Maple v. State, F-82-315
| Decision Date | 28 April 1983 |
| Docket Number | No. F-82-315,F-82-315 |
| Citation | 662 P.2d 315,1983 OK CR 52 |
| Parties | David Kent MAPLE, Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Appellant David Kent Maple was convicted by a jury of Robbery with a Dangerous Weapon After Former Conviction of Two Felonies, and was sentenced to twenty (20) years in prison. The conviction arose out of the robbery at knifepoint of an Al Musick drug store in Tulsa, Oklahoma. The State relied on the testimony of the pharmacist on duty, who testified that appellant "resembled" the robber, and the clerk-cashier, Ruth Klas, who positively identified appellant as the perpetrator.
This cause must be reversed and remanded for new trial on three grounds. First, the State improperly bolstered the identification testimony of Ms. Klas. The prosecutor was permitted over objection to cross-examine a police detective in the following manner:
Q. Sir, when Ruth Klas came in the line-up room, how long did she look at the six people before she indicated to you she identified one of them?
A. It was immediately.
* * *
* * *
Q. Detective Kirkland, what happened?
A. She walked in before the door was even closed, and she was looking, of course, at the people standing there. She grabbed herself and said, We then questioned her if she was positive, and she said she was positive without any doubt at all, 'That's the man who robbed me.' (Tr. 85-87)
Testimony that an extra-judicial identification was made may be admissible, but it is limited to the identifier herself, not third persons present at the time of the identification. See Hill v. State, 500 P.2d 1075 (Okl.Cr.1972) (Simms, J., Specially Concurring); and Towning v. State, 521 P.2d 415 (Okl.Cr.1974).
Second, the prosecutor engaged in improper cross-examination of appellant's character witnesses. To illustrate, counsel was permitted over objection to question one such witness as follows:
Q. In going through the main conversion and having the experience of living the good life, were you aware of the fact that he is identified by a third pharacist [sic], a third person, as being the perpetrator of a robbery at a different Al Musick Drug Store some three weeks earlier than this charge and he stands charged with that now?
* * *
* * *
Q. In forming your opinion and maintaining your opinion, are you discounting that person's identification of him? (Tr. 125-126).
Cross-examination of a character witness may include enough details of prior misconduct to indicate that it involved the same character traits, People v. Grimes, 173 Cal.App.2d 248, 343 P.2d 146 (1959), but not unnecessary and prejudicial details. State v. Kendrick, 31 Or.App. 1195, 572 P.2d 354 (1977).
That the alleged prior robbery involved a second Al Musick drug store, and that appellant had been identified as the robber by a witness, was unnecessary and highly prejudicial. The only effect was to prejudice appellant in the eyes of the jury, and this Court may grant redress. See Potts v. State, 502 P.2d 1287 (Okl.Cr.1972).
Finally, the jury was not instructed on the elements of the crime of robbery. Robbery is defined in 21 O.S.1981, § 791, and a proper jury instruction has been prepared. See OUJI-CR 486. Appellant failed to request such an instruction. However, it has long been established that the trial judge should, without request, instruct the jury on the essential elements of the offense, and the instructions should give the law of the case, including a definition of the offense sufficient to inform the jury of the facts necessary to justify a verdict of guilty. See Smith v. State, 40 Okl.Cr. 152, 267 P. 682 (Okl.1928).
The State's suggestion that the omission was remedied by inclusion of the information in the instructions,...
To continue reading
Request your trial
-
Primeaux v. State
...18, 749 P.2d 127, Hunter v. State, 1987 OK CR 165, 740 P.2d 1206, Atterberry v. State, 1986 OK CR 186, 731 P.2d 420, and Maple v. State, 1983 OK CR 52, 662 P.2d 315. 3.See Hain v. State, 1993 OK CR 22, ¶ 42, 852 P.2d 744, This Court has long held that a conviction for murder may be affirmed......
-
Myers v. Workman
...failing to challenge third party testimony regarding an identification since it was a violation of state law), and Maple v. State, 662 P.2d 315, 316 (Okla. Crim. App. 1983) (upholding state evidentiary rule that testimony regarding extra-judicial identification is limited to identifyer, not......
-
Davis v. State
...except as rebuttal or at an evidentiary hearing. E.g. , Kamees v. State , 1991 OK CR 91, ¶ 13, 815 P.2d 1204, 1207-08 ; Maple v. State , 1983 OK CR 52, ¶ 2, 662 P.2d 315, 316. We now find that prohibition too is undermined by Section 2801(B)(1)(c). Officer McGuire's challenged testimony rel......
-
Nickell v. State
...Elvaker v. State, 707 P.2d 1205, 1206 (Okl.Cr.1985)). See Also Trim v. State, 808 P.2d 697, 699 (Okl.Cr.1991) (same); Maple v. State, 662 P.2d 315, 316 (Okl.Cr.1983) (reversed because officer allowed to testify as to extrajudicial identification by victim); Brownfield v. State, 668 P.2d 116......