Opposition — Sam v. Oklahoma

No. 79-5145

OCT 22 1979

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

GEORGE EDDIE SAM,

Petitioner,

THE STATE OF OKLAHOMA,

Respondent.

RESPONSE BRIEF OPPOSING PETITION FOR WRIT OF CERTIORARI

JAN ERIC CARTWRIGHT

ATTORNEY GENERAL OF OKLAHOMA

JANET L. COX

ASSISTANT ATTORNEY GENERAL

CHIEF, FEDERAL DIVISION

RONALD LEE JOHNSON

ASSISTANT ATTORNEY GENERAL

112 State Capitol Building

Oklahoma City, OK 73105

(405) 521-3921

ATTORNEYS FOR RESPONDENTS

October, 1979

9

INDEX

Table of Contents

1. dJupisdiction . ... +e 2« «© © © © @ @

II. Statement of Case % © ae 2c aS

IIIT. Statement of Facts .... + «sees.

IV. Questions Presented Oy nailer er ay eee” | ee oer

Argument and Authority:

Proposition I

PETITIONER WAS NOT DENIED DUE PROCESS OF

LAW IN VIOLATION OF THE FOURTEENTH AMEND-

MENT WHERE THE OKLAHOMA COURT OF CRIMINAL

APPEALS MODIFIED THE SENTENCE BASED UPON

JURY INSTRUCTIONS GIVEN PURSUANT TO AN

UNCONSTITUTIONAL PROVISION OF THE OKLAHOMA

HABITUAL CRIMINAL ACT. 8

Proposition II

PETITIONER WAS NOT DENIED EQUAL PROTEC-

TION OF THE LAW IN VIOLATION OF THE

FOURTEENTH AMENDMENT WHERE THE OKLAHOMA

COURT OF CRIMINAL APPEALS MODIFIED THE

TERM OF PUNISHMENT IMPOSED BY THE TRIAL

COURT BASED UPON A STATUTE THAT WAS

SUBSEQUENTLY DECLARED UNCONSTITUTIONAL. .

Proposition III

PETITIONER WAS NOT DENIED DUE PROCESS OF

LAW UNDER THE FOURTEENTH AMENDMENT WHERE

THE TRIAL COURT REFUSED TO DIRECT A VER-

DICT FOR PETITIONER OR GIVE THE REQUESTED

INSTRUCTION ON ENTRAPMENT WHERE THERE

WERE FACTS IN DISPUTE. hth + Oe ee

Proposition IV

WHERE NO TIMELY OBJECTION WAS RAISED,

PETITIONER WAS NOT DEPRIVED OF DUE PRO-

CESS OF LAW WHERE ALLEGED PROSECUTORIAL

MISCONDUCT DID NOT GIVE RISE TO ERROR OF

CONSTITUTIONAL DIMENSIONS, F

Proposition v

THERE WAS SUFFICIENT EVIDENCE UPON WHICH

TO FIND THE PETITIONER GUILTY BEYOND A

REASONABLE DOUBT AFTER FORMER CONVICTION

IN THE SECOND STAGE OF THE TRI AI.

Conclusion * . . . * . . . * . * . . * . . * .

Cases Cited

Barrett v. State, Okl.Cr., 573 P. 2d 1221 ...

Bordenkircher v. Hayes, 434 U. 8. 357, 98 8. Ct.

663, 54 L. Ed. 2d 64, reh, denied, 435 U.S.

918, 98 8. Ct. 1477, 55 L. Ed. 24511 ...

Carbray v. State, Okl1.Cr., 435 P. 2d 188 (1967),

cert. denied, 392 U.S. 916 (1968) .....

10

11

12

12

Drennen v. State of Oklahoma, Okl. Cr., 581 P. 2d

901 (1978), cert. denied, No. 70-1250

(December 4, a ee het ee Se Oe ae

Hayes v. United States, 238 F.2d 318, cert.

denied, 353 U.S. 83, 77 8. Ct. 1280, TT. Ed.

