Wall v. State

1987 OK CR 245, 745 P.2d 748, 1987 Okla. Crim. App. LEXIS 523

• Court: Court of Criminal Appeals of Oklahoma
• Decided: November 12, 1987
• Docket: No. F-85-96
• Status: Published

Opinions

OPINION

BUSSEY, Judge:

The appellant, Alfred Lee Wall, was tried and convicted in the District Court of Cleveland County for the crimes of Burglary in the First Degree, After Former Conviction of a Felony, Count I, and Rape in the First Degree, After Former Conviction of a Felony, Count II, in Case No. CRF-84-448 and was sentenced to twenty (20) years imprisonment on Count I, and sixty (60) years imprisonment on Count II, and he appeals.

Briefly stated the facts are that on December 11, 1983, appellant burglarized L.K.’s mobile home in Moore, Oklahoma and raped her. Subsequently, on December 15, 1983, appellant was stopped for speeding, and a routine license check revealed that appellant had an outstanding parole violation. After appellant was arrested and informed of his rights, he was transported to the Oklahoma City jail. The next day appellant was linked to the crimes against L.K. by some jewelry he had in his possession bearing L.K.’s name. The appellant told the officers that he met L.K. at the rodeo and that she was a prostitute. He told them that he went to her mobile home where they drank beer and had consensual sex, and that he left with some of her jewelry which he was to sell for her. However, at trial, appellant altered his story and testified that he received the jewelry a few days after the crimes occurred from Johnnie Lee Osborne, now deceased. Deputy Richard Thurman from the Oklahoma City jail testified that Johnnie Lee Osborne was confined in his jail from November 11, 1983, to December 30, 1983.

For his first assignment of error appellant asserts that his Fourteenth Amendment Due Process rights were denied when the State refused to provide him with material evidence specifically requested by him. Specifically, he complains that the State deliberately withheld evidence regarding Johnnie Lee Osborne’s incarceration in the Oklahoma County jail at the time of the crimes, and that if he had known of this fact he would not have relied upon the line of defense he chose at trial. The State, on the other hand, contends that it turned over all information it had at the time the trial court sustained appellant’s motion to produce. The State further maintains that it discovered that Johnnie Lee Osborne was in jail during the time in question by calling around to local jails after the trial had begun.

In Nauni v. State, 670 P.2d 126,133 (Okl.Cr.1983), this Court held that ... “[E]vidence must be material to either guilt or to punishment before it is discoverable.” The testimony of Richard Thurman concerning Osborne’s incarceration was not exculpatory or mitigating, but rather rebutted appellant’s prevarication and totally discredited his defense. Furthermore, the evidence was made available to the jury, and appellant was given full opportunity to explore Thurman’s testimony at trial. This was sufficient to vindicate appellant’s rights. Id. Therefore, we find no error.

Appellant next alleges that he received an excessive sentence and was denied his right to a fair trial due to the improper commentary of the prosecution. We disagree. By failing to object to the alleged improper comments, appellant has waived all error except that of a fundamental nature. Tahdooahnippah v. State, 610 P.2d 808 (Okl.Cr.1980). We have reviewed the record for fundamental error and find that the comments are reasonable inferences arising from the evidence and did not adversely affect the fundamental fairness of the trial. Penn v. State, 684 P.2d 562 (Okl.Cr.1984). Moreover, in light of the serious nature of the crimes in the present case, and appellant’s past criminal record, we cannot say that the sentences shock the conscience of this Court. Edwards v. State, 663 P.2d 1233 (Okl.Cr.1983). This assignment is groundless.

The judgments and sentences are AFFIRMED.

BRETT, P.J., concurs. PARKS, J., concurs in part/dissents in part.