Taylor v. State, F-81-8

• Decision Date: 22 February 1983
• Docket Number: No. F-81-8,F-81-8
• Citation: 659 P.2d 362
• Parties: Arlie Ray TAYLOR, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 362

659 P.2d 362

Arlie Ray TAYLOR, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-81-8.

Court of Criminal Appeals of Oklahoma.

Feb. 22, 1983.

An appeal from the District Court of Lincoln County; Donald E. Powers, District Judge.

The appellant, Arlie Lee Taylor, appeals conviction in District Court of Lincoln County Case No. CRF-80-48 of Robbery with Firearms, After Former Conviction of a Felony, in which he was sentenced to twenty-five (25) years' imprisonment. Judgment is AFFIRMED and sentence is MODIFIED to fifteen (15) years' imprisonment.

Patti Palmer, Deputy Appellate Public Defender, Drew Campo, Sp. Counsel, Norman, for appellant.

Jan Eric Cartwright, Atty. Gen., James B. Franks, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

CORNISH, Judge:

The appellant, Arlie Ray Taylor, was convicted in the District Court of Lincoln County of Robbery with Firearms After Former Conviction of a Felony and sentenced to twenty-five years' imprisonment.

On April 24, 1980, a man identified at trial as the appellant, entered the Happy Foods convenience store in Stroud, Oklahoma. After getting a can of pop from the shelf he went to the counter and demanded that the manager turn over the money in the cash register. He then pulled out a small caliber blue steel handgun. The manager stated that for three minutes she stood face to face with the appellant at a distance of two feet. She positively identified the appellant from photographs shown to her at the Stroud Police Station.

I

The appellant maintains he was deprived of the right to a fair trial when the assistant district attorney attempted to define reasonable doubt during closing argument:

... And your burden is not beyond all possible doubt because as the Court instructed you, there's doubt in everything in this world. There's doubt as to our existence, but what is reasonable in this case?

The phrase "reasonable doubt" is self-explanatory and definitions of it do not clarify its meaning but tend to confuse the jury. Therefore it is inadvisable to define "reasonable doubt" at trial. Johnson v. State, 632 P.2d 1231 (Okl.Cr.1981). The error in defining the phrase must be preserved by a timely objection, Orrill v. State, 509 P.2d 930 (Okl.Cr.1973); here the defense failed to do so. In light of the strength of the victim's positive identification of the appellant and the fact that the defense did not produce any evidence to refute the State's case, we find that the unpreserved error is harmless, especially where the remark did not create an erroneous impression. Cf. Johnson v. State, supra (where the prosecutor stated that "reasonable doubt" does not mean that the State has "the burden of proving absolute mathematical certainty beyond all doubt").

II

In his second proposition of error, the appellant asserts the prosecutor improperly influenced the jury's assessment of punishment by referring to the pardon and parole system.

The comments complained of during the second-stage proceedings were:

... If you'll look at this Judgment and Sentence we have over here as State's Exhibit No. 1, you'll notice that he was convicted on the first day of March last year and sentenced to five (5) years. He's out on the street again and he's convicted of another robbery on April 24th, 1980. One year and one month after the conviction. I want you to think very carefully about what's implied there, I recommend to you that you bring back a verdict of fifty years in this case. And I don't think that's out of line, that's my recommendation to you with regard to the severity of the crime that has occurred with regard to the kind of punishment that needs to be inflicted. [Emphasis ours.]

* * *

* * * I recommended fifty years for a reason. I ask you to think about what I have said. Think about what was said about the time of the conviction and the sentence he received the last time. You'll notice in your information--your instructions that the crime of Robbery With Firearms is punishable by a minimum of five (5) years, that's a first offense. That's what they give him last time, that didn't do any good. Here he is again eleven months later after receiving five years, he committed another robbery. The minimum in this case is ten years, you may assess punishment to life. Ten years is the minimum. I recommend to you that a proper sentence in this case would be fifty years. I think if you'll consider and deliberate very carefully, you'll understand why.

Unmistakable reference to the possible eventuality of future parole is an undesirable intrusion into the jury's deliberative processes. McKee v. State, 576 P.2d 302 (Okl.Cr.1978). Such references are grossly prejudicial to an accused, and constitute the improper injection of administrative procedures into the judicial process. Bell v. State, 381 P.2d 167 (1963). The appropriate inquiry is whether in light of the totality of the closing argument, the prosecuting attorney made such an unmistakable reference to the pardon and parole system so as to result in prejudice to the defendant, thus warranting modification. Webb v. State, 546 P.2d 642 (Okl.Cr.1976). We are of the opinion that the prosecutor's argument does refer, although indirectly, to the pardon and parole system. Therefore, in fairness, the appellant's sentence must be modified.

III

In his third assignment of error, the appellant urges ineffective assistance of counsel deprived him of his right to a fair trial.

In Johnson v. State, 620 P.2d 1311 (Okl.Cr.1980), this...