Mitchell v. State
| Decision Date | 22 February 1983 |
| Docket Number | No. F-82-403,F-82-403 |
| Citation | 659 P.2d 366 |
| Parties | Rickey Darnell MITCHELL, Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
The appellant was convicted in the District Court of Cleveland County of Robbery with a Firearm, After Former Conviction of a Felony, and was sentenced to twenty (20) years of imprisonment.
At trial the State relied on the victim's identification of the appellant as the robber and the fact that when he was arrested he was in possession of a firearm stolen in the robbery.
The appellant's first two assignments of error relate to the in-court identification. The victim who had observed the appellant in broad daylight, although briefly, selected on two occasions the appellant's photograph from an array of photographs in which all participants had similar facial characteristics, hair styles, and hair lengths. Later, at trial she again identified the appellant and was subject to cross-examination on the issue. The appellant asserts that the pre-trial photographic lineups were impermissibly suggestive and thereby tainted the subsequent in-court identification. Secondly, he argues that the trial court erred when it failed to deliver a cautionary instruction on eyewitness identification. Neither of these issues were raised below. Having failed to move to suppress the identification or to request an in camera hearing on the matter, the appellant waived the issue, absent fundamental error. Parker v. State, 570 P.2d 342 (Okl.Cr.1977). Our examination of the record on this point convinces us there was no such error.
Further by failing to request cautionary instructions, the appellant waived this issue for appellate purposes. Where counsel is not satisfied with the instructions that are given, or desires the court to give a particular instruction, it is the duty of counsel to prepare and present to the court such desired instructions and request that they be given. In the absence of such a request, we will not reverse the case if the instructions generally cover the subject matter of inquiry and there is no fundamental error. West v. State, 617 P.2d 1362 (Okl.Cr.1980). We find no fundamental error here, since the record shows that there was a good opportunity for positive identification; the witness was positive in her identification; the identification was not weakened by prior failure to identify; and, the witness remained positive as to the identification, even after cross-examination. Therefore such instructions were not necessary. Pisano v. State, 636 P.2d 358 (Okl.Cr.1981).
The appellant next complains that State's witness, Officer Kirby, injected an evidentiary harpoon during direct examination. Kirby's response to the State's question of how the appellant had changed his appearance was, "He has grown a beard, since the first time I arrested him." It is clear that the State did not deliberately solicit testimony regarding any prior arrests. We are of the opinion that the trial court's admonishment to the jury to disregard the remark cured any error, as did the defense counsel's further inquiry into the matter, which is discussed below. When the trial court properly admonishes the jury to disregard a remark and the remark objected to does not constitute a fundamental error, reversal will not lie. Wiley v. State, 551 P.2d 1146 (Okl.Cr.1976).
The above assignment of error relates to the next proposition that evidence of other crimes was improperly introduced. The appellant argues that the evidentiary harpoon necessitated further inquiry by the defense in order to show that the appellant had been acquitted on the prior charge of unauthorized use of an automobile for which he had been originally arrested. Where the State, acting in good faith, solicits otherwise improper testimony, and the defense counsel afterwards proceeds to equally develop the area of prejudice on cross-examination, the error is waived and/or cured. See Williams v. State, 542 P.2d 554 (Okl.Cr.1975), vacated on other grounds 428 U.S. 907, 96 S.Ct. 3218, 49 L.Ed.2d 1215, on remand 554 P.2d 109 (1976). Since, the defense's development of the matter invited further inquiry by the State, we find no reversible error.
The appellant also contends that evidence he was carrying loaded firearms, in violation of 21 O.S.1981, § 1289.13, was improperly introduced. He asserts that the State failed to observe the notice of other crimes requirement as set out in Burks v. State, 594 P.2d 771 (Okl.Cr.1979).
As stated in Burks, supra, the "general rule is that when one is put on trial, one is to be convicted--if at all--by evidence which shows one guilty of the offense charged; and proof that one is guilty of other offenses not connected with that for which one is on trial must be excluded." (Citations omitted). Here one of the guns seized was a fruit of the robbery; the other was, in probability, the instrumentality of the armed robbery. Both primarily went to show the guilt of the accused for the particular offense charged, and for that purpose were not evidence of other crimes under Burks. We do not find that the incidental showing that the weapons were loaded at the time of seizure activated the Burks notice requirement of other crimes where the guns themselves were part and parcel of the principal crime itself. See Warner v. State, 568 P.2d 1284 (Okl.Cr.1977), cert. denied 434 U.S. 999, 98 S.Ct. 641, 54 L.Ed.2d 494; Cooks v. State, 560 P.2d 1019 (Okl.Cr.1977).
The appellant next cites as error several comments made by the prosecutor during closing argument. None of these were objected to at trial and are raised now for the first time on appeal. We...
To continue reading
Request your trial
-
Mansfield v. Champion
...the prima facie case, while the state retains the ultimate burden of persuasion on proving the prior conviction. Mitchell v. State, 659 P.2d 366, 369 (Okla.Crim.App.1983). Mansfield claims that he objected to the use of the 1975 judgment and sentence at his 1984 trial, but does not claim th......
-
Lamar v. State
...raise his Proposition II claim below, thus waiving review on appeal for all but plain error. Mitchell v. State , 1983 OK CR 25, ¶ 3, 659 P.2d 366, 368. To be entitled to relief under the plain error doctrine, Appellant must show an actual error, which is plain or obvious, and which affects ......
-
Vanderpool v. State
...judgment and sentence."); Rosteck v. State , 1988 OK CR 11, ¶ 7, 749 P.2d 556, 558 (same); Mitchell v. State , 1983 OK CR 25, ¶ 11, 659 P.2d 366, 369 (once State produces prima facie evidence of identity, the burden of producing evidence to rebut the prima facie evidence shifts to the defen......
-
Hall v. State, F-83-576
...if at all, by evidence which shows one guilty of the offense charged. Blackwell v. State, 663 P.2d 12 (Okl.Cr.1983); Mitchell v. State, 659 P.2d 366 (Okl.Cr.1983). We view such evidence as part of the entire transaction occurring immediately after the homicide. The testimony of Frank Ritter......