Buchanan v. State , 523 P.2d 1134 ( 1974 )

OPINION

BLISS, Presiding-Judge:

The appellant, Teresa Louise Buchanan, hereinafter referred to as defendant, was charged, tried and convicted of the crime of Robbery With Firearms in the District Court of Tulsa County, Oklahoma. She was sentenced to serve a term of fifteen (15) years in the state penitentiary in accordance with the verdict of the jury, and a timely appeal has been perfected to this Court.

Briefly stated, the facts are as follows: The State’s first witness was Don Edward Archambo who stated that on the evening of February 23, 1973, he was employed at a Git-N-Go Store located on East 21st Street in Tulsa. At approximately 10:40 p. m. a woman came in and asked for some cigarettes. When he looked back around, the woman had a gun pointed at him and threatened to shoot him if he did not give her all the money. Approximately $95.00 was taken.

The witness further testified that an Officer Roberts came to his home on the 26th of February and showed him 8 to 10 pictures of women, out of which he identified the defendant. Upon cross-examination, the witness stated that he told the officer he was “pretty sure” that one was the picture of the woman who robbed him. The police officer then stated that it was the picture he wanted selected. The witness further identified the robber as a girl, 5 foot 4 inches to 5 foot 6 inches tall, and with brown hair. He further stated that she had no black eye at the time of the robbery. The State then rested.

The defendant then called Violet L. Patterson, the defendant’s mother, who testified that on the day in question her daughter had been hit in the eye while working on a trailer and that the eye had been swollen. She further stated that she and her husband were with the defendant and some of her friends on the 23rd after 9:35 p. m. and that the defendant did not leave their presence.

Officer Clarence Smith then testified that he investigated the robbery and that the victim Archambo had described the suspect as being approximately 5 foot 1 inch tall.

The defendant then called J. C. Patterson, the defendant’s father, who corroborated his wife’s testimony concerning the alibi. He further testified that his daughter had a very swollen eye that was turning black.

The defendant then took the stand in her own behalf. She testified that she never left her parents’ home after 6:15 p. m. on the 23rd. From 9:15 p. m. until she went to bed at 1:15 a. m. on the 24th she and some friends were packing a trailer which she subsequently took to California. She further testified that on the morning of the 23rd she had injured her eye while working on the trailer and, as a result, her eye had been swollen and discolored. On cross-examination she admitted a prior conviction for carrying a loaded firearm.

The defense then called Ray Voils who stated that he was with the Pattersons on the evening in question as they belonged to the same square dance club. He stated that he definitely remembered the Patter-sons leaving the dance around 9:00 or 9:30 p. m. on the 23rd. The defendant then rested.

On rebuttal, the State called Officer Don Bell who stated that Mrs. Patterson had previously told him that she returned home from the square dance at 11:00 p. m. on the evening of the 23rd.

In her brief, the defendant urges that the picture identification procedure was conducted in a manner so unnecessarily suggestive as to induce an irreparable, tainted and mistaken in-court identification of the defendant. The record reflects that the issue was properly raised at trial and that the trial court held a hearing concerning same outside of the presence of the jury and subsequently overruled the defense motion to suppress the in-court identification. We do not find from the record as a whole that the trial court abused its discretion in overruling said defense motion.

The defendant further raises numerous acts of the Assistant District Attorney which she contends were highly prejudicial to her rights to a fair and impartial trial. The record reflects that the following cross-examination of the defendant took place:

“Q : Arraigned for what ?

A: For this, for this armed robbery; and yes, sir, I went there and I went to my arraignment and I came back from San Diego.

Q: Did you call the police on the 27th or 28th, you or your parents or your attorney?

A: What for, I have—

MR. MOOK: I object to that question, it is not relevant, it is not competent to prove or disprove any elements in this crime. If he wants to ask me that question I can answer it.

THE COURT: It would have to be in the presence of this person only.

MR. HOPPER: Yes, I am asking her.

Q : (By Mr. Hopper) Did you call the police and tell them you couldn’t have done it ?

MR. MOOK: I would like a ruling on my objection.

THE COURT: Overruled, allow an exception.

MR. MOOK: ’ Exception.

A: That is what I had my attorney for.

Q: (By Mr. Hopper) Did you ever call the police ?

A: No, sir.

Q: Or your parents in your presence and say it couldn’t have been my daughter, it couldn’t have been me.

MR. MOOK: I object to what they might have said. He is trying to testify. It is an improperly formed question.

A: I was already charged with it.

THE COURT: Overruled.

Q : (By Mr. Hopper) Charged with a crime you didn’t commit ?

A: Yes, sir.”

The record further reflects that on closing argument the following comments were made by the prosecuting attorney:

“Well, I want you to think about this. If you are going to consider that this woman is innocent I want you to remember the testimony of this witness, this defendant and the testimony of her parents, Mr. and Mrs. J. C. Patterson. There is no doubt that they are fine people and I have no quarrel or argument with them. But it’s their daughter that is on trial and I submit to you, ladies and gentlemen, what one of you, if your son or daughter was on trial for this serious felony crime of armed robbery, would lay back from the 23rd day of February until the 26th day of June and keep it a secret that this is not the person who committed it.

MR. MOOK: I want to object to this argument twisting, and distorting the alibi and I will cite Gorley versus U.S., 365 Federal 2d 884. The prosecutor is well aware there was no laying back and hiding any alibi in this case coming from the witnesses. He is commenting completely outside the evidence.

MR. HOPPER: I am commenting on what they testified.

THE COURT: Permit it and allow an exception.

MR. MOOK: I will move you admonish the jury in order to preserve this question. I don’t think it could be removed.

THE COURT: Denied, exception allowed.

MR. HOPPER: What one of you would go from February until June? You would be clawing on the doors of the district attorney’s office, at Jack Purdie’s office, the chief of police. ‘Look, sir, you have got an innocent person charged with a crime. I can prove it, I was with her.’

Or, would you hide her out in a motel and wait until the day of trial.

MR. MOOK: Same objection. Ask for the same admonishment, the same basis for it.

THE COURT: Denied, exception allowed.

MR. HOPPER: Hide her out in a motel and wait until the day of trial to come in and tell your story about how innocent she is. She has to be innocent because I was with her all evening, I was with her at the time the robbery was committed. Is that what you would do? Is that what reasonable people would do? And while we are thinking about that, think of the defendant’s testimony. What was the first thing she did when she got on the stand? She gave all of you a big smile and she let you hear her western country accent. Now, keep in mind this is a person who contends that she is innocent of the crime she is charged with.”

It is the opinion of this Court that the cross-examination of the witness concerning her failure and the failure of her parents to come forward and make a statement prior to trial and the closing argument stressing same constitutes fundamental error on behalf of the prosecuting attorney. The defendant had a clear constitutional right to remain silent from the moment she became a suspect. The prosecuting attorney’s comment upon the defendant’s failure to make a statement or to raise her defense of an alibi prior to trial constitutes a clear, fundamental, and reversible error on the State’s part. See United States v. Arnold, 425 F.2d 204 (10th Circuit, 1970); United States v. Nolan, 416 F.2d 588 (10th Circuit, 1969); and Deats v. Rodriguez, 477 F.2d 1023 (10th Circuit, 1973).

Therefore, for the reasons set out above it is the opinion of this Court that the judgment and sentence appealed from should be and the same is hereby reversed and remanded for new trial on the charge of Robbery With Firearms.

BRETT, J., concurs. BUSSEY, J., dissents.