Fox v. State

Decision Date18 June 1974
Docket NumberF-73-243,F-73-245,Nos. F-73-241,F-73-246,F-73-242,F-73-244,s. F-73-241
Citation524 P.2d 60
PartiesJames Edward FOX et al., Appellants, v. The STATE of Oklahoma, Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

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 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.

To prove its case the State offered the testimony of nine witnesses, including two young men who encountered Fox and Hedrick as they ran from the drug store. Numerous exhibits were introduced, including the narcotics and money taken from the pharmacist.

At the second stage of the proceedings the State offered sufficient evidence to show that the three men had been formerly convicted.

We will discuss first the objections that defendants Smith and Valentine express wherein they assert the trial court committed error in not granting the requested severance. In this respect, defendant Smith's contention that co-defendant Fox's wife would have testified pertaining to a certain telephone conversation she overheard defendant Fox make; and that the alleged telephone conversation would offer exculpatory evidence in his behalf, is without merit. It is a general rule that a granting of a severance is discretionary with the trial court, and that the Court of Criminal Appeals will not disturb the trial court's ruling, absent a showing the prejudice resulting therefrom. Curcie v. State, Okl.Cr., 496 P.2d 387 (1972). The record reveals that the trial judge had heard the testimony of Mrs. Fox when he was considering defendant Fox's motion for commitment to the mental hospital for observation. We believe the court was correct when he stated to the effect that the conversation Mrs. Fox heard occurred before the commission of the robbery and had little bearing on the facts presented at the trial against the defendants herein. Likewise 'It is not error alone that reverses judgments of conviction of crime in this State, but error plus injury, and the burden is upon the plaintiff in error (appellant) to establish to the Court of Criminal Appeals the fact that he was prejudiced in his substantial rights by the commission of error.' Barber v. State, Okl.Cr., 388 P.2d 320 (1963). We therefore conclude that this alleged error is not sufficient to cause a reversal of the convictions of Smith and Valentine.

The three defendants also assert that the evidence presented at trial was not sufficient to sustain their conviction. It is Valentine's contention that insofar as he was apprehended while he was sitting in the vehicle and did not actually participate in the act of armed robbery, that he should not be given punishment equal to that of his co-defendants. The rule of law is well established that when a conspiracy is entered into to do an unlawful act, the conspirators are responsible for all that is said or done pursuant to the conspiracy by their co-conspirators until the purpose has been fully accomplished. This Court held in Parnell v. State, 96 Okl.Cr. 154, 250 P.2d 474 (1952), and in Carle v. State, 34 Okl.Cr. 24, 244 P. 833 (1962), that if two or more persons conspire or combine to commit a felony, each is criminally responsible for the acts of his associates and confederates in furtherance of the common design, if the criminal act thoroughly results from the common enterprise, or where the connection between them is reasonably apparent. There is absolutely no question concerning the part played by defendants Fox and Hedrick, both of whom entered the drug store and committed the armed robberies. Likewise, whether or not defendants Valentine and Smith were waiting in the vehicle for their other two co-defendants to return which the loot, was a question of fact for the jury to determine. In this instance the jury decided that question contrary to the interest of defendants Valentine and Smith. As we view the evidence contained in the records before this Court, the evidence was sufficient to sustain the jury's verdict as to all three defendants. The United States Supreme Court held in Pereira v. United States, 347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435 (1954):

'Aiding, abetting, and counseling are not terms which presuppose the existence of an agreement. Those terms have a broader application, making the defendant a principal when he consciously shares in a criminal act, regardless of the existence of a conspiracy.'

This Court also held in Battles v. State, Okl.Cr., 459 P.2d 623 (1969):

'Proof that defendant aided and abetted the principals in the commission of the crime can be proven by circumstantial evidence, and if sufficient, as in the instant cause, will support the verdict.'

We therefore deny defendants' complaint that the evidence was not sufficient to sustain the jury's verdict.

Defendant Fox's next complaint contends that error occurred when defendant Smith called Mrs. Fox as a witness, thereby forcing him to object to her competency in view of the privilege existing between husband and wife. The record in this case reveals that certain discussions between counsel and the court, concerning this issue, were previously entered into prior to trial. Counsel was advised by the court to forwarn the court before proceeding to call Mrs. Fox in order that the court might address the matter outside the presence of the jury, but without notice to the court, counsel called this witness with the jury present. Consequently, defendant Fox's counsel objected to her appearing. We are of the...

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    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
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    ...competency hearings, and we decline to do so now." Examining the entire record of the proceedings before us, Fox v. State, 524 P.2d 60, 65 (Okl.Cr.1974) we hold the trial judge did not abuse his discretion in finding Appellant had not met his burden of proving This proposition is without me......
  • Cargle v. State, F-94-763
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