Martin v. State

1987 OK CR 127, 738 P.2d 1366, 1987 Okla. Crim. App. LEXIS 410
CourtCourt of Criminal Appeals of Oklahoma
DecidedJune 22, 1987
DocketNo. F-85-216
StatusPublished
Cited by3 cases

This text of 1987 OK CR 127 (Martin 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
Martin v. State, 1987 OK CR 127, 738 P.2d 1366, 1987 Okla. Crim. App. LEXIS 410 (Okla. Ct. App. 1987).

Opinion

OPINION

PARKS, Judge:

The appellant, Michael Wayne Martin, was tried by jury and convicted of Knowingly Concealing Stolen Property, in violation of 21 O.S.1981 § 1713, in Mays County District Court, Case No. CRF-83-122, before the Honorable William J. Whistler, District Judge. The jury recommended a sentence of one (1) year, with time suspended, and a $500 fine. The trial court sen[1368]*1368tenced the appellant in accordance with the jury’s recommendation, but did not suspend the sentence. We affirm.

David Lane went to a concert in Tulsa at 9:00 p.m. on November 4, 1983. He left the concert at approximately 10:00 p.m. to find his 1978 Ford pickup gone. He made a theft report the next day. The day after making the report, he was notified that his pickup had been found, stripped and burned, and was being held in the nearby town of Inola. On the same day that he identified the remains of his pickup, he saw parts of it on another pickup parked at a corner in Chouteau. Inquiries revealed that the pickup belonged to appellant. Appellant was arrested at the scene. Appellant testified in his own defense, stating that he purchased the parts from a man named “Mark,” who worked at a salvage yard in Claremore. He said he traded the tires and wheels off his pickup and $200 in exchange for a set “Mark” had. He also paid “Mark” $300 for some fenders he later sold to his brother. Appellant also presented a witness who testified he was present when the deal for the tires was consummated.

Appellant first claims that the trial court erred by disregarding the suspended sentence recommended by the jury. He notes that his brother was convicted at the same time for the same offense and received the same sentence recommendation, but the brother’s sentence was suspended. During their deliberations, the jury sent the judge a note that read: “Can we recommend a suspended sentence (1 yr.) and a $500 fine?” After argument by counsel, not made a part of the record, the court sent the jury the following note: “If the jury wishes to return a verdict in which it assesses a punishment involving a sentence of time to serve, it may recommend to the court that the sentence be suspended. But the court is not necessarily bound by that recommendation." (emphasis added).

Clearly, it is not within the province of the jury to determine whether to suspend or defer a sentence, and there is no basis for the trial court to instruct the jury on such matters. Neilson v. State, 639 P.2d 615, 618 (Okl.Cr.1981), cert. denied 454 U.S. 1117, 102 S.Ct. 961, 71 L.Ed.2d 105 (1981). The decision to suspend or defer a sentence is often based on factors that would not be proper for the jury to consider. Miller v. State, 522 P.2d 642, 644 (Okl.Cr.1974). Such decision lies within the discretion of the trial court, whose ruling will not be overturned absent a showing of an abuse of that discretion. Howell v. State, 632 P.2d 1223, 1225 (Okl.Cr.1981). The trial court commented on the fact that the appellant was the oldest of the two brothers. The evidence indicated that the appellant was arguably the more culpable of the two. The trial court was in the better position to observe the conduct and general demeanor of appellant and his brother, both at sentencing and during trial. Appellant has presented no evidence to indicate that the decision was based on improper factors. In light of the circumstances of this case, counsel for appellant is admonished that appellant can return to the trial court within ten (10) days of this final order and request that the court reconsider its decision not to suspend the sentence. See 22 O.S.1981, § 994. This assignment of error is without merit.

Appellant next urges that his rights were violated when a tape recording of codefendant Steve Martin was introduced into evidence. He claims that after Steve Martin indicated he did not wish to answer any more questions, the interrogation continued. We note initially that if any rights were violated by continued questioning, those rights belonged to brother Steve, not appellant. The right of silence is personal in its nature, and cannot be vicariously asserted. Plummer v. State, 515 P.2d 256, 259 (Okl.Cr.1973); Hill v. State, 500 P.2d 1080, 1088-89 (Okl.Cr.1972). See also People v. Vamum, 66 Cal.2d 808, 427 P.2d 772, 59 Cal.Rptr. 108 (1967), cert. denied, 390 U.S. 529, 88 S.Ct. 1208, 20 L.Ed.2d 86 (1968). However, even if the right were not personal, there would [1369]*1369be no error. On the recording in question, there was no confession. Indeed, an examination of the record reveals that brother Steve’s story paralleled appellant’s. We cannot say that appellant was prejudiced by admission of a tape recording that essentially supported his own defense. This assignment is without merit.

Appellant claims in his third proposition of error that the court erred in allowing testimony that he invoked his right against self-incrimination during interrogation. The statement in question drew no objection at trial and is therefore waived on appeal absent fundamental error. Myers v. State, 654 P.2d 1073, 1075 (Okl.Cr.1982); Boomershine v. State, 634 P.2d 1318, 1319 (Okl.Cr.1981). The remark surfaced during examination of one of the State’s witnesses. After testifying that the appellant was read and understood his rights, the witness was asked if appellant was asked any questions, to which the witness replied: “Well he just — he came out and he said that there was not anything to talk about — that he got the parts Saturday afternoon in Inola from a man.” We cannot interpret this statement as an invocation of the constitutional right to remain silent. Rather, when asked where he got the parts, appellant thought the explanation was simple: he got them from a man in Inola. We find no fundamental error. See Robison v. State, 677 P.2d 1080, 1084 (Okl.Cr.1984), cert. denied, 467 U.S. 1246, 104 S.Ct. 3524, 82 L.Ed.2d 831 (1984). This assignment is without merit.

In his fourth proposition, appellant claims that the trial court improperly excluded testimony concerning conversations he had with “Mark.” We think the statements were properly excluded as hearsay evidence. Appellant’s defense was that he bought the parts from a person named “Mark,” with no knowledge that they were stolen. The conversation with “Mark” would support that theory. We see no indication that statements made out-of-court by “Mark” in talking with appellant were being offered in evidence for any reason other than to prove the truth of the matter asserted, and thus they were properly excluded as hearsay. See 12 O.S.1981 § 2801(3); Nunley v. State, 660 P.2d 1052, 1055 (Okl.Cr.1983), cert. denied 464 U.S. 867, 104 S.Ct. 205, 78 L.Ed.2d 179 (1983).

Appellant cites Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), for the proposition that the hearsay rule should not be mechanistically applied to defeat the ends of justice. There is no similarity between Chambers and this case.

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Related

Johnson v. State
911 P.2d 918 (Court of Criminal Appeals of Oklahoma, 1996)
Hunter v. State
1992 OK CR 1 (Court of Criminal Appeals of Oklahoma, 1992)

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Bluebook (online)
1987 OK CR 127, 738 P.2d 1366, 1987 Okla. Crim. App. LEXIS 410, Counsel Stack Legal Research, https://law.counselstack.com/opinion/martin-v-state-oklacrimapp-1987.