Pickens v. State

1979 OK CR 99, 600 P.2d 356, 1979 Okla. Crim. App. LEXIS 245
CourtCourt of Criminal Appeals of Oklahoma
DecidedSeptember 20, 1979
DocketF-78-247
StatusPublished
Cited by11 cases

This text of 1979 OK CR 99 (Pickens 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
Pickens v. State, 1979 OK CR 99, 600 P.2d 356, 1979 Okla. Crim. App. LEXIS 245 (Okla. Ct. App. 1979).

Opinions

OPINION

BRETT, Judge:

Clyde Pickens, Jr., hereafter referred to as defendant, was charged, tried before a jury in a bifurcated proceeding, and convicted of the crime of Robbery With Firearms, After Former Conviction of a Felony, pursuant to Laws 1973, ch. 76, § 1, and Laws 1976, ch. 94, § 1 (now codified as 21 O.S.Supp.1978, § 801, and 21 O.S.Supp.1978, § 51), in the District Court, Carter County, Case No. CRF-77-110. The jury set punishment, and the trial court sentenced the defendant to serve ten (10) years’ imprisonment. From the aforesaid judgment and sentence, this appeal was perfected.

A summary of the testimony indicates the State’s witness Anna Burton was clerk at the liquor store when the robbery occurred on June 9,1977. The witness identified the defendant as the man who entered the store with a gun at about 4:00 p. m. that day and demanded all the money. Ms. Burton fled the store, but $250.00 from the cash register and a weapon kept behind the counter were taken.

As to the stolen weapon, which was recovered and introduced into evidence, Aaron Christie, manager of a local pawn shop, testified that the defendant had pawned and later redeemed the gun. Laron Dickson further identified the gun as the one he purchased from the defendant on June 10 or June 17, 1977.

Ardmore Police Detective Captain George Elisee arrested the defendant on July 8, 1977, at the Ardmore District Attorney’s Office where the defendant was assisting in the prosecution of another case. Detective Elisee testified that he and the defendant walked directly to police headquarters where the defendant signed a waiver of rights and wrote and signed a confession of the crime after being explained his Miranda warnings.

[358]*358Special District Judge Thomas S. Walker, who had presided over the defendant’s initial appearance, testified that he had received a letter from the defendant, and after an Oklahoma Bureau of Investigation handwriting expert testified the letter had been written by the defendant, the letter was introduced into evidence. The letter consisted of an admission of guilt and a plea of mercy for a second chance by the defendant.

A series of witnesses testifying in the defendant’s behalf stated that the defendant had been in and out of the Eastside Domino Parlor on the date of the robbery. Numerous witnesses, including a Carter County Deputy Sheriff, testified that the defendant, who wore a beard at trial, had worn one at the time of the robbery. Such testimony was contradictory to that of Anna Burton who had stated at the preliminary hearing that the defendant was clean shaven during the robbery and, during the State’s case in chief, that although he did not have a beard, he was in need of a shave.

Testifying in his own behalf, the defendant contradicted much of the testimony of prior witnesses. He stated that at the time of the robbery he was playing dominoes at the Eastside Domino Parlor and also that he wore a beard at that time. He further testified that on June 5, 1977, he purchased the weapon stolen from the liquor store from Stanley Gaines, since deceased.

With regard to his confession and letter, the defendant repeated the testimony he gave at an earlier motion to suppress hearing that Detective Elisee had taken him to a local cemetery where he beat him severely and threatened to do so again unless he signed the confession and wrote the letter. He further related that he would not sign a confession or write such a letter unless coerced.

State’s rebuttal witnesses testified the defendant was clean shaven about the time of the robbery.

The first assignment of error is that the trial court erred in giving the jury a “logjam” instruction after the jury had advised the court they could not reach a verdict. Upon returning to open court, the jury was instructed:

“THE COURT: Ladies and Gentlemen of the jury, I have received a note from your Foreman to the effect ‘Judge, we cannot reach an agreement, signed, Walter Thompson, Foreman.’ Considering that note, I have prepared one last instruction. At this time I will place this with the Court Clerk for filing and read Instruction No. 9. This is an important case. If you should fail to reach a decision the case is left open and undecided. Like all cases, it must be decided sometime. Another trial would be a heavy burden on both sides. There is no reason to believe that the case can be tried again any better or more exhaustively than it has been. There is no reason to believe that more evidence or clearer evidence will be produced on behalf of either side. Also, there is no reason to believe that the case would ever be submitted to 12 people more intelligent or more impartial or more reasonable than you. Any future jury must be selected in the same manner that you were. These matters are mentioned now because some of them may not have been in your thoughts. This does not mean that those favoring any particular position should surrender their honest convictions as to the weight or effect of any evidence solely because of the opinion of other jurors or because of the importance of arriving at a decision. This does mean that you should give respectful consideration to each others’ views and talk over any difference of opinion in the spirit of fairness and candor. If at all possible, you should resolve any differences and come to a common conclusion that this case may be completed. You may be leisurely in your deliberations as the case may require and take all the time necessary. The giving of this instruction at this time in no way means that it is more important than any other instruction. On the contrary, you should consider this instruction together with and as part of the instructions which I previously gave you. You may now [359]*359retire and continue your deliberations. Mr. Bailiff, you have already been sworn, would you now take this instruction and the jury room for further deliberation.”

Relying on United States v. Cheramie, 520 F.2d 325 (5th Cir. 1975), counsel for the defendant contends that the instruction was coercive and overreaching in that it exhorted the minority to re-examine its views in light of the majority’s view, induced the erroneous perception that the jurors have an absolute “duty to decide,” and strongly suggested the failure to decide would reflect unfavorably on the jury members. On the contrary, we find this instruction to be a model of fairness. The jurors were clearly advised against surrendering their convictions for the sole purpose of arriving at a verdict. The purpose and effect of the court’s instruction was to guide and assist the jury in reaching a fair and impartial verdict, if such was possible. On numerous occasions, we have held that the giving of similar instructions was within the sound discretion of the trial court. See, for instance, Glaze v. State, Okl.Cr., 565 P.2d 710 (1977). We therefore find this assignment of error to be without merit.

The second assignment of error is that the trial court erred by refusing the defendant’s request to make a personal plea to the jury during the second stage of the bifurcated proceedings. In support of this contention, counsel for the defendant cites 22A C.J.S. Criminal Law § 600, page 400, and the Oklahoma cases listed thereunder for the proposition that evidence in aggravation or mitigation of the offense is generally admissible where the jury assesses punishment on a verdict of guilty.

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Hancock v. State
664 P.2d 1039 (Court of Criminal Appeals of Oklahoma, 1983)
Glidewell v. State
1981 OK CR 39 (Court of Criminal Appeals of Oklahoma, 1981)
Pickens v. State
1979 OK CR 99 (Court of Criminal Appeals of Oklahoma, 1979)

Cite This Page — Counsel Stack

Bluebook (online)
1979 OK CR 99, 600 P.2d 356, 1979 Okla. Crim. App. LEXIS 245, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pickens-v-state-oklacrimapp-1979.