Thigpen v. State , 571 P.2d 467 ( 1977 )

OPINION

BUSSEY, Presiding Judge:

Appellants, Jimmy Lee Thigpen and Jimmy Lee Henderson, hereinafter referred to as defendants, were charged in the District Court, Oklahoma County, Case No. CRF-76-2173, with the offense of Burglary in the Second Degree, After Former Conviction of a Felony, in violation of 21 O.S.1971, § 1435, and 21 O.S.1971, § 51. The jury returned a verdict of guilty, and punishment was assessed at sixty-seven (67) years’ imprisonment against both defendants. Judgment and sentence was imposed on defendant Thigpen on September 29, 1976. Judgment and sentence was imposed on defendant Henderson on October 28, 1976, at which time seventeen (17) years of said sixty-seven (67) year sentence were suspended. From said judgments and sentences a timely appeal has been perfected to this Court.

The first witness for the prosecution was Leonard Ingram Saunders, who is business manager for the Opportunity Industrialization Center of Oklahoma County, Incorporated, and was so employed on June 1,1976. He testified that he left the premises on Friday preceding the Memorial Day weekend, and that when he left the building was secured, and to his knowledge the bathroom window, which was later found broken, was intact. He also stated that he knew Jimmy Thigpen as a former trainee of the center.

The next witness was Douglas W. Choate, who stated that he was a night service and security man for Protection Alarm Company on the night of May 31 and June 1,1976, and that he responded to a silent alarm at the O.I.C. Building, which is located at 400 North Walnut in Oklahoma County. Mr. Choate further testified that the alarm was sounded at 11:45 p. m. and that he arrived at the building around 11:47 p. m., shortly before the police officers arrived. Mr. Choate entered the premises with the police officers, and in the following search of the building the two defendants and another subject were discovered.

The next witness was Bobby G. Graham, Oklahoma City Police Officer, who testified that he and Officer Robertson responded to a silent alarm on the night of May 31, at the O.I.C. Building located at 4th and Walnut Streets. The security guard for Protection Alarm Company was already there, and the three of them proceeded to search the premises. They discovered a bathroom window broken on the main floor of the building, and later discovered the two defendants and one other subject hiding in the basement. Officer Graham stated that he advised the subjects of their Miranda rights. Officer Graham testified on cross-examination that he did not see the bathroom window get broken, and that he did not know who had done it.

The next witness, Gordon Robertson of the Oklahoma City Police Department, essentially corroborated the testimony of his partner, Officer Graham. Additionally, he stated that when Officer Graham was arresting the two defendants and the other subject, Teddy Vanodoe, he observed some glass embedded in the soles of the shoes of Vanodoe.

R. C. Scobey, Detective for the Oklahoma City Police Department, testified that he also gave the two defendants their Miranda warnings, and, without objection, he testified that defendant Henderson admitted that he and defendant Thigpen were in the building, and that the reason they had not taken anything out of the building was because of the quick response by the security guard and the police. On cross-examination, Scobey admitted that he was not at the O.I.C. Building the night the defendants were arrested, and that he did not know how the defendants got into the building.

The State then rested.

Defendant Thigpen testified that he was enrolled at O.I.C. when he was arrested on the burglary charge. He further stated that on the night he was arrested he was jogging by the building and observed an acquaintance, Teddy Vanodoe, inside. Defendant Thigpen went to the door of the building to try to convince Vanodoe that there was nothing to steal when the police arrived and, because he was frightened, he followed Vanodoe into the basement and hid. On cross-examination, defendant Thigpen said he initially lied to the officers about his name because he was afraid.

Defendant Henderson, like defendant Thigpen, testified that he too was enrolled at O.I.C. when arrested for the burglary on the night in question. Defendant Henderson stated that he was walking through a field across the street from the O.I.C. Building when he observed someone enter the back door of the building. Out of curiosity he entered the building and, upon hearing a noise, he went down to the basement where he saw Vanodoe and defendant Thigpen. The police later apprehended them there. Defendant Henderson said that he too lied to the police about his name because he was afraid.

The first assignment of error is that the District Attorney should not have been allowed to amend the information when the State rested its case. The information originally charged the defendants with burglarizing the Oklahoma Industrialization Center, Inc., located at 400 North Walnut, Oklahoma City. However, the testimony at trial showed the premises located at 400 North Walnut to be the Opportunity Industrialization Center, Inc. Over the objection of the defendants the court allowed the information to be amended to correctly state the name of the building. Title 22 O.S.1971, § 304, states:

“An information may be amended in matter of substance or form at any time before the defendant pleads, without leave, and may be amended after plea on order of the court where the same can be done without material prejudice to the right of the defendant; no amendment shall cause any delay of the trial, unless for good cause shown by affidavit.”