Jackson v. Virginia, U.S. » 99 S. Ct.

li. 62 . GA. 96 See , a 8 oe

Kitchens v. State, Okl. r., 576 P.2d 775

(March ats 1978) * * * * . * * * * * * . *

Lee v. State, Okl.Cr., 572 P. 2d 260 (Nov. 9,

1977) * . * * * * . „ . * . . . * * * * * *

Louder v. State, Okl. Cr., 568 P. 2d 344 (1977)

Presnell v. Georgia, U.S. » 99 S. Ct.

235, 58 L. Ed. 2d 207 (November 6, 1978) °

Sam v. State, Okl.Cr., F-77-621, Unpub.Opinion

(March . 1979) * . * . * * . . * . * * .

Smith v. United States, 273 F.2d 462 (10th Cir.

1959) . * * * . * * . . * . * * = . . * * *

Snowden v. Hughes, 321 U.S. 1, 64 8. Ct. 397,

88 ; Ed. 497 * . * . . . „ . . . . . . * .

Thigpen v. State, Okl.Cr., 572 P. 2d 260

(Nov. 9, 1977) 7 * . * . * * * — . * . * .

Tomlin v. Beto, 377 F.2d 276 (5th Cir. 1967) .

Tzimopoulas v. United States, 554 F.2d 1216

(Ist Cir. 1977) — . . * . * . * . . * . . *

United States v. Brown, 540 P. 2d 1048 (10th Cir.

1976) * . 5 . * * . . — . * . . „ . * . *

United States v. Deluzio, 454 F.2d 711 (10th

Cir. 1972), cert. denied, 407 U.S. 922, 92

S. Ct. 2467, WT. Ed. 2d 808 (1972) oie s

United States v. Jackson, 390 U.S. 50, 88 S.

Ct. 1209, 20 L. Ed. 2d 138 (1968) .....

United States v. Swets, 563 F.2d 989 (10th

Cir. 1977) . . * 7 * * . * — . * . * * *

United States v. Wheeler, 444 F.2d 385 (10th

Cir. 1971) . . 5 . „ . * . . * * — * *

Williams v. Illinois, 399 U.S. 235, 90 8. Ct.

2018, 26 L. Ed. 2d 586 (1970)

Williams v. Page, 289 F. Supp. 661 (E. Db. Okl.

1968) . . . . . . * . . - . . * . . . > * *

Wolfe v. Nash, 313 F.2d 393 (8th Cir. 1963),

cert. denied, 374 U.S. 817, 83 S. Ct. 1713,

10 — Ed. td 1041 . > oe — — . . . „ * . . *

Statutes Cited

33 0.8. Gupp. 2076, „ em Oe „

21 0.8. Supp. 1976, 1 51(a) “a er oe or oe a

- ii-

12

10

6, 7, 12

12

10

11

11

10, 11

12

5, 6, 7

IN THE SUPREME COURT OF THE UNITED STATES

21 O. 8. Supp. 1976, § 51(b) . 7 . . * . . 7 * 7 a 3, 4, 3, 6 BER TERM, 1979

22 O. 8. 1971, § 1066 * . 7 . 5 7 * 7 . 7 — 7 * 5, 7

GEORGE EDDIE SAM,

Petitioner,

Va No. 79-5145

THE STATE OF OKLAHOMA,

— ee ee ee — —

Respondent.

BRIEF OPPOSING CERTIORARI

COMES NOW Jan Eric Cartwright, Attorney General for the State

of Oklahoma, by and through Janet L. Cox and Ronald Lee Johnson,

Assistant Attorneys General, and on behalf of the State of Oklahoma

and for answer to the Petition for Writ of Certiorari submits to

this Honorable Court the following Brief in opposition thereto.

I.

JURISDICTION

Petitioner Sam seeks review pro se by way of Petition for

Writ of Certiorari from the Oklahoma Court of Criminal Appeals.

On the 27th day of March, 1979, the aforesaid Court entered its

Order modifying Sentence and affirming the conviction rendered in

the District Court of Muskogee County, State of Oklahoma, on the

2nd day of March, 1977.

11.

