Carter v. State

1987 OK CR 248, 746 P.2d 193, 1987 Okla. Crim. App. LEXIS 522, 1987 WL 3600
Court of Criminal Appeals of Oklahoma·Decided November 17, 1987·No. Nos. F-84-190 to F-84-192·Published·Cited by 4 cases

Opinions

OPINION

BRETT, Presiding Judge:

Appellants, Jerry Paul Carter, Ricky David Innis and Larry Rollins, were jointly tried by jury for the crime of Robbery with Firearms in violation of 21 O.S.1981, § 801 in Case No. CRF-83-17 in the District Court of Johnston County. Appellant Rollins was charged After Former Conviction of Two Felonies. Each appellant was represented by counsel. The jury returned a verdict of guilty and set punishment for each appellant. Carter was sentenced to ten (10) years’; Innis was sentenced to five (5) years’; and Rollins was sentenced to forty (40) years’ imprisonment. The trial court sentenced each appellant in accordance with the jury’s verdict. From these judgments and sentences, appellants appeal to this Court. Their cases will be consolidated for purposes of this appeal.

During the evening of March 30,1983, at approximately 8:00 p.m., an armed robbery [195]*195occurred at Grady’s cash and carry convenience store in Mannsville, Oklahoma. Ms. Hetzel, an employee of the convenience store, was working that evening. She observed two men, one carrying a shotgun, enter the front door of the store. Ms. Hetzel described the gunman as wearing blue jeans, a black leather motorcycle jacket, a small billed cap and a red bandana around his face. When the gunman pointed a sawed off shotgun at Ms. Hetzel, she noticed black tape around the handle. Ms. Hetzel described the second man as wearing blue jeans, a blue bandana around his face and a big sloppy hat pulled down on his head.

The gunman placed the barrel of the gun into Ms. Hetzel’s neck and demanded the money from the cash register. Ms. Hetzel observed the gunman’s red bandana slide down to his lower lip on three occasions. This enabled her to make a positive identification of the gunman. Ms. Hetzel gave the man approximately $600.00 to $700.00 in currency in a dark blue vinyl zipper bag and rolls of change in a blue-green canvas bag. The men placed the money bag into a pillowcase. They backed their way out of the front door and ran.

On the same evening, Ms. Cadberry was working as a cook in a restaurant across the street from the convenience store. At approximately 8:10 p.m., she heard tires squealing and gravel flying. Ms. Cadberry testified that she stepped outside, where she observed a dark colored vehicle, which she thought to be a Firebird, “zoom” down the highway toward Ardmore.

While on duty that same evening, Officer Sam Highnight of the Ardmore Police Department, received a radio broadcast concerning a robbery and a possible escape vehicle. Officer Highnight observed a 1978 dark green Pontiac Firebird heading west toward Ardmore at a high rate of speed. Officer Highnight pulled the vehicle over and found three men inside. Officer Highnight shined his flashlight into the vehicle and observed a shotgun stuck between the front passenger seat and the console. The shotgun was later identified as the same shotgun with the black taped handle used in the robbery. The men were ordered out of the car, patted down and arrested. Seven shotgun shells were found in the lining of the gunman’s jacket.

The Firebird was impounded and searched. Sergeant Dennis Adams of the Ardmore Police Department and Bob McQueen of the Carter County Sheriff’s Office inventoried the items found in the vehicle. The following evidence was retrieved from the car: a pillowcase found underneath the back of the passenger’s seat; a blue bandana found in the back seat; a black leather motorcycle jacket and a small billed cap found in the trunk; and a dark blue zipper money bag and a blue-green cloth bag. The bags contained a total of $821.00. The money bags were found inside a pillowcase.

Appellant Carter was identified as the driver of the getaway car; appellant Innis was identified as the accomplice; and appellant Rollins was identified as the gunman.

In his defense, appellant Innis called Bill Thomas, acting Sheriff for the Johnston County Sheriff’s Department. Mr. Thomas identified defendant’s Exhibit No. 1 as the radio log kept by the Sheriff’s Office and defendant’s Exhibit No. J as the phone log by the dispatcher. The phone log indicated that the call concerning the Mannsville robbery included information that a cream-colored 1982 Ford LTD might have been involved in the robbery.

No appellant testified on his own behalf. However, appellant Innis was called to testify as a witness on behalf of his co-defendant Rollins. Appellant Innis admitted riding around and drinking with the other two men on the evening of the robbery. Appellant contended, however, that they had seen people in a Ford LTD throw the pillowcase out of their car. He claimed that he and his friends had simply stopped and picked up the pillowcase.

In the first assignment of error, appellants contend that the evidence presented at trial was insufficient to support the conviction of Robbery With Firearms. In Spuekler v. State, 709 P.2d 202 (Okl.Cr. 1985), this Court declared that, when re[196]*196viewing the sufficiency of the evidence, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt. Accordingly, viewing the evidence in the light most favorable to the prosecution, we conclude that there was sufficient evidence from which any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt. This assignment of error is without merit.

In the second assignment of error, appellants assert that the in-court identification of appellant Rollins by Ms. Hetzel was erroneously admitted into evidence at trial, therefore, prejudicing their right to a fair trial. Appellants predicate this argument on a pretrial “showup.”

On the night of the robbery, Oklahoma Highway Patrolman, Roger Lee, arrived at the convenience store at approximately 8:45 p.m. When Patrolman Lee arrived, Ms. Hetzel had already gone home. Patrolman Lee drove to Ms. Hetzel’s residence and then drove Ms. Hetzel back to the store, where she gave a description of the robbery and robbers. Thereafter, Patrolman Lee drove Ms. Hetzel to the Ardmore Police Station for the purpose of making an identification of the arrested suspects.

Upon arrival at the police station, Ms. Hetzel identified the money bags in the Trans Am as the ones taken from the store. Ms. Hetzel was then being escorted into the police station, when she looked through a window and observed the three suspects in the lobby. Aside from the three suspects, all other persons in the lobby were police officers. She identified appellant as being the man who carried the shotgun. Ms. Hetzel could not identify the two other suspects as being involved in the robbery. Specifically, appellants assert that this “showup” was impermissibly suggestive as to Rollins’ identification.

Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), teaches that such a pretrial showup is not suggestive. In Kirby the victim of a robbery entered the police station and observed the three men sitting around a table, he immediately identified them as being the men who had robbed him two days earlier. The United States Supreme Court affirmed the Illinois Appellate Court and held the identification to be proper.

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Carter v. State, 1987 OK CR 248, 746 P.2d 193, 1987 Okla. Crim. App. LEXIS 522, 1987 WL 3600 (Okla. Ct. App. 1987).

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