524 P.2d 60 (Okla.Crim.App. 1974), F-73-241, Fox v. State

Docket Nº:F-73-241, F-73-242, F-73-243, F-73-244, F-73-245, F-73-246.
Citation:524 P.2d 60
Party Name:James Edward FOX et al., Appellants, v. The STATE of Oklahoma, Appellee.
Case Date:June 18, 1974
Court:Court of Appeals of Oklahoma, Court of Criminal Appeals of Oklahoma
 
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Page 60

524 P.2d 60 (Okla.Crim.App. 1974)

James Edward FOX et al., Appellants,

v.

The STATE of Oklahoma, Appellee.

Nos. F-73-241, F-73-242, F-73-243, F-73-244, F-73-245, F-73-246.

Court of Criminal Appeals of Oklahoma.

June 18, 1974.

Page 61

Rehearing Denied July 15, 1974.

Oyler & Smith, Milton Keen, Don Anderson, Public Defender, Oklahoma City, for appellants.

Larry Derryberry, Atty. Gen., Robert McDonald, Asst. Atty. Gen., for appellee.

CONSOLIDATED DECISION AND OPINION

BRETT, Judge:

Appellants, James Edward Fox, Gary Thomas Smith, Johnny Lee Valentine, and Ronald Allen Hedrick, were charged conjointly in the Oklahoma County District Court with two charges of Robbery with Firearms, After Former Conviction of a Felony. Appellants will hereinafter be referred to as defendants as they appeared in the trial court. Prior to trial co-defendant Hedrick pled guilty and defendants Valentine, Smith, and Fox were tried conjointly on the two charges of robbery with firearms, after former conviction of a felony. Defendants were represented by counsel and received a jury trial. A verdict of guilty was returned by the jury and the punishment for each was assessed at fifty (50) years imprisonment. Proper motions for new trial were filed and denied by the trial court, and from their convictions this appeal has been perfected.

Prior to trial defendant Fox's attorney filed a motion for commitment in the State Hospital at Norman, Oklahoma, under the provisions of 22 O.S.1971, § 1171, asserting that defendant Fox did not possess sufficient mental capacity to assist his counsel in preparing and conducting his defense. That motion was denied by the trial court. There was also a motion for severance filed on behalf of defendants Smith and Valentine. Defendant Smith asserted his reason for severance to be that he wished to solicit certain testimony from the wife of defendant James Fox, which would be exculpatory to him, but prejudicial to the rights of Fox. Defendant Valentine's motion for severance asserted that there was a possible conflict of interest which might arise between defendant Valentine and the other defendants, and for that reason he should not be tried conjointly. The motions for severance were denied.

At their trial defendants Smith and Fox were represented by the same counsel, Mr. H. C. Cooper and Mr. Robert Smith. Defendant Valentine was represented by court appointed counsel, Mr. James P. Neal of the Public Defenders Office.

The facts briefly stated reveal that on January 6, 1973, defendants Fox and Hedrick went to the Veazey Drug Store at 6329 No. Portland in Oklahoma City at about 10:00 p.m. When they arrived at the drug store it was closed, so Hedrick rapped on the locked door and said he had a prescription for his sick daughter. Mr.

Page 62

Walter B. Grant, the pharmacist, saw the second man wearing a mask and stated they were highjackers and he was going to call the police. While Mr. Grant was calling the police he heard shots fired and heard the glass door shatter. At the time two customers were still in the store, Mr. Melvin Camp and Mrs. Lena E. Mitchell. Mrs. Mitchell ran to the back of the store and hid in the store room, but Mr. Camp remained in the front of the store. Defendant Fox attempted to find Mrs. Mitchell, but was unable to do so and returned to the front of the store where he held his pistol at the temple of the pharmacist and directed him to open the safe and give him the money and the narcotics. While the safe was being opened defendant Fox took the billfold from Mr. Camp, removed fifteen dollars from it, and then threw the billford on the floor. At the conclusion of the robbery the two men ran out of the drug store. In the meantime the alert had been placed on the police radio and Officer Gary Oden approached the vicinity where he observed a vehicle parked on the north side of Kimberling's Grocery, which is adjacent to the drug store. The motor to the vehicle was still running and he observed the car's trunk lid slightly opened. Officer Oden advised the radio dispatcher that he was checking the vehicle out and approached the parked vehicle from the driver's side. While Officer Oden was checking the vehicle, Officer Steve Young approached the scene also. While the two officers were checking the parked vehicle, they observed two men come running around the corner of Kimberling's Grocery Store. The two men stopped momentarily and Hedrick jerked a black bandana from his face. The two officers advised the two men to stop, but they proceeded on toward the vehicle Because of the icy condition of the ground, defendant Hedrick slipped to the ground and the contents of the satchel he was carrying fell into the snow. After some struggle all four men were arrested. The officers gathered up the satchel and its contents and transported the four men to the city jail.

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