WATKINS v. STATE

WATKINS v. STATE
1986 OK CR 60
717 P.2d 1159
Case Number: F-84-171
Decided: 04/25/1986
Oklahoma Court of Criminal Appeals

An Appeal from the District Court of Texas County; Frank Ogden, District Judge.

Calvin Roger Watkins, appellant, was convicted of two counts of Unlawful Delivery of Controlled Drugs, After Former Conviction of a Felony, in Texas County District Court, Case No. CRF-83-79, and was sentenced to twenty (20) years' imprisonment on each of the two counts, to run consecutively, and he appeals. AFFIRMED.

E. Alvin Schay, Appellate Public Defender, Norman, for appellant.

Michael C. Turpen, Atty. Gen., Hugh A. Manning, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

BUSSEY, Judge:

[717 P.2d 1160]

¶1 The appellant, Calvin Roger Watkins, a/k/a, Calvin Rodger Watkins, a/k/a Roger Norman Hilbert, was convicted of two counts of Unlawful Delivery of Controlled Drugs, After Former Conviction of a Felony, in Texas County District Court, Case No. CRF-83-79, and was sentenced to twenty (20) years' imprisonment to run consecutively on each of the two counts. From his judgments and sentences, he appeals.

¶2 As his sole assignment of error, appellant argues that the jury imposed an excessive sentence because they were so inflamed by a reference to appellant's having been involved in other criminal activity

¶3 For the above reasons, the judgments and sentences appealed from are AFFIRMED.

BRETT, J., concurs.

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

Footnotes:

1 A state witness made the following reference to appellant's having been involved in other criminal activity:

Q. On those occasions [that you went to appellant's house] were [sic] there any criminal activity you felt you should record in relation to this defendant?

A. Yes, there was.

Q. Did you make notes of those?

A. Yes.

Q. In relation to this defendant?

A. In relation to this defendant there was another.

MR. BORING: Your Honor, may we approach the bench?

THE COURT: I think you should.

2 The admonishment given by the trial court, in pertinent part, was as follows:

THE COURT: Ladies and gentlemen of the jury, a question or two has been made to the witness by Mr. Wood with those answers suggested there might have been some other impropriety. At this time it is improper for you to consider it. At this time the defendant is being tried on the two charges. You are not to consider the testimony he just said about other improprieties. You are not to consider that at all in your deliberations for any purpose. No purpose. You have to erase that from your minds. Is there anyone who feels they can't erase that from your mind, raise your hand. Mr. Wood, you may continue. The record will reflect no juror raised her or his hand.

PARKS, Judge, concurring in part, dissenting in part.

¶1 I concur in the results of this case except for the treatment of the comments made by District Attorney Don Wood set forth in the opinion by Judge Bussey in footnote 1.

¶2 It is clear that this line of questioning was an attempt to reveal to the jury evidence of other improper acts or other crimes allegedly committed by the appellant, clearly in an effort to inflame or prejudice the jury. They are in no way "fleeting" comments, but were calculated to circumvent the rules of evidence and proper trial conduct. This type of questioning is patently improper, and could have caused reversal had the trial court not properly admonished the jury to disregard it.

¶3 So prejudicial were the District Attorney's remarks that I would find the sentence imposed excessive because of the prejudicial impact of the questioning. I would reduce the sentence to fifteen (15) years for each count to run concurrently.