Reed v. State

1983 OK CR 12, 657 P.2d 662, 1983 Okla. Crim. App. LEXIS 188
CourtCourt of Criminal Appeals of Oklahoma
DecidedJanuary 25, 1983
DocketF-80-790
StatusPublished
Cited by17 cases

This text of 1983 OK CR 12 (Reed 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
Reed v. State, 1983 OK CR 12, 657 P.2d 662, 1983 Okla. Crim. App. LEXIS 188 (Okla. Ct. App. 1983).

Opinions

OPINION

BRETT, Judge:

Karen L. Reed was convicted in the District Court of Oklahoma County, Case No. CRF-80-361, of eight counts of Robbery With Firearms, pursuant to 21 O.S.1981, § 801, and was sentenced to a total of 471 years’ imprisonment, the eight sentences to run consecutively. On appeal she asserts three errors: first, nondisclosure of a co-defendant’s plea bargain; second, excessive sentence; and third, the unconstitutionality of a one-stage trial.

On January 18, 1980, approximately six people robbed eight employees of the Dale Distributing Company, who were preparing to leave for the day. After discovering that most of the day’s receipts had been deposited with a Brink’s truck, the assailants robbed the employees of billfolds, purses and jewelry. During the course of the robbery, one of the victims was hit by a blunt instrument, and at least one shot was fired. Several victims were physically or verbally abused, and there was the repeated threat that the victims would be killed if they did not cooperate.

Initially, the appellant asserts that the nondisclosure of a plea bargain between the State and one of her co-defendants in exchange for his testimony was inherently unfair and violated her right to a fair trial and rights under the Fifth, Sixth and Fourteenth Amendments of the United States Constitution. The appellant bases her claim of an alleged plea bargain on two sworn affidavits attached to the end of her brief, one by a cell mate of the co-defendant, the other by another participant in the robbery. Both affiants claim the testimony of the co-defendant, Ronnie Knox, came after he made a deal with the district attorney.

Knox pled guilty to his role in the robbery and received a pre-sentence recommendation of ninety-nine (99) years. The affidavits state that the deal Knox made [664]*664with the State included promises he would testify against Reed and not disclose this agreement in return for a nine (9) year sentence. Knox testified at trial that he had not made a deal, and subsequently he received a nine-year sentence.

The appellant’s argument on the merits of the issue are persuasive. Without the testimony of Knox, the State had only the testimony of one witness, who, despite the robber’s ski mask, testified that she could identify the robber by her eyes, mouth, teeth and voice.

In Giglio v. U.S., 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), the defendant was convicted of passing forged money orders. While an appeal was pending, defense counsel discovered that the government had failed to disclose an alleged promise made to its key witness that he would not be prosecuted if he testified for the government. The defense filed a motion for new trial on newly discovered evidence, which included the affidavit of a U.S. attorney confirming the petitioner’s claim that the key witness had been promised immunity in exchange for his testimony.

The deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with the “rudimentary demands of justice.” Mooney v. Holohan, 294 U.S. 103, 112; 55 S.Ct. 340, 341, 79 L.Ed. 791 (1935). When the reliability of a witness may be determinative of the guilt or innocence of the defendant, nondisclosure of evidence affecting his credibility falls within this general rule. A new trial is required if the false testimony could have affected the judgment of the jury. Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). In Giglio, the government’s case depended almost entirely upon its key witness in question. Therefore, his credibility was at issue and the jury was entitled to know whether there was an agreement or understanding regarding a future prosecution linked to his testimony.

In the case at bar, co-defendant Knox adamantly maintained that no agreement had been made between him and the State. Without his testimony, the State’s case consisted of an identification of the appellant based upon her mouth, teeth, voice and eyes. Knox’s testimony was vital and, therefore, his credibility was a crucial issue.

However, the record does not sustain this allegation. Only the affidavits, which have never been submitted to the trial court, support the claim of the co-defendant’s immunity. In the present case, judgment and sentence was handed down in June of 1980. Of the two sworn affidavits, the first was obtained January 21,1981, and the second in August, 1981.

To seek relief, on the basis of the first affidavit, the appellant should have filed a motion for a new trial based on newly discovered evidence pursuant to 22 O.S.1981, § 953, and Rule 2.1 of the Rules of this Court, 22 O.S.1981, Ch. 18, App., Rule 2.1. Thus, under Section 953, the appellant had until March 21, 1981, to seek a new trial based on the newly discovered evidence attested to in the first sworn affidavit. Had she filed a motion for new trial on newly discovered evidence, and had there been a factual determination of the validity of that motion, this issue could be addressed on appeal. However, there is no factual determination upon which to base an appeal.

Relief on the basis of the second affidavit, of August 7, 1981, must first be raised at the trial court level under a request for post-conviction relief. See 22 O.S.1981, § 1080, et seq., and Boone v. State, 640 P.2d 1377 (Okl.Cr.1982). The appellant is precluded from raising this issue until it, too, has been resolved in the district court.

Next, the appellant claims that the trial court abused its discretion in giving her a sentence which is excessive and unfair when compared with the ones the other participants received. Specifically, she argues that her eight sentences were imposed to run consecutively and not concurrently like those of her co-defendants.

The appellant cites Manns v. State, 513 P.2d 882 (Okl.Cr.1973) and Morrow v. State, 513 P.2d 880 (Okl.Cr.1973), where this Court modified sentences in which the following circumstances existed: the appellants were young and committed the robberies in the same evening; both appellants pled guilty and cited as motivation their financial problems. While one of the appellants had no prior record, the other had a traffic offense and a trespassing conviction. This Court emphasized that it did not condone crime to assist in paying debts, and it held that the consecutive sentences were excessive and modified the terms to run concurrently. In the present case, the appellant, who had no prior record, was 27 years old and recently divorced.

[665]*665However, significant differences distinguish the case at bar. While the opinions in Manns and Morrow do not reflect the actual violence used, the facts before us may merit such punishment. Reed was the most violent of the robbers. Victims testified that the female robber repeatedly threatened to kill all of them if they failed to cooperate; that she pointed her gun at them while threatening to kill them; that she forced two of the victims to strip and crawl on their hands and knees while she kicked and verbally abused them; and that she ripped the blouse from one of the victims while demanding her jewelry and personal belongings.

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Reed v. State
1983 OK CR 12 (Court of Criminal Appeals of Oklahoma, 1983)

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Bluebook (online)
1983 OK CR 12, 657 P.2d 662, 1983 Okla. Crim. App. LEXIS 188, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reed-v-state-oklacrimapp-1983.