STATEMENT OF CASE

Petitioner, George Eddie Sam, hereinafter refered to as de-

fendant," was charged by Information in Case No. CRF-76-248 with

the crime of Delivery of a Controlled Drug (cocaine) After Former

Conviction of a Felony in the District Court of Muskogee County,

State of Oklahoma. The defendant was tried by a jury and repre-

sented by counsel. The jury returned verdicts of guilty in both

stages of the trial wth punishment set at forty (40) years impri-

sonment under the control of the State Department of Corrections.

The trial court sentenced the defendant in accordance with the

jury verdict. On direct appeal the Oklahoma Court of Criminal

Appeals affirmed the conviction but modified the term of punish-

ment from forty (40) years to twenty-five (25) years imprisonment,

- iii -

denying defendant's petition for rehearing on the 27th day of

April, 1979. Defendant petitions this Honorable Court for a Writ

of Certiorari to review the final judgment dated April 27, 1979.

111.

STATEMENT OF FACTS

This matter came on for jury trial the 14th day of February,

1977, before the Honorable William H. Bliss, District Judge. The

State called as its first witness Ms. Oliver, an investigator for

the District Attorney's office, who testified that at her request

the petitioner sold her a white powdery substance (cocaine) for

$110 (Tr. 12). Her testimony on cross-examination was not contro-

verted. On redirect, it was established that she did not use un-

due invluence on the petitioner to procure the drugs (Tr. 26).

The State then called Muskogee police officer Bratt who tes-

tified that he was working with Ms. Oliver. He further testified

that on June 24, 1976, he gave her $110 to purchase a gram of co-

caine. He stated that Ms. Oliver then went to the rendevous place

to meet the petitioner to transact the buy“ and 30 minutes later

she came out. Thereafter, they went to his apartment where

Ms. Oliver turned over the evidence. The evidence was placed in

the police evidence locker and later released to the District

Attorney's office. There was no cross-examination (Tr. 37-39).

The State's next witness was Gerald Belyer, a forensic che-

mist for the Oklahoma State Bureau of Investigation, who testified

that he had examined the evidence (white powdery substance) and

it contained 1.1 grams of cocaine (Tr. 40-43).

The State then rested after it introduced the cocaine into

evidence (Tr. 44, 45).

The defense then called the defendant, George Eddie Sam, who

admitted to having pleaded guilty to burglary on two prior ocas-

sions while he was living in Illinois (Tr. 48-51). The defendant

further described his relationship with Ms. Oliver, admitting that

he had sold her approximately 200 pills in addition to the cocaine

he delivered and distributed to her on June 24, 1976 (Tr. 52-58,

71). 3

Tommy Joe Sam, the defendant's nephew, was the next to tes-

tify, stating that he had given his uncle messages from Ms. Oliver

(Tr. 71-74). There was no cross-examination, and the defense

rested its case.

The State then made its closing arguments wherein it rechanted

the evidence as had been developed at trial, inclusive of the jury

instructions (Tr. 78-89). The record reveals that the only objec-

tion made during the State's closing argument was with reference

to an inference of the defendant's propensity to sell drugs. The

objection was sustained and the prosecution went on to other ground

(Tr. 89-92).

Thereafter, the defense made its closing argument. It was

intimated that the evidence presented was insufficient to support

a verdict of guilty. Further, the defense pleaded entrepment as

its only valid defense (Tr. 93-100).

After the State's arguments in rebuttal (Tr. 100-102), the

jury retired to deliberate and returned a verdict of guilty (Tr.

103, 104).

Subsequently, the second stage of the trial proceeded wherein

the State introduced, without objection, Court Clerk's Certificates

from the State of Illinois reflecting judgment and sentence of

final felony convictions. The exhibits were admitted into evi-

dence and the State rested (Tr. 109).

The defense then moved for dismissal of the case, specifi-

cally to the After Former Conviction charges, alleging the State

failed in its burden of proof. The Court overruled the Motion,

whereupon the defense moved for a directed verdict. The case was

submitted to the jury, who set punishment at forty (40) years

(Tr. 116).

Thereafter, the defense moved for a new trial which was over-

7

ruled (Tr. 127).

IV.

