# Opposition — Sam v. Oklahoma > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2069%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition - **Published:** January 1, 1980 - **Citation:** 447 U.S. 931 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2069%3A2. Public record. Not legal advice.