Gray v. State

• Decision Date: 30 August 1982
• Docket Number: No. F-80-687,F-80-687
• Citation: 650 P.2d 880
• Parties: Johnny R. GRAY, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 880

650 P.2d 880

Johnny R. GRAY, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-80-687.

Court of Criminal Appeals of Oklahoma.

Aug. 30, 1982.

An appeal from the District Court of McCurtain County; Pat Pate, District Judge.

Johnny R. Gray, appellant, was convicted of Shooting With Intent to Kill in McCurtain County District Court, Case No. CRF-79-74, was sentenced to ten (10) years imprisonment and appeals. AFFIRMED.

Jim McClendon, Broken Bow, for appellant.

Jan Eric Cartwright, Atty. Gen., Susan Talbot, Asst. Atty. Gen., Chief, Appellate Criminal Div., Oklahoma City, for appellee.

OPINION

CORNISH, Judge:

The appellant, Johnny R. Gray, was convicted of Shooting with Intent to Kill in McCurtain County District Court Case No. CRF-79-74. In the same trial, he was acquitted of Shooting with Intent to Kill in Case No. CRF-79-75. Each case arose from a single shotgun blast fired by the appellant at Hammon Breedlove and Gregory Gray. The appellant was sentenced to ten (10) years' imprisonment.

On appeal, the appellant argues that: (1) he was deprived of equal protection in plea bargaining, (2) the trial court erred in failing to allow him two additional peremptory challenges, (3) the jury's verdicts were inconsistent, and (4) incompetent witnesses were allowed to testify at trial.

I

The appellant's first argument is predicated on a prevailing practice in McCurtain County whereby criminal defendants were urged to donate to a special Community Relations Fund. The fund had been created by the District Attorney's office. By court order the practice was halted, with no more deposits being allowed as of June 5, 1979. There are allegations in the record indicating that some criminal defendants received favorable treatment in plea bargaining in exchange for donations to the fund.

Prior to trial a hearing was held in the District Court of McCurtain County on the appellant's motion to dismiss, which was based on the grounds now asserted. At that hearing, the Attorney General's office represented the State, the District Attorney having disqualified himself. Called as a witness, the District Attorney testified that the Community Relations Fund was originally established upon receipt of a $200.00 payment to McCurtain County as reimbursement for the expenses of a preliminary hearing transcript. He stated that when he had initially sought to deposit this $200.00 in the general fund, he was told that it was not possible, because the budgets were frozen until the next year. He was informed that the only thing to do would be to set up a special account from which monies could be paid out during the year. The District Attorney stated that he then requested the County Treasurer to set up a fund in which all expenditures would be processed through the County Commissioners' office.

Only the first receipt of money represented a reimbursement. In addition to deposits made pursuant to plea bargaining arrangements, there were State reimbursements on reciprocal support cases. When asked by the court if the money in this fund was used to supplement the budget in the District Attorney's office, the District Attorney stated that to his knowledge office bills had been paid from the account. In overruling the appellant's motion, the trial court severely criticized the District Attorney's practice in regard to the plea bargain arrangements where monies were accepted, regardless of where they were deposited.

The appellant asserts denial of equal protection on grounds that the availability of plea negotiations was contingent on an accused's making a donation into the Community Relations Fund. The appellant argues that since he was indigent, he was precluded from entering into any plea bargain arrangement because he would not have been able to contribute to the fund. He concludes that this denial requires reversal of his conviction and dismissal of the charges against him.

An underlying principle of our system of justice and a basic command of equal protection is that justice be applied equally to all parties, poor man or affluent. Schilb v. Kuebel, 404 U.S. 357, 92 S.Ct. 479, 30 L.Ed.2d 502 (1971). In Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), the Supreme Court held that in criminal trials a State can no more discriminate on account of poverty than on account of religion, race or color. 351 U.S. at 17, 76 S.Ct. at 589.

Ordinarily, the fact that a defendant is faced with the choice of going to trial or pleading guilty in open court without the benefit of a plea bargain does not entitle him to relief based upon the equal protection clause of the 14th Amendment. The State is never under any legal obligation to plea bargain with any defendant; for there is no constitutional right to plea bargaining. Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977). Provided the prosecutor has probable cause to believe that the accused committed an offense, the decision of whether to prosecute and of what charge to bring rests generally within the prosecutor's discretion.

Prosecutorial discretion, however, is not unbridled. The Supreme Court in Bordenkircher v. Hayes, 434 U.S. 357, 364-365, 98 S.Ct. 663, 668-669, 54 L.Ed.2d 604, (1978), quoting Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962), reiterated that " '[T]he conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation'so long as 'the selection was [not] deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.' " (Emphasis added.)

In Bordenkircher, the Court further stated that "[t]here is no doubt that the breadth of discretion that our country's legal system vests in prosecuting attorneys carries with it the potential for both individual and institutional abuse. And broad though that discretion may be, there are undoubtedly constitutional limits upon its exercise." Supra, 434 U.S. at 365, 98 S.Ct. at 669. (Footnote omitted.)

The landmark decision applying equal protection to the discriminatory enforcement of a law by administrative or executive officials is Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). There the Supreme Court declared: "though the law itself be fair on its face, and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal protection is still within the prohibition of the Constitution." (Emphasis added.)

The question then becomes one of whether the discrimination alleged was material to the appellant's rights.

In Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), plea bargaining was recognized as an "essential component" of the administration of criminal justice:

Disposition of charges after plea discussion is not only an essential part of the process but a highly desirable part for many reasons. It leads to prompt and largely final disposition of most criminal cases; it avoids much of the corrosive impact of enforced idleness during pre-trial confinement for those who are denied release pending trial; it protects the public from those accused persons who are prone to continue criminal conduct even while on pretrial release; and, by shortening the time between charge and disposition, it enhances whatever may be the rehabilitative prospects of the guilty when they are ultimately imprisoned. [Citations omitted.] 404 U.S. at 261, 92 S.Ct. at 498.

The recognition of plea bargaining as an essential component of the administration of justice, however, does not elevate it to a constitutional right. That is not to say, that a prosecutor can accept or refuse plea negotiations in a way that discriminates against defendants on account of their race, religion, economic status or other arbitrary classification. Furthermore, the essence of promises made in the plea bargain arrangement must be made known to the court. Santobello, supra, at 261, 262, 92 S.Ct. at 498, 499. Here it appears that contributions to the fund in connection with plea...