Dodson v. State

1977 OK CR 140, 562 P.2d 916

• Court: Court of Criminal Appeals of Oklahoma
• Decided: April 6, 1977
• Docket: F-76-579
• Status: Published

Opinions

OPINION

BUSSEY, Presiding Judge:

Appellant, Richard Eugene Dodson, hereinafter referred to as defendant, was charged and tried in the District Court Tulsa County with the offenses of Murder in the First Degree in violation of 21 O.S. Supp.1973, § 701.1, and Shooting With Intent to Kill, After Former Conviction of a Felony, in violation of 21 O.S.1971, § 652, and Robbery With Firearms, After Former Conviction of a Felony, in violation of 21 O.S.Supp.1973, § 801. He was acquitted of Murder in the First Degree, Case No. CRF-75-2181, and convicted and sentenced to One Hundred Ninety Nine (199) years for Shooting With Intent to Kill, After Former Conviction of a Felony, Case No. CRF-75-2182, and Fifty (50) years for Robbery With Firearms, After Former Conviction of a Felony, Case No. CRF-75-2183, and from said judgments and sentences, a timely appeal has been perfected to this Court.

At the trials, which were consolidated by agreement, Ina Louise Morris testified that on September 15,1975, she was employed at the U-Tote-M Store at 5950 South 33rd West Avenue in Tulsa. At approximately 10:50 p. m. she and the night manager, Clayton Chandler, started making preparations to close the store. She was in the back of the store stocking the pop cooler when she observed a person, whom she identified in Court as the defendant, looking at her. The defendant pointed a pistol at her and ordered her to get down on her knees. She replied “you’ve got to be kidding,” whereupon the defendant shot her in the right shoulder. The defendant closed the cooler door and told her if she looked up he would kill her. After several minutes, she raised her head and defendant started firing the pistol at her. Her body went numb and she lost consciousness. When she awakened she left the cooler and found Mr. Chandler lying on the floor. The safe and cash drawer were open. She was subsequently transported to St. Francis Hospital where she remained three days. She had wounds in her shoulder, head, face and neck.

Officer R. D. Morris, testified that on September 15, 1975, at approximately 10:55 p. m., he responded to an armed robbery call at the U-Tote-M Store at 5950 South 33rd West Avenue. He observed his wife, Ina, sitting in a chair with blood about her person. He checked Clayton Chandler and could not find any life signs.

The parties stipulated that if Dr. Lee Beamer were called to testify that he would testify that he performed an autopsy upon Clayton Chandler. In his opinion the cause of death of Mr. Chandler was multiple gunshot wounds of the thorax, abdomen and extremities.

Detective Charles Jordan testified that he arrived at the U-Tote-M Store at approximately 11:13 p. m. He assisted in the investigation and found several shell casings near the counter area of the store. He further identified numerous lead fragments and several slugs which were recovered from the scene.

An in camera hearing was held on motions of defendant and co-defendant, Michael Bascum Selsor, to suppress their alleged confessions. At the conclusion of the hearing the trial court ruled that the statements were voluntarily given and overruled the motions.

John James Evans testified that he was employed as a major Crime Investigator for the Santa Barbara, California Police Department. He was present on September 22, 1975, when defendant and co-defendant Selsor were arrested in a beach parking lot in Santa Barbara. He subsequently interrogated both defendants in the presence of Sgt. Williams. Each was advised of his Miranda rights and affirmatively acknowledged the waiver of the same. The defendant stated that he was with co-defendant Selsor on the evening of September 15, 1975. They passed by a U-Tote-M Store and noticed that traffic was light in the area. They were both armed and had a conversation concerning robbing the store. Prior to entering the store, defendant Sel-sor stated that they should kill the employees. He went to the back of the store and told the female employee to be still and lie down. She laughed at him and he fired a warning shot in her direction. He heard co-defendant Selsor tell the elderly gentleman by the cash register that this was a robbery. He next heard several shots coming from the area of the cash register. He stepped back and fired four or five shots through the glass window toward the female employee.

