Hill v. State ( 1972 )

BRETT, Judge:

This is an appeal granted by Order dated January 5, 1972, in Case No. A-16,813, upon petition for post conviction relief claiming the denial of the right to appeal a conviction through failure of counsel to timely perfect an appeal. 22 O.S.1971, § 1080 et seq. Order of the District Court denying relief is hereby affirmed.

Appellant, Herbert D. Hill, hereinafter referred to as defendant, was convicted by jury verdict in the District Court of Kay County, Case No. 4578, of grand larceny and sentenced to four (4) years imprisonment. Judgment and sentence was imposed on May 16, 1969.

The conviction concerned the theft of money from the cash drawer of Miller’s Market in. Ponca City. At the trial before the jury, the state in chief elicited from three witnesses, who identified defendant as the perpetrator of the crime, that they had seen defendant, subsequent to the crime, at the Blackwell Police Station where he was held. Charles Allen Gall, David Dagg, and David Petree each testified they were brought to the Blackwell Police Station where they saw and identified defendant. Officer E. J. Neely testified that he brought the three witnesses to the Blackwell Police Station to view defendant who- was sitting in a chair when viewed by the witnesses, and volunteered that there was not time to stage a full lineup.

The transcript of testimony as designated by defense counsel for appeal, was filed with the petition herein seeking reversal of the district court’s denial of post conviction relief. It appears that appellant’s main contention of error lies in the identification made of him while he sat in the Blackwell Police Station. We have reviewed the designated transcript of testimony as fully as though this were the regular appeal, and find defendant’s contention falls within the recent decision of the United States Supreme Court in Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L. Ed.2d 411 (1972), in which the United States Supreme Court affirmed Kirby’s conviction.

In the Kirby case he and another man were arrested and taken to the police station. They had in their possession traveler’s checks and a social security card, all bearing the name of Willie Shard. Shard was brought to the police station and immediately upon entering the room where Kirby and the other man were seated at a table, Shard positively identified them as the men who had robbed him two days earlier. The Illinois Supreme Court had affirmed the conviction, holding that admission of Shard’s testimony was not error. That position was left undisturbed by the Honorable United States Supreme Court.¹

Therefore, insofar as the facts complained of in defendant’s matter are almost identical to those found in Kirby v. Illinois, supra, we feel compelled to affirm the order entered by the District Court of Kay County, denying defendant’s post conviction application. Also, insofar as this matter has been given treatment equal to that it would receive on an appeal, and the transcript of testimony has been fully reviewed, considering defendant’s complaints, it would serve no purpose to order the appeal out-of-time.

We therefore hold, under these circumstances, that defendant has not been denied his right to appeal; that his complaints have been fully considered and found to be without merit in view of the foregoing decision in Kirby v. Illinois, supra; and the district court order denying relief is hereby affirmed.

With reference to defendant’s complaint concerning the prosecutor’s closing argument, the record does not contain that portion of the trial and cannot be considered. We observe also that defendant answered question four on Part B of the application: “How do you think you can know [sic] [now] prove the facts you have stated in answer to Question 2 above ?” [Answer] “By presentation of the transcript of this case to the Court of Criminal Appeals of the State of Oklahoma.” That transcript has been considered and defendant’s contentions are found to be without merit.

BUSSEY, P. J., concurs in result. SIMMS, J., specially concurring.

1 . For report of Illinois Supreme Court decision, see: People v. Kirby, 121 Ill.App.2cl 323, ' 257 N.E.2d 589.