Turner v. State

• Decision Date: 10 December 1990
• Docket Number: F-87-744,Nos. F-87-743,s. F-87-743
• Citation: 803 P.2d 1152,1990 OK CR 79
• Parties: Reginald Eugene TURNER and Kenneth Ray Cole, Appellants, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1152

803 P.2d 1152

Reginald Eugene TURNER and Kenneth Ray Cole, Appellants, v. STATE of Oklahoma, Appellee.

Nos. F-87-743, F-87-744.

Court of Criminal Appeals of Oklahoma.

Dec. 10, 1990.

Rehearing Denied Feb. 8, 1991.

An Appeal from the District Court of Oklahoma County. James L. Gullett, District Judge.

REGINALD EUGENE TURNER and KENNETH RAY COLE, Appellants, were tried by jury and convicted of Robbery with Firearms, After Former Conviction of Two or More Felonies, in violation of 21 O.S.Supp.1982, § 801, in the District Court of Oklahoma County, Case No. CRF-87-236. The jury recommended punishment of five hundred (500) years imprisonment for each defendant. The trial court sentenced accordingly. From these judgments and sentences, this appeal has been perfected. AFFIRMED as MODIFIED.

John M. Burnett, Oklahoma County Public Defender's Office, Oklahoma City, for appellants.

Robert H. Henry, Atty. Gen., Wellon B. Poe, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

LUMPKIN, Judge:

Appellants Reginald Eugene Turner and Kenneth Ray Cole were tried by jury and convicted of Robbery with Firearms, After Former Conviction of Two or More Felonies, in violation of 21 O.S.Supp.1982, § 801, in the District Court of Oklahoma County, Case No. CRF-87-236. The jury recommended punishment of five hundred (500) years imprisonment for each defendant. The trial court sentenced accordingly. From these judgments and sentences, this appeal has been perfected.

On November 22, 1986, the Appellants robbed the McDonald's Restaurant at 2828 South Prospect in Oklahoma City. A bus load of school children had entered the restaurant and were being served when the Appellants and a third co-defendant, Johnny Lee Crook, ¹ stepped inside. Crook walked behind the serving counter and demanded that the safe be opened. The manager, Charles Bell, stalled for time by using several dummy combinations on the safe. Dissatisfied with the pace of the robbery, Appellant Turner walked behind the counter and pulled the gun from Crook's waistband. Opening the safe on the third attempt, Mr. Bell informed the Appellants that the inside compartment had a ten (10) minute time lock on it and could not be opened immediately. Turner then grabbed rolls of quarters which were kept in a change rack inside the door of the safe and Turner told Mr. Bell to go out to the front of the restaurant and open the cash registers. Turner had grabbed the money from only two of the five registers when he saw a young boy attempt to run out of the restaurant. Raising the gun above his head, Turner yelled for the boy to get back into the restaurant and told everyone to get down on the floor; shouting that it was a robbery. Refusing to comply, Mr. Bell told Turner "you're going to have to put me down". Turner pointed the gun at him and pulled the trigger but the gun did not fire. Mr. Bell then attempted to tackle Turner when he noticed Appellant Cole standing at the front of the counter with his left hand inside his jacket pocket. When Turner lowered the gun and dropped his hand to his side, the gun discharged into the floor. Pieces of the floor struck two of the employees. The Appellants then ran out of the restaurant.

The Appellants were arrested on December 16, 1986, and taken to the Edmond Police Department. After being advised of their Miranda rights by Oklahoma City Detective Robert Shahan, both Appellants waived their rights and confessed to committing the robbery. The Appellants were subsequently transferred to the Oklahoma City Police Department, where after again being advised of their Miranda rights, they confessed a second time. This second confession was videotaped and played for the jury at trial. Both Appellants waived their Fifth Amendment privileges and testified at trial. Appellant Turner stated that he did not participate in the robbery, but was at home babysitting. He testified that he did not remember making any incriminating statements concerning the robbery, but if he had it was due to inducements and coercion by the police. Appellant Cole similarly denied any participation in the robbery, stating that he was at home with his girlfriend. He testified that any incriminating statements he may have made were the result of threats and promises made by the police.

