Shepard v. State

OPINION

BUSSEY, Judge:

The appellant, Booker T. Shepard, was convicted in the District Court of Okmul-gee County, Case No. CRF-84-24, of the crime of Larceny of Domestic Animals (cattle) After Former Conviction of Two or More Felonies. He was sentenced to fifty (50) years imprisonment and brings this appeal.

The facts disclosed by the record reveal that on February 7, 1984, M.C. Montgomery, a farmer, went to his pasture where he kept cattle. He found the lock on the gate broken, tire tracks leading to the loading chute, broken boards in the chute, and five of his cows missing. He contacted the Okmulgee County Sheriff’s Department. By the time a deputy arrived to investigate, two of his cows were found at the Tulsa Stockyards. They had been checked in by appellant.

The following day, a warrant was issued in Okmulgee County for the appellant’s arrest. At appellant’s residence in Tulsa, blood was observed on the ground leading from a trailer to appellant’s back door. Tulsa County Deputy Moody served the arrest warrant on appellant at the front door and went inside because other voices had been heard inside the house. Prior to entering, he observed a cow’s head in the sink in plain view. Through an open door from the kitchen, four quarters of beef could be seen hanging from rafters in the garage. Receipts for cattle from the Tulsa stockyards were laying on a table in the kitchen. Appellant was taken to the Tulsa County jail, and transported to Okmulgee County on the following day.

Appellant was found guilty of Larceny of Domestic Animals (cattle) by a jury. He stipulated to three prior felony convictions. The jury could not agree on the punishment, and sentence was subsequently rendered by the court. After denial of motion for new trial, this appeal was brought.

As his first proposition, appellant asserts that the evidence at trial was insufficient to support a conviction. When the evidence, as viewed in the light most favorable to the prosecution, is such that a reasonable jury could find all essential elements of the crime charged beyond a reasonable doubt, then this Court will not reverse on grounds of insufficiency of the evidence. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Spuehler v. State, 709 P.2d 202 (Okl.Cr.1985).

One of the elements of the crime of Larceny of Domestic Animals is taking the animals. Appellant contends that although there was evidence of sale and possession in Tulsa County, there was no evidence that appellant had taken the cows from Okmulgee County. It is well established that a criminal case may be proved circumstantially, and reasonable inferences drawn therefrom have the same probative effect as direct testimony. Collins v. State, 561 P.2d 1373 (Okl.Cr.1977). Circumstantial evidence in this case included stolen cattle found at the stockyards and sold by appellant. Appellant made certain that all money representing proceeds of the sale was sent directly to him by naming himself as owner on the drive-in slips. Testimony was offered to show that the cattle had been taken with a truck and trailer, and that appellant used his truck and a trailer to deliver cattle to the stockyards. Appellant’s story about another truck and a man who claimed to be the owner of the cattle is inconsistent and wholly uncorroborated, and appellant’s testimony was impeached during cross-examination. A reasonable jury could find from this that appellant had taken the cattle, and the verdict will not be reversed for lack of sufficiency of the evidence. Jackson v. Virginia, supra; Spuehler supra.

Appellant next asserts that his conviction should be reversed on grounds of improper conduct by the prosecutor. We first note that no objection was raised contemporaneously with most of the alleged misconduct, and any error was therefore waived absent a showing of fundamental error. Roberts v. State, 568 P.2d 336 (Okl.Cr.1977). Furthermore, in the one instance in which an objection was raised, it was properly sustained to exclude hearsay evidence. No request was made to have the jury admonished, and no motion for mistrial or other relief was made. This Court is unaware of authority requiring reversal where the trial judge properly sustains an objection by defendant, and we do not reverse on this assignment.

The appellant asserts that reversal is required because the form of the verdicts at the sentencing stage was ambiguous and did not give the jury an option to assess punishment without finding former convictions. The assignment is without merit. First, this Court has long held that in cases such as the one at bar, where the defendant has admitted his prior convictions, “there is no factual question for the jury of whether a defendant is guilty of the primary offense or the offense charged after former convictions. Jones v. State, 527 P.2d 169 (Okl.Cr.1974).” Hanson v. State, 716 P.2d 688, 690 (Okl.Cr.1986).

Second, appellant relies upon the bald assertion that the jury didn’t understand the form. He points to nothing in the record showing any confusion on the part of the jury, nor does he give specific, relevant authority on which reversal is required. This Court will not search for authority to support appellant’s assignments of error.

Finally, no objection was raised as to the form of the verdicts. Therefore, any error that may have existed has been waived. Williams v. State, 542 P.2d 554 (Okl.Cr.1975).

Appellant next asserts that fundamental error occurred because the trial judge was biased against appellant and allowed the bailiff to read the instructions to the jury. We first note that management of the trial is a matter for the sound discretion of the trial judge. Collums v. State, 695 P.2d 872 (Okl.Cr.1985). Appellant argues that bias was demonstrated when the trial judge criticized defense counsel’s actions. We note that these criticisms were made outside the presence of the jury. They did not show any bias concerning the outcome of the case, but merely reflect that the judge wanted to move along so that the jury would not wait all morning before the trial began. A judge’s honest efforts to expedite the trial are permissible so long as they do not operate to prejudice the defendant’s rights. Gamble v. State, 576 P.2d 1184 (Okl.Cr.1978).

Appellant also urges reversible misconduct when the judge interrupted defense counsel’s cross-examination of a State witness. In Lott v. State, 586 P.2d 70 (Okl.Cr.1978), we held that a trial judge may interrupt questioning to clarify testimony or halt improper examination. Here, the court did nothing more than clarify. Furthermore, there was no error as the questions in no way demonstrated the judge’s opinion on the appellant’s guilt, Banks v. State, 578 P.2d 370 (Okl.Cr.1978), and all error not of a fundamental nature was waived when no objection was raised. Lott, supra.

