Parker v. State, F-77-345
| Decision Date | 20 September 1977 |
| Docket Number | No. F-77-345,F-77-345 |
| Citation | 570 P.2d 342 |
| Parties | Kenneth Earl PARKER, Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Appellant, Kenneth Earl Parker, hereinafter referred to as defendant, was charged, tried and convicted by a jury in the Oklahoma County District Court, Case No. CRF-76-3089, of the offense of Robbery With Firearms, After Former Conviction of a Felony. The jury assessed punishment at thirty-seven (37) years' imprisonment. From said judgment and sentence defendant has perfected an appeal to this Court.
This case arose out of the armed robbery of the Dairy Queen restaurant in the Village, Oklahoma, at about 11:30 p. m. on July 25, 1976. The State's evidence showed that at the time and place aforesaid the restaurant was closed, although several employees and customers were still on the premises. Two black men entered through a rear door. Both had their left hands over their mouths and carried guns. One, dressed in gold trousers and a green flowered shirt, announced, "this is a robbery," and proceeded to the front of the store. The other robber went into a back room. The robber who went to the front directed Jimmy Marson, an employee, to give him the money from the register. Marson complied as another employee, Steve Bedwell, stood nearby and watched. Several other customers and employees watched as well from a short distance away, including Cindy Aiello and Karen Morton. After the money was placed in a sack, the man in the flowered shirt walked to the back of the store where he was joined by his companion, who had been in the back room. As they left they dropped their hands from their mouths and looked at witnesses Morton and Aiello. They then left, and the police were called.
At trial, Jimmy Marson was unable to identify defendant; however, both Aiello and Morton stated that defendant Parker was the man in the flowered shirt who proceeded to the front of the store and took the money from Marson. On cross-examination of Aiello and Morton, defense counsel went into great detail concerning several lineups and photo lineups which the witnesses had viewed.
The State also called Detective Heath of the Oklahoma City Police Department who testified as to his investigation, and as to the manner in which the lineups were conducted.
The only evidence offered by defendant was the testimony given by Steve Bedwell at the preliminary hearing on this matter. Bedwell stated at the preliminary hearing that he was present and stood only a few feet from Marson as Marson gave the money to the robber in the flowered shirt. However, he too was unable to identify defendant.
In support of the after former charge, the State introduced evidence that defendant had been previously convicted of armed robbery.
Defendant's first assignment of error is that the trial court committed fundamental error in not giving an in camera hearing, on its own motion, to determine whether any lineup in which defendant appeared and was identified was held after he had been charged, and whether he had been without benefit of counsel. No request for such a hearing was made.
After carefully reviewing the record, we are of the opinion that it contains sufficient evidence from which we can conclude that all lineups in which defendant participated, and in which he was identified, were held prior to the filing of the information. At trial Aiello and Morton testified that they each identified the defendant at separate lineups. Their testimony further indicates...
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Mitchell v. State
...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 Further by failing to request cautionary instruc......
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Hair v. State
...moved to suppress the identification, nor did he at any time request an in camera hearing to inquire into the matter. Parker v. State, Okl.Cr., 570 P.2d 342 (1977). The defendant in his second assignment of error, asserts that the admission into evidence of his red and black plaid flannel s......
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Garcia v. State
...into the matter. Thus, he has waived any error that might have occurred. Hair v. State, 597 P.2d 347 (Okl.Cr.1979); Parker v. State, 570 P.2d 342 (Okl.Cr.1977). II Next, the defendant complains of error by the trial court in failing to deliver a cautionary instruction on eyewitness identifi......