Green v. State, F-85-402

• Decision Date: 04 August 1988
• Docket Number: No. F-85-402,F-85-402
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
• Parties: Rickke GREEN, Appellant, v. STATE of Oklahoma, Appellee.

Page 219

759 P.2d 219

Rickke GREEN, Appellant, v. STATE of Oklahoma, Appellee.

No. F-85-402.

Court of Criminal Appeals of Oklahoma.

Aug. 4, 1988.

Rehearing Denied Sept. 6, 1988.

An appeal from the District Court of Pittsburg County; Robert A. Layden, District Judge.

Rickke Green, appellant, was convicted of the crime of Assault with a Dangerous Weapon, After Former Conviction of Two or More Felonies, in the District Court of Pittsburg County Case No. F-83-269 and was sentenced to forty (40) years' imprisonment, and he appeals. AFFIRMED.

Patti Palmer, Deputy Appellate Public Defender, Norman, for appellant.

Robert H. Henry, Atty. Gen., William K. Luker, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

BUSSEY, Judge:

The appellant, Rickke Green, was convicted of the crime of Assault with a Dangerous Weapon After Former Conviction of Two or More Felonies, in violation of 21 O.S.Supp. 1983, § 645 and 21 O.S.1981, § 51(B), in the District Court of Pittsburg County in Case No. F-83-269 and was sentenced to a term of forty (40) years' imprisonment, and he appeals.

At all times relevant to this appeal, the appellant has been an inmate at the Oklahoma State Penitentiary in McAlester, Oklahoma. Because of his pattern of disruptive activity, prison officials decided on May 11, 1983, that it was necessary to move appellant to another cell. Upon being informed of the pending move, appellant made it known that he intended not to cooperate. The Deputy Warden then went to appellant's cell and attempted to talk him into moving voluntarily. Appellant responded by throwing objects at the prison officials and threatening to hurt someone if they tried to move him forcibly.

Faced with appellant's actions, the officials decided that force was necessary. A five-man "cell entry team" was called. When the cell door was opened, one of the officers entered and observed appellant standing in the center of his cell with what appeared to be a weapon in his hand. The officer immediately backed out of the cell and warned the others about what he had seen.

The team then entered the cell and pinned appellant in a corner with the use of a protective device referred to as a "mattress." While the officers were struggling with him, appellant twice attempted to stab one of them in the neck with a dagger which had been fashioned from a sharpened piece of welding rod.

On July 17, 1983, appellant was charged by information with Assault With a Dangerous Weapon (Count I) and with Possession of Contraband in a Penal Institution (Count II). Count II was later successfully demurred to, and the charge dismissed.

Appellant's eventual trial followed a procedural nightmare, during which appellant had four preliminary hearings and three separate, court-appointed attorneys. He was eventually tried before a jury in the District Court of Pittsburg County on August 15, 1984. Just before trial was scheduled to begin, appellant discharged his third attorney. An in camera hearing was held during which it was established that appellant was going to proceed pro se, and that his attorney would remain to provide assistance if and when appellant requested such. Appellant then stood mute throughout the entire trial and refused to put on any defense, even though the record shows that his attorney was ready and able to do so.

Predictably, the first proposition of error raised is that the trial court erred in "forcing" appellant to proceed pro se. Appellant also suggests that he was not fully advised of the consequences of his acts and that a continuance should have been granted in order to allow appointment of a fourth attorney. We find this assignment of error to be totally unsubstantiated by the record.

A thorough reading of all of the various transcripts in this appeal convinces us that appellant was perfectly aware of the possible consequences of his acts. An indigent defendant cannot demand a choice of appointed counsel. Johnson v. State, 556 P.2d 1285, 1294 (Okl.Cr.1976). Nor may a defendant who elects self representation in this manner later be heard to complain that he was denied effective assistance of counsel. Farreta v. State, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Johnson v. State, 556 P.2d at 1297. This assignment of error is frivolous and without merit.

Next, appellant suggests that the trial court erred in failing, on its own motion, to initate proceedings to determine his competency to stand trial. Based on the facts in the record, this assignment is also without merit.

The proper standard when reviewing this assignment is that a trial court's decision not to initate formal competency proceedings will not be disturbed on appeal absent a clear showing of abuse of discretion. Clark v. State, 718 P.2d 375 (Okl.Cr.1986). We see no hint of abuse of discretion in this record; this proposition of error is also without merit.

The third proposition of error is that appellant was denied a fair trial because some of the jurors had seen him brought into the courthouse in restraints during the punishment phase of his trial. Counsel on appeal suggests that this requires that appellant's conviction be reversed, and cites McQueen v. State, 421 P.2d 284 (Okl.Cr.1966). We disagree.

In similar, more recent cases, this Court has refused to reverse convictions. See Pisano v. State, 636 P.2d 358 (Okl.Cr.1981); Boyle v. State, 569 P.2d 1026 (Okl.Cr.1977). The record shows that, upon learning of this, the trial court properly admonished the jury that it was an unintentional oversight that appellant had been handcuffed when brought into court; that his being in restraints was solely because he was an inmate and he was being treated no differently than any other inmate. At most, this was an unfortunate incident and harmless. See Norman v. State, 648 P.2d 1243 (Okl.Cr.1982).

Next, the appellant alleges fundamental error in the trial court's failure to instruct the jury on lesser-included offenses. Appellant alleges "fundamental" error in an obvious attempt to circumvent the fact that no objections were made to the...