Robinson v. State, F-77-278

• Decision Date: 30 January 1978
• Docket Number: No. F-77-278,F-77-278
• Citation: 574 P.2d 1069
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
• Parties: Albert ROBINSON, Appellant, v. The STATE of Oklahoma, Appellee.

Page 1069

574 P.2d 1069

Albert ROBINSON, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-77-278.

Court of Criminal Appeals of Oklahoma.

Jan. 30, 1978.

An Appeal from the District Court, Tulsa County; B. R. Beasley, judge.

Albert Robinson, appellant, was convicted of the offense of Assault and Battery With a Dangerous Weapon, After Former Conviction of a Felony; was sentenced to ten (10) years' imprisonment, and appeals. Judgment MODIFIED to five (5) years' imprisonment, and otherwise AFFIRMED.

Thomas W. Burns, Deputy Chief Public Defender, Stanley D. Monroe, Legal Intern, Tulsa County, for appellant.

Larry Derryberry, Atty. Gen., Robert L. McDonald, Asst. Atty. Gen., Duane N. Rasmussen, Legal Intern, for appellee.

OPINION

BRETT, Judge:

Appellant, Albert Robinson, hereinafter referred to as the defendant, was charged in the District Court, Tulsa County, Case No. CRF-76-1624, with the offense of Assault and Battery, With a Deadly Weapon, After Former Conviction of a Felony, in violation of 21 O.S.1971, § 652. He was tried by a jury, convicted of the lesser included offense of Assault and Battery With a Dangerous Weapon, After Former Conviction of a Felony, in violation of 21 O.S.1971, § 645, and sentenced to imprisonment in the State penitentiary for a term of ten (10) years. From this judgment and sentence the defendant has perfected a timely appeal to this Court.

Briefly stated the facts adduced at trial are as follows. On June 12, 1976, Thurman Dixon and a friend, Samuel Crossler, went to the apartment of Anna Mae Morris, at which time Dixon engaged in a dice game which was in progress. After playing for awhile, Dixon became involved in an argument with the defendant concerning a gambling debt. After being insulted by the defendant, Dixon gathered his winnings from the table and backed toward the door. At this point, the defendant pulled a knife from his pocket and started toward Dixon. The defendant then stabbed Dixon twice in the upper body.

Upon observing what was transpiring, Dixon's friend, Crossler, came to the aid of Dixon and pulled the defendant away from Dixon, stating that he had done enough. The defendant then departed, after stating, "That will teach you mother fucker, to quit fucking with me." As a result of his wounds, Dixon was hospitalized for a period of nine or ten days, approximately two days of which were spent in Intensive Care.

The defendant admitted being present at the dice game but denied having stabbed Thurman Dixon. He stated that, in fact, he did not even learn of the stabbing until the next day.

The defendant's first assignment of error is that the court erred in allowing the allegation of sentence given in a former conviction to be read to the jury without admonishing the jury to disregard it. First, we note that the two stages of what otherwise would have been a bifurcated proceeding were joined by the agreement of the State and the defense. Furthermore, the defendant had ample opportunity to read both pages of the information, and he failed to object until after the information had been read to the jury and the prosecutor's opening statement given. Therefore, we are of the opinion that even if it was improper to read the sentence, ¹ the defendant waived the error. See, Metoyer v. State, Okl.Cr., 538 P.2d 1066 (1975). The proper procedure would have been for the defendant to move that the court strike the objectionable material from the information prior to its reading to the jury. See, Metoyer v. State, supra. See also, Herndon v. State, Okl.Cr., 552 P.2d 707 (1976); and Barber v. State, Okl.Cr., 388 P.2d 320 (1963). We further note that the portion of the information objected to by the defendant was subsequently stricken by the court and was not included in the instructions to the jury, although the jury was not admonished to disregard the sentencing.

The defendant's next three assignments of error are that the court erred in not granting a mistrial upon the District Attorney's reference to other crimes and intimations of parole violations by the defendant, that the trial court erred in refusing to grant a mistrial because of improper cross-examination of defendant by the District Attorney, and that the District Attorney made remarks during the closing argument that were improper and by their nature were so prejudicial as to have denied defendant a fair trial. That the prosecutor was at the very least overzealous is obvious from the outset. First, the prosecutor brought it before the jury that the defendant was on parole at the time of the alleged crime. He further brought out that in being in a gambling establishment, the defendant was in violation of his parole. As this Court stated in Bell v. State, Okl.Cr., 381 P.2d 167, 173 (1962):

". . . The law does not make it any part of the jury's province to speculate on the defendant's conduct in the penitentiary, and the awards of grace he may receive because of good behavior. In fact, the jury's role is that of an arm of the judicial branch of the government, and the incarceration of a convict is one of administration for an arm of the executive branch of the government. To permit the jury to project itself in this manner into the executive branch of the government is clearly contrary to our constitutional concept of division of powers. . . ."

See also, Sam v. State, Okl.Cr., 523 P.2d 1146 (1974); Evans v. State, Okl.Cr., 541 P.2d 269 (1975). We think that it is no less prejudicial to a defendant to have the idea of possible parole put in front of the jury through the circuitous means of referring to the fact that the defendant is already on parole from a prior conviction. Therefore, we think the prosecutor erred in putting before the jury the fact that the defendant was on parole at the time of the crime.

Furthermore, the prosecutor on several occasions...