Walker v. State

1989 OK CR 64, 781 P.2d 838, 1989 Okla. Crim. App. LEXIS 64, 1989 WL 120847

• Court: Court of Criminal Appeals of Oklahoma
• Decided: October 11, 1989
• Docket: F-86-624
• Status: Published

Opinions

OPINION

LANE, Vice Presiding Judge:

Appellant, James Henry Walker, was convicted of Robbery with Firearm After Former Conviction of a Felony (Count I) (21 O.S.1981, §§ 51, 745), and Kidnapping for the Purpose of Extortion (Count II) (21 O.S.1981, § 801) in the District Court for Payne County, Case No. CRF-85-336. After a trial by jury, punishment was assessed at twenty-five (25) years on Count I and thirty (30) years for Count II. Judgement and sentence were imposed accordingly.

This case presents a distinctive procedural basis in that as a result of factual stipulations between Appellant and the State, Appellant effectively waived his right to have a jury determine his guilt or innocence of the crimes charged against him. As a result of these stipulations, the trial court gave the following instruction to the jury: -

In this case today the defendant and the State of Oklahoma have entered into a stipulation of facts. And I’m going to give you a stipulation at this time. The defendant stipulates and agrees that he has committed each element of each count charged against him; that is, he committed the crime of Robbery with a Firearm, Count I; and the crime of Kidnapping for Purposes of Extortion, Count II. So he has admitted that he did commit each element of each of those charges. He has further admitted, or stipulated too (sic) that on the 23rd day of January, 1964, in Case NO. 1527 in the Circuit Court of Polk County, 10th Judicial Circuit, state of Florida, that he was convicted of the crime of Rape. Now, based on these stipulations and admissions by the defendant, your job will be to determine punishment in-each case. At the end of the evidence you will be directed to fix punishment within the range provided by law.

(Tr. 6-7.)

Appellant now claims that the trial court improperly directed a verdict against him, which relieved the State from its burden of proving the elements of the crimes charged. He also asserts that the court’s acceptance of his stipulation had the effect of converting his not guilty plea to one of guilty. In accord with this result, Appellant now claims that he was denied the rights associated with acceptance of a guilty plea.

In Rucker v. State, 580 P.2d 1005 (Okl.Cr.1978), we held that the trial court erred when it directed a verdict of guilty after the defendant took the stand and admitted the commission of the crime with which he was charged. In Rucker we stated:

It has long been a constitutional and statutory right of accused in this state that a defendant has the right to a jury’s determination of his or her guilt, even in such cases where during the course of a trial the defendant admits his or her guilt.... The only exception to this rule is where a defendant stipulates to the former conviction or convictions during the second stage of a bifurcated trial_ (Emphasis added) (citations omitted).

Id.

The present case is distinctly different from the situation presented in Rucker in that here, there was a positive, informed waiver of the right to present the question of guilt or innocence to a jury. There was no such waiver or acquiescence in the directed verdict in Rucker. In Rucker, the trial judge gave a directed verdict on his own motion after hearing the defendant’s confession from the witness stand.

In previous decisions, we have recognized that a defendant may waive his right to a jury trial. See Hatch v. State, 662 P.2d 1377 (Okl.Cr.1983); Hayes v. State, 541 P.2d 210 (Okl.Cr.1975). The conclusion then, that if a defendant can waive a jury trial in its entirety he may also waive any part of a jury trial, is completely logical and does not offend established principles of due process.

In the present case, an in camera hearing was conducted with both Appellant and his counsel present. At this hearing, defense counsel presented the stipulation to the court and Appellant affirmatively gave his consent to the agreement. He told the court that he was offering the stipulation voluntarily with a full understanding of the consequences. The trial court then announced that it would instruct the jury as to the stipulations, would allow both the State and Appellant to present evidence as to punishment and would then instruct the jury to find Appellant guilty and assess punishment. The court asked Appellant if this procedure was agreeable. Appellant answered “that’s fine.” In Rucker, the trial court directed a verdict in favor of the State after the defendant took the stand and confessed to the crime. There was no affirmative waiver of the right to have guilt determined by a jury expressed in Rucker.

In this case, it is clear that the offered stipulation was calculated trial strategy apparently designed to enhance Appellant’s appeal to the mercy of the jury for a lighter sentence. Appellant may not now claim error because his strategy failed. Such result must be rejected as invited error. See Hughes v. State, 762 P.2d 977 (Okl.Cr.1988). See also Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) (discussion of harmless error doctrine.) While we hold fast to our dictates in Rucker that it is error for the court to direct a verdict of guilt, we recognize that the procedures used in the present case are an exception to that rule. Certainly, we will not attempt to defeat a defendant’s knowing and informed decision to forgo jury determination of his guilt.

