But cf. Lenion v. State, 1988 OK CR 230, 763 P.2d 381 (no waiver if defendant merely fails to request bifurcation). See also Eslinger v. State, 1987 OK CR 53, ยถ 19, 734 P.2d 830, 834 (defendant not entitled to bifurcated trial if he confessed to former convictions under oath); Ray v. State, 1990 OK CR 15, ยถยถ 7-8, 788 P.2d 1384, 1386 (bifurcation waived when defendant testified in own behalf); Reed v. State, 1978 OK CR 58, ยถยถ 14-17, 580 P.2d 159, 162-63 (two-stage proceeding was not necessary where defendant admitted prior conviction on cross-examination). OUJI-CR 10-19
But cf. Lenion v. State, 1988 OK CR 230, 763 P.2d 381 (no waiver if defendant merely fails to request bifurcation). See also Eslinger v. State, 1987 OK CR 53, ยถ 19, 734 P.2d 830, 834 (defendant not entitled to bifurcated trial if he confessed to former convictions under oath); Ray v. State, 1990 OK CR 15, ยถยถ 7-8, 788 P.2d 1384, 1386 (bifurcation waived when defendant testified in own behalf); Reed v. State, 1978 OK CR 58, ยถยถ 14-17, 580 P.2d 159, 162-63 (two-stage proceeding was not necessary where defendant admitted prior conviction on cross-examination). OUJI-CR 10-19 RETURN OF VERDICT โ PRIOR CONVICTIONS STIPULATED (SECOND STAGE)
Therefore, there is no question of fact for the jury as to whether he is guilty with regard to the former convictions. Reed v. State, 580 P.2d 159 (Okla. Cr. 1978). This assignment is meritless.
Assessing guilt and fixing punishment may be done in two separate stages, with the jury learning of prior convictions only at the sentencing stage. Gaines did not have a bifurcated trial because he waived his right to a two-stage proceeding by taking the stand and admitting his convictions. See Reed v. State, 580 P.2d 159, 163 (Okl.Cr.App. 1978); Wilmeth v. State, 520 P.2d 699, 700 (Okl.Cr.App. 1974). 22 Okla.Stat. ยง 860 provides:
Any requirement that the State do more was relieved by the Appellant himself when he took the stand during the first-stage and admitted the convictions upon cross-examination. Jackson v. State, 719 P.2d 1294 (Okla. Cr. 1986); Reed v. State, 580 P.2d 159 (Okla. Cr. 1978).
See e.g. Eslinger v. State, 734 P.2d 830 (Okla. Cr. 1987), Reed v. State, 580 P.2d 159 (Okla. Cr. 1978). Once an appellant waives the statutory protection of the bifurcated trial set forth in 22 O.S. 1981 ยง 860[ 22-860], the State may establish on cross-examination the finality of judgment for purpose of enhancement.
Compare Donahay v. State, supra (in prosecution for possession of a pistol after conviction of a crime of violence, proof of defendant's prior conviction was essential to a prima facie case); Hodges v. State, 45 Ala. App. 29, 221 So.2d 922, cert. denied, 284 Ala. 731, 221 So.2d 923 (1969) (same). Accord State v. Shepard, supra (where prior convictions were averred in the indictment and became part of the State's burden of proof, defendant's admission on cross-examination established a material element of the State's case); Reed v. State, 580 P.2d 159 (Okla.Cr.App. 1978) (same); Laday v. State, 685 S.W.2d 651 (Tex.Cr.App. 1985) (same). The defendant here did not raise his Fifth Amendment right against self-incrimination as a further basis for not giving conclusive effect to his concession on cross-examination, and we do not decide the issue on Fifth Amendment grounds.
The determination of whether a convicted defendant merits sentencing under the "Habitual Criminal Act," 21 O.S. 1981 ยง 51[ 21-51], is normally a jury question; however, this Court has held that when a defendant admits in testimony that he has former felony convictions, the issue of former conviction ceases to be a question of fact for jury determination. Wilson v. State, 637 P.2d 900 (Okla. Cr. 1981); Reed v. State, 580 P.2d 159 (Okla. Cr. 1978); and Jones v. State, 527 P.2d 169 (Okla. Cr. 1974). Because appellant did testify on the witness stand that he did have two former felony convictions, the use of the verdict forms and punishment instructions employed at appellant's trial does not constitute error.
Specifically, appellant complains that the verdict forms did not allow the jury to return a verdict of guilty of possession without former conviction provision. In Reed v. State, 580 P.2d 159 (Okla. Cr. 1978), this Court held that when the defendant under oath confesses the former conviction, there is no question of fact within the jury's province as to whether the defendant is guilty of only the primary offense or of the preliminary offense after former conviction. A review of the record indicates that the appellant confessed under oath his former convictions.
The appellant admitted during cross-examination that he had a prior conviction for the crime of Robbery with Firearms. This court has previously held that when the defendant under oath confesses the former conviction there is no question of fact within the jury's province as to whether the defendant is guilty of only the primary offense or of the primary offense after former conviction. Reed v. State, 580 P.2d 159,162 (Okla. Cr. 1978). The appellant's confession of his prior conviction nullified the requirement of the trial court to alternatively instruct the jury on punishment of the primary offense.