QUESTIONS PRESENTED

1. Whether the trial court's instruction to the jury as to

the imposition of punishment based upon an unconstitutional pro-

vision of the Oklahoma Habitual Criminal Act, 21 0.8. Supp. 1976,

§ 51(b), constituted a violation of the Due Process clause of the agree that the above-cited cases fail to shed any light on the

Fourteenth Amendment. issue of due process under the facts of the instant case.

2. Whether the Oklahoma Court of Criminal Appeals' action Title 22 0.S. 1971, 5 1066, allows the appellate courts of

modifying the Judgment and Sentence imposed by the trial court the State of Oklahoma to modi fy sentences. While in some juris-~-

under the unconstitutional provisiors of 21 0.S. Supp. 1977, dictions the petitioner's case might have had to be remanded for

$§ 51(b) constitutes a violation of the equal protection clause of a new second stage trial, in Oklahoma it is not necessary and is

the Fourteenth Amendment. not a violation of due process. See Drennan v. State of Oklahoma,

3. Whether the trial court's refusal to direct a verdict Ok1.Cr., 581 P.2d 901 (1978), cert. denied, No. 70-1250 (December 4,

for the petitioner based on the contentions of entrapment as a 1978).

matter of law and the court's refusal to instruct the jury on the At the time of trial in this case, Section 51(b) had not been

petitioner's requested instruction of entrapment constituted a declared unconstitutional. However, upon review by the Oklahoma

denial of due process of law. Court of Criminal Appeals, in the exercise of its inherent autho-

4. Whether misconduct by the prosecutor on cross-examination rity and in view of the decision of Thigpen X. State, Okl.Cr.,

and in closing argument denied petitioner a fair trial and due 571 P.2d 467 (1977), the Court modified the initial term of forty

process of law. (40) years to a term of twenty-five (25) years.

5. Whether the petitioner was denied due process of law Respondent submits that the Due Process Clause of the Four-

where the respondent submitted certified copies of Judgment and teenth Amendment affords an accused certain procedural safeguards

Sentence to secure a conviction of guilty After Former Conviction in order to ensure a fair and impartial trial. The instruction

of a Petony in Another Jurisdiction. by the court concerning the imposition of punishment pursuant to

§ 51(b) did not affect the initial finding of guilt by the jury.

ARGUMENT AND AUTHORITY

It is submitted that the modified sentence is well within the

PROPOSITION I

accepted realm of punishment for crimes of this nature; and, in

PETITIONER WAS NOT DENIED DUE PROCESS OF LAW

IN VIOLATION OF THE FOURTEENTH AMENDMENT light of the inherent authority of the appellate court to act,

WHERE THE OKLAHOMA COURT OF CRIMINAL APPEALS

MODIFIED THE SENTENCE BASED UPON JURY IN- Petitioner's claim of a denial of due process falls exceedingly

STRUCTIONS GIVEN PURSUANT TO AN UNCONSTITU-

TIONAL PROVISION OF THE OKLAHOMA HABITUAL short of the procedural safeguards expounded by the United States

CRIMINAL ACT.

Constitution.

Petitioner urges that he is entitled to a new sentencing trial

In addition, Respondents submit that there exists no vehicle

or a new penalty stage and cites decisions of this Court as autho-

in the State of Oklahoma whereby Mr. Sam may be resentenced at a

rity for his position as follows:

"new penalty stage" in the District Court. The jury assessed

United States AR 390 U.S. 50, 88 S. Ct. 1209,

Ed. 1 (1568); punishment after hearing testimony reflecting the facts of the

Bordenkircher v. Hayes, 434 U.S. 357, 98 S. Ct. 663, 54 case. A "new penalty stage" in effect would require a new crimi-

L. Ed. Id 64, reh. denied, 435 U.S. 918, 98 S. Ct.

1477, 55 L. Ed. Bd 511; nal trial in its entirety.

Presnell v. Georgia, U.S. » 99 8. Ct. 235, 58 It is further clear that should punishment be reimposed in

L. Ed. 7 4 1% aber t. „ e

accordance with 21 O. 8. Supp. 1976, 1 51(a), a term of imprison-

As Mr. Sam noted in his Petition for Certiorari at page 13, "each ;

; ment could be assessed against Mr. Sam from ten (10) years to

case is distinguishable from the facts here." Respondents would

life, resulting in a concededly greater punishment than the forty

(40) years he received.