We are not unmindful of cases from other jurisdictions which have found that in some situations, a proceeding such as the one utilized here may be “tantamount to a guilty plea.” State v. Steelman, 126 Ariz. 19, 612 P.2d 475, 478 (1980). See also State v. Johnson, 104 Wash.2d 338, 705 P.2d 773 (1985); People v. Hancock, 113 Ill.App.3d 564, 69 Ill.Dec. 559, 447 N.E.2d 994 (1983); Comm. v. Duquette, 386 Mass. 834, 438 N.E.2d 334 (1982); In re Mosley, 1 Cal.3d 913, 83 Cal.Rptr. 809, 464 P.2d 473 (1970), cert. denied, 400 U.S. 905, 91 S.Ct. 144, 27 L.Ed.2d 142 (1970). We note with interest the opinion of the Washington Supreme court that several of the jurisdictions using this analysis now have exception-ridden, fact-specific decisions.” State v. Johnson, 104 Wash.2d 338, 705 P.2d 773 (1985). The Washington court specifically declined to undertake similar analysis.

We believe that the better reasoned result in such a situation is that of the Maryland Courts. In Ingersoll v. State, 65 Md.App. 753, 501 A.2d 1373 (1986), the defendant entered a plea of not guilty along with a stipulation of agreed facts. The stipulation included an agreement on all facts, including the ultimate issues in the case. The court quoted one of its previous decisions holding:

This plea, which has two components, a not guilty plea and an agreed statement of facts, was considered. in Barnes. There, this Court defined the essential nature of the agreed statement of facts component: Under an agreed statement of facts both State and defense agree as to the ultimate facts. Then the facts are not in dispute, and there can be, by definition, no factual conflict. The trier of fact is not called upon to determine the facts as the agreement is the truth of the ultimate facts themselves. There is no fact-finding function left to perform. To render judgment, the Court simply applies the law to the facts agreed upon. If there is agreement as to the facts, there is no dispute; if there is dispute, there is no agreement.

Id. 501 A.2d at 1376 quoting Barnes v. State, 31 Md.App. 25, 354 A.2d 499 (1976). The court noted the variety of reasons which could motivate a defendant to enter into such an arrangement:

... [I]t is less time consuming than a plea of guilty, minimizes post conviction attack on counsel, and provides the possibility that if an essential element of a charged offense is omitted from the statement that the “evidence” will be insufficient to convict.

Additional impetus for entering into an agreed stipulation of facts coupled with a not guilty plea were recognized by the Washington court in Johnson; by this process a defendant is able to preserve legal issues for appeal and keep potentially prejudicial matters from presentation to a jury. Johnson, 705 P.2d at 775. The combination of these factors clearly establish the procedure used in the present case as a legitimate trial strategy. While it is a daring strategy in that there are none of the known factors as are involved with a negotiated plea of guilty, it is a choice that we are reluctant to foreclose.

In the present ease, the court conducted a hearing and determined that Appellant understood the consequences of his agreement and that the stipulation was entered into voluntarily and of his own free will. Because this proceeding is not based upon a plea of guilty, the procedural requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) or King v. State, 553 P.2d 529 (Okl.Cr.1976) are not implicated. Accordingly, it was not error to omit them in this situation. This issue does not present grounds which require reversal of Appellant’s conviction.

Appellant next raises a number of comments made by the prosecutor which he claims unfairly prejudiced him. We have reviewed the comments to which Appellant objected at trial and find that in the instances of which Appellant complains, the trial court made a ruling that the comment was improper, in which case the objection was sustained and the jury properly admonished. This is sufficient to cure any likely error. Patterson v. State, 735 P.2d 338 (Okl.Cr.1987); Funkhouser v. State, 734 P.2d 815 (Okl.Cr.1987); Kitchens v. State, 513 P.2d 1300 (Okl.Cr.1973). Although we do not condone prosecutorial statements such as were present here¹, we do not find that Appellant’s sentence was impermissible altered by the statements. Appellant had a previous conviction in Florida for the crime of Rape. He was sentenced to life imprisonment for that crime. In the present case, the sentences received were well within the statutory guidelines. There is no error here.

Finding no error which requires either modification or reversal, Appellant’s Judgement and Sentence is hereby AFFIRMED.

BRETT, J., concurs. LUMPKIN, J., concurs in result. PARKS, P.J., dissents.

1 . The prosecutor implied through a number of comments concerning Appellant’s possession of a gun and the short duration of his previous confinement that Appellant should be given a long sentence.