Wiley v. State, F--75--606

Citation551 P.2d 1146
Decision Date21 June 1976
Docket NumberNo. F--75--606,F--75--606
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
PartiesHerman Lee WILEY, Appellant, v. The STATE of Oklahoma, Appellee.
OPINION

BLISS, Judge:

The Appellant, Herman Lee Wiley, hereinafter referred to as defendant was charged, tried before a jury and convicted of the crime of Murder in the Second Degree in the District Court of Oklahoma County, Case No. CRF--74--1881. Punishment was assessed at an indeterminate sentence of not less than ten (10) years nor more than life imprisonment under the direction and control of the Department of Corrections of the State of Oklahoma in accordance with 21 O.S.1973, § 701.4. From said judgment and sentence the defendant has perfected his timely appeal.

Briefly stated, the evidence adduced at trial is as follows, to-wit: Larry Don Foster testified that on the 5th day of June, 1974, at approximately 1:30 A.M. he and his brother, James Foster, Went to Uncle Charley's Club in Oklahoma City where they encountered the defendant. Foster further stated that he observed the defendant grab his brother by the arm and his brother jerked free and hit the defendant. The defendant then reached for a gun and James Foster ran out the door with the defendant chasing and firing at him. The witness watched the defendant and James Foster during the chase and, once the defendant and James Foster rounded another corner of the building, heard two (2) further shots.

The State then called Leaster Kemp who testified that he had been at Uncle Charley's the night James Foster was shot. He stated he observed the defendant grab Foster by the arm and Foster turn and strike the defendant in the face. The defendant then drew a gun and began shooting. Kemp further testified that there had been another man shouting for the defendant to shoot Foster and that said individual also chased Foster and defendant out of the building. Kemp further testified as follows:

'Q. Who started shooting?

A. Wiley.

Q. This defendant right over here started shooting?

A. Uh-huh.

Q. Okay.

A. James ran. He was running down the side of the building and he was shooting and the other guy was still hollering kill him, shoot him.

Q. Where was this other guy now that was doing all that hollering?

A. He was following Wiley running behind him.

Q. Following behind this defendant here?

A. Uh-huh.

Q. Okay. Go ahead.

A. And after the second shot I began to run behind them and he shot--he was shooting and as he turned the building corner of the building and I heard another shot and I turned the corner and they had shot him and they was standing there looking at him.'

On cross-examination, the witness stated that he saw the defendant fire four (4) shots and heard two (2) others. The defendant fired at least one (1) shot after Foster had turned the corner of the building.

The State then called Johann M. Kimbro, a police officer with the Oklahoma City school system, who testified that he was at the club during the early morning hours of June 5th and observed the victim, James Foster, run from the building and saw the defendant fire at least three (3) shots. He further stated that he then called police headquarters and subsequently approached the decedent's body and observed that Foster had been shot in the left shoulder with the bullet exiting over his right jugular vein. On cross-examination he stated that Foster was still on his feet and running when he entered the building to call police.

Oklahoma City Police Officer Jimmy Leon Mosley then testified that upon his arrival at the scene at approximately 2:00 A.M. he observed the body of the victim lying on the curb on the East side of the building. Oklahoma City Police Officer Bob Thompson then testified to essentially the same facts as Officer Mosley. He further stated that he was unable to find any spent bullets in the area near the deceased's body. Fred B. Gordan, Assistant Chief Medical Examiner for the State of Oklahoma, then testified that he conducted an autopsy and in his opinion Foster died as a result of a gunshot wound in the back. No bullet was recovered from the body. On cross-examination Gordan stated that he was unable to tell if the bullet wound had been caused by a .22 caliber or a .38 caliber projectile. The State then rested.

Defense witness Mac McGrew testified that the defendant was his brother and that he accompained the defendant to Uncle Charley's on the evening of June 4th. At some point during the evening James Foster had an argument with one Ray Charles. As Foster was leaving the building after the altercation with Charles, Foster hit the defendant in the eye causing the defendant to fall. At this point Foster ran out the West door and the defendant pulled a gun and chased after him. McGrew stated that the defendant was holding one hand over his eye and shooting the pistol in the air. As the defendant chased Foster along the North side of the building, another individual exited the North door of the club and stepped between the defendant and Foster. He further stated that he heard three (3) shots fired after the three (3) men turned the Northeast corner of the building and headed South. When the witness turned the corner, he observed Foster lying face down on the pavement.

Loretta Dixon then testified that she was a cocktail waitress at Charley's on June 5th and had waited on the defendant, his brother, Ray Charles and the victim, James Foster. She further stated that she witnessed a disturbance between the parties and Ray Charles was in fact named William Washington.

Ervin Winesberry then testified that he had been seated at the table with the defendant and that he observed James Foster and William Washington arguing at the front entry of the club. Subsequently, as Foster was walking in front of the defendant, he swung and hit the defendant knocking him to the ground. Defendant pulled a gun and chased Foster out of the building. He further stated that as the defendant was chasing the deceased he observed William Washington come out of the North door of the building and enter the chase between the...

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12 cases
  • Mitchell v. State, F-92-678
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • October 18, 1994
    ...Smith v. State, 727 P.2d 1366, 1371 (Okl.Cr.1986), cert. denied, 483 U.S. 1033, 107 S.Ct. 3277, 97 L.Ed.2d 780 (1987); Wiley v. State, 551 P.2d 1146, 1150 (Okl.Cr.1976). The wounds here were extensive and severe; several of them could have caused death. The nature and extent of wounds plus ......
  • Mitchell v. Ward, CIV-97-283-T.
    • United States
    • United States District Courts. 10th Circuit. Western District of Oklahoma
    • August 27, 1999
    ...State, 727 P.2d 1366, 1371 (Okl. Crim.App.1986), cert. denied, 483 U.S. 1033, 107 S.Ct. 3277, 97 L.Ed.2d 780 (1987); Wiley v. State, 551 P.2d 1146, 1150 (Okl.Crim.App. 1976). The wounds here were extensive and severe; several of them could have caused death. The nature and extent of wounds ......
  • Smith v. State, F-83-9
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • October 28, 1986
    ...such admissions as to render every theory of defense unavailable save one, he will be deemed to have elected that one." Wiley v. State, 551 P.2d 1146, 1150 (Okl.Cr.1976). Appellant also claims that the trial court failed to instruct on Assault and Battery with a Deadly Weapon which she clai......
  • Harney v. State , F–2009–908.
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • February 15, 2011
    ...OK CR 75, ¶ 32, 887 P.2d 1351, 1361; Smith v. State, 1986 OK CR 158, ¶ 17, 727 P.2d 1366, 1371; Wiley v. State, 1976 OK CR 146, ¶ 13, 551 P.2d 1146, 1150; Harrison v. State, 1969 OK OR 263, ¶¶ 5–6, 461 P.2d 1007, 1010; Newby v. State, 17 Okla.Crim. 291, 188 P. 124, 129 (1920); Sayers v. Sta......
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