*1 described in the information had property that the it. stolen and defendant knew
been Leon HARRIS and The home had been bur Harris, Appellants, Strovell’s personal property and the stolen glarized it. In his identification of the stolen Oklahoma, The Appellee. STATE of belonging him, property as owner naturally described the manner in which his No. F-76-489. entered, home had been broken into and Appeals Criminal of Oklahoma. property. The breaking and the and enter personal and the theft of the property Jan. inseparable and a were comment on the prosecutor burglary by the fair and
reasonable reference to evidence in the
case. long recognized
It has been prose- that a fully may argue
cutor discuss and the evi-
dence, inferences may rea-
sonably be drawn therefrom. Ford v.
State, Okl.Cr., P.2d In view lapse
of the short of time between the arrest, and defendant’s
burglary we cannot
say that the inference that defendant had burglary
committed the was unreasonable. complains
Defendant also
reference at trial State’s witness John previously
Harrell excluded evidence.
However, clearly the record shows that this
was an inadvertent comment that was in no prompted by Further,
way prosecutor. objection
defendant’s to the introduction of
this statement sustained. These fac
tors lead us believe that defendant’s so
rights seriously prejudiced were not as to
require reversal. Goodwin v.
Okl.Cr.,
One other the de prosecutor deserves comment.
fendant jury,
argued being to the “The time that is your deciding time here
wasted this cause (Tr. 227)
because this man wanted a trial.” remark, the complains.
Of this
However, inasmuch as the defendant’s ob sustained,
jection this statement was it, jury admonished disregard we find
no reversible error. the reasons
For heretofore stated the
judgment and sentence is AFFIRMED.
BRETT, J.,P. dissents.
BUSSEY, J., concurs.
OPINION
BUSSEY, Judge:
Floyd
Thomas Leon
and
Harris,
referred
hereinafter
to as defendant
Harris,
Harris and defendant
Thomas
charged,
tried and
convicted in
were
Court, Tulsa
No.
County, Case
District
CRF-73-227,
Murder,
for the offense
O.S.1971,
of 21
pun-
§
violation
701. Their
impris-
were fixed
terms of life
ishments
were granted post-
onment.
judgments
and new
relief
entered,
were
from which this
sentences
perfected.
has been
appeal
Williams,
trial,
testified
J. Michael
At
July
early morning
hours of
1971, was
home
work in
proceeding
North
4600 block of
He ob-
Lewis.
west
Quick-Trip
of a
car parked
served a
Store,
lights out
with the
and the motor
running. He
a
walk-
observed
black male
car was an older
ing from
store.
model,
Plymouth.
white
Maras
that he
Officer Robert
testified
dispatched to a
on
Quick-Trip Store
approximately
Lewis at
a. m. on
North
3:26
entered
He
the store and
July
register
the cash
on its side and
observed
money
cigarettes
strewn on the floor.
rear
to the
of the store and
proceeding
He
on
lying
a
his back with a
man
observed
center of his forehead.
hole in the
small
R.
testified that he
John
Scott
supervisor
Stores
district
1971;
July
early
in Tulsa
that in the
morning hours he was
to the
summoned
Quick-Trip Store located in the 4600 block
Lewis. The store
of North
area around
“messy”
stand was
with cigarettes
check
on the
change laying
testi-
floor. He
Harris,
that neither
fied
employed
nor defendant
were
Quick-Trip Corporation.
by the
testified
Stephen Tolley
that he was with
the morning
question.
Mike Williams on
light-colored
He observed
car in the store
Earl,
R.
Public Defender of Tulsa
Leslie
lot
a black
male
parking
walking to-
Tulsa,
County,
appellants.
the store.
wards
Gen.,
L.
Larry
Atty.
Robert
Derryberry,
Deborah Avance testified that defendant
McDonald,
Harris,
Atty. Gen.,
appellee.
Harris,
defendant Floyd
Asst.
came
Henderson
Avance.
left at
They
Booker
approximately
Mike
1:45 a.
early
hours
her residence
white Plymouth.
m. in Booker’s
They re-
21,1971.
overheard conversa-
She
approximately
turned in
an hour and got
and her hus-
defendants
tion between
out of bed. The
him
defendants started
Avance, concerning robbing
band, Reginald
money.
counting
Defendant Floyd
*3
defendants, Reginald Hender-
store. The
a
they
stated that
went to the store
left, taking
Booker
with
Michael
and
it;
son
robbed
that he
shot “the dude”
belonging to her husband.
gun
a
them
“I
want
because
didn’t
no witnesses to come
approximately
at
3:30 a. m.