It is, therefore, respectfully submitted that Mr. Sam's al-

legations of a denial of due process falls exceedingly short of

raising a fundamental constitutional issue upon which relief may

be granted by this Honorable Court.

PROPOSITION II

PETITIONER WAS NOT DENIED EQUAL PROTECTION OF

THE LAW IN VIOLATION OF THE FOURTEENTH AMEND-

MENT WHERE THE OKLAHOMA COURT OF CRIMINAL

APPEALS MODIFIED THE TERM OF PUNISHMENT IMPOSED

BY THE TRIAL COURT BASED UPON A STATUTE THAT

WAS SUBSEQUENTLY DECLARED UNCONSTITUTIONAL.

In essence, Mr. Sam contends that he was denied equal protec-

tion of the law as a result of being sentenced at the trial level

pursuant to 21 0.S. Supp. 1976, § 51(b). The aforesaid statutory

provision was declared unconstitutional by the Oklahoma Court of

Criminal Appeals in the decision of Thigpen v. State, supra, wherein

the Oklahoma Court determined in its opinion that § 51(b) was am-

biguous and defeated the obvious intent of the Legislature to

authorize progressively greater punishment for habitual criminals.

‘In declaring § 51(b) unconsitutional, the Court was faced

with the problem of what punishment should be assessed in those

cases where the trial court had instructed under § 51(b).

Inasmuch as 21 O. 8. Supp. 1976, § 51 contained a severabi-

lity clause, the remaining provisions, specifically § 51(a), were

not impaired. Title 21 0.S. § 51(a), left intact by the Oklahoma

Court in Thigpen, reads:

"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 pun-

ishable 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 peniten-

tiary 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. [f such subsequent conviction is for

petit larceny, or for any attempt to commit

an offense which, if committed, would be pun-

ishable 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."

Thus, in reviewing cases subsequent to Thigpen, supra, the Oklahoma

Court of Criminal Appeals has taken one of two approaches in re-

viewing the assessed punishment. The first approach has resulted

in a modification of sentence in the "interest of justice." Lee

v. State, Okl.Cr., 572 P. 2d 260 (Nov. 9, 1977).

The second approach is reflected in the decisions of Kitchens

v. State, Okl.Cr., 576 P. 2d 775 (March 27, 1978), and Barrett .

State, Okl.Cr., 573 P. 2d 1221 (January 25, 1978). In these cases,

no modification of sentence was made since the sentence imposed

was clearly permissable and within the provisions of 21 0.8. Supp.

1976, § 51(a), which would have been the proper statute for sen-

tencing the twice previously convicted defendants. Further, the

Court found no prejudicial errors in these cases as in the Lee

case, supra, which required modification of the sentence.

However, it is this alleged "ad hoc“ approach taken by the

Oklahoma Court of Criminal Appeals subsequent to Thigpen, supra,

which apparently forms the basis of Petitioner's claim of a de-

nial of equal protection under the Fourteenth Amendment.

The inherent power of the Court of Criminal Appeals to modify

sentences on appeal is clearly authorized under the statutory pro-

visions of the laws of the State of Oklahoma. Title 22 0.S. 1971,

§ 1066, states:

"The appellate court may reverse, affirm or

modify the judgment appealed from, and may,

if necessary or proper, order a new trial.

In either case, the cause must be remanded to

the court below, with proper instructions,

and the opinion of the Court within the time,

and in the manner to be prescribed by rule of

the Court."

The Oklahoma Court has consistently exercised its right to cor-

rect or modify sentences on appeal for a myriad of reasons. Such

action has repeatedly been upheld. See Carbray v. State, Ok1.Cr.,

435 P.2d 188 (1967), cert. denied, 392 U.S. 916 (1968).

In the case at bar, the Court of Criminal Appeals reviewed

all the testimony and found no errors requiring reversal of the

sentence.