Defendant Selsor’s statement was similar. He too, stated that they did not intend to have any witnesses around and planned on killing the employees after the robbery. He shot the elderly gentleman and defendant Dodson shot the female. Defendant Selsor stated that they only got $500.00 from the store.

Officer Evans identified State’s Exhibit No. 17, as a .22 caliber pistol which was recovered from under the seat of defendant Selsor’s automobile in Santa Barbara. The witness subsequently released the pistol to Officer D. A. Roberts, of the Tulsa Police Department.

On cross-examination, the witness testified that Dodson stated that after he heard shots he “freaked out” and fired toward the girl. The witness further stated that Dodson said that he did not intend to hit her.

D. A. Roberts testified that he was employed as a Homicide Investigator for the City of Tulsa. He went to Santa Barbara to pick up Dodson and Selsor and return them for trial. Both defendants were dressed in only bermuda shorts and so the witness went to the Santa Barbara Police automobile storage garage, where defendant’s car was stored, in order to locate proper clothing for them to wear on their return trip. While getting the clothing from defendant Selsor’s automobile, the witness recovered three live .22 caliber cartridges, identified as State’s Exhibit No. 18. On the way back to Oklahoma, the witness advised both Dodson and Selsor of their Miranda rights. Dodson stated that he wanted to talk to the witness when they got back to Tulsa. The witness visited defendant Dodson in the Tulsa County Jail on September 30, 1975, and again advised him of his constitutional rights. Dodson stated that defendant Selsor had said prior to the robbery that “we’re going to take out the witnesses,” and that when he heard Selsor fire shots he commenced firing because he had to hold up his end of the bargain.

Tom Lewallen testified that he was the senior investigator in charge of the identification section of the Police Laboratory. He conducted certain tests on State’s Exhibit No. 17, the .22 caliber revolver, and on the various projectiles and casings found at the scene, as well as the live shells recovered from the automobile in California.

The State then rested.

For the defense, Dr. Rustico Dizon Garcia testified that he was the chief forensic psychiatrist at the Eastern State Hospital in Vinita. Defendant was admitted to the hospital for observation and examination. He further stated that based upon the examination he was of the opinion that the defendant was not psychotic or legally insane. The defendant had told him that on September 15, 1975, he had consumed alcoholic beverages and used “a gob of speed.” The witness further testified that an evi-dentiary hearing, was held outside the presence of the jury, that he did not have an opinion as to whether defendant was psychotic on the day which the crime was committed. The testimony of Dr. Garcia was subsequently suppressed.

In his first assignment of error, defendant Dodson asserts that his rights were prejudiced when the trial judge required both him and co-defendant Selsor to be represented by the same counsel.¹ The assertion was made just prior to trial that Dodson was going to plead not guilty by reason of insanity, and Selsor was pleading simply not guilty; and that these were inconsistent defenses in that Dodson would have to admit his complicity while Selsor would seek to deny his own. Therefore, it is contended that counsel for both defendants were put in the ethically untenable position of having to decide which defendant he wished to defend with the most zeal. That is, if counsel elected to put Dodson on the stand in an attempt to establish insanity, then Selsor would necessarily be implicated by Dodson’s testimony; and that if counsel did not put Dodson on from fear of implicating Selsor, then Dodson would be denied his right to present his own defense.

Assuming for the sake of argument that this theory is correct, nevertheless we are constrained to find defendant’s assignment of error to be without merit. This is so, because defendant Dodson wholly failed to produce at trial any evidence which would lend credence to his defense of insanity. The only witness which defendant produced on this issue, Dr. Garcia, stated in response to questioning that he had no opinion as to defendant’s psychological condition at the time the offense occurred. Due to the paucity of evidence on this matter, no instruction regarding insanity was requested or given. In light of this we hold that even if we assume it was error for the trial judge to refuse to appoint outside counsel, which issue we do not reach herein, such error was harmless, and we cannot reverse on this account. See, 20 O.S.1971, § 3001, Harmless Error.

