Smith v. State, F--76--308

• Decision Date: 13 September 1976
• Docket Number: No. F--76--308,F--76--308
• Citation: 554 P.2d 851
• Parties: Walter Lee SMITH, II, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 851

554 P.2d 851

Walter Lee SMITH, II, Appellant, v. The STATE of Oklahoma, Appellee.

No. F--76--308.

Court of Criminal Appeals of Oklahoma.

Sept. 13, 1976.

J. R. Settle, Muskogee, for appellant.

Larry Derryberry, Atty. Gen., Frank Muret, Asst. Atty. Gen., Douglas L. Combs, Legal Intern, for appellee.

OPINION

BUSSEY, Judge:

The appellant, Walter Lee Smith II, hereinafter referred to as the defendant, was charged in the District Court, Muskogee County, case No. CRF--75--258, with the offense of Robbery by Force, After Former Conviction of a Felony in violation of 21 O.S.1971, § 791. He was tried by a jury, convicted and punishment was fixed at fifty (50) years' imprisonment. From said judgment and sentence, a timely appeal has been perfected to this Court.

The State's first witness was John M. Smith, who resides in Oklahoma City. He testified that on August 14, 1975, while en route from Oklahoma City to Eufaula and points East, he stopped his car at the intersection of I--40 and I--35 to check his tires. While stopped here, he was approached by the defendant who requested a ride east on I--40. While intransit, the defendant produced a knife and forced the witness to let him drive. Subsequently, the defendant struck him in the face at various times and demanded money. The defendant also threatened to kill him several times.

Finally, shortly after he gave the defendant One Hundred Dollars ($100.00) from his wallet, the witness was able to grab the car keys, throw them from the car, and then jump out while the car was still moving. He caught a ride to the Biscuit Hill Cafe, where the highway patrol was notified. He was then driven by a service station operator back to the scene where the car had been abandoned by the defendant, after Mr. Smith had thrown the car keys out the window. But before reaching their objective, they encountered the defendant on the shoulder of I--40 whereupon he was confronted by this witness. At this time, a highway patrol vehicle arrived and the defendant was arrested. This witness identified State's Exhibits Nos. 1 & 2, a watch and green knapsack, respectively, as having been on the defendant's person when he gave him a ride and which were taken from the defendant upon his arrest. Also, pictures of the defendant's wounds and a bloody shirt, tie, and T-shirt were introduced into evidence.

The State then called John Hediger, the operator of the Fina Station located at I--40 and Highway 100, who had accompanied John Smith at the time he re-encountered the defendant. This witness' testimony substantially corroborated that of John Smith.

The State's final witness was Officer Gary Rogers, Patrolman for the Oklahoma Highway Patrol, who testified as to his arrest of the defendant. He then identified Exhibits Nos. 1 & 2, as items which were in possession of the defendant when arrested.

At this point the State rested and the defense presented its case.

The defense first called Mack Tiger, who lives in Tulsa, Oklahoma. He testified that he became acquainted with the defendant in April of 1975. On the morning of August 14, 1975, the defendant was at his room in the Ambassador Hotel and was last seen by this witness at 4:00 or 4:30 a.m. on that same morning at which time this witness went to sleep.

The defendant then testified in his own behalf. He denied that he was in Oklahoma City on the day in question. According to the defendant, he left the Ambassador Hotel at 5:30 a.m. and hitchhiked south from Tulsa on Highway 67 to a point below Henryetta where he picked up I--40 and proceeded west. He testified that he first saw John M. Smith when he was confronted by him on the shoulder of I--40 and subsequently arrested by Officer Rogers. The defendant admitted that he had been convicted of two prior felonies in Arkansas. The first conviction was for 'burglary and grand larceny' and subsequent conviction was for 'writing hot checks.' He received a suspended sentence for each of the prior convictions.

The defendant's first assignment of error is that the punishment imposed was excessive as a result of prejudice by remarks made by the prosecution in opening and closing statement. However, this Court need not address the alleged error in the opening statement since the defense did not make timely objection in the trial court. In Hardin v. State, Okl.Cr., 540 P.2d 1204 (1975), a similar case wherein improper comments were made by the prosecution in closing argument, this Court held that any objectionable statement by the prosecution should be called to the attention of the trial court by timely objection and by failing to do so, the defendant waives any objection unless the remarks in the instant case are so fundamentally prejudicial that the court cannot, by instructions to the jury, correct such error. Also see McCall v. State, Okl.Cr., 539 P.2d 418 (1975). Upon a review of the record, we find that the prosecutor's statement did not constitute fundamental error.

However, the defendant did make timely objection to the statement made by the prosecution during closing statement in the second stage of the trial (Tr. 153) wherein the trial record reads as follows:

'MR. RICHARDSON: . . . But, at any rate, ladeis (sic) and gentlemen, I would like to point this out as a part of the closing argument; this young man here testified that he was convicted or pleaded guilty to writing hot checks, and he got a deferred sentence--

'MR. SETTLE: I object to him arguing that. That's not part of this proceeding, that plea of guilty--

'THE COURT: Sustained. . . . I will admonish the jury not to consider the statement of counsel just made as to the checks or check charge; it isn't a part of this trial.'

While the charge for writing hot checks should not have been mentioned in this stage of the trial since not included in the information charging After Former Conviction, this Court finds that the Court's admonition to the jury to disregard the State's reference to the defendant's conviction for writing hot checks cured any error which might have arisen. As this Court stated in Kitchens v. State, Okl.Cr., 513 P.2d 1300 (1973):

'. . . The court's admonition to the jury not to consider the remarks of counsel, or a witness, usually cures an error unless it is of such a nature after...