Stucker v. State, A--16382

• Decision Date: 19 January 1972
• Docket Number: No. A--16382,A--16382
• Citation: 493 P.2d 84
• Parties: Arthur Vernon STUCKER, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 84

493 P.2d 84

Arthur Vernon STUCKER, Plaintiff in Error, v.The STATE of Oklahoma, Defendant in Error.

No. A--16382.

Court of Criminal Appeals of Oklahoma.

Jan. 19, 1972.

Rehearing Denied Feb. 8, 1972.

David K. Petty, Guymon, for plaintiff in error.

Larry Derryberry, Atty. Gen., Todd Markum, Asst. Atty. Gen., for defendant in error.

BRETT, Judge.

Arthur Vernon Stucker, Plaintiff in Error, hereafter referred to as defendant, was tried in the District Court of Texas County, Oklahoma, for the offense of Forgery in the Second Degree, After Former Conviction of a Felony.Defendant was found guilty by a jury in a two-stage proceeding, and the jury assessed defendant's punishment at thirty (30) years confinement in the State Penitentiary.Thereafter, this appeal was perfected to this Court.

On May 22, 1970, defendant was acquitted on another charge of forgery in the same District Court; and at the conclusion of that trial he was arrested on the instant charge and returned to the County Jail.He was taken before the magistrate on June 2, 1970, at which time counsel was appointed for him.Defendant's trial commenced on October 5th, on the same day the jury returned a 'guilty verdict' in the first stage of the proceedings; the second stage of defendant's trial was presented the following day when the jury assessed his punishment at thirty (30) years imprisonment.At defendant's request judgment and sentence was imposed on October 7, 1970, and he was immediately transported to the State Penitentiary.The court appointed Mr. David K. Perry to perfect defendant's appeal to this Court.

The State produced evidence showing that the residence of Dr. George Forney, in Cherokee, Oklahoma, was burglarized on the night of January 14, 1970.In that burglary certain jewelry was stolen and approximately Four Hundred Sixty Dollars ($460.00) in traveler's checks, issued by two separate banks in Cherokee, Oklahoma.One set of checks was made in the name of 'Ruth Forney' and the other set was made in the name of 'Mrs. George Forney.'The checks were in the amount of Twenty Dollars ($20.00) each.On the day after the burglary the defendant cashed a Twenty Dollar ($20.00) traveler's check at the Pioneer Bar in Guymon, Oklahoma.Pauline Greer took the check in payment for beer and returned the balance in cash to defendant.The traveler's check had two signatures of Ruth Forney on it, but it was not executed in Pauline Greer's presence; and had been smeared.

Mrs. Forney testified concerning the burglary of her home on January 14th, and described the traveler's checks which she had purchased at the two banks in Cherokee.She identified one signature on the traveler's check as being hers and testified the other signature looked like hers, but seemed to be a tracing.She related however, that it was her policy never to sign the second signature until she cashed a traveler's check.She related also that she did not give the checks to anyone else, nor did she authorize any other person to pass any of the traveler's checks.Dr. Forney testified concerning the burglary and the trip he and Mrs. Forney made with the sheriff and a deputy to Trinidad, Colorado to identify some jewelry, alleged to be stolen property.The jewelry was shown to have been in the possession of the defendant and was found in the home of Mrs. Helen Martinez in Trinidad.The daughter of Mrs. Martinez, Mrs. Margaret Casias, testified that she gave the Trinidad officers permission to enter her mother's home.She related that on one occasion during the time defendant was at her mother's home he told her that his business was 'to sell and trade'; and he showed her the jewelry about the middle of January, 1970.This happened just prior to the time her mother and the defendant left to go to Florida.James Casias also testified, that he saw the defendant show the jewelry to his wife, but that he did not see it himself.

Helen Martinez testified and related that defendant lived at her house when he was in Trinidad, Colorado; that about the middle of January he left and was gone for two or three days, and after his return he had certain jewelry and traveler's checks.Shortly thereafter, they went to Florida where they both subsequently were arrested.The Trinidad Sheriff and two of his deputies testified concerning their going with Mrs. Casias, to the home of her mother, Mrs. Martinez; and the subsequent search and seizure of the alleged stolen jewelry.During the trial, State's ExhibitNo. 1, which was one of the Twenty Dollar ($20.00) traveler's checks, was properly introduced into evidence; however, State's ExhibitsNo. 2 and 3, which consisted of the allegedly stolen 'Forney Jewelry', were never properly introduced into evidence.Nonetheless the jewelry was permitted to go to the jury room at the conclusion of the first stage of the trial.

