Weekly v. State

1973 OK CR 212, 509 P.2d 482, 1973 Okla. Crim. App. LEXIS 524

• Court: Court of Criminal Appeals of Oklahoma
• Decided: April 18, 1973
• Docket: No. A-17627
• Status: Published

Opinions

OPINION

BUSSEY, Judge:

Appellant, Robert E. Weekly, hereinafter referred to as defendant, was charged, tried, and convicted in the District Court of Jackson County, Case No. CRF-71-121, of the crime of Manslaughter in the First Degree. He was sentenced to serve four (4) years in the state penitentiary. From that conviction, a timely appeal has been made to this Court.

On November 13, 1971, at approximately 10:00 p.m., two men, Guadalupe Agüera, the decedent, and Jesse DeLeon, entered the liquor store owned and operated by defendant. DeLeon left the store to wait outside while Agüera purchased a bottle of liquor from the defendant. Shortly thereafter, defendant attempted to persuade Agüera to leave the store since it was near closing time, but Agüera refused. DeLeon then reentered the store and attempted to get Agüera to leave with him, but again Agüera refused. DeLeon then exited the store and remained outside during the rest of the incident. Defendant testified that he began asking Agüera to leave the store because he had become nervous when Agüera refused to leave after transacting his business and that he took a pistol out from under the counter hoping to avert any trouble. Defendant went around the corner of the counter and again demanded that Agüera leave. Agüera then struggled with defendant for the gun causing the gun to fire accidentally and kill Agüera.

There was conflict in the testimony as to why the two men first entered the store. Defendant testified that when he went around the corner of the counter, Agüera said he intended to rob him. DeLeon testified that they did not enter the store to rob defendant, but had entered to get change for a twenty dollar bill. Defendant testified that there was never any mention of a twenty dollar bill; however, DeLeon testified that the defendant became angry over Aguera’s request for change and that this was what prompted defendant to demand that Agüera leave the store.

After the shooting, defendant called the Jackson County Sheriff’s office to report what had occurred. When the sheriff arrived, the defendant was placed under arrest. He was properly given his Miranda warnings, both in the police car and at the jail, and defendant elected to remain silent.

Defendant’s first contention is that the trial court erred in allowing the prosecuting attorney to cross-examine defendant concerning statements he made to police officers.

Counsel contends that the questions asked defendant were an attempt by the prosecuting attorney to comment on and bring out defendant’s failure to make statements to the police after the defendant’s arrest. The questioning went as follows:

“Q. What did you think he was trying to do ?

“A. I though he wanted the money.

“Q. All right, why didn’t you report that to the police when you reported this incident ?

“A. What?

“Q. 'Why didn’t you-” (Tr. 30)

At this time, defense counsel objected, asserting that the defendant did not have to make a statement. He argued that the District Attorney was trying to make it look as if defendant was concealing something by not making a statement to the sheriff. The court ruled that the defendant had a constitutional right to remain silent, but that he could be asked if he reported the robbery to anyone. The prosecuting attorney then asked:

“Q. All right, Robert, I’ll ask you, did you report it to anyone that this man was trying to rob you or that you thought he was trying to rob you ?

“A. T started to tell Joe. We sat down and I started to tell Joe what happened. And 1 said, ‘Joe, when I-’.

“Q. Just answer my question, be responsive. Did you report this to anyone?

“A. Yes.

“Q. That there had been a shooting.

“A. I called the officers.

“Q. Did you report to any officer that there had been an attempt to rob you?

“A. I didn’t say anything, no.” (Tr. 31-32)

It seems clear from these questions that the prosecuting attorney was not attempting to question about defendant’s failure to talk to the sheriff after his arrest, hut was attempting to question about statements the defendant had or had not made prior to arrest, to-wit: Whether, at the time of calling the sheriff, he told the sheriff that the deceased stated that he intended to rob him.

These questions, properly limited by the court in ruling on defense counsel’s objections, were within the scope of defendant’s direct examination. No error was committed in this regard.

Defendant’s next proposition is that the prosecuting attorney made several improper statements in his closing argument. In Robison v. State, Okl.Cr., 430 P.2d 814, this Court stated:

“ * * * [Wjhen objectionable statement is made by the prosecution, it should be called to the attention of the court by timely objection, together with a request that the jury be instructed to disregard the improper statement and in the event that the objection is overruled, an exception should be taken to the ruling of the court, preserved and argued in the Motion for New Trial. When this is not done the matter cannot be presented for the first time in the Motion for New Trial and in the Petition-in-Error and briefs on appeal.”

In the case at bar, defense counsel objected to some of the statements and did not object to others which he asserts are improper, but never did he request the court to instruct the jury to disregard the statements. Counsel, therefore, did not properly preserve the error and it cannot be considered on appeal.

Counsel for defendant cites Thurmond v. State, 57 Okl.Cr. 388, 48 P.2d 845, for the proposition that the trial court had the duty to stop improper argument and instruct the jury not to consider it if counsel fails to object; and he cites Gossett v. State, Okl.Cr., 373 P.2d 285, for the proposition that even if objection is not made, this Court will consider the error anyway, to ensure that there was a fair and impartial trial.

With these holdings, we cannot disagree; however, in line with the well known Harmless Error Doctrine, this Court will not reverse a conviction unless the error complained of is prejudicial.

In the case at bar, it would be impossible to determine whether there was prejudicial error because the record is so incomplete that a fair and complete analysis cannot be made.

This Court, in Needham v. State, 55 Okl.Cr. 430, 32 P.2d 92, stated:

“ ‘When an error has been committed upon the trial of a case, it is the duty of this court upon an inspection of the entire record to determine whether or not the defendant suffered any material- injury from such error.’ ” (Emphasis added)

Defendant has only included in the transcript the testimony of a few witnesses and the State’s closing argument, and from this short out-of-context overview, it cannot be determined whether prejudicial error was committed. It would be impossible to determine the overall effect of the statements and if the statements were invited by defense counsel’s closing argument. This Court, in Graham v. State, 80 Okl.Cr. 159, 157 P.2d 758, stated:

“It is well-settled that counsel for defendant must object to the alleged improper statements by the prosecutor at the time they are made and move the court to exclude such remarks from the consideration of the jury, and make a proper record so that this court may determine from an examination of the record whether the alleged improper remarks were actually made, and, if so, whether they were invited or provoked by oppposing counsel’s remarks.”

In the instant case, counsel for defendant not only failed to object properly, but did not make a proper record so that this Court can determine whether prejudicial error has been committed.

The judgment and sentence is therefore affirmed.

BLISS, P. J., concurs. BRETT, J., dissents.