They returned
testify on
down and
me.” [Tr. 457]
they
Floyd Harris said
had
Defendant
Lowbeer
Dr. Leo
testified that
per-
he
had to shoot the man
the store and
robbed
on
autopsy
an
the body
formed
of Ronald
identifying
him from
them. De-
keep
opinion,
In his
Baker.
the cause of death
that he
Thomas
said
turned
fendant
of the
perforation
by
was a
brain
a small
over
register
trying
get the
the cash
caliber bullet.
spilled
out
it
all
money
over the floor.
Michael Booker
a further conversation with de-
had
testified
he
She
was at
later
on
Floyd Harris four months
the Avance residence
July 21,
fendant
1971 with
defendants, Reginald
he
that he was worried and
stated
wherein
the
Henderson and
police
the
only way
would find out
that the
He
Horn.
went
Willie
a Quick-Trip
one
told. She assured him
if
of them
was
at 46th
Lewis with
Store
the defend-
police.
inform
she would not
the
On
ants
Henderson. The defend-
cross-examination, she admitted to convic-
into the
ants went
store and
ap-
returned
Tampering with the United States
tions
proximately ten minutes later. Defendant
was aware of a
and that she
reward
Mail
Floyd Harris said that he had to “shoot the
offered in connection with
had been
They
dude.”
returned to
[Tr. 511]
case.
stayed
house and
until 7:30 a. m.
that he was presently
He testified
incarcer-
Goodenough testified that he
Roy
Officer
County
in the Tulsa
charged
ated
Jail
with
assigned to the Identification Division
was
robbery.
the murder and
Department.
Tulsa Police
He was
of the
expert
recovery
an
in the
qualified
Reginald Henderson testified that he was
fingerprints. He identified State’s
latent
with
defendants and Mike Booker on
fingerprints
No. 12 as
he
Exhibit
removed
morning
question.
His testimony
did
register in
cash
from the
substantially from
not differ
the testimony
question.
on
Store
Booker.
Nuttall testified that he was
Roy
Officer
defense,
For the
Corey,
Charles
Jr. testi-
expert
as an
in the field in com-
qualified
that he went to the
fied
Quick-Trip Store at
opinion,
fingerprints and that in his
paring
a.
3:30
He
approximately
m.
did not ob-
Exhibit No. 12
prints
of the
on State’s
one
in the
cars
area and the
serve
attend-
the left thumb of defendant
made
was
person
ant
store.
Harris.
Harvey
she
Caroline
testified that
attend-
testified that
Reginald Avance
he was
party
a
with
ed
defendant Thomas Harris
currently an inmate
Oklahoma State
part
1971;
of July,
in the latter
that he
serving
Penitentiary,
sentences for Rob-
party
at the
arrived
between 9:00 and 10:00
Burglary
Forgery.
On the eve-
bery,
m. and did
leave
p.
following
until the
20,1971, he had a
ning
July
conversation
morning.
defendants,
Michael Booker and
with
Helen Louise Abraham testified that she
his
Reginald Henderson at
wife’s home.
a birthday party
attended
some time after
Thomas Harris
said
knew a
Defendant
19, 1971.
kept
July
Defendant
quite
bit of
Thomas Harris
Quick-Trip Store
approximately
p.
Defendant
Harris had a .22 arrived
8:00 m. and was
money.
following
that he had
attendance the
morning.
revolver
borrowed
still in
caliber
murder,
e.,
Harris testified that
i.
robbery.
court,
Defendant
birthday party for Louise
citing
approval
he attended
several cases includ-
stayed
1971. He
Santangelo
Tutuska .
.
Abraham
.
[19
following morning.
5:00
party until
Misc.2d
N.Y.S.2d
affirmed
being at the Avance house in the
He denied
11 A.D.2d
205 N.Y.S.2d
1006]
July 21st. He ad-
morning hours of
early
felony
in a
murder case the underly
Degree
for Second
Bur-
convictions
mitted
ing felony is a substantial and generically
Larceny
and Bat-
and Assault
glary, Grand
separate and disconnected offense. The
being
Quick-
ever
He denied
tery.
robbery
ais
distinct offense and is not
North Lewis.
