Lewis v. State, F-77-781

• Decision Date: 31 October 1978
• Docket Number: No. F-77-781,F-77-781
• Citation: 1978 OK CR 123,586 P.2d 81
• Parties: Robert Aubrey LEWIS, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 81

586 P.2d 81

Robert Aubrey LEWIS, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-77-781.

Court of Criminal Appeals of Oklahoma.

Oct. 31, 1978.

An appeal from the District Court, Oklahoma County; Dick S. Jones, judge.

Robert Aubrey Lewis, appellant, was convicted of the offense of Forgery in the

Second Degree, After Former Conviction of a Felony; was sentenced to twenty-seven (27) years' imprisonment, and appeals. AFFIRMED

John T. Elliott, Public Defender, Garvin A. Isaacs, First Asst. Public Defender, for appellant.

Larry Derryberry, Atty. Gen., Bill J. Bruce, Asst. Atty. Gen., Charles Helm, Legal Intern, for appellee.

OPINION

CORNISH, Judge:

Robert Aubrey Lewis, hereinafter referred to as defendant, was convicted in the Oklahoma County District Court, Case No. CRF-76-4712, of the offense of Forgery in the Second Degree, After Former Conviction of a Felony, pursuant to 21 O.S.1971, § 1577. The jury fixed his punishment at twenty-seven (27) years in the State penitentiary.

On November 29, 1976, the place of business of Loyal W. Furry, an architect, was burglarized and a number of company checks were stolen therefrom. On that same date, Don Wood, a salesman at the Red Wing Shoe Store in Oklahoma City, received a Furry Associates check in the amount of $174.00 from a man he identified as the defendant. Mr. Furry testified that the signature on the check was not his. The check, offered in payment for merchandise, was made payable to a Charles W. Fillmore. Mr. Fillmore testified that the endorsement on the back of the check was not his and, also, that he had items of identification stolen in October of 1976.

The defendant, in his first assignment of error, alleges that the trial court abused its discretion by excusing a juror upon its own motion. After both the State and the defense had exercised all peremptory challenges, Marvin D. Johnson was called to the jury box as a potential juror. Upon questioning by the court and the District Attorney, it was determined that the juror had previously received a two year deferred sentence for possession of heroin. Upon learning this, the court excused the juror on its own motion.

It is well settled in Oklahoma that a defendant has no vested right to have a particular juror out of a panel. His right is that of objection rather than that of selection. And if the trial court is of the opinion that any juror is not fair or impartial or is for any reason unqualified, he may excuse the juror either upon challenge of one of the parties or upon his own motion without challenge. Whether or not a juror should be excused rests in the sound discretion of the trial court, and unless such discretion is abused there is no error. See, Bickerstaff v. State, Okl.Cr., 446 P.2d 73 (1968). A review of the transcript in the present case reveals that the trial judge did not abuse his discretion by excusing the juror for cause. The reasons for the exercise of such discretion were stated as follows:

"(THE COURT): The Court in the exercise of discretion, felt that the man should be excused for cause. And the Court did excuse the juror, Johnson, for the reason that he was hesitant in his answers, would not give a clear answer to any question, and then when he admitted that he'd been convicted of a heroin charge the Court felt that he was an unfit juror and therefore excused . . . ."

Based on the...