Tabor v. State

1978 OK CR 83, 582 P.2d 1323, 1978 Okla. Crim. App. LEXIS 237
CourtCourt of Criminal Appeals of Oklahoma
DecidedJuly 31, 1978
DocketF-76-638
StatusPublished
Cited by20 cases

This text of 1978 OK CR 83 (Tabor v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tabor v. State, 1978 OK CR 83, 582 P.2d 1323, 1978 Okla. Crim. App. LEXIS 237 (Okla. Ct. App. 1978).

Opinions

OPINION

BRETT, Judge:

The appellant, Jimmy Wesley Tabor, hereinafter referred to as defendant, was charged, tried before a jury, and convicted in the District Court, Sequoyah County, Case No. CRF-75-232, of the offense of Murder in the Second Degree. The defendant was sentenced to a term of not less than ten (10) years to life imprisonment under the direction and control of the Department of Corrections of the State of Oklahoma. From said judgment and sentence the defendant has perfected his timely appeal to this Court.

Dr. William M. Wilson, Medical Examiner for Sequoyah County, testified that on May 3, 1975, he examined the body of William “Cooter” Keck at a location on Highway 59 in Sequoyah County. The cause of death was a shotgun blast to the chest. Sequoyah County Deputy Sheriff Jim Rinehart testified that he investigated the death of Mr. Keck on May 3, 1975, and observed the deceased lying in the front seat of a vehicle at the side of a county road approximately one-half mile south of Sallisaw. Other law enforcement officers then testified concerning their investigation of the scene.

Violet Clark testified that she ran Peggy’s Cafe in Sallisaw and that on May 3, 1975, the deceased was in the cafe and left between 3:00 and 4:00 p. m. Oita Ledford testified that she was employed at a cafe called Mr. Burritos and that she saw the deceased there at approximately 4:30 p. m. on the day in question. Sally Ledford, daughter of Oita Ledford, testified that she was in Mr. Burritos at about 4:30 p. m. when Keck came in to get a sandwich. She [1325]*1325noticed that he appeared nervous and watched the door. She also observed two or three persons outside in a car which had nearly struck Keck before he came into the restaurant.

Marsha Whitaker testified that on the day in question, sometime between 1:30 and 3:00 p. m., she observed Keck in front of Peggy’s Cafe and talked to him for a few minutes. She also observed the defendant and two other persons in front of a snooker parlor approximately one block away.

The State then called Fred Hodges who testified that about 11:00 a. m. on the date in question he and Danny Hodges, a cousin now deceased, met the defendant at a bar in Sallisaw. They left the bar in Danny Hodges’ car and drove to another bar near Muldrow. They subsequently returned to Peggy’s Cafe to eat where they saw Keck. Danny Hodges said, “this is the time to get him because he sent me to the penitentiary.” The defendant then asked, “do you want to get him now?” but Danny Hodges suggested that they wait. When Keck left, Danny and the defendant followed and got into Danny’s car. The witness paid the check, got in the back seat, and they followed Keck. Danny was driving and began ramming Keck’s car from behind. Keck stopped and went into a building, and the defendant got into Keck’s car. When Keck returned, Danny and the witness followed Keck’s car to some strip pits. The witness, still in the back seat, asked Danny what they were going to do. Danny responded that they were going to kill Keck. The witness testified that he tried to talk him out of it.

Fred Hodges testified that the defendant dragged Keck from his car and hit him with a bottle. Danny Hodges got out of his car with a shotgun, and he and the defendant began hitting Keck. They were drinking from a bottle and throwing the gun back and forth in a game to see who would shoot Keck. The witness stated that he remained in the back seat of the vehicle and that he laid down on the floor because he did not want to see anyone killed. However, he said the last person he saw with the shotgun was the defendant. He then heard a shot, after which Danny and the defendant came back to the car. Danny threw the gun into the back, and they then took the witness to his car.

On cross-examination, Fred Hodges testified that he originally gave a statement to the District Attorney one week after the killing, but later denied any knowledge of it. After his arrest as a material witness some nine months later, he made a statement and agreed to testify. He further related that the District Attorney made no promises but did tell him that he could be prosecuted for withholding evidence. He further stated that the District Attorney once told him that he could be an accomplice or an accessory, although he could not remember which. On redirect, the witness stated that he made the first statement, denying any knowledge of the incident, because Danny Hodges and the defendant had threatened to kill him if he did not keep his mouth shut.

Linda Callahan testified that she worked for the District Attorney of Sequoyah County and that Cooter Keck had testified at a previous criminal trial wherein Danny Hodges was the defendant.

Phyllis Kupka testified that she was employed as a police officer in Clinton, Oklahoma, and that on January 4, 1976, the defendant was arrested and jailed in Clinton on the instant murder charge. She described the interior of the jail and the location of the two adjacent security cells. She further stated that the defendant was in one security cell and a Mr. Blankenship in the other. There was a solid partition between the cells, but each cell had open bar work on the front.

Ralph D. Blankenship testified that he was incarcerated in the Clinton jail on January 4,1976, when the person in the adjoining cell tapped on the wall and asked what he was “in for.” Blankenship explained, and then the other man stated that he was in for “murder one cause I blowed an old boy’s head off.” Blankenship never saw the man in the adjoining cell, nor did he initiate the conversation. He further stat[1326]*1326ed that the man in the other cell mentioned the charge was out of Sequoyah County. The State then rested.

For the defense, Rick Poindexter testified that he worked at a filling station near Sallisaw and saw the deceased, Cooter Keck, on the date in question between 4:00 and 5:00 p. m. He further stated that he saw Keck drive off and did not observe anyone following him or anyone in the vehicle with him. Lelis Smith, Sallisaw police officer, testified that on the date in question he talked with Keck near Peggy’s Cafe between 4:00 and 5:00 p. m. He then observed the deceased drive off and did not notice any car following him.

Jeannie Fields testified that the defendant was asleep on her couch throughout the afternoon of the day in question and that he did not leave until 6:00 or 7:30 p. m., when he drove her and some friends to a movie in a pickup.

Roger Dale Petrie testified that on the day in question he observed the defendant at approximately 6:45 p. m. driving a piek- • up with three girls in it.

Gary Brumbies testified that on the day in question he saw the defendant at Guys and Dolls, an amusement center in Sallisaw at approximately 7:30 p. m. The defense then rested.

On rebuttal, Deputy Sheriff Rinehart testified that he was present when Fred Hodges made a statement concerning the homicide, and that nothing was said to Hodges about being charged as an accomplice.

The defendant’s first assignment of error urges that error was committed when the magistrate overruled the defendant’s demurrer to the evidence and motion to quash and set aside the information at the conclusion of the State’s evidence at the preliminary hearing. In support of his assignment, the defendant asserts that the only evidence presented by the State at the preliminary hearing tending to connect the defendant with the commission of the crime was the testimony of Fred Hodges, an accomplice.

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Wilson v. State
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Sexson v. State
1980 OK CR 108 (Court of Criminal Appeals of Oklahoma, 1980)
Carroll v. State
1980 OK CR 89 (Court of Criminal Appeals of Oklahoma, 1980)
Shriver v. State
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Van Buskirk v. State
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Holloway v. State
1979 OK CR 113 (Court of Criminal Appeals of Oklahoma, 1979)
Tabor v. State
1978 OK CR 83 (Court of Criminal Appeals of Oklahoma, 1978)

Cite This Page — Counsel Stack

Bluebook (online)
1978 OK CR 83, 582 P.2d 1323, 1978 Okla. Crim. App. LEXIS 237, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tabor-v-state-oklacrimapp-1978.