Fink v. State

1970 OK CR 27, 480 P.2d 938
CourtCourt of Criminal Appeals of Oklahoma
DecidedFebruary 25, 1970
DocketA-14278
StatusPublished
Cited by6 cases

This text of 1970 OK CR 27 (Fink 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
Fink v. State, 1970 OK CR 27, 480 P.2d 938 (Okla. Ct. App. 1970).

Opinions

BUSSEY, Judge.

Larry Richard Fink, hereinafter referred to as defendant, was charged, tried and convicted in the District Court of Garfield County for the crime of Rape, was sentenced to life imprisonment, and from said judgment and sentence a timely appeal has been perfected to this Court.

On the trial the prosecutrix testified that she was 11 years old on February 28, 1966, and lived at home in Enid with her mother, step-father and brother. During the day she had attended school and after school had returned home and completed her household duties. She then called her mother at work and secured from her permission to go to Mrs. Gordon’s, her Camp Fire leader, to secure additional Camp Fire candy to sell. She secured nine boxes of candy from Mrs. Gordon and enroute home with the nine boxes in a larger container, was stopped by the defendant on Davis Street. She testified that he was driving a light green Buick, and advised her that he knew her parents, offered to help her sell the candy and give her a ride in his car, ostensibly to take her to the homes of three ladies whom he said would buy her candy. She further testified that he was wearing a white shirt, slacks and loafer shoes. She traced the routes tjjat he took, and although he took her by three houses, he never stopped, but would say, “Well, they are not home.” She further testified that he went on a dirt road, came to a wooden bridge, stopped the car, and asked her if she would like to play a little game and advised her that if she would play the game he would buy all nine boxes of candy from her. Her testimony essentially was that the defendant raped her, and that penetration was accomplished. He then zipped his pants, told her to put her panties back on (she testified they were on her foot), got in the car and she described the route on [941]*941return. He stopped the car at the corner of Central Street, approximately a block and a half from her home, gave her the candy and turned around and drove off. She testified that when he stopped the car the first time, he removed the larger carton containing the candy to the back seat, handled one of the boxes of candy and then put it back in the larger carton.

Upon arriving at home the prosecutrix advised her mother as to what had happened, her mother called her step-father. Her step-father and a detective came to her home, she talked to the detective, and her mother then took her to the doctor.

The prosecutrix described the car as-being light green, the front seat was torn with some tape on it, she described the dash of the car, a decoration hanging in the car with a picture of a girl in a bathing suit on it, and on the signal light handle, there was a ring. She testified that she drew a picture of the dashboard for the detective that same night. In describing the defendant, she stated that he had “kind of curley hair” and a cleft chin, and she pointed him out in court.

The fingerprint lifted from one of the candy boxes handled by the prosecutrix’s assailant was identified by a fingerprint expert on the trial as being identical to the fingerprint of the defendant. The Enid Police Department, after having received the description of the assailant’s car and his physical description, observed the defendant’s car on the afternoon of March 11th, eleven days after the assault. They stopped defendant’s automobile and noting the similarity of the car to the description given them by the prosecutrix and similarity in physical description, placed the defendant under arrest, took him to the police station together with his automobile, where they notified the prosecutrix’s father who accompanied her to the police station. The prosecutrix viewed the defendant in a lineup with six others, who were all of the same general height, age and build; however, the defendant was the only member of the lineup wearing a coat and members of the fire department and police department were dressed without coats. Officers Hollen and Bowen, who were in the lineup, had been in the prosecutrix’s home on the evening of the rape. The prosecutrix identified the defendant as her assailant at the lineup and during the trial. Testimony of the medical expert corroborated that the prosecutrix had been criminally assaulted.

The State’s evidence established that the automobile driven by the defendant on the day of his arrest matched the description given by the prosecutrix down to the ring on the signal light handle and the deodorant pad hanging in the car with a picture of a girl in a bathing suit on it, and tape on the seat of the car.

After the State rested, the defendant admitted his presence in Enid on the day in question and by his testimony and that of his sister and other defense witnesses, attempted to establish that he could not have been present at the scene of the assault during the period of time the prosecutrix testified it occurred.

At the outset we observe that although considerable time during the defendant’s oral argument was devoted to the pre-trial identification of the defendant in the lineup conducted at the police department, no objection was interposed when the prose-cutrix testified on direct examination that she had seen the defendant at the lineup. Moreover, during the lengthy cross-examination of the prosecutrix which consumed 138 pages of the case made (direct and redirect examination consumed 53 pages), counsel for defense extensively and minutely questioned the prosecutrix concerning the circumstances surrounding the lineup identification. In addition to the cross-examination of the prosecutrix concerning the circumstances surrounding the lineup, counsel for defense cross-examined other witnesses extensively concerning the conduct of the lineup which we will set forth in the Appendix.

It would appear from the foregoing that the defendant has not properly preserved any objection to the lineup identification of the accused for review on ap[942]*942peal, nor has he preserved any objection to the admission of the prosecutrix's testimony relating to the pre-trial identification of the defendant on direct examination by the State, for failure to object to the same; nevertheless, to prevent trial courts from committing error in future trials, we wish to reiterate the rule applicable in the instant case HAD TIMELY OBJECTION BEEN MADE to the direct testimony of the prosecutrix concerning the lineup identification. This well established rule is set forth in Syllabus 3 and 4 of Gillespie v. State, Okl.Cr., 355 P.2d 451, as follows:

“3. Identification of the defendant at a police lineup prior to trial and subsequent to the alleged crime is not an identification of the defendant as the one who committed the robbery, but testimony of an extra-judicial identification and is inadmissible as original testimony.
4. Failure of the defendant to object to the introduction of testimony and lengthy cross-examination relative to an extrajudicial identification may take the same out of the category of reversible error but if it appears that defendant was prejudiced thereby, will constitute grounds for modification.”

We wish to further observe that since the lineup identification of the defendant, and his trial, occurred prior to the Supreme Court decision in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), the rule there enunciated would have no application in the instant case, nor indeed would the decision of Foster v. California,

Related

Kamees v. State
1991 OK CR 91 (Court of Criminal Appeals of Oklahoma, 1991)
Noble v. State
1972 OK CR 111 (Court of Criminal Appeals of Oklahoma, 1972)
Simon v. State
1972 OK CR 24 (Court of Criminal Appeals of Oklahoma, 1972)
Porter v. State
1971 OK CR 253 (Court of Criminal Appeals of Oklahoma, 1971)

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Bluebook (online)
1970 OK CR 27, 480 P.2d 938, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fink-v-state-oklacrimapp-1970.