In modifying Petitioner's term of imprisonment, the Oklahoma

Court of Criminal Appeals stated it its opinion:

"Appellant then argues that since the jury

recommended the minimum sentence allowable

under Section 51(B) his sentence should be

modified to the minimum sentence allowable

under this proposition. Furthermore, appel-

lant fails to note that the sentence under

Section 51(B) was a fixed sentence which re-

quired that:

„Every person who, having been twice

convicted of felony offenses, commits a

third, or thereafter, felony offenses

within ten (10) years of the date follow-

ing the completion of the execution of

the sentence, shall be punished by im-

prisonment in the State Penitentiary for

a term of twenty (20) years plus the

longest imprisonment for which the said

third or subsequent conviction was pun-

ishable had it been a first offense; . .

U

"The appellant also ignores the legislative

intent behind the Habitual Offender's Act as

stated in Thigpen v. State, supra; that is,

[110 authorize progressively greater punish-

ments for habitual criminals; .. .' This

Court, therefore applies 21 0.S. Supp. 1976,

§ 51(A), and modifies the sentence from forty

(40) years' imprisonment to a term of twenty-

five (25) years' imprisonment.

"In urging reversal or modification of his

sentence, the appellant first contends it was

error for the trial court to instruct under

21 O.S. Supp. 1976, § 51(b), since it was

held to be unconstitutional in Thigpen v.

State, supra. This Court said herein at

page 471:

"'We are of the opinion that it was the

legislative intent in enacting the provi-

sions of 21 0.S. Supp. 1976, 1 51(A) and

§ 51(B), to authorize progressively

greater punishments for habitual crimi-

nals; 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 opin-

ion that 21 0.S. Supp. 1976, § 51(B), is

unconstitutional . . . .' (Footnote

omitted)

"We agree such error requires a modification

of the sentence in the case at bar, however,

as in Thigpen v. State, supra, such error

does not require reversal. Since part A of

21 0.8. Supp. 1976, 1 51, was severable from

part B and has not been held to be unconsti-

tutional, it must be applied in the instant

case.

Petitioner falls within that class of cases where punishment

was imposed under a section of the Habitual Criminal Act subse-

quently determined invalid, but which did not impair the remaining

provisions of the Act. Within that class of cases, the Oklahoma

Court of Criminal Appeals has exercised its inherent power, on a

case by case basis, to correct sentence through modification.

It is equally well established that federal appellate courts

are without power to control or modify a sentence which is within

the limits fixed by a valid statute unless clearly excessive. In

Hayes v. United States, 238 F.2d 318, 322, cert. denied, 353 U.S.

83, 77 8. Ct. 1280, 1 L. Ed. 2d 1142, this Court stated:

"The fixing of penalties for crimes is a

Congressional function, and what constitutes

adequate punishment is ordinarily left to the

discretion of the trial judge. If the sen-

tence is within the statutory limit, appel-

late courts will not interfere unless clearly

cruel and unusual." (Emphasis added)

This Court has previously adopted language found in the Tenth

Circuit case of Smith v. United States, 273 F.2d 462 (10th Cir.

1959), which, in discussing the aspects of modifying a sentence

of fifty-two (52) years for a first-time offender and which the

considered "greater than should have been imposed," stated at

page 468:

"In effect, we are asked to enter the domain

of penology, and more particularly that tan-

talizing aspect of it, the proper apportion-

ment of punishment. Whatever views may be

entertained regarding severity of punishment,

whether one believes in its efficacy or its

futility, see Radzinowicz, A History of

English Criminal Law: The Movement for Re-

form, 1750-1833, passim, these are peculiarly

questions of legfaTatTve policy. Equally so

are the much mooted problems relating to the

power of the judiciary to review sentences.

First the English and then the Scottish

Courts of Criminal Appeal were given power to

revise sentences, the power to increase as

well as the power to reduce them. See 7 Edw.

VII, o. 23, § 4(3); 16 & 17 Geo. V., o. 15, §

2(4). This Court has no such power."

Respondents submit that the Constitution of the United States

permits qualitative differences in meting out punishment and there

is no requirement that two persons convicted of the same offense

receive identical sentences. See Williams v. Illinois, 399 U.S.

235, 90 8. Ct. 2018, 26 L. Ed. 2d 586 (1970).

In summation, it is clear that Petitioner has failed to prove

a "purposeful discriminatory” action. Snowden v. Hughes, 321 U.S.