The issue here is whether permitting the District Attorney to amend the information created material prejudice to the rights of the defendants. In Neal v. State, Okl.Cr., 529 P.2d 526, 530 (1974), this Court approved the amendment of the information as follows:

“[The amendments] provide additional description of the property to wit: the serial numbers, and as a consequence, in light of the defense presented by defendants, can in no way be deemed to have altered the Information to such an extent that the defendant would be prejudiced in the manner in which he presented his defense. . , . ”

While the instant case involved the correction of the name of the building burglarized instead of additional description of the property, the rule still applies because there was no prejudice to the defendants. The information provided the correct address, and the mistake in the name of the building was trivial. There could have been no mistake as to what building was referred to throughout the trial. For this reason we find this assignment of error to be without merit.

The second assignment of error is that the instructions to the jury were fundamentally deficient in that the jury was not provided an instruction on the issue of unlawful entry. Although the defendants at bar did offer testimony to explain their presence in the building, there was no requested instruction submitted to the court, nor were there any objections to the instructions given. We therefore find no merit to this assignment of error.

The defendants’ third and fourth assignments of error are concerned with the second stage of the proceedings wherein the defendants were charged under 21 O.S. Supp.1976, § 51(A) ¹ The defendant Thig-pen alleges that the trial court should have instructed under 21 O.S.Supp.1976, § 51(B)², and that under that section his sentence is excessive, as this provision would limit his sentence to twenty-seven (27) years’ imprisonment. These assignments of error clearly demonstrate the ambiguity of 21 O.S. Supp.1976, § 51(B), in that if followed to its logical conclusion a defendant with a single prior conviction could receive a greater penalty than a felon with two or more prior convictions. To apply the statute in the instant case would be to allow the sentence of defendant Henderson, with one prior conviction, to stand at sixty-seven (67) years, and to limit the sentence of defendant Thigpen, with two prior convictions, to twenty-seven (27) years.

We are of the opinion that it was the legislative intent in enacting the provisions of 21 O.S.Supp.1976, § 51(A) and § 51(B), to authorize progressively greater punishments for habitual criminals; Section 51(B), however, is so vague and illusory when construed with Section 51(A) that it cannot be construed in such a manner as to implement the legislative intent, and because of its vagueness and demonstrated defects we are of the opinion that 21 O.S.Supp.1976, § 51(B), is unconstitutional³ and that the trial court would have erred had an instruction been given thereunder. However, such an error would not have required reversal. See, 20 O.S.1971, § 3001.

Since the provisions of 21 O.S.Supp. 1976, § 51, contain a severability clause, our holding today in no way impairs the validity of 21 O.S.Supp.1976, § 51(A).

For the foregoing reasons and in the interest of justice, this Court finds that the sentences should be, and are hereby, MODIFIED from sixty-seven (67) years’ imprisonment each, with seventeen (17) years of defendant Henderson’s punishment being suspended, to fifty (50) years’ imprisonment each, and as so modified, the judgments and sentences appealed from are AFFIRMED.

BRETT, J., specially concurs. CORNISH, J., concurs.

1 . Title 21 O.S.Supp.1976, § 51(A), reads as follows:

“Every person who, having been convicted of any offense punishable by imprisonment in the penitentiary, commits any crime after such conviction is punishable therefor as follows: “1. If the offense of which such person is subsequently convicted is such that upon a first conviction an offender would be punishable by imprisonment in the penitentiary for any term exceeding five (5) years, such person is punishable by imprisonment in the penitentiary for a term of not less than ten (10) years.

“2. If such subsequent offense is such that upon a first conviction the offender would be punishable by imprisonment in the penitentiary for five (5) years, or any less term, then the person convicted of such subsequent offense is punishable by imprisonment in the penitentiary for a term not exceeding ten (10) years.

“3. If such subsequent conviction is for petit larceny, or for any attempt to commit an offense which, if committed, would be punishable by imprisonment in the penitentiary, then the person convicted of such subsequent offense is punishable by imprisonment in the penitentiary for a term not exceeding five (5) years.”

2 . Title 21 O.S.Supp.1976, § 51(B) reads:

“Every person who, having been twice convicted of felony offenses, commits a third or thereafter, felony offenses within ten (10) years of the date following the completion of the execution of the sentence, shall be punished by imprisonment in the State Penitentiary for a term of twenty (20) years plus the longest imprisonment for which the said third or subsequent conviction was punishable, had it been a first offense; provided, that felony offenses relied upon shall not have arisen out of the same transaction or occurrence or series of events closely related in time or location; provided, further, nothing in this section shall abrogate or affect the punishment by death in all crimes now or hereafter made punishable by death.”

3 . Although we have not set forth in detail the many absurdities which could result from an application of Section 51(B) nor the authorities upon which we have relied in determining its constitutionality, we were assisted in arriving at our decision by the very excellent Advisory Opinion to the Judges, prepared for his colleagues by the Honorable Charles L. Owens, District Judge of the Seventh Judicial District, which we set forth in the appendix to this opinion.