Thomas v. State, F-82-212
| Decision Date | 06 January 1984 |
| Docket Number | No. F-82-212,F-82-212 |
| Citation | 675 P.2d 1016 |
| Parties | Jerry Lewis THOMAS, Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Jerry Lewis Thomas appeals from his Oklahoma County District Court convictions for Burglary in the Second Degree After Former Conviction of Two or More Felonies, and Rape in the First Degree After Former Conviction of Two or More Felonies. He received sentences of twenty-five years' and one-hundred-fifty years' imprisonment, respectively, said sentences to run consecutively.
On December 7, 1980, at approximately 2:30 a.m., S.D., an unmarried female, arrived at her Northwest Oklahoma City home from work. Upon entering the house, she discovered a masked negro man inside. At gunpoint, he ordered her into the bedroom, put a pillow case over her head, tied her hands behind her back and made her lie face down on the bed. S.D. then heard the man rummaging through her belongings in her house.
After a short period of time, the man returned to S.D., untied her, removed her clothing and had sexual intercourse with her against her will. He then retied her hands and made good his escape. Fearing he may still be somewhere inside the house, S.D. lay on the bed for some period of time. She then got up and called the police.
The appellant's latent thumbprint was recovered from a ceramic cookie jar that sat on S.D.'s bedroom dresser. Samples of hair found on S.D.'s bed, and samples of seminal fluid taken from S.D.'s vagina were consistent with those taken from the appellant.
The appellant first alleges that the prosecutor improperly accused two witnesses of manufacturing "phony alibis" during closing argument.
No objection to the prosecutor's remarks were made at trial, nor was the alleged error preserved in the motion for new trial. It is therefore not properly before this court. McDuffie v. State, 651 P.2d 1055 (Okl.Cr.1982); Myers v. State, 623 P.2d 1035 (Okl.Cr.1981). Furthermore, we have examined the prosecutor's remarks, and find no fundamental error. 1
The appellant's second allegation of error is that his right to due process was violated when his attorney stipulated that, if called, certain State's witnesses would testify concerning the appellant's prior felony convictions. 2
This identical issue was addressed in Tucker v. State, 620 P.2d 1314 (Okl.Cr.1980). We find that case controlling. The State was not relieved of its burden of proving the prior felony convictions by the stipulations. 3 Further, the State met its burden of proof by introduction of the judgment and sentences of the appellant's prior felony convictions. There was no error. Tucker, supra. 4
The appellant has also filed a lengthy pro se brief in which he alleges 1) that his trial counsel was ineffective; 2) that the evidence presented at trial was insufficient to sustain his conviction; 3) that the stipulations discussed above were erroneously entered into; and 4) that the court erroneously overruled his motion for a new trial, based on the above three arguments. 5
The ineffective assistance of counsel argument is divided into eight subpropositions, the first of which concerns the prior felony convictions used to enhance his punishment in the present case under 21 O.S.1981, § 51(B). 6
The information originally filed against the appellant listed as grounds for enhancement of punishment the two 1962 Second Degree Burglary convictions and the 1964 Second Degree Rape conviction. (See, footnote 6, supra.) The amended information, filed on April 15, 1981, contained the same three prior convictions. On the day after the appellant's preliminary hearing (May 7, 1981), the State amended the amended information to delete the two Second Degree Burglary convictions, and to add the 1972 Robbery with Firearms, AFCF conviction and the 1973 Carrying a Firearm, AFCF conviction. (See footnote 6, supra.)
The appellant alleges that he was entitled to another preliminary hearing on the 1972 and 1973 convictions, in accordance with Carter v. State, 292 P.2d 435 (Okl.Cr.1956), and that his counsel was ineffective in failing to make such a request.
