Klinekole v. State

1985 OK CR 101, 705 P.2d 179, 1985 Okla. Crim. App. LEXIS 276
CourtCourt of Criminal Appeals of Oklahoma
DecidedAugust 9, 1985
DocketF-83-144
StatusPublished
Cited by14 cases

This text of 1985 OK CR 101 (Klinekole 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
Klinekole v. State, 1985 OK CR 101, 705 P.2d 179, 1985 Okla. Crim. App. LEXIS 276 (Okla. Ct. App. 1985).

Opinions

OPINION

BUSSEY, Judge:

The appellant, Ronald B. Klinekole, was convicted of Burglary in the First Degree and Rape in the First Degree After Former Conviction of Two or More Felonies in the District Court of Caddo County in Case No. CRF-82-148. Appellant was sentenced to thirty-five (35) and eighty (80) years imprisonment, respectively, and he appeals. We affirm.

On July 2, 1982, the prosecutrix, who was sleeping on a mattress in the living room of her house, was awakened when she was struck at least three (3) times in the face with a tire tool. The prosecutrix began to kick and scream and asked the appellant not to hit her anymore. The appellant responded by telling her to be quiet and ordered her to cover her face with the sheet and remove her panties. She complied and appellant engaged in sexual intercourse and anal intercourse with the prose-cutrix. The prosecutrix testified that she was in fear for her life.

During the incident, the prosecutrix asked the appellant several questions and she learned that appellant had family in town and that he had been drinking. When the prosecutrix asked appellant, “Why didn’t you just ask me?” appellant replied “I did.” (One week earlier a man with similar physical appearance had asked the prosecutrix for a date, but she declined). After talking with the prosecutrix, the appellant ordered her to place her face in the mattress and not look up, and he departed. The prosecutrix waited for a few moments and then she got her child and went to her boyfriend’s house. He transported her to the hospital where she was treated for fractures of the jaw, bruises, and cuts and hospitalized for a week.

The prosecutrix gave a description of the assailant to the police while she was in the [182]*182emergency room. She was able to observe some of the attacker’s physical characteristics and the way he was dressed due to a street light that shone through her living room window. She described her attacker as having long hair, medium build, medium height, a beard, appearing to be intoxicated, wearing overalls with no shirt, and tennis shoes and appearing to be of Mexican or Indian descent. Tennis shoe tracks were observed at the prosecutrix’ residence.

After she described her attacker to a police officer, the officer remembered a man he had previously interviewed concerning an unrelated incident who at that time was working on a residence directly behind the victim’s residence. A few hours after the attack the officer observed appellant attired exactly as the victim had described, with blood spatters on the front of his overalls and appearing to be intoxicated. After appellant was ordered to get out of his car, the officer observed a tire tool with blood on it in plain view inside the car. Subsequently, human blood type “A” was found on the tire tool, on the tennis shoes and on the front of the overalls. (The victim’s blood type is type “A”.) Additionally, hairs found on the victim’s sheets and semen removed from her vaginal and anal cavities were consistent with samples taken from appellant. Approximately one week after the attack the prosecutrix positively identified appellant in a photographic lineup and later identified appellant at the preliminary hearing and at trial.

I

In his first assignment of error, the appellant contends that the trial court committed reversible error, under Oklahoma Law and under the Due Process Clause of the United States Constitution’s Fourteenth Amendment, in refusing to suppress the prosecutrix’ tainted and unreliable identification testimony. We disagree.

In Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977) the United States Supreme Court set forth the factors which are to be considered in determining whether an identification is reliable: 1) opportunity of the witness to view the person in question; 2) the witness’ degree of attention; 3) the accuracy of prior description; 4) the level of certainty demonstrated at the confrontation; and 5) the length of time between the crime and the confrontation.

In the instant case, the prosecutrix testified that there was a light shining in the living room window from the street light from which she determined that the assailant had long hair, a long nose, medium build, a full beard, that he was wearing overalls with no shirt and tennis shoes, that he appeared to be of Mexican or Indian descent, that he appeared to be intoxicated, and that he was approximately the same height as her. The arresting officer testified that a few hours after the attack, based upon the victim’s description, he arrested the appellant who was attired consistent with the victim’s description and had the same physical characteristics. The victim testified that during the assault she gave special attention to determining the attacker’s height and physical characteristics and that she asked him several questions intended to acquire information as to his identity. Even though the victim stated to the police officer that she could not identify the assailant, she positively identified him in a photographic lineup approximately one (1) week after the attack; she identified appellant at the preliminary hearing; and she positively identified appellant at trial. Under Manson, supra, there is ample evidence in the record to support the independent reliability of the in-court identification. This assignment of error is without merit.

II

As his second assignment of error, the appellant contends that reversal is required because law enforcement officers imper-missibly lost or destroyed the photographic lineup and deprived the appellant of his right to demonstrate conclusively on appeal that the lineup was impermissibly suggestive.

[183]*183However, having found that the in-court identification was independently reliable under the totality of the circumstances, we do not need to consider whether the pretrial confrontation procedure was suggestive. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). This assignment of error is without merit.

III

In his third assignment of error, the appellant complains that because of various doubts clouding the identity issue in appellant’s case, the trial court committed fundamental error in failing to deliver a cautionary instruction on eye-witness identification.

Initially, we note that appellant failed to request a cautionary instruction on eyewitness identification. Failure to request an instruction results in waiver of all error on appellate review except fundamental error. Luckey v. State, 529 P.2d 994 (Okl.Cr.1974). Finding no fundamental error, the trial court’s failure to so instruct the jury does not constitute reversible error.

Moreover, in Richardson v. State, 600 P.2d 361 (Okl.Cr.1979), this Court held that:

[A] cautionary instruction should be given where the witness lacked opportunity to observe the assailant, or where the witness was not positive in his identification, or where the identification was weakened by either qualification or by a failure to identify the defendant on a prior occasion.

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Klinekole v. State
1985 OK CR 101 (Court of Criminal Appeals of Oklahoma, 1985)

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Bluebook (online)
1985 OK CR 101, 705 P.2d 179, 1985 Okla. Crim. App. LEXIS 276, Counsel Stack Legal Research, https://law.counselstack.com/opinion/klinekole-v-state-oklacrimapp-1985.