Stewart v. State

OPINION

BUSSEY, Judge:

The appellant, Maurice Stewart, was tried and convicted in the District Court of Creek County of the crime of Robbery With a Firearm in Case No. CRF-84-84 and was sentenced to five (5) years imprisonment, and he appeals.

The facts of this case are set forth in Pickens v. State, — O.B.J. -, 751 P.2d 742 (Okl.Cr.1988).

For his first assignment of error appellant asserts that the trial court abused its discretion in allowing the admission of evidence regarding the Tulsa County robbery. We reject this contention for the same reasons set forth in Pickens.

Appellant next alleges that statements made by Deputy Harrison were evidentiary harpoons and prejudiced his right to a fair trial. This same assignment was also rejected in Pickens.

In his third assignment of error appellant claims that the trial court committed fundamental error by failing to give an alibi instruction conforming with his theory of the case. We first observe that since appellant failed to object to the instructions given or request an alibi instruction, this assignment was waived. Shietze v. State, 724 P.2d 262 (Okl.Cr.1986). Moreover, we find that appellant was not entitled to an alibi instruction. See Franks v. State, 719 P.2d 1292 (Okl.Cr.1986). This assignment is meritless.

Appellant’s fourth assignment of error is that the trial court abused its discretion in failing to allow the jury to re-examine his testimony after they requested to do so. Approximately one hour and forty minutes after deliberations began, the jury sent a note to the trial judge requesting that appellant’s testimony be read back to them. Defense counsel urged the judge to comply with the request, but the trial judge sent the jurors a note which informed them that he could not allow them to review appellant’s testimony. The decision to permit or refuse a jury request to rehear testimony lies with the trial court. Givens v. State, 705 P.2d 1139, 1140-1141 (Okl.Cr.1985). Finding no abuse of discretion, this contention is without merit.

In his fifth assignment of error appellant contends that he was prejudiced by the State’s closing argument in that the prosecutor bolstered the credibility of the police witnesses and called appellant untruthful. However, the failure to contemporaneously object to the alleged erroneous remarks waived all error not of a fundamental nature. Binder v. State, 717 P.2d 1143 (Okl.Cr.1986). We have reviewed the comments and find that the comments were within the liberal range of speech granted to both sides during closing argument. Frazier v. State, 607 P.2d 709, 711 (Okl.Cr.1980). Consequently, we find no error.

Appellant finally urges that the cumulative effect of the errors occurring at trial mandates that this case be remanded for a new trial or that the sentence be modified. This Court has held numerous times that where there is no individual error there can be no error by accumulation. Master v. State, 702 P.2d 375, 381-82 (Okl.Cr.1985).

The judgment and sentence is AFFIRMED.

BRETT, P.J., concurs in results. PARKS, J., dissents.