Gourley v. State ( 1989 )

LUMPKIN, Judge:

concurring in part/dissenting in part.

I concur with the Court’s determination that the charges of Felonious Possession of a Sawed-Off Shotgun and Felonious Possession of a Pistol in CRF-86-3798 must be reversed and remanded with instructions to dismiss for the reasons set forth by Judge Parks. I further concur that the convictions of Assault with a Deadly Weapon and Possession of a Sawed-Off Shotgun in CRF-86-3794 should be affirmed. However, I must dissent to the Court’s determination that the sentences in CRF-86-3794 should be modified to thirty (30) years on each count.

The evidence reveals the question by the prosecutor to the Appellant regarding how long he had served for the convictions of burglary and felonious possession of a firearm was in direct response to the questions proposed by the defense attorney on direct examination. The question was proper cross-examination to clarify a false impression which was conveyed by the Appellant’s response on direct examination. This inquiry is distinguishable from that in Stringfellow v. State, 744 P.2d 1277 (Okl.Cr.1987) wherein the prosecutor, in closing argument, attempted to lead the jury through a computation of the time actually served by the defendant based on the testimony at trial. Stringfellow cites to Dyke v. State, 716 P.2d 693, 699 (Okl.Cr.1986), as additional authority for the proposition that evidence admitted regarding the amount of time actually served on a prior conviction, if raised by the prosecutor, would constitute error. However, Judge Parks, writing for a unanimous court in Dyke, held “However, in this case, the evidence regarding time served on the prior conviction was raised by the Appellant on direct examination, not by the prosecutor. This assignment of error is therefore wholly without merit.” Id. at 699.

In addition, the minimum sentence m each of these cases after two or more former convictions was twenty (20) years. The jury was not swayed by the prosecution’s appeal for a punishment as high as two thousand (2,000) years but set punishment at forty (40) years on each count. The sentence is reasonable under the evidence in the case and does not reveal the jury was influenced to render an excessive sentence by the comments of the prosecution. I would therefore affirm the sentence of forty (40) years on each count as recommended by the jury and imposed by the trial judge.