Kupiec v. State, s. A--16864
| Decision Date | 19 January 1972 |
| Docket Number | A--16879,Nos. A--16864,s. A--16864 |
| Citation | 493 P.2d 444 |
| Parties | Jimmy Dale KUPIEC, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Andrew T. Dalton, Public Defender, Tulsa County, for plaintiff in error.
Larry Derryberry, Atty. Gen., Fred H. Anderson, Asst. Atty. Gen., Ray Parks, Legal Intern, for defendant in error.
Jimmy Dale Kupiec, hereinafter referred to as defendant, was charged, tried, and convicted in the District Court of Tulsa County, Oklahoma for the offenses of Robbery with a Firearm and First Degree Rape. His punishment was fixed in the robbery case at a term of not less than twenty (20), nor more than sixty (60), years imprisonment, and his punishment was fixed in the first degree rape case to a term of one hundred and three (103) years imprisonment; from said judgments and sentences, timely appeals have been perfected to this Court. Because of similar issues which are urged in the appeals, the cases have been consolidated for decision.
The evidence in both cases was substantially the same. Jeanetta Stout testified that at approximately 5:00 o'clock on the morning of August 25, 1970, someone rang her doorbell, and hammered at the front door. Answering her doorbell, she observed two persons, one bending over as if in pain. One of the persons said, 'Please, Mrs. Stout, I need help, and I want to use your phone.' Thinking that it was the paper boy, she opened the front door, and upon discovering that it was not the paper boy, attempted to close the door. The two persons forced their way inside the house, and Mrs. Stout was knocked back over the coffee table. One of the persons said, 'Jackie, go get the old man.' Each person had a gun in his hand, and one of the persons went to the bedroom and forced her husband back into the living room, hitting, pushing, and dragging him into the room, She and her husband were both beaten, bound, and threatened as they were forced to lie on the floor. The two persons moved throughout the house, taking items of personal property, which were eventually secured in a window drape. She was dragged from the living room into a bedroom by the person whom she identified in court as the defendant. Upon reaching the bedroom, with her hands still bound behind her back, she was forced to submit to an act of sexual intercourse with the defendant. The defendant had the gun in his hand at all times during the intercourse, and threatened to blow her head off.
Sharon Eddy testified that she was a niece by marriage to Mrs. Stout, and that in the early morning hours of August 25, she had a conversation with the defendant and Jack Benjamin concerning the residence of her aunt. They stated that they were going to rob them. At the armed robbery trial, she testified in addition that the defendant and Benjamin returned later that morning with several boxes, jewelry, and a mink stole. They related to her how they gained entrance to the house by pretending to be a paper boy, and that they had robbed her aunt and uncle.
The defendant did not testify, nor was any evidence offered in his behalf at the rape trial; at the armed robbery trial, the only witness called for the defense was Jewel Martin, who testified that she was present in the sheriff's office prior to a line-up being conducted on August 31, and that the defendant and Jack Benjamin were paraded by the Stouts.
The first proposition asserts that the trial court erred in allowing evidence of the rape in the armed robbery case, and the armed robbery evidence in the rape case. We are of the opinion that the evidence of the other crime in both cases was properly admitted, and that the same was part of the res gestae. We further observe that the same would be admissible under the exception to the general rule that when a defendant is put on trial for one offense, he is to be convicted, if at all, by evidence which shows that he is guilty of that offense alone, and the admission of evidence of other crimes, either prior or subsequent to the offense for which he is on trial, is inadmissible. In Moulton v. State, Okl.Cr., 476 P.2d 366, we recently stated:
'However, evidence of separate and similar offenses is admissible when it is material and proper to show (1) motive, (2) intent, (3) absence of mistake or accident, (4) identity of person charged with the commission of the crime for which an accused is put on trial, and (5) common scheme or plan embracing the two or more crimes so related to each other that proof of one tends to establish the other.'
Defendant further argues under this proposition that the admission of the evidence of the other crime in each case violates the prescription against double punishment for a single transaction, or course of conduct. We are of the opinion that the armed robbery and the rape were clearly separate and distinct crimes. The proof required for a conviction of armed robbery and the proof required for a conviction of rape is quite dissimilar. In the recent case of Tucker v. State, Okl.Cr., 481 P.2d 167, in response to defendant's contention that double punishment for a single criminal objective and intent, act, or course of conduct amounts to cruel and unusual punishment, the Court said:
The next proposition contends that the trial court erred in instructing the jury that the indeterminate sentence must be given by a factor three times the minimum assessed. This proposition is well taken. However, we are of the opinion that the error is harmless. Title 57 O.S., § 353, provides as follows:
(Emphasis Added)
In the instant case, the jury was instructed that if they saw fit to assess an indeterminate sentence, the minimum term may be less than, but shall not be more than, one-third of the maximum sentence imposed by the jury. This instruction would appear to be beneficial to the defendant, rather than detrimental. Without this portion of the instruction, the jury could have sentenced the defendant to a term of not less than fifty-nine, nor more than sixty, years. By the court's instruction, the jury was limited, in that if the maximum term was sixty years, the minimum term could have been less than, but not more than, twenty years.
The third proposition contends that the trial court erred in allowing the in-court identification after an Evidentiary Hearing. At the Evidentiary Hearing, Mrs. Stout testified on cross examination as follows:
'Q. Mrs. Stout, at any time then before you viewed the pictures, did anyone suggest to you at all who you should pick out?
'A. Oh, no.
'Q. Did anybody make a suggestion as to who--what picture you should pick out?
'A. No.
'Q. At any time prior to the lineup did anyone, did the police officers, or anyone else, suggest which man in the lineup you were to pick out?
'A. No, sir.
'Q. Did they tell you which man's name was Kupiec prior to viewing the lineup?
'A. No, sir.
'Q. Mrs. Stout, is your identification based on what you remember at the time (sic) crime we are dealing with, or at the...
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Hale v. State, F-92-162
...even if offenses arose from single continuing transaction, as each crime separate & distinct with dissimilar proof); Kupiec v. State, 493 P.2d 444, 446 (Okl.Cr.1972) (not § 11, trial for armed robbery and trial for rape, same events, not prohibited because proof dissimilar, separate crimes ......
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Johnson v. State
...two offenses are the same for double jeopardy purposes. Cited therein as rejecting the "same transaction test" is Kupiec v. State, Okl.Cr., 493 P.2d 444, 446 (1972). In Kupiec the defendant forced his way into a house, took various items of personal property, and raped one of the residents.......
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Clay v. State
...dissimilar proof, even though they arise from the same transaction. Barnhart v. State, Okl.Cr., 518 P.2d 1123 (1974); Kupiec v. State, Okl.Cr., 493 P.2d 444 (1972) and Tucker v. State, Okl.Cr., 481 P.2d 167 (1971). Offenses viewed in such a posture are not mere means to some other ultimate ......