Trip Store
of the crime of
part
homicide nor is it an
theory
included crime. The
of law is that
Floyd Harris testified that he
Defendant
intent to commit the underlying
felo
serving a
sentence
Pos-
presently
*4
the
ny is transferred to
homicide even
Securities. He denied be-
of Stolen
session
though the felon does not intend to cause
on the
in the
Store
anyone.
death of
the
21,1971.
making
He further denied
of
“Therefore,
case,
to
contrary
the
the
instant
the
any statements
de-
Booker,
of
Avances,
or
claim former
Mike
Hender-
fendant’s
jeopardy can-
sustained. The
not be
previ-
son.
defendant’s
felony
of
ous conviction
murder does not
contends,
Defendant
Harris
in
subsequent prosecution
his
bar
con-
error,
his
assignment of
that
trial
the first
underlying
for the
felony
viction
of rob-
felony
violates
Murder
with
bery
firearms.”
placed
jeopardy
to be twice
in
right not
his
tried,
contend,
previously
in
he was
convicted
that
in the second
charge
error,
on the
Robbery
assignment
sentenced
that
the trial court
failing
Firearms which case involved identical
in
erred
sustain their motions for
presented
as
this case. We
severance.
evidence
Defendant Thomas Harris com
only
that
this
plains
testimony
need
observe
contention was
that
the
of Deborah
State,
this Court in Harris v.
by
reviewed
the effect that defendant Floyd
Okl.Cr.,
(1976),
76
we
555 P.2d
wherein
stat
made the
statements outside his
presence several months later
ed:
that he “had
to shoot the dude” would not have been
“An examination of similar cases from
admissible,
had
been tried separately.
holding
sister states fortifies
that
our
our
argues
Defendant
the
may
separately prose
be
an individual
testimony
Goodenough
of Officers
and Nut-
convicted for felony
murder
cuted
concerning
fingerprint
the
tall
found at the
felony
is
underlying
the
the
belonging
defendant
scene
Thomas Har
felony murder. Particularly
for the
basis
ris would not have been
against
admissible
persuasive is
New York decision as
granted
him had he been
a separate trial.
murder
was pat
our homicide
statute
We first observe that defendant Thomas
New York’s
terned after
homicide mur
Harris’ contention falls within the rule
State, Okl.Cr.,
v.
statute. See Tarter
der
State,
by this
Court in Justice v.
enunciated
Jewell v.
(1961), citing
Terri
P.2d 596
359
Okl.Cr.,
(1973),
the New York “. . . Defendant cites authority stein, 376, States, 33 A.D.2d 308 25 Bruton v. United N.Y.S.2d 123, 391 U.S. 88 (1970). In that 1620, 476, case defendant had 20 L.Ed.2d S.Ct. wherein the charged Supreme been one of four counts of the United States that it felony prejudicial indictment for murder. de error to admit co-de- to dismiss‘upon fendant made motion fendant’s confession that implicating [sic] joint the basis that had indictment not at a trial though even charged specifically felony underlying gave trial court instructions that confes- against be used sion could co-defend- similar statements by made defendants in ant. each presence. others’ We thus conclude “Although we opinion are there is no reasonable possibility that have granted trial court should a sever- improperly admitted evidence contrib- ance, overwhelming but of the because uted defendant Thomas Harris’ convic- guilt of defendant’s evidence tion.
same does
constitute fundamental er-
We next observe thát the testimo
Florida,
427,
v.
ror.
In Schneble
405 U.S.
ny of Officers Goodenough and Nuttall con
1056,
340,
31 L.Ed.2d
S.Ct.
court
cerning
fingerprint
of defendant Thom
stated:
as Harris would have been admissible
‘Having
petitioner’s
concluded that
against defendant Floyd Harris had a sev
jury,
confession was considered
been granted.
erance
The defendants were
determine on the basis of “our
we must
charged acting together and in concert.
reading of the record and on
own
what
previously
haveWe
held that where two or
probable
to us to have
seems
been
persons have
more
acted
concert in the
impact
...
on the minds of an
offense,
of an
commission
the acts of one
average
jury,”
Harrington
pursuance
co-actor in
design
common
California,
250,
254,
supra, 395 U.S.
are
against
admissible
another co-actor on
23 L.Ed.2d
S.Ct.
trial
the offense.
Roberts v.
whether Snell’s admissions were
Okl.Cr.,
curs
BLISS, J., concurs. in
BRETT, Judge, dissents Presiding part. concurs
part, this conviction of
I concur offense of Murder Harris for the
Leon convic- I dissent to his be affirmed.
should firearms, robbery because he
tion prior conviction this murder
sustained robbery charge. trial
being placed on robbery charge I because I dissented
In jeopardy placed he was twice
believe charge was robbery as the armed
insofar charge. this murder premise
Likewise, compelled I feel to dissent Harris, be- conviction
this for the first convicted him the State
cause robbery I stated charge. What armed
same State, Okl.Cr., dissent my (1976), applicable to this P.2d 76 Carver Harris.
Waymond LANE, Appellant, Kent Oklahoma, Appellee.
The STATE
No. F-76-559. Appeals of Criminal of Oklahoma.
Court
Jan. Osherwitz, Duncan, Okl., Ap-
O. T. appellant. pointed, Gen., Derryberry, Larry Atty. Robert L. McDonald, Gen., Foster, Atty. Asst. Alan Intern, appellee. Legal