Ward v. State, F-79-616

• Decision Date: 01 May 1981
• Docket Number: No. F-79-616,F-79-616
• Citation: 628 P.2d 376
• Parties: Kelley Spencer WARD, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 376

628 P.2d 376

Kelley Spencer WARD, Appellant, v.The STATE of Oklahoma, Appellee.

No. F-79-616.

Court of Criminal Appeals of Oklahoma.

May 1, 1981.

An appeal from the District Court of Tulsa County; Jay D. Dalton, judge.

Kelley Spencer Ward, appellant, was convicted of Pointing a Firearm in Tulsa County District Court Case No. CRF-78-2150, was sentenced to seven (7) years' imprisonment and appeals. The judgment and sentence is modified from seven (7) to five (5) years' imprisonment and AFFIRMED AS MODIFIED.

Frank H. McCarthy, Asst. Public Defender, Tulsa, for appellant.

Jan Eric Cartwright, Atty. Gen., Danny K. Shadid, Asst. Atty. Gen., Richard Parrish, Legal Intern, State of Oklahoma, Oklahoma City, for appellee.

OPINION

CORNISH, Judge:

The appellant was convicted of Pointing a Firearm in the District Court of Tulsa County, Case No. CRF-78-2150.A sentence of seven (7) years was imposed.

The conviction stems from a well-publicized incident occurring during the 1978 gubernatorial primary campaign.On August 22nd of that year, then Attorney GeneralLarry Derryberry was present at the Mayo Hotel in Tulsa, Oklahoma, to participate in a watch party for his bid to be nominated as a candidate for the Governor of Oklahoma.As candidate Derryberry was preparing to leave the Mayo Hotel to meet other commitments in Oklahoma City, a man in the crowd produced a pistol and began firing.One of the shots hit Mr. Derryberry in the neck.The man with the gun was disarmed and was later identified as the appellant.Fortunately, although the appellant's gun was real, his bullets were not.A later examination of the gun revealed that the cartridges in the gun contained only red paint sealed with wax.Mr. Derryberry was unharmed.

The appellant voluntarily elected to proceed to trial pro se.At trial, the appellant's principal defense was that his acts were an expression of a political statement rather than a criminal act.

I.

As his first propositionthe appellant, by and through a brief filed by the public defender, asserts that the trial court erred by its refusal to allow him to represent himself on appeal without the aid of the public defender.This proposition is patently frivolous.

The following exchange occurred at trial:

THE DEFENDANT: I have done this whole thing myself so far and I want to keep on doing it.I'd just as soon the Public Defender's Office not do it, and I would like to have the entire record so I can prepare my appeal.

THE COURT: Well, certainly I'll allow you to work in conjunction with the Public Defender's Office in perfecting this appeal, and that will be allowed, certainly.Do you have any other statement to make, Mr. Ward, prior to sentencing?

THE DEFENDANT: Just like to have a reasonable appeal bond so I can get out and try to make this appeal, so I can go to the law library.So far the State has done everything in this matter to keep me locked up so I wouldn't have a fair chance to fight this.If I would be allowed to go on the street before I went to trial, I'm sure I could beat it at trial.(Tr. 198)

A criminal defendant who prior to trial, voluntarily and intelligently elects to represent himself has an absolute right to do so.Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562(1975);Parker v. State, 556 P.2d 1298(Okl.Cr.1976).On appeal, however, the right to self-representation is not absolute.SeePrice v. Johnston, 334 U.S. 266, 68 S.Ct. 1049, 92 L.Ed. 1356(1948).In an appeal situation this Court has the inherent authority to consider arguments from more than one source.The appellant has no absolute right to have this Court consider only the legal arguments which he has raised on appeal.It was therefore not error for the trial court to appoint the public defender to perfect the appeal even though the appellant objected.In addition, we note that the appellant has filed his own brief and the arguments presented therein will be considered along with the arguments raised by the Public Defender.This is as far as the right to self representation extends on appeal in the absence of a clear showing of prejudice.

II.

In his pro se brief the appellant makes numerous political arguments concerning the alleged impropriety of his conviction.We shall only consider those arguments which have some legal basis.

The appellant's first pro se argument alleges that his act was a mere civil assault and battery and no criminal violation has occurred.The fact that an act may be civilly actionable does not prevent that act from being criminally punishable.We refer the appellant to the provisions of the Criminal Code defining and punishing various forms of assault and battery.See, 21 O.S.1971, § 641 et seq.The appellant could have been charged with assault and battery.The Tulsa County District Attorney chose to charge a different offense, namely, Feloniously Pointing a Firearm.

The appellant further argues, however, that the prosecutor could not charge the offense of pointing a firearm because he, the appellant, went farther than a mere pointing and committed assault and battery by discharging the weapon.This type of merger of offenses argument is without merit.In the case of Saxon v. State, 19 Okl.Cr. 58, 198 P. 107(1921), the evidence showed that the defendant had pointed a gun at his victim and had then proceeded to use the gun as a bludgeon, thus committing assault and battery.The defendant was charged and convicted of pointing a weapon.The court stated that "(i)t was discretionary with the prosecuting attorney to elect before trial for which offense he would prosecute the accused where the evidence showed the commission, by the same act or transaction, of more than one offense."Id. at 62, 198 P. at 108.See also, 21 O.S.Supp.1971, § 11.The Saxon case is dispositive of this issue.

The final pro se contention is that the trial court erred by rejecting all of the appellant's requested instructions.No authority is cited in support of this contention.It will therefore not be considered on appeal.See, 22 O.S.Supp.1980, ch. 18 App. Rule 1.7.

III.

We next consider the arguments contained in the brief filed by the public defender.The appellant contends that his right to equal protection of the law has been violated.He bases this contention on the fact that prosecutors in Oklahoma are given the discretion to charge a defendant with either a felony or a misdemeanor for the offense of pointing a weapon.Compare21 O.S.1971, § 1289.16with21 O.S.1971, § 1279.

As the appellant concedes, this Court has already entered an adverse ruling to his position on this type of equal protection argument.SeeHunt v. State, 601 P.2d 464(Judge Brett dissenting)(Okl.Cr.1979)cert. denied, 446 U.S. 969, 100 S.Ct. 2951, 64 L.Ed.2d 830(1980).In Hunt, we held that where a felony statute and a misdemeanor statute covering the same subject matter contain identical elements, it is not a violation of equal protection for the prosecutor to exercise his discretion in deciding under which statute to file charges.He urges that we reconsider our earlier position in Hunt.We decline to do so.This...