# Parker v. State > Court of Criminal Appeals of Oklahoma · December 28, 1994 · 887 P.2d 290 URL: https://www.frixlaw.com/law-library/cases/9541935 ## Case - **Full name:** Henry Harold PARKER, Appellant, v. STATE of Oklahoma, Appellee - **Court:** Court of Criminal Appeals of Oklahoma - **Decided:** December 28, 1994 - **Citations:** 887 P.2d 290; 1994 OK CR 56; 1994 Okla. Crim. App. LEXIS 97; 1994 WL 467457 - **Precedential status:** Published - **Opinion:** Concurring in part by Lumpkin - **Judges:** Lane, Chapel, Lumpkin, Strubhar - **Cited by:** 12 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9541935 ## How later opinions describe it (automated extraction) - concluding that the participation of the legal intern without the defendant’s consent did not violate the defendant’s right to counsel because the defendant “was at all times represented by his attorney of record” ## Opinion text LUMPKIN, Presiding Judge, concurring in part and dissenting in part: While I agree Appellant’s judgment should be affirmed, I must again respectfully disagree with my colleagues this case must be remanded for resentencing. I do this based on my dissents in Humphrey v. State, 864 P.2d 343, 345 (Okl.Cr.1993); Hain v. State, 852 P.2d 744, 753 (Okl.Cr.1993); and Salazar v. State, 852 P.2d 729, 741 (Okl.Cr.1993). I also dissent because I believe my colleagues’ reasoning is based on an erroneous interpretation of the Eighth Amendment to the United States Constitution. See Salazar v. State, 859 P.2d 517, 519 (Okl.Cr.1993) (Lumpkin, P.J., dissenting to Order Denying Petition for Rehearing and Directing Issuance of Mandate). ORDER GRANTING REHEARING Henry Harold Parker, petitioner, was tried by jury and convicted of Murder in the First Degree and sentenced to death in Seminole County District Court, Case No. CRF-88-6621. By written opinion handed down August 26, 1994, judgment was affirmed, and sentence was vacated with instructions to the District Court to resentence. Appellant is before the Court on a petition for rehearing, arguing the Court did not address two issues duly submitted by supplemental brief. 1 We grant rehearing for these issues were inadvertently omitted from the written opinion. Petitioner’s first proposition alleges the State failed to comply with a discovery order by failing to produce a radio communication time log created by incoming transmissions to the Seminole police station. Two motions filed by the petitioner and granted by the trial court are relevant here: a Motion to Compel Disclosure of Any Evidence Favorable to the Defendant; and a Motion for Production, of, among other things, Technical and physical evidence and reports concerning the same in the possession of the prosecution, including autopsy reports and sketches made by technical investigators, fingerprint analyses and all other technical reports ... The petitioner concedes this evidence was not favorable to him. It thus would not be discoverable under the Motion to Compel Disclosure. The issue then becomes whether the time log should have been produced as technical evidence. In 1988, at the time of trial, technical evidence discoverable by the defendant included reports or statements by experts including the results of scientific tests, experiments or comparisons. Moore v. State, 740 P.2d 731 (Okl.Cr.1987). Duvall v. State, 825 P.2d 621 (Okl.Cr.1991), cert. denied, — U.S. -, 113 S.Ct. 224 , 121 L.Ed.2d 161 (1991). The mere fact the time log was created by machine in the police dispatch office does not, in our view, push it into the category of discoverable technical evidence. In reaching this decision we must make clear that we are applying the law at the time of the trial, and not the more expansive discovery law inaugurated two years later with Allen v. District Court of Washington County, 803 P.2d 1164 (Okl.Cr.1990). The second proposition concerns the ruling of the trial court prohibiting admission of the Last Will and Testament of the deceased and the court order admitting the will to probate. The defense sought to have the will admitted to show the deceased’s wife stood to gain financially from the death of her husband, and thus may have had a motive to kill him. Absent this evidence, petitioner argues, he was denied his federal constitutional right to put forth his full defense. We disagree. Admission of evidence is within the sound discretion of the trial court which will not be *301 overturned on appeal absent an abuse of discretion. Armstrong v. State, 811 P.2d 593 (Okl.Cr.1991); Behrens v. State, 699 P.2d 156 (Okl.Cr.1985). In the present ■ case, Aline Thrasher, the wife of the deceased, was the State’s first witness. She testified that her husband had “six or seven thousand dollars” worth of life insurance, and that credit life insurance had paid five hundred thousand dollars on an eight hundred thousand dollar loan. Later questioning made clear Mrs. Thrasher was the beneficiary of these policies. It being established that Mrs. Thrasher gained over a million dollars as the result of her husband’s death, the defense had ample evidence to develop its theory of her motive to kill. Admission of the will was not necessary to develop this defense. We find therefore, no abuse of discretion on the part of the trial court. In a final argument the petitioner cites new authority to support his argument, which was addressed in the original opinion, that reversal is required due to the fact a legal intern questioned some defense witnesses at trial. We do not find People v. Schlaiss, 174 Ill.App.3d 78 , 123 Ill.Dec. 789 , 528 N.E.2d 334 (1988) persuasive. In that case the Illinois Court of Appeals reversed the conviction of Schlaiss, who was represented by a legal intern, for the record failed to show Schlaiss acquiesced in the representation, or indeed, even knew the intern was not a licensed attorney. 123 Ill.Dec. at 791 , 528 N.E.2d at 336 . In the present case the record affirmatively does show the petitioner knew a legal intern was participating in his case, and, as explained in the original opinion, that he consented to the representation. Having granted rehearing in order to consider these issues raised on appeal, we find they do not change the original decision to affirm the conviction for murder and vacate the sentence of death and remand for resen-tencing. The Clerk of the Court is directed to issue mandate forthwith. IT IS SO ORDERED. /s/ Gary L. Lumpkin GARY L. LUMPKIN Presiding Judge /s/ Charles A. Johnson CHARLES A. JOHNSON Vice Presiding Judge /s/ James F. Lane JAMES F. LANE Judge /s/ Charles S. Chapel CHARLES S. CHAPEL Judge /s/ Reta M. Strubhar RETA M. STUBHAR Judge . Petitioner raised four propositions by supplemental brief, two of which addressed second stage issues. Petitioner advises the Court these issues are moot as a result of the remand for resentencing. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9541935. Public record. Not legal advice.