Holbert v. State

• Decision Date: 01 June 1983
• Docket Number: No. F-81-472,F-81-472
• Parties: Robert Allen HOLBERT, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1061

664 P.2d 1061

Robert Allen HOLBERT, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-81-472.

Court of Criminal Appeals of Oklahoma.

June 1, 1983.

An Appeal from the District Court of Oklahoma County; William R. Saied, Judge.

Robert Allen Holbert, appellant, was convicted of the offenses of First Degree Rape and First Degree Burglary, in Oklahoma County Court Case, No. CRF-80-1985, was sentenced to fifteen (15) years and seven (7) years' imprisonment, respectively, with sentences to run concurrently, and he appeals. Judgments and sentences AFFIRMED.

Kenneth C. Watson, Asst. Public Defender, Oklahoma City, for appellant.

Jan Eric Cartwright, Atty. Gen. of Oklahoma, Jimmy D. Givens, Asst. Atty. Gen., Oklahoma City, for appellee.

MEMORANDUM OPINION

BUSSEY, Presiding Judge:

Appellant, Robert Allen Holbert, was convicted of First Degree Rape and First Degree Burglary, in Oklahoma County District Court, Case No. CRF-80-1985, was sentenced to fifteen (15) years and seven (7) years' imprisonment, respectively, with sentences to run concurrently, and he appeals.

At around nine-thirty on the morning of May 14, 1980, the victim was sitting in her bedroom when the appellant broke into her duplex and, wielding one of the victim's kitchen knives, raped her.

A woman who lived in the adjoining residence heard the victim's screams and called the police. Based on a description furnished by the victim, the police soon arrested the appellant in the backyard of a nearby house. The victim was later able to identify the appellant from a photo display as well as a physical lineup. Examination of the victim by a doctor indicated that intercourse had occurred.

In his first assignment of error, the appellant argues that denial of his motion in limine effectively denied him of the right to take the stand. In his motion in limine the appellant requested the trial court to exclude the use of a recent rape conviction for impeachment purposes. We have previously addressed this issue. By failing to take the stand and actually contest the trial court's decision, the appellant has precluded this issue from being brought before this Court. Nealy v. State, 636 P.2d 378 (Okl.Cr.1981).

In his second assignment of error, the appellant argues that the victim's identification of him should have been suppressed. After reviewing the photographs used as well as a photograph of the lineup we do not find them to be impermissibly suggestive. The contention that the victim did not see enough of the assailant to identify him is without merit. The description used to arrest the appellant was specific and matched him. Furthermore, the victim was very positive about her subsequent identification of Holbert. See, Lee v. State, 600 P.2d 344 (Okl.Cr.1979)....