Reading of the instructions by the bailiff also does not amount to reversible error where it was a matter within the trial judge’s discretion in the management of the trial, Collums, supra. The judge was present to answer and rule on any matter of law that might arise, and defense not only failed to object, but specifically assented to that manner of giving instructions. This assignment of error must fail.

Next, appellant asserts that certain evidence should have been suppressed at trial. His argument relies primarily on perceived improprieties in the arrest. Appellant does not seek reversal on the grounds of an unlawful arrest. As we find that the evidence was admissible as lawfully obtained under the plain view exception to the search warrant requirement, we address the improprieties of the arrest only insofar as it is necessary to show the officer’s right to be in the place where the items were seen.

In Tucker v. State, 620 P.2d 1314 (Okl.Cr.1980), this Court in a unanimous decision set out the requirements for evidence seized to fall within the plain view exception. They are: 1) it must be immediately apparent that the items are evidence of a crime; 2) the officer must have had prior justification for being in the place where the items were seen and have a legal right to be there; and 3) discovery of the evidence must have been inadvertent. The items in question in this case were a cow’s head, four quarters of beef, and some “drive-in” slips from the Tulsa stockyards. There is no question that these items would appear to be evidence of the crime of Larceny of Domestic Animals when the officers were at the location to make an arrest for that charge.

By contesting certain features in the arrest, appellant seems to contend that the officer had no legal right to be in the place from which he saw the items. The contention is without merit. Title 22 O.S. 1981, § 175 provides authority for a peace officer to serve an arrest warrant which is delivered to him in any part of the State. The fact that the warrant in this case was issued by an Okmulgee County judge and served by a Tulsa County deputy did not render the arrest unlawful. The deputy had not only the right but a duty to serve the warrant on appellant, and in so doing it was proper for him to be at appellant’s residence.

When appellant answered the door, the deputy could see a cow’s head in the kitchen sink from outside the house. When the deputy went into the house, he also saw the beef through an open door to the garage, and the “drive-in” slips which were laying in the open on the kitchen table.

In none of these acts did the deputy go beyond his right to be in a place from which the items seized were in plain view. His purpose in going to the residence was to make an arrest, not to look for cows. Observation of the items in question was purely inadvertent, and seizure was proper under the plain view doctrine. As there was no impropriety in seizing the items, the trial court properly refused to suppress them from evidence.

Appellant asserts that he should be given a new trial on grounds that he was denied due process by ineffective assistance of counsel. To prevail on this argument, he must show that: 1) his counsel’s performance was deficient, and 2) that deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To show deficiencies, appellant relies exclusively on counsel’s failure to object at various points in the trial and sentencing hearing. While failure to object may rise to the level of ineffective assistance of counsel, Aycox v. State, 702 P.2d 1057 (Okl.Cr.1985), such a failure often will not be conclusive. See Roberts v. State, 568 P.2d 336 (Okl.Cr.1977). The test set forth in Strickland, supra, is whether the errors were so great as to render the results of the trial unreliable. We hold that trial counsel’s conduct was not so deficient as appellant argues in his brief. Most of the objections that have been raised in the brief would have been properly overruled, and those that should have been sustained would have amounted at most to harmless error had the ruling been incorrect. The evidence was more than sufficient at trial to sustain the conviction, and the notion that the sentence imposed would have been less is mere speculation, especially in light of the confessed convictions of the same crime on numerous occasions in the past. We are of the opinion that the result was reliable; therefore, this contention is denied.

Appellant raises several assignments concerning the severity of his sentence. First, he argues that under 21 O.S. 1981, § 51(B), the prior convictions used for enhancement “arose out of the same transaction or occurrence or series of events closely related in time and location....” The law on this point is clear. In Bickerstaff v. State, 669 P.2d 778, 780 (Okl.Cr.1983), this Court stated:

In the instant case, the appellant would ... receive a benefit if the convictions arose out of the same transaction.... Defendants cannot receive this benefit without offering evidence whether the prior convictions were closely related. As the appellant presented no such evidence ..., this assignment of error is without merit.

Appellant in this case similarly failed to put on evidence tending to show a relationship between the crimes. Moreover, the convictions came from different counties and the informations were filed at different times. Even if Bickerstaff, supra, did not resolve this issue, we find the argument patently frivolous and will not consider it. Collums v. State, 695 P.2d 872 (Okl.Cr.1985).

Appellant further argues that the trial judge failed to consider mitigating circumstances or to give credit for time served, that the length of the sentence is such as should shock the conscience of this Court, and that his sentence should therefore be reduced. We disagree. In general, when the sentence imposed is within the statutory limits, a reviewing court should not disturb it. See United States v. Floyd, 477 F.2d 217 (10th Cir.1973), cert, denied, 414 U.S. 1044, 94 S.Ct. 550, 38 L.Ed.2d 336. While it is common practice for the trial judge to give credit for time served, there is no authority mandating such credit or making it abuse of discretion to fail to give it. A sentence of 50 years does not shock the conscience of this Court where the evidence clearly showed appellant’s guilt, the sentence was within the prescribed limits, and appellant had been convicted of the same offense several times in the past.

Finally, appellant seeks reversal due to accumulation of errors. As we have found no errors committed in this case, there is no accumulation which could require reversal. Lott v. State, 586 P.2d 70 (Okl.Cr.1978).

Accordingly, the judgment and sentence is AFFIRMED.

BRETT, P.J., and PARKS, J., specially concur.