Allen v. State

1989 OK CR 79, 783 P.2d 494, 1989 Okla. Crim. App. LEXIS 81, 1989 WL 142459
CourtCourt of Criminal Appeals of Oklahoma
DecidedNovember 22, 1989
DocketF-87-436
StatusPublished
Cited by8 cases

This text of 1989 OK CR 79 (Allen v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Allen v. State, 1989 OK CR 79, 783 P.2d 494, 1989 Okla. Crim. App. LEXIS 81, 1989 WL 142459 (Okla. Ct. App. 1989).

Opinions

OPINION

LANE, Vice-Presiding Judge:

Arthur Lee Allen was convicted by a jury of Grand Larceny (21 O.S.1981, § 1701), After Conviction of Two or More Felonies in Oklahoma County District Court, Case No. CRF-86-3009. He was sentenced to a term of fifty-five (55) years in the custody of the Department of Corrections. He now appeals, alleging that he was improperly convicted based on “other crimes” evidence, that the victim’s identification of him as the perpetrator of the crime was riddled with error and that the performance of his counsel at trial was unconstitutionally deficient. We reject these claims and affirm the conviction.

Appellant went into Harper’s Grocery Store on April 28, 1986 and requested the clerk to give him a package of cigarettes. Before paying for the cigarettes, Appellant asked if he could use the restroom. Appellant had been gone several minutes when the clerk, Angela Williams, became concerned that Appellant had been in the restroom too long. She went back to check on him. She peeked through a hole in the restroom door where a lock was missing and saw Appellant taking money from a wallet out of her purse. Ms. Williams had left her purse in the store’s office, which was next to the restroom. Ms. Williams yelled at Appellant. He pushed open the door, knocking Williams to the floor, and ran out of the store.

On June 9, 1987, Appellant was arrested following a traffic stop. He gave the arresting officer a false name. He also attempted to evade arrest by claiming that he was on the way to the hospital because his passenger, a woman approximately twenty-five (25) years old, was having a heart attack. This claim was not true. After determining that the car which Appellant was driving was stolen, Appellant was arrested. Following his arrest, Appellant was questioned about the money stolen from Harper’s Grocery. Without being told any details of the crime, Appellant stated that “those people are lying on me.” Transcript II, p. 89.

As his first claim of error, Appellant alleges that his conviction was improperly based upon evidence that he had committed crimes other than that for which he was on trial. In his discussion of this claim of error, Appellant directs our attention to a number of cases which all stand for the proposition that evidence of other crimes may not be admitted to prove that because a defendant has committed other offenses, he must be guilty of the crime at issue. This Court has never held contrary to that well established principal of law. See Burks. v. State, 594 P.2d 771 (Okl.Cr.1979).

Although Appellant aptly describes the principal of law he is seeking to invoke, he fails to identify any instance where any evidence of another crime was offered into evidence against him. During an in camera hearing, the arresting officer testified about the circumstances of 'Appellant’s arrest. Several criminal offenses were implicated. The officer was instructed not to mention any of the other crimes during his testimony. He was, however, allowed to testify that Appellant gave a false name and lied about the health of his passenger in an attempt to avoid being detained. This is the only testimony which Appellant specifically identifies as objectional.

Testimony concerning the events surrounding a defendant’s arrest is generally admissible as tending to prove the defendant’s guilt of the crimes charged. In Wills v. State, 636 P.2d 372 (Okl.Cr.1981), we held:

[497]*497Evidence of a defendant’s flight has long been held admissible as tending to show consciousness of guilt. Farrar v. State, 505 P.2d 1355 (Okl.Cr.1973). A defendant’s attempt to hide his identity has been held admissible as a circumstance bearing on consciousness of guilt. Almerigi v. State, 17 Okl.Cr. 458, 188 P. 1094 (1920).... Actions by a defendant, such as flight to avoid arrest, procuring perjured testimony, attempts to destroy evidence and attempts to cause the absence of a witness from appearing at trial, are admissible as tending to establish the guilt of the accused.

Id. at 375-76. See also Croan v. State, 682 P.2d 236 (Okl.Cr.1984).

Although the admonitions of the court and the prosecutor to the testifying officer, directing him to avoid any inference that Appellant was suspected of having committed any other crime at the time of his arrest, properly preserved Appellant’s right not to be convicted based on any improper evidence, we find that the evidence concerning Appellant’s attempt to avoid arrest by claiming that his passenger was suffering a medical emergency and then by giving a false name, were not relevant to the current charges and should not have been admitted.

The testimony in question may have been proper had Appellant been on trial for having stolen the car which he was driving at the time of the stop. It was not, however, probative of his guilt of the present crime which had occurred almost two months previous. There is no evidence linking Appellant’s evasive actions at the time of the traffic stop in June, with any acknowledgment of guilt for having stolen money from a store in April. This is especially true in light of the fact that Appellant was driving a stolen ear when he was pulled over. His actions were more likely than not directed at avoiding arrest for being in possession of a stolen car.

Although we find that the testimony involving the arrest was irrelevant, it does not require reversal. There was strong evidence against Appellant in the form of eye-witness identification and his own statement after the arrest. In the interest of justice, however, we will modify Appellant’s sentence to the statutory minimum, twenty (20) years, thus neutralizing any effect this testimony may have had.

Appellant's next series of contentions all hinge upon our resolution in his favor of his claim that the photographic lineup shown to Angela Williams was unduly suggestive, thus tainting her in court identifi-' cation of Appellant as the man who she saw stealing the money from her purse. A photo lineup will be considered to have created error only when it “is so impermis-sibly suggestive as to give rise to a substantial likelihood of irreparable misidentification”. Rogers v. State, 721 P.2d 820 (Okl.Cr.1986). See also Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968).

When a question exists concerning the legality of an extrajudicial identification, a defendant must object at trial, triggering the requirement that the trial court conduct a hearing outside of the jury’s presence “to determine whether the witness is able to make an identification of the defendant which is independent of and sev-erable from the pretrial procedure.” Richardson v. State, 600 P.2d 361 (Okl.Cr.1979). See also, Thompson v. State, 438 P.2d 287 (Okl.Cr.1968). No such request was made in the present case. Accordingly, we will limit our review to a determination of whether the lineup was fundamentally unconstitutional based upon the evidence presented in the course of the trial.

Ms. Williams told police that the man she saw removing money from her purse was “about medium height. He had short hair cut; not long but a short hair cut. He had a mustache.” Tr. II, p. 34. We have examined the six photographs which police officers showed to Ms. Williams. We find that all are similar to this description.

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Allen v. State
1989 OK CR 79 (Court of Criminal Appeals of Oklahoma, 1989)

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Bluebook (online)
1989 OK CR 79, 783 P.2d 494, 1989 Okla. Crim. App. LEXIS 81, 1989 WL 142459, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allen-v-state-oklacrimapp-1989.