Jones v. State, F-78-284

• Decision Date: 29 April 1980
• Docket Number: No. F-78-284,F-78-284
• Citation: 610 P.2d 818
• Parties: Ceasar Adolph JONES, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 818

610 P.2d 818

Ceasar Adolph JONES, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-78-284.

Court of Criminal Appeals of Oklahoma.

April 29, 1980.

An Appeal from the District Court, Okmulgee County; Jess I. Miracle, Judge.

Ceasar Adolph Jones, appellant, was convicted of the offense of Shooting With Intent to Kill; was sentenced to twenty (20) years' imprisonment, and appeals. Judgment and sentence MODIFIED to ten (10) years' imprisonment and otherwise AFFIRMED.

Edwin W. Ash, Ash, Shamas & Crews, Okmulgee, for appellant.

Larry Derryberry, Atty. Gen., Duane N. Rasmussen, Asst. Atty. Gen., for appellee.

OPINION

CORNISH, Presiding Judge:

From his conviction of Shooting With Intent to Kill, this appeal is brought from a twenty (20) year sentence imposed on the appellant in Okmulgee County, Case No. CRF-74-152.

Reversal is urged on the following grounds:

1. Prejudicial closing argument;

2. Improper testimony relating to appellant's arrest;

3. The verdict form was improper.

Officer Harry Ledbetter of the Okmulgee Police Department was shot in the shoulder, back of the neck and side of his head in attempting to arrest the appellant on a disturbance call. When the appellant refused to come back to the police car, the officer grabbed a shotgun from the car and shouted, "This is the police." The officer's gun malfunctioned and he was shot by the appellant.

First complained of as error is testimony from Officer Baker relating to failure of the appellant to answer the knock on the door when the arrest was made, subsequent to the shooting. He argues that the testimony of the officer fails to show consciousness of guilt or to be a part of the res gestae. The State counters by contending that the time lapse between the knock on the door and the actual arrest was used by the appellant to hide the shotgun which was later found in the attic. The admission of this testimony was properly within the discretion of the trial judge, and we find that discretion was not abused. We find Noah v. State, Okl.Cr., 562 P.2d 950 (1977), to be dispositive of this issue.

Next urged for reversal and remand is that the sentence on the verdict form was filled out by the foreman in open court and thus, the sentence should be reduced to the statutory minimum in accordance with our prior holding in Turner v. State, 27 Okl.Cr. 274, 226 P. 1064 (1924). Although it might have been the better practice to send the jury back to complete the form, the jurors were in fact polled in open court as to the unanimous verdict. We find that the verdict lacked any ambiguity and was thus proper. See Disheroon v. State, Okl.Cr., 357 P.2d 236 (1960), and Nix v. State, Okl.Cr., 453 P.2d 309 (1969).

Lastly argued, and of grave concern to us, are the following comments of the prosecutor, Mr. A. O. Webb, in his closing argument to the jury.

"(MR. WEBB) Now, Ladies and Gentlemen, you have heard the evidence, but I say to you, the state of law enforcement is a sad situation in this country today and the biggest hangup in it is people that sits in these jury boxes . . . and they don't have the intestinal fortitude to enforce that law and inflict penalties that will pay for the penalties that the crime warrants. We can't live here if p...