In Title 22 O.S.1981, § 304 permits the amendment of informations after a plea has been made, upon order of the trial court. Furthermore, we are convinced that the appellant was put on notice that he was to be charged as a second and subsequent offender, and subject to enhanced punishment pursuant to 21 O.S.1981, § 51(B), at his preliminary hearing by virtue of the three convictions then alleged. Thus, this case is entirely different from Carter, supra, wherein the defendant was surprised at trial by the State's presentation of his former convictions. In the present case, the amendment was made in May, and the trial held in September. The appellant had ample prior notice of the charges against which he had to defend. See, Simmons v. State, 549 P.2d 111 (Okl.Cr.1976); Sam v. State, 510 P.2d 978 (Okl.Cr.1973). Jordon v. State, 327 P.2d 712 (Okl.Cr.1958).
Moreover, in light of this ample time, we do not believe the appellant's attorney's announcement of ready at trial, and resulting waiver of the issue, 7 constituted ineffective assistance of counsel. There is no evidence that the appellant's attorney was not familiar with the appellant's former convictions and the circumstances surrounding them. As noted below (see footnote 3 supra), counsel was sufficiently familiar with the convictions to make proper stipulations so as to avoid undue prejudice to the appellant. There was no error.
The appellant next attacks the validity of the 1973 Carrying a Firearm, AFCF conviction (No. CRF-72-939). Citing Grace v. Harris, 485 P.2d 757 (Okl.Cr.1971), he argues that Carrying a Firearm, AFCF, is an essential element of the crime for which he was previously convicted in Case No. CRF-72-990, Robbery with Firearms, AFCF.
In Grace, this Court held that the double jeopardy clause of Okla. Const. art. II, § 21, prevented the State from trying the defendant for Using a Firearm During the Commission of a Felony, when the defendant had previously been convicted of Robbery with Firearms for the same transaction, and the "felony" element of the charge was the Robbery with Firearms conviction. This case presents a different consideration. The crime of Carrying a Firearm AFCF, does not merge into the crime of Robbery with Firearms AFCF. In Carrying a Firearm AFCF, a prior felony conviction is an essential element of the crime. See, Laws 1961, p. 231, § 1, codified as 21 O.S.1971, § 1283; Anderson v. State, 381 P.2d 892 (Okl.Cr.1963). With the Robbery with Firearms AFCF, however, the AFCF goes only to enhancement of punishment, and is not a substantive element of the crime. Cunningham v. State, 500 P.2d 1338 (Okl.Cr.1972); Anderson, supra. Since the elements of the two crimes are different, the appellant was properly charged and convicted of both.
The appellant also argues the 1964 Burglary in the Second Degree, AFCF conviction should not have been used to enhance his punishment in the present case for the following reasons: 1) that it is void under Lamb, supra; and 2) that he was never afforded an opportunity to appeal the conviction. Concerning the Lamb argument, we need only note that the appellant has been granted relief upon this contention, and by the terms of his own agreement is estopped from further litigating the matter. See, footnote 6, supra; State's in camera exhibit number 17, styled "CONSENT DECREE FOR ORDER(S) GRANTING POST-CONVICTION RELIEF, CASE NOS. 27876, 27984, 29664, CRF-72-939, CRF-72-940," dated April 17, 1980.
In regard to the appellant's second contention, he admits no written notice of intent to appeal was made in 1964, but avers that he gave oral notice of his intent to appeal. He argues that his court-appointed attorney failed to help him perfect an appeal, and due to the manner in which the reformatories in which he was incarcerated were run, he had no access to a law library.
Nineteen years have passed since the date of the judgment and sentence in that case, and it has been modified pursuant to the consent order (See footnote 6, supra), yet the appellant has apparently never filed for post-conviction relief in the District Court of Oklahoma County concerning the lack of an appeal. Having not done so, he cannot collaterally attack the validity of that conviction upon this appeal.
Thus, as it now stands, the appellant's three prior felony convictions were properly utilized against him for the purpose of enhancing his punishment. 8
The appellant also has made the tangential argument that it is improper to allow the State to impeach a defendant who testifies on his own behalf with his prior convictions. We would note that the appellant did not take the witness stand, and therefore was not subject to cross-examination concerning his prior convictions. He therefore has no standing to complain of the provisions in the evidence code providing for such cross-examination.
The appellant's second subproposition of error is the same error argued by counsel on this appeal, to-wit: that trial counsel erroneously stipulated to matters...
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