McKee v. State, F-76-791

• Citation: 576 P.2d 302
• Decision Date: 23 February 1978
• Docket Number: No. F-76-791,F-76-791
• Parties: William Greg McKEE, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 302

576 P.2d 302

William Greg McKEE, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-76-791.

Court of Criminal Appeals of Oklahoma.

Feb. 23, 1978.

An appeal from the District Court, Oklahoma County; John N. Henderson, Judge.

William Greg McKee, appellant, was charged and convicted for the offense of Burglary in the Second Degree, After Former Conviction of a Felony; was sentenced to fifteen (15) years' imprisonment and he appeals. Judgment and sentence is MODIFIED from fifteen (15) years' imprisonment to ten (10) years' imprisonment and AFFIRMED.

Joe L. Roselle, Gary D. Long, Oklahoma City, for appellant.

Larry Derryberry, Atty. Gen., Robert L. McDonald, Asst. Atty. Gen., Charles S. Rogers, Legal Intern, for appellee.

OPINION

BUSSEY, Presiding Judge:

Appellant, William Greg McKee, hereinafter referred to as defendant, was charged with violation of 21 O.S.1971, § 1435, Burglary in the Second Degree, After Former Conviction of a Felony. He was tried before a jury in the Oklahoma County District Court, convicted, and sentenced to fifteen (15) years in the Oklahoma State Penitentiary. From said judgment and sentence defendant has perfected an appeal to this Court.

The defendant was discovered by the police inside the thawing room of a Sirloin Stockade Restaurant in Oklahoma City at approximately 5:20 a. m. He was arrested, searched, and transported to the City Jail where he was booked on a charge of burglary. At the scene, a long screwdriver and its broken tip were found upon the defendant's person. The thawing room door had been opened by prying up a retaining eyebolt.

The defendant had three previous drug related convictions, and was on parole at the time of his arrest.

During the second stage of the trial, it was stipulated that the defendant in this case, No. CRF-75-3724, was one and the same person as William Greg McKee, who was named in the Judgment and Sentence of Case No. CRF-74-2838; that said former conviction was for unlawful possession of controlled drugs; that the conviction in Case No. CRF-74-2838 is a final judgment; and that State's Exhibit No. 8 is a certified copy of that judgment and sentence.

The defendant's first assignment of error is that the trial court erred in allowing State's Exhibit Nos. 1 and 2 (the screwdriver, its broken tip, and a pair of gloves) into evidence, contending that the State failed to properly connect these instrumentalities to the crime. The defendant cites Adcock v. State, Okl.Cr., 444 P.2d 242 (1960), as authority for the proposition that the State must demonstrate the instrumentality's connection in two different ways. According to the defendant's interpretation of Adcock, it would be necessary for the State to show both the instrumentality's connection to the defendant, and to separately demonstrate its linkage to the crime. We do not share that interpretation. In Adcock, supra, we held that such evidence is admissible when "(1) the burglary tools are connected with the defendant, or (2) where they are connected with the crime." In the present case, the implements in question were clearly connected with the defendant, having been found upon his person at the time of his arrest. In volume 22A C.J.S. Criminal Law § 712 it is stated:

" * * * a weapon or instrument found in the possession of accused or of his criminal associates which, although not identified as the one actually used, is similar in form and character thereto, or which, from the circumstances of the finding, justifies an inference of the likelihood or possibility of its having been used, is admissible for the purpose of showing availability to the accused of the means of committing the crime in the manner in which it is shown to have occurred."

See Harris v. State, Okl.Cr., 450 P.2d 857 (1969) and Beeks v. State, Okl.Cr., 563 P.2d 653 (1977). It is our opinion that the broken screwdriver in the instant case is an instrument the accused could have used to pry open the door to the thawing room and as such is admissible evidence under the above stated authority. Therefore, we find that the defendant's first assignment of error is without merit.