During the second stage of the defendant's trial, a judgment and sentence from Montgomery County, Missouri was introduced showing that defendant had been convicted on a plea of guilty for the offense of robbery in the first degree, was given a fifteen year penitentiary sentence, and was represented by Mr. C. P. Lehnen, a member of the Missouri Bar, in that case.A second judgment and sentence from the Circuit Court of Pike County, Illinois, was introduced for the offense of forgery, and passing and uttering a forged instrument, and defendant was sentenced to serve not less than One (1) nor more than Twenty (20) years in the Illinois State Penitentiary on that plea of guilty.In that casedefendant was represented by attorney Russell J. Alvarez.The Illinois judgment and sentence was attested by the court clerk on October 2, 1950.

The State also introduced the testimony of Oklahoma Bureau of Investigation Agent, Perry Town, during the second stage proceeding.He related that he properly advised the defendant of his Constitutional Rights after which he inquired of defendant concerning his prior convictions.He said defendant voluntarily admitted that he had been convicted for an offense of armed robbery, but nothing was offered to support the agent's testimony.This was prejudicial to the defendant.

Defendant did not testify, nor did he offer any evidence in his own behalf at this trial.

In his brief defendant offers three specifications of error, each of which is subdivided into specific arguments.

I.

The first proposition asserts that defendant was prejudiced by the admission of incompetent, irrelevant and immaterial evidence and statements regarding defendant's former convictions of felonies, which was repetitive and prejudicial to the defendant.The first argument thereunder asserts that the district attorney, in his opening statement to the jury, read the information alleging defendant's prior conviction of a felony, thereby causing prejudice to him in the first stage of the proceeding.However, the prosecutor's opening statement was not transcribed; and we therefore are unable to say whether or not defendant's contentions contained merit.It is the responsibility of the defense counsel to protect his own record and require such to be recorded, if he desires.Unless the opening statement is included in the record, we are unable to pass judgment thereon.In Pitts v. State, Okl.Cr., 431 P.2d 449(1968), this Court said with reference to the prosecutor's closing statement, which is also applicable to his opening statement, the following:

'It has long been the rule that defense counsel has the responsibility to request, and such request must be made of the court reporter at each trial, when he desires to have the closing argument reported.It is defense counsel's sole responsibility to preserve and protect his own record, and that responsibility cannot be shifted to one not a participant in our adversary system of jurisprudence.'

It was further stated on page 453:

'It is well settled that counsel for defense must object to the alleged improper statements by the prosecutor at the time they are made, and move the Court to exclude them from the consideration of the jury; and to make a proper record so that this Court may determine from an examination of the record, whether the alleged improper remarks were actually made, and if so, whether or not they were invited or provoked by opposing counsel's remarks.'

We therefore deny this argument of defendant's brief.

It is next argued, under this specification of error, that defendant was prejudiced by the admission of evidence of more than one prior felony conviction.In support of this argument, defendant cites Baeza v. State, Okl.Cr., 478 P.2d 903(1970).However, notwithstanding this Court's statement, that the best policy is to list but one former conviction, such is not a mandatory requirement and the prosecution may enter more than one former conviction, if they can properly be sustained.It is a foregone conclusion that the more former conviction records introduced by the State offers more opportunity for the State to commit error; but, such is a matter to be considered by the prosecution, and it is not error to introduce more than one prior conviction.We cannot help but observe that there was no identification of the defendant, in relation to the Missouri and Illinois prior convictions; however, there was no objections offered by defendant when these judgments and sentences were introduced, both of which were in the same name as that of the defendant.However, in correspondence from defendant to his attorney, which was attached to and made a part of the defendant's brief, the defendant admitted both convictions.With reference to the Bureau of Investigation Agent's testimony, obviously that alleged proof of former conviction for armed robbery was improper and will be discussed later.

II.

Under his second specification of error, defendant asserts that reversible error was committed when evidence of other crimes was permitted to be introduced.It is first argued that ...