In the first assignment of error, the Appellants contend that the trial court erred in failing to sustain a motion in limine and in admitting into evidence their previous felony convictions. We disagree. Evidence of a prior felony conviction is admissible to impeach a defendant's credibility once he testifies. Campbell v. State, 636 P.2d 352, 356 (Okl.Cr.1981). Title 12 O.S.1981, § 2609, provides that proof of former convictions may be admitted into evidence when the crime involves dishonesty or is a felony. If the crime is a felony, the statute further requires that the evidence have a probative value outweighing any prejudice appellant might suffer. The trial judge has wide latitude in determining the probative value of the prior convictions. Henegar v. State, 700 P.2d 659, 661 (Okl.Cr.1985). This discretion is limited by the guidelines set forth by this Court in Robinson v. State, 743 P.2d 1088, 1090 (Okl.Cr.1987). See also Hardiman v. State, 798 P.2d 222 (Okl.Cr.1990).

The record reflects that the second page information filed against each Appellant reflected two (2) prior convictions for armed robbery. Additional prior convictions for second degree burglary, unauthorized use of a motor vehicle and larceny of merchandise from a retailer were alleged against Appellant Cole. Prior to overruling the motion in limine, the trial court heard both Appellants indicate their desire to waive their Fifth Amendment privileges and to take the witness stand to testify in their own behalf, against the advise of their attorney. Defense counsel argued that as both Appellants had prior armed robbery convictions, the risk was great that the jury would be prejudiced against the Appellants because of the similarity of the current offense and the past offense.

In Robinson we recognized that a special problem exists when the previous conviction is the same or substantially the same as that for which the defendant is on trial. "In these situations, there exists a pressure on the jurors to think that if the defendant did it once, he could do it again." 743 P.2d at 1091. This author noted in a specially concurring opinion to Hardiman that the amplification of the balancing test set forth in Robinson provided the necessary safeguards to ensure that if a defendant on trial is convicted, it will be through the evidence which shows him guilty of the offense charged. 798 P.2d at 225. Prior convictions which are the same or similar to the offense on trial will be reviewed with scrutiny. There is a presumption of prejudice as to prior convictions of this nature which must be overcome by the prosecution. However, if the defendant testifies, his testimony will be subject to impeachment which will provide the jury with an accurate picture of his criminal past.

In the present case, the probative value of the prior convictions outweighs any prejudicial effect upon the Appellants. Both Appellants testified that they did not commit the robbery. The prior convictions were relevant to the credibility of this defense. Therefore, in accordance with our decision in Hardiman, the trial court did not abuse its discretion in overruling the motion in limine and admitting the prior convictions.

Further, Appellant argues that reversible error occurred when the trial judge failed to state whether he considered the prior conviction as a crime of dishonesty or whether he used the balancing test. Although Appellant is correct in noting that the motion was overruled without comment, we reject Appellant's argument of reversible error and remind Appellant that we will not presume error from a silent record. See Ellis v. State, 795 P.2d 107, 109 (Okl.Cr.1990); Claunch v. State, 501 P.2d 850, 852 (Okl.Cr.1972). Moreover, as the prior conviction was clearly a felony, we need not debate further under which category it was placed by the trial judge. Based upon the foregoing, this assignment of error is denied.

Appellants contend in the second assignment of error that the trial court erred in failing to suppress the in-court identification made by Charles Bell. Appellants argue that the identification was tainted by his view of the Appellants at the preliminary hearing. Prior to entering the courtroom for the preliminary hearing, Mr. Bell looked into the courtroom and saw the Appellants, in handcuffs and in the presence of two deputies, dressed in orange jail coveralls. Appellants note that they were the only people in the courtroom in orange coveralls and that they were the only black males in the room. Prior to the preliminary hearing, Mr. Bell had not been shown any photographic line-ups or been exposed to a formal line-up.

Merely seeing the accused in the courtroom when the witness arrives for the preliminary hearing does not constitute a prejudicial or unduly suggestive pretrial confrontation. Grigsby v. State, 496 P.2d 1188, 1194 (Okl.Cr.1972). However, seeing the accused dressed in jail clothes, handcuffed and accompanied by deputies makes this particular pre-trial viewing unnecessarily suggestive. Even so, this does not result in the automatic exclusion of the in-court identification by Mr. Bell. Cole v. State, 766 P.2d 358, 359 (Okl.Cr.1988). The courtroom identification will not be invalidated if it can be established that it was independently reliable under the totality of the circumstances. Id. Our inquiry becomes "whether under all the circumstances, the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification." Manson v. Brathwaite, 432 U.S. 98, 107, 97 S.Ct. 2243, 2249, 53 L.Ed.2d 140 (1977); Bryson v. State, 711 P.2d 932, 934 (Okl.Cr.1986), cert. denied 476 U.S. 1121, 106 S.Ct....