1, 8, 9, 64 S. Ct. 397, 88 L. Ed. 497, 508, 503. Therefore, Re-

spondents submit that there has been no constitutional violation

of the Equal Protection Clause of the Fourteenth Amendment and

Petitioner's claim of constitutional infringement must fail.

PROPOSITION III

PETITIONER WAS NOT DENIED DUE PROCESS OF LAW

UNDER THE FOURTEENTH AMENDMENT WHERE THE TRIAL

COURT REFUSED TO DIRECT A VERDICT FOR PETITIONER

OR GIVE THE REQUESTED INSTRUCTION ON ENTRAPMENT

WHERE THERE WERE FACTS IN DISPUTE.

The Petitioner maintains that there was no evidence that the

Petitioner had the predisposition to commit the crime of distri-

bution of cocaine. He further maintains that his requested in-

struction which was refused was a large part of his defense and

was based on the premise that the undercover agent was the one

who first suggested the commission of the criminal act.

It is the Respondent's contention that there were not undis-

puted facts which as a matter of law established entrapment and,

therefore, whether the Petitioner was entrapped was a matter to

be determined by the jury. United States v. Swets, 563 F.2d 989

(10th Cir. 1977); Tzimopoulas v. United States, 554 F.2d 1216

(lst Cir. 1977).

In the case at bar, the evidence adduced at trial revealed

that, although the petitioner did not initiate the discussion

with the undercover narcotics agent, he did not object to nee re-

quests nor attempt to disuade the agent in her pursuit of the co-

caine. In addition, the petitioner admitted that he had procured

and sold amphetamines to the agent on a prior ocassion.

In light of the aforegoing facts and circumstances in the

instant case, respondent would submit that petitioner, Mr. Sam,

was not an innocent person without the disposition to distribute

drugs and that the issue of entrapment was properly submitted to

the jury in view of Swets and Tzimopoulas, supra.

In the alternative, Petitioner urges that the trial court

erred in refusing to give his requested instruction on entrapment

when the issue was submitted to the jury. A review of the record

indicates that the requested instruction on the issue of entrap-

ment, although a correct statement of the law, was adequately

covered by one actually given by the trial court; and, therefore,

the petitioner suffered no prejudice. United States v. Swets,

supra, at 990.

Therefore, the respondent would urge that the trial court's

refusal of Petitioner's requested instruction was not a denial of

due process of law.

PROPOSITION IV

WHERE NO TIMELY OBJECTION WAS RAISED, PETITIONER

WAS NOT DEPRIVED OF DUE PROCESS OF LAW WHERE

ALLEGED PROSECUTORIAL MISCONDUCT DID NOT GIVE

RISE TO ERROR OF CONSTITUTIONAL DIMENSIONS.

Petitioner maintains that the prosecution asked improper

questions on cross-examination and made improper and prejudicial

statements during closing arguments thereby depriving him of a

fair and impartial trial. An examination of the record reflects

that in each instance there was a failure to object to the alleged

improprieties. Moreover, the errors asserted were not contained

in either the Motion for New Trial or the Petition In Error. The

respondent submits the case of United States v. Brown, 540 P.2d

1048 (10th Cir. 1976), wherein the language of that opinion set

out the general rule of law that failure to timely object to an

alleged error constitutes a waiver which is not preserved for

appellate review unless the alleged improprieties are of consti-

tutional dimensions. United States v. Deluzio, 454 F.2d 711, 713

(10th Cir. 1972), cert. denied, 407 U.S. 922, 92 S. Ct. 2467, 32

L. Ed. 2d 808 (1972); United States v. Wheeler, 444 F.2d 385 (10th

Cir. 1971).

Therefore, the respondent, relying on the aforementioned au-

thorities, submits that the petitioner was not denied due process

of law where the record clearly shows that the errors complained

of were not of a fundamental constitutional nature and no contem-

poraneous objection was raised.

-il-

PROPOSITION V

THERE WAS SUFFICIENT EVIDENCE UPON WHICH TO

FIND THE PETITIONER GUILTY BEYOND A REASONABLE

DOUBT AFTER FORMER CONVICTION IN THE SECOND

STAGE OF THE TRIAL.