The defendant’s second assignment of error is that the trial court erred by suppressing the testimony of Dr. Garcia, regarding the defendant’s mental condition. We again, must disagree. As discussed in the first assignment of error, Dr. Garcia testified in the evidentiary hearing that he had no opinion with medical certainty as to defendant’s competency on September 15, 1975. He further testified that any opinion he might make would simply be a guess. We therefore agree with the trial court’s finding, that because the doctor had no opinion as to the defendant’s competency on the evening in question, that any further testimony along those lines would have no value for the jury. In Pruitt v. State, Okl.Cr., 290 P.2d 424 (1955) we stated:

“The general rule is that the question of competency of a witness to testify as an expert is largely a matter of discretion for the trial court and it requires a clear proof of error to warrant a reversal by the appellate court on such matters.”

The defendant asserts in his third assignment of error that the trial court erred by admitting his confession to Officer John Evans into evidence. Officer Evans testified that the Miranda rights were given to defendant by Sgt. Williams in his presence. The defendant argues that because the rights were not given by the officer who testified as to the confession, that he was denied his right of cross-examination. We cannot agree with the defendant’s assertion. The record reflects that the defendant extensively cross-examined Officer Evans as to the circumstances concerning the confession. The evidence is un-contradicted that the defendant was properly advised of his Miranda rights and voluntarily made a statement to the officer. We are of the opinion that such a confession should not be inadmissible simply because the Miranda rights were not given by the officer who testified as to the confession. In 23 C.J.S. Criminal Law § 836 at page 250 it is stated:

“Proof of compliance with the statutory requirements relating to confessions may be made by the person to whom the confession was made; the subscribing witnesses are not the only persons who may be called on to make such proof. So, although the warning given accused before he makes a confession is usually proved by the party giving it, proof thereof may be made by any witness who was present and heard it.”

The defendant’s fourth contention is that the trial court erred by admitting into evidence State’s Exhibit No. 7, a photograph of the body of Clayton Chandler. We have previously held that the introduction of photographs in homicide cases is largely within the discretion of the trial court and that if the evidence has probative value which outweighs the danger of prejudice to the defendant, the evidence is admissible. See, Jones v. State, Okl.Cr., 542 P.2d 1316 (1975). We have carefully examined the exhibit and observe that it is an 8" X 10'' black and white photograph which depicts the body lying near an open safe. The photograph is not of a gruesome or grotesque nature. It was admitted with the stated purpose of showing the position of the body. We thus conclude that the trial court did not abuse its discretion in allowing the introduction of the exhibit.

The defendant contends in his fifth assignment of error that the trial court erred by allowing the State to introduce into evidence State’s Exhibit No. 14, the lead particles found in the back area of the store. The defendant argues that Officer Tom Lewallen was not qualified as an expert nor did he testify as to what factors led him to believe that the lead particles were actually expended bullets. We must disagree with both contentions. The record reflects that after testifying as to his qualifications as to educational background and work experience the following question was propounded by the prosecuting attorney:

“Q. Will you tell this Court and jury have you ever had an occasion to be qualified as an expert in firearms identification in the past in other courts?

“A. Yes sir. I have offered expert testimony in Tulsa County Courts, Osage County Courts, and Oklahoma County Courts.

“MR. SHAFFER: We would offer Officer Lewallen, Your Honor, as an expert in the field of firearms examination based on his experience as related by the Court.

“BY THE COURT: You may proceed.” (Tr. 372).

The witness thereafter testified as to the test he performed on the lead projectiles and his conclusions therefrom, without objection by the defendant. We therefore find this assignment of error to be without merit. See, Pruitt v. State, supra, and Box v. State, Okl.Cr., 541 P.2d 262 (1975).

