gowler, hereinafter referred to as the defendant, was charged with the crime of Obtaining Merchandise by Means and Use of a False and Bogus Check, in violation of 21 O.S.1971, § 1541.2. The defendant was found guilty by a jury in Oklahoma County District Court, Case No. CRF-76-4641, and his punishment was assessed at three (3) years' imprisonment.

The defendant, using the name of John L. Deusner, wrote a number of false and bogus checks at various businesses and establishments during a three-day check writing spree in December of 1975. On January 16 and 19, 1976, the Oklahoma County District Attorney's Office filed four charges against the defendant based on four checks written by him during this three-day period. The defendant was arrested in Arizona on March 19, 1976, and was transported to Oklahoma County on April 20, 1976. The defendant remained in Oklahoma County jail while he stood trial in federal court on a charge of Giving False Information to a Federally Insured Bank, as a result of his activities in December, 1975. He was committed to a federal penitentiary on July 2, 1976. The defendant was thereafter borrowed from federal custody and returned to Oklahoma County on November 17, 1976, to face trial on the four charges which had been filed against him. On December 15, 1976, the defendant entered a plea of guilty to each of the four charges. There had been no negotiated plea. Although First Assistant District Attorney James R. McKinney recommended four ten (10) year sentences to run consecutively, Judge Joe Cannon sentenced the defendant to serve three ten (10) year suspended sentences to run concurrently and a two (2) year deferred sentence with restitution to commence six months after release from the federal penitentiary. On December 16, 1976, Mr. McKinney filed an information against the defendant in this case, CRF-76-4641 and one in CRF-76-4640, alleging the writing of two false and bogus checks arising from the same weekend check writing spree. On February 11, 1977, a hearing on a motion to dismiss these two charges was held before Judge Cannon. The judge entered an order dismissing the two cases, but shortly thereafter changed his mind and vacated the order.

Another hearing on a motion to dismiss was held before Judge David M. Cook on February 22, 1977. At this hearing, First Assistant District Attorney James R. McKinney testified that at the time the defendant entered a blind plea before Judge Cannon on December 15, 1976, with regard to the initial four charges, Mr. McKinney recommended that the defendant receive four ten year consecutive sentences. Mr. McKinney did not recall whether or not at the time of sentencing he made the statement that he would continue to file charges until the defendant was in prison. He did state, however, that it was the current intention of the District Attorney's Office to file until the defendant went to the penitentiary. He commented that at the time the initial four charges were filed, the District Attorney's Office did not know the total number of checks the defendant had written, but a number of checks had come in and for most of the checks his office knew that the merchant had the check. Mr. McKinney also testified that he doubted the checks upon which the current charges were based were in the District Attorney's Office by January 19, 1976. However, he contacted a number of merchants who he was aware had checks, and some of them sent in their checks. He was aware that there was a large number of checks which were outstanding that the defendant had written.

Judge Joe Cannon testified that when the defendant appeared before him on a blind plea on December 15, 1976, and he handed down the sentence, Mr. McKinney made a statement to the effect that he wanted the defendant to do time in the penitentiary and would keep filing charges until the defendant got time to do. At the time of the guilty plea, the judge understood there were other checks but did not know that other charges would be filed until after he had pronounced sentence. Judge Cannon further testified that on February 11, 1977, a motion to dismiss alleging denial of speedy trial in both CRF-76-4640 and CRF-76-4641, was presented to him. He entered a verbal order dismissing each of these cases, but not on the ground of denial of speedy trial. He stated that he dismissed the cases because he thought they were filed because Mr. McKinney did not agree with the sentence he gave the defendant on the four original charges, and he was under the impression that the defendant was being harassed. About 30 minutes later, he decided to vacate his motion to dismiss and retracted the order, because he felt the District Attorney's Office had the authority to file additional charges. He also commented that he felt he had pronounced the proper sentence and would have imposed the same sentence if the two newer checks had been included.

Bobbie Chester testified that she was the District Court Clerk for Judge Cannon and was present on February 11, 1977, when the motion to dismiss because of denial of speedy trial was presented on motion docket. She prepared an order to release pursuant to the judge's verbal order of dismissal. She issued an order of release with the word "case dismissed" on the order. Ms. Chester stated that about 45 minutes later, Judge Cannon told her to retrieve the releases and she went to the County jail and recalled the releases. The defendant was still in jail at the time.

The defendant testified that when he entered a blind plea on December 15, 1976, he did not know the District Attorney would file other charges against him. He stated that after Judge Cannon gave his sentence, McKinney said that he would keep filing charges until the defendant was sent to the penitentiary. Defendant further testified that because of the two subsequent charges he experienced a denial of parole and was held in closer custody.

The trial court denied the motion to dismiss. The case went to trial the following day, and the defendant was convicted and sentenced to three years in the penitentiary.

In his first assignment of error, the defendant alleges that prosecutorial misconduct prejudiced the defendant's rights and denied him due process of law. We agree with the defendant that it is the prosecutor's duty to insure that the defendant is not denied due process of law. However, the cases which the defendant cites are clearly distinguishable from the present situation. The cases of United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); and, People v. Ruthford, 14 Cal.3d 399, 121 Cal.Rptr. 261, 534 P.2d 1341 (1975), deal with the prosecutorial abuse of withholding evidence favorable to the accused, resulting in a denial of due process. At the initial trial of the defendant, there was no evidence withheld that would have a bearing on his first four convictions. 31 C.J.S. Evidence § 2, defines evidence as that which demonstrates, makes clear, or ascertains the truth of the very fact or point in issue. Thus, the knowledge of the prosecutor of other criminal violations cannot be properly termed evidence, as it was not material in regard to the initial charges for which the defendant was on trial.

The defendant also cites North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), and Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), wherein the due process violations deal with the imposition of a heavier sentence upon reconviction of an offense at retrial, after the original conviction has been set aside; and the substitution by the State of a more serious charge in retaliation against a person convicted of an offense for pursuing his statutory right to a new trial on appeal, respectively. However, in the present situation, we are not dealing with the same offenses but with separate and distinct offenses from the four for which the defendant was originally convicted. The two charges which the prosecutor filed resulted in entirely separate proceedings, not in an appellate proceeding. Thus, these cases and the other cases cited by the defendant dealing with a denial of due process because of prosecutorial abuse, do not apply to the present fact situation. Furthermore, in assessing the conduct of the prosecuting attorney, this Court has held that a conviction will not be reversed for alleged misconduct of the prosecuting attorney unless conduct might in some degree have influenced the verdict against the defendant. Hux v. State, Okl.Cr., 554 P.2d 82 (1976); Fike v. State, Okl.Cr., 388 P.2d 347 (1963). In this instance, the question of the defendant's guilt is not at issue.

Also, there is nothing that states that the prosecutor must file all charges against the defendant so that they are tried in a single trial. Title 22 O.S.1971, § 438, states that the court May order two or more informations to be tried together if the offenses could have been joined in a single information. See, Dodson v. State, Okl.Cr., 562 P.2d 916 (1977). However, the court did not exercise its discretion to do so in the present case. With regard to the prosecuting attorney's withholding of charges pending the outcome of...