The petitioner maintains that the only evidence admitted in

the second stage of the trial, to-wit: Court Clerk Certificates

from the State of Illinois reflecting prior felony convictions

where no appeal was lodged, was insufficient to prove prior con-

victions. The convictions, admitted without objection, indicated

that the petitioner was represented by counsel and the judgments

were final. The petitioner did not offer evidence on his behalf.

The respondent submits the case of Louder v. State, Ok1.Cr.,

568 P.2d 344 (1977), which provided that where the name of the

petitioner and the name of the person on the certified copy of

the judgment and the sentence are identical and the petitioner

fails to offer evicence on his behalf, the State has met its bur-

den of proof that the petitioner was one and the same as the de-

fendant named on the judgment and sentence from another court.

See Williams v. Page, 289 F. Supp. 661, 663 (E.D. Okl. 1968);

Tomlin v. Beto, 377 F.2d 276 (5th Cir. 1967); Wolfe v. Nash, 313

F.2d 393 (8th Cir. 1963), cert. denied, 374 U.S. 817, 83 S. Ct.

1713, 10 L. Ed. 2d 1041.

The respondent, therefore, submits that where certified copies

of judgment and sentence were admitted, without objection, there

was sufficent evidence to find the petitioner guilty after former

convictions. Jackson v. Virginia, U.S. , 08 S&S. . 3781,

61 L. Ed. 2d 560 (1979).

CONCLUS ION

Oklahoma contends that there was no "purposeful discrimina-

tory" action imposed by the Court of Criminal Appeals where the

term of punishment was modified to correct judgment and sentence

premised on a statute subsequently declared unconstitutional which

resulted in a denial of equal protection. Nor was there a denial

of due process by reason of the Court of Criminal Appeals' modi-

fication of term of punishment in light of its prior holding in

Thigpen, supra. Even though the sentence imposed was under a

@ 12 -

section of the Oklahoma Habitual Criminal Act declared unconsti-

tutional, the remaining provisions of the Act were not impaired

and the sentence, as modified, was clearly within the boundaries

of the intact portion of the Act.

The twenty-five (25) year term is clearly within the accepted

sphere of punishment followed in other jurisdictions for offenses

of this nature. That it was enhanced by virtue of Mr. Sam's prior

criminal acts clearly follows the legislative intent to authorize

progressively greater sentences for habitual offenders.

Further, Oklahoma maintains that there was not a denial of

due process of law where the trial court refused to direct a ver-

dict for Mr. Sam or give the requested instruction on entrapment

where there were facts in dispute. Moreover, the nature of such

error, if any, is a matter of state law and does not rise to a

constitutional magnitude. Nor was there a denial of due process

of law where alleged prosecutorial misconduct, absent plain error,

was not contemporaneously raised.

Finally, the admission of certified copies of court clerk

records reflecting judgment and sentence for conviction of prior

crimes was sufficient evidence upon which to sentence Mr. Sam

under the Oklahoma Habitual Criminal Act. Such procedure was

proper and was not a denial of due process.

Respect fully submitted,

CHIEF, FEDERAL DIVISION

RONALD LEE JOHNSON

ASSISTANT ATTORNEY GENERAL

112 State Capitol Building

Oklahoma City, OK 73105

(405) 521-3921

ATTORNEYS FOR RESPONDENT

- 13 -

AFFIDAVIT OF SERVICE

STATE OF OKLAHOMA )

COUNTY OF OKLAHOMA *

I, Ronald Lee Johnson, depose and say that I am an attorney

in the office of Jan Eric Cartwright, attorney of record for the

State of Oklahoma, Respondent herein, and that on October 18, 1979,

pursuant to Rule 33 of the Rules of th Supreme Court, I served

one copy of the foregoing brief, by mailing the copy in a duly

addressed envelope, with First Class postage prepaid, to the

following:

George Eddie Sam, #94459

P. O. Box 97

McAlester, OK 74501

All parties required to be served have been served.

Subscribed and sworn to before me this 18th day of October, 1979.

at Ys

My commission expires September 9, 1981.

mag / FC-2723