Whitchurch v. State

1977 OK CR 318, 572 P.2d 266, 1977 Okla. Crim. App. LEXIS 654
Court of Criminal Appeals of Oklahoma·Decided November 10, 1977·No. No. F-77-273·Published·Cited by 2 cases

Opinion

OPINION

BRETT, Judge:

Appellant, Allen Eugene Whitchurch, hereinafter referred to as defendant, was charged in the District Court, Osage County, Case No. CRF-76-140, with the offense of Burglary in the Second Degree, in violation of 21 O.S.1971, § 1435, After Former Conviction of a Felony, 21 O.S.1971, § 51. The case was tried to a jury and a guilty verdict was returned. Punishment was assessed at fifteen (15) years’ imprisonment. From judgment and sentence defendant has perfected an appeal to this Court.

On February 14, 1976, Dr. Sam Strohm, part owner of the Osage Animal Clinic in Pawhuska, Oklahoma, left the clinic for the day. When he returned early Sunday morning, the clinic was in shambles. Items were strewn about and numerous articles, [267] including drugs, a radio and a microscope, were missing. A rear door showed signs of forced entry.

Andy Surrittee, also employed at the clinic, testified that at about 6:00 p. m. on February 14 he drove by the clinic and noticed a blue GMC pickup with a white camper on it. However, he did not think anything of it at the time. At trial, both Surrittee and Dr. Strohm identified numerous articles, including drugs, a microscope and a radio, as some of the items taken from the clinic.

In proof of the charge of second degree burglary, the State showed that defendant, in the early part of February, 1976, was living with Cindy McKay, and George and Cynthia Maxey in Oklahoma City. Cindy McKay testified that one day in February defendant and George Maxey left the residence in Maxey’s blue GMC pickup with a white camper on the back. She testified that when defendant left he stated that they were going to the country to get some “goodies.” Several days later they returned with suitcases full of drugs and numerous other articles, including syringes, a microscope and a radio. For several days the foursome sat around “doing” the drugs. Eventually, they decided to go to the Max-ey’s cabin on Lake Tenkiller. They took the drugs and other articles with them, and they continued to “party” at the lake where they were eventually joined by some other young people. After about four days, on February 27, trouble developed in the form of a fight between Cindy McKay and Cynthia Maxey. At about the same time, the truck and defendant’s car were driven into a ditch. A neighbor of the Maxeys, W. L. Mullins, observed the commotion and the auto accident and called the police.

Wayne Briggs, Lake Security Patrolman, received a radio transmission and went to the scene. A State Highway Patrolman, Deewitt Teehee, arrived soon after. Briggs placed all the partygoers under arrest for disturbing the peace and public drunk. When defendant was arrested, he gave the patrolman a false name. Prior to taking all the arrestees to jail, Briggs permitted some of them, including defendant, to retrieve some clothing from the cabin. At this time the defendant crawled out the bathroom window and fled. All the others were taken to jail.

Trooper Teehee testified that he called a wrecker and had the blue GMC pickup and a white Dodge impounded. Teehee stated that he performed an inventory on the vehicles, and he also stated that the GMC pickup contained, among other items, a microscope and a radio, which he identified in court.

Meanwhile, all the other suspects were searched and booked into jail. They were described as being extremely intoxicated, although no odor of alcohol was apparent. One girl had hypodermic syringes in her purse, and several others had fresh needle marks. Subsequently, on the same day as the initial arrest, a search warrant for the Maxey’s cabin was obtained. The search uncovered numerous drugs, many of which bore labels indicating that they came from the Osage Animal Clinic. Subsequently, a warrant for the two vehicles was obtained, and the microscope, radio and other objects in the blue GMC pickup were seized.

On February 26, the day after the mass arrest, John Vance was showing two women a trailer house in the vicinity of the Maxey cabin. While showing the trailer he discovered defendant hiding in a closet. Vance turned over defendant to Wayne Briggs, who rearrested him, and defendant gave Briggs the same false name. Defendant was transported to the Cherokee County Courthouse, where after being advised of his rights he gave a statement. In the statement defendant stated, in reference to the numerous drugs and other articles found in the cabin, that when he, George Maxey and Cindy McKay first arrived at the cabin these articles were not present. George Maxey and Cindy McKay went back to Oklahoma City the next day and defendant remained alone at the cabin. About two days later, Maxey returned, bringing with him all of the aforementioned articles.

Later on that same day, February 26, 1976, at about 8:00 p. m., defendant was [268] questioned by Ralph Enlow and Boyd Peters, Osage County Deputy Sheriffs. Defendant was informed of his rights and told that the officers wished to speak to him concerning the burglary of the Osage Animal Clinic. During the course of this interview, defendant admitted he had given a false name and stated what his name actually was. The statement he gave was essentially the same as the one given earlier, except herein he stated that George Maxey had told him that he had “done a veterinary clinic in Pawhuska, Oklahoma.” Further, defendant stated that sometime prior to the burglary George Maxey asked defendant if he knew of a veterinarian clinic which could be “hit.” Defendant replied that he knew of one in Pawhuska that had been burglarized by some “locals” several years ago. Defendant, however, denied offering to help George Maxey burglarize the clinic.

Bill Mitchell, also an Osage County Deputy Sheriff, stated that on March 5, 1976, he visited with defendant in the Sheriffs Office, at which time defendant indicated to him that he would like to make a “deal.” Defendant stated to Mitchell that he could “put” himself and Maxey in the Osage Animal Clinic on the day of the burglary, but that he would like to receive a suspended sentence in return. The offer was refused. .Mitchell testified, however, that at no time did the defendant actually state that he had in fact burglarized the clinic.

In support of the after former conviction of a felony charge, the State introduced evidence that defendant had been twice convicted of felonies, once for embezzlement and once for forgery.

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Whitchurch v. State, 1977 OK CR 318, 572 P.2d 266, 1977 Okla. Crim. App. LEXIS 654 (Okla. Ct. App. 1977).

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