The defendant's second assignment of error is that the trial court committed reversible error in allowing the State, over the defendant's objection, to cross-examine the defendant as to the details of his prior convictions. The record reveals that defense counsel's objection was provoked by the prosecutor's improper references to the defendant's previous parole.

The defendant argues that the prosecutor implied during this cross-examination, that defendant was motivated to commit the crime charged by the need to support an alleged drug habit. Furthermore, defendant insists that this inflamed the jury in the conviction stage of the proceedings to an extent sufficient to prejudice the result. This Court, in Booker v. State, Okl.Cr., 312 P.2d 189 (1957) stated:

"Testimony of other convictions may be inquired into for the purpose of testing credibility of the defendant on cross-examination, but in no event is it admissible to prove other offenses committed by defendant unless it comes within one of the exceptions to the rule as laid down in previous decisions by this court. Those exceptions permit evidence of other crimes when it tends to establish, (1) motive, (2) intent, (3) the absence of mistake or accident, (4) common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other, (5) the identity of the person charged with the commission of the crime on trial."

It is apparent that the State's inquiry in this case, though not exemplary, was within the bounds of the motive exception set forth in Booker. It cannot fairly be said, therefore, that this aspect of the cross-examination was a source of prejudicial harm. Furthermore, we remain unconvinced that the jury became "inflamed" during either stage of this trial. During the second stage of the trial, the jurors were instructed to assess a punishment of not less than ten (10) years. We find it difficult to accept the proposition that a jury, "inflamed" to a degree sufficient to prejudice the defendant in the conviction stage of the trial, would not retain such prejudicial disposition during the subsequent stage. Therefore, we find it significant that the jury in the present case recommended only a fifteen-year sentence. This does indeed indicate, as the defendant's counsel so ably pointed out, that the jury intended to assess a punishment which was only marginally above the ten-year minimum established by the court's instructions.

The State's references, in the course of this cross-examination, to the parole procedures utilized by the Oklahoma Department of Corrections are of greater concern. This concern is compounded, in the present case, by fact that these references were incorporated into a cross-examination designed to explore defendant's previous convictions. As a general proposition, it is usually proper for the prosecuting attorney to cross-examine the defendant as to former convictions. Mathews v. State, Okl.Cr., 549 P.2d 358 (1976). However, such questioning is permissible only insofar as it remains within the bounds of propriety previously defined by this Court. That boundary was first established in Little v. State, 79 Okl.Cr. 285, 154 P.2d 772 (1945), wherein we said:

"The court should not allow the County Attorney to go into detail concerning the crime for which the defendant had been formerly convicted, as that is a collateral matter, not relevant to the crime charged and the conviction may only be inquired into for the purpose of affecting the credibility of the witness. The conviction, the name of the court in which the conviction occurred, the nature of the crime, and the date are all pertinent factors, but the details of the crime involve extraneous matters concerning which the prosecution should not inquire . . ."

In Winn v. State, 94 Okl.Cr. 383, 236 P.2d 512 (1951), the defendant was convicted of child molestation and sentenced to five years in the penitentiary. There, we invoked the criteria set out in Little, supra, and determined that the cross-examination of the defendant exposed too much detail of a former conviction. This, along with the fact that the prosecution subsequently failed to prove the former conviction therein discussed, served as the basis for modification of the sentence to three years imprisonment. The defendant's attorney cites Ervin v. State, Okl.Cr., 351 P.2d 401 (1960), as authority for the proposition that the defendant suffered prejudicial consequences from the jury's exposure to details of defendant's former convictions, as revealed during his cross-examination. However, the excessive "detail" which this Court found objectionable in the Ervin case is not duplicated in the case at hand. In Ervin, supra, the defendant had been convicted of Burglary in the Second Degree, After Former Conviction of a Felony, and we reversed. There, the State's attorney, in the course of cross-examining the accused, delved deeply into the specific circumstances surrounding each of his three prior burglary convictions. After close scrutiny of the record in the present case, we have determined that it fails to reveal "detail" of the...