Defendant’s sixth assignment of error contains two propositions, both of which concern the searches of defendant’s car in California. In the first proposition it is contended that the search of the vehicle on the beach immediately subsequent to the defendant’s arrest, and the seizure of the nine shot revolver therefrom, was illegal as an unreasonable search and seizure, and that therefore this evidence should have been suppressed. This argument is without merit. The automobile was on a crowded public beach with many children about. The officers had information from a hitchhiker, whom defendants had given a ride, that there was a gun in the car. Additionally, the officers did not know if defendants had an accomplice lurking about. The trial court held that these circumstances were sufficiently exigent to justify a warrantless intrusion. We agree. In Johnson v. State, Okl.Cr., 554 P.2d 51, 54 (1976), we stated:

“ ‘It is argued that the searching officers had time and opportunity to procure a search warrant prior to the search, and for this reason the search in question was illegal. It has been decided that this naked fact alone does not render the search of an automobile illegal.’ Jenkins v. State, 116 Tex.Cr. 374, 32 S.W.2d 848 (1930). See also, United States v. Roberts, D.C., 90 F.Supp. 718 (1950). Therefore, the relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable. One of the exceptions to the general search warrant rule is the situation where exigent circumstances or a state of exigency exists. . . . ” (Citations omitted).

Defendant’s first proposition is without merit.

In his second proposition, defendant asserts that the second search of defendant’s car by Tulsa Officer D. A. Roberts while the car was impounded in the Santa Barbara Police Garage was illegal. The justification for this search was that it was made for the sole purpose of obtaining clothes for the defendants to wear on the return trip to Tulsa. Several live .22 caliber cartridges were recovered, and it was shown at trial that certain marks or scratches on these shells were identical to certain scratches or marks found on expended .22 caliber shells which were recovered from the scene of the crime. The trial court ruled that Officer Roberts’ actions in searching the car for clothing for the defendants were reasonable, and that the officer thus had a right to be where he was when the recovered shells came into “plain view.”

We find that this second search of defendant’s vehicle was made without a warrant and without defendant’s consent, and was thus illegal. While it is true that there may have existed probable cause for the search of the vehicle, it is also true that at the time the second search occurred there existed no exigent circumstances justifying a warrantless intrusion. The car was impounded and secured in the police garage. If it be true that the officers only intended to secure clothing for the defendant and co-defendants, and we have no reason to doubt this, then, at the very least, consent of defendant and co-defendants should have been obtained. However, we are of the opinion that the erroneous admission of these shells was harmless error. The evidence of defendant’s guilt was overwhelming, and included eye-witness identification as well as a confession. The erroneous admission of these shells caused no substantial prejudice to defendant’s rights, and his sixth assignment of error is therefore without merit. See, 20 O.S.1971, § 3001.

The defendant’s seventh contention is that the prosecuting attorney engaged in activities throughout the course of the proceedings that were so prejudicial that the defendant was denied his constitutional right to a fair and impartial trial. We have carefully examined the record and find that the same does not support defendant’s contentions. To the contrary, the record clearly reflects that the conduct of the prosecuting attorneys were well within the guidelines set out by the American Bar Association and approved by this Court in Dupree v. State, Okl.Cr., 514 P.2d 425 (1973).

The defendant finally contends that the punishment is excessive. We have repeatedly stated that the question of ex-cessiveness of punishment is determined by a study of all the facts and circumstances surrounding each individual case and that this Court does not have the power to modify a sentence unless we can conscientiously say that under all the facts and circumstances the sentence is so excessive as to shock the conscience of the Court. Gardner v. State, Okl.Cr., 532 P.2d 1200 (1975). Considering the overwhelming evidence of the defendant’s guilt, the nature and consequences of the offenses we cannot conscientiously say that the sentences assessed shocks the conscience of this Court.

The judgments and sentences are accordingly AFFIRMED.

BLISS, J., concurs. BRETT, J., specially concurs.

1 . It is to be noted that each defendant herein was appointed counsel from the Tulsa County Public Defender’s Office, and that it was apparently the decision of the two counsels so